Welsch v. the Belleville Sav. Bank.
| Decision Date | 30 November 1879 |
| Parties | BARBARA WELSCHv.THE BELLEVILLE SAVINGS BANK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court of the Fourth District.
This was an action of replevin, brought by appellant against appellee, to the September term, 1878, of the St. Clair circuit court, for the recovery of certain United States bonds, amounting in the aggregate to $4000. Among the pleas filed to the declaration were the two following special pleas, designated as first and second special pleas, to-wit:
And for further plea in this behalf defendant says actio non, because it says that on the 25th day of February, A. D. 1878, an agreement in writing was made between one Barbara Welsch, the plaintiff herein, F. Herold, guardian for Arthur Herold, and the defendant, under the respective seals of the said parties, which was in words and figures following, viz:
“This agreement, made the 25th day of February, A. D. 1878, between Barbara Welsch, of the first part, and Ferdinand Herold, guardian of Arthur Herold, of the second part, and Belleville Savings Bank, party of the third part, witnesseth:
That whereas Wolfgang Welsch, late of St. Clair county, deceased, by his last will and testament, among other things willed and bequeathed to Arthur Herold $4000, to have and to hold the same upon the death of said Barbara Welsch, said Barbara to have the free and uncontrollable use thereof during her natural life. Now, therefore, it is agreed and stipulated between the aforesaid parties that four United States 5-20 bonds of the issue of March 3, 1865, of the par value of $4000 in the aggregate, be deposited for safe keeping in the Belleville Savings Bank; that Mrs. Barbara Welsch collect and receive during her natural life the interest thereon, and upon her death the said Arthur Herold to draw and receive the principal sum of $4000.
The said Belleville Savings Bank agrees to receive and hold said bonds as a special deposit, and to collect and pay the interest accruing thereon to the said Barbara Welsch during her natural life, and after her death to deliver said bonds to the said Arthur Herold. The said Ferdinand Herold, for said Arthur Herold, agrees to pay to said Belleville Savings Bank any charge for safe keeping or collection of interest. Said bonds, which are now called in for redemption by the United States, are to be exchanged by the said bank for other United States bonds at the best rate of interest that may be obtainable, and the bonds thus exchanged are to be held by the said bank under and subject to this agreement. In virtue whereof the said parties have executed this agreement in triplicate the day and year first aforesaid.
+------------------------------------+
¦BARBARA WELSCH, ¦[seal.]¦
+----------------------------+-------¦
¦F. HEROLD, ¦[seal.]¦
+----------------------------+-------¦
¦Guardian for Arthur Herold. ¦ ¦
+----------------------------+-------¦
¦BELLEVILLE SAVINGS BANK, ¦[seal.]¦
+----------------------------+-------¦
¦By Edward Abend, President.”¦ ¦
+------------------------------------+
Of which agreement one copy was delivered to said defendant, and defendant avers that under the said agreement, and by virtue thereof, the said bonds therein mentioned were deposited by said plaintiff in said bank, and were exchanged by the said bank for the bonds now replevied in this suit; and defendant avers that under said agreement it is its duty to hold said bonds during the period of the natural life of said plaintiff, which period has not as yet elapsed, and this the defendant is ready to verify, wherefore it prays judgment, etc.
And for a further plea in this behalf defendant says actio non, because it says that one Wolfgang Welsch died on the--day of _____, A. D. 187-, and at the time of his death said bonds were the property of said Welsch, and said Wolfgang Welsch left a last will and testament, which was duly probated in the probate court of said county and is now in full force, and which is in words and figures as follow:
“I, Wolfgang Welsch, of the town of Mascoutah, of the county of St. Clair and State of Illinois, of the age of sixty-five years, and being of sound mind and memory, do make, publish and declare this my last will and testament, in manner following, that is to say:
In consideration that in regard of claims of heritage my children, three adult daughters, viz: Lisette Lucius, Therese Rutz, Katharine Villinger, together with their husbands, Rudolph Rutz and Theodore Villinger, declare themselves already fully satisfied by the pecuniary supports, loans and gifts received of me since many years until the present time, as having received each and every one of them their justly and equally distributed share:
Now, therefore, I hereby give and bequeath all my estate, of whatever the same may consist, to my wife, Barbara Welsch, for her own free, independent and uncontrollable use and benefit for the term of her natural life, and that she may at her own wish at any time divide the same among her or our children or grandchildren: Provided, however, that my grandchild Arthur Herold shall receive from the estate she may leave at her death the sum of $4000, before said estate may be otherwise divided; and besides this, that the said Arthur Herold shall receive his equal share of the remainder as well as any other one of our heirs.
