Millard v. Millard

• Decision Date: 17 April 1906
• Citation: 221 Ill. 86,77 N.E. 595
• Parties: MILLARD et al. v. MILLARD.
• Court: Illinois Supreme Court

221 Ill. 86

77 N.E. 595

MILLARD et al.

v.MILLARD.

Supreme Court of Illinois.

April 17, 1906.

Appeal from Appellate Court, First District.

Suit by Martha W. Millard, as administratrix of S. Millard, against Jane H. Millard and others. From a judgment of the Appellate Court, reversing a judgment in favor of defendants, they appeal. Affirmed.

Pattison & Shaw (Samuel Ware Packard and Dr. Forrest M. Neice, of counsel), for appellants.

Church, McMurdy & Sherman, for appellee.

CARTWRIGHT, C. J.

The appellee, Martha W. Millard, administratrix with the will annexed of the estate of her deceased husband, Winfield Scott Millard, filed her oill of complaint in this case in the circuit court of Cook county against Jane H. Millard, the mother, and appellants, Oscar F. Millard and Lucy M. Simpson, brother and sister of the deceased, alleging that at the time of his death, which occurred July 27, 1896, he was the owner of a large estate, comprising both real and personal property, including a large number of gold certificates, to the amount and value of several thousand dollars, a large number of interest-bearing bonds of a certain railway, and other bonds, bills, notes, securities, and money, which were kept by him in his private box in the vaults of the National Safety Deposit Company in Chicago; that the defendant Jane H. Millard and the deceased alone had access to the box; that shortly before or immediately after his death the defendant Jane H. Millard, with the other defendants, took from said box the gold certificates and railroad bonds, and other bonds, money, bills, and securities, and removed them to the state of Michigan, and wrongfully sold the railroad bonds, with the interest coupons attached thereto, and retained the proceeds; that complainant had no specific knowledge or information as to the description of the property abstracted from the box or the quantity thereof; and that the defendants falsely and wrongfully claimed that the deceased gave said property to said Jane H. Millard. The complainant prayed for an answer, not under oath, and for a discovery by the defendants whether, on or about April 22, 1896, or at any other time, they removed from said box and took into their possession bonds, moneys, securities for money, or other property, and, if they did so, calling upon them for a full and particular description of the same, and by what authority or claim of right they took said property, and what disposition they made of it. If they claimed the property as a gift, they were required to set forth the facts in relation thereto, with details of time and circumstances and the particulars of the alleged gift, and the bill prayed for relief according to its averments. The defendants severally answered, explicitly denying any personal knowledge as to whether or not the deceased ever owned the gold certificates or the railway bonds, or in regard to the bonds, bills moneys, securities, or property mentioned in the bill; and each defendant denied having gone, alone or with the codefendants, to the vault, and having removed from the box or having taken into possession the gold certificates or railroad bonds, or other bonds, moneys, bills, securities, or other property. To the interrogatories filed, each defendant answered that he or she did not, on or about April 22, 1896, or at any other time, either alone or in company with both or either of the other defendants, visit the vaults of the National Safety Deposit Company and take or remove any property, money, securities, or bonds therefrom.

Replications having been filed, the cause was referred to a master in chancery. The defendant Jane H. Millard died and her death was suggested in the circuit court on June 3, 1901, and the cause proceeded against the other defendants. The master took the evidence of the parties and filed his report on January 15, 1903, finding, in substance, that the deceased, Winfield Scott Millard, went to said safety deposit box in June, 1893, with his mother, Jane H. Millard, and then gave to her gold certificates amounting to $12,070 and bonds of the railway company mentioned in the bill and answers amounting to $5,000, with coupons attached thereto for interest at 7 per cent.; that the safety deposit box contained two compartments, and he put these securities in a package and placed them in a separate compartment; that on April 22, 1896, the defendants went to the box and took out the package, which then contained said gold certificates and railroad bonds, and in addition thereto a $50 greenback bill and a $10 gold piece; and that the facts proven constituted a completed and a valid gift by the deceased to said Jane H. Millard. The complainants filed exceptions to the report, which were overruled by the court, and a decree was entered dismissing the bill for want of equity. From that decree an appeal was taken to the Appellate Court for the First District, and the branch of that court reversed the decree and remanded the cause for futher proceedings in accordance with the opinion then filed. In that opinion the court found that there was no gift of the property by the deceased to Jane H. Millard, and that it belonged to the estate of the deceased Winfield Scott Millard. The judgment of the Appellate Court was such that no other proceeding could be had except to enter a decree in accordance with the opinion, and the case is brought here by appeal from that judgment.

