conveying to Mrs. Hoffinger these premises. Į signed, but for the $2,000 that she had prom

The document was a simple warranty deed, making no mention of a trust, and was filed for record the same day. Both sisters testified that Mrs. Hoffinger was to take title as trustee for herself and her two sisters, Mrs. Albrecht and Mrs. Brady, in consideration of the cancellation of the three notes and the other indebtedness from Ida to the three sisters. The three notes, after being executed by Ida at the time her mother's will was drawn, were left by the sisters with Albrecht, to be kept for them in his private box. After the execution of the deed, these three notes were given to Ida by Albrecht. After the present proceedings were begun and the attachment writ levied upon this property, by the advice of counsel Mrs. Hoffinger executed a written declaration of trust, stating that she held the property in trust for herself, Mrs. Brady, and Mrs. Albrecht, in equal shares. While the testimony shows that Ida told Mrs. Hoffinger of Albrecht's financial embarrassment, there is nothing in the record to indicate that either of them believed that Ida, although no longer a member of the firm, was still liable for its debts, or that this real estate was in danger of being levied on for that indebtedness.

ised to pay each of her sisters. There is not the slightest proof in the record that tends to show that the deed from Ida to appellee was executed for the purpose of hindering or delaying creditors. The testimony of both Ida and her sister as to why the deed was executed stands uncontradicted, and is entirely consistent in itself and with all the other evidence found in the record. Counsel for appellant practically concede this, but argue that as a matter of law the deed was constructively fraudulent as to the creditors, notwithstanding the intent of Ida in executing it. This being so, appellant is in no position to recover in this attachment proceeding. Constructive fraud might justify the setting aside of a deed pursuant to a creditor's bill where judgment had already been obtained; but, in the statutory remedy by attachment, the creditor, in order to have the right to seize property in advance of an adjudication that the defendant is indebted to him, must prove "that within two years prior to the filing of the affidavit he [defendant] had been guilty of conveying his property with the actual intent and purpose to fraudulently hinder or delay his creditors in the collection of demands against him." Nelson & Co. v. Leiter, supra, 190 Ill. at page 417, 60 N. E. 852, 83 Am. St. Rep. 142, and cases cited.

[1, 2] Was the deed under which appellee claims title void in this proceeding as a fraud upon the creditors of W. S. Albrecht & Co.? Ida Steubinger retired from the firm [3] Our attachment statute permits any February 1, 1914. The attachment writ was person claiming title or interest in the atissued August 11, 1915. As far as the record tached property to interplead. Wilson v. shows, the appellant company had no notice Kruse, 270 Ill. 298, 110 N. E. 359. Even of her withdrawal. Assuming that she was though the interpleader did not have the enliable on this indebtedness, still it was law-tire equitable title to the property, it is imful for her to pay a debt in favor of one or more of her creditors in preference to the claims of other creditors.

"A debtor in failing circumstances may decide to prefer and pay one creditor to the exclusion of all others, or may by mortgage or deed of trust, or in other legal manner, secure the payment of his indebtedness to one creditor, though he thereby hinders and delays his other unpreferred creditors in the collection of their claims, provided the payment is made or security given with the intent, in good faith, to discharge or secure the preferred claim." Nelson & Co. v. Leiter, 190 Ill. 414, 60 N. E. 851, 83 Am. St. Rep. 142.

material, as the plaintiff could not subject the property to the debt unless it belonged to the debtor. Hollenback v. Todd, 119 Ill. 543, 8 N. E. 829.

The judgment of the circuit court must be affirmed.

Judgment affirmed.

(273 Ill. 440)

PEOPLE ex rel. BOARD OF ADMINISTRA-
TION v. PEORIA & P. U. RY. CO.
(No. 10636.)

(Supreme Court of Illinois. June 22, 1916.)
1. CONSTITUTIONAL LAW 80(2) - JURISDIC-
TION OF COURTS AND PUBLIC UTILITIES COM-
MISSION-CONTRACTS.

The construction and validity of a contract the construction and use of trackage is a judicial between a railroad company and a shipper for question, the determination of which by a court of competent jurisdiction cannot be affected by any action of the Public Utilities Commission.

