[6] It is sufficient to say, however, that was also seized of 160 acres of land in the deed conveyed no title, which was made Alabama, which is not involved in any of the to a blank grantee and in which the grantee's issues in these proceedings. The will, after name was afterwards inserted without con- providing for the payment of debts, is, in sent or authority of the grantor, and all oth- part, as follows: er grantees had notice thereof. Donason v. Barbero, 230 Ill. 138, 82 N. E. 620.

The judgment of the circuit court is reversed and the cause remanded, with directions to overrule the demurrer to the bill. Reversed and remanded, with directions.

(314 Ill. 35)

ABENS et al. v. KENNEDY et al. (No. 16164.)

(Supreme Court of Illinois. Oct. 28, 1924.) 1. Wills 725-Payment of remaindermen's shares by coremainderman accepting option to take entire homestead held not required until three years from death or remarriage of life tenant.

Under will bequeathing income of realty to wife for life or widowhood and providing for equal division of estate after her death among children, one of whom might take as his share the homestead and pay others half of their proportions of value thereof "in three years from the beginning of the probation of my estate and balance in five years therefrom,' remainder in equal shares vested in fee at time of testator's death, so that such payments were not required until three and five years from widow's death or remarriage.

2. Wills 463 Inconsistent words disregarded to carry out testator's intent.

Inconsistent words in will may be disregarded, if remainder is complete and will operate to carry out testator's intent. Dunn, J., dissenting.

"I give and bequeath to my wife, Maria Abens, all of my personal property and the use and net income of my real estate, whatever the same may consist of, during the time of her natural life, provided she shall remain my widdow, to her own use and control of all the property I may be possessed of at the time of my decease, subject, however, to certain provisions, as will hereinafter appear. After the death of my said wife, Maria Abens, my entire estate is to be divided equally between my three children, Katherine Abens Kennedy, John Abens and Theodore Abens, in manner followlowing: My said son John Abens to have a preference as follows, that is to say, he, my said son John, may take as his share the entire farm which is now my homestead and being the land described in warranty deed from Abby A Winans and husband to me, bearing date the 6th day of December, 1897, and recorded in the recorder's office of Kendall county on the same date, in book volume 46 of warranty deeds, on page 395, supposed to contain about 96 acres of land. It is my will and desire that the same be valued at one hundred and fifteen ($115) dollars per acre, or a total value of eleven thousand and forty ($11,040) dollars, and that whatever proportion of this amount shall become payable to the other heirs, Katherine Abens Kennedy and Theodore Abens, to bring them up to an equal share in my estate, he, my son John, to pay such proportion to my daughter, Katherine, and my son Theodore, the probation of my estate and the balance in one-half in three years from the beginning of five years from the same time, with usual lawful interest; this, however, being left optional with my said son John either to accept the farm under the stated conditions or otherwise

Appeal from Circuit Court, Kendall Coun- have an equal division between himself, my ty; Mazzini Slusser, Judge.

Suit by Theodore W. Abens and others against Katherine Abens Kennedy and others to construe will of Michael Abens, deceased. From decree rendered, named complainant and another appeal. Affirmed.

Peffers & Wing, of Aurora, for appellants. John M. Raymond, of Aurora, for appellees.

daughter, Katherine, and son Theodore of my entire estate, share and share alike, including all other lands I may be possessed of at the time of my decease."

The will also further provided that in case Maria Abens should remarry, then in that event she should account for all personal property that came into her possession, and that the entire estate should be divided among the legal heirs of the deceased according to the laws of this state, the same as if the will had not been made.

STONE, J. This is a bill to construe the last will and testament of Michael Abens, deceased. He died January 26, 1904. His The decree of the chancellor in construing will was admitted to probate in February, this will found that Maria Abens, the widow 1904. The administration of the estate was of Michael Abens, took a life estate in the closed and the executors discharged on May land in question, subject to being terminated 24, 1905. Abens left him surviving Maria upon her remarriage, and that Katherine Abens, his widow (otherwise known as Mary Abens Kennedy, John Abens, and Theodore Abens), and Theodore Abens, appellant, Kath- Abens each took an undivided one-third of erine Abens Kennedy and John Abens, appel- the land subject to the life estate of Maria lees, as his children and only heirs at law. At Abens, subject, also, to the option of John the time of his death he was seized in fee Abens to purchase the land at a valuation simple of the land in question, which he oc- of $115 per acre, or a total value of $11,040, cupied with his wife as his homestead. He and that the term of said option was to be

