Neville v. Jennings

Mr. Presiding Justice Harker delivered the opinion of the Court. Appellant, as administrator of the estate of Joseph Jennings, procured from the County Court of McLean County a citation against Wilford Jennings and Luke Cornell, under section 81 of the statute relating to the administration of estates, to compel them to disclose their knowledge of evidence of indebtedness, and other effects belonging to the estate which they had concealed. During the examination in the County Court it was disclosed that three promissory notes in controversy were in the possession of F. T. Hamilton, who had been the attorney of Joseph Jennings in his lifetime; whereupon he was made a party defendant to the proceedings. After an extended examination, the court found that a promissory note for $2,737.50, executed by J. B. Morseman to Josephine Murphy and by Josephine Murphy indorsed to Joseph Jennings, in the hands of Hamilton, with an indorsement from Joseph Jennings to Wilford Jennings, was part of the estate of Joseph Jennings, and ordered Hamilton to turn it, with $172.62 interest collected thereon, over to appellant. It found that two notes in the possession of Hamilton, dated October 2, 1894, one for $3,310 and the other for $3,309.20, both signed by Wilford Jennings and payable to Joseph Jennings, did not belong to Joseph Jennings at the time of his death, and refused to order them to be turned over to appellant. An appeal was prosecuted to the Circuit Court of McLean County,' where the case was heard by agreement upon the same evidence, furnished by the shorthand reporter who reported the evidence in the County Court. After the hearing in the County Court the judge of that court was elected circuit judge, and was the presiding judge upon the second trial. He adhered to the views entertained by him on the first trial and pronounced the same judgment. Appellant assigns for error the holding of the Circuit Court that the two notes executed by Wilford Jennings to Joseph Jennings were not part of the estate, and its refusal to hold that Wilford should turn over to the administrator as part of the estate, the proceeds of certain stock which Joseph Jennings held in his lifetime in Shinkle’s Loan Association, and which was collected by Wilford in 1894. Appellees assign as cross-errors the holding of the court that the note executed by J. B. Morseman was part of the estate, and ordering it to be turned over to the administrator. We could dismiss the contention that the court erred in refusing to hold that the proceeds of the stock in Shinkle’s Loan Association were part of the estate, by simply saying that this point is now made for the first time. It was not raised by any proposition for holding or otherwise. While appellant filed a motion for a new trial in which he specified the grounds of his motion, he did not make this one of them. Where a party in a written motion in the trial court specifies the grounds for a new trial, he will, in the Appellate Court, be confined to the reasons so specified, and will be held to-have waived all causes for a new trial not so specified. Ottawa, O. & F. R. V. R. R. Co. v. McMath, 91 Ill. 104. But we prefer to approve the action of the court on this branch of the case by saying that there was no evidence offered to justify a conclusion that the proceeds of the stock belonged to the estate. The stock was given and assigned to Wilford by his father, and collected by him. long before his father’s death. We think that the court correctly held that the Horseman note belonged to Joseph Jennings at the time of his death. There is evidence showing that he intended to make a present of it to his son, but the gift was never made complete. True, he indorsed it and delivered it to his attorney, Hamilton; but it has never been delivered to Wilford. It remained in the possession of Hamilton up to the time of his death, just as we are led to conclude from the evidence that he intended it should. His death revoked the authority of Hamilton to deliver it to Wilford. To constitute a valid gift inter vimos it is essential that the thing given be actually delivered. It must take effect at once and completely. If there is not a manual delivery to the donee there must be to his agent or trustee. The donor must relinquish all present and future dominion over the subject-matter of the gift. If delivered to his agent to be subsequently delivered to the donee he may at any time before the agent acts, revoke his authority. His death before delivery revokes it. Telford v. Patton, 144 Ill. 611; McCartney v. Ridgway, 160 Ill. 129; Williams v. Chamberlain, 165 Ill. 210. We have not experienced -much difficulty in arriving at the conclusion that the action of the Circuit Court with reference to the proceeds of the stock in Shinkle’s Loan Association and the J. B. Horseman note was right. To arrive at a conclusion satisfactory to ourselves upon the contention that the court erred in holding that the two notes executed by Wilford Jennings did not belong to the estate has been fraught with some perplexity, however. It is insisted by appellees that those notes are but part of a contract between Joseph Jennings and his son for the sale of a tract of land embracing 82.74 acres which belonged to Joseph. The purchase price, they contend, was $3,200, to be paid to Emeline Larue and the children of Lucinda Janes as provided by a certain contract executed by the parties on the 2d of October, 1892, and left with Hamilton. At the same time a deed to the land was executed and delivered to Wilford. The consideration mentioned in the deed is $6,619.20, the amount of the two notes. The contract and notes left with Hamilton are as follows : “ October 2, 1894. It is hereby agreed by and between Joseph Jennings and Wilford M. Jennings, both of McLean county, 111., that two notes dated October 2] 1894, for $3,310 and $3,309.20 respectively, given by Wilford M. Jennings to Joseph Jennings, shall be left in escrow with F. Y. Hamilton on the following condition and terms: Hpon the death of said Joseph Jennings, the said Wilford M. Jennings shall pay the bequests made by the said Joseph Jennings by his last will and testament as follows, viz.: To Emeline Larue, or her children in case of her death, the sum of $1,200, as specified in said will, and to the children of Lucinda Janes, living on the 6th day of December, 1890, the sum of $1,000 (one thousand dollars), as specified in said will, and when all of said payments shall have been made by said Wilford M. Jennings, then the notes herein described shall be canceled and delivered up to the said Wilford M. Jennings'as fully paid and discharged. Receipts from said parties or their legally constituted representative or representatives, shall be 'sufficient evidence to the said Hamilton for the delivery of said notes under this agreement. Dated the day and year first above written. Joseph Jennings. Wilfoed Jennings.” “ $3,310. Bloomington, III., October 2, 1894. One year after date I promise to pay to the order of Joseph Jennings $3,310, at Bloomington, Illinois. Value received without interest. Wilfoed M. Jennings.” On the back of this note is • indorsed: “ December 1, 1895. Paid on within note, one thousand dollars.” “ $3,309.20. Bloomington, III., October 2, 1894. • Two years after date I promise to pay to the order of Joseph Jennings, three thousand, three hundred and nine and 20-100 dollars at Bloomington, Illinois. Value received (without interest). Wilford H. Jennings.” The support of the contention that the real consideration for the-conveyance of the land was"the promise of Wilford Jennings to pay $3,200, according to the • directions of his father, is the testimony of Wilford and Hamilton. As opposed to it are the facts that the land at the time of the conveyance was worth $80 per acre, that the consideration of $6,619.20 mentioned in the deed represented its actual value, and that the notes given in payment thereof aggregate that sum to a cent. While it is always admissible to show that the consideration for a conveyance was different from that mentioned in the deed, yet, where notes have been executed and delivered that fixed the amount of the consideration, it would be exceedingly dangerous to allow them to be overcome by parol proof, especially when coming from the mouth of a grantee sued by the administrator of his deceased grantor. When Wilford secured the deed he paid .no cash. The purpose of executing notes was to secure the purchase money. If, at the time, Joseph Jennings intended to sell the land for less than half its value, $3,200, it is difficult for us to see why he should require his son to execute his notes for the amount of its real value. The will mentioned in the so-called' escrow, contract was destroyed, and Joseph Jennings died intestate. There were no such bequests ás those mentioned in the will. If the construction contended for by appellees be placed on the transaction, who can bring suit against Wilford ? Certainly not the beneficiaries in contemplation. It is contended there was no delivery of the notes. The contract speaks of the. note® as having been given by Wilford Jennings to Joseph Jennings. The fact is prominent that Hamilton had been the attorney of . Joseph Jennings for years. He was his legal adviser at that time and in this transaction. He never had been the attorney of Wilford. The papers were left with him and held by him as the attorney and agent of Joseph Jennings. We think there was a sufficient delivery. A consideration of all the facts and circumstances surrounding the transaction and the closing years of Joseph Jennings’ life lead us to the conclusion that he sold this tract of-land to Wilford for $6,619.20; that the notes were executed and delivered to secure the purchase money and that he then attempted to make a testamentary disposition of $3,200 of them to Emeline Larue and the children of Lucinda Janes, and $3,419.20 of them to Wilford. If we are correct in that conclusion of fact, then, under the authorities already cited, the attempted disposition has failed in legal accomplishment, and the court should have ordered the notes turned over to the administrator. The decree of the Circuit Court so far as it relates to the Horseman note is affirmed, but is reversed so far as it relates to the two notes executed by Wilford Jennings; and the case is remanded, with directions to decree that the two last mentioned notes are part of the estate of Joseph Jennings, and order them turned over to the administrator. Affirmed in part, reversed in part and remanded with directions.