The premises in question having been devised to Ida Steubinger, defendant in attachment, pursuant to an agreement by which she was to pay her sisters certain sums of money, a court of equity would not permit her to betray the confidence put in her by the testatrix, but would raise a constructive trust in favor of her sisters even though the agreement rested entirely in parol. Stahl v. Stahl, 214 Ill. 131, 73 N. E. 319, 68 L. R. A. 617, 105 Am. St. Rep. 101, 2 Ann. Cas. 774. Beyond question, the proper- 2. COURTS 475(1)-JURISDICTION BETWEEN COURTS OF CONCURRENT JURISDICTION. ty that Ida received under the will would Where two courts have concurrent jurisdicbe held liable in equity not only for the tion, the one which first takes jurisdiction of the three notes, of $2,000 each, that she had subject-matter will retain it; and its judgment

[Ed. Note.-For other cases, see Constitutional

Law, Cent. Dig. § 144; Dec. Dig.

80(2).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cannot be affected by any attempt of another lands near the line of the road and near Barcourt to assume jurisdiction. tonville. On July 16, 1896, the railway company entered into a contract with Sholl

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 1229, 1247-1257, 1259; Dec. Dig. Bros., whereby the company agreed to put 475(1).]

in a side track for them from its main track to their coal mine, Sholl Bros. furnishing the right of way, grading and bridging from Where a controversy has been determined by the main track to the mine, doing all the the judgment of a court of competent jurisdic-grading and bridging necessary for the tracks tion, the Public Utilities Commission has no authority to assume jurisdiction and render a contrary decision.

[Ed. Note.-For other cases, see Public Service constructing the side track. The railway comCommissions, Dec. Dig. 6.]

pany agreed to furnish the balance of the ties PUBLIC and other material necessary for laying the Ac-side track and necessary mine tracks and to

The state Public Utilities Commission has maintain such tracks at its own expense. It no jurisdiction over suits arising out of contract between railroads and shippers, such jurisdiction by the Constitution being vested in the circuit

coal.

by the petition to have it compelled to do. The commission had no jurisdiction to order the railway company to do what the decree of the circuit court enjoined it from doing.

The railway company claims that un- | the only parties necessary to that protil 1911 no coal was transported to the hos-ceeding and the decree was binding on them. pital over the Sholl Bros.' tracks without the The railway company was enjoined from doconsent of Sholl Bros. first obtained. In ing exactly the thing which it was sought 1911 the railway company issued a supplemental tariff showing rates on coal to the Peoria State Hospital. The railway company gave notice to Sholl Bros. that it intended to haul coal for other persons over [2] In the case of two courts of concurthe tracks in question, and thereupon Sholl rent jurisdiction, the one which first obtains Bros., in the fall of 1913, filed a bill in the jurisdiction of the subject-matter will retain circuit court of Peoria county for an in- it; and no other court can render its judgjunction restraining the railway company ment or decree nugatory by subsequently asfrom transporting coal, during the continu-suming jurisdiction. This is not a case of two ance of the contract between the railway courts of concurrent jurisdiction. The state company and Sholl Bros., over the tracks on Public Utilities Commission is not a court, but the right of way mentioned in that contract, is an administrative commission charged with not mined and produced on the lands or by the performance of certain executive and advirtue of the coal and mineral rights of Sholl ministrative duties. The law does not auBros. Upon a hearing of this bill at the thorize it to ignore the decrees of courts in March term, 1914, an injunction was decreed matters coming before it, where the courts in accordance with the prayer of the bill. had jurisdiction of the subject-matter and Thereupon the railway company, in compli- the parties. Its powers are subject to the ance with the injunction, ceased and refused action of the courts in matters of which they had jurisdiction. to transport coal over the tracks in question to the hospital. On December 7, 1914, the petition in the proceedings now under consideration was filed by the Peoria State Hospital with the state Public Utilities Commission, showing the refusal of the railway company to transport coal for the hospital over the tracks in question and praying for such order in the premises as the commis-er the injunction was granted, a ticket agent sioners should deem proper. The petition averred that the appellant gave as a reason for its refusal the decree of the circuit court granting the injunction, and alleged that the circuit court had no jurisdiction of the cause or of the state or any of its officers, and that the decree was of no force or effect as against the interests of the petitioner.

