Imágenes de páginas
PDF
EPUB

the notes executed to her by him, or that the money lent to Wilson was, in fact, the money of Mrs. Hincke, as E. R. Hincke represented it to be. E. R. Hincke in 1910 was unable to pay his indebtedness, but the law did not prevent his applying his assets to the payment of such of his creditors as he chose.

It is insisted by counsel for plaintiff in error that the transaction was fraudulent in fact, and that Mrs. Hincke ought to be estopped, as against the plaintiff in error, from disputing her son's title to the notes, because she permitted him to transact her business with her money in his own name, thus enabling him to present a false appearance of wealth, in reliance upon which the plaintiff in error extended credit to him and has been injured. There is no evidence that Mrs. Hincke had any knowledge that E. R. Hincke was making loans of her money in his own name or that she knowingly consented to his doing so, or that she knew or had any reason to suppose that he was deceiving any person as to his financial means or was deriving any false credit from the fact of his controlling her property. She simply entrusted her funds to him for investment, relying upon his discretion, and there is no evidence that she had any knowledge of the character of the investment or of the amount of his property or extent of his business or credit.

Counsel for the plaintiff in error rely strongly upon section 7 of the Statute of Frauds, which provides that "where any loan of goods and chattels shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have remained for the space of five years, without demand made and pursued by due process at law, on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of an use or property by way of condition, reservation, remainder or otherwise, in goods or chattels,

the possession whereof shall have remained in another as aforesaid, the same shall be taken, as to creditors and purchasers of the person aforesaid so remaining in possession, to be fraudulent, and that the absolute property is with the possession, unless such loan, reservation or limitation of use or property were declared by will or deed in writing, proved and recorded as aforesaid."

It is claimed that the loans made by E. R. Hincke to W. S. Wilson for $22,000, even though the money loaned was the property of Mary Hincke, were in the possession of E. R. Hincke for more than five years, and under this section of the statute they became his property and were subject to the payment of his debts. Even if this were true, the plaintiff in error could subject the property to the payment of his debt only by the acquisition of a lien, and he acquired no lien prior to the filing of his bill. If E. R. Hincke had used Mary Hincke's property so as to make it liable for his debts he was still bound to account to her for it. The property did not become absolutely his but only as to creditors. Mary Hincke was his creditor, and if, before any other creditor acquired a lien, the property was returned to her in extinguishment of so much of his debt to her, no other creditor could interfere with her possession or title. His debt to her was of equal validity with his debt to any other creditor, and his surrender of the property to one creditor in payment of a valid debt could not be interfered with by another creditor.

The section of the statute in question, however, has no application to the condition here. The "goods and chattels" mentioned in that section are the visible and tangible articles of personal property of which actual possession may be had and delivered. That expression does not refer to choses in action which are incapable of manual delivery, to promissory notes or other securities which are only evidences of indebtedness, or to money the loan of which passes the title to the particular pieces and only

creates an indebtedness from the borrower to the lender. The expression "goods and chattels" is a term of very extensive meaning, and is often used to designate personal property of every kind, as well intangible as tangible, as distinguished from real property, and it is also frequently used in a more limited sense, the precise import depending upon the subject matter and the context. Under the title "goods" or "goods and chattels" may be found in the encyclopædias of law many cases illustrating the extended or limited meaning given to this phrase under varying circumstances. In Chicago and Aurora Railroad Co. v. Thompson, 19 Ill. 578, the phrase was held not to include bank bills, within the meaning of an allegation in the declaration that the defendant was a common carrier of goods and chattels for hire, though it is there said: "Money is a chattel, and as chattel, according to Lord Coke, signifies goods, money is therefore goods, and not only that, but goods and chattels. Choses in action are goods and chattels; bank bills are choses in action; therefore bank bills are goods and chattels and must be comprehended under the word 'goods.' In Crawford v. Schmitz, 139 Ill. 564, it was held that choses in action were not subject to levy and sale on execution, although under the statute all the goods and chattels of the defendant were made liable to such levy and sale. In Loeber v. Leininger, 175 Ill. 484, it was held that the lien for taxes assessed upon personal property, created by section 254 of the Revenue act upon the personal property of the person assessed, is limited by section 177 to the goods and chattels of such person, and that "goods and chattels" as there used included only such personalty as might be levied upon and sold under an execution upon a judgment at law. The object of the statute here in question was to prevent the frauds which may arise from the long continued possession and apparent ownership of visible, tangible, movable property, the mere possession of which constitutes evidence of ownership in the person having the

custody. It does not apply to money in the hands of an agent for investment or to choses in action in which such money has been invested.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

ELI HOBBS, Plaintiff in Error, vs. MARY P. SAUNDERS, Defendant in Error.

Opinion filed June 16, 1914.

WILLS-when opinion that testator was sane is not entitled to much weight. The opinion of a subscribing witness that the testator was of sound mind and memory, which opinion is based upon his observations during ten or fifteen minutes' stay in the testator's sick-room, is not entitled to much weight as against the testimony of the doctors and the nurse, whose opportunities for observing the testator and knowing his condition were much more extensive.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. H. STERLING POMEROY, Judge, presiding.

A. W. MARTIN, and EDWARD H. S. MARTIN, for plaintiff in error.

E. F. MASTERSON, for defendant in error.

Mr. JUSTICE VICKERS delivered the opinion of the court: This is a writ of error to the circuit court of Cook county to bring up for review the record of a proceeding for the probate of the will of Thomas W. Saunders. The testator executed two wills. The first (or older) of the wills was dated January 2, 1897. The last will was dated February 2, 1909. The validity of the first will is not questioned on any ground except it is contended that the last will revoked it. If the last will be valid it is conceded that it revokes the former. The result is that the whole controversy turns upon the validity of the last will.

The manner in which the case was brought to a hearing in the probate court is out of the ordinary and is the subject of some discussion by the counsel of the respective parties. It appears that the last will was offered for probate before the first; that acting Judge Pond, then sitting for Judge Cutting in the probate court, heard the application for probate and upon a consideration of the evidence refused the will probate; that an appeal from the order refusing probate was prayed to the circuit court, and that before the time for perfecting the appeal had expired the parties in interest entered into an agreement that the order refusing the second will probate should be vacated and set aside and that both wills should be brought into court and a full hearing had before Judge Cutting; that after the time for appeal had expired it is claimed that Mary P. Saunders, widow and principal devisee under the first will, sought to disregard the stipulation in respect to the vacation of the order denying probate of the second will, and a petition was filed in the probate court setting up the stipulation and asking the probate court to enforce the stipulation by granting a full hearing upon the question of admitting the second will to probate. Without going into all the details of the controversy, it may be stated, generally, that such proceedings were finally had that there was a full hearing upon evidence in the probate court before Judge Cutting, which resulted in his refusing probate to the second and granting probate to the first will. From the order refusing probate of the second will an appeal was prosecuted to the circuit court and there the matter was heard upon its merits, resulting in an order again refusing the probate of the second will. The will disposes of both real and personal property. This writ of error is sued out to review the judgment of the circuit court denying probate to the second will.

Defendant in error contends that the probate court was without jurisdiction to set aside the former order and to

« AnteriorContinuar »