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carrying such election, then and in such Appeal from Logan County Court; Charles case such elections are hereby made and held J. Gehlbach, Judge. to be legal, valid, and binding." By this lan Proceeding by the people, on the relation guage the

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 tral Railroad Company, filed objections to

DUNCAN, J. Appellee, the Illinois Cencompletely disposed of by the language in the taxes extended against its property in that part of the act above quoted. The act Logan county at the June term, 1915, of the is general, and applies to all elections at county court of said county. The objections which women votes were the deciding factor, involved in this proceeding are as to the road without regard to the result.

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

The only objection insisted upon and arprovides that all pending suits questioning gued by appellee on this appeal is that the the validity of such elections on the ground highway commissioners of said town did not that the votes of women had been the decid-hold a meeting on the first Tuesday in Seping factor should abate.

tember, 1914, to determine and certify the [3] Appellants complain of the action of amount required for road and bridge purthe trial court in assessing costs against poses, as required by section 56 of the Road them, and insist that as at the time this ac- and Bridge Act (Hurd's Rev. St. 1915-1916, tion was instituted they had a good cause of c. 121). It was conceded that the August action, and would have been entitled to re- meeting to determine the rate was held, as cover had it not been for the subsequent act required by section 50 of the act. On the of the Legislature, they should not be mulct-hearing, proof was offered by appellant in ed in costs. Appellants had no vested rights support of a motion to amend the record of in the matter, and this proceeding was in the commissioners, so as to show that the stituted with the full knowledge that it was commissioners did hold a meeting on the within the power of the Legislature by a first Tuesday in September, 1914, and detercurative act to ratify and render legal and mined and certified the amount required for binding the election held. The act was ap- road and bridge purposes, as required by proved and became effective before the final said section 56. The refusal of the court to determination of the cause, and costs were allow the record to be so amended on the properly taxed against appellants.

evidence offered is assigned and argued as The judgment of the circuit court is af- error by appellant, and the correctness of the firmed.

court's ruling in that regard is also to be de Judgment affirmed.

termined by this court.

Identically the same questions for decision DUNCAN, J., dissents.

in this case, arising on the same record and

upon practically the same briefs and argu(275 Ill. 166)

ments, were presented to and determined by

this court in the case of People v. Chicago & PEOPLE ex rel. RYAN, County Collector, v. Alton Railroad Co., 274 III, 209, 113 N. E. 147. ILLINOIS CENT. R. CO. (No. 10724.)

The decision in that case is controlling in (Supreme Court of Illinois. Oct. 24, 1916.) this case, and for the reasons therein given HIGHWAYS 95(3) - MEETING OF COMMIS- the judgment of the county court is reversed, SIONERS_RECORD-AMENDMENT.

and the cause remanded, with directions to In a proceeding for the collection of a road permit the record to be amended and introand bridge tax, the records of the meetings of duced in evidence as amended, and to render speak the truth.

judgment for appellant for the taxes in ques[Ed. Note. For other cases, see Highways, tion. Cent. Dig. 8 312; Dec. Dig. 95(3).]

Reversed and remanded, with directions. Com 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 6-150(2)—CoMPETENCY-STATUTE. 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. 3-150(2).] 2. DEEDs 3-211(1)–CAPACITY OF GRANTORSUFFICIENCY 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. 3->211(1).]

3. DEEDs 3-68(3)—MENTAL CAPACITY – DISEASE AND OLD: AGE. 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. 3-68(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. 3-68(2).] 5. DEEDs 3-68(11%)—MENTAL CAPACITY. 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. 3-68(1%).]

6. Ev1DENCE 6-230(3) — IMPEACHMENT OF DEED BY GRANTOR SUBSEQUENT TO DELIVERY. 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. 3230(3).] Error to Franklin County Court; Thomas J. Layman, Judge. Petition to sell real estate to pay debts, etc., by J. T. ESSary, administrator, against Nellie Marvel and others. To review a judgment for defendants, petitioner brings error. 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.

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 F. Watson, Sr., deceased, on October 23, 1908, 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, misrepresentations, intimidation, and undue influence; that at the making thereof, and for many years prior thereto, said Joseph F. Watson, Sr., was of unsound mind and incapable of transacting the usual and ordinary business affairs of life, and by reason of such unsoundness of mind was incapable of executing a valid deed of conveyance, and that said deeds are therefore invalid. All the defendants except Charles Watson filed anSwers, denying the allegations in the petition; Charles Watson making default. On the hearing the court found against the petitioner, and denied his prayer for the cancellation 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.

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, which by the decree in this case were ordered sold. During the last 5 or more years of his life he and his wife were estranged and lived apart. For about 16 months prior to 1908 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

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

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 "I want you to keep them (the deeds] until I home in Franklin county, and there lived call for them during my lifetime, or on my death until he died, June 30, 1911, leaving the said deliver them to the parties to whom they are

made." three children and several illegitimate chil

Hobbs took the deeds and placed them in dren, but no widow, him surviving. A conservator was appointed in 1910 to have the a safety deposit box in a bank, and that same servator was appointed in 1910 to have the afternoon Nellie Marvel, the daughter, went custody of the person and the care of the property of Watson, and the testimony of A. to Hobbs with an order from her father for

the deeds. Standing on his promise to her J. Sanders shows that he was appointed as father he refused to deliver her the deeds, such conservator some time in the year 1909. but delivered them in person to him that At the death of Watson his conservator be evening, and the deceased told him then that came his administrator, and Nellie Marvel his children had become dissatisfied with the had probated and allowed a claim against way the deeds were made, and that he was his estate for nearly $1,500 for care and sup-going to make other deeds, and he then port of her father, and Dr. Marcus D. L. burned the deeds Hobbs returned to him. Carter also had a claim allowed against his He then, or within a very few days thereaftestate, presumably for services as a physi-er, executed before Hobbs, as notary public, cian, and they are the principal witnesses six other deeds for those lands, one to each for defendants in error. Their competency of said grantees, one to his son Charles, one as witnesses was objected to under section to his wife, and one to Bert Watson, another 2 of the statute on evidence and depositions, illegitimate son, with stipulations in some and that question is presented here for del of the deeds that his children, including termination preliminary to the main ques. Charles, should pay back to the deceased's tion. It is true, as suggested by defendant estate certain moneys received by them, and in error Joseph F. Watson, Jr., that they are those deeds were dictated by the deceased and interested in the result of this suit, and that placed in Hobbs' hands with similar instrucNellie Marvel, although denying the allegations for delivery as to the former three tions of the petition as to the incompetency deeds. The deceased again called on Hobbs of the deceased to make the deeds in ques- for the six deeds, and in the presence of tion, was nevertheless palpably in sympathy Charles, who was then complaining at the with the plaintiff in error, and more inter- way they were made, the deceased burned ested in his recovering in the suit. They them, remarking, “Now, by God, they are were called as witnesses by the plaintiff in gone," and further saying he was going to do error. Joseph F. Watson, Jr., was not de as he pleased, as he had worked for and got fending the suit as an heir or devisee of his the land himself. Hobbs had known him infather, but as a grantee in the deed made to timately for 10 or 12 years and lived within him by his father, the deceased. Said sectwo miles of him. He testified to the foretion of the statute does not therefore give going facts, and they are not disputed, and him the privilege to have their testimony further testified that the deceased was then excluded on the ground that they are incom- in his right mind, and that he had every petent witnesses when called by the admin-1 reason to believe that he understood what he istrator of the deceased. Hudson v. Hudson, was doing on those occasions, that his con237 Ill. 9, 86 N. E. 661; Grindle v. Grindle, dition was normal, and that there was noth240 Ill. 143, 88 N. E. 473.

ing that occurred out of the ordinary in his The deceased had a stroke of paralysis actions or conversations. some 3 or 5 years before he made the deeds

On October 23, 1908, when the deeds in in question, October 23, 1908, which affected question were made, while living with his son his lower limbs and his tongue, so that up to Joe, the deceased sent for his family physithe time he made those deeds his locomotion cian, Dr. M. D. Empson, and Dr. C. W. Pemand his speech were slightly affected thereby berton, another physician and neighbor whom so as to be noticeable to those who were in- he had known intimately for years, and had timately acquainted with him. In July and them come out to his home to witness the August, 1908, he had a very severe illness, deeds, with the expressed purpose, as he and during that illness sent for Dr. Chestine told Dr. Empson, that they should be able to and E. J. Hobbs, a notary public, and in- testify as to his competency to make the formed Hobbs that he was pretty sick and deeds should they afterwards be attacked wanted to deed to his daughter, Nellie Mar- on the ground of his unsoundness of mind. vel, 40 acres of his land, to his son Joe 40 He had W. W. Ramsey, a lawyer and notary acres, and to James Watson, an illegitimate public, draw up the deeds. Ramsey and Dr. son, 40 acres. He dictated to Hobbs how he Pemberton got to the house first and talked wanted the deeds made, what lands he want with the deceased on various and commoned to deed to each one of the children, and place subjects for an hour or more before had a life estate reserved to himself in all Dr. Empson arrived. After Dr. Empson of the deeds. The deeds were duly and vol-came the deeds were executed by the deceased untarily executed as he requested, and the and witnessed by the two physicians, and then all three of them remained there for supper. 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 be. deceased asked his son Joe to bring the deeds fore he died. to him, and the deceased, then picking out [2-6] We have studied this record carefulfrom the bunch the deed describing the lands, ly, and have concluded therefrom that the directed Ramsey to describe in the deed to deceased was a very positive character, and Joe the home or north 80 acres of his land not easily persuaded to change his views and in the deed to Nellie the south 40, and or his mode of living; that he was also very pointed out the respective tracts, and had a rough and sometimes very vulgar in his man. reservation made in the deeds of a life estate ners, and at times in 1908, during his severe for his own life. He then signed his name illness, and perhaps at other times prior to the deeds, acknowledged them in the pres- thereto, was mentally unsound; that he had ence of the witnesses, and handed his son Joe sane intervals, when he was competent to his deed with the remark:

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.”

weak physically and was mentally incapable He stated in the presence of the witnesses, of transacting business two years or more as his reasons for making the deeds, that he before he died. The evidence, however, had been with Joe a good while, and Joe had clearly supports the finding of the court that been to a “right smart” of expense and trou- the deeds in question were executed at a ble in keeping his mother, and that Joe and time when he was sufficiently sound mentally Nellie were to care for him. Joe took no to execute deeds and to fully comprehend part in the conversations, so far as appears their effect upon himself and his grantees, and from the evidence. Ramsey and the two phy- that the deeds in question are valid. Everysicians aforesaid testified to the foregoing thing that he did and said in connection with facts, and further testified that they had the execution of these deeds shows that he known the deceased intimately for 25 years thoroughly understood the business then in or more, and that on that day, at the time he hand, and comprehended its importance and executed the deeds, while weak physically, the full effect of the deeds on all parties he was mentally sound, in his usual, ordina- concerned therein. The mental faculties of ry, normal condition, and comprehended a person may be impaired by disease or old what he was doing when he signed the deeds. age, and yet he may have sufficient mental May Samuels was there also that day until capacity to make a will or a deed. McLaugha short time before the deeds were executed, lin v. McLaughlin, 241 Ill. 366, 89 N. E. 645. and testified that on that day, and for a He may be subject to delusions, but if they month before and after that time, the de- exert no influence on the grantor in the makceased was normal mentally and capable of ing of a deed, he will not be incapacitated on comprehending and transacting ordinary that account to make a valid deed. Crosby business, and that he was in such normal v. Dorward, 248 Ill. 471, 94 N. E. 78, 140 condition, mentally, during the entire year of Am. St. Rep. 230. If the grantor in a deed 1908. About ten other neighbors living close has sufficient mental capacity to comprehend to the deceased in Saline county and who the nature of the transaction and the effect had been very well acquainted with him for of his acts, and can exercise his will witi years, testified that he was of sound mind reference thereto, the deed will not be set during the year 1908, and that they could aside for want of mental capacity. Kelly v. notice no difference in him mentally during Nusbaum, 244 Ill. 158, 91 N. E. 72. When a that year from what he was in former years, deed is executed and delivered it then and and their testimony was to the effect that he there takes effect and transfers the title bewas mentally competent to transact business yond the further power and control of the understandingly. On the other hand, Dr. grantor. Statements of the grantor in disCarter, his partner, Dr. House, and Nellie paragement of the title or in arraignment of Marvel, and some two or three others who the character or actions of the grantee, after were also intimately acquainted with the the deed is executed and delivered, are not deceased and had been for years, testified, admissible to impeach it. Taylor v. Pegram, in substance, that during his illness in 1908, 151 Ill. 106, 37 N. E. 837. It was shown by and at other times during that year, the de- the evidence in this case that the deceased ceased was of unsound mind, and occasional. told a number of persons, after he had exely had delusions that he owned quite an cuted the deeds in question, just how he had amount of coal lands that he did not own at made them, and that he was satisfied with all, and that negroes and women were after them, and that they were fixed just as he him and trying to burn his coal, and some of wanted them. the witnesses expressed themselves that he As the judgment of the county court is was mentally incapable of transacting ordi- well supported by the evidence, and there nary business affairs intelligently. There is being no errors in the record in the admission also much evidence in the record which ought of evidence, the judgment is affirmed. not to be repeated in this opinion, tending to Judgment affirmed.

(274 Ill. 516)

DUNCAN, J. Minnie Seaback brought this SEABACK V. METROPOLITAN LIFE INS. action of assumpsit in the circuit court of CO. (No. 10355.)

Bureau county against appellee to recover (Supreme Court of Illinois. Oct. 24, 1916.) an amount alleged to be due her as bene 1. INSURANCE 198(5)-VOID POLICY - RE- ficiary under the terms of a life insurance COVERY OF PREMIUMS.

policy issued September 12, 1910, by appellee Where a policy is void from the beginning, on the life of Lulu Seaback, daughter of and there is no fraud on the part of the insured, he may recover the premiums paid by him.

Minnie Seaback. The insured died March [Ed. Note.-For other cases, see Insurance, 23, 1911, and proofs of death were duly furCent. Dig. 8 459; Dec. Dig. Om 198(5).) nished to appellee by Minnie Seaback. The 2. INSURANCE 392(1)-FORFEITURE—WAIV- declaration declared specially on the policy in ER-FAILURE TO RETURN PREMIUMS.

one count, and also contained the common The mere failure of an insurance company counts. Appellee filed the general issue and to return premiums on a policy void from the beginning, for breach of condition, is not a waiv. special pleas. No replications were filed, but er of its right to forfeit the policy.

a stipulation was signed by the parties, in [Ed. Note. For other cases, see Insurance, substance, that the plaintiff should be allowCent. Dig. $$ 1041, 1045; Dec. Dig. 392(1).] ed to prove under the declaration any matter 3. INSURANCE C646(3)—ACTIONS ON POLICY that might be necessary to maintain her ac

-BURDEN OF PROOF-WAIVER OR FORFEI- tion, and that appellee should have the right
TURE.

The burden of proving a waiver or an estop- to prove any matter under the general issue pel on the part of an insurance company to for- necessary to its proper defense, the same as feit a policy is on the beneficiary.

if properly pleaded by it and without the fil[Ed. Note.-For other cases, see Insurance, ing of formal special pleas or replications or Cent. Dig. § 1653; Dec. Dig. Om646(3).]

other pleadings, it being the intention of the 4. INSURANCE 371–FORFEITURE OF POLICY parties that said cause may be tried on the -WAIVER.

To constitute a waiver of forfeiture of a merits without further formal pleadings. A policy, it must appear that the company ex- trial was had before the court without a jury, pressed an intention to relinquish the defense, and resulted in a judgment against the appelor that its negotiations or transactions after lee in the sum of $251.87. The original knowledge of the forfeiture recognized the continued validity of the policy.

plaintiff having died after judgment, her [Ed. Note.-For other_cases, see Insurance, death was suggested, and the cause has since Cent. Dig. 88 943-946; Dec. Dig. 371.] been prosecuted in the name of her adminis5. INSURANCE 615-DEFENSES - BREACII trator.

BREACH trator. On appeal the Appellate Court for OF CONDITION-RETURN OF PREMIUMS. the Second District reversed the judgment

The return of premiums paid on an insur with a finding of facts. A certificate of imance policy void from the beginning is not a condition precedent to the right of the company to portance was granted by that court, and an defend an action on the policy.

appeal has been perfected to this court. [Ed. Note.-For other cases, see Insurance,

The policy sued on was an industrial inCent.Dig. $$ 1530, 1532-1534; Dec.Dig. Ow615.) surance policy, reciting that it contains the 6. INSURANCE 198(6) VOID POLICY

entire agreement between the company and RIGHT TO PREMIUMS.

The right to recover premiums paid on an the insured and the holder and owner thereof, insurance policy void from the beginning is the and it further appears from the arguments right of the insured or her personal representa of the parties that no written application tive, not of the beneficiary.

therefor or representations or statements [Ed. Note. For other cases, see Insurance, Cent. Dig. $$ 465-467; Dec. Dig. eww 198(6).j were made by the insured to appellee at the

time it was issued, oral or otherwise. The 7. APPEAL AND ERROR 172(1)-PRESENTING QUESTIONS IN LOWER COURT-NECESSITY.

premiums paid were 10 cents per week, A claim that the beneficiary under an in- amounting to a total sum of $2.80. surance policy is entitled to judgment on the The provisions of the policy material to common counts for premiums paid by her can- this inquiry are the following: not be raised for the first time in the Supreme Court.

“No obligation is assumed by the company [Ed. Note.-For other cases, see Appeal and prior to the date hereof nor unless on said date Error, Cent. Dig. $$ 1070-1073, 1076-1078; the insured is alive and in sound health. * * * Dec. Dig. 172(1).]

This policy is void if the insured before its date

* has been attended by a physician for Appeal from Appellate Court, Second Dis- any serious disease or complaint or has had betrict, on Appeal from Circuit Court, Bureau fore said date any pulmonary disease or chronic County; Joe A. Davis, Judge.

bronchitis. *

* *** If this policy is or shall Action by Minnie Seaback, for whom was feited to the company, except as provided under

become void, all premiums paid shall be forsubstituted after her death Charles Sulski, ‘Privileges and Concessions to Policy Holders.' against the Metropolitan Life Insurance Com- * * * If the terms of this policy are not satpany. Judgment for plaintiff was reversed isfactory, or if its conditions are not accepted by the Appellate Court, and the plaintiff ap- for cancellation at the office of the superintend

and agreed to, the policy may be surrendered peals. Judgment of the Appellate Court af- ent of the district (his address appears on the firmed.

premium receipt book covering this policy) with

in 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."

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