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in the Deer Creek ranch, which the witnesses stated was school land.

We think it apparent from the proof that the widow has not the experience and knowledge of business that will enable her to conduct either the ranch or the Custer Park farm through a superintendent, stocking them and operating them with her own means, to good advantage; but we are not disposed to hold from this record that those two properties cannot be rented for amounts that will exceed the cost of their maintenance. No necessity appears for the sale of any of the real estate. The income from the personal estate of the deceased may be far greater than is necessary to support the widow in the abundance to which she has been accustomed and pay any deficiency that may exist in the cost of maintaining the real estate after the application of its income to that purpose, if there should be any such deficiency hereafter.

The motives animating the adult members of the family of George Adams appear from the testimony of Mr. Thompson. He says: "In my opinion, it would be to the best interests of the estate if the real estate, other than the homestead-possibly with the exception of the ranch-should be sold and disposed of. By that I mean the Nebraska ranch. Outside of that there is none of the property that is self-supporting. It is my opinion that it is to the best interests of the estate that provision be made for the sale of all real estate, including the ranch, so that, in the event sales can be made, the estate will be in a position to carry them into effect. That is the opinion and judgment of all parties interested. I have conversed with them, and know." It is evident that what is sought by the complainant in the bill is simply a better investment-one that will yield her a greater income; and, however prudent and commendable that may be from a business standpoint, it is not within the contemplation of the will. The case of Johns v. Johns, 172 Ill. 472, 50 N. E. 337, was a case where there was a trust. So far as the necessity or the propriety of a court of chancery directing the sale of the fee in the real estate, that case is much akin to the one at bar. There this court said (page 485, 172 Ill., and page 342, 50 N. E.): "The mere fact that a sale of the land might benefit the beneficiaries more than the compliance with the terms of the trust does not furnish a reason for a decree ordering the title of the land to be disposed of in opposition to the manifest wish of the donor. The duty of the court in dealing with such a trust is to observe and carry out the purposes and plans of the donor, unless the preservation of the subject-matter of the trust, or some other like necessity, demands interference with his will and intention. The evidence does not disclose a condition of such urgency or necessity. The decree is grounded solely upon the interest and convenience of the immediate beneficiaries."

The judgment which we will enter in this case, and the decree of the court below so far as affirmed by this court, will not prejudice the right of the life tenant, or other persons interested, to hereafter apply to a court of chancery for a decree directing the sale of the real estate, or any part thereof, through a trustee or otherwise, for any reason arising after the date of the filing of the bill herein.

The decree of the superior court, in so far as it adjudges that Elizabeth Adams has power to sell and convey any of the real estate of George Adams, deceased, in fee, and in so far as it adjudges that she cannot be required to account to his children or descendants for any portion of the corpus of his estate, real or personal, consumed by her, is reversed. In all other respects that decree is affirmed. The cause will not be remanded.

Decree reversed in part.

PEOPLE ex rel. DENEEN v. BELINSKI. (Supreme Court of Illinois. Dec. 16, 1903.)

ATTORNEYS-MISCONDUCT-DISBARMENT.

1. P. applied to defendant, an attorney, to obtain a divorce for him, and paid defendant $50 for his services. Thereafter defendant falsely represented to P. that a bill had been filed and a decree entered in his favor, and gave P. a copy of a fictitious decree. Relying on defendant's statements and such pretended decree, P. remarried, and was subsequently indicted for bigamy, but before his arrest defendant went to his house and on a false representation obtained possession of the copy of the decree, and refused to return it. The mother of P.'s second wife testified that before her daughter's marriage to P. witness called on defendant and inquired if P. was divorced, and that defendant informed her that he was divorced and had the right to remarry. Held, that such facts showed defendant guilty of misconduct warranting his disbarment.

Information by the people, on relation of Charles S. Deneen, for the disbarment of Clement J. Belinski, an attorney. Rule for disbarment absolute.

Willard M. McEwen, David S. Geer, John T. Richards, and Frank B. Pease (Fred H. Atwood and Louis B. Dorr, of counsel), for relator. Darrow & Masters, for respondent.

HAND, C. J. This is an information filed in this court by the state's attorney of Cook county, at the instance of the grievance committee of the Chicago Bar Association for the disbarment of Clement J. Belinski, an attorney admitted to practice by this court on June 15, 1894, and who since that time has been engaged in practicing his profession in the courts of Cook county. The respondent filed an answer denying the charges contained in the information, and the testimony has been taken and reported to this court by a master in chancery.

The questions arising upon this record are questions of fact, and not of law. It clearly

appears from the pleadings and proofs that the professional conduct of the respondent has been most reprehensible. He is a foreigner by birth, and his victims who have testified against him are people of his nationality. The evidence shows that in the fall of 1900 the respondent was retained by Joseph Piotrowski to procure for him a divorce; that, without taking any legal steps towards procuring his divorcement, the respondent falsely and willfully represented to him that he had filed a bill and a decree had been entered in his favor, and gave to him a copy of a fictitious decree; that Piotrowski, relying upon his statements and said copy of a pretended decree for a divorce, thereafter remarried; that he was subsequently arrested, and afterwards indicted for bigamy; that soon after the remarriage of Piotrowski, but before his arrest, the respondent went to his house and represented to him that the number upon the copy of the decree which he had given him was wrong, and obtained the possession thereof with a view to have it corrected, and upon obtaining possession thereof refused to return the same to Piotrowski. The evidence further shows that respondent received $50 as fees for his services from Piotrowski. The respondent admits he was retained by Piotrowski to obtain for him a divorce, but denies that he ever represented to him that he had filed a bill and that a decree of divorce had been entered, or ever gave to him a paper purporting to be a copy of the decree. His statement is uncorroborated, and he is contradicted by the testimony of two witnesses (in addition to that of Piotrowski), who testified they went with Piotrowski to the office of the respondent to give evidence in the divorce case; that they accompanied the respondent and Piotrowski to the courthouse in Chicago; that they waited for a time, when the respondent said to Piotrowski that he and his witnesses could go home and he would get the divorce. Several witnesses also testified that Piotrowski exhibited to them a copy of a decree for a divorce from his first wife, and that the respondent's name appeared thereon as solicitor; and the mother of the second wife testified that before her daughter's marriage to Piotrowski she called upon the respondent and inquired of him if Piotrowski was divorced and had the right to remarry, and he informed her that he had been divorced from his first wife and had the right to remarry. Several witnesses also testified they were present when the respondent called at the house of Piotrowski and procured the copy of the decree, at which time he said he desired to have the court correct the number thereon, when he would return the same. A number of the neighbors of the respondent also testified that his general reputation for truth and veracity was bad, and that they would not believe him under oath.

It is impossible for this court to conceive

of more unprofessional conduct upon the part of an attorney than for him to represent to an ignorant man, who had employed him to obtain for him a divorce, that he had filed a bill and obtained a decree of divorce, and to mislead and deceive him by delivering to him a copy of a fictitious decree, and to represent to the mother of the woman whom he was about to make his second wife that her prospective son-in-law was divorced, when he had not filed a bill or taken any steps toward obtaining for his client a divorce, and when he had not been divorced. The obtaining of money from a client under such circumstances is a gross fraud, and is little better than larceny of the money thus obtained. The harmful results, however, which may follow such misconduct are far more serious than that of thus fraudulently obtaining money from a client. The victim of such misconduct is apt to remarry and subject himself to a criminal prosecution for bigamy and to conviction and incarceration in the penitentiary, and an innocent woman might find herself, as the result of such conduct, living in an open state of adultery with a man whom she supposed to be her lawful husband, while the children of such union would be illegitimates. An attorney who would practice such a fraud upon a client and upon society is devoid of all principle, and is unworthy to belong to the legal profession, and should be immediately disbarred by the court that conferred upon him a privilege which made it possible for him to perpetrate so great a wrong, upon such misconduct being brought to its attention.

The evidence shows that the respondent has been guilty of other unprofessional conduct. The wrong, however, done Piotrowski is of so grave a character as to warrant the disbarment of the respondent, and in view of that fact we have not deemed it necessary to review the evidence in the record, which establishes beyond doubt the other specific charges against the respondent contained in the information.

