cise distance of the gas pipe from the tunnel, and that was immaterial. The defendant Gaslight Company was engaged, among other things, in putting in gas fixtures and gas stoves and ovens in buildings in Chicago. F. G. Hartwell did all the teaming and hauling for the defendant under a written contract running for five years, at certain fixed prices per month for double teams, single teams, horses, and buggies, and reserve horses, respectively. The contract contained an agreement that the drivers of the teams should be satisfactory to the defendant; that the teaming should be done in accordance with the directions of such of defendant's superintendents as it might designate, and that the employés of Hartwell should be satisfactory to the superintendents and officers of the defendant at all times and in all respects. The defendant, for the purpose of putting in a gas stove in the building at 233 Market street, ordered some pieces of gas pipe hauled to that place. Leo Smith was one of Hartwell's drivers, and he was directed by the barn boss to go to the defendant's office or yards to do the hauling. Smith went with a horse and wagon in pursuance of that order, and took on his wagon a number of pieces of gas pipe. Charles Dawson was a gas fitter employed by the defendant to do the work. He rode with Smith to the rear of the building at 233 Market street. Back of the building there was a paved alley 25 feet wide, and Smith drove into that alley at the south end, turned his horse around, facing south, and stopped the wagon four or five feet from the Van Buren street tunnel, near its east entrance, where it disappears beneath the surface of the ground. When Smith reached the place where the job was to be done, he took the pieces of pipe, eight or ten in number, from the wagon and laid them on the pavement between the wagon and an iron post supporting the railing along the edge of the tunnel. The evidence for the defendant was that the pipe was laid against the wheel of the wagon, several feet from the tunnel, and the declaration alleged that it was 15 inches from the edge of the tunnel. One witness for the plaintiff testified, that the pipe was lying against the iron post connected with the rail at the edge of the tunnel. Market street and the alley run north and south and Van Buren street runs east and west. The tunnel runs east' and west across the alley. Whatever the distance, all the evidence showed that the pipe was laid between the wagon wheel and the iron post. There was a vise in the rear end of the wagon, used by the gas fitter in preparing the pipe, and he went upstairs in the building and made an examination and commenced cutting the pipe and cutting threads on it. When he would get one pipe cut and threaded he would go upstairs and put it in, and Smith stood around watching him and wait some other place or to do some other hauling. While the horse and wagon were standing there the fly net caught in the breeching and was tickling the horse, and he commenced to kick. Smith started toward the horse to fix the net before some damage was done, and in doing so he slipped and stumbled and fell. His foot struck a piece of the pipe three feet long and three-quarters of an inch in diameter and kicked or knocked it over into the tunnel, where it fell on the plaintiff. Smith always unloaded the material, and he laid it on the pavement without any suggestion or direction from Dawson. There was evidence that the alley sloped from the iron post toward the center slightly and was three inches lower at the center than at the sides, although it appeared to one of the witnesses to be level. Dawson did not lay on the pavement the pipe that fell on the plaintiff. The Appellate Court in the opinion filed took the view that Smith, in all that he did, was doing the work of Hartwell and was Hartwell's servant and not the servant of the defendant, and that conclusion was unquestionably right. It is true that a person who is in the general employment of one person may, with his consent, be transferred to another for some particular work, in such a way as to become the servant, for the time being, of the other in doing that work, but a servant who is sent to do work which his master has agreed to perform does not become the servant of the one for whom the work is performed by having the work pointed out to him. He is the master who has the choice, control, and direction of the servant, and it was held in Pioneer Fireproof Construction Co. v. Hansen, 176 Ill. 100, 52 N. E. 17, that the right to control involves the power to discharge, and that the relation of master and servant will not exist unless the power to discharge exists. In Harding V. St. Louis Stock Yards, 242 Ill. 444, 90 N. E. 205, the statement that the relation of master and servant does not exist unless the power to discharge exists was repeated, and the court approved the decision in Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922, where the conditions were practically the had been hauling property for an electric same as in this case, and where the driver lighting company and sometimes gave help outside of driving his wagon. There was no possible ground upon which Smith could be said to be the servant of the defendant in going to his horse to adjust the fly net and prevent some damage to his employer's property. Smith sometimes voluntarily helped the gas fitters in doing their work, if he saw fit to do so; but he was under no obligation to do it, and he was not assisting Dawson at the time of the accident in any way, even if the work that Dawson was doing had contributed to the accident, which was not the fact. The provision of the contract with Hartwell that the driver should that the relation in which Smith stood to the defendant was to be determined by the terms of the written contract with Hartwell, and its construction was a matter of law for the court and not for the jury. The judgment is reversed, and the cause remanded. Reversed and remanded. (260 I11. 131.) DEKE V. HUENKEMEIER et al. (Supreme Court of Illinois. Oct. 28, 1913.) 1. DoWER (§ 20*)-DIVORCE (§ 275*) HUSBAND AND WIFE (§ 6*) CONVEYANCE IN FRAUD OF DOWER OR ALIMONY. teaming be done in accordance with the di-struction was not only based on no evidence, rection of the defendant's superintendents, but it violated the rule stated in Pioneer was nothing more than the usual agreement Fireproof Construction Co. v. Hansen, supra, that work or services shall be satisfactory to the person for whom the work is done or the services performed, and it did not make Hartwell's drivers the servants of defendant. The opinion of the Appellate Court, how ever, was that the fact that Smith was not the servant of defendant was not decisive against its liability; that it was responsible for what Smith did because it was its duty to exercise reasonable care to prevent a piece of gas pipe from falling into the tunnel, and that it failed in that duty because the pipe was so laid and in such a place that if any thing struck the pipe a piece was liable to fall into the tunnel. If there was such a duty to see that Smith was not negligent in laying the pipe on the pavement, there was no breach of the duty, since the evidence did not tend to prove any negligence in that respect. Whether the pavement sloped slightly toward the center or was level, it did not slope toward the tunnel, and the evidence did not tend. in the slightest degree to prove that the pipe was liable to move or roll or fall into the tunnel without the active interference of some agency It is immaterial whether the pipe was near the iron post or near the wheel of the wagon, since it could not roll into the tunnel without being set in motion by some independent force. There is no reason for saying that the pipe would have moved if Smith had not slipped and fallen, and, as he said, accidentally kicked the pipe into the tunnel, and there was no possible connection between the defendant and the act of going to the horse. The court erred in not directing a verdict, as requested. [2] The first instruction given at the instance of the plaintiff was as follows: "If a person or corporation accepts the benefit of the services of a volunteer and directs and controls him in his work, said volunteer becomes a servant or employé of the same as if working under a contract for hire." This instruction was abstract in form, and had no relation to the facts of the case. Smith was not a volunteer in unloading the pipe, which the service of Hartwell required him to do, nor in looking after his horse to stop his kicking. The instruction would naturally mislead the jury to suppose that Smith was to be regarded as a volunteer directed and controlled by the defendant, and thereby becoming its servant, which did not correspond with any evidence in the case. [3] The seventh instruction left it to the jury to determine, from the evidence, whether Smith was the servant of the defendant or Hartwell. It stated that, even though he was paid by Hartwell, yet if, at the time of the accident, he was doing work for the defendant and was subject to the direction and control of the defendant and not of Hartwell, the defendant, and not Hartwell, was his master while doing that work. The in A man cannot convey without consideration his realty just before his marriage without the consent of his fiancée so as to deprive her of her rights as a wife therein, and such that it affects her inchoate right of dower, but a conveyance will be set aside to the extent will not be wholly set aside on the theory that she might possibly in the future acquire alimony rights, etc., therein; she only being entitled to have her existing rights protected. [Ed. Note.-For other cases, see Dower, Cent. Dig. & 15; Dec. Dig. & 20:* Divorce, Cent. Dig. §§ 750, 751; Dec. Dig. § 275;* Husband and Wife, Cent. Dig. §§ 13-18; Dec. Dig. § 6.*] 2. HUSBAND AND WIFE (§ 6*)-CONVEYANCE BY HUSBAND-JOINDER BY WIFE. his wife joining with him, and if there be no A husband may convey his realty with out homestead, the grantee receives a fee-simple title, subject only to dower should the wife survive the husband. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 13-18; Dec. Dig. § 6.