Miller v. Western Coll. of Toledo

• Decision Date: 21 December 1898
• Citation: 177 Ill. 280,52 N.E. 432
• Parties: MILLER et al. v. WESTERN COLLEGE OF TOLEDO.
• Court: Illinois Supreme Court

177 Ill. 280

52 N.E. 432

MILLER et al.

v.WESTERN COLLEGE OF TOLEDO.

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from appellate court, Second district.

In the matter of the estate of Mary Beatty, deceased, the Western College of Toledo obtained a judgment against Jacob Miller and another, executors, and they appealed to the appellant court, which affirmed the judgment (71 Ill. App. 587), and they again appeal. Affirmed.Scott & Davis and Geo. S. Skinner, for appellants.

Owen G. Lovejoy, for appellee.

Mary Beatty lived in her lifetime at Dover, Bureau county, Ill. She died testate on December 7, 1893, at the age of about 74 years. By her will she made Jacob Miller and Darius F. Fay executors, to whom letters testatmentary were issued on January 5, 1894, by the county court of Bureau county, where her will was admitted to probate. On March 20, 1894, the appellee filed a claim against the estate of Mary Beatty in said county court, which claim was the note hereinafter described. The matter of the claim was subsequently taken by appeal to the circuit court of Bureau county. In the county court and in the circuit court, appellants, as executors of the estate of Mary Beatty, filed the certificates hereinafter described as a set-off against the claim of the appellee. The case was tried in the circuit court before the court and a jury. Testimony was taken, and instructions were given by the court, and the trial resulted in verdict and judgment for the appellee for the sum of $6,361 against the estate of Mary Beatty to be paid as a claim of the seventh class. An appeal was taken from this judgment to the appellate court, and the judgment has been there affirmed. The present appeal is from such judgment of affirmance.

The note, filed as a claim against the estate of the deceased, is as follows:

‘$7,000.00. Dover, Ill., Dec. 9, 1887. In consideration of a desire to aid the cause of Christian education, and the privilege of sending one student four years free of tuition, I promise to pay to the order of the treasurer of Western College, of Toledo, Iowa, for the erection of the Ladies' Boarding Hall of said college, on or before the first day of December, 1910, the sum of seven thousand dollars, without interest: provided, that in the event of my death before the maturity of this note it shall become then due. Mary Beatty. P. O.: Dover. County: Bureau. State: Ill. Witness: H. H. Maynard. W. M. Beardshear.’

The certificates, filed by the appellants as a set-off to the claim of appellee, are as follows, to wit:

‘In consideration of the agreement on the part of Western College, or Toledo, Iowa, that it will keept up and maintain its college and increase its facilities for a Christian education, and in further consideration of the payment to Mrs. Mary Beatty of one hundred eighty-seven and 50/100 dollars each and every year of her natural life, the first payment to be made one year from the date hereof, the said Mrs. Mary Beatty has deposited with the said Western College the sum of twenty-five hundred dollars for the benefit of, and to become and be the property of, said Western College, and to be used as the board of trustees or executive committee thereof may direct. Witness my hand, this 6th day of Aughust, 1889.

‘$187.50.

L. H. Bufkin, Treasurer.'

And on the back thereof appears the following, to wit:

‘We hereby guaranty the payment of the within annuity. L. H. Bufkin. M. S. Drury.

‘Aug. 6, 1890, paid one year's annuity.

‘Oct. 9, 1891, paid one year's annuity.’

‘In consideration of the agreement on the part of Western College, of Toledo, Iowa, that it will keep up and maintain its college and increase its facilities for a Christian education, and in further consideration of the payment to Mrs. Mary Beatty of fifty-two and 50/100 dollars each and every year of her natural life, the first payment to be made one year from the date hereof, the said Mrs. Mary Beatty has deposited with the said Western College the sum of seven hundred dollars for the benefit of, and to become and be the property of, said Western College, and to be used as the board of trustees or executive committee thereof may direct. Witness my hand, this 4th day of April, 1889.

‘$52.50.

L. H. Bufkin, Treasurer.'

And on the back thereof appears as follows:

‘We guaranty the payment of the within annuity. L. H. Bufkin. M. S. Drury.

‘April 4, 1890, paid within year's annuity.

‘April 4, 1891, paid on the year's annuity. Mary Beatty.

‘April 15, 1892, paid one year's annuity.’