The rule heretofore entered against the respondent will be made absolute, and an order will be entered striking his name from the roll of attorneys of this court. Rule made absolute.

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2. An instruction that if, in putting in the evidence or in argument counsel has made any statement not based upon the evidence, the jury should wholly disregard such statement, is not objectionable for failure to distinctly say that the statements of counsel referred to were statements in reference to the facts in the case, the instruction not amounting to a direction to disregard the arguments of counsel.

3. Error in giving an instruction claimed to have authorized the jury to disregard the arguments of counsel, cannot be regarded as prejudicial to appellants where it does not appear that appellant's counsel made any argument.

4. In an action for personal injuries by a married woman, in which plaintiff's husband testified in her behalf, an instruction that a husband is a competent witness to testify in behalf of his wife, and that, if the testimony given by him appears to be fair, is not unreasonable, and is consistent with itself, and the witness has not been in any manner impeached, the jury have no right to disregard the testimony of such witness merely from the fact that he is related by marriage to the plaintiff, was not erroneous as tending to give undue emphasis to his testimony.

5. An instruction that the credibility of the witness is a question exclusively for the jury, and that they have a right to determine from the appearance of witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or lack of intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are the more worthy of credit, is not objectionable on the ground that it instructs the jury that an intelligent witness is more credible than an ignorant one.

Appeal from Appellate Court, First District.

Action by Leah Wellner against the North Chicago Street Railway Company. From a judgment of the Appellate Court (105 Ill. App. 652) affirming a judgment for plaintiff, defendant appeals. Affirmed.

John A. Rose and Louis Boisot (W. W. Gurley, of counsel), for appellant. E. B. Esher and Wm. Ritchie, for appellee.

SCOTT, J. The appellant is engaged in operating a street railway system in the city of Chicago. On June 2, 1899, appellee, with her husband, was a passenger upon one of its cars. She sustained a personal injury, for which this suit is brought, while endeavoring to alight from the car on that day at the corner of La Salle and Monroe streets. She brought suit to the September term, 1899, of the superior court of Cook county. The evidence on her part in reference to the manner in which the injury was received, being the testimony of herself, her husband, and one other person, was to the effect that after the car stopped she attempted to get off, and that while she was getting off the car, but before she had had time to alight, the car started with a sudden jerk, which caused her to fall, and occasioned the injury complained of. The defendant introduced the testimony of a greater number of witnesses showing that the car stopped, and then started ahead again without any jerk whatever, and that after the car had started the plaintiff and her husband arose from

their seats, and attempted to leave the car, and that the plaintiff fell to the ground in so doing. There was verdict and judgment for $5,000. The railroad company appealed to the Appellate Court for the First District, and from a judgment of affirmance there prosecutes a further appeal to this court.

It

The only errors assigned to which our attention has been called question the action of the court in giving each of four instructions, numbered respectively 3, 5, 8, and 9, the first two of which were given by the court of its own motion, and the last two of which were given at the request of appellee. Instruction numbered 3 is as follows: "It is the duty of the jury to find and determine the facts of this case from the evidence, and, having done so, then to apply to such facts the law as stated in these instructions." It is objected that this instruction is misleading; that it should have directed the jury to find and determine the facts from the evidence, and that in finding and determining the facts they should proceed as directed by the instructions. is urged that under this instruction, as given, the jury would be impressed with the idea that they were independent of the court and its instructions in forming their conclusions of fact, and that they would not need to consider the instructions until after they had made their finding on the facts. An instruction containing the same direction to the jury was approved by this court in North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 246, 57 N. E. 849. We do not think the instruction could be construed by the jury to mean that they should not consider those instructions stating the law in reference to the tests to be used in determining the credibility of witnesses and in reference to other matters which would assist them in determining where lies the preponderance of the evidence.