*] Appeal from Circuit Court, Stephenson County; Arthur H. Frost, Judge. Suit by Mary E. Deke against Ida Huenkemeier and others. From a decree in part for complainant, she appeals, and defendant Affirmed. named assigns cross-errors. R. R. Tiffany, of Freeport, and Pattison & Shaw, of Chicago, for appellant. R. K. Welsh, of Rockford, for appellee. VICKERS, J. Appellant, Mary E. Deke, filed a bill in the circuit court of Stephenson county for the purpose of setting aside a conveyance of real estate made by her husband, Joseph Deke, to Ida Huenkemeier, his daughter by a former marriage. The bill alleges that appellant and Joseph Deke became engaged to marry on June 18, 1905; that prior to said marriage Deke had represented to appellant that he was the owner of a large quantity of real estate valued at $25,000, and possessed an income therefrom of $1,800 annually; that Deke often pointed out his houses to her before their marriage, and showed her eighteen houses that he claimed to own, and told her frequently before their marriage that he would provide her with a better home and ample support, and the bill alleges that these promises were believed and relied upon by appellant in ac cepting the proposal of marriage with said Deke. The bill further alleges that after the engagement was entered into, and without the knowledge of appellant, said Deke conveyed all his real estate to appellee Ida Huenkemeier by warranty deed, which said deed was voluntary, without any consideration, and made for the purpose of defrauding appellant out of her marital rights in the property of Deke. Ida Huenkemeier and her husband, Henry, and Joseph Deke, were made parties defendant to said bill. Deke was defaulted, but the other two defendants answered the bill, and denied all of the material allegations. The cause was referred to a master in chancery, who took the evidence and reported, finding that the allegations of the bill were true, and that appellant was entitled to relief, and recommending a decree setting aside the deed in so far as the same might bar appellant's inchoate right of dower, but sustaining the deed in all other respects as between the parties thereto. The cause was heard in the circuit court upon exceptions to the master's report, none of which were sustained. The final decree of the court was in accordance with the findings of the master. Complainant below has prosecuted an appeal, and assigns for error the refusal of the court below to grant her full and adequate relief by setting aside the deed and reinvesting the title to the real estate in her husband. Appellee Mrs. Huenkemeier has assigned cross-errors, by which she questions the right of appellant to any relief whatever. We fully agree with the court below that the evidence sustains appellant's bill, and that the conveyance by Deke of all of his real estate to his daughter without consideration, after the contract to marry appellant had been entered into, was in fraud of appellant's marital rights. The cross-errors assigned by appellee, Mrs. Huenkemeier, which questioned the right of appellant to any relief whatever, cannot be sustained. What appellant's marital rights are in respect to the real estate fraudulently conveyed by her husband is a question which does not appear to have been directly passed on in this state, and upon which authorities in other states are in conflict. [1] This court has several times announced the general doctrine that a man cannot convey, by way of gift, his real estate on the eve of his marriage without the consent of his intended wife, and thus deprive her of the rights of a wife in the real estate thus conveyed. Freeman v. Hartman, 45 Ill. 57, 92 Am. Dec. 193; Clark v. Clark, 183 Ill. 448, 56 N. E. 82, 75 Am. St. Rep. 115; Daniher v. Daniher, 201 Ill. 489, 66 N. E. 239; Jones v. Jones, 213 Ill. 228, 72 N. E. 695; Higgins v. Higgins, 219 Ill. 146, 76 N. E. 86, 109 Am. St. Rep. 316; Blankenship v. Hall, 233 Ill. 116, 84 N. E. 192, 122 Am. St. Rep. 149; Dunbar v. Dunbar, 254 Ill. 281, 98 N. E. were filed to have dower assigned to the widow after the death of the husband, and in others the only right claimed in the premises alleged to have been fraudulently conveyed was the inchoate right of dower. Such bills have been looked upon as analogous to creditors' bills, and in Higgins v. Higgins, supra, this court held that a wife whose husband had conveyed his real estate with intent to defraud her of her marital rights was within the protection of the statute against conveyances made with intent to hinder and delay creditors. In the case at bar appellant insists that she is entitled to something more than the establishment of her inchoate right of dower, which, under the decree appealed from, will amount to nothing unless she survive her husband. Appellant calls attention to possible contingencies under which her position would be much better if the deed to Mrs. Huenkemeier were set aside absolutely and the title declared to be again vested in her husband. She points out the possibility of her husband abandoning her under such circumstances as to entitle her to separate maintenance or a divorce with alimony, and it is argued that the amount of her allowance in both of such contingencies would be greater if her husband owned this real estate than if he had none of it. Attention is also called to the law which allows the widow an award and makes the same a debt against the estate of her deceased husband, to pay which his real estate may be sold, and it is argued on her behalf that her right to separate maintenance, alimony, and to have her award paid out of the real estate, as well as her right to bind her husband's estate for her necessaries under certain contingencies, are all marital rights of which she has been deprived by the fraudulent conveyance, and it is strenuously contended that the court erred in limiting her relief to her inchoate right of dower and in denying to her such rights and benefits as would accrue to her by setting aside the conveyance absolutely and declaring the title to be reinvested in her husband. Appellant's contention is not without the support of respectable authorities in other jurisdictions. Thus, in Goff v. Goff, 60 W. Va. 9, 53 S. E. 769, 9 Ann. Cas. 1083, the Supreme Court of West Virginia held that a voluntary conveyance of all of his real estate, made by a man in contemplation of marriage, without the knowledge of his intended wife, was in fraud of the wife's right of dower, and after marriage circumstances having arisen which gave the wife the right to alimony, the court held that the conveyance should be set aside and the land subjected to the payment of her alimony. In the reasoning of the court the right of the wife to dower and her right to alimony are treated as upon an equality, and it is said that the wife's right to have the fraudulen right to alimony is as important and sacred made she could have had no expectation of as her right to dower. Appellant's conten- the enjoyment of the remainder vested in tion is also supported, to some extent, by a Colorado case (Fahey v. Fahey, 43 Colo. 354, 96 Pac. 251, 18 L. R. A. [N. S.] 1147, 127 Am. St. Rep. 118) and a Kentucky case (Botts v. Botts, 74 S. W. 1093). None of these cases, however, go to the extent of declaring a voluntary conveyance made by a man prior to his marriage fraudulent, in anticipation that the wife might some time in the future become entitled to alimony or separate maintenance or other statutory right against her husband. In those cases the contingency giving rise to the wife's right had happened. Thus, in the West Virginia case the alimony had been allowed, and in the Colorado case a decree awarding the wife $30 a month in her suit for separate maintenance, and attorney's fees, had been entered, and in both cases the conveyances made before marriage were set aside and the land subjected to the payment of these charges. In the case at bar the parties are living together as husband and wife. There is no suit pending for divorce and alimony or separate maintenance, and so far as this record shows no cause exists why any such suit should ever be brought. Under these circumstances the court would not be warranted in setting aside a conveyance to protect rights the existence of which in the future depends on so many uncertainties. The rule is well nigh universal that upon a bill filed by creditors to set aside a fraudulent conveyance the decree only adjudges the conveyance void as against the creditor alleged to be delayed or defrauded. In all other respects and as between all other parties the conveyance is upheld. People v. Keithley, 225 Ill. 30, 80 N. E. 50, and cases there cited. This same principle has generally been applied by courts to bills filed by a wife to set aside conveyances made in fraud of her marital rights. The only right a married woman has in her husband's real estate is the inchoate right of dower. This right arises in her favor whenever there is a concurrence of seisin in the husband and coverture. She cannot be divested of it by any act of her husband. This is the only right that she acquires in her husband's real estate by entering into the marriage relation. This she has a right to expect, and it is to protect this right that courts of equity have declared fraudulent secret and voluntary conveyances made by the husband on the eve of marriage. The Supreme Court of Wisconsin, in Dudley v. Dudley, 76 Wis. 567, 45 N. W. 602, 8 L. R. A. 814, in discussing this question said: "We shall see hereafter that the only expectation she could have was of dower. For this object, alone, could the deed be declared fraudulent and void under any circumstances. Charles Dudley had the same right to convey the fee before as after the * her husband, because that would depend up- * * (also reported in 39 Am. Dec. 211) involved The case of Thayer v. Thayer, 14 Vt. 119 the question now under consideration, and in that case the relief was limited to a removal of the conveyance to enable the wife to have her dower. See, to the same effect, Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864, 27 L. R. A. 523; Leach v. Duvall, 71 Ky. (8 Bush) 201; Cranson v. Cranson, 4 Mich. 230, 66 Am. Dec. 534; Brown v. Bronson, 35 Mich. 415; Smith v. Smith, 6 N. J. Eq. 515; Swaine v. Perine, 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318; Pomeroy v. Pomeroy, 54 How. Prac. (N. Y.) 228; Babcock v. Babcock, 53 How. Prac. (N. Y.) 97; Brooks v. McMeekin, 37 S. C. 285, 15 S. E. 1019; Petty v. Petty, 4 B. Mon. (Ky.) Bradley, Harper & Eheim, of Chicago, for appellant. John R. Philip and W. S. Johnson, both of Chicago, for appellees. [2] Even if appellant's contentions were peals. Reversed and remanded, with direcsustained and the deed should be set aside tions. absolutely and the title reinvested in her husband, we do not see how it could be kept in him without enjoining him from future transfers of it. The law is well settled that a husband may convey his real estate withCOOKE, C. J. On June 11, 1911, Mattie out his wife joining him, and if there be R. Minard departed this life at her home no homestead the conveyance will vest the in Maywood, in Cook county, leaving her grantee with a fee-simple title, subject only surviving Charles W. Minard, her husband, to the dower of his wife should she survive Lusetta L. Mather, her sister, and J. Dalas him. If this conveyance be set aside in order Raver, her brother, as her only heirs at law. to protect her contingent rights to alimony, Thereafter, on July 27, 1911, upon the petiseparate maintenance, and the like, in order tion of Charles W. Minard, an instrument to guarantee a continuance of those rights was admitted to probate by the probate the power to alienate by the husband must court of Cook county as and for the last be restrained. The right of appellant to thus will and testament of Mattie R. Minard. tie up her husband's real estate is no greater This instrument, which was dated June 20, than that of any other married woman. It 1901, upon its face contained certain alterawould be absurd to ask a court of equity, at tions. As originally drawn the testatrix dethe suit of a wife, to enjoin her husband vised and bequeathed all her property, real from selling or mortgaging his real estate, on and personal, to her husband. The next the ground that the wife might in some provision of the will was as follows: "If it possible contingency want to file a bill for be his wish, I desire my engagement ring separate maintenance or for alimony against given to Mabel Herschbach and my wedding him and the land would be required to satis-ring to Mattie Grunewald, and some token fy her decree. We think, both upon reason of solid silver to Mrs. A. F. Mather, Mrs. J. D. and authority, that the court below properly limited its decree to protecting appellant in her inchoate right of dower. Raver, Mollie Raver, Wilmina Raver, Wilhelmina Mather and Esther Perry. To Mrs. A. H. Grunewald my garnets, some solid The decree of the circuit court of Stephen- silver, and returned to her the beautiful son county will be affirmed. court. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 542-544; Dec. Dig. § 222.*] 2. EQUITY (§ 44*)-ESTABLISHMENT OF WILLJURISDICTION OF COURT OF EQUITY. A court of equity has no jurisdiction to establish the existence of a lost or destroyed will, as that matter, as well as the probating of the will after it has been established, is within the exclusive jurisdiction of the probate court. [Ed. Note. For other cases, see Equity, Cent. Dig. 88 141-145; Dec. Dig. § 44.*] china, cut glass, lace and works of art she gave to me. The aforesaid Charles W. Minard to be executor to this will without bond." The alterations consisted of interlining the words "except as hereinafter stated" in the clause devising and bequeathing all her property to her husband, and in drawing oblique lines through the provision above quoted. The probate court found that these alterations had been made by some unknown person after the will was executed by Mattie R. Minard, and admitted the instrument to probate in its original form. Thereupon letters testamentary were issued to Charles W. Minard, as executor. Thereafter, on October 2, 1911, Lusetta L. Mather and J. Dalas Raver filed their bill of complaint in the superior court of Cook county against Charles W. Minard, individually and as executor, and the other persons named in the will which had been admitted to probate, alleging that the alterations appearing upon the face of that will were made by Charles W. Minard without the knowl edge or consent of his wife, and also alleging that subsequent to the date of said will, and Appeal from Superior Court, Cook Coun- on or about June 15, 1908, Mattie R. Minard, ty; Marcus Kavanagh, Judge. in the presence of two attesting witnesses, Suit by Lusetta L. Mather and another and in all respects in accordance with the against Charles W. Minard, personally and requirements of the statute, made and pubas executor of Mattie R. Minard, to set aside lished another and subsequent will, which the probate of a certain will of the said was in existence and in full force at the time Mattie R. Minard, and declare a certain oth- of her death; that after the death of Mater will to be her last will and testament. tie R. Minard the said Charles W. Minard From a decree for the plaintiffs, the defend- removed said instrument from a box in which ant named, personally and as executor, ap-it had been kept by his wife, and now has |