In Hunter v. Wood, 209 U. S. 205, 28 Sup. Ct. 472, 52 L. Ed. 747, a statute fixing passenger and freight rates on railroads had been enacted in the state of North Carolina and a railway company had obtained in a federal court a preliminary injunction against the enforcement of the statute. Aft

of the railway company, having sold a ticket state law but within the rate allowed by the at a rate greater than that allowed by the injunction, was convicted on a charge of overcharging for a railway ticket, in violation of the state law. It was held by the United States Supreme Court that he could not be proceeded against criminally for disobedience of the act fixing rates, so long as he acted under and in obedience to the provisions of the injunction and that he was properly discharged upon a writ of habeas corpus. The state of Minnesota also passed a passenger rate law, and the United States Circuit Court granted a temporary injunction restraining the state authorities from enforcing it. An agent of a railroad company was indicted in a state court and convicted of a violation of the statute. Supreme Court of Minnesota, however, held that the orderly administration of law should not expose a litigant to punishment for not doing an act which a court, acting within its jurisdictional authority, had commanded him to refrain from doing, and reversed the judgment. State v. Chicago, Milwaukee & St. Paul Railway Co., 130 Minn. 144, 153 N. W. 320, L. R. A. 1916B, 764.

[1] It is unnecessary to consider the merits of the proceeding before the state Public Utilities Commission, because we are of the opinion that that body had no jurisdiction to make any order in the cause. The allegation of the petition that the circuit court had no jurisdiction of the cause, and that its decree was of no force against the petitioner, was manifestly erroneous. The Sholl Bros. tracks over which the petitioner sought to compel the hauling of coal were built by the railway company in pursuance of a contract with Sholl Bros. The respective rights of the railway company, Sholl Bros., and the public in regard to those tracks depend on the construction and validity of that contract. The construction and validity of the contract were judicial questions. Long before the petition was filed with the state Public Utilities Commission a decree of the circuit court in a cause in which it had jurisdiction of the subject-matter and of the parties had been rendered, adjudicating the exact meaning of that contract and enjoining the railway company from hauling over the tracks any other coal than that of Sholl Bros. The parties to the contract were trary decision.

[3] Little argument would seem necessary to show that where a court having jurisdiction of the subject-matter and the person has determined the rights of parties in a controversy between them, an administrative commission or another court has no authority to take jurisdiction and render a con

5975)--CONSTRUCTION-ESTATE

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1324; Dec. Dig. 597(5).] 3. WILLS 597(5)-CONSTRUCTION-ESTATES

CREATED-CONDITIONS.

A devise of land on condition that the tain sums of money vests the title in such land devisee pay other children of the testatrix cerin the devisee.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1324; Dec. Dig. 597(5).]

[4] It is argued on behalf of the appellee 2. WILLS that the circuit court did not have jurisdicCREATED. tion; that when the state Public Utilities contained the proviso that the legacy was on the Where the will, after devise in fee of land, Commission Act went into effect, on January condition that the devisee pay to a third per1, 1914, the effect was to abate pending suits, son one-half the rents and profits from the propor at least suspend them until the utilities erty devised, the devisee took the fee and there commission itself had passed upon those condition could enforce her right in equity and was no trust, although the beneficiary of the which were within its jurisdiction. The compel payment of the charge. state Public Utilities Commission has no jurisdiction to adjudicate upon the controverted rights of parties growing out of their contracts. The question of the effect of the contract between the railway company and Sholl Bros. was a judicial question, of which the commission had no jurisdiction. The Legislature had not the power to confer such jurisdiction even had it attempted to do so, and had not the power to take away or suspend the jurisdiction of the circuit court, to which the Constitution has given original jurisdiction of all causes in law and equity. The commission might, in the course of its proceedings, have to take cognizance of the rights created by that contract, but it was not authorized to construe and apply the law and make a judicial determination of those rights. In the absence of a judicial sentence the commission could make such order, in the exercise of its administrative authority, as it deemed just and legal, and could exercise its judgment as to the effect of the contract, leaving the parties to such legal or equitable remedies as they might be entitled to.

[5, 6] A hearing before the commission is
not a judicial proceeding, though the statute
provides for an appeal to the circuit court of
Sangamon county. When a question of which
a court has jurisdiction has been adjudicated
by that court the adjudication is final, so far
as the commission is concerned. Whether the

determination of the circuit court was right
or wrong, it must be accepted in this case
as settling the rights of the parties. Until
reversed by an appellate tribunal it is as
final and conclusive as a judgment of this
court and must be so treated.