In witness whereof, I have hereunto set my hand and seal, this 30th day of July, 1871.
WOLFGANG WELSCH, M. D. [seal.]
‘Witness: Friedrich Jenning, Henry Beck.”
And that under said will the use of all the property of said Wolfgang Welsch was given to said Barbara Welsch for her natural life, if she chose so to retain it, but with the privilege of giving it or dividing it among her children or grandchildren, with a preference to the amount of $4000 to one Arthur Herold, her grandchild, at any time. And defendant avers that on, viz, the 20th day of February, A. D. 1878, the said plaintiff delivered bonds of the United States, of the value of $4000, to said defendant, with directions to said defendant to exchange said bonds for the bonds sued for, and to collect and pay the interest due thereon from time to time to said plaintiff during her natural life, and then deliver the same to said Arthur Herold; and defendant avers that under said directions it has taken possession of said bonds and exchanged them for the bonds in said declaration mentioned, and holds said bonds now, and this it is ready to verify, etc.
To which pleas the following replications were filed:
And the plaintiff, by way of replication to the plea of said defendant secondly above pleaded, says precludi non, because she says that the said Arthur Herold, in said plea mentioned, died after the execution of said writing in said plea mentioned, and before demand made by said plaintiff upon said defendant, and of which the defendant then and there had notice, and this the plaintiff is ready to verify, wherefore she prays judgment, etc.
And the plaintiff, by way of further replication to said defendant's second plea, by leave of court, etc., says precludi non, because she says that the said agreement in said plea mentioned was null and void, and made without consideration, and this the plaintiff is ready to verify, wherefore she prays judgment, etc.
And the plaintiff, by way of replication to the defendant's third plea, says precludi non, because she says that after the making of said will in said plea mentioned, and before demand made by plaintiff upon defendant for said bonds in plaintiff's declaration described, and before the vesting of any interest in said bonds in the said Arthur Herold, to-wit, on the --day of _____, 1878, said Arthur Herold departed this life, of which the said defendant had due notice, and this the plaintiff is ready to verify, wherefore she prays judgment, etc.
To these replications the court sustained a demurrer, and the plaintiff electing to stand by her replications, final judgment was rendered against her for costs, and a writ of retorno habendo awarded.
This judgment, on appeal to the Appellate Court for the Fourth District, was affirmed, and appellant by appeal brings the record to this court, and assigns for error the affirmance of the judgment of the circuit court by the Appellate Court.
Messrs. HAY & KNISPEL, for the appellant:
Messrs. G. & G. A. KŒRNER, for the appellee.
The argument in this case has been confined to the question whether or not Arthur Herold took, under the will, a vested remainder in the $4000 therein mentioned. And it seems to be conceded that if such interest was taken by him, this action was improperly brought and the Appellate Court committed no error in affirming the judgment of the circuit court. Appellee claims that he did take such interest, and that appellant, in depositing the fund with appellee for investment, safe-keeping and payment to her of the earnings and accumulations thereof during her life, was simply performing a duty which the law would have enforced on his application; and that after having performed this duty she is bound by her action, and will not be permitted to disturb the possession and control of the fund so long as the trust is faithfully performed. This we understand to be in substance the position of appellee.
On the other hand appellant denies that Arthur Herold took any such interest, but insists that by the provisions of the will appellant was given power to dispose of the estate absolutely, and that the grant of such power by necessary implication conferred upon her a fee simple interest, and that hence the limitation over to Arthur was inoperative and void; that at most he took a mere contingency or possibility, liable to be defeated at any moment that appellant might think proper to do so; and that, therefore, appellant had the unquestioned and exclusive right to control...
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