Merchants' Loan & Trust Co. v. Egan

• Decision Date: 23 October 1906
• Citation: 222 Ill. 494,78 N.E. 800
• Court: Illinois Supreme Court
• Parties: MERCHANTS' LOAN & TRUST CO. v. EGAN.

222 Ill. 494

78 N.E. 800

MERCHANTS' LOAN & TRUST CO.

v.EGAN.

Supreme Court of Illinois.

Oct. 23, 1906.

Appeal from Appellate Court, First District.

Action by Dominick Egan, executor of the will of Thaddeus J. Butler, deceased, against Patrick J. Sexton. On the death of defendant, his executor, the Merchants' Loan & Trust Company, was substituted. From a judgment of the Appellante Court affirming a judgment for plaintiff, the defendant appeals. Affirmed.McCulloch & McCulloch, for appellant.

Moran, Mayer & Meyer, for appellee.

This is an action in trover, brought by appellee in the circuit court of Cook county against Patrick J. Sexton (who died pending the trial and whose executor was substituted as defendant) to recover certain bonds of the face value of $29,000 and a promissory note for the sum of $5,000, payable to the order of Thaddeus J. Butler and made by John Ireland. Defendants pleaded general issue. Jury was waived, and the cause submitted to the court for trial. The court found for the plaintiff, assessing his damages at $34,378.52, and entered judgment on the finding.

Dr. Thaddeus J. Butler was a Catholic priest of the diocese of Chicago, and had officiated as rector of St. John's parish, in that city, from 1887 until shortly before his death June 23, 1897, he left Chicago for Rome, Italy, expecting to be there consecrated as Bishop of Kansas. He died at Rome, July 16, 1897. He made his will June 23, 1897, the day he left Chicago. The following bequests were made by the will: Testator's brother, Patrick T. Butler, $5,000 for the use of the Church of Immaculate Conception, Chicago; Miss Nellie Cunningham, $5,000 for the convent of Rathfarnum, Ireland, conditioned on certain life payments to testator's sister; testator's brother, Francis J. Butler, $1,000, or ±200, in case he survive testator; the Rev. Dominick Egan, $2,000 to be expended for masses for the repose of testator's soul; Archbishop P. A. Feehan, for the use of the Church of St. James at Rockford, Ill., of which testator was formerly pastor, $3,000. The last paragraph of the will reads as follows: ‘The rest, residue and remainder of all my real and personal estate I give, devise and bequeath the same unto the Rev. Dominick Egan, of St. Stephen's Church, Chicago, my very dear and trusted friend. I hereby appoint the said Rev. Dominick Egan executor of this my will, and ask that no bonds be required of him.’At the time of testator's death his will was in a vault in the Rookery Building, in the city of Chicago. Miss Margaret McNamara, his housekeeper, was custodian of the will and delivered it to the Rev. Egan, informing him that he was appointed executor. In 1895 testator rented box 5,294 from the National Safety Deposit Company in the First National Bank building of Chicago. This box was leased to Butler in his own name and P. J. Sexton was named as deputy. The lease of the box was afterwards changed on June 24, 1896, at the testator's request, to run to him and Sexton jointly. The testator had a key to the box after the lease was changed. This key he had when he left Chicago for Rome. Sexton testified that he had a key to the box in March, 1897. He also testified that he had a box of his own in another safety vault and testator had other boxes in other vaults. There is nothing in the evidence to indicate that Sexton ever kept any of his own papers or documents in box 5,294, or that he ever opened the box until after Dr. Butler's death. He testified that he was at the box once in March, 1897, with the testator. After Dr. Butler's death Sexton stated that the third day following the decease he opened the box and found a large envelope marked ‘Instructions,’ in Dr. Butler's handwriting; that in this envelope there was some correspondence between Dr. Butler and Archbishop Ireland, with a note of the latter for $5,000; that there was written on the envelope: ‘Friend P. J. Sexton: Destroy this correspondence in the event of my death,’ and ‘$5,000-NO,’ BELOW. HE FOUND IN THE box another LArge envelope, apparently containing securities, on the back of which were memoranda scratched both ways; the purport of which Sexton had no special recollection. Sexton claimed that Dr. Butler, shortly prior to his death, gave him the bonds and note. The probate court found the bonds and note a part of Dr. Butler's estate. On appeal from the decision of that court the matter was heard in the circuit court and decided in the same way. That cause was appealed to the Appellate Court and error confessed as to the description of the bonds, but denied in all other respects. This suit was then started in the circuit court, and judgment rendered as heretofore stated and affirmed by the Appellate Court.

CARTER, J. (after stating the facts).

The finding of the Appellate Court is conclusive as to all the facts in the case. Appellant claims that the trial court ruled improperly on the admission and exclusion of testimony. There is some discussion in the briefs as to the burden of proof. We think where the title to property is claimed as a gift, the burden of proof is undoubtedly on the one claiming the gift. In any event, the cause was submitted to the trial court and its finding cannot be disturbed, since that finding has been affirmed by the Appellate Court. The issue in Riggs v. Powell, 142 Ill. 453, 32 N. E. 482, cited by appellant on this question, so differs from the issue in this case that it can have little weight here.

The serious contention centers about the right of Sexton to testify on certain subjects about which he was questioned by his counsel. Sexton was called as a witness under section 81, c. 3, Hurd's Rev. St. 1905, p. 118, on the administration of estates, which is as follows: ‘If any executor or administrator, or other person interested in any estate, shall state upon oath, to any county court, that he believes that any person has in his possession, or has concealed or embezzled, any goods, chattels, moneys or effects, books of account, papers or any evidences of debt whatever, or titles to lands belonging to any deceased person; or that he believes that any person has any knowledge or information of or concerning any indebtedness or evidences of indebtedness, or property titles or effects, belonging to any deceased person, which knowledge or information is necessary to the recovery of the same, by suit or otherwise, by the executor or administrator, of which the executor or administrator is ignorant, and that such person refuses to give to the executor or administrator such knowledge or information, the court shall require such person to appear before it by citation, and may examine him on oath, and hear the testimony of such executor or administrator, and other evidence offered by either party, and make such order in the premises as the case may require.’ Sexton's testimony on the citation before the probate court was taken down in shorthand, a part of it having been introduced by appellee on this trial in the court below, and the balance having been introduced by appellant. Appellant's counsel contend that, because of the introduction of the evidence taken on citation before the probate court, Sexton was rendered a competent witness to testify as to all matters pertaining to the bonds and note, whether occurring before or after the death of Dr. Butler. It is contended that by introducing this evidence Sexton was thereby called as a witness by the executor, who was an adverse party within the meaning of section 2, c. 51, Hurd's Rev. St. 1905, and that being so called he was rendered competent to testify in the present suit as to all matters material and relevant. Section 2 is as follows: ‘No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely.’ There are four exceptions given in the statute, none of which are applicable to the present point under discussion.

The incompetency of witnesses because of interest has invoked much discussion. Many authorities have been cited by learned counsel in their briefs. Appreciating the importance of the question we have given it full and careful consideration. In the well-considered opinion of the Appellate Court by Adams, J., the point at issue is clearly set forth, as follows: ‘The language of section 2, c. 51, is: ‘No party to any civil action * * * shall be allowed to testify therein of his own motion or in his own behalf * * * unless when called as a witness by such adverse party so suing or defending.’ By the section the prohibition against testifying refers expressly to the pending suit in which one sues or defends in one of the characters named in the section, by the use of the word ‘therein,’ and the exception to the prohibition, ‘unless when called as a witness,’ etc., is an exception to the prohibition, and the section is to be read as if the word ‘therein’ [which is evidently understood] followed next after the word ‘witness,’ so that the reading would be, ‘unless when called as a witness therein,’ etc. The statute does not mean that if the party has been called by the ‘adverse party so suing or defending’ in a previous suit or proceeding between the same parties and in respect to the same matters he may testify in the pending suit; and even though it should be thus construed, it would, as we think, have no application to the present case. The proceeding under section 81 of the administration act is not a suit, nor is the...