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Appeal from Logan County Court; Charles J. Gehlbach, Judge.

carrying such election, then and in such case such elections are hereby made and held to be legal, valid, and binding." By this lan- Proceeding by the people, on the relation guage the Legislature expressly ratified of James Ryan, County Collector, against every election held under the act at which the Illinois Central Railroad Company, for the votes of women were the deciding factor, the collection of a road and bridge tax. whether such election resulted in a majority From a judgment sustaining objections to the for or against the organization of the dis- tax, the petitioner appeals. Reversed and retrict. The language of the act following manded, with directions. that just quoted does not modify it. It is P. J. Lucey, Atty. Gen., and Everett Smith, true that the language following applies only State's Atty., of Lincoln, for appellant. W. to cases where the election resulted in a ma-A. Covey, of Lincoln (John G. Drennan, of jority for the organization of the district. Chicago, of counsel), for appellee. It was unnecessary to make any such provision in reference to cases where a majority of votes cast were against the organization of the district. Those cases were fully and completely disposed of by the language in that part of the act above quoted. The act is general, and applies to all elections at which women votes were the deciding factor, without regard to the result.

tral Railroad Company, filed objections to DUNCAN, J. Appellee, the Illinois Centhe taxes extended against its property in Logan county at the June term, 1915, of the county court of said county. The objections involved in this proceeding are as to the road and bridge taxes of East Lincoln township, The act does not encroach upon the prov-in said county. The county court sustained ince of the judiciary. It does not attempt to deprive the courts of jurisdiction, but the objections and denied judgment for said simply makes effective the elections referred taxes, and the collector has appealed. to therein, and in carrying out that intention provides that all pending suits questioning the validity of such elections on the ground that the votes of women had been the deciding factor should abate.

[3] Appellants complain of the action of the trial court in assessing costs against them, and insist that as at the time this action was instituted they had a good cause of action, and would have been entitled to recover had it not been for the subsequent act of the Legislature, they should not be mulcted in costs. Appellants had no vested rights in the matter, and this proceeding was instituted with the full knowledge that it was within the power of the Legislature by a curative act to ratify and render legal and binding the election held. The act was approved and became effective before the final determination of the cause, and costs were properly taxed against appellants.

The only objection insisted upon and argued by appellee on this appeal is that the highway commissioners of said town did not hold a meeting on the first Tuesday in September, 1914, to determine and certify the amount required for road and bridge purposes, as required by section 56 of the Road and Bridge Act (Hurd's Rev. St. 1915-1916, c. 121). It was conceded that the August meeting to determine the rate was held, as required by section 50 of the act. On the hearing, proof was offered by appellant in support of a motion to amend the record of the commissioners, so as to show that the commissioners did hold a meeting on the first Tuesday in September, 1914, and determined and certified the amount required for road and bridge purposes, as required by said section 56. The refusal of the court to allow the record to be so amended on the evidence offered is assigned and argued as

The judgment of the circuit court is af- error by appellant, and the correctness of the firmed.

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court's ruling in that regard is also to be determined by this court.

Identically the same questions for decision in this case, arising on the same record and upon practically the same briefs and arguments, were presented to and determined by this court in the case of People v. Chicago & Alton Railroad Co., 274 Ill. 209, 113 N. E. 147. The decision in that case is controlling in this case, and for the reasons therein given the judgment of the county court is reversed, and the cause remanded, with directions to permit the record to be amended and introduced in evidence as amended, and to render judgment for appellant for the taxes in ques

[Ed. Note. For other cases, see Highways, tion. Cent. Dig. § 312; Dec. Dig. 95(3).]

Reversed and remanded, with directions.

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

274 Ill. 576)

ESSARY V. MARVEL et al. (No. 10324.)

(Supreme Court of Illinois. Oct. 24, 1916.) 1. WITNESSES

UTE.

DUNCAN, J. Plaintiff in error filed a petition in the county court of Franklin county to sell real estate to pay debts and to cancel certain warranty deeds made by Joseph

150(2)-COMPETENCY-STAT-F. Watson, Sr., deceased, on October 23, 1908,

In a suit by an administrator to sell decedent's realty to pay debts and to cancel warranty deeds made by decedent to his son and daughter, the daughter and a doctor, who had probated claims against the estate, were competent witnesses, when called by petitioner, the son not defending as an heir or devisee of his father, but as grantee in his father's deed, so that section 2 of the statute on evidence and depositions (Hurd's Rev. St. 1915-16, c. 51) did not give him the privilege to have their testimony excluded on the ground that they were incompetent when called by the administrator.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. § 654; Dec. Dig. 150(2).]