The instruction numbered 5 is as follows: "If, in putting in the evidence, or in argument, counsel for either party has made any statement not based upon the evidence, the jury should wholly disregard such statement." The objection to this instruction is that the word "statement," where it first appears therein, should be followed by the words "in reference to the facts in this case," or other words of similar import, and that the instruction as given virtually tells the jury to disregard the arguments of counsel. The instruction would have stated the law with greater accuracy had it been modified as above indicated, but we do not think its effect could be as suggested by appellant. The jury possessing the statutory qualifications would have sufficient intelligence to understand that illustrations used by counsel in argument and his statements of his view of the law could not, in the nature of things, be based upon the evidence. Appellant refers us, under this branch of his argument, to Jansen v. Grimshaw, 125 Ill. 468, 17 N. E.

850, which holds that counsel have the right to state to the jury the propositions of law involved in the case upon which they rely. It does not sustain the objections made to this instruction. Further, it does not appear from this record that counsel for appellant made any argument to the jury, and, unless that fact appeared, we could not hold that the instruction was harmful, however erroneous it was in the respect complained of.

The instruction numbered 8 is as follows: "The jury are instructed that under the law of this state a husband is a competent witness to testify in behalf of his wife in a suit brought by the latter for personal injuries alleged to have been sustained by the wife. You are instructed that if the testimony of the husband appears to be fair, is not unreasonable, and is consistent with itself, and the witness has not been in any manner impeached, then you have no right to disregard the testimony of such a witness merely from the fact that he is related by marriage to the plaintiff in the case." This is said to be erroneous because it singles out a particular witness, and tends to give emphasis to his testimony. The practice of naming or otherwise identifying a witness in an instruction of this character, when it can be avoided, is bad. Phenix Ins. Co. v. La Pointe, 118 Ill. 384, 8 N. E. 353; City of Sandwich v. Dolan, 141 Ill. 430, 31 N. E. 416. Instructions stating the law by which the jury is to be guided in determining the credibility of witnesses should be in the most general terms, so that the jury may not infer that the court had any particular witness in mind in giving the instruction. Where, however, it must be apparent to the jury that the law stated in the instruction could apply to but one witness in the case, no matter how general its statements were, as here no husband testified in behalf of his wife except Mr. Wellner, and, no difference how the instruction was worded, the jury would know that it applied to him alone, and where, under such circumstances, the witness is not named in the instruction, we think the fact that he or she is identified in the instruction does not constitute reversible error. Instructions subject to the same criticism that appellant makes of this one have been given from time immemorial in criminal cases, advising the jury in reference to the law to be applied by them in determining the weight to be given to the testimony of the defendant. It is also objected that the instruction should not have been given because it was useless, as the fact that the court permitted the husband to testify showed to the jury that he was competent. In view of the history of our law in reference to the competency of the husband to testify for the wife, known to some extent among all the people from whom the Jury are drawn, we think an instruction on this subject proper.

The instruction numbered 9 was as follows: "The court instructs the jury that the credibility of the witnesses is a question exclusively for the jury; and the law is that, where a number of witnesses testify directly opposite to each other, the jury are not bound to regard the weight of the evidence as evenly balanced merely because of numbers. The jury have a right to determine, from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or lack of intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are the more worthy of credit, and to give them credit accordingly." The use of the words, "their apparent intelligence or lack of intelligence," in this instruction, is said to be a statement from the court that an intelligent witness is more credible than an unintelligent one, and that for this reason the instruction states that which is not the law. We are referred to Chicago West Division Railway Co. v. Bert, 69 Ill. 388. The instruction which was held erroneous there advised the jury that a witness may be just as effectually impeached by "his want of intelligence" as by the direct testimony of other witnesses. That instruction was wrong, because, among other reasons, it is for the jury, and not for the court, to determine what sort of an impeachment is effectual, or how effectual any particular impeachment is. While the jury has the right to take into consideration a witness' intelligence or lack of intelligence in determining the credit to be given his testimony, it is not upon the basis that an intelligent witness is more truthful than an unintelligent witness, but upon the theory that the witness of greater intelligence may observe more closely, remember more exactly, and relate more accurately that which transpired in his presence than the witness of lesser intelligence. In the consideration of the instruction now before us we are referