enth clause? The seventh clause answers | Hubbard v. Hubbard, 198 Ill. 621, 64 N. E. this question. They are those "asylums or 1038; Dee v. Dee, 212 Ill. 338, 72 N. E. 429. institutions which are named in my said last will and testament as recipients," etc. What institutions are named in the last will and testament? We have already referred to the several bequests made to the Washingtonian Home, the American Bible Society, the Chicago Protestant Orphan Asylum, the Chicago Erring Women's Refuge for Reform, the Home for the Friendless, and others. These institutions are named, and each of them is a recipient of a part of the testator's property. The will giving to these several institutions one or more elevenths of the residuary estate had no limitation whatever within which said institutions were to become "duly organized and established as incorporated institutions and placed upon an effective basis for success and permanence." It may well be supposed that the testator, in reflecting over the provisions for these various institutions, concluded, for greater certainty and to prevent possible disputes and doubts as to the time within which these several bequests should be paid, if at all, to add clause 7 of the codicil, fixing a general limitation of three years in which these several institutions mentioned in the residuary clause should be so organized and incorporated as to insure permanency and success. Again, the will and codicil bear unmistakable evidences of great care and accuracy in the use of language in their preparation. It is apparent from a careful consideration of the entire context of the two instruments that they were prepared by some one familiar with the accurate use of legal terms. A critical examination of the will discloses that the word "devise" is used when referring to real estate, and the words “give and bequeath" when referring to personal property only. Thus, in clauses 13 and 14, both of which dispose of real estate, the language is, "I give, devise and bequeath," while in clauses from 17 to 25, inclusive, which deal only with personal property, the words employed are, "I give and bequeath." In the seventh and eighth clauses of the codicil the testator refers to the "several bequests in and by said last will and testament made In all and given to such institutions," etc. references to the will found in the codicil the word "bequests" is used. There is no reference in these clauses of the codicil to the devises of real estate made by the thirteenth and fourteenth clauses of the original will. Again, the several institutions or organizations which are made the recipients of bequests in clauses from 16 to 25, inclusive, are not organized under state or municipal author The voluntary contributions of persons charitably disposed. Such institutions may be permanent and successful, or otherwise, depending upon the support they may receive. testator thought it prudent to require, as an element of additional permanency and effectiveness, that all of these institutions should be duly organized and established as incorporated institutions and placed upon an effective basis for success and permanence within three years after his death. In regard to the asylum for the insane that was to receive the devise of the real estate under [2] The general rule that special and specific provisions of a will will prevail over gen-ity, and are, we may assume, supported by eral provisions where there is inconsistency or doubt is applicable here. In Dickison v. Dickison, 138 Ill. 541, on page 547, 28 N. E. 792, on page 794 (32 Am. St. Rep. 163), this court said: "It is also a familiar rule in the construction of wills that general provisions in a will must give way to specific provisions; that where there is a general devise of property in one part of the will and a specific disposition of the same property in another part, these are to be regarded, generally, as excepted out of the general devise. Redfield on Wills, 446, and cases cited. Moreover, a general residuary clause, being ordinarily introduced by the testator to prevent intestacy as to any part of his estate, will generally be construed as intended for nothing more than a disposition of those portions of the estate not previously disposed of, and in such case the presumption of a change of purpose in the testator's mind while preparing his will cannot arise. Id. The specific directions in the will, where the mind of the testator has been directly and intelligently directed to them, are much safer guides to his intention than general provisions, which do, by virtue of their generality, contravene the specific provision, but which might or might not have been so intended. And especially is this so where, as in this case, the general provision is a residuary clause, which, as we have said, might, as it generally is, have been inserted with the sole view of the disposition of any residuum of clause 14 of the original will, the requirement that such asylum should be established "under and by virtue of some state or municipal authority or some charter which shall give to the institution a character of permanence and stability" would insure the permanence and success of the institution without regard to whether it was incorporated or not. Hence there is nowhere in clause 14 any requirement that the asylum for the insane to be established in the northern part of the state should be an incorporated institution. The requirement there is that "in case such an asylum shall not be established and put in full and successful operation within six years after my decease," then the devise to be otherwise disposed of. In our opinion neither clause 7 nor 8 of the codicil has any reference whatever to clause 14 of the original will. The original limitation of six years in clause 14 controls true, appellant cannot make any successful claim that the Illinois Northern Hospital was not established and in successful operation long before the expiration of the time limited in said clause. the sublessee, and the sublessee, as assignee, is liable to the landlord for the rent specified in the lease, and the lessee has a contract right to the additional rent. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834; Dec. Dig. $209.*] 2. FRAUDULENT CONVEYANCES (§ 74*)-RELEASE OF CONTRACT RIGHTS. lease to a third person, for the purpose of attempting to transfer the additional rent to the defraud his creditors. Held, that the transacthird person, who conspired with the lessee to tion was fraudulent as against the lessee's creditors. [3, 4] Appellant contends that the court should have ordered the costs, including solicitors' fees, paid out of the property in controversy. This court recognizes the gen- entire term at an increased rental. A sublessee sublet the premises for the Subseeral rule that where a testator has expressed quently he surrendered the lease, without conhimself so ambiguously as to make it neces-sideration, to the landlord, who executed a new sary or advisable to come into a court of chancery to obtain a construction of his will or to remove a difficulty out of the way of the proper and safe administration of the estate, it is proper to order the costs and solicitors' fees paid out of the estate. Woman's Union Missionary Society v. Mead, 131 Ill. 33, 23 N. E. 603; Lombard v. Witbeck, 173 Ill. 396, 51 N. E. 61. But the allowance of costs in chancery proceedings, except upon the dismissal of a bill, is within the sound legal discretion of the trial court. [5] In the case before us the appellee board was permitted to dismiss its original bill at its own costs. That bill was not filed to obtain a construction of the will, and solicitors' fees could not, in any event, be allowed as costs upon its dismissal. The state of Illinois, through its legally constituted authorities, had been in the actual and undisputed possession of the premises in controversy under a deed from the testamentary trustee for many years before this suit was commenced. This court, as far back as 1878, decided that the Illinois Northern Hospital was entitled to the property, and under that decision the deed was made and the trustee discharged. In view of these circumstances there was no error in dismissing the cross-bill at the cost of cross-complainant. The appellee board invokes the doctrine of laches, the statute of limitations, and res judicata as defenses to the cross-bill. These questions have all been elaborately argued in the briefs of counsel; but, in view of the construction which we have placed upon the will and codicil, it is not necessary to extend this opinion to discuss the other questions. We think the decree of the court below dismissing the cross-bill may securely rest upon the grounds above discussed; and, without expressing any opinion in regard to the other questions, we are of the opinion that the decree below is correct, and the same will accordingly be affirmed. Decree affirmed. (259 Ill. 23) LYON v. MOORE et al. (Supreme Court of Illinois. June 18, 1913.) 1. LANDLORD AND TENANT (§ 209*)—ASSIGNMENT OF LEASE-ACTS CONSTITUTING. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 186-190; Dec. Dig. cess. [Ed. Note.-For other cases, see Lis Pendens, Cent. Dig. §§ 13-19, 25; Dec. Dig. § 8.*] 4. APPEARANCE (§ 19*)-LIS PENDENS (§ 8*)— VOLUNTARY APPEARANCE-EFFECT. service of process, and where one appears in A voluntary appearance is equivalent to court in response to a notice served on him the doctrine of lis pendens applies from the time of appearance. [Ed. Note.-For other cases, see Appearance, Lis Pendens, Cent. Dig. §§ 13-19, 25; Dec. Cent. Dig. $$ 79-82, 84-90; Dec. Dig. § 19;* Dig. § 8.*] 5. FRAUDULENT CONVEYANCES ( 194*)-INNOCENT PURCHASER FROM FRAUDULENT GRANTEE. creditors, an innocent purchaser for a suffiThough a transfer is fraudulent as against cient consideration, without notice of the fraud, is protected. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 608-610; Dec. Dig. § 194.*] 6. FRAUDULENT CONVEYANCES (§ 283*)-SUBSEQUENT PURCHASER FROM FRAUDULENT GRANTEE-BURDEN OF PROOF. One claiming title under a grantee whose title is fraudulent as against the creditors of the grantor, with whom he conspired to defraud creditors, has the burden of showing that he purchased in good faith and without notice of the fraud. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 819; Dec. Dig. § 283.**1 7. VENDOR AND PURCHASER (§ 232*)-POSSES- NOTICE TO THIRD PER Where an assignee, through a sublease of the remainder of the term, is in actual possession, his possession is notice to third persons of his rights, and nothing that the landlord may do in the way of executing a new lease to a third person can effect the rights of the assignee; and one claiming under a new lease is chargeable with notice of the assignee's rights. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.*] 8. BANKRUPTCY (§ 142*)-FRAUDULENT CONVEYANCES-LIABILITY OF PARTIES. Where a lessee, who had sublet the premises for the entire term at an increased rent, surrendered the lease, without consideration, A subletting by a lessee of the premises for the entire term at an increased rental is an assignment of the lease, and privity of estate is created thereby between the landlord and [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 222; Dec. Dig. § 142.*] Error to Branch D Appellate Court, First District, on Appeal from Superior Court, Cook County; Ben M. Smith, Judge. to the landlord, who executed a new lease to a | the term, to William Blunk; and that the third person to transfer the additional rent to bankrupt was the owner of a theater, saloon, the third person, who conspired with the lessee to defraud his creditors, the trustee in bank- and pool and billiard tables, which Blunk obruptcy of the lessee was entitled to a decree tained possession of without any considerasecuring to him the additional rent from the tion. The defendants in error were made detime of the filing of suit by the trustee and fendants to the bill, and Pony Moore was service of process. defaulted. Mrs. Fowler answered, admitting making the second lease, but denying any fraud on her part, and alleging that she was. satisfied to receive $100 per month rental for the premises. William Blunk answered, denying the assignment from Joseph Marshall to Frank Marshall, or that the sublease was in existence; alleged that he received his lease without fraud, and that on January 8, 1908, he sold his lease to George Williams for a valuable consideration; and denied that the bankrupt owned the theater, saloon, billiard tables, and pool tables. Joseph Marshall and Frank Marshall answered, admitting the execution of the lease to Moore, the subletting to Joseph Marshall, and the assignment of the sublease to Frank Marshall, and alleged that the sublease was still in existence, and that, Moore having surrendered his lease, Mrs. Fowler became the landlord of Marshall, and that Blunk collected the rent under directions from Mrs. Fowler. They denied any fraud on their part. Suit by Page V. Lyon, trustee in bankruptcy of Pony Moore, against Pony Moore and others. There was a decree of the Appellate Court (168 Ill. App. 462) affirming a decree granting insufficient relief, and plaintiff brings error. Reversed and remanded, with Reversed and remanded, with directions. A. D. Gash, of Chicago, for plaintiff in error. Silber, Isaacs, Silber & Woley, of Chicago (Martin J. Isaacs and James D. Woley, both of Chicago, of counsel), for defendants in error. CARTWRIGHT, J. Pony Moore was the lessee of the premises numbered 171-175 Twenty-First street, in Chicago, for a term beginning July 15, 1905, and expiring April 30, 1915, under a lease from Eleanora H. Fowler at a rental of $100 per month. On November 1, 1905, he sublet the premises for the remainder of the term at $150 per month to Joseph Marshall, who afterward assigned the sublease to Frank J. Marshall. On May 23, 1907, Pony Moore surrendered the original lease to Mrs. Fowler, and she accepted the surrender; there being no consideration on either side, except the release of the contract obligations. Mrs. Fowler made a lease the same day to William Blunk at the same rental as the former lease to Pony Moore, from June 1, 1907, to the end of the term, on April 30, 1915, and she received nothing from Blunk for making the lease. Moore and Blunk went to the office of the real estate agents of Mrs. Fowler in Chicago, who had charge of the property, and stated that they had been up to Milwaukee to see Mrs. Fowler, and had her cancel Pony Moore's lease and sign a new lease to Blunk. After the new lease was made, Mrs. Fowler's agents collected the same rental of $100 a month for her, which was paid by Marshall, or sometimes by Blunk. Pony Moore was adjudged a bankrupt on August 12, 1907, on his petition, and Page V. Lyon, plaintiff in error, was appointed trustee. Lyon filed his bill on December 7, 1907, in the superior court of Cook county, alleging that a judgment in favor of Julius F. Taylor was recovered against Moore on January 17, 1907; that within four months before Moore filed his petition in bankruptcy he fraudulently surrendered the lease to Mrs. Fowler; that she fraudulently executed a second lease, without consideration, for the remainder of There was a hearing before the chancellor, in which there was evidence concerning the theater, saloon, billiard tables, and pool tables, and also proof of the facts alleged in the bill concerning the leases. The averment of Blunk's answer that he assigned his lease to George H. Williams on January 8, 1908, was proved, and also the further fact that Williams afterward assigned his right in the lease to William D. Blackburn. The consideration named in the assignment of Blunk to Williams was $500, but what the actual consideration was was not shown, although there was evidence tending to show that Blunk owed Williams something, which was the consideration, or part of it. The assignment from Williams to Blackburn recited a consideration of $3,800. The chancellor entered a decree finding in favor of plaintiff in error as to the charges that the theater and saloon and fixtures were fraudulently transferred to Blunk; that the billiard tables and pool tables afterward came back into the possession of the bankrupt and were sold by him for $350. As to the leases, the chancellor found that the surrender from Moore to Mrs. Fowler and the making of the new lease to Blunk was a part of a scheme of Moore and Blunk to defraud the creditor of Moore; that Mrs. Fowler had no knowledge of such fraudulent purpose, but acted with good faith and without fraud; that the purchase of the new lease by Williams and the assignment to Blackburn were without knowledge of the fraudulent acts and intent of Moore and Blunk; that Joseph Marshall and Frank Marshall had no knowledge of the fraud of Moore and Blunk; and that Blunk received as rent for the premises, in excess | Afterward, on January 13, 1908, a stipulaof the rent paid to Mrs. Fowler, for the tion, signed by the same solicitor for Blunk, months from June, 1907, to January, 1908, was filed in the cause. inclusive, $400 in trust for the bankrupt. The decree set aside the assignments and transfers of the theater, the saloon, and the furniture and fixtures, and ordered the same turned over to the plaintiff in error, and ordered Blunk to pay to the plaintiff in error $900 and Moore to pay $350. The bill was dismissed as to Joseph Marshall and Frank J. Marshall for want of equity. The Appellate Court for the First District affirmed the decree, and the record is here for a review by virtue of a writ of certiorari which we granted. [3, 4] Lis pendens begins with the service of process (Hallorn v. Trum, 125 Ill. 247, 17 N. E. 823), but an appearance waives service and brings a party within the jurisdiction of the court equally with service of process. Where a party appears in court in response to a notice served upon him, the doctrine of lis pendens applies from the time of such appearance; a voluntary appearance being equivalent to service of process. 25 Cyc. 1463. Regardless of that question, no evidence was produced showing, or tending to show, that Williams was a bona fide purchaser without notice. [5, 6] Although a transaction is fraudulent as against creditors, an innocent purchaser for a sufficient consideration, without notice of the fraud, will be protected (Spicer v. Robinson, 73 Ill. 519); but where it is shown that one claims title under a grantee whose title is fraudulent, the burden is on him to show that he purchased in good faith and without notice of the fraud. 20 Cyc. 763; Brown v. Welch, 18 Ill. 343, 68 Am. Dec. 549; Roseman v. Miller, 84 Ill. 297. [1, 2] Pony Moore, the bankrupt, was the lessee of the premises from Mrs. Fowler, and he sublet them for the entire remainder of the term from November 1, 1905, to Joseph Marshall, who afterward assigned the sublease to Frank J. Marshall. Moore retained no reversion in himself; but, while he was liable to Mrs. Fowler for only $100 a month, the rent reserved to him in the sublease was $150 a month, so that the lease was worth to him $50 a month for the remainder of the term. After a judgment for $18,000 had been rendered against Moore, he and Blunk [7] It was proved that Blunk was an acdevised a fraudulent scheme to defraud the tive participant in the fraud of Moore, and creditor by putting that $50 a month beyond it was incumbent on the defense to prove his reach, and to carry the scheme into effect that Williams had no notice of the fraud. Moore surrendered the original lease. By Everything which appeared in the suit tendsubletting the premises for the whole termed to prove that he did have notice. He had the sublease operated as an assignment, and been advancing money to Blunk, and Blunk privity of estate was created between Mrs. could not get any money out of Marshall. Fowler and Joseph Marshall, so that she be- could not get any money out of Marshall. Fowler and Joseph Marshall, so that she be-williams would not give Blunk any more mon came the lessor and he the lessee. Sexton v. ey, and said that he would take Blunk's place, and got the lease assigned to him from Blunk, saying he would make it warm for Marshall. Marshall was in possession of the property, and his possession was notice to Williams of his rights, and that he was assignee, through a sublease, of the remainder of the term. Ronan v. Bluhm, 173 Ill. 277, 50 N. E. 694. Nothing that Mrs. Fowler could do in the way of executing a new lease to Blunk would have any effect upon the rights or the estate of Marshall, and any inquiry would have advised Williams that Mrs. Fowler had nothing to grant to Blunk by a new lease. Williams would have learn Chicago Storage Co., 129 Ill. 318, 21 N. E. 920, 16 Am. St. Rep. 274. We so held in a case involving this lease. Taylor v. Marshall, 255 Ill. 545, 69 N. E. 638. Marshall, as assignee of Moore's lease, was liable to Mrs. Fowler for $100 a month as rent, and Moore had a contract right to the additional $50 a month rent which Marshall was to pay. The surrender of the lease by Moore released him from his contract obligation to her, and that surrender, together with the new lease to Blunk, was merely a fraudulent attempt to transfer the $50 a month to Blunk, who was conspiring with Moore to defraud his creditor. A court of equity would not permit them by their jugglery of the leases to ac-ed that the purpose of the surrender and complish that result. It is contended, however, that Williams was a bona fide purchaser for a valuable consideration and without notice, and acquired a good title, which he was able to transfer to Blackburn. The bill was filed on December 7, 1907, and on January 7, 1908, in response to a notice which had been served on Blunk, an attorney appeared in court as his solicitor. It does not appear that there was any formal entry of appearance filed, but the attorney stated that he appeared for William Blunk, as his solicitor, and would ap the new lease was merely to give Blunk the $50 a month to which Moore was entitled, and doubtless he would have known of the fraud. At any rate, the burden was upon the defense to show want of notice, and that was not done. [8] The plaintiff in error was entitled to a decree securing to him the $50 a month which Moore was to receive under the sublease, and the lessee became liable to a decree against him for the same from the time the bill was filed and process served on such lessee. The record does not contain facts and it will be determined by the superior | people, on the relation of June C. Smith, court upon such further evidence as the parties may present to that court. against Albert D. Rodenberg, charging him with unlawfully holding the office of judge The judgment of the Appellate Court and of the city court of Centralia. Plaintiff in the decree of the superior court are reversed, error filed a plea, to which four replications and the cause is remanded to the superior were filed. A general demurrer was intercourt, with directions to enter a decree re- posed to these replications and overruled. quiring every person liable, as lessee, for On a writ of error prosecuted to this court the rent of the premises during the existence the judgment of the lower court was reversof the lease, after service of process on Jo-ed and the cause remanded, with directions seph Marshall and Frank Marshall, to ac- to the circuit court to cverrule the demurrer. count for and pay to the plaintiff in error, People v. Rodenberg, 254 Ill. 386, 98 N. E. as trustee in bankruptcy for Pony Moore, $50 764. When the case was reinstated in the per month reserved to Moore by the agree- circuit court, the people moved to overrule the demurrer and for judgment of ouster. A cross-motion was made by plaintiff in error, in writing, for leave to plead over and file three rejoinders. The court overruled the original demurrer, and thereupon plaintiff in error presented three rejoinders. The court, after a hearing, denied plaintiff in error's motion to plead over and refused to permit the filing of the rejoinders. Thereafter, and without further pleading, the court entered judgment of ouster against plaintiff in error, with costs of suit. From that judgment this writ of error has been sued out of this court. ment. Reversed and remanded, with directions. (259 Ill. 78) PEOPLE ex rel. SMITH v. RODENBERG. (Supreme Court of Illinois. June 18, 1913.) 1. COURTS (§ 219**) - JURISDICTION OF SUPREME COURT "FRANCHISE." A public office is not a "franchise" within Practice Act (Hurd's Rev. St. 1911, c. 110) § 118, allowing appeals and writs of error direct to the Supreme Court in cases in which a franchise or freehold is involved. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 539-542, 545-547, 549, 550, 552573; Dec. Dig. § 219.* For other definitions, see Words and Phrases, vol. 3, pp. 2929-2942; vol. 8, p. 7666.] 2. COURTS (§ 219*) JURISDICTION OF SUPREME COURT-INTEREST OF STATE. The state's interest in a quo warranto proceeding brought on the relation of a private person to test the right to an office is merely nominal, and that the state is a nominal party will not authorize an appeal direct to the Supreme Court under Practice Act (Hurd's Rey. St. 1911, c. 110) § 118, allowing such appeals and writs of error in cases in which the state is interested. [1-3] We see no reason why, under the prothis case can be brought directly to this visions of section 118 of the Practice Act, court. In the former case the appeal was brought directly to this court because constitutional questions were involved. No such questions are now raised, either by assignment of errors or by the briefs. An office is not a "franchise" within the meaning of the Constitution and statute prescribing the appellate jurisdiction of the Supreme Court and the Appellate Courts. People v. Holtz, 92 Ill. 426; McGrath v. People, 100 Ill. 464. Neither is the state an "interested party," as that term is used in the statute, so as to give this court jurisdiction on direct appeal. The interest of the state, in order to entitle either party to bring a case directly to this court in the first instance, must be a substantial one. No such interest is involved in this case. McGrath v. v. People, supra; Hodge v. People, 96 Ill. 423; Hitchcock v. Error to Circuit Court, Marion County; Greene, 252 Ill. 519, 96 N. E. 854. In the asAlbert M. Rose, Judge. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 539-542, 545-547, 549, 550, 552573; Dec. Dig. § 219.*] 3. COURTS (§ 219*)-STATE COURTS-ILLINOIS -JURISDICTION OF SUPREME COURT. Where only questions of practice are raised by an appeal, it should be taken to the Appellate instead of the Supreme Court. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 539-542, 545-547, 549, 550, 552573; Dec. Dig. § 219.*] Information in the nature of quo warranto by the people, on the relation of June C. Smith, against Albert D. Rodenberg. There was a judgment of ouster, and respondent brings error. Cause transferred to Appellate Court. Bundy & Wham, J. J. Bundy, L. B. SkipBundy & Wham, J. J. Bundy, L. B. Skipper, and C. F. Dew, all of Centralia, for plaintiff in error. Samuel N. Finn, State's Atty., of Salem (Noleman & Smith, of Centralia, of counsel), for defendant in error. CARTER, J. This was an information in the nature of a quo warranto, brought in the circuit court of Marion county by the signment of errors and in the briefs the only question raised is as to the ruling of the court in not permitting plaintiff in error to file rejoinders and in entering judgment of ouster when it is alleged the case was not at issue. The questions raised do not go to the merits, but are solely those of practice. When questions of practice, only, are raised, the appeal should be taken to the Appellate Court. Miller v. Kensil, 223 Ill. 201, 79 N. E. 24; Fread v. Fread, 165 Ill. 228, 46 N. E. 268. This court being without jurisdiction, the |