to his son Joseph F. Watson, Jr., and to Nellie Marvel, his daughter, and a mortgage deed made after said date by Joseph F. Watson, Sr., to George H. Mitchell, as clouds on the title. Said grantees and Charles Watson, as children and only heirs of said deceased, and said mortgagee, were named as defendants to the petition, which, in addition to the statutory averments required in a petition to sell real estate to pay debts of a deceased, charged that said warranty deeds were made without valuable consideration therefor; that they were procured by fraud, misrep

2. DEEDS 211(1)-CAPACITY OF GRANTOR-resentations, intimidation, and undue influSUFFICIENCY OF EVIDENCE.

In an administrator's suit to cancel warranty deeds made by decedent to his son and daughter, evidence held to support the court's finding that the deeds were executed when decedent was sufficiently sound mentally to execute them, and to understand their effect.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 637-640, 642, 647; Dec. Dig. 211(1).] 3. DEEDS 68(3)-MENTAL CAPACITY DISEASE AND OLD AGE.

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The mental faculties of a person may be impaired by disease and old age, and yet leave him sufficient mental capacity to make a deed. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 153; Dec. Dig. 68(3).]

4. DEEDS 68(2)-DELUSIONS OF GRANTOREFFECT.

A person may be subject to delusions, but if they exert no influence on him in making a deed, the deed is not invalid on that account.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 152; Dec. Dig. 68(2).]

5. DEEDS 68(12)-MENTAL CAPACITY.

It is sufficient that the grantor has sufficient It is sufficient that the grantor has sufficient mental capacity to comprehend the nature of the transaction and the effect of his act, and can exercise his will with reference thereto. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 151; Dec. Dig. 68(12).] 6. EVIDENCE 230(3) IMPEACHMENT OF DEED BY GRANTOR SUBSEQUENT TO DELIV

ERY.

-

When a deed is executed and delivered, it transfers the title beyond the further power and control of the grantor, and his statements in disparagement of the title, or arraigning the character or actions of the grantee, after the deed is executed and delivered, are inadmissible to impeach it.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 837, 838, 846; Dec. Dig. 230(3).]

ence; that at the making thereof, and for
many years prior thereto, said Joseph F.
Watson, Sr., was of unsound mind and incap-
able of transacting the usual and ordinary
business affairs of life, and by reason of such
unsoundness of mind was incapable of ex-
ecuting a valid deed of conveyance, and that
Said deeds are therefore invalid. All the
defendants except Charles Watson filed an-
swers, denying the allegations in the peti-
tion; Charles Watson making default.
the hearing the court found against the peti-
tioner, and denied his prayer for the can-
cellation of said deeds, but made an order
for the sale of the coal under another tract
of land not involved in this court, and of
which the deceased died seized.

On

There is no evidence in the record tending to show intimidation or undue influence in

any form, and there is no proof of fraud, actual or constructive, as the evidence does not show the deceased owed any debt at the time the deeds in question were made that is unpaid, or that they were made in contemplation of his becoming indebted. The only ground urged by plaintiff in error for a reversal of the judgment is that Joseph F. Watson, Sr., had not sufficient mental capacity to make a valid deed when he executed the deeds in question.

[1] The evidence in the record shows that the deceased owned in his lifetime 160 acres of land situated in Saline county, Ill., and that he had lived most all of his life on the part of it in question. In November, 1907, he conveyed 40 acres thereof to his illegitimate daughter, May Samuels, reserving the coal and other mineral rights thereunder, Petition to sell real estate to pay debts, which by the decree in this case were ordered etc., by J. T. Essary, administrator, against sold. During the last 5 or more years of his Nellie Marvel and others. To review a judg-life he and his wife were estranged and livment for defendants, petitioner brings error. ed apart. For about 16 months prior to 1908

Error to Franklin County Court; Thomas J. Layman, Judge.

Affirmed.

J. P. Mooneyham and W. P. Seeber, both of Benton, for plaintiff in error. Moses Pulverman, of Benton, and A. E. Somers, of Harrisburg, for defendants in error.

he lived with his daughter, Nellie Marvel, wife of Logan Marvel, while his wife lived with his son Joe, on the old homestead. During 1908 he lived with Joe at the homestead, and while his wife lived there also and he

"I want you to keep them [the deeds] until I call for them during my lifetime, or on my death deliver them to the parties to whom they are made."