It is first contended that the findings and conclusions of the master in chancery were final, and could not be questioned by the complainant for the reason that she consented that the issues might be referred to him. The argument is that by so doing she submitted the controversy to adjudicationby the master as an arbitrator, and that, having selected such arbitrator for the decision of the cause, his decision was final, in the absence of fraud, accident, or mistake. The record shows that the cause was referred to the master in chancery on motion of the solicitors for the complainant; the solicitors for the defendants appearing and consenting to the reference. The argument is not only novel, but it leads to the abseurd conclusion that, if a party moves the court to make an order under the statute, all rules of chancery practice are thereby set aside and the party thereby forfeits his right to object to the findings of the master or to file exceptions thereto. Section 39 of chapter 22 of the Revised Statutes of 1903 (Hurd's) provides that the court may, upon default or upon issue being joined, refer the cause to a master in chancery to take and report evidence, with or without his conclusions. Such a reference by the court is not the selection of an arbitrator by either party, whether such party asks the court to refer the cause or not.

It is next urged that, where the evidence is conflicting and the conclusion depends upon the credibility of the witnesses, the findings of a master who has seen and heard the witnesses testify, when approved by the chancellor, will not be set aside unless clearly against the evidence, and for that reason the Appellate Court erred in reversing the decree. Whatever the rule may be, the testimony in this case to nearly all the material facts was not given before the master, but was read from the evidence given before the probate court in another proceeding. So far as any rule respecting the weight of the evidence could be applied, it does not appear that the Appellate Court did not apply it, since is appears from the opinion that the Appellate Court found the findings of the master and chancellor to be clearly and manifestly against the evidence. The next point made is that the complainant was disqualified as a witness to testify for the estate of her husband as to any transaction or conversation occurring during the marriage, even though the marriage relation had been terminated by his death, and that the Appellate Court erred in considering her testimony. That question was not raised either before the master or in the circuit court. The complainant was produced as a witness before the master, and the defendants, who were represented by counsel, made no objection to her testimony, or any part of it, for want of competency. They cross-examined her at length, and it is too late to raise the question. If any portion of her testimony was incompetent, it was the duty of the defendants to object in apt time, and the courts will not permit the testimony of a witness to be offered and received without objection before the master and in the trial court and entertain an objection to the competency of the witness afterward. Doty v. Doty, 159 Ill. 46, 42 N. E. 174. If an objection had been interposed on the ground that the witness was not competent to testify to certain facts, it may be that the same facts could have been proved by other testimony, and the question of the competency of a witness cannot be raised for the first time in an appellate tribunal.

The complainant, to prove the allegations of her bill, offered in evidence portions of the testimony of the defendants given in the probate court in a proceeding for the discovery of property of the estate alleged to have been concealed or to be in their possession. It was thereby proved that the defendants, on April 22, 1896, went to the safety deposit box of the deceased, of which Jane H. Millard had the key, and took therefrom $12,070 in gold certificates, railway bonds amounting to $5,000, with coupons representing a year's interest of $350, a $50 greenback, and a $10 gold piece, and that neither the deceased, nor any one representing him, was present. The defendants then offered in evidence other portions of their testimony in the probate court for the purpose of establishing a gift of the property taken from the box by the deceased to the defendant Jane H. Millard. The evidence was objected to, but was...