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

(145 N.E.)

gin at the time of the death of Maria Abens, [sion. It is apparent that the testator desirand that John Abens should pay to Katherine, ed to treat his children alike. To hold that his sister, and Theodore, his brother, each John was by the will required to pay for a one-third portion of said $11,040, as fol- two-thirds of this land before the death of lows: One-half three years from the date the life tenant, though enjoyment thereof of the death of Maria Abens and the balance was postponed until that event, is inconsistin five years from said date. From this ent with such desire. It seems clear from decree the complainant and the trustee for the will itself that the exercise of the opthe creditors of the complainant prayed an tion to purchase by John must necessarily appeal to this court. bear some relation to the time fixed by the testator for the division and distribution of his estate or the time when such estate shall vest in possession.

It is conceded by the appellants that Maria Abens has a life estate in the lands in question, subject to be terminated by her remarriage, but it is contended that the option to purchase by John Abens, under the terms of the will, is not valid unless John exerçises his option to purchase within three years after the beginning of the probate of the estate, and that such term has expired; and that if this be not so, the provision or option to purchase violates the rule against perpetuities on account of the uncertainty of the event upon which the option depends.

[1] It is apparent from the will itself that the time of payment under the option to John Abens is inconsistent with the other provisions of the will. In order to make the payment within three years from the beginning of the probate of the estate it would have been necessary, under the facts in the record, for John to have exercised his option prior to the death or remarriage of Maria Abens, widow of the deceased, and therefore prior to the time when the gift over takes effect in possession. Taking the will as a whole, it seems clear that the testator intended that Maria Abens should have a life estate in the lands in question, subject to being divested upon her remarriage. It is also clear that the testator intended to give the remainder, share and share alike, to the above-named three children, and that this remainder vested in fee at the time of the death of the testator, with possession only postponed until the death of the widow or her remarriage, with an option to John to take the entire farm. at the fixed value of

[2] It is a rule that inconsistent words in a will may be disregarded if the will as it remains is complete and will operate to carry out the intent of the testator. Gano v. Gano, 239 Ill. 539, 88 N. E. 146, 22 L. R. A. (N. S.) 450; Blinn v. Gillett, 208 Ill. 473, 70 N. E. 704, 100 Am. St. Rep. 234; Huffman v. Young, 170 Ill. 290, 49 N. E. 570. Applying this rule of construction here, it is seen that the intent of the testator is clearly expressed in the following language: "He, my son John, to pay such proportion to my daughter, Katherine, and my son Theodore, one-half in three years and the balance in five years, with usual lawful interest," thus showing that the time from which the above dates are to be computed is the time of the death or remarriage of Maria Abens. The chancellor was correct in so holding. The decree will be affirmed. Decree affirmed.

DUNN, J., dissenting.

(313 Ill. 495)

WORDEN et al v. RAYBURN et al. (No. 16003.)

(Supreme Court of Illinois. Oct. 28, 1924.) 1. Judicial sales 31(3)-Sale not complete until confirmed by court ordering it.

Judicial sale is not complete. until confirmed by court which ordered it.

2. Judicial sales 15-No influence likely to prevent competition at sale tolerated.

Law tolerates no influence likely to prevent competition in judicial sales. 3. Judicial sales 40-May be set aside for inadequacy of price, where conditions tended to reduce or destroy competition.

$11,040, and that he should pay to his sister, Katherine, and his brother, Theodore, their proportion of said amount in order that all three might share equally in the estate. It is likewise clear from the language of the will that no division of the estate is to take place until after the death of the widow or her remarriage. It would do violence to the intention of the testator thus expressed in his Mere inadequacy of price may not be suffiwill to say that all of these provisions and cient to justify setting aside judicial sale, but, conditions should go into effect upon the where conditions under which it was held tend death or remarriage of the widow and at to reduce or destroy competition, as by generthe same time hold that the time of pay-al circulation of reports adverse to title, court ment of the pro rata shares to Katherine may do so. Kennedy and Theodore Abens should be made 4. Judicial sales one-half in three years and the other onehalf in five years from the probate of the estate and before the estate vested in posses-ing master's acts in making judicial sales.

31(1)-Chancellor

has broad discretion in reviewing master's acts. Chancellor has broad discretion in review

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

5. Appeal and error 983 (3)-Chancellor's | ty, consisting of 834 acres, were sold by the discretion in reviewing master's acts not in- master at public sale to Robert L. Watson terfered with on review, unless abused.

Chancellor's discretion in reviewing master's acts in making judicial sale will not be interfered with by court of review, unless abused

Error to Circuit Court, Warren County; Willis F. Graham, Judge.

Suit by Margaret N. Worden and others, against John R. Rayburn, and others, wherein Robert L. Watson and another intervened. Decree for defendants, and interveners bring error. Affirmed.

Lauder & Lauder, of Monmouth, and Watson, Duvall & Kadyk, of Aledo, for plaintiffs in error.

and William Hayman for $67,600, subject to certain taxes and drainage assessments, aggregating approximately $13,500. The master filed his report of sale on January 10,

1924.

No action having been taken thereon, Watson and Hayman, the purchasers, on January 21, 1924, filed their petition, asking to be made parties defendant to the suit. The prayer of the petition was granted, and on the following day the purchasers filed another petition, stating that no objections had been made to the report of sale, and asking that a rule be entered fixing a time within which all persons interested should show cause, if any, why the sale should not be con: Hanley & Cox, of Monmouth, for defend-firmed. Such a rule was entered, objections ants in error, John R. and Frank S. Ray- were filed, and it was stipulated that affidaburn. vits introduced by the objectors and the petitioners should be considered by the court in determining whether or not the sale should be confirmed. The court sustained the objections, set aside the sale, and ordered a resale. The purchasers, Robert L. Watson and William Hayman, have sued out this writ of error to review the record.

Grier, Safford & Soule, L. E. Murphy, John J. Kritzer, and L. H. Hanna, all of Monmouth, for other defendants in error.

The question for decision is whether the chancellor abused his discretion in setting aside the sale of the land. It is unnecessary to set forth in detail the statements contained in the affidavits offered by the respective parties. Those in behalf of the objectors are to the effect that on the day of sale the roads were in poor condition, and in consequence the sale was poorly attended; that efforts were made to prevent bidding; that reports were circulated that the title to the lands was defective; and that the lands were sold for an inadequate price. Affidavits introduced by the plaintiffs in error show that the roads were in good condition for travel; that the sale was well attended, that no efforts were made to discourage a sale of the lands for their full value, but that the objectors were active at the sale to obtain from persons present affidavits supporting objectors' opinions of the value of the lands; that they were sold subject to taxes and drainage assessments, and that, in view of these liens and charges, the price for which the lands were sold was not inadequate. The valuations placed upon the lands range from a minimum of $126,000 to a maximum of $168,000 for the objectors, as opposed to a minimum of $65,000 and a maximum of $72,000 for the plaintiffs in error.

DE YOUNG, J. On June 8, 1922, George W. Rayburn, Frank S. Rayburn, and John R. Rayburn were the owners in fee simple, as tenants in common, of approximately 2,800 acres of land in Warren, Mercer, and Rock Island counties. They were copartners by the style of Rayburn Bros., and for some years had been engaged in farming and stock-raising, in the prosecution of which they had become indebted in large sums of money. On June 8, 1922, George W Rayburn died testate, and on the same day Frank S. Rayburn, and John R. Rayburn, with his wife, conveyed, for the benefit of their creditors, to Davis A. Woodward, George E. Ockert, and Charles E. Torrence, as trustees, the copartnership property and assets and their undivided interests in the lands. The last will of George W. Rayburn was admitted to record by the county court of Warren county, but Minnie C. Rayburn, the testator's widow, renounced the will and elected to take under the statute. On March 30, 1923, Margaret N. Worden and others, as creditors of George W., John R., and Frank S. Rayburn, and Rayburn Bros., filed their bill in the circuit court of Warren county, praying the court to take over the administration of the estate of George W. Rayburn, deceased, and the trust under the conveyance to Woodward, Ockert, and Torrence, and to combine and administer them according to the rules and practice in chancery. The relief sought was granted, and Woodward, Ockert, and William H. Pankey and J. Scott Blackwell, Torrence, the former trustees, were appoint- who attended the sale, stated in their affidaed receivers of all the property. A later decree vits that they were influenced adversely by ordered a sale of the lands disincumbered of reports concerning the title to the lands. One all mortgage indebtedness, rights of dower, did not bid at all, and the other, owing to and estates of homestead, and the master in those reports, refrained from increasing his chancery was directed to execute the decree. bid. J. O. Laugman offered, upon a resale, On January 2, 1924, the lands in Mercer coun- to bid at least $10,000 more than the price For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

obtained, and tendered his bond, with sureties, as an earnest of performance on his part.