Hobbs took the deeds and placed them in a safety deposit box in a bank, and that same to Hobbs with an order from her father for afternoon Nellie Marvel, the daughter, went to Hobbs with an order from her father for father he refused to deliver her the deeds, the deeds. Standing on his promise to her but delivered them in person to him that evening, and the deceased told him then that his children had become dissatisfied with the way the deeds were made, and that he was going to make other deeds, and he then burned the deeds Hobbs returned to him. He then, or within a very few days thereafter, executed before Hobbs, as notary public, six other deeds for those lands, one to each

seemed solicitous about her being well cared, deceased handed the deeds to Hobbs with for, yet they remained estranged up to her this statement: death. In January, 1909, he went to Nellie's home in Franklin county, and there lived until he died, June 30, 1911, leaving the said three children and several illegitimate children, but no widow, him surviving. A conservator was appointed in 1910 to have the custody of the person and the care of the property of Watson, and the testimony of A. J. Sanders shows that he was appointed as such conservator some time in the year 1909. At the death of Watson his conservator became his administrator, and Nellie Marvel had probated and allowed a claim against his estate for nearly $1,500 for care and support of her father, and Dr. Marcus D. L. Carter also had a claim allowed against his estate, presumably for services as a physician, and they are the principal witnesses for defendants in error. Their competency of said grantees, one to his son Charles, one as witnesses was objected to under section 2 of the statute on evidence and depositions, and that question is presented here for determination preliminary to the main question. It is true, as suggested by defendant in error Joseph F. Watson, Jr., that they are interested in the result of this suit, and that Nellie Marvel, although denying the allegations of the petition as to the incompetency of the deceased to make the deeds in question, was nevertheless palpably in sympathy with the plaintiff in error, and more interested in his recovering in the suit. They were called as witnesses by the plaintiff in error. Joseph F. Watson, Jr., was not defending the suit as an heir or devisee of his father, but as a grantee in the deed made to him by his father, the deceased. Said section of the statute does not therefore give him the privilege to have their testimony excluded on the ground that they are incompetent witnesses when called by the administrator of the deceased. Hudson v. Hudson, 237 Ill. 9, 86 N. E. 661; Grindle v. Grindle, 240 Ill. 143, 88 N. E. 473. The deceased had a stroke of paralysis some 3 or 5 years before he made the deeds in question, October 23, 1908, which affected his lower limbs and his tongue, so that up to the time he made those deeds his locomotion and his speech were slightly affected thereby so as to be noticeable to those who were intimately acquainted with him. In July and August, 1908, he had a very severe illness, and during that illness sent for Dr. Chestine and E. J. Hobbs, a notary public, and informed Hobbs that he was pretty sick and wanted to deed to his daughter, Nellie Marvel, 40 acres of his land, to his son Joe 40 acres, and to James Watson, an illegitimate son, 40 acres. He dictated to Hobbs how he wanted the deeds made, what lands he wanted to deed to each one of the children, and had a life estate reserved to himself in all of the deeds. The deeds were duly and voluntarily executed as he requested, and the

to his wife, and one to Bert Watson, another illegitimate son, with stipulations in some of the deeds that his children, including Charles, should pay back to the deceased's estate certain moneys received by them, and those deeds were dictated by the deceased and placed in Hobbs' hands with similar instructions for delivery as to the former three deeds. The deceased again called on Hobbs for the six deeds, and in the presence of Charles, who was then complaining at the way they were made, the deceased burned them, remarking, "Now, by God, they are gone," and further saying he was going to do as he pleased, as he had worked for and got the land himself. Hobbs had known him intimately for 10 or 12 years and lived within two miles of him. He testified to the foregoing facts, and they are not disputed, and further testified that the deceased was then in his right mind, and that he had every reason to believe that he understood what he was doing on those occasions, that his condition was normal, and that there was nothing that occurred out of the ordinary in his actions or conversations.

On October 23, 1908, when the deeds in question were made, while living with his son Joe, the deceased sent for his family physician, Dr. M. D. Empson, and Dr. C. W. Pemberton, another physician and neighbor whom he had known intimately for years, and had them come out to his home to witness the deeds, with the expressed purpose, as he told Dr. Empson, that they should be able to testify as to his competency to make the deeds should they afterwards be attacked on the ground of his unsoundness of mind. He had W. W. Ramsey, a lawyer and notary public, draw up the deeds. Ramsey and Dr. Pemberton got to the house first and talked with the deceased on various and commonplace subjects for an hour or more before Dr. Empson arrived. After Dr. Empson came the deeds were executed by the deceased and witnessed by the two physicians, and then

all three of them remained there for supper. I show that he grew weaker in body and mind Dr. Pemberton and Ramsey were there three and was insane, and finally became helpless or four hours. After they all got there the physically and his mind almost a blank bedeceased asked his son Joe to bring the deeds fore he died. to him, and the deceased, then picking out from the bunch the deed describing the lands, directed Ramsey to describe in the deed to Joe the home or north 80 acres of his land and in the deed to Nellie the south 40, and pointed out the respective tracts, and had a reservation made in the deeds of a life estate for his own life. He then signed his name to the deeds, acknowledged them in the presence of the witnesses, and handed his son Joe his deed with the remark:

[2-6] We have studied this record carefully, and have concluded therefrom that the deceased was a very positive character, and not easily persuaded to change his views or his mode of living; that he was also very rough and sometimes very vulgar in his manners, and at times in 1908, during his severe illness, and perhaps at other times prior thereto, was mentally unsound; that he had sane intervals, when he was competent to transact business, in 1908; and that after he

"There she is; Nellie will be over in the morn- went to Franklin county to live he became ing, and I will give hers to her."

He stated in the presence of the witnesses, as his reasons for making the deeds, that he had been with Joe a good while, and Joe had been to a "right smart" of expense and trouble in keeping his mother, and that Joe and Nellie were to care for him. Joe took no part in the conversations, so far as appears from the evidence. Ramsey and the two physicians aforesaid testified to the foregoing facts, and further testified that they had known the deceased intimately for 25 years or more, and that on that day, at the time he executed the deeds, while weak physically, he was mentally sound, in his usual, ordinary, normal condition, and comprehended what he was doing when he signed the deeds. May Samuels was there also that day until a short time before the deeds were executed, and testified that on that day, and for a month before and after that time, the deceased was normal mentally and capable of comprehending and transacting ordinary business, and that he was in such normal condition, mentally, during the entire year of 1908. About ten other neighbors living close to the deceased in Saline county and who had been very well acquainted with him for years, testified that he was of sound mind during the year 1908, and that they could notice no difference in him mentally during that year from what he was in former years, and their testimony was to the effect that he was mentally competent to transact business understandingly. On the other hand, Dr. Carter, his partner, Dr. House, and Nellie Marvel, and some two or three others who were also intimately acquainted with the deceased and had been for years, testified, in substance, that during his illness in 1908, and at other times during that year, the deceased was of unsound mind, and occasionally had delusions that he owned quite an amount of coal lands that he did not own at all, and that negroes and women were after him and trying to burn his coal, and some of the witnesses expressed themselves that he was mentally incapable of transacting ordinary business affairs intelligently. There is also much evidence in the record which ought

weak physically and was mentally incapable of transacting business two years or more before he died. The evidence, however, clearly supports the finding of the court that the deeds in question were executed at a time when he was sufficiently sound mentally to execute deeds and to fully comprehend their effect upon himself and his grantees, and that the deeds in question are valid. Everything that he did and said in connection with the execution of these deeds shows that he thoroughly understood the business then in hand, and comprehended its importance and the full effect of the deeds on all parties concerned therein. The mental faculties of a person may be impaired by disease or old age, and yet he may have sufficient mental capacity to make a will or a deed. McLaughlin v. McLaughlin, 241 Ill. 366, 89 N. E. 645. He may be subject to delusions, but if they exert no influence on the grantor in the making of a deed, he will not be incapacitated on that account to make a valid deed. Crosby v. Dorward, 248 Ill. 471, 94 N. E. 78, 140 Am. St. Rep. 230. If the grantor in a deed has sufficient mental capacity to comprehend the nature of the transaction and the effect of his acts, and can exercise his will with reference thereto, the deed will not be set aside for want of mental capacity. Kelly v. Nusbaum, 244 Ill. 158, 91 N. E. 72. When a deed is executed and delivered it then and there takes effect and transfers the title beyond the further power and control of the grantor. Statements of the grantor in disparagement of the title or in arraignment of the character or actions of the grantee, after the deed is executed and delivered, are not admissible to impeach it. Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837. It was shown by the evidence in this case that the deceased told a number of persons, after he had executed the deeds in question, just how he had made them, and that he was satisfied with them, and that they were fixed just as he wanted them.

As the judgment of the county court is well supported by the evidence, and there being no errors in the record in the admission of evidence, the judgment is affirmed.

(274 Ill. 516)

SEABACK V. METROPOLITAN LIFE INS. action of assumpsit in the circuit court of

CO. (No. 10355.)

(Supreme Court of Illinois. Oct. 24, 1916.) 1. INSURANCE 198(5)-VOID POLICY - RECOVERY OF PREMIUMS.

DUNCAN, J. Minnie Seaback brought this Bureau county against appellee to recover an amount alleged to be due her as beneficiary under the terms of a life insurance policy issued September 12, 1910, by appellee on the life of Lulu Seaback, daughter of Minnie Seaback. The insured died March 23, 1911, and proofs of death were duly furnished to appellee by Minnie Seaback. The

Where a policy is void from the beginning, and there is no fraud on the part of the insured, he may recover the premiums paid by him. [Ed. Note. For other cases, see Insurance, Cent. Dig. 8 459; Dec. Dig. 198(5).] 2. INSURANCE 392(1)-FORFEITURE-WAIV- declaration declared specially on the policy in ER-FAILURE TO RETURN PREMIUMS.

The mere failure of an insurance company to return premiums on a policy void from the beginning, for breach of condition, is not a waiver of its right to forfeit the policy.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1041, 1045; Dec. Dig. 392(1).] 3. INSURANCE 646(3)—ACTIONS ON POLICY -BURDEN OF PROOF-WAIVER OR FORFEI

TURE.

The burden of proving a waiver or an estoppel on the part of an insurance company to forfeit a policy is on the beneficiary.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1653; Dec. Dig. 646(3).]

4. INSURANCE 371-FORFEITURE OF POLICY -WAIVER.

To constitute a waiver of forfeiture of a policy, it must appear that the company expressed an intention to relinquish the defense, or that its negotiations or transactions after knowledge of the forfeiture recognized the continued validity of the policy.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 943-946; Dec. Dig. 371.] 5. INSURANCE 615-DEFENSES BREACH OF CONDITION-RETURN OF PREMIUMS.

The return of premiums paid on an insurance policy void from the beginning is not a condition precedent to the right of the company to defend an action on the policy.

[Ed. Note. For other cases, see Insurance, Cent.Dig. §§ 1530, 1532-1534; Dec.Dig. 6. INSURANCE 198(6) RIGHT TO PREMIUMS.

The right to recover premiums paid on an insurance policy void from the beginning is the right of the insured or her personal representative, not of the beneficiary.

one count, and also contained the common counts. Appellee filed the general issue and special pleas. No replications were filed, but a stipulation was signed by the parties, in substance, that the plaintiff should be allowed to prove under the declaration any matter that might be necessary to maintain her action, and that appellee should have the right to prove any matter under the general issue necessary to its proper defense, the same as if properly pleaded by it and without the filing of formal special pleas or replications or other pleadings, it being the intention of the parties that said cause may be tried on the merits without further formal pleadings. A trial was had before the court without a jury, and resulted in a judgment against the appellee in the sum of $251.87. The original plaintiff having died after judgment, her death was suggested, and the cause has since been prosecuted in the name of her administrator. On appeal the Appellate Court for the Second District reversed the judgment with a finding of facts. A certificate of importance was granted by that court, and an appeal has been perfected to this court.

The policy sued on was an industrial in615.]surance policy, reciting that it contains the VOID POLICY entire agreement between the company and the insured and the holder and owner thereof, and it further appears from the arguments of the parties that no written application therefor or representations or statements were made by the insured to appellee at the time it was issued, oral or otherwise. The premiums paid were 10 cents per week, amounting to a total sum of $2.80.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 465-467; Dec. Dig. 198(6).] 7. APPEAL AND ERROR 172(1)-PRESENTING QUESTIONS IN LOWER COURT-NECESSITY. A claim that the beneficiary under an insurance policy is entitled to judgment on the common counts for premiums paid by her cannot be raised for the first time in the Supreme Court.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 1070-1073, 1076-1078; Dec. Dig. 172(1).]

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Bureau County; Joe A. Davis, Judge.

The provisions of the policy material to this inquiry are the following:

"No obligation is assumed by the company prior to the date hereof nor unless on said date the insured is alive and in sound health. * This policy is void if the insured before its date

* has been attended by a physician for any serious disease or complaint or has had before said date any pulmonary disease or chronic bronchitis. If this policy is or shall feited to the company, except as provided under become void, all premiums paid shall be forPrivileges and Concessions to Policy Holders.' ** ** If the terms of this policy are not satisfactory, or if its conditions are not accepted for cancellation at the office of the superintendand agreed to, the policy may be surrendered ent of the district (his address appears on the premium receipt book covering this policy) within two weeks from the date hereof, and if so Butters & Clark, of Ottawa, for appellant. surrendered within said period the premiums Duncan & O'Conor, of Ottawa, for appellee. I paid hereon will be refunded."

Action by Minnie Seaback, for whom was substituted after her death Charles Sulski, against the Metropolitan Life Insurance Company. Judgment for plaintiff was reversed by the Appellate Court, and the plaintiff appeals. Judgment of the Appellate Court affirmed.

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

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