ment of the premiums when due or within 30 days thereafter. 1922. mittance. Appellant, however, has not objected to this instruction on the ground that it is not supported by the evidence, but, since Appellant's defense, as disclosed by its anthe 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 every payment on the policy was given and accepted by the delivery and acceptance of the policy and that any further notice was waived, told the jury that, if it found that appellant up to and including the month of December, 1921, regularly delivered to appellee a notice of the due date of each premium, prior to the due date, but failed to give such notice of the premium due January 1, and February 1, 1922, such facts alone would not excuse the insured from paying the premiums within the 30-day period of grace, and that such failure would not estop appellant from insisting that the policy had lapsed. By the eighth instruction the jury were told that appellant was not required to give notice of any premium to become due, and that the failure to give notice of the premiums due January 1, and February 1, 1922, did not excuse the insured from their failure to pay such premiums when due, or within 30 days thereafter. The sixteenth instruction told the jury that the provision of the policy referred to in the seventh instruction did not require appellant to give notice, and did not excuse appellee from the pay There was no claim in the pleadings that appellant was estopped by reason, on any statement in the notice, that such notice should be returned with the remittance as was referred to in the sixth instruction given at the request of appellee. The last instruction was not within the issues and should not have been given. We fail to see how the jury could have returned a verdict for appellee if it had followed said instructions 7, 8, and 16, unless it was misled and confused by the giving said instruction 6, which was not within the issues, or by said instruction 5, the giving of which was not justifiable under the evidence. Appellant also insists that the court erred in refusing to give an instruction directing the jury to return a verdict in its favor. Since the cause has to be reversed for other reasons, we do not deem it necessary to pass upon this contention, as the evidence on another trial may be materially different from that even on the first trial. The judgment is reversed, with directions to sustain the motion for a new trial, and for further proceedings consistent with this opinion. NICHOLS, J., concurs in results. (315 III. 104) PEOPLE v. KOZLOWSKI. (145 N,E.) (No. 16238.) (Supreme Court of Illinois. Dec. 16, 1924.) 1. Criminal law 1004-Prosecution of third class in municipal court of Chicago reviewed in same manner as criminal actions in other courts of record. A prosecution of third class in municipal court of Chicago is reviewable in same manner as criminal prosecutions in other courts of record. 2. Criminal law 1088 (14)—Original bills of exception filed as part of record without agreement of parties held properly stricken. Original bills of exceptions filed as part of transcript of record without agreement of the parties in prosecution in municipal court of Chicago held properly stricken. 3. Criminal law 1116, 1121(1)-Absence of evidence from record precludes consideration of question of sufficiency of evidence or of alleged variance. Failure properly to incorporate evidence in record precludes consideration of question of sufficiency of evidence or of alleged variance. 4. Criminal law 1121(3)-Abstract, failing to show it contains all evidence, precludes consideration of sufficiency of evidence. Where abstract fails to show it contains all the evidence, consideration of question as to sufficiency of evidence is precluded. Error to Second Branch, Appellate Court, First District, on Error to Municipal Court of Chicago; Howard W. Hayes, Judge. John Kozlowski was convicted in the municipal court of Chicago of the crime of obtaining property by false pretenses. The Appellate Court for the First District affirmed the judgment, and he brings error. Affirmed. Newberger & Greenbaum, for plaintiff in error. Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Edward C. Fitch, Asst. Atty. Gen. (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People. THOMPSON, J. Plaintiff in error was convicted in the municipal court of Chicago of the crime of obtaining property by false pretenses, and was sentenced to serve 30 days' imprisonment in the house of correction and to pay a fine of $500. The trial was before the court without a jury. There was no motion to quash the information, no motion for a new trial, and none in arrest of judgment. On review the Appellate Court for the First District struck the bill of exceptions from the record and affirmed the judgment. third class in the municipal court of Chicago, and is reviewed in the same manner as criminal actions in other courts of record. This court has held that the original bill of exceptions cannot be made a part of the transcript of record without an agreement of the parties (Field & Co. v. Nyman, 285 Ill. 306, 120 N. E. 756; Lake Shore & Michigan Southern Railway Co. v. Hessions, 150 Ill. 546, 37 N. E. 905), and the Appellate Court properly struck the bill of exceptions in this case. [3, 4] Plaintiff in error contends that the finding of the court is against the weight of the evidence, and that there is a variance between the charge and the proof. Since none of the evidence is before us, these questions are not presented by the record for review. If the bill of exceptions had not been stricken from the record, plaintiff in error could not have raised these questions, for the reason that the abstract fails to show that it con tains all the evidence that was heard on the trial. People v. McCabe, 306 Ill. 183, 137 N. E. 795; People v. Adams, 289 Ill. 339, 124 N. E. 575; Rehfuss v. Hill, 243 Ill. 140, 90 N. E. 187. The judgment of the municipal court is affirmed. Judgment affirmed. (315 Ill. 92) CODDINGTON et al. v. BEVAN et al. (Supreme Court of Illinois. Dec. 16, 1924.) 1. Trusts 43(1)-Trust In personalty may be proved by trustee's admission or other parol evidence. Trust in personalty may be created and proved by trustee's admission or other parol evidence. 2. Trusts 349- Beneficiaries of trust in personalty may follow fund into all forms of investment. Beneficiaries of trust in personalty may follow fund into all forms in which invested. 3. Trusts 44 (1)—Trust in bonds for benefit of trustee's son held established. Evidence as to agreement between father and son, after mother's death, as to disposition of money received from her estate, held to establish trust in father for son's benefit in bonds, wherein half of principal sum was invested, so that title thereto did not pass to father's nephews under bequest of "whatever ** bonds I own at my death." Error to Appellate Court, Third District, on Appeal from Circuit Court, Logan County; Frank Lindley, Judge. [1, 2] Plaintiff in error incorporated as a part of the transcript of the record the original bill of exceptions without an agreement of the parties. This action is one of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-51 Suit by Ethel C. Coddington and others against Frank S. Bevan, executor of the estate of Louis Coddington, deceased, and others. Decree of dismissal affirmed by Ap pellate Court, and plaintiffs bring certiorari. Reversed and remanded, with directions. Harold F. Trapp, guardian ad litem, of Lincoln, for plaintiffs in error. Scholes & Pratt, of Peoria, and Miller & Miller, of Lincoln, for defendants in error. received by the bank, and $5,000 worth were delivered to each the father and son. The bonds registered in the father's name were found in his safety deposit box upon his death. Later, in 1919, the father bought and had registered in his own name two Fourth Liberty 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 wanting the winter of 1919-20 he received, word of equity the bill of complaint filed by plaintiffs in error. The material facts developed upon the hearing were not contradicted and were as follows: Charlotte A. Coddington, who was most generally called Lottie Coddington, was the wife of Louis Coddington. Cleveland (or Cleve) Coddington was their only child. About 1915 Mrs. Coddington received from her father's estate the sum of $10,000 which amount she deposited March 2, 1917, in the People's Bank of Atlanta, Ill., taking therefor a demand certificate, payable to herself, with interest thereon at 3 per cent., if held for six months or one year. At some time after receiving her share of her father's estate, no definite date having been established, plaintiffs in error contend Mrs. Coddington called her husband and their only child to her room for the purpose of discussing with them the disposition of her money. She requested that after her death her husband have the use of her money during his life, and after his death it was to be the property of her son. This arrangement was consented to by the father and son. Mrs. Coddington died intestate on March 21, 1918, leaving surviving her husband and son. The son was of age, and no administration was had upon her estate. On May 9, 1918, not quite two months after the mother's death, the father and son went to the People's Bank of Atlanta, and presented the mother's demand certificate for $10,000, upon which each of them indorsed his name. Through the same bank the father and son each made separate application and subscribed for $5,000 worth of United States Third Liberty Loan bonds, in denomination of $1,000 each, to be registered in their respective individual names. The principal of the demand certificate for $10,000 was used in the purchase of these bonds. The accrued interest on the demand certificate, in amount of $355.83, was paid by the bank to Louis Coddington and placed to his credit. The father and son also on the same date presented and indorsed a second certificate previously issued by the same bank to Mrs. Coddington in amount of $400, and this sum was also placed to the father's credit in the bank. Both amounts were afterward checked out and used by the father. The registered bonds purchased were later of the son's illness, and while en route to Cleve's home the son died, about February 13, 1920. He left surviving him his wife, a small son and daughter, and a third child was born after Cleve's demise, all of whom are plaintiffs in error here. His wife was appointed administratrix of Cleve's estate, and in her inventory of assets the $5,000 worth of bonds registered in the name of Louis Coddington were not included. Cleve's father made a will November 2, 1920, which was about nine months after his son's death, wherein it was provided, "Whatever United States Liberty bonds I own at my death I bequeath to my nephews" (naming them), and on October 3, 1921, he died. His will was probated, and the $5,000 worth of Third Liberty Loan bonds were inventoried as a part of the assets of his estate. It is admitted by the parties that at the death of Lottie Coddington intestate, in the latter part of March, 1918, she owned the demand certificate for $10,000, with accrued interest thereon. She also owned the additional $400 certificate and whatever accrued interest may have been due. The $10,000 certificate, with its accrued interest, and the additional certificate of $400, made an approximate money estate of $10,800 on May 9, 1918, which was the date Louis Coddington and Cleve Coddington met at the People's Bank and arranged the division of money from Mrs. Coddington's estate. In the absence of any agreement between the father and son, under the statute, the latter would have been entitled to two-thirds of his mother's money, or approximately $7,200, and his father entitled to one-third, or about $3,600. What was done at the bank resulted in the father obtaining for his own property the accrued interest on the mother's $10,000 certificate and the principal of the second $400 certificate. Hence it will be seen the father received as a result of the meeting with his son at the bank on that day the value of approximately $5,800, or more than half of Mrs. Coddington's money, while the son received $5,000 worth of Third Liberty Loan bonds, which is less than one-half of his mother's estate. The banker who handled the transaction gave no testimony as to any conversation or agreement between the father and son at the bank on the day the 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- his 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 same conversation Coddington said that, to encourage Cleve, he had bought $5,000 of bonds in Cleve's name. Mrs. Dawes was present and heard the conversation. testified Coddington said his wife told him he might have the use of her money during his lifetime; that he bought bonds with it, and Cleve said he was satisfied for his father to have $5,000, himself $5,000, and that at the death of Coddington all the money was to go to Cleve; that it was to be Cleve's at his father's death. She Plaintiffs in error contend that what Louis Coddington and his son did at the bank May 9, 1918, created a trust fund of the $5,000 Louis Coddington received, which he, as trustee, was to hold and have the proceeds of during his life, and at his death the corpus belonged to the son. It is not claimed that what Mrs. Coddington said to her husband and son when she called them into her room, and what they said, created a trust in the husband; but it is argued that that conversation showed what Mrs. Coddington wanted to do with the $10,000, the consent of her husband and son to do as she desired, and was the basis which caused the parties themselves to create a valid trust after her death. Defendants in error contend the evidence is not sufficient to establish the trust. [1, 2] A trust in personal property may be created and proved by parol, and when such trust is established it is well settled the beneficiaries of such fund may follow the fund into all forms of investment which it may assume. Maher v: Aldrich, 205 Ill. 242, 68 N. E. 810. A trust in personal property may be proven by the admission of the trustee or other parol evidence. People v. Schaefer, 266 Ill. 334, 107 N. E. 617. The rule that a trust in personal property may be created by parol, and proved by parol testimony, is not disputed by counsel for defendants in error. The failure to inventory the $5,000 worth of bonds here involved, as part of the assets of the estate of Cleve Coddington, was explained by his wife, who was the adminis the action and agreement of the father and to advising as to domestic affairs, held not prejudicial, in view of the very full, repeated, and explicit instructions given for defense. Error to Appellate Court, Third District, on Appeal from Circuit Court, Edgar County; Augustus A. Partlow, Judge. the son by letting him have $5,000. The authorities above cited, and many others, permit a valid trust in personal property to be created by parol, and to be proved by the admission of the trustee. The proof here meets all the requirements essential to sustain a trust in the $5,000 bonds in the name of Louis Coddington. The bonds which passed to the nephews of Louis Coddington under his will were bonds which he owned absolutely, and not bonds purchased with money which he held in trust for his son. The circuit court erred in dismissing the bill, and the Appellate Court erred in affirm-Gillespie, of Springfield (George M. Gillespie and Thomas E. Gillespie, both of Springfield, ing the decree. The judgment of the Appellate Court, and the decree of the circuit of counsel), for plaintiffs in error. court are reversed, and the cause remanded Action by Delia Roe against Sarah E. Roe and husband. Judgment for plaintiff was affirmed by the Appellate Court, and defendants bring certiorari. Affirmed. O'Hair & McClain, of Paris, and George B. 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 (315 Ill. 120) ROE v. ROE et al. (No. 16101.) (Supreme Court of Illinois. Dec. 16, 1924.) 1. Appeal and error 1001 (1) Appellate Court is authorized to reverse, with finding of facts, only where evidence is lacking. Reversal by Appellate Court of judgment for plaintiff, with a finding of facts in case tried by jury, could only be justified where there was no legitimate evidence tending to prove the cause of action. 2. Trial 143-Function of jury to determine weight and credibility of conflicting evidence. It is the function of the jury to determine the weight and credibility of conflicting evidence. preme Court. Judgment based on conflicting evidence, and affirmed by Appellate Court, cannot be reversed by Supreme Court, notwithstanding that latter court thinks judgment was not supported by a preponderance of the evidence. 4. Husband and wife 326-Parent may advise his child in good faith, without incurring liability for alienation. A parent may, if he acts without malice and unworthy motives, advise his child about domestic affairs, without incurring liability for alienation of affections. 5. Trial 296(2)—In alienation action, omissions in plaintiff's instructions held not prejudicial, in view of instructions given for de fense. In action against parents of plaintiff's husband for alienation of affections, omission of plaintiff's instructions to state differences in rights of parents and strangers, with respect are mother and father of plaintiff's husband, Fred Roe, to whom she was married November 1, 1919. The first two counts of the amended declaration charge defendants maliciously and wantonly assaulted and struck plaintiff, and also threw her with great force and violence against the wheel of a cultivator. The third and fourth counts charge defendants wrongfully and maliciously, by divers means, alienated the affections of plaintiff's husband and caused their separation. The case was tried by jury, and plaintiff had judgment for $4,500. Defendants appealed to the Appellate Court, and that court affirmed the judgment. The petition of defendants for certiorari was granted by this court, and the record is brought here for re view. [1-3] It is argued by defendants that the verdict and judgment were contrary to the preponderance of the evidence, and that the Appellate Court erred in not reversing the judgment with a finding of facts. Such action of the Appellate Court could only be justified where there was no legitimate evidence tending to prove the cause of action. Mirich v. Forschner Contracting Co., 312 Ill. 343, 143 N. E. 846. It is undeniable that plaintiff's proof tended to support the Scovill For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |