Slike stranica

(259 I11. 99)

It is averred that the rates of interest charg

PEOPLE ex rel. CHICAGO BAR ASS'N v. ed vary, depending upon the hazard of the


(Supreme Court of Illinois. June 18, 1913.) ATTORNEY AND CLIENT (§ 45*)—DISBARMENTGROUND.

Usury is not an offense in this state, and the lending of money at a usurious rate of interest is not sufficient ground for disbarring an attorney, in absence of circumstances of hardship or oppression.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 63; Dec. Dig. § 45.*]

particular loan and the demand for money, the minimum rate contracted for or received being 22 per cent. a month and the maximum 10 per cent.; that the rate actually received is frequently much less than that provided for in the contract; that the amount of interest is computed and included in the note when the loan is made, and the time the notes run after maturity, when they draw no interest, materially reduces the rate, and that these rates are necessary to the maintenance of the business at a reasonable profit. The respondent denies as specifically as they are alleged the general charges of using his office and license as an corruptly coercing payment and the allegaattorney to assist him in fraudulently and

Information by the People, on the relation of the Chicago Bar Association, against Leo W. Wheeler, under which defendant is required to show cause why he should not be disbarred as an attorney. Rule discharged. John L. Fogle, of Chicago, for relator. Charles R. Napier, of Chicago, for respond-tions as to the methods of conducting his


DUNN, J. Upon an information filed, a rule was entered against the respondent requiring him to show cause why he should not be disbarred. The relator now moves to make the rule absolute upon the respondent's


The information charges the respondent with being engaged in the "loan shark" business, so called, which is said to consist in the loaning of small amounts of money to clerks and other salaried employés, and to other persons, on chattel mortgages covering household goods, etc., at usurious rates of interest, from 10 per cent. upwards a month; that in the conduct of the business he fraudulently uses his office and license as an attorney to assist him in fraudulently and corruptly coercing payment, and requires applicants for loans to execute assignments for wages in blank, and notes with powers of attorney to confess judgment. Two specific instances of usurious loans are given, stating dates and amounts, and several persons are named who are alleged to have borrowed sums of money on which interest was charged and collected at a rate above 120 per cent. per annum, and a general charge is made, without specification, that on various loans made by the respondent interest was charged and collected by him at a rate of 400 per cent. per annum and more. Various allegations as to the methods of the respondent in the conduct of his business are made, which are of no importance, since they are denied by his answer. A copy of a notice to borrowers alleged to have been used to coerce payments is also set out.

The answer of the respondent admits that he is engaged in lending money, and that some of his loans are secured by assignments of wages, but denies that he lends money on chattel mortgages. It sets out a copy of the obligation of the borrower, containing a power of attorney to confess judgment and of the assignment of wages, which he uses.

business. He gives the particulars of the two specific transactions which are mentioned in the information, and denies collecting interest in excess of 120 per cent. per annum of the persons named in the information. He admits using the form of notice mentioned in the information as the last step before bringing suit, but denies that he has used the notice for the purpose of extorting attorney's fees or usury.

The motion of the relator is based upon the respondent's admission that the interest rates charged and received by him vary from 22 to 10 per cent. a month, and that he uses the notice mentioned in the information. The objection made to the use of this notice is that it is so drafted as to induce persons receiving it to believe that court action is being taken against them, and that it falsely claims attorney's fees to be due. The notice states the amount due for the balance of note and attorney's fees. The respondent in his answer states that it has never been used to extort an attorney's fee, that he has never received or demanded attorney's fees from persons indebted to him for loans, and that such persons have only paid attorney's fees when their notes have been placed for collection with attorneys not connected with the respondent's business, who prosecuted the suits and received the fees allowed by the court. The notice does not purport to indicate that any court proceedings have been begun, but, on the contrary, expressly states that, if the amount due is not paid by a certain time, suit will be brought forthwith.

The only question in the case is whether the lending of money at a usurious rate of interest is sufficient ground for the disbarment of an attorney. The answer is to be taken as true. No single circumstance of hardship or oppression is suggested, unless the mere fact of a usurious loan on an assignment of wages is such a circumstance. No individual is shown ever to have complained of the respondent's acts or supposed himself to have been wronged. The defend

ant's rates varied from 21⁄2 to 10 per cent. a 15. WILLS (8 684*)-EXECUTION BY COURTADVANCES BY TRUSTEE.

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month. The law permits pawnbrokers to
charge 3 per cent. a month, yet a pawnbro-
ker's business would not, of itself, prevent
his admission to the bar. A candidate for
admission to the bar must show that he is
possessed of a good moral character, and
one who has been admitted may be disbarred
if he has lost that character. Usury is not
an offense against the law in Illinois.
itself it is not immoral. It would be con-
trary to common experience to say that a
man who lends money at usurious rates is
for that reason alone not a man of good
moral character. If the respondent's an-
swer was not true, if he was conducting his
business in a fraudulent and oppressive man-
ner, if he was imposing upon the weak and
ignorant, and unjustly increasing the burden
of their debts, an issue of fact should have
been made. The facts appearing in the rec-
ord do not justify the disbarment of the

The rule will be discharged.
Rule discharged.

(259 Ill. 80.)

Where the trustee under a power coupled with a trust for the heirs of the testatrix made advances to two of them out of the estate, one of whom gave a release in full for his interest under the will, but the trustee made no declaration as to the distribution of the balance, those receiving the advances are entitled to a share in the distribution made by the court after the death of the trustee.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1614-1628; Dec. Dig. § 684.*] 6. APPEAL AND ERROR (§ 1078*)-WAIVER OF ERROR ERROR NOT RAISED IN ORIGINAL BRIEF.

Under the rules of the Supreme Court, error assigned but not raised in the original brief is waived, and thereafter cannot be raised by reply brief, argument, or upon a petition for a rehearing.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. & 1078.*]


Where complainants in an original bill, filed before the expiration of the time for contesting the probate of the will, prayed for distribution of the property per stirpes, they are not estopped to amend their bill so as to ask for a distribution per capita, after the time to contest the probate has expired; the answer to the original bill not having been filed until after the expiration of that time.

[Ed. Note.-For other cases, see Equity, & Cent. Dig. § 566; Dec. Dig. 274.*] WILLS (§ 421*) - PROBATE - COLLATERAL

WETMORE et al. v. HENRY et al. (Supreme Court of Illinois. June 18, 1913.) 1. WILLS (§ 693*)-CREATION OF TRUSTS-8.


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In such a case the power or trust should be construed according to the intention to be

gathered from the whole instrument.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 988; Dec. Dig. § 470.*]


Where a trustee to whom a testatrix devised her property to be distributed among her heirs, in such proportions as he thinks each of them worthy, dies before the trust is executed, the court will exercise the power according to the most equitable rule and distribute the property among the heirs per capita; there being nothing in the will to indicate that any distinction was intended to be made among


[Ed. Note.-For other cases, see Wills, Cent. Dig. $ 1655-1661; Dec. Dig. § 693.*] 4. WILLS (§ 693*) · EXECUTION BY COURT DISTRIBUTION PER CAPITA.

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The rule that, where it is necessary to refer to the statute of descent to ascertain the members of a class to whom a fund shall go, the division shall be per stirpes and not per capita does not apply to the execution by the court of a power coupled with the trust for the heirs of the testatrix which the trustee

fails to execute.

[Ed. Note.-For other cases, see Wills, Cent. Dig. $ 1655-1661; Dec. Dig. § 693.*]


A will previously probated is admissible in evidence in a suit for partition, even though bate, since the probate cannot be collaterally the answer attacked the validity of the pro


[Ed. Note. For other cases, see Wills, Cent..

Dig. §§ 904-910; Dec. Dig. § 421.*1

Appeal from the Circuit Court, Fayette County; Thomas M. Jett, Judge.

Bill for partition of real estate by Leslie R. Wetmore and others against B. W. Henry, Orvilla A. Lee, and others. Decree for the complainants, and defendant Orvilla A. Lee appeals. Affirmed.

Albert & Matheny, of Vandalia, for appellant. John A. Bingham, of Vandalia, for appellee Wetmore. Brown & Burnside and G. T. Turner, both of Vandalia, for other appellees.

CARTER, J. This was a bill filed by `appellees in the circuit court of Fayette county for the partition of real estate formerly Owned by Mary W. Lee, deceased. One of the defendants, Mark Watson, filed a crossbill, claiming that he was entitled to 100 acres of said land under an agreement with one Moses C. Wetmore to care for said Marv

W. Lee during her lifetime. The trial court, on demurrer, dismissed the cross-bill for want of equity. From that decree Watson prosecuted a writ of error to this court. The decree of the circuit court dismissing the cross-bill was affirmed. Wetmore v. Watson, 253 Ill. 88, 97 N. E. 237, 38 L. R. A.

Moses C. Wetmore, on April 23, 1910, under the authority granted by said will, paid to his brother, Justin J. Wetmore, $500, and took from him a release in full of all interest in the estate of Mary W. Lee. He also paid Orvilla A. Lee $996.75. In 1910, and before making any further distribution under said will, Moses C. Wetmore died. This bill was filed in March, 1911.

(N. S.) 331. Thereafter the complainants [ amended the bill, asking that the lands be divided per capita among the heirs of Mary W. Lee instead of per stirpes, as theretofore prayed. After a hearing the court found that the land should be partitioned per capita among the five heirs at law of Mary W. Lee, who were, at her death, Orvilla A. Lee, a sister, Leslie R. and De Laskie Wetmore, sons of Reuben Wetmore, a deceased brother, Appellant contends that the real and perand Moses C. Wetmore (who was named as sonal estate should be distributed in accordtrustee in her will) and Justin J. Wetmore, ance with the statute of descent and that sons of John J. Wetmore, a deceased brother. the heirs should take per stirpes. She also It appears from the record that Justin J. contends that Justin J. Wetmore, one of the Wetmore had already received $500 and Or- nephews of said Mary W. Lee, having revilla A. Lee $996.75, and the decree found ceived $500 from the trustee and having givthat they should each be debited in the divi- en a release therefor in full of all his intersion with the sum so received by them, re-est in the estate, forfeited all right to any spectively. This appeal is from that decree. further interest. Mary W. Lee died testate March 17, 1910, leaving about 600 acres of land and some $3,500 in personal property; the entire assets being valued at approximately $35,000. She left no surviving husband, children, or descendants of children. After providing for the payment of her debts and funeral expenses, she devised all the rest, residue, and remainder of her property, both real and personal, to Moses C. Wetmore, a nephew, who was a man of large property and business interests in St. Louis, Mo. Judge B. W. Henry was appointed executor. The provisions of the will necessary to be considered are the second, third, and fourth clauses, which read as follows:

"Second. I give, devise and bequeath to my nephew, Moses C. Wetmore, of the city of St. Louis, state of Missouri, all the rest and residue of my property, both real and personal and wheresoever situated, in trust, nevertheless, for the purposes of carrying out the instructions herein given. He shall make such distribution of my property among my heirs at law in such proportions as he in his discretion shall deem each of them worthy, as I have the utmost faith that he will divide my estate in an equitable manner among my heirs. I also direct my trustee, before making above stipulated distribution, to dispose of to those persons not of kin to me, remembrances, bounties, gifts and donations as he in his judgment may see fit, but all of the said property disposed of to persons not of kin to me shall not exceed three (3) per cent. of the value of my estate, and this latter disposition may be made in money, lands, goods or chattels.

"Third. My said trustee shall make distribution and division of all my property within two (2) years after this will has been probated.

"Fourth. That portion of my property, both real and personal, not partitioned, divided or given away or paid out within the said two (2) years, shall be deemed to be the proportion reserved by my said trustee for himself, as I have full faith that he will not

[1] The will of Mary W. Lee created a power coupled with or in the nature of a trust in Moses C. Wetmore to dispose of the property specified among the heirs of the testatrix, including himself. Such power so given is considered a trust for the benefit of the parties designated. 1 Perry on Trusts (6th Ed.) § 248; Hawthorn v. Ulrich, 207 Ill. 430, 69 N. E. 885; Harding v. Glyn, 1 Atk. 469.

[2] In cases of this kind the powers or trusts should be construed according to the intention of the parties to be gathered from the whole instrument. 1 Perry on Trusts (6th Ed.) § 248. So construed, we think the trustee, Moses C. Wetmore, had he acted before his death, could have distributed the property in such proportions as in his discretion he might decide. Hawthorn v. Ulrich, supra; 3 Pomeroy's Eq. Jur. (3d Ed.) § 1002.

[3] The trustee having failed, before his death, to distribute the property so left to him in trust, the court "will put itself in the place of the trustee and will exercise the power by the most equitable rule." 1 Perry on Trusts (6th Ed.) § 249. "Where a power in relation to the distribution of a fund is conferred by the testator upon a trustee, the court will place itself in the position of the trustee, if the discretion of the latter is to be governed by some rule or state of facts which the court can inquire into and apply as effectually as a private individual could do. In such case the court 'can look with the eyes of the trustee' and substitute its own judgment." Glover v. Condell, 163 Ill. 566, on page 594, 45 N. E. 173, on page 182 (35 L. R. A. 360).

It is clear from the will that it was not the purpose of the testatrix to designate any particular division to be made of the property. There is no suggestion that any one person be given more than any other or that any distinction be made among the heirs at law. The proportion is left entirely to the judgment of the trustee. The court, therefore, has nothing to serve as a guide by

heirs at law over any other. In such cir- not appointed is held by the authorities to cumstances "it is a settled rule that a court go as it would have gone in default of any


of equity, in enforcing the power on behalf of the beneficiaries, will also decree an equal distribution of the property among all the persons constituting the class." 3 Pomeroy's Eq. Jur. (3d Ed.) § 1002. "Generally, if the power is left unexecuted by the donee, the court will execute it as a trust by dividing the fund equally among the objects or persons in favor of whom it was given or from whom the selection might have been made on the ground that equality is equity." 1 Perry on Trusts (6th Ed.) § 255. The same author, in section 257 of the same volume, says: "Intimately connected with this subject is the inquiry whether courts will execute the power of distribution among the persons intended by distributing per capita or per stirpes. * * If there is no rule in the gift which can apply to determine the proportions, the court will make the distribution per capita, and everybody within the rule will take equally as tenants in common." To the same effect are Hoey v. Kenny, 25 Barb. (N. Y.) 396; Longmore v. Broom, 7 Ves. Jr. 124; Doyley v. Attorney General, 2 Eq. Cas. Abr. 194; Penny v. Turner, 2 Phill. Ch. 492; Sugden on Powers (8th Ed.) 601; 22 Am. & Eng. Ency. of Law (2d Ed.) 1127, 1128. No rule is found in the will which the court can apply in determining the proportions for distribution. The class of beneficiaries fixed by the will are the heirs of the testatrix. The trust estate must therefore be distributed per capita among all such heirs.

appointment. 22 Am. & Eng. Ency. of Law (2d Ed.) 1145; Alloway v. Alloway, 4 Dr. & War. 380; Wombwell v. Hanrott, 14 Beav. 143; Wilson v. Piggott, 2 Ves. Jr. 351; Walmsley v. Vaughan, 1 De G. & J. 114. The rule as laid down in these authorities appears to be based on the theory that, while the trustee has declared what shall be the portion of the one receiving his share, yet such trustee has made no declaration as to the distribution of the balance, and the court will not say that part of it might not still have gone to the one who has been given a portion. The chancellor, therefore, rightly held that Justin J. Wetmore and Orvilla A. Lee were entitled to share in the distribution of the balance of the funds not distributed by the trustee named in the will.

[6] Whether the trial court erred in its finding in the decree that Justin J. Wetmore and Orvilla A. Lee should account for the funds they have already received cannot be raised on this record. Justin J. Wetmore did not assign error on that point. While Orvilla A. Lee did assign such error that question was not raised in her original brief. Not having been thus raised, under our rules it cannot be thereafter raised by reply brief, in oral or printed argument or on a petition for rehearing. Not having been raised in the brief, the point was waived. Spring Valley Coal Co. v. Buzis, 213 Ill. 341, 72 N. E. 1060; Litz v. Village of West Hammond, 230 Ill. 310, 82 N. E. 634.

[7] Counsel for appellant further insist that the appellees are estopped from claiming a per capita distribution of the lands mentioned in the amended bill as the original bill asked for a per stirpes distribution, and this amendment was made after the year expired in which to file a bill to contest the will. Mary W. Lee's will was admitted to probate in the county court of Fayette coun

[4] The argument of counsel for appellant that, in order to ascertain the persons who constitute the class to whom the fund is to go, it is necessary to refer to the statute of descent, and therefore, under Kelley v. Vigas, 112 Ill. 242, 54 Am. Rep. 235, Kirkpatrick v. Kirkpatrick, 197 Ill. 144, 64 N. E. 267, and other similar decisions of this court, the distribution should be per stirpes on the factsty April 16, 1910, and the last day under the in this record, cannot be sustained. In those cases the will itself provided for an equal distribution among the heirs at law, and there was no attempt there to construe a power coupled with a trust which the trustee failed to execute, as he did in this case. The authorities on this question in other jurisdic-time for contesting the will had expired. We tions seem to be a unit. We deem it our duty to follow them, as the chancellor did in the court below.

statute for starting a contest was April 16, 1911. The original bill for partition was filed in the circuit court of Fayette county March 31, 1911, but Orvilla A. Lee, whose counsel raised this question, did not file her answer until May 11, 1911, some 25 days after the

think it is apparent that Orvilla A. Lee is not placed in a more disadvantageous position because the bill was thereafter amended. [5] The further question remains to be On the facts in this record, we do not think considered whether Justin J. Wetmore, hav-appellees were estopped from asking, by an ing been given $500 by his brother under the authority of the trust and having executed a release in full for his interest in the estate of Mary W. Lee, is entitled to share in this distribution. Orvilla A. Lee did not release her interest in the estate when she received the $996.75 paid her, so that question does not arise in her case. When there has been a partial execution of the power, the portion

amended bill, for a distribution of the funds per capita. There is nothing shown on this record to indicate that it would be contrary to. equity and good conscience to permit appellees to recover under the amended bill.

[8] It is further contended that the court erred in admitting the will of Mary W. Lee in evidence. It appears that appellant, Orvilla A. Lee, sought to contest said will in

it was claimed the probate court erred when it admitted the will to probate by reason of the fact that Mary W. Lee executed only the last page of said will; that the first page was not before her at the time the will was executed. The probate of a will cannot be attacked in a collateral proceeding. Slick v. Brooks, 253 Ill. 58, 97 N. E. 250, and cases cited. The court did not err in its ruling on this question. The further point in their briefs made by counsel for appellant that the description of part of the real estate as given in the decree did not conform to that given in the bill has been obviated by appellees filing, by leave of court, an amendment to the record.

Donald Grover, of Chicago, for appellant. B. M. Shaffner, of Chicago, for appellee.

DUNN, J. This is an appeal from a decree requiring the appellant to convey to the appellee certain real estate in the city of Chicago.

[1] Neither the pleadings nor the decree have been abstracted, and we have before us only the evidence, from which it appears that the premises in question were purchased and the consideration therefor paid by the appellee, but at his request the title was conveyed to the appellant, who was the fatherin-law of the appellee's brother, and who claims not to have known of the conveyance

The decree of the circuit court will be to him until some time after it was made. affirmed.

Decree affirmed.

(259 Ill. 146)


Where the purchaser who pays the consideration for land has the conveyance made to another, a trust results in his favor, even though the grantee had no knowledge of the


[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 102, 103; Dec. Dig. § 72.*]


Under these circumstances a resulting trust arose in favor of the appellee. A trust results from the fact that one man's money has been invested in land and the title taken in the name of another. It is immaterial whether the purchase was made by the one or the other, and it may have been made by either without the knowledge of the other. If the fact exists that one man's money paid for the land and the title was taken in another, a trust is raised in favor of the person whose money was used to purchase the land. Bruce v. Roney, 18 Ill. 67; Emmons v. Moore, 85 Ill. 304; Brennaman v. Schell, 212 Ill. 356, 72 N. E. 412.

[2] It appears that at the hearing a motion was made to file an amended answer. The nature of the amendment does not appear, Since the statute of frauds (Hurd's Rev. but it is stated in the brief that it sought to St. 1911, c. 59, § 9) expressly provides that re-set up the statute of frauds. It was not sulting trusts need not be in writing, it is not set up the statute of frauds. error to deny a motion to amend an answer so error to deny the motion, for the statute of as to set up the statute of frauds in a suit to frauds has no application to resulting trusts, require the trustee of a resulting trust to con- but expressly provides, in section 9, "that vey the property. resulting trusts or trusts created by construction, implication or operation of law, need not be in writing, and the same may be proved by parol."

[Ed. Note. For other cases, see Trusts, Cent. Dig. § 93; Dec. Dig. § 632.*]



Where the abstract does not show the sues made by the pleading, and the briefs do not claim that the question of the intent of the purchaser to defraud his creditors by having the land conveyed to another, was presented at the trial, the question cannot be considered by the Supreme Court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*] 4. APPEAL AND ERROR (§ 1050*)-HARMLESS OF IMMATERIAL EVI



In a suit to compel the trustee of a resulting trust to convey the land, it was not prejudicial error to admit oral testimony as to the purchaser's title to the land given in exchange, since his title was immaterial.

[3] It is also argued that the appellee caused the property to be conveyed to the appellant to defraud his creditors and to defeat a claim of his wife for alimony. Since the abstract does not show what issues were made by the pleadings, it does not appear that this question was presented by them. It is not claimed in the briefs that it was so present

ed, and the record shows that it was not. It could not, therefore, be considered by the Dorman v. Dorman, 187 Ill. 154, 58 N. E. 235, 79 Am. St. Rep. 210.


It is contended that the proof shows that the title was held by the appellant as security for the performance of the terms of a lease of certain property of the appellant's wife of which the appellee was a tenant, but the court found to the contrary, and we reAppeal from the Superior Court, Cook gard that finding as according to the eviCounty; M. L. McKinley, Judge.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]

Suit by Martin S. Froemke against Gottfried S. Marks. Decree for the complainant, and defendant appeals. Affirmed.


[4] Complaint is also made of the action of the court in receiving oral evidence of the complainant's ownership of real estate. This

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