« AnteriorContinuar »
claim against the partnership, and counsel threatened to attach the goods transferred to the corporation on the ground that they had been fraudulently transferred to hinder and delay creditors. During these negotiations counsel for appellants was fully apprised of the organization of the corporation, its purposes, the manner in which its stock was subscribed for and the manner in which the partnership had transferred their stock in trade to the corporation. These negotiations resulted in appellants taking the judgment notes of Wilson & Bayless, dated February 5, 1889, the payment of which notes was guaranteed by the corporation Wilson & Bayless Company by endorsement thereon, for their claim and in abandoning the contemplated attachment proceedings. Becoming concerned as to the collection of their debt, appellants had judgment entered on the notes and execution issued against Wilson & Bayless March 11, 1889, and the sheriff levied on the stock of the Wilson & Bayless Company, already in his hands on a prior levy of an execution against the corporation by the Atlas National Bank of Chicago. The next day the corporation made an assignment for the benefit of creditors to Marshall D. Talcott, who was afterwards succeeded by appellee, Clair E. More, as assignee. On March 13, 1889, the sheritf turned over to the assignee the property he had levied on under these executions, an order of the county court being entered at the same time showing that this was done by agreement of all interested parties, and preserying all rights acquired by virtue of such levies and without waiving any liens. The property was sold by the assignee and part of the proceeds is still in his hands. Thereafter appellants filed their claim with the assignee against the corporation on their guaranty of these notes, to which claim the assignee interposed exceptions, which were sustained by the county court, and finally, on appeal, by this court in Dobson v. More, 161 Ill. 110, on the ground that the guaranty was not within the scope of the powers of Wilson, the general manager, who had executed it, no authority having been shown from the board of directors for such guaranty. Appellants then filed their petition in the county court, asking that they be paid in full out of the moneys in the hands of the assignee, and relying on their rights under the sheriff's levy and order of court releasing the levy, setting up that the transfer of the property of the partnership to the corporation was made to hinder, delay and defraud appellants, and that the property was subject to the lien of the execution against Wilson & Bayless. The county court depied the petition, and on appeal to the Appellate Court that court affirmed the judgment, and appellants have further appealed to this court.
It is contended by appellee that appellants have waived any rights they may have had to proceed against the property of the corporation by reason of the same having been transferred to it to hinder, delay and defraud appellants, as it is alleged, by having filed their claims against the corporation with the assignee; and it is also contended that no fraudulent transfer has been shown. It will not be necessary to determine these points, as we think the evidence does not sufficiently show that the property the sheriff levied on was the same property the partnership transferred to the corporation. The only evidence in the record on that subject is that of George Wilson, one of the partners, who testified that there was a large portion of appellants' and Boyd & White's goods in stock at the time of the levy; that the account sued on was for the only purchases ever made of appellants. He also testified that about fifteen hundred dollars' worth of goods from appellants, ordered by the partnership and . included in the account, came in after the transfer to the corporation; but a reference to the items of account shows that this was a mistake, and that practically nothing was received after the incorporation and transfer of the stock. This is all there is in the record in regard to
whether there was any property that came from the partnership on hand at the time of levy, or if so, what it was. There is no specific allegation or evidence anywhere showing what particular articles were then in the possession of the corporation that were transferred to it by the partnership. Wilson says the sheriff levied on carpets, but he did not know whether he levied on all or not. The transfer was made about the first of October and the levy on March 11 following, and Wilson testified that there was little sale of carpets during that time. How much of the partnership stock was there nowhere appears, nor is it shown that the sheriff levied on the carpets that appellants had furnished or on those furnished by others to the partnership, and nothing appears as to the character or amount of Boyd & White's goods on hand at the time of the levy.
In order to sustain their levy appellants should have shown that it was made on the same goods received from the partnership, for it is only upon such goods they would have any right to levy their execution, assuming that the transfer was fraudulent, which subject we do not discuss here. A mere general assertion that there was a large portion of appellants' goods, or goods derived from the partnership, in stock at the time is not enough. Such goods should have been pointed out and separated from the general mass, and it is incumbent on appellants to prove that the particular goods levied on were so fraudulently transferred to the corporation. Without such proof the court could not determine whether they acquired any preference by their levy or not, nor the extent of it. The judgment of the Appellate Court is affirmed.
1 601 171 2751 190 6213 171
275 ! 96a 9 40 171 275 198 6420
1. REMAINDERS-remainder will be held vested unless a contrary intention appears. The law always favors the vesting of remainders, and in construing a will a remainder will be held to be vested unless the testator's contrary intention is clearly manifested.
2. SAME-contingent remainder is limited to dubious person or upon a dubious event. A contingent remainder is one limited by the instrument creating it either to a person not yet ascertained or not yet in being, or is made to depend upon an uncertain or dubious event.
3. SAME-uncertainty which marks a contingent remainder relates to right of enjoyment. The uncertainty which distinguishes a contingent remainder is not whether the remainder-man will ever enjoy it, but whether there will ever be a right to such enjoyment.
4. SAME-when remainder is vested. A remainder is vested if, by words of express limitation, it is to take effect on the determination of a preceding particular estate and the person to take it is in being and ascertained.
5. SAME-power of appointment in life tenant does not prevent remainder from resting. A power of appointment in the life tenant to dispose of the property, by will, in the family, does not prevent the remainder from vesting, as in such case the remainder vests subject to being divested by the exercise of the power.
6. SAME-remainder may vest subject to power in trustee to merge life estate in fee. Where a remainder would otherwise be vested, the existence of a power in the trustee to merge the life estate in the fee by paying over the trust estate to the life tenant in such sums and at such times as the trustee may deem expedient does not render the remainder contingent, although the testator uses the word "if,” in referring to the non-exercise of the power.
7. WILLS-clause of will construed as vesting remainder. A bequest of a share of the testator's estate to his son in trust, with power to the trustee to pay over the trust estate to the son if expedient, and with power to the latter to dispose of the same, by will, in the family, the amount undisposed of at his death to pass to other named children of the testator in being and having present capacity to take, creates an equitable life estate in the son with a vested remainder in the other children, subject to the powers given.
8. SAME-when vestiny of interest is not postponed until time of distribution. Where distribution is postponed for the convenience of the
fund, as, to let in a prior gift for life to another, the vesting of the remainder is not postponed until the time of distribution.
9. SAME—when residuary bequest will not operate as exercise of power of appointment. Property devised to a person in trust for life, and at his death to such persons as he might, in writing, direct, does not pass under a residuary clause in a will made by such devisee, which neither refers to the power or the subject thereof, nor indicates any intention on the part of the testator to act thereunder.
APPEAL from the Circuit Court of Cook county; the Hon. 0. H. HORTON, Judge, presiding.
WILLIAMS, HOLT & WHEELER, for appellant:
When the event on which the preceding estate is limited must happen, and when it also may happen before the expiration of the estate limited in remainder, that remainder is vested.. It is also vested when it is vested in a person in esse and ascertained, to take effect by words of express limitation on the determination of the preceding particular estate. Scofield v. Olcott, 120 Ill. 371.
Whether a remainder is vested or contingent is not affected by the power of sale conferred by the will, either on the life tenant or on the executor. If the power is so exercised as to dispose of all the estate, nothing may be left to go to the remainder-man. But the remainder is not made contingent, because it is uncertain whether the power will be exercised. Walker v. Pritchard, 121 Ill. 221; 1 Jarman on Wills, (Bigelow's 6th ed.) 378, and notes; Burleigh v. Clough, 52 N. H. 267; 4 Kent's Com. 204; Railsback v. Lovejoy, 116 Ill. 442; Ducker v. Burnham, 146 id. 9; Scofield v. Olcott, 120 id. 362.
The law favors the vesting of estates, and will construe the terms of a will as creating a vested estate, if possible. Scofield v. Olcott, 120 Ill. 362; Kellett v. Shepard, 139 id. 433.
In many cases the remainder has been held to be vested, although the testator had himself provided for the issue of the legatee by substitution. McArthur v. Scott,