‘In consideration of the agreement on the part of Western College, of Toledo, Iowa, that it will keep up and maintain its college and increase its facilities for a Christian education, and in further consideration of the payment to Mrs. Mary Beatty of two hundred sixty-two and 50/100 dollars each and every year of her natural life, the first payment to be made one year from the date hereof, the said Mrs. Mary Beatty has deposited with the said Western College the sum of thirty-five hundred dollars for the benefit of, and to become and be the property of, said Western College, and to be used as the board of trustees or executive committee thereof may direct. Witness my hand, this 16th day of November, 1888.

‘$3,500.00.

L. H. Bufkin, Treasurer.'

And on the back thereof appears the following, to wit:

‘We hereby guaranty the payment of the annuity to Mrs. Mary Beatty according to the terms of the within certificate. L. H. Bufkin. M. S. Drury. W. M. Beardshear.

‘Received on the within, $262.50, Dec. 5, 1889. Mary Beatty.

‘Received on the within, $262.50, Dec. 5, 1890. Mary Beatty.

‘Paid on the within, $262.50, by note dated Nov. 16, 1891.’

Appellants also introduced as a part of their chain of set-off a note for $262.50 given for one of the installmentsof interest or annuity due upon the certificate for $3,500, which note is as follows, to wit:

‘$262.50.

Toledo, Iowa, Nov. 16, 1891.

‘One year after date, for value received, I promise to pay to Mary Beatty or order, at Dover, Ill., two hundred and sixty-two and 50/100 dollars, with interest thereon at eight per cent. per annum from date, until paid.

‘Western College,

‘By J. S. Mills, Pres.

‘J. S. Mills.

‘M. S. Drury.’

The appellee is a college located at Toledo, in the state of Iowa, and is under the management of the denomination known as the United Brethren in Christ. Prior to December, 1887, the college had commenced the erection of a building to be known as the ‘Ladies' Boarding Hall’ of the college, and had expended upon the stone foundation thereof the sum of $2,000, donated to it by a man in Ohio, named Dodds. In December, 1887, representatives of the college appealed to the deceased, Mary Beatty, at her home in Dover, Ill., for a donation of $10,000, to complete the erection of said hall, she being a member of the denomination to which the college belonged. On December 9, 1887, she was visited by H. H. Maynard, a soliciting agent of the college, and W. M. Beardshear, president of the college. On December 3, 1887, she had given to Maynard $500 in cash, a note for $1,500, payable on or before December 3, 1890, and a note for $5,000 of like tenor with the note for $7,000 above set forth. On December 9, 1887, she destroyed the $5,000 note, and gave to Maynard and Beardshear the $7,000 note above described, and also a short-time note for $1,000. The note for $1,500 and the $500 in cash were allowed to remain in their hands. The two notes for $1,000 and $1,500 were paid before July 10, 1888, making $3,000 in cash received from the deceased by the college up to the latter date. Nothing was paid by the deceased upon the note for $7,000 during her lifetime. But she paid the $6,700 named in the three certificates at the respective dates thereof, to wit, $3,500 November 16, 1888, $700 April 4, 1889, and $2,500 August 6, 1889. A contract was let for the construction of the building upon the foundation already referred to in the latter part of July, 1888. The building was finished and dedicated on September 4, 1889, after the amounts named in said certificates had been paid in full. The evidence showed that nearly all, if not all, of the $6,700 mentioned in the certificates was used in the construction of the building. The proof also shows that the $3,000 paid before July 10, 1888, was used in the construction of said building.

MAGRUDER, J. (after stating the facts).

In this case, the appellants claim that the note for $7,000 filed as a claim against the estate of Mary Beatty was without consideration, and was a mere promise to make a donation or gift to the college of the sum evidenced by said note after the death of the donor, and, as such, was testamentary in its nature, and in violation of the statute of wills, and therefore of no binding force or validity, and not a legal claim against the estate of the deceased. Appellants also claim that the sum of $6,700 represented by the three certificates set forth in the statement preceding this opinion was only deposited conditionally with appellee, and was only to become the money of the appellee upon the performance of the conditions set forth on the face of the instruments; that such conditions are conditions precedent, and were to be performed before the title to the money could vest in the appellee; that, when Mary Beatty died, installments of money were due to her on each of said certificates, payment of which had been demanded of the appellee in the lifetime of the deceased, and has been refused; and that thereby the appellee had forfeited its right to retain the $6,700 deposited with it. Appellants also insist that the sums constituting the $6,700 were not complete and executed gifts, and that the title to the money did not vest in the appellee, because it was deposited conditionally; and that, therefore, the gift was not complete at the death of Mary Beatty, and was revoked by her death. On the other hand, the appellee claims that the note for $7,000 is supported by a...