« ForrigeFortsett »
the saloon business, which ventures were \band. Harding v. Harding, 144 Ill. 588, 32
failures and in which he lost all his investments except $350. From his evidence he had about $1,200 or $1,500 when he married appellee and had about the same amount of money when this suit was begun, and appellee still had about $1,500 of other money when the master made his report. We have reviewed all the evidence in the record on the question of their property rights, and while it is in hopeless conflict it entirely supports the master's findings and the court's decree in that regard, and we think the decree should be sustained, as appellee received very little, if any, more in value thereby than her investments in the property and her moneys used and spent by appellant. The evidence also shows that she is now severely afflicted with kidney disorders, and is almost, if not entirely, incapacitated for further accumulations of money or property, and that he while afflicted with a bad hernia or rupture, is nevertheless an excellent carpenter and wood workman, and still capable of earning good wages at that trade.  The Homan avenue property was sufficiently described as “the property known as No. 506 Homan avenue,” which appellant gave as its proper number, and it is sufficiently identified by that description even if the other description given it in the record was erroneous, as claimed by him.  The evidence does show, however, that the appellee has much more money and property by virtue of the decree of the court than has appellant, and that she is amply able, and much more able, to pay attorney's fees than is appellant. For that reason we think the court properly decreed that she should pay her solicitor's fees in the first instance, and that it erred in its determination to have taxed against him solicitor's fees for her counsel in case this cause should be reviewed by a higher court. In view of the very liberal allowance already made appellee, and considering the further fact that appellant is now left heavily in debt and that the expenses of this lawsuit will about, if not entirely, exhaust all his money now on hand, we think appellee is more able to pay her attorney's fees than ne, and that she should be decreed SO to do.  Whether or not an allowance should be made to a wife for alimony pendente lite and for solicitor's fees rests largely in the discretion of the court, it is true, but an abuse of such discretion is subject to review. The court may require the husband to pay the wife such sums of money as may enable her to maintain or defend her suit, and she is entitled to alimony during the pendency of the suit “when it is just and equitable.” Hurd's Stat. 1915–16, c. 40, § 15. She should not be allowed Solicitor's fees When she is amply able to pay them herself and much more able financially to do so than her hus
N. E. 206, 21 L. R. A. 310.
 The court also erred in allowing $35 per day to the master in chancery for 8% days for reporting his conclusions of law and fact, itemized as time spent in hearing oral arguments, objections to report, etc. There are only 453 pages of evidence in the record, for the taking and certifying of which the law allows 15 cents per hundred words, and for which is taxed in this case a fee of $150, and which is apparently about the correct Sum. It is very apparent that it could not possibly require 8% days to hear arguments and to report the conclusions of law and fact in this case if a full day's work were performed each day. It is also unreasonable to allow $35 per day for that service, which is about as much, or more, than the judge who tried the case receives for each day he is actually engaged in the duties of his office, and as a matter of common knowledge it is more than twice as much as was ever paid in Chicago for judges from other jurisdictions While employed in the courts of Cook county. A master in chancery is entitled to only such fees as are specified in the statute, and in Cook county for reporting conclusions of law and fact he is entitled to such compensation as the court may deem just. The master's position and responsibility are inferior to those of the chancellor, and his per diem compensation should not, in any event, be equal to or exceed the compensation of the chancellor when reduced to a per diem basis, Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138, 71 N. E. 933. The master stated, as part of his report and as a basis for fixing his fees, that the necessary expense for maintaining his office was at the rate of $15 per day for each working day. Such fact should not be considered in arriving at a proper charge for such work.
The decree of the circuit court is affirmed, except as to the allowance of the master's fees in the sum of $447.50, and as to said fees it is reversed and the cause remanded, With directions to allow the said master for his said fees not to exceed the sum of $250–$150 for taking and certifying the evidence, and $100 for reporting conclusions of law and facts, etc.—and to not allow appellee's Counsel solicitor's fees to be paid by appellant.
Reversed in part and remanded, with directions.
(275 Ill. 217)
PEOPLE ex rel. SIEVERT et al. v. PELTIER et al. (No. 10362.)
(Supreme Court of Illinois. Oct. 24, 1916.)
1. STATUTEs 3-96(1)—SPECIAL LAws—CREATION OF SCHOOLS-ELECTION. Act April 24, 1915 (Laws 1915, p. 630), being an act to legalize elections held since July 1, 1911, by virtue of Act June 5, 1911 (Laws 1911, p. 505), authorizing the organization of high school districts, which declares that, whenever
(3-3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
any election has been held at which the votes of that on May 23, 1914, an election was held women may have been the deciding factor, such to determine whether certain territory in election shall be held to be legal, is not invalid as applying only to elections which were carried Iroquois county should be organized into a by women's votes for the organization of school township high school district, and that at districts; the act being general and applying said election 75 male voters and 46 women to all elections where votes of women may have voted in favor of the proposition and 79 male been the deciding factor.
[Ed. Note.-For other cases, see Statutes, voters and 30 women voted against the propCent. Dig. 8 107; Dec. Dig. Om96(1).]
osition; that in case women were entitled 2. CONSTITUTIONAL LAW 52-SCHOOLS AND to vote at said election the proposition was
SCHOOL DISTRICTS 22-PUBLIC SCHOOLS carried by 12 votes, in which event said high -ORGANIZATION OF DISTRICTS-VALIDATION school district has been established accordOF ELECTIONS.
The act is not invalid as an encroachment on ing to law, but in case women were not enthe province of the judiciary, though it provid- titled to vote at said election then the propoed for abatement of suits involving the organiza- sition was lost by 4 votes and said district tion of districts where the election was validat: has not been legally organized. Based upon ed; the act merely carrying out the intention of the Legislature to validate districts organized at this stipulation of facts, the court on April an election where the votes of women were the 26, 1915, rendered a judgment of ouster deciding factor, by abating suits.
against appellees, finding them guilty in man[Ed. Note. For other cases, see Constitutional ner and form as charged in the information. Law, Cent. Dig. $ 50; Dec. Dig. Om52; Schools and School Districts,' Cent. Dig: 8 41; Dec. Dig. From that judgment appellees prayed an ap22.]
peal to this court, which was allowed upon 3. Quo WARRANTO Em 63—COSTS – RIGHT TO filing bond and bill of exceptions within 30 IMPOSE.
days. Thereafter, on May 5, 1915, appellees Where it was within the power of the Leg- moved the court to set aside and vacate the islature to validate an election for the organiza- judgment of ouster and order for appeal of tion of a high school district, costs of a quo warranto proceeding brought by relators may be im- April 26, 1915, on the ground that on April posed on them where, after institution of the 24, 1915, an act had been duly passed and approceedings, the election was validated, though proved, entitled "An act to legalize certain at the time they were instituted relators had a good cause of action, for they had no fixed rights elections held since July 1, 1911, under and in the matter.
by virtue of 'An act to authorize the organ[Ed. Note. For other cases, see Quo Warran- ization of high school districts,' approved to, Cent. Dig. 8 74; Dec. Dig. Om63.]
June 5, 1911, and in force July 1, 1911, and Duncan, J., dissenting.
all proceedings taken in pursuance thereAppeal from Circuit Court, Iroquois Coun- of, and to abate certain pending suits." ty; Frank L. Hooper, Judge.
Laws 1915, p. 630. The motion to set aside Information by the People, in the nature of and vacate the judgment of ouster and order quo warranto, on the relation of William for appeal was sustained, the judgment of Sievert and others, against Joseph H. Peltier April 26, 1915, was vacated and set aside, and others. A judgment of ouster and or- and judgment was rendered against the reder for an appeal was set aside on respond-lators for costs. From this judgment the reents' motion, and from a judgment against lators have prosecuted this appeal. relators, they appeal. Affirmed.
[1, 2] No question is raised as to the validi... J. W. Kern, State's Attorney, of Watseka ty of the act of June 5, 1911. Laws 1911, (Pallissard & Benjamin and Kay, Perrigo & p. 505. In contending that the curative act Kay, all of Watseka, of counsel), for appel- of April 24, 1915, is invalid, appellants seem lants. C. G. Hirschi, of Watseka, for ap-tion of the provisions of the act than upon
to rely more strongly upon their construcpellees.
the power of the Legislature to pass a curaCOOKE, J. On March 4, 1915, the state's tive act upon this subject. In the recent case attorney of Iroquois county, in the name of of People v. Militzer, 272 Ill. 387, 112 N. E. the people, and upon the relation of William 57, it was held that the act of 1915 is valid, Sievert and others, by leave of court filed as the General Assembly had the power, an information in the nature of quo war-when the Township High School Act was ranto in the circuit court of said county passed, to have authorized women to vote against appellees, requiring them to show by at such elections. what authority they claimed to exercise the
Appellants contend that the act is invalid office and franchise of president and board because by its terms it is applicable only to of education of a certain pretended town- such elections as were carried for the organship high school district in Iroquois county. ization by women's votes. The terms of the Instead of pleading to the information, ap-act will not bear this construction. The act pellees entered into a stipulation with the is set out in full in People v. Militzer, supra, state's attorney by which it was agreed that and contains the express provision that, the cause should be submitted to the court whenever any election has been held under upon a stipulation of facts without formal the act authorizing the organization of high pleadings.
school districts "at which the votes of woFrom the stipulation of facts it appears | men may have been the deciding factor in
om for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
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  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.
 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