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the mark the statute directs him to make or not."

Village of Richwood v. Algower, 95 Ohio St. 268, 116 N. E. 462, also follows the rule of liberal construction. Judge Jones, speaking for the court, says, on page 274 (116 N. E. 463):

so far as that exact question is concerned. On page 293 (136 N. E. 924) of the opinion in takes to define what is a technical error, the Devine Case Judge Wanamaker underwhen the voter undertakes to make a cross mark opposite a printed name. He says:

"Suppose the intending voter does not make a complete cross mark, but only makes three"Suffice it to say that with a view to preserv-fourths of it, or two-thirds of it. Suppose he ing the right of elective franchise to the citi- fails to put the cross mark wholly within the zen elector, in the absence of statutory provi- vacant space, but partly within and partly withsions invalidating the ballot, the courts of this out the vacant space. Clearly, this would be a country have generally adopted a rule of lib- technical error, technical departure or variation, erality for the purpose of ascertaining and safe- and should not invalidate the ballot." guarding the intention of the voter in the exercise of his constitutional privilege, and the Ohio statute above quoted emphasizes that feature when it provides that no ballot shall be rejected for technicalities which do not make it impossi-strokes of the pencil, yet, if the voter made ble to determine the voter's choice."

The recent case of Devine v. State ex rel., supra, is cited to support the doctrine of strict construction. The second proposition of the syllabus is:

"Section 5069 et seq., General Code, as to the marking of the ballot by the voter, are clearly mandatory in terms and intention, and should be substantially followed by the voters and the election authorities."

The scope and application of this syllabus must be confined to the case there under consideration. Upon this proposition the Supreme Court has spoken.

Keeping in mind that the mark the voter was called upon to make in the case just cited was a cross mark, consisting of two

one stroke and a stagger at the second stroke, this was a substantial compliance, and the ballot was legal.

Here the voter had written the name, consisting of many strokes, and had failed only in making the cross mark.

Neither in the syllabus nor in the opinion in the Devine Case is there any attempt to define what constitutes a substantial performance of the provision for the writing in of a name on a ballot, nor what omission by the voter from full compliance with the statute will constitute a technical error. This court, therefore, is left to decide that question free from the syllabus and opinion of the Devine

In B. & O. Rd. Co. v. Baillie, 112 Ohio St. Case. 567, 148 N. E. 233, it was held:

"The syllabus of a decision of the Supreme Court of Ohio definitely states the law of Ohio with reference to the facts upon which it is predicated, and must be read in view of the facts found in such case."

The Devine Case involved a ballot marked by a cross mark made in black ink opposite a printed name. The ballot was rejected, for the reason that the black pencil statute was mandatory and exclusive.

In the instant case the marks upon the disputed ballots are in black pencil. So in this case the disputed ballots would pass muster

[6] In deciding this question, we have no hesitancy in declaring that the voter, by writing the name of the candidate in the appropriate space on the ballot, clearly indicates his intention to vote for the person whose name he has written, and that the failure of the voter to add the cross mark is a technical crror. We therefore hold that it was the duty of the board of elections to canvass and count said disputed ballots for Henry, and to issue a certificate accordingly. Judgment affirmed.

FERNEDING, KUNKLE, and ALLREAD, JJ., concur.

(158 N.E.)

(326 111. 442)
STEDMAN et al. v. TATE et al. (No. 17780.)
Supreme Court of Illinois. June 22, 1927.

Rehearing Denied Oct. 7, 1927.

1. Specific performance 28(1), 62-Daughter's agreement, settling dispute as to decedent's estate, to give her son half of property she received, held definite and specifically enforceable.

Equity will specifically enforce agreement settling dispute as to distribution of estate, as between decedent's daughter and wife and daughter of decedent's deceased grandson, providing that former, taking one-fifth of father's estate, should execute and deliver to her son, since deceased, instruments securing to him at her death one-half of property which she received, as against contention that law remedy was adequate and contract was too indefinite and uncertain.

2. Contracts 143-Courts will not make new contract.

ties.

Court will not make new contract for par

3. Contracts 147(1)-Court should place itself in position of parties, to effectuate their

intention.

It is duty of court of equity to place itself in position of parties, and to discover and give effect to their intention, so that performance may be enforced as parties intended when they made contract.

4. Specifio performance

22-Interests of persons purchasing from defendant, who had agreed to transfer interest in property at her death, held subject to such contract.

In suit to specifically perform agreement by which defendant had agreed to transfer property at her death, interests of purchasers from defendant, with actual or constructive notice, are subject to such contract, regardless of whether bill alleged necessity of resort to property sold to secure performance.

ance of an agreement executed during January, 1916, by Lydia M. Tate, her sister, Julia Cole, her three brothers, Albert, Charles, and Sherman Cole, and her son, Frederick Tate. All of the parties to the written agreement were the surviving children and only heirs at law of Samuel D. Cole, who died testate in October, 1913, except Frederick, who was his grandson and a devisee under Cole's will. The children of Cole became involved in litigation over his will and the division of his estate, and the contract entered into by his children and grandson, who were also all the devisees and legatees under the will, provided for the amicable settlement of the litigation, the setting aside of the will, the distribution and division of the entire estate, both real and personal, by Charles E. Hook and Edward C. Swift, who were named in the will as executors, and in the agreement as administrators or commissioners, for the purpose of making an equal division of the estate.

This same contract and all the parties thereto, except Frederick Tate, who died during that litigation, were before this court in the case of Cole v. Cole, 292 Ill. 154, 126 N. E. 752, 38 A. L. R. 719. That case was a bill filed praying that specific performance of this agreement be enforced, particularly against two of the children of Cole. We refer to that case for a more detailed statement

of facts, provisions of the will, and the agreement as set out. To the original bill filed in the case at bar Lydia M.. Tate filed a general demurrer, and, upon motion and leave granted, an amended bill was filed making additional parties defendants. Thereafter an additional amendment was made to the amended bill. The amended bill set out some of the provisions of the will of Cole, referred to the litigation between the children arising out of the Cole, will, and further set out the

Appeal from Circuit Court, La Salle Coun- agreement entered into by Cole's five children ty; Edgar Eldredge, Judge.

Suit by Ida Mae Stedman and another against Lydia M. Tate and others. From a

decree dismissing the suit, after demurrers to the bill were sustained, complainants appeal. Reversed and remanded.

R. A. Green, of Ottawa, for appellants. Boys & Osborn, of Streator, and Lee O'. Neill Browne, of Ottawa, for appellee Lydia M. Tate.

Rector C. Hitt, T. E. White, and Woodward, Hibbs & Pool, all of Ottawa, for other appellees.

FARMER, J. In May, 1925, Bell Tate and Ida Mae Stedman, the widow and daughter, respectively, of Frederick Tate, who died intestate in 1918, filed their bill in the circuit court of La Salle county against Lydia M. Tate, seeking to enforce the specific perform

Paraand his grandson, Frederick Tate. graph 10 of that agreement is set out in full in the bill and is as follows:

knowledge and deliver to said Frederick Tate, "Said Lydia M. Tate shall make, execute, acher son, such necessary written instrument or instruments as shall secure to him, at her decease, property equal in amount to that which is devised to him in and by said will of said Samuel D. Cole, deceased."

The amended bill further sets out that the administrators or commissioners, Hook and Swift, made an appraisement of the estate, and under the provisions of the agreement allotted to Lydia M. Tate 80 acres of land in La Salle county, valued at $22,000, and three lots in or near the city of Ottawa, Ill., valued at $4.900, and also delivered to her personal property or money in amount of $18,923.52; that after the decision of the Supreme Court in Cole v. Cole, supra, and the remandment of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
158 N.E.-7

that case to the circuit court of La Salle county, a decree was entered directing two of the children of Samuel D. Cole to execute and deliver deeds to the respective parties in accordance with the terms of the agreement; that in the suit just mentioned no issue of facts or law was made touching or concerning the construction to be placed upon paragraph 10 of the written agreement involved in the estate of Cole; and that no cross-bill was filed, by either Bell Tate or Ida Mae Stedman, asking that Lydia M. Tate be compelled to carry out the contract contained in paragraph 10. The decree, after remandment, however, did provide for the execution of certain deeds by Bell Tate and Ida Mae, the infant child of Frederick Tate, by her guardian ad litem, and that the same be delivered to Hook and Swift. The decree also provided for the payment of a fee of $200 for the guardian ad litem of Ida Mae.

The amended bill further alleged that the property allotted and delivered to Lydia M. Tate by Hook and Swift was her full share of the estate under the terms and provisions of the agreement; that the necessary conveyances were made by the children of Cole, but that the provision in paragraph 10 of the agreement, whereby Lydia M. Tate, the mother of Frederick, agreed to deliver instruments necessary to secure to Frederick, at her death, property equal in amount to that which was devised to him by the will of Cole, had not been carried out; that complainants are the only heirs of Frederick; that all his debts had been paid, and no administration had been had upon his estate; and that complainants, as his heirs, were entitled to all the rights which he had in his lifetime to enforce the contract against Lydia M. Tate, his mother. The amended bill further alleged that under the terms of the contract the daughter, Ida Mae, was in equity the owner of one-half of the estate allotted to Lydia M. Tate, subject to the latter's use of the same for her life, and that both complainants, the widow and daughter, were entitled to one-half of the money delivered to Lydia M. Tate as her share of the estate, subject to her life use of the same; that the consideration for the agreement by Lydia M. Tate in paragraph 10 of the contract to convey land and deliver money to Frederick was the relinquishment and giving up by him of the devise and bequest to him under the will of his grandfather, Samuel D. Cole; that her refusal to execute the instrument or instruments, and her denial of all rights of complainants in the property set off to her, and her conveyance of a portion of the real estate to certain parties, were a fraud upon complainants' rights; and that unless she be decreed to perform the contract, and unless she gives security for the payment of the money, the money will be lost to complainants, as her acts indicate she is willing to do

anything to defeat complainants' rights and to put it out of their power to be secured.. The bill further sets up the conveyance by Lydia M. Tate of the three lots to separate individuals, who are appellees in this suit.

The prayer of the bill in substance is that Lydia M. Tate be decreed to convey to the daughter, Ida Mae, the undivided one-half of the 80-acre tract of land remaining in the possession of Lydia, such conveyance to be subject to Lydia's use of the land for life; that complainants be decreed to be the owners of one-half of the sum of money received by Lydia as a further part of her share of the estate of her father, subject to her use of the same for her lifetime, and that it be decreed that she give security to complainants for the payment thereof at her death; that each of the grantees or persons interested in the three lots to whom conveyances were made by Lydia be directed to reconvey a one-half interest therein to Ida Mae, but that such grantee have the use thereof during the lifetime of Lydia, and that the mortgagee's interest in one lot be decreed not to be a lien on the one-half interest therein of Ida Mae.

All the persons made defendants to the bill filed general demurrers, and all defendants except Lydia M. Tate filed special demurrers, wherein it was alleged that it was not shown by the bill that it was necessary to resort to the respective lots conveyed to defendants to secure the performance of the contract set out in the bill, nor was it shown that the property conveyed by Lydia was subject to any lien or claim of complainants, nor that defendants took title to the property with notice of any such lien. The demurrers to the bill were sustained, and, complainants abiding by their bill, a decree was entered dismissing the same for want of equity. From that decree Ida Mae Stedman and her mother, Bell Tate, have prosecuted an appeal to this court.

[1] The question involved in this case is whether the provisions of the agreement executed by the children and grandson of Samuel D. Cole are sufficient in equity to warrant the enforcement thereof as between Lydia M. Tate, the mother of Frederick Tate, and the latter's daughter and widow. It is the contention of her counsel that the bill fails to show complainants' remedy at law is not adequate; that the contract is too indefinite and uncertain as to the amount of property for which security is to be given, or as to the kind of and time when security is to be given, to warrant specific performance.

It may be well to remark, in passing, that Lydia M. Tate and her present counsel were interested in having this contract specifically performed in the case of Cole v. Cole, supra. This court said in that case:

"An examination of the contract will show that the purpose of it was, as we have said, to

(158 N.E.)

adjust family differences arising over the willest to be allotted to each child was to belong of Samuel D. Cole. The contract itself states to each of them in fee.

that it was entered into because of this fact and It was decided in Cole v. Cole, supra, that the fact that a bill had been filed to set aside the agreement of the heirs of the testator the will and codicil of the deceased, and that it

* *

Bell Tate, his widow, and Ida Mae, his only child, and they succeeded to all his rights and interests under the settlement agreement. The will gave Frederick's mother, Lydia M. Tate, a one-fifth part of the testator's estate for life, and at her decease one-half of the property was bequeathed to Frederick as his absolute property forever, and the other half was to be divided among the testator's other four children.

was the agreement of all the children of Sam- was for the equal distribution of his property uel D. Cole, and of Frederick G. Tate, a grand-among his children notwithstanding the will, son, that the estate of Samuel D. Cole should and that the effect of the contract was that be divided equally among the children without the property be distributed among testator's delay and at as early a date as possible. This children as intestate estate. The court held was the purpose of the contract, as we view it. contracts of that character were looked upon The contract recognized the existence of the will with favor by courts of equity. Frederick and provided for the distribution of the prop Tate, the father of Ida Mae Stedman, signeð erty equally, notwithstanding the will. It will be seen, therefore, that all devises under the settlement agreement. He died before the the will are subject to the control of the par-decision in the Cole Case was made, leaving ties entering into the contract in question. That being true, when the contract was entered into, the will was by it superseded and the property became intestate property. The contract, also, in addition to being one superseding the will, is a contract for the partition of the property of the estate, and we come to the question whether its performance should be decreed by a court of equity. A contract of this character is such as courts of equity look upon with favor and will grant enforcement thereof unless there be some insuperable bar to prevent. Frederick [Tate] was one of the parties to the contract. By clause 7 of the contract he agreed that 'the said parties to this agreement shall do and perform all things necessary to carry into effect this agreement and perfect the title in each other in and to the shares, respectively, so to be designated and allotted by said Swift and Hook.' Frederick in his lifetime was a party seeking the enforcement of this contract and stood ready to make the necessary transfers. He by his contract agreed that such contract should supersede the will and that the property of the estate of Samuel D. Cole should be treated as intestate property. As consideration therefor he was to receive certain property rights from his mother. By his contract he gave up all interest under the will. being true, he, and therefore his representatives, would be and are bound by his contract."

This

The settlement agreement provided that Hook and Swift, who had been named in the will as executors, should, after the payment of costs and some other expenses, divide the property equally among the testator's five children, and said five children agreed to, and did, make quitclaim deeds to their brothers and sisters, respectively, after such allotment. But for the signature of Frederick Tate to the contract the settlement could not have been made. In consideration of his releasing all claims he might have under the will so that the children might each receive a one-fifth interest in the estate, by paragraph 10 of the agreement Lydia agreed to execute, acknowledge, and deliver to Frederick "such necessary written instrument or instruments as shall secure to him, at her decease, property equal in amount to that which is devised to him in and by said will of Samuel D. Cole, deceased." Under the contract each of the children would receive his share in fee, whereas by the will some of them, and es

She has received the benefit of her son's relinquishment of his rights and interests under the will. Her intention could not have been otherwise than as she agreed in and by paragraph 10 unless it was her fraudulent desire to obtain the property of her son with no purpose or intention to compensate him or to comply with her father's request.

The contract executed by the parties interested in the will provided for the same means to divide the estate of Samuel D. Cole into five equal parts in value, as was contemplated under his will. Hook and Swift, as execu-pecially Lydia, were given only a life estate. tors, were directed by the will to divide the estate, real and personal, into five equal parts, and, if any child was given a less amount of land in value than the others, then such valuation should be equalized by adding personal property to such child's share, in order to produce five shares of equal value. Hook and Swift, under the provisions of the contract, were authorized to use the same method in dividing the entire estate among favor upon her contention that the agree the children of Samuel D. Cole. The only practical difference between the will and codicil thereto and the contract was that by the will and codicil the shares or interests to be set off to three of the children were to be held by each of them for life, and the respective shares of two of said children were in fee, while under the contract the share or inter

[2, 3] A court of equity cannot look with

ment is too uncertain or indefinite to be enforced. It is true courts will not make new contracts for parties, but it is the duty of a court of equity to place itself in the position of the parties whereby it may discover and give effect to their intention, so that the performance of the contract may be enforced as the parties must have understood and intend

which might be advisable. We only suggest that matter as to the personal estate, because it is contended by her the contract is too uncertain to enforce its performance.

ed when they made it. Field v. Leiter, 118, ceived. It may be that as to the personal esIll. 17, 6 N. E. 877; Hayes v. O'Brien, 149 tate some other method would suggest itself Ill. 403, 37 N. E. 73, 23 L. R. A. 555. We cannot assume Lydia intended to acquire from her son the benefits she received without intending to recompense him. Frederick has since died, and his mother now contends the contract is uncertain as to how she was to insure him to receive, at her decease, property equal in amount to that which was devised him by the will. In no uncertain terms she explicitly agreed to execute, acknowledge, and deliver to her son the necessary instrument or instruments to secure him, at her decease, the property. There is no uncertainty or ambiguity that she agreed to do that, and she agreed to do it by the necessary written instrument or instruments to effectuate that agreement. She did not agree that the payment of the money to Frederick should be made a lien on her father's property, which she received, and did not specify exactly how the payment should be secured, but agreed to execute, acknowledge, and deliver to Frederick the necessary written instrument or instruments to secure him.

It is also suggested that the contract of Lydia M. Tate was to secure to her son, at her decease, property equal in amount to that devised him by the will of his grandfather, and the contract does use that language; but it is clear it refers only to the devise of a onehalf interest in the life estate of Lydia. The will had been superseded and set aside, and the only devise made to Frederick was a onehalf interest in his mother's share devised her by the will. If the will had been sustained and the distribution made under it, Frederick was entitled to a contingent interest in the shares of two other children of Samuel D. Cole, in the event they died leaving no child or children. It is obvious, we think, that when the will was set aside, and the distribution made to the Cole children in fee, it never was intended that Lydia should secure to Frederick anything but the devise to him, upon her death, of the undivided one-half of the property devised her. There is no denial that the agreement made by Frederick and the children of his grandfather was understandingly entered into; that it has been approved by this court and has been fully performed, ex

We are warranted in holding that she contemplated that the execution of more than one kind of instrument might be necessary, as she received both personal and real estate. She now contends, also, that the agreement is uncertain, because it does not state when she should execute the necessary written instru-cept Lydia has not done what she agreed toment or instruments. It is obvious she could to insure her son, at her death, a one-half innot execute the necessary instruments until terest in the property she received. If she she had received the property from Hook and refuses or cannot be compelled to comply with Swift under the distribution of the Cole es- her agreement, her grandchild cannot receive tate. This, it is admitted, has been done. anything which her father intended to give, The widow and infant child of Frederick, aft- and which she herself agreed to insure to her er the remandment to the circuit court in son, and, he now being dead, his child has sucCole v. Cole, supra, were directed to make and ceeded to his rights in the agreement. She deliver deeds under the terms of the agree- has not executed the instruments she agreed ment. The death of Frederick was suggested to, and the fact that she has not done so, and in the litigation, and a guardian ad litem ap-now contends she cannot be compelled to do pointed to represent his infant child and was so, is equivalent to a repudiation of the conpaid a $200 fee for that service. When the contract had been fully performed, and the mother of Frederick had received and gone into possession of her one-fifth share of her father's estate, the time for her to execute the necessary written instruments to secure her son had arrived. It would be, we think, unreasonable and unjust to say that no time for performing her agreement was contem-contract were allotted to Lydia by Hook and plated or intended; but the reasonable con- Swift as part of her distributive share of her struction to be given to the agreement is that, father's estate. Such appellees acquired their when she was placed in a position to do so, interests in the lots with actual or construcshe would execute the necessary instruments tive notice of the rights of Frederick Tate to secure her son. This she could do by the and his heirs, and their interests are subject execution and delivery of a deed to one-half to the contract. Forthman v. Deters, 206 Ill. of the real estate, reserving to herself a life 159, 69 N. E. 97, 99 Am. St. Rep. 145; Cumestate therein, and execute and deliver to ap-berledge v. Brooks, 235 Ill. 249, 85 N. E. 197; pellants a contract, with security to be ap- 2 Pomeroy's Eq. Jur. (3d. Ed.) § 597, p. 980; proved by appellants or the court, for the pay-1 Story's Eq. Jur. (12th Ed.) § 789. ment, at her decease, of the one-half of the While the bill does not allege that it will

tract. We are of opinion the contract is sufficiently definite and certain that a court of equity can and will compel her to do what she explicitly agreed to.

[4] Some of the appellees are persons who have, by purchase or otherwise, obtained from Lydia M. Tate title to or an interest in three lots in or near Ottawa, which under the

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