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of the testator's father; avers that the three children of Charles, together with any other children who may be born to and survive appellants, will be entitled to the entire estate after payment of debts; that the testator failed to make any disposition of the reversion and remainder in the event of the death of both complainants if there should be children of either or both of them surviving.

The court construed the will to mean that the testator intended to give appellants a life estate, and devised the fee simple in remainder to their children born or who may be born before appellants' death, subject to being divested by the death of all appellants' children before appellants' death, and that the intent was to devise to the heirs of the testator's father's blood a contingent inter

the death of the testator, the only persons | being at the time, or the lineal descendants answering the description of “heirs-at-law of my father's blood only"; that they are of full age, married; and that Charles has three living children. The bill alleges appellants are in possession of the property; that parcels of it situated in the business districts of Chicago and Kankakee are unimproved; that the taxes and assessments are high, and no income is derived from it; that the prop erty cannot be sold or leased to advantage on account of objections to appellants' title based on the claim of the collateral kindred of the testator; that certain improved tracts need further improvement, but appellants cannot afford the money to improve them, and are unable to sell or lease to advantage on account of the claim of the collateral kin of the testator that they are interested in the title. The bill alleges the will gave appellants a life estate in the property, but did not dis-est, which will vest in them in the event of pose of the reversion, which descended to them as sole heirs of the testator, and that they hold the title in fee, but their title is clouded by the attempted gift to the testator's heirs at law of his father's blood only. The bill alleges the testator's intent was to make the devise over only upon the death of both appellants without issue during the continuance of the life estates devised to the widow and daughter, which contingency cannot now happen, as appellants have both survived the widow and daughter. The bill alleges that the children of Charles have no real interest in the property. A guardian ad litem was appointed for the known and unknown defendants who were minors or otherwise incompetent, and filed a formal answer.

Alexis Fortin, as representative of the collateral kin of the testator, answered, deny ing that the will made no disposition of the reversion, and denying it descended to appellants. The answer denies appellants own the land in fee simple, and admits he and other defendants similarly situated claim a contingent interest, if both appellants die childless; denies the intent of the testator was to make a gift to persons answering the description therein only in the event of both appellants dying without surviving child or children during the life estates of the widow and daughter, and avers the testator's intention was to devise to the heirs at law of his father's blood only the reversion and remainder in case both appellants died at any time without surviving children; avers that the will disposed of the reversion and remainder, but that it is impossible to ascertain the takers of it until the death of appellants, and that defendants and others similarly situated now have a contingent interest in the reversion and remainder; avers that the intent of the testator was to give appellants a life estate, and, upon their death childless at any time, it was to pass to the

both appellants dying childless, and until such time as both appellants die the intention of the testator was that appellants should hold the income from the property as trustee for themselves and the principal as trustees for the remaindermen.

It is apparent from reading the will that the language used by the draftsman is awkward, and does not express the full intention of the testator. Something must be supplied in order to arrive at that intention. The first clause of the fourth paragraph makes the devise over, after a life estate to appellants, dependent upon their dying childless "before my said wife and daughter shall depart this life." Appellants contend the words above quoted should be read into the second clause of the paragraph, making the devise over upon the death of both appellants without children surviving dependent upon appellants dying childless before the death of the wife and daughter. Appellees contend that the testator must be presumed to have intended to dispose of all his estate, and by implication the contingent remainder in fee was devised to appellants' children.

[1-5] The general and fundamental rule for construing wills is that the intention of the testator, to be determined from the entire will, is to be given effect, unless contrary to public policy or established rules of law. The general rule also is that the testator is presumed to have intended to dispose of all his property, and leave no part of it intestate. Courts will adopt any reasonable construction rather than hold part of the estate intestate. Where the context of the will indicates what the testator's intention was, words may be read into the will to effectuate that intention, which is contrary to the general rule that the intention must be gathered from the language expressed in the will. A gift by implication will also sometimes be sustained where the intention of the testa

(158 N.E.)

the language of the will that a contrary in- testator's intention was in not disposing of tention cannot be inferred. Before the gift the fee, it seems to us more reasonable to over of the remainder to appellants' chil- say he desired his estate to go to appellants, dren, in the first clause of the fourth para- if they survived the preceding life tenants. graph, could take effect, one of them was re- At least no gift, by implication, of the required to die childless before the preceding mainder in fee can be inferred from the lanlife tenants, the widow and daughter, should guage of the will. Pontius v. Conrad, 317 have died. Both appellants survived that | Ill. 241, 148 N. E. 17; Bond v. Moore, 236 event, and the attempted devise over under Ill. 576, 86 N. E. 386, 19 L. R. A. (N. S.) 540. the first clause of the fourth paragraph can The succession to the real estate provided by never take effect. If the taking effect of the the statute of descent (Smith-Hurd Rev. St. attempted devise of the remainder by the 1925, c. 39) can only be superseded by a valid second clause upon the death of both appel- testamentary disposition different from the lants childless means their death "before my statute. Mills v. Teel, 245 Ill. 483, 92 N. said wife and daughter shall depart this life," E. 310; Wiltfang v. Dirksen, 295 Ill. 362, then that contingency can never happen, and 129 N. E. 159. In the construction of wills the attempted devise over of the remainder the law favors the heir, and an ambiguity must fail. To our minds it seems clear from should be resolved in favor of the heir in the context of the will that it was the in- preference to persons not so closely related tention of the testator to make the devise to the testator. Kohtz v. Eldred, 208 Ill. over in the second clause dependent upon 60, 69 N. E. 900; Dollander v. Dhaemers, 297 the same conditions expressed in the first | Ill. 274, 130 N. E. 705, 16 A. L. R. 8; Smith clause of paragraph 4, and in the devise over upon the death of both appellants childless the testator meant, if they both die childless before the death of the preceding life tenants, then the gift over was to take effect. Contrary to the general rule, where the context of the will requires reading into it words to give effect to the testator's intention, it may be done when the omitted words are necessary to carry out the evident intent, as the main purpose of construing wills is to give effect to the intention of the testator. The supplying in the second clause of the fourth paragraph of the words "before my said wife and daughter shall depart this life" is justified by the authorities. McClure v. McClure, 319 Ill. 271, 149 N. E. 748. Quoting from Jarman on Wills, this court said, in Glover v. Condell, 163 Ill. 566, 45 N. E. 173, 35 L. R. A. 360:

"It is established that where it is clear on the

face of a will that the testator has not accu

rately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context."

[6] The rule was applied in Williamson v. Carnes, 284 Ill. 521, 120 N. E. 585, and Duryea v. Duryea, 85 Ill. 41. The condition, therefore, upon which the devise over of the remainder would take effect can never happen, because both the preceding life tenants are dead, and both appellants are still living. The remainder in fee after the devise of a life estate to appellants was not disposed of by the will, and it descended to appellants as intestate estate. Neither their children nor the heirs at law of the testator's father's blood have any contingent interest in the property. The title in fee is in appellants.

[7-9] If we are to speculate upon what the

v. Garber, 286 Ill. 67, 121 N. E. 173.

[10] It does not seem to be reasonable to hold that it was the intention of the testator to tie up the vesting of the fee until the death of both appellants. Part of the property is vacant, and produces no income. The decree finds the taxes and assessments upon it are high, and that, on account of the claim of appellees of an interest in the title, it cannot be improved, sold, or leased to advantage. Under the construction contended for by appellees and decreed by the court, the possibility of any interest vesting in them is very remote. Appellants are both married. One of them has three children now, and the other one has been married a short time. The law favors the vesting of title. If the intention of the testator were clear that the remainder in fee should not vest until the death of both appellants, however unreasonable that might be, it would have to be given effect. As we understand and construe the will, no remainder in fee was devised to any one, and we cannot imply a devise which would hold up the vesting of the fee to such a remote period.

[11] We do not think the fifth paragraph, that the devise is to be treated as a trust fund and trust estate for the purpose of insuring appellants' support, education, and the comforts of life during their natural lives, requires a different construction of the will from that we have given it or shows a different intent of the testator from that we have attributed to it. A similar clause to that is found after each preceding gift of a life estate.

Our construction of the will is contrary to the decree of the superior court, and its decree is accordingly reversed, and the cause remanded, with directions to that court to enter a decree in accordance with the views of this opinion.

Reversed and remanded, with directions.

(327 111. 270)


(No. 18101.) Supreme Court of Illinois. Oct. 22, 1927.

1. False pretenses

8-Misrepresentation of past fact, knowingly made to induce another to part with property, is "false pretense" (Cr. Code, § 253).

Any misrepresentation of past fact by party, knowingly made to induce another to part with his property, is "false pretense," under Cr. Code (Smith-Hurd Rev. St. 1925, c. 38) § 253. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, False Pretense.]

2. False pretenses 15-Misrepresentation as to ownership of property sold is one which, if knowingly made, is "false pretense" (Cr. Code, § 253).

Misrepresentation as to title or ownership of property sold is one which, if knowingly made, is "false pretense" within meaning of Cr. Code (Smith-Hurd Rev. St. 1925, c. 38) § 253.

3. False pretenses 38-Under indictment charging obtaining property by confidence game, proof that defendant obtained money by false pretenses does not sustain charge.

Under indictment charging obtaining of money or property by confidence game, proof merely that defendant is guilty of obtaining money by false pretenses does not sustain charge.

4. False pretenses 16-To be guilty of "obtaining property by confidence game," defendant must obtain confidence of victim by false representation and swindle him.

To sustain charge of obtaining money or property by confidence game, it must appear as an element of transaction that defendant obtained confidence of victim by some false representation or device and swindled him.

5. False pretenses 16-Confidence game statute does not cover business transactions between parties on equal footing, though there is fraud subjecting one party to civil or crim

inal action.

Statute relating to confidence game does not cover business transactions between parties on an equal footing, even though there is such fraud or misrepresentation as will subject one of parties to civil or criminal action.

6. False pretenses 49(5)-Evidence that parties dealing with accused relied on false statement that he owned formulas sold them, and had not sold them to others, was not sufficient to establish confidence game.

Evidence that parties buying formulas from accused relied on truthfulness of his false statement that he owned formulas and had not sold them to others was not sufficient to establish confidence game, where buyers investigated his formulas and found there was merit in them.

7. False pretenses 49 (3)-Evidence did not support conviction for obtaining money by means of confidence game by selling formulas previously sold to others.

Evidence held not to support conviction for obtaining money and other property by means of confidence game by selling formulas for waterproofing materials which defendant had previously sold to others, since evidence did not show that confidence of victims was obtained by false representation or device.

Error to Criminal Court, Cook County; Worth E. Caylor, Judge.

Al. L. Schneider was convicted of obtaining property by means of confidence game, and he brings error. Reversed.

Otto Schusterman, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., and Robert E. Crowe, State's Atty., of Chicago, and Merrill F. Wehmhoff, of Springfield (Edward E. Wilson, of Chicago, of counsel), for the People.

DUNCAN, J. Plaintiff in error, Al. L. Schneider, herein called the defendant, was convicted in the criminal court of Cook county under the second count of an indictment charging that on February 18, 1926, he did unlawfully, fraudulently, and feloniously obtain from the Haag-Bigler Chemical Company, a corporation, a large amount of money, goods, and personal property by means of the confidence game, etc. Motions for a new trial and in arrest of judgment were overruled, and he was sentenced to the penitentiary in accordance with the verdict of the jury. He prosecutes this writ of error.

The evidence for the people was, in substance, the following: The defendant was the owner of certain secret formulas for waterproofing, fireproofing and rustproofing any material and for making any material heatresisting and acid-resisting. On December 29, 1924, he entered into a contract with Walter A. Gause, who, in consideration of the agreements and covenants entered into by the defendant, was to exploit defendant's formulas, and for that purpose was to organize a corporation having 800 shares of common stock, no par value, and 250 shares of preferred stock of the par value of $100. The agreement provided that upon the organization of the company the defendant was to be employed as a chemist for a period of not less than six months, at a salary not less than $35 per week and traveling expenses. Gause was to have the 100 shares of common stock to be issued to the defendant, to be held by him as trustee to secure him for any advances made to the defendant, and the defendant was to receive a royalty of 22 per cent. of the net sales of the product made from his formulas. The defendant's covenants and agreements were, that he would transfer his formulas to

(158 N.E.)

development of the business, with the understanding that, should it appear to him at any time that the business was becoming a losing or unprofitable venture, he had the right to cease advancing money for the developing of the business and to cease the payment of the

Gause and all other formulas that he might I cent. of the capital stock of the corporation. discover or develop during the course of their Both Evans and the defendant were to give agreement; that he would instruct him in their time and efforts to the business if the the matter of preparing, mixing, and using same should become profitable. Evans was to the same; that he would, upon demand, fur-render reasonable financial assistance to the nish him or his assigns all details of all new formulas that he might discover or work out, and furnish the correct method of mixture and preparation of the same and satisfactorily demonstrate the same to him. He covenanted and agreed that the formulas were his own property and that no other person had any in-salary of the defendant. Evans did not see terest therein, that they had not been in use by any other person prior to the agreement, and that he would devote all his time and efforts to the use and benefit of Gause and the corporation. It was mutually agreed that the contract between them was contingent upon the condition that the formulas would fully comply with such reasonable tests as Gause might give them; that the product could be manufactured commercially; that the representations with reference to the formulas made by the defendant were true; and that, in the event of their not proving so, Gause, at his option, might at any time terminate the agreement.

After the contract was signed by Gause and the defendant, Gause organized the Tyte | Manufacturing Company of New York and paid the defendant $35 per week until April 25, 1925. The defendant also received $250 in royalty from the company. In April, 1925, Gause left for England. By power of attorney he authorized Harry T. Evans to dissolve the Tyte Manufacturing Company and to handle all of Gause's business. Gause delivered the formulas which the defendant had delivered to him, to Evans. After Gause had departed for England, the defendant, claim- | ing that Gause had abandoned the contract, tried to sell the formulas to the Buffalo Specialty Company. In July, 1925, he learned that the formulas had been transferred to Evans by Gause. The defendant complained to Evans that he had not been treated fairly by the Tyte Manufacturing Company or by Gause, and a new agreement was entered into between Evans and the defendant on July 17, 1925. In consideration of $150, which was paid to the defendant by Evans out of the funds of the Tyte Manufacturing Company in his possession, the defendant transferred to Evans all his interest in the formulas he had sold to Gause, all his interest in the contract between himself and Gause, and all his interest in the Tyte Manufacturing Company. By the contract, the defendant was to work for Evans for $35 per week, with the understand ing that, should the business develop profitably, his salary would be increased to such extent as should seem fair and reasonable to Evans. Should a corporation be organized to conduct the business, Evans was to transfer or cause to be transferred to the defendant, without cost or expense to him, 5 per 158 N.E.-29

the defendant again for three weeks after he paid him the $150 for the formulas and $35 per week for three weeks' work. He did not discharge the defendant from his employment, as claimed by the defendant.

On January 29, 1926, the defendant entered into a contract with Kay H. Murray and the Haag-Bigler Chemical Company concerning his secret formula for waterproofing and weatherproofing. The contract provided that a copartnership, joint-stock company, or corporation, with the firm name to be agreed upon, should be formed by the defendant, Murray, and the Haag-Bigler Chemical Company as three respective units, and with equal onethird interest. The purpose and business of the organization were stated to be "to perfect, manufacture, market, and sell a certain secret formula of waterproof and weatherproof product originated and developed by Mr. Al. L. Schneider and heretofore his sole right and property." The defendant's agreement in the contract is that he will assign and deliver over to the other parties said formula and prove to their satisfaction that the same is successful, and will fully serve the purpose intended, that the defendant will further develop and perfect his other related chemical products, such as cleaners and rubber substitutes, etc., and that all such other products will become the property and business of the organization, to the mutual and equal profit of all concerned. The Haag-Bigler Chemical Company agreed that it would forthwith deliver a check or funds to the amount of $485, $100 thereof to be paid in advance, the remainder to be placed in escrow, to be paid promptly to the defendant as further consideration when satisfactory proof should be made that the waterproof product would serve its purpose, and the company was to have reasonable time to examine, apply, and demonstrate the product, such time to extend to February 6, 1926. The company, then engaged in a similar line of business, further agreed that it would not in any way enter the market with a waterproof or similar product, or in any way substitute a competitive product for the product aforesaid or for their later adopted products, and to keep all information imparted to it forever confidential. It was further stipulated in the contract that each party to it would serve the interests of the organization to the best advantage in

their various and most qualified capacities,, dry satisfactorily and were gummy and sticky and without expense or salaries, other than after eight days of drying. The defendant commissions and profits on their sales, until and one Freidenberg went to Detroit, Mich., such time as agreed to and authorized. Ex- and obtained a number of orders from the penses in the immediate progress of the com- Kresge stores. pany were to be paid out of the profits realiz- Bigler in his testimony said concerning the ed, and no member of the organization should formula, "We thought it was a good proposibe authorized, except in writing, to create | tion, and that is the reason we invested our liabilities or obligations until the organiza- money into it." He further stated that they tion was fully and finally perfected. knew at the time they gave Schneider the check for $385 that the formula did not dry as the defendant claimed it would; that they did not investigate to find out if any one else owned the formula, and expressed his opinion that the defendant's product was a very good one for raincoats. Murray testified that the defendant had been experimenting at the

On the day the contract was signed, the Haag-Bigler Chemical Company gave the defendant its check on the State Bank of West Pullman for $100, which was indorsed and collected by him as the initial payment according to the contract. On February 8, 1926, the chemical company, after having tested the product and formula, delivered to the de- | Haag-Bigler Chemical Company's factory for fendant its check for $385, which he collected as the final cash consideration provided for by the contract.

a week before they gave him the final check for $385; that he made tests of the product by putting it in a bucket of water in the Kay H. Murray, who is engaged in the busi- bottom of the lake; that he painted a nail ness of marketing new products and who is a with it and put the nail under the furnace, licensed lawyer, Vern W. Haag, president of and it did not rust; and that he (the witness) the Haag-Bigler Chemical Company and a had confidence in the article. Haag testified chemist who makes tests of chemical products, that the formula in itself was very good, that and Harry E. Bigler, part owner of the chem- the luster was very good, but that the drying ical company and a manufacturer of chemi- of the article was not quick enough to be prac cal products, testified for the people sub-tical. He further stated, if the article would stantially as follows: The defendant claimed dry within six or eight hours, it would be to have a secret formula for making a water-classed O. K.; and he also stated that they proofing compound which he had tested, and quit manufacturing the compound on the that he also had other formulas. On January day Harry T. Evans called them on the phone 23, 1926, he met Murray Bigler, and Haag, and and informed them the defendant had sold they talked about the formula. He told them his formula to him, and that they must stop that his product could be made for about 40 working the formula. cents per gallon, which was much cheaper than any other waterproofing compound on the market. He proposed to sell a one-third interest in that formula, keep one-third for himself, and set aside one-third for the sales efforts. They asked him if he had sold any part of the formula before that time, and he replied to them that he had not, and represented that he was the originator of it. On January 29, 1926, they had another meeting, and the defendant demonstrated to them his product for waterproofing. He showed them samples of silk, canvas, linen, and other materials which had been treated with his compound. He told them about a diving suit test that had been made on the Pacific Coast, and that canvas covered with his compound would make desirable diving suits. After they had made experiments with the compound, Haag and the other two witnesses found that it would not dry quick enough to be of practical value, and the defendant was informed of this, and, at their suggestion, he went to their plant for three weeks to work out a remedy or to find a practical dryer for the product. He told them that it was a question as to the kind of a dryer that should be used in the compound that would quicken the process. They later sold a small quantity of the compound to five different concerns, but the materials treated with the compound would not

[1-7] The foregoing is substantially all the material evidence for the people. We do not deem it necessary to set out any of the evidence offered by the defendant in his defense, for the reason that the evidence for the people clearly shows that the defendant is not guilty of the confidence game, as charged in the indictment. If he committed any offense at all, it was that of obtaining money by false pretenses, in violation of paragraph 253 of the Criminal Code (Smith-Hurd Rev. St. 1925, c. 38), which provides that whoever, with intent to cheat or defraud another, designedly, by color of any false token or writing or by any false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money, personal property, or other valuable thing, shall be fined in a sum not exceeding $2,000 and imprisoned not exceeding one year, etc. Any misrepresentation of a past fact by a party, knowingly made to induce another to part with his property, is a false pretense. The misrepresentation made by the defendant in this case, if one was made by him, was as to his title or ownership of the formula sold by him to Murray and the Haag-Bigler Chemical Company. Such a misrepresentation, if knowingly made, is a false pretense within the meaning of the statute, and this court has so declared. Keyes v. People, 197 Ill. 638, 64

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