4. WILLS 675-ESTATES CREATED-TRusts. While no particular form of words is necessary to create a trust, no trust can be implied from words indicating motive inducing the gift, so that a clause after the devise of a fee-simple estate, suggesting that, if any of the testatrix's relatives needed assistance, it was testatrix's wish that they be assisted in such way as the devisee should judge to be best, did not operate to create a trust.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1587-1589; Dec. Dig. 675.] 5. WILLS 671-ESTATES CREATED-TRUSTS. Wherever a prior disposition of the property imports absolute and uncontrolled ownership, to act or not to act is given, equity will not conand also wherever a clear discretion and choice strue a trust from the language employed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1577, 1578, 1586; Dec. Dig. 671.] 6. WILLS 675-ESTATES CREATED-TRUSTS.

Precatory words do not always or necessarily create a trust, but the question is one of inthe will is imperative, and if payment of a sum tention, depending on whether the direction of is left to the decision of the donee no trust is created.

[Ed. Note.-For other cases, see Wills, Cent.

Dig. §§ 1587-1589; Dec. Dig. 675.]

7. WILLS 608(3)-CONSTRUCTION-ESTATES CREATED-RULE IN SHELLEY'S CASE.

A devise of the residue of an estate of real and personal property to one and to his heirs in fee simple and forever is not an executory devise, but under the rule in Shelley's Case creates a fee-simple estate.

[Ed. Note.-For other cases, see Wills, Cent.

The judgment of the circuit court is reversed and the cause remanded, with directions to set aside the order of the state Pub-Dig. §§ 1374, 1378; Dec. Dig. 608 (3).]

lic Utilities Commission.

Reversed and remanded, with directions.

(274 Ill. 162)

HAIGHT v. ROYCE et al. (No. 10580.)
(Supreme Court of Illinois. June 22, 1916.)
1. WILLS 597(1)-CONSTRUCTION-FORMAL
WORDS.

Although the words "in fee simple" are not
used in the will, the devisee will be presumed to
take the fee under Conveyance Act (Hurd's Rev.
St. 1913, c. 30) § 13, providing that, if not other-
wise indicated in the will, a devise of an estate
in lands shall be of the fee.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1319, 1322, 1326; Dec. Dig. 597(1).]

8. WILLS 597(4)-CONSTRUCTION-ESTATES

CREATED-HEIRS-PRESUMPTIONS.

The word "heirs," when used in a will, will be presumed to have been used with knowledge of its meaning, since it has a definite and unchangeable meaning in law, which must control, even if against the testator's manifest intention.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1323; Dec. Dig. 597(4).]

9. WILLS 775-LAPSE OF DEVISE-EFFECT. Where testatrix devised land to her nephew and his heirs, subject to certain charges during the life of a third person, and both such beneficiary and the devisees predeceased the testatrix, the devise, having been of a fee, lapsed, and the property passed as intestate property.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1997-2000; Dec. Dig. 775.]

10. WILLS *mm 602(2) TATES CREATED.

CONSTRUCTION-ES- [ said homestead property inherited by me and
one share purchased by me from the heirs of
my deceased brother, Merritt S. Hobson.
"Fourth-I give and devise to my nephew, Hal-
ly Haight, in fee simple, my house and lots on
Washington street, in the village of Naperville,
Du Page county, Illinois.

Where a devise in fee simple of land was followed by a proviso requiring payment of certain sums to a third person during her life, the estate was nevertheless in fee, although reduced to a base or determinable one.

"Fifth-I also give, devise and bequeath to my nephew, Hally Haight, all the other propercounts, cash or real estate not before mentioned ty, including household furniture, notes, acin this my will, which I may own at the time of my death.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 1353; Dec. Dig. 602(2).] 11. WILLS 707(2)-SUIT FOR CONSTRUCTION -ATTORNEY'S FEES-WHEN ALLOWABLE. When the testator expresses his intention so ambiguously as to necessitate construction of the "Sixth-The above mentioned legacies to my will by the court, the cost of litigation should be nephew, Hally Haight, are, however, left to him borne by the fund or property in question, and on this condition: that he pay, at the end of the allowance of fees is largely within the dis- each year, to my sister, Charlotte, wife of David dis-on M. Haight, of Oswego, Kendall county, Illinois, during her lifetime and for her use and benefit, one-half of the rents and profits annually derived by him from the properties devised and bequeathed to him as above.

cretion of the chancellor.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 1685; Dec. Dig. 707(2).] 12. WILLS 707(2)-CONSTRUCTION-ATTORNEY'S FEES-WHEN ALLOWABLE.