[1] The decree which ordered the sale expressly provided for a report by the master, "and upon confirmation the master shall execute deeds to the purchasers." Confirmation of the sale was made a condition precedent to the execution and delivery of the master's deeds. The acceptance of the bid and the proceedings which followed were not final or binding until the confirmation of the sale. A judicial sale is not complete until it has been confirmed by the court which ordered it. 16 R. C. L. 81; Redmond v. Cass, 226 Ill. 120, 80 N. E. 708; Hart v. Burch, 130 Ill. 426, 22 N. E. 831, 6 L. R. A. 371.

and who sues in equity to reach property which cannot be taken on execution.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Creditors' Bill]

2. Creditors' suit 19-Chancery will not aid judgment creditor, where there is no element of fraud or trust.

Chancery will not, in absence of statute, aid judgment creditor to enforce judgment against property incapable of being reached by any common-law process, where there is no element of fraud or trust as ground for equitable relief.

3. Corporations

170-Corporation not for pecuniary profit may adopt rules conclusively prescribing mode in which membership can be maintained.

Corporation not for pecuniary profit has right to adopt rules prescribing only mode in which membership can be maintained, and no not been admitted in mode thus prescribed. one can rightfully claim membership who has

4. Corporations 393-Equity cannot compel nonpecuniary corporation to issue certificate of membership to applicant not complying with rules.

Corporation not for pecuniary profit cannot be compelled, by equity court, to issue certificate of membership to applicant who has not complied with mode for obtaining membership prescribed by rules.

[2-5] While at the time of the sale there may not have been any general circulation of reports adverse to the title, yet we believe reports were circulated which prevented that freedom of bidding which would insure the sale of the lands at a figure approximating their value. The law does not tolerate any influence likely to prevent competition in judicial sales. 35 Corpus Juris, 40. Mere inadequacy of price may not alone be sufficient to justify the court in setting aside a judicial sale, but, where the conditions under which the sale was held tend to reduce or destroy competition, it is proper for the court to do so. Bondurant v. Bondurant, 251 Ill. 324, 96 N. E. 306, Ann. Cas. 1914B, 18; Smith v. Huntoon, 134 Ill. 24, 24 N. E. 971, 23 Am. St. Rep. 646; 16 R. C. L. 98; 35 Corpus Juris, 49, 103; Rorer on Judicial Sales (2d Ed.) § 1095; Oswald v. Johnson, 140 Ga. 62, 78 S. E. 333, Ann. Cas. 1914D, 1, note. The reports of defects in the title and the price for which the lands were sold bring the instant case within the rule stated and justified the court 6. Execution 30-Membership in exchange in refusing confirmation of the sale. chancellor has a broad discretion in review

The

ing the acts of the master in making a judicial sale. Roberts v. Goodin, 288 Ill. 561, 123 N. E. 559; Slack v. Cooper, 219 III. 138, 76 N. E. 84; Hart v. Burch, supra. That discretion, unless abused, will not be interfered with by a court of review. Slack v. Cooper,

supra.

The decree of the circuit court will be affirmed.

Decree affirmed.

(313 111. 262)

W. G. PRESS & CO. v. FAHY et al. (No. 15986.)

5. Exchanges 7-Membership not property, in broad sense of term.

Membership in exchange, for some purposes and in some aspects, is regarded as property, but, though something more than mere personal license or privilege, it is not property, in concrete or particular sense of that term.

not subject to levy under execution. Membership in exchange is not subject to levy, and cannot be sold on execution.

7. Exchanges 7-Membership in Live Stock Exchange can be pledged, and assignment need not be recorded.

Membership in Live Stock Exchange can be pledged, and when pledge is for valuable consideration pledgee is given lien, and assignment of membership need not be recorded.

8. Corporations 174-At common law, certificates of membership could not be assigned or sold to satisfy debts of owner.

At common law, certificates of membership in a corporation were merely choses in action, and could neither be assigned nor sold to sat isfy debts of owner.

(Supreme Court of Illinois. Oct. 28, 1924.) 9. Execution 20-Whether property shall be

I. Creditors' suit -"Creditors' bill" defined.

liable to payment of debts by legal proceedings purely matter of statutory regulation.

Whether property shall be liable to be subCreditors' bill is bill brought by creditor jected to payment of debts by legal proceedwho has obtained judgment at law, and has in ings, and, if so, in what manner, is purely matvain attempted at law to obtain satisfaction,ter of statutory regulation.

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

10. Execution 30-Statute held not to permit sale of certificate of membership in corporation as chattel.

Certificate of membership in corporation is neither lands, tenements, real estate, goods, nor chattels, under Smith-Hurd Rev. St. 1923, c. 77, § 10, and cannot be sold, upon execution under such statute, but section 55 must be relied on.

11. Execution 30-Certificate of member

ship in corporation not for pecuniary profit cannot be sold under execution, under stat

ute.

Certificate of membership in corporation not for pecuniary profit, such as Live Stock Exchange, cannot be sold under execution to satisfy debts of member, under Smith-Hurd Rev. St. 1923, c. 77, § 55.

12. Creditors' suit 8(1) Certificate of membership in corporation not for pecuniary profit cannot be subjected to payment of judgment.

Certificate of membership in a corporation not for pecuniary profit, such as Traders' Live Stock Exchange, cannot by creditors' bill be subjected to payment of judgment against member.

Appeal from Third Division, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

Creditors' bill by W. G. Press & Co. against Thomas F. Fahy and others. From a decree of the Appellate Court for the First District, affirming a decree for defendants (231 Ill. App. 193), plaintiff appeals. Affirmed.

John W. Ellis and John A. Brown, both of Chicago (William F. Struckmann, of Chicago, of counsel), for appellant.

Sims, Welch, Godman & Stransky, of Chicago (Franklin J. Stransky, of Savannah, of counsel), for appellees.

its object being to promote and protect all interests connected with the buying and selling of live stock at the Union Stockyards, in Chicago, to cultivate courteous and manly conduct in the transaction of such business, and give dignity and responsibility to yard traders. Its rules provide that any person of good character and reputation engaged in the live stock business at the Union Stock

yards may become a member of the exchange, on application in writing, addressed to the board of directors of the exchange, and, if the applicant shall receive two-thirds of the votes cast by the directors, he shall become a member of the exchange, upon signing an agreement to abide by the bylaws and all amendments regularly made thereto, and paying the membership fee of $500, upon payment of which a certificate of membership shall be issued, which may be transferred to any person eligible to membership in the exchange upon the holder of the certificate indorsing the certificate, as provided in the form on the back thereof. Any person making written application for membership by transfer to the board of directors is required to accompany the application with a $50 transfer fee. If the application is approved by the board, he will then be allowed 10 days in which to procure membership. If he does not present membership to the secretary for transfer at the expiration of 10 days, he forfeits the transfer fee to the exchange. If the board rejects the application, the transfer fee must be returned to the applicant. In May, 1907, the Traders' Live Stock Exchange issued a certificate of membership to Thomas F. Fahy, which certificate Fahy, on January 17, 1918, indorsed to appellees, and delivered it to them as security for an indebtedness in excess of the then and now value of the Fahy membership in the exchange. This indebted

pellant recovered a judgment against Fahy, which is the basis for the creditors' bill. December 9, 1920, execution was issued, which, on December 16, 1920, was returned unsatisfied, whereupon appellant brought this suit.

HEARD, J. Appellant filed a creditors' bill in the circuit court of Cook county, pray-ness has not been paid. June 26, 1920, aping that a membership which Thomas F. Fahy had in the Traders' Live Stock Exchange be applied in payment of a judgment theretofore obtained by appellant against Fahy. Everett C. Brown and Seth B. St. John, copartners as Brown & St. John (hereinafter called appellees), filed an intervening [1, 2] A creditors' bill may be defined as a petition in said cause, claiming that the cer- bill brought by a creditor who has obtained tificate of membership had been assigned to a judgment at law, and has in vain attemptthem for a valuable consideration. Upon a ed at law to obtain satisfaction, and who hearing, the court entered a decree dismiss-sues in equity for the purpose of reaching ing the bill for want of equity, from which property which cannot be taken on execution decree appellant appealed to the Appellate at law. The nature, purpose, and scope of Court for the First District, where the decree of the circuit court was affirmed. certificate of importance was granted, and an appeal allowed by the Appellate Court to this court.

A

The Traders' Live Stock Exchange is a corporation not for pecuniary profit, incorporated under the laws of the state of Illinois;

such a bill are to bring into exercise the equitable powers of the court to enforce the satisfaction of a judgment by means of an equitable execution, because execution at law cannot be had The rule is that chancery will not, in the absence of statute, aid a judgment creditor to enforce his judgment against property incapable of being reached

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