Slike stranica
PDF
ePub

time of her death inherited from her no in- living at the time of my death." There were terest in the property.

The legal questions were raised by a demurrer to the bill, which assigned as special ground for demurrer: (1) That Mary Ellen McGinnis took no interest in the land under the will of her husband, and that her heirs took no interest in the property at her death; (2) that the fee could not be partitioned, for the reason that it would be in violation of a condition or restriction imposed by the testator. The court overruled the demurrer, and all the demurring defendants stood by the demurrer except one, who answered. The cause was heard by the court, and a decree for partition granted in accordance with the prayer of the bill. The defendants who demurred to the bill have prosecuted this appeal to this court.

[1, 2] We think Smith v. Winsor, 239 Ill. 567, 88 N. E. 482, and Black v. Jones, 264 Ill. 548, 106 N. E. 462, Ann. Cas. 1915D, 1173, are in point and sustain the construction of the will contended for by appellants. It is true there is some difference in the phraseology of the wills in those cases and the one here involved, but both those cases involved the question whether a devise of a remainder in fee to a testator's heirs where a life estate had been given the widow, and who, because there were no children nor descendants of children, was also an heir, included the widow, or meant only heirs of the blood of the testator. It is not contrary to law or public policy to devise an interest in the fee to one who has been given a life estate in the premises, and, where a devise is to the testator's heirs, it would prima facie include all heirs; but this technical construction of the word "heirs" will give way to the intention of the testator if it appears from the language of the will that it was not intended to include all persons who would answer that description, but only to a class of heirs. Blackmore v. Blackmore, 187 Ill. 102, 58 N. E. 410; Black v. Jones, supra. In Smith v. Winsor, supra, a life estate with certain powers was given a wife if she survived the testator, and at her death the remainder to descend to the testator's heirs at law in the proportions provided by the statutes of the state of Illinois. If the wife did not survive her husband, the property was to go at his death to the same persons and in the same manner. The wife survived him, but no child nor descendants of a child survived him, and upon the death of the widow the question arose whether she was included in the devise of the fee to the testator's heirs at law. The court held she was not, and that the term "heirs at law," as then used, meant heirs by blood. In Black v. Jones, supra, after giving the wife certain property in fee and placing the remainder of his estate in the hands of trustees with directions to pay the income to the widow, the testator directed that at the widow's death the trust estate be con

no children nor descendants of children of the testator, and after the widow's death the question arose whether she was intended by the testator as one of his heirs at law, and it was held that she was not, but as that term was used in the will it included only heirs of the blood. As we have said, the language of those wills differed from the exact language here used, but there was not such difference of language as to distinguish them from this case, and the general principles held to govern in those cases apply also in this case.

Aside from the fact of its being unusual to devise a person an interest in the fee of land which is given him to possess, use, and enjoy during his life, and the force and effect to be given that circumstance, we think there are some aids in the language of this will, though not of the most illuminating character, perhaps, which assist in arriving at the meaning intended by the testator in the devise of the fee to his legal heirs after the termination of the life estates. It clearly appears that the scheme of the testator for disposing of his property was: First, to provide for his wife if she survived him, which he did by giving her a life estate. Next he desired at her death his grandnephew, Robert Bell McGinnis, should have the use and enjoyment of his property during his life, but his life estate was postponed, if the wife survived the testator, until the termination of her life estate by death. If she died before the testator, Robert Bell McGinnis, came into possession of the property, by virtue of his life estate, immediately upon the death of the testator. After making these provisions and providing for the contingency of his wife's death before the death of the testator, he devised the fee, subject to the life estates, to his legal heirs. The fee is devised to the same persons whether the wife survived him or not. Certainly, if she died before the testator's death, she could take no interest in the fee, and no provision was made that her collateral kin and heirs should have any interest in the estate. It seems to us that the testator must have intended the term "legal heirs" to have meant heirs of his blood. He knew his widow could get no benefit from the property beyond the use and enjoyment of it during her life, and, if he had intended that those claiming an interest in the property now as her heirs should have any interest in the land, it seems he would have used language evidencing such intention.

The will contains no restriction against the partition of the fee subject to the life estates, and we have repeatedly held this may be done. Cummins v. Drake, 265 Ill. 111, 106 N. E. 456; Whitaker v. Rhodes, 242 Ill. 146, 89 N. E. 677; Deadman v. Yantis, 230 Ill. 243, 89 N. E. 592, 120 Am. St. Rep. 291.

The decree of the circuit court is reversed,

sustain the demurrer, and for further proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded, with directions.

(274 Ill. 91)

RIZZO v. CATHOLIC ORDER OF FOREST-
ERS. (No. 10535.)

(Supreme Court of Illinois. June 22, 1916.) 1. APPEAL AND ERROR 42—APPELLATE JU

RISDICTION.

Appellate Court Act, § 8 (Hurd's Rev. St. 1915-16, c. 37, § 25), authorizing either appeals or writs of error in cases decided by the Appellate Court involving less than $1,000 when accompanied by certificates of importance, was repealed by Practice Act (Hurd's Rev. St. 1915-16, c. 110) § 121, providing for appeals upon certificates of importance and certiorari or similar proceedings in certain cases.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 159, 160; Dec. Dig. 42.1 2. APPEAL AND ERROR 5-FORM-WRIT OF

ERROR NOT PROPER MODE-STATUTE.

Under Practice Act, § 121, authorizing appeals upon certificates of importance and certiorari, or similar proceedings, in contract or damage cases involving over $1,000, a writ of error will not lie to review a $1,000 recovery on a policy, although the Appellate Court granted a certificate of importance.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. 5.]

Error to Appellate Court, First District, on Error to Municipal Court of Chicago; McKenzie Cleland, Judge.

Action by Bruno Rizzo against the Catholic Order of Foresters. From a judgment of the Appellate Court reversing a judgment for plaintiff and ordering judgment for defendant (176 Ill. App. 165), the plaintiff sued out a writ of error. Writ dismissed.

Ed

Wm. A. Jennings and Walter G. Walker, both of Chicago, for plaintiff in error. mund S. Cummings, of Chicago, for defend

ant in error.

FARMER, J. Plaintiff in error, Bruno Rizzo, as one of the beneficiaries of a policy of insurance issued to Francisco Caveleo, deceased, by defendant in error, the Catholic Order of Foresters, recovered a judgment for $1,000 against said defendant in error. On appeal to the Appellate Court for the First District, the judgment was reversed and a judgment nil capiat and for costs rendered against plaintiff in error in that court. Plaintiff in error (hereafter called plaintiff) petitioned the Appellate Court to grant a certificate of importance and an appeal to the Supreme Court. The Appellate Court, on January 18, 1913, granted the certificate of importance and appeal upon plaintiff entering into an appeal bond in the sum of $250 within 20 days from that date. February 2, 1913, the appeal bond was filed in and approved by the Appellate Court. The appeal, however, was never perfected, but plaintiff, on December 6, 1915, sued out

a writ of error from this court returnable to the February term thereof. The cause is therefore brought to this court by virtue of the writ of error and not by way of appeal.

[1, 2] Defendant in error (hereafter called defendant) has entered a motion to dismiss the writ of error on the ground that writs of error are not authorized in such cases. In support of plaintiff's contention that this court has jurisdiction to entertain writs of error in such cases, we are referred to secMacLachlan v. McLaughlin, 126 Ill. 427, 18 tion 8 of the Appellate Court Act and to N. E. 544. By section 8 of said Appellate Court Act, in actions ex contractu where the amount involved is less than $1,000, exclusive of costs, and in all cases sounding in damages where the judgment of the court below was less than $1,000, exclusive of costs, and the judgment of the lower court was affirmed or otherwise finally disposed of in the Appellate Court, no appeal or writ of error was authorized for a review of the judgment of the Appellate Court by the Supreme Court, except that where a case decided by the Appellate Court involving a less sum than $1,000, exclusive of costs, also involved questions of law of such importance that the case should be passed upon by the Supreme Court, the judges of the Appellate Court were authorized to "grant appeals and writs of error to the Supreme Court, on petition of parties to the cause; in which case the said Appellate Court shall certify to the Supreme Court the grounds of granting said appeal." Section 90 of the Practice Act, which was enacted at the same session of the General Assembly that enacted the Appellate Court Act, contained no provision upon the subject of appeals or writs of error in such cases. Whether appeal was the only method of removing cases from the Appellate to the Supreme Court where the judgment was less than $1,000 and the Appellate Court granted a certificate of importance, or whether a writ of error could be sued out of the Supreme Court for the review of the judgment after the granting of the certificate of importance, was before this court in MacLachlan v. McLaughlin, supra. It was there held the language of the Appellate Court act authorizing the Appellate Court to grant appeals and writs of error in cases involving less than $1,000 was inaccurate, as the Appellate Court could not grant writs of error to the Supreme Court; but, notwithstanding the inaccuracy, it was said to be the plain intention that, when a certificate of importance was granted, the petitioning party might sue out a writ of error from the Supreme Court or prosecute an appeal.

In 1907 the Practice Act was revised, and section 90 became a part of section 119 of the revised act. In 1909 section 119 was repealed and section 121 amended so as to em

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

brace the subject of the removal of cases by the Supreme Court by appeal upon a from the Appellate to the Supreme Court. certificate of importance granted. Section 121 provided that the judgments of the Appellate Courts should be final in all cases where their jurisdiction was invoked, except where appeals and writs of error are required by the Constitution to be allowed from the Appellate Courts to the Supreme Court, subject to two exceptions:

"(1) In case a majority of the judges of the Appellate Court or of any branch thereof shall be of opinion that a case (regardless of the amount involved) decided by them involves a question of such importance, either on account of principal or collateral interests, as that it should be passed upon by the Supreme Court, they may in such cases grant appeals to the Supreme Court on petition of parties to the cause, in which case the said Appellate Court shall certify to the Supreme Court the grounds of granting said appeal. (2) In any such case as is hereinbefore made final in the said Appellate Courts it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the case, and with like effect, as if it had been carried by appeal or writ of error to the Supreme Court: Provided, however, that in actions ex contractu (exclusive of actions involving a penalty) and in all cases sounding in damages the judgment, exclusive of costs shall be more than one thousand dollars ($1,000)."

The plain language of section 121 restricts the method of removing causes from the Appellate to the Supreme Court upon certificates of importance granted, to an appeal. That is the last expression of the intention of the Legislature upon the subject, and is so plain and unambiguous in its terms that it cannot be construed to give the right in such cases to sue out a writ of error. The writ of error must therefore be dismissed.

Writ of error dismissed.

(273 Ill. 546)

PEOPLE ex rel. LUCEY, Atty. Gen., v. TUR-
NEY, Judge. (No. 10762.)

(Supreme Court of Illinois. June 22, 1916.)
1. MANDAMUS 15-PROCEEDINGS OF COURTS
-EFFECT OF ESTABLISHED PRACTICE.

The mere fact that a practice may have existed in county courts for a long time does not preclude an inquiry into its validity or prevent the granting of relief by mandamus. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 47, 49; Dec. Dig. 15.] 2. MANDAMUS

OF JUDGMENT.

53-PURPOSES - VACATION

A writ of mandamus lies in the Supreme Court to expunge an order, entered without jurisdiction vacating a judgment and sentence.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 102-107; Dec. Dig. 53.1 3. MANDAMUS

154(8)-PROCEEDINGS-PETI

TION-SUFFICIENCY.

A petition for mandamus praying that an order vacating a judgment of conviction for robbery be expunged and the prisoner returned to the custody of the superintendent of the reformatory is not demurrable as seeking double re

lief.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 312; Dec. Dig. 154(8).] 4. CRIMINAL LAW 998-VACATION OF JUDGMENT-JURISDICTION OF Court.

But two methods are provided for the removal of cases from Appellate Courts to the Supreme Court for review by section 121. Regardless of the amount involved, appeals from judgments of the Appellate Courts are authorized upon certificates of importance granted by that court. In actions ex contractu, and in cases sounding in damages where the judgment, exclusive of costs, shall be for more than $1,000, the Supreme Court may cause the case to be certified to it for review by writ of certiorari. These two methods for the removal of cases from the Appellate Courts to the Supreme Court for review are exclusive. The suit here being an action ex contractu, and the judgment, not being for more than $1,000, could only be brought to this court for review upon a certificate of importance and an appeal. The provision of the Appellate Court Act authorizing the suing out of a writ of error in cases where the Appellate Court grants a certificate of importance is repealed by section 121 of the Practice Act. The entire subject of the removal of cases from the Appellate Courts to the Supreme Court is now governed by the Practice Act, and the provisions of the Appellate Court Act upon the subject of appeals which are inconsistent with section 121 of the said Practice Act are repealed by the said section. Lansingh v. Dempster, 255 Ill. 161, 99 N. E. 354; Atton v. South Chicago City Ry. Co., 236 Ill. 507, 86 N. E. 277. In this case the judgment being for an even $1,000, exclusive of costs, under section 121 of the Practice Act, which repeals the pro-common-law rights. visions of the Appellate Court Act authoriz- [Ed. Note.-For other cases, see Criminal ing a writ of error, could only be reviewed Law, Cent. Dig. § 1482; Dec. Dig. ~636(9).]

Where a judgment and sentence had been passed on a conviction of robbery, and the prisofficer in charge of the reformatory and had enoner had been committed to the custody of the tered upon the execution of his sentence, the court, who had thereby lost jurisdiction of his der vacating the sentence and judgment, alperson, was without jurisdiction to enter an orthough made during the term at which they were entered.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2549; Dec. Dig. 998.] 5. CRIMINAL LAW 636(9)-RIGHT OF ACCUSED TO APPEAR AND DEFEND-CONSTITUTIONAL PROVISIONS.

Under Const. art. 2, § 9, providing that in all criminal prosecutions the accused shall have the right to appear and defend, and the commonlaw rule that a person accused of felony must accused was entitled to appear in person upon be present in person throughout the trial, the the hearing of a proper motion to vacate a judgment theretofore entered against him, and the court was powerless to enter any order affecting him unless he waived his constitutional and

6. CRIMINAL LAW 98 - WRIT OF HABEAS! ceed the maximum fixed by the statute for CORPUS AD TESTIFICANDUM-JURISDICTION the crime of robbery, and it was also orOF COURT. The production of a convict as a witness pursuant to a writ of habeas corpus ad testificandum would not serve to give the court jurisdiction over him as a defendant, or power to take him from the custody of the officer in charge of him.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 192-195; Dec. Dig. 98.] 7. WITNESSES 18-ATTENDANCE - HABEAS CORPUS AD TESTIFICANDUM ISSUANCE OF WRIT.

dered and adjudged that said Letukas be taken from the bar of said court to the common jail of Cook county, and from thence by the sheriff to the Illinois state reformatory at Pontiac, and delivered to the superintendent of said reformatory, and said superintendent was commanded to confine said Letukas in said reformatory in safe and secure custody until discharged according to law, which said judgment and sentence of the criminal court were on that day duly entered of record, the said judgment being set forth in the petition in hæc verba; that immediately thereupon, and in pursuance of such judgment and sentence, Letukas was taken by the sheriff from the bar of the court to the com

The court, having presided in the trial of accused for robbery, being bound to know that there was nothing about which the accused could testify on the hearing of a motion to set aside his judgment and sentence, improperly issued a writ of habeas corpus ad testificandum. the purpose of which is to enable the production of a prisoner held in the custody of an officer where it is made to appear that his testimony is ma-mon jail of Cook county, and thereafter, on terial and important in some cause then pending. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 33; Dec. Dig. 18.]

Mandamus by the People, on the relation of Patrick J. Lucey, Attorney General, against Robert E. Turney, Judge. Writ issued.

Patrick J. Lucey, Atty. Gen. (Thomas J. O'Hare, of Chicago, of counsel), for petitioner. Timothy J. Fell and Hermann P. Haase, both of Chicago, for respondent.

COOKE, J. At the April, 1916, term this

January 12, 1916, a certified copy of said judgment and sentence was placed in the hands of the sheriff for execution; that on January 20, 1916, Letukas was taken by the sheriff to the Illinois state reformatory at Pontiac and there delivered to the superintendent of said institution, who received him pursuant to such judgment and sentence; that on January 29, 1916, being one of the days of the January, 1916, term of said court, counsel for Letukas appeared, the respondent

presiding as judge, and presented a motion on his behalf to set aside the verdict of the jury theretofore entered in said cause and vacate the said judgment and sentence so pronounced and entered thereon and to grant a new trial, and the respondent on said January 29, 1916, directed the motion to be entered and continued the same until February 5, 1916, one of the days of the February, 1916,

petition was filed by leave of court, praying for a writ of mandamus against the respond ent, Robert E. Turney, judge of the superior court and ex officio judge of the criminal court of Cook county, commanding him forthwith to enter an order in a cause pending in said criminal court entitled, "The People of the State of Illinois v. Charles Letukas et al.," expunging from the record of said cause an order entered April 5, 1916, vacating the judg-term of said court; that on that day the ment theretofore entered adjudging the said Charles Letukas to be guilty of the crime of robbery and the sentence imposed that he be confined in the Illinois reformatory at Pontiac until he should be discharged according to law, and setting aside the verdict of guilty theretofore found against Letukas and granting him a new trial, and ordering and directing John E. Traeger, sheriff of Cook county, to take the body of said Letukas from the custody of the superintendent of the Illinois reformatory at Pontiac and to keep him in his custody.

The petition alleges that Charles Letukas and Ignatz Lakowski were at the December, 1915, term of the criminal court of Cook county jointly indicted for the crime of robbery, and on the 11th day of January, 1916, being one of the days of the January term of said court, were duly convicted thereof, and on that day the said Letukas was duly adjudged guilty of the crime of robbery (the said Robert E. Turney, judge of the superior court, presiding) upon said verdict of guilty, and was sentenced to the Illinois state reformatory at Pontiac for a term of years, not to ex

cause was continued to February 19, 1916, and again on the last-mentioned date it was continued until February 26th; that on February 23d the state's attorney of Cook county presented to Hon. William E. Dever, as one of the judges of the superior court and ex officio judge of said criminal court, a petition purporting to be a petition for a writ of habeas corpus ad testificandum to be directed to the superintendent of the Illinois state reformatory at Pontiac to produce the body of Letukas before respondent on February 26, 1916, the petition setting up that the cause entitled "The People v. Charles Letukas" had been set for trial on that day, and that at the trial the said Letukas was a material and necessary witness, and that the cause of the people could not be properly presented without his testimony; that the writ of habeas corpus ad testificandum was duly issued and served upon the superintendent of the reformatory, and Letukas was produced before respondent, presiding as one of the judges of the criminal court of Cook county, on February 26, 1916; that the superintendent of the reformatory gave notice to the Attorney Gen

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1, 2] It is insisted that mandamus is not a proper remedy; as the public interests would be injuriously affected by the issuance of the writ, and the issuance of the writ would compel the performance of an act which will work a public and private mischief. This contention is grounded upon the allegation in the petition that respondent, from his own recollection of the case, was of the opinion that Letukas was not properly or adequately defended, and that he may have been innocent. It is immaterial what reason actuated respondent in vacating the judgment and sentence theretofore entered, as it could have no bearing whatever upon the question of his jurisdiction to enter such order. As to whether the public interests would be affected it will suffice to quote the following from the petition:

eral of the service of said writ upon him and cate the order sentencing Charles Letukas, as the character thereof, and the Attorney Gen- the motion therefor was made during the eral appeared on the return day before re- term at which the judgment and sentence spondent in opposition to the use of the writ were entered. of habeas corpus ad testificandum for any purpose other than that provided by statute, and also in opposition to the consideration or allowance by the court of the motion to vacate the final judgment and sentence theretofore pronounced against Letukas; that upon the hearing respondent, as such judge, stated that he was of the opinion, from his own recollection, of the trial, that the defense of Letukas might have been improperly presented, and that he was entitled to a vacation of the judgment and sentence of imprisonment theretofore pronounced against him and a further opportunity to present his defense or to a release upon probation, and as he was further of the opinion that the power to vacate such judgment and sentence rested in the court because a motion theretofore had been interposed during the judgment term and continued from time to time, but as the validity "And the people of the state of Illinois, on of such practice had been assailed, it was de- the relation of said Attorney General of Illisirable that all questions with respect to the nois, do further complain and show unto this honorable court that a practice has grown up same should be definitely settled by the Su- in said criminal court of Cook county, and has preme Court, and he continued the motion to obtained a recognized standing in said court by vacate judgment and sentence until April 5, reason of long-continued indulgence therein, of 1916, to afford an opportunity to present the causing, allowing, and permitting motions to vacate final judgments and sentences of imprismatter to this court; that thereafter, on onment theretofore pronounced and entered of April 5, 1916, the superintendent of the re- record to be entered of record in said criminal formatory again produced the body of Letu- court of Cook county after such judgments and kas before respondent as such judge, when after considering such motions and vacating and sentences have gone into execution, and of therethe Attorney General moved to quash the writ setting aside such final judgments and sentences of habeas corpus ad testificandum, which mo- so pronounced, and by the use and by means of tion was overruled; that thereupon, the mo- dum to procure the attendance of the convict or the aforesaid writ of habeas corpus ad testificantion to vacate the said judgment and sentence prisoner so serving such sentence, ostensibly to coming on to be heard, the Attorney General testify in the case in which he was theretofore objected to the exercise by the court of any convicted, but in reality to lend color to the jurisdiction save to deny the motion or to nul, and set aside such final judgments and sensupposed jurisdiction of the court to vacate, anexpunge all orders made in connection there- tences of imprisonment imposed against him, with; that the cross-motion was denied, and and upon the attendance of said convict in the motion to vacate the judgment and sen- court, upon and in virtue of the aforesaid writ of habeas corpus ad testificandum, the aforesaid tence theretofore pronounced against Letukas practice of said criminal court of Cook county was allowed; that an order was entered va- has gone to the extent of the court not only cating such judgment and sentence, setting granting and allowing such motions to vacate aside the verdict of guilty, and granting a ments and sentences and allowing new trials, but and vacating and setting aside of said final judgnew trial; that the court thereupon ordered allowing the convict or prisoner to go upon proand directed the sheriff of Cook county to bation, so called, or permitting the nolle prosecui take the body of Letukas into custody and of the charge upon which such convict or prisoner was therefore tried and convicted, thereby in keep him in the common jail of Cook county either instance giving the said convict or prisuntil discharged by due course of law, which oner his liberty, if not complete exoneration, order the sheriff proceeded to execute over thereby invading the power and authority of the the protest of the superintendent of the re-granting pardons and commutations of sentences, executive department of the state by, in effect, formatory and the Attorney General; that in violation of the Constitution of the state, and the Attorney General then moved the court devoting the writ of habeas corpus ad testifito expunge from the records the order va- candum to purposes other than those for which it was designed and intended." cating said judgment and sentence and setting aside the verdict and granting a new trial, which motion was overruled.

To the petition respondent interposed a demurrer, and the cause was submitted upon the demurrer. The grounds of demurrer which are relied upon are: (1) That mandamus is not a proper remedy; and (2) that the court had authority and jurisdiction to

In their brief and upon oral argument counsel for respondent admit the truth of this allegation, and urge that as this custom has been one of long standing the practice should be approved, even though it may be contrary to the letter of the law. The mere fact that such a practice may have existed in the courts of Cook county for a long time

« PrethodnaNastavi »