Where, from the language of the testatrix and the death of beneficiaries, a question arises whether the will created trusts and what should be the ultimate disposition of the property, the court is not justified in reversing the chancellor's order allowing attorney's fees from the es

tate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 1685; Dec. Dig. 707(2).]

Appeal from Circuit Court, Du Page County; Mazzini Slusser, Judge.

Bill to construe the will of Adela Hobson, brought by Hally Haight, Jr., by his next friend, against Emma Royce and others. From the decree rendered, complainant appeals. Affirmed.

Childs & Childs, of Chicago, for appellant. Fischer & Fischer, of Chicago, for appellee Elvira Haight. William S. Hefferan, of Chicago, and S. L. Rathje, of Wheaton, for appellee Ellen Crossman. J. C. Murphy and E. L. Lyon, both of Aurora, for appellee Albert Page.

CRAIG, C. J. Appellant, Hally Haight, Jr., by his next friend, filed his bill in the circuit court of Du Page county, praying that the will of Adela Hobson be construed as to the rights of all parties in interest, and especially that his rights be determined and fixed. The last will and testament of Adela Hobson consisted of a will made June 5, 1885, and a codicil thereto dated September 10, 1894. The will, omitting the attesting clause, is as follows:

"I, Adela Hobson, of the Village of Naperville, Du Page county, being of the age of thirty-nine years, do hereby make and declare this to be my last will and testament, as follows:

"First-I direct that my funeral expenses and all my just debts be paid.

"Second-I give and devise to my nephew, Hally Haight, in fee simple, the land which was set off to me at the division of my father's estate, and which consists of thirty-five acres of prairie land and ten acres of cleared land, marked as lots No. 5 and 6 on the map attached to the report of the commissioners who divided the estate of Baley Hobson.

"Third-I also give and devise to my nephew, Hally Haight, in fee simple, all my title and interest in the homestead property formerly held by my mother as her dower in the estate of my deceased father, consisting of one share in the

"Seventh-If my nephew, Hally Haight, shall die before either myself or my sister, Charlotte Haight, then it is my will that my sister, Charlotte Haight, shall take in fee simple and as her absolute property all the lands and properties given and devised in the above legacies to my nephew, Hally Haight.

Haight, executor of this my last will and testa"Eighth-I hereby appoint my nephew, Hally

ment, and give him full control and authority over everything belonging to my estate the same as I myself had during my lifetime. And if my nephew, Hally Haight, shall die before either myself or my sister, Charlotte Haight, then my sister, Charlotte Haight, shall be executor of this my last will and testament, with the same to my estate which I myself had during my lifecontrol and authority over everything belonging

time.

"Ninth-It will be understood by my nephew,

Hally Haight, and my sister, Charlotte Haight, that should any of my near relatives become so reduced in circumstances as to need assistance, then it is my wish that they assist such relatives in such ways as my said nephew and sister shall judge to be the best.

"Tenth-I hereby revoke all former wills and testaments made by me.

"In witness of all which I have hereunto set my hands and seal this fifth day of June, A. D. 1885. Adela Hobson. [Seal.]"

The codicil is in the following words and figures:

"I, Adela Hobson, of the city of Naperville, Du Page county, Illinois, of the age of fortyeight years, and being of sound mind and memory, do hereby make, publish and declare this my codicil to my will executed by me on the fifth day of June, A. D. 1885, hereby making this codicil a part of my said will, as follows:

"First-I hereby re-affirm and re-declare my said will in every particular except as the same is modified by this my codicil.

"Second-I hereby give and bequeath to my niece, Elizabeth Haight, the sum of $300, lawful money of the United States, to be paid to her by my executor within six months after my death.

"Third-I hereby give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, which is not otherwise disposed of in my said will and in this codicil, to my nephew, Hally Haight, and to his heirs, in fee simple and forever.

"In witness of all which I, the said Adela Hobson, have hereto set my hand and seal the tenth day of September, A. D. 1894.

"Adela Hobson. [Seal.]"

The defendants to the bill were the heirs at law of the testatrix and the administrator of her estate cum testamento annexo, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes