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ce | Appellant's defense, as disclosed by its an

mittance. Appellant, however, has not ob-ment of the premiums when due or within jected to this instruction on the ground that 30 days thereafter. it is not supported by the evidence, but, since the cause must be reversed for other rea- swer, was that the premium due January 1, sons, we deem it advisable to call attention 1922, was not paid when due or within the to the condition of the evidence as to the period of grace. Appellee in reply sought to provision of the notices referred to in the avoid the defense set up in the answer by instruction, so as to avoid error in case of alleging a custom of giving notice during the another trial.

life of the policy up to and including NoAppellant also insists that this instruction, vember, 1921, of the fact that a premium is in conflict with instructions 7, 8, and 16, was due the first of the next month, and given at its request. Instruction 7, after that it failed to give notice in December, calling attention to the provision in the pol- 1921, of the premium falling due January 1, icy to the effect that notice of each and

1922. There was no claim in the pleadings every payment on the policy was given and that appellant was estopped by reason, on accepted by the delivery and acceptance of any statement in the notice, that such notice the policy and that any further notice was should be returned with the remittance as waived, told the jury that, if it found that was referred to in the sixth instruction givappellant up to and including the month ofen at the request of appellee. The last inDecember, 1921, regularly delivered to ap

struction was not within the issues and pellee a notice of the due date of each pre

should not have been given. mium, prior to the due date, but failed to

We fail to see how the jury could have te give such notice of the premium due Janu- turned a verdict for appellee if it had folary 1, and February 1, 1922, such facts alone lowed said instructions 7, 8, and 16, unless would not excuse the insured from paying it was misled and confused by the giving the premiums within the 30-day period of said instruction 6, which was not within the grace, and that such failure would not estop issues, or by said instruction 5, the giving of appellant from insisting that the policy bad which was not justifiable under the evidence. lapsed.

Appellant also insists that the court erred By the eighth instruction the jury were

in refusing to give an instruction directing cold that appellant was not required to give the jury to return a verdict in its favor. notice of any premium to become due, and Since the cause has to be reversed for other that the failure to give notice of the premi- reasons, we do not deem it necessary to pass ums due January 1, and February 1, 1922, upon this contention, as the evidence on andid not excuse the insured from their fail- that even on the first trial.

other trial may be materially different from ure to pay such premiums when due, or within 30 days thereafter. The sixteenth in- to sustain the motion for a new trial, and

The judgment is reversed, with directions struction told the jury that the provision of for further proceedings consistent with this the policy referred to in the seventh instruc- opinion. tion did not require appellant to give notice, and did not excuse appellee from the pay. NICHOLS, J., concurs in results

801 (145 N,E.) (315 Ill. 104)

third class in the municipal court of Chicago, PEOPLE v. KOZLOWSKI. (No. 16238.) and is reviewed in the same manner as crim.

inal actions in other courts of record. This (Supreme Court of Illinois. Dec. 16, 1924.) court has held that the original bill of ex1. Criminal law am 1004_Prosecution of third ceptions cannot be made a part of the tran

class in municipal court of Chicago reviewed script of record without an agreement of the in same manner as criminal actions in oth parties (Field & Co. v. Nyman, 285 Ill. 306, er courts of record.

120 N. E. 756; Lake Shore & Michigan SouthA prosecution of third class in municipal ern Railway Co. v. Hessions, 150 Ill. 546, 37 court of Chicago is reviewable in same manner N. E. 905), and the Appellate Court properly as criminal prosecutions in other courts of rec- struck the bill of exceptions in this case. ord,

[3, 4] Plaintiff in error contends that the 2. Criminal law Om 1088(14)-Original bills of finding of the court is against the weight of

exception filed as part of record without the evidence, and that there is a variance beagreement of parties held properly stricken. tween the charge and the proof. Since none

Original bills of exceptions filed as part of of the evidence is before us, these questions transcript of record without agreement of the are not presented by the record for review. parties in prosecution in municipal court of If the bill of exceptions had not been stricken Chicago held properly stricken.

from the record, plaintiff in error could not 3. Criminal law Om 1116, 1121(1)-Absence of have raised these questions, for the reason

evidence from record precludes consideration that the abstract fails to show that it conof question of sufficiency of evidence or of tains all the evidence that was heard on the alleged variance.

trial. People v. McCabe, 306 Ill. 183, 137 N. Failure properly to incorporate evidence E. 795; People v. Adams, 289 Ill. 339, 124 in record precludes consideration of question of N. E. 575; Rehfuss v. Hill, 243 III. 140, 90 sufficiency of evidence or of alleged variance.

N. E. 187. 4. Criminal law 1 121 (3)—Abstract, failing The judgment of the municipal court is af

to show it contains all evidence, precludes firmed. consideration of sufficiency of evidence.

Judgment affirmed. Where abstract fails to show it contains all the evidence, consideration of question as to sufficiency of evidence is precluded.

(315 Ill. 92) Error to Second Branch, Appellate Court,

CODDINGTON et al. v. BEVAN et al. First District, on Error to Municipal Court

(No. 16161.) rf Chicago; Howard W. Hayes, Judge.

(Supreme Court of Illinois. Dec. 16, 1924.) John Kozlowski was convicted in the municipal court of Chicago of the crime of obtain 1. Trusts @ww 43(1)-Trust in personalty may

be proved by trustee's admission or other ing property by false pretenses. The Appel

parol evidence. late Court for the First District affirmed the

Trust in personalty may be created and judgment, and he brings error. Asfirmed.

proved by trustee's admission or other parol Newberger & Greenbaum, for plaintiff in evidence. error.

2. Trusts 349 - Beneficiaries of trust in Edward J. Brundage, Atty. Gen., Robert E. personalty may follow fund into all forms of Crowe, State's Atty., of Chicago, and Edward investment. C. Fitch, Asst. Atty. Gen. (Edward E. Wilson Beneficiaries of trust in personalty may and Clyde C. Fisher, both of Chicago, of follow fund into all forms in which invested. counsel), for the People.

3. Trusts 44(1)-Trust in bonds for bene

fit of trustee's son held established. THOMPSON, J. Plaintiff in error

Evidence as to agreement between father convicted in the municipal court of Chicago and son, after mother's death, as to disposiof the crime of obtaining property by false tion of money received from her estate, held pretenses, and was sentenced to serve 30 to establish trust in father for son's benefit in days' imprisonment in the house of correction bonds, wherein half of principal sum was inand to pay a fine of $500. The trial was be- vested, so that title thereto did not pass to fore the court without a jury. There was no

father's nephews under bequest of "whatever

bonds I own at my death." motion to quash the information, no motion for a new trial, and none in arrest of judgment. On review the Appellate Court for the

Error to Appellate Court, Third District, First District struck the bill of exceptions on Appeal from Circuit Court, Logan Counfrom the record and affirmed the judgment.

ty; Frank Lindley, Judge. [1, 2] Plaintiff in error incorporated as a Suit by Ethel C. Coddington and others part of the transcript of the record the origi- against Frank S. Bevan, executor of the nal bill of exceptions without an agreement estate of Louis Coddington, deceased, and of the parties. This action is one of the others. Decree of dismissal affirmed by AB

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-51

was

pellate Court, and plaintiffs bring certiorari. { received by the bank, and $5,000 worth were Reversed and remanded, with directions. delivered to each the father and son. The

Harold F. Trapp, guardian ad litem, of bonds registered in the father's name were Lincoln, for plaintiffs in error.

found in his safety deposit box upon his

death. Scholes & Pratt, of Peoria, and Miller & Miller, of Lincoln, for defendants in error.

Later, in 1919, the father bought and had registered in his own name two Fourth Lib.

erty Loan bonds, in amount of $1,000 each. FARMER, J. This case comes to this Soon after his wife's death Louis Coddingcourt for review upon a writ of certiorari to ton made his home with his son, except durthe Appellate Court for the Third District ing the winter periods, which he spent in which court affirmed a decree of the circuit California. While he was in California durcourt of Logan county dismissing for want ing the winter of 1919–20 he received. word of equity the bill of complaint filed by plain of the son's illness, and while en route to tiffs in error. The material facts developed Cleve's home the son died, about February upon the hearing were not contradicted and 13, 1920. He left surviving him his wife, a were as follows:

small son and daughter, and a third child Charlotte A. Coddington, who was most was born after Cleve's demise, all of whom generally called Lottie Coddington, was the are plaintiffs in error here. His wife was wife of Louis Coddington. Cleveland (or appointed administratrix of Cleve's estate, Cleve) Coddington was their only child. and in her inventory of assets the $5,000 About 1915 Mrs. Coddington received from worth of bonds registered in the name of her father's estate the sum of $10,000 which Louis Coddington were not included. Cleve's amount she deposited March 2, 1917, in the father made a will November 2, 1920, which People's Bank of Atlanta, Ill., taking there was about nine months after his son's death, for a demand certificate, payable to herself, wherein it was provided, “Whatever United with interest thereon at 3 per cent., held States Liberty bonds I own at my death I for six months or one year. At some time bequeath to my nephews" (naming them), after receiving her share of her father's es- and on October 3, 1921, he died. His will tate, no definite date having been established, was probated, and the $5,000 worth of Third plaintiffs in error contend Mrs. Coddington Liberty Loan bonds were inventoried as a called her husband and their only child to part of the assets of his estate. her room for the purpose of discussing with It is admitted by the parties that at the them the disposition of her money. She re- death of Lottic Coddington intestate, in the quested that after her death her husband latter part of March, 1918, she owned the have the use of her money during his life, demand certificate for $10,000, with accrued and after his death it was to be the proper- interest thereon. She also owned the addi. ty of her son. This arrangement was con- tional $400 certificate and whatever accrued sented to by the father and son. Mrs. Cod- interest may have been due. The $10,000 dington died intestate on March 21, 1918, certificate, with its accrued interest, and the leaving surviving her husband and son. The additional certificate of $400, made an apson was of age, and no administration was proximate money estate of $10,800 on May had upon her estate.

9, 1918, which was the date Louis CoddingOn May 9, 1918, not quite two months aft-ton and Cleve Coddington met at the People's er the mother's death, the father and son Bank and arranged the division of money went to the People's Bank of Atlanta, and from Mrs. Coddington's estate. In the abpresented the mother's demand certificate for sence of any agreement between the father $10,000, upon which each of them indorsed and son, under the statute, the latter would his name. Through the same bank the fa- have been entitled to two-thirds of his mothther and son each made separate application er's money, or approximately $7,200, and and subscribed for $5,000 worth of United his er entitled to one-third, or about States Third Liberty Loan bonds, in denom- $3,600. What was done at the bank resultination of $1,000 each, to be registered in ed in the father obtaining for his own proptheir respective individual names. The prin- erty the accrued interest on the mother's cipal of the demand certificate for $10,000 $10,000 certificate and the principal of the was used in the purchase of these bonds. second $400 certificate. Hence it will be seen The accrued interest on the demand certif- the father received as a result of the meeticate, in amount of $355.83, was paid by the ing with his son at the bank on that day the bank to Louis Coddington and placed to his value of approximately $5,800, or more than credit. The father and son also on the same half of Mrs. Coddington's money, while the date presented and indorsed a second cer son received $5,000 worth of Third Liberty tificate previously issued by the same bank | Loan bonds, which is less than one-half of to Mrs. Coddington in amount of $400, and his mother's estate. The banker who hanthis sum was also placed to the father's dled the transaction gave no testimony as to credit in the bank. Both amounts were aft- any conversation or agreement between the erward checked out and used by the father. father and son at the bank on the day the The registered bonds purchased were later | mother's money was received by them.

(145 N.E.) A. L. Dawes and wife were old-time inti-tratrix of his estate. She testified it was her mate friends of the Coddingtons. They understanding, when Cleve's mother died, spent their winters in California, as did al- bis father and Cleve took $5,000 each, and so Louis Coddington after his wife's death. at the time of his father's death Cleve was In the winter of 1919 Coddington was an to get the entire $10,000, or the bonds bought almost daily visitor of Dawes and wife at with the money ; that she had confidence in their apartment at Long Beach. Dawes tes- Cleve's father, and believed she and Cleve's tified that in December, 1919, at his apart- children would get the $5,000 at the death of ment, Coddington in a conversation said Louis Coddington, and for that reason she Mrs. Coddington (how long prior to her did not put it in the inventory. death is not stated, but it was after she [3] If the merits of this case depended had come into possession of her money) solely upon what transpired in Mrs. Coddingcalled Cleve into her room and asked him ton's bedroom, when she talked to her husif he had any objection to her turning the band and son about the disposition of her money over to his father for his life. Cleve money, it would not establish a trust in gave his consent and approval, and his moth-Louis Coddington for the benefit of his son. er said, “You know you will get it all any. In our view, a valid trust was created by how, for you are the only child.” In the the action and agreement of the father and same conversation Coddington said that, to son on May 9, 1918. The testimony of Mr. encourage Cleve, he had bought $5,000 of and Mrs. Dawes as to what Louis Coddingbonds in Cleve's name. Mrs. Dawes was ton said at their house in December, 1919, present and heard the conversation. She shows that Mrs. Coddington during her life. testified Coddington said his wife told him time told her husband and son she wanted, he might have the use of her money during if they consented, that her husband should his lifetime; that he bought bonds with it, have the use of her money during his life, and Cleve said he was satisfied for his fa- and at his death the son should receive it. ther to have $5,000, himself $5,000, and that if that was all that had occurred, it would at the death of Coddington all the money not create a trust, and the money of Mrs. was to go to Cleve; that it was to be Cleve's Coddington would have been distributed beat his father's death.

tween her husband and son under the statPlaintiffs in error contend that what Louis ute. Doubtless for the purpose of carrying Coddington and his son did at the bank May out the wishes of the deceased wife and 9, 1918, created a trust fund of the $5,000 mother, the father and son met at the bank Louis Coddington received, which he, as trus- and entered into the agreement which resulttee, was to hold and have the proceeds of ed in the $5,000 bonds being registered in during his life, and at his death the corpus Louis Coddington's name. The disposition belonged to the son. It is not claimed that made of the money by the father and son what Mrs. Coddington said to her husband was not exactly in accordance with what and son when she called them into her room, Mrs. Coddington told them she desired. If her and what they said, created a trust in the desire had been strictly carried out, Louis husband; but it is argued that that conver- Coddington would have received the use of sation showed what Mrs. Coddington want. the entire $10,800 on deposit in the bank. . ed to do with the $10,000, the consent of Instead of that, he received $800 as his abher husband and son to do as she desired, solute property and the use of $5,000 investand was the basis which caused the parties ed in government bonds. With his consent themselves to create a valid trust after her the son received $5,000 for his own absolute death. Defendants in error contend the property, which he invested in government evidence is not sufficient to establish the bonds. Dawes testified he did that to entrust.

courage his son. The son at the same time [1, 2] A trust in personal property may be relinquished to his father any present or created and proved by parol, and when such future interest in the $800. The only reatrust is established it is well settled the ben- sonable understanding of the statements eficiaries of such fund may follow the fund made by Louis Coddington to Mr. and Mrs. into all forms of investment which it nay Dawes is that he was to have the use of the assume. Maher v: Aldrich, 205 Ill. 242, 68 $5,000 invested in his name in government N. E. 810. A trust in personal property may bonds, and that he held the corpus of the be proven by the admission of the trustee or fund for the benefit of his son, who should other parol evidence. People v. Schaefer, come into possession and use of it at the 266 Ill. 334, 107 N. E. 617. The rule that a father's death. No law prevented the son trust in personal property may be created from consenting that his father might have by parol, and proved by parol testimony, is possession and use of his money during the not disputed by counsel for defendants in father's life. Both father and son knew

that was the wish of the wife and mother, The failure to inventory the $5,000 worth They agreed the father should take $800 abof bonds here involved, as part of the assets solutely and $5,000 in trust, and the father of the estate of Cleve Coddington, was ex- said his reason for taking only that amount plained by his wife, who was the adminis- | in trust was that he wanted to encourage

error.

the son by letting him have $5,000. The au to advising as to domestic affairs, held not prej. thorities above çited, and many others, per- udicial, in view of the very full, repeated, and mit a valid trust in personal property to be explicit instructions given for defense. created by parol, and to be proved by the admission of the trustee. The proof here

Error to Appellate Court, Third District, on meets all the requirements essential to sus

Appeal from Circuit Court, Edgar County; tain a trust in the $5,000 bonds in the name

Augustus A. Partlow, Judge. of Louis Coddington. The bonds which Action by Delia Roe against Sarah E. Roe passed to the nephews of Louis Coddington and husband. Judgment for plaintiff was af. under his will were bonds which he owned firmed by the Appellate Court, and defendabsolutely, and not bonds purchased with ants bring certiorari. Affirmed, money which he held in trust for his son. The circuit court erred in dismissing the

O'Hair & McClain, of Paris, and George B. bill, and the Appellate Court erred in affirm. Gillespie, of Springfield (George M. Gillespie ing the decree. The judgment of the Ap

and Thomas E. Gillespie, both of Springfield, pellate Court, and the decree of the circuit of counsel), for plaintiffs in error. court are reversed, and the cause remanded G. Allen, of Decatur, for defendant in error.

Stewart W. Kincaid, of Paris, and James to the circuit court, with directions to enter a decree in accordance with the views expressed in this opinion.

FARMER, J. This is an action by Delia Reversed and remanded, with directions. Roe against Sarah E. and William R. Roe,

for damages. The parties will be referred HEARD, J., took no part in this decision. to as plaintiff and defendants. Defendants

are mother and father of plaintiff's husband, Fred Roe, to whom she was married Novem

ber 1, 1919. The first two counts of the (315 III. 120)

amended declaration charge defendants maROE V. ROE et al. (No. 16101.)

liciously and wantonly assaulted and struck (Supreme Court of Illinois. Dec. 16, 1924.) plaintiff, and also threw her with great force

and violence against the wheel of a cultiva1. Appeal and error 1001 (1) Appellate

Court is authorized to reverse, with finding tor. The third and fourth counts charge deof facts, only where evidence is lacking.

fendants wrongfully and maliciously, by di. Reversal by Appellate Court of judgment vers means, alienated the affections of plainfor plaintiff, with a finding of facts in case tried tiff's husband and caused their separation. by jury, could only be justified where there was The case was tried by jury, and plaintiff had no legitimate evidence tending to prove the judgment for $4,500. Defendants appealed cause of action.

to the Appellate Court, and that court af2. Trial cam 143—Function of jury to determine fendants for certiorari was granted by this

firmed the judgment. The petition of deweight and credibility of conflicting evidence.

It is the function of the jury to determine court, and the record is brought here for rethe weight and credibility of conflicting evi

view. dence.

[1-3] It is argued by defendants that the

verdict and judgment were contrary to the 3. Appeal and error 1094 (2) Judgment based on conflicting evidence, and affirmed by Appellate Court erred in not reversing the

preponderance of the evidence, and that the Appellate Court, cannot be reversed by Supreme Court.

judgment with a finding of facts. Such acJudgment based on conflicting evidence, and tion of the Appellate Court could only be affirmed by Appellate Court, cannot be reversed justified where there was no legitimate eri. by Supreme Court, notwithstanding that lat- dence tending to prove the cause of action. ter court thinks judgment was not supported Mirich v. Forschner Contracting Co., 312 by a preponderance of the evidence.

Ill. 343, 143 N. E. 816. It is undeniable 4. Husband and wife w326-Parent may ad- that plaintiff's proof tended to support the

vise his child in good faith, without incurring cause of action. It is true the evidence was liability for alienation.

conflicting, but it was for the jury to deterA parent may, if he acts without malice mine its weight and credibility, and in such and unworthy motives, advise his child about a case, where the judgment is affirmed by the domestic affairs, without incurring liability for Appellate Court, this court cannot reverse alienation of affections.

the judgment of the Appellate Court, if we 5. Trial Cm 296(2)-In alienation action, omis.

should be of opinion it was not supported by sions in plaintiff's instructions held not preju

a preponderance of the evidence. Scovill dicial, in view of instructions given for de. Manf. Co. v. Cassidy, 275 Ill. 462, 114 N. E. fense.

181, Ann. Cas. 1918E, 602, and cases cited. In action against parents of plaintiff's hus. We shall not enter upon the useless task of band for alienation of affections, omission of setting out and analyzing the evidence of the plaintiff's instructions to state differences in respective parties, further than to say, if the rights of parents and strangers, with respect evidence on behalf of plaintiff is to be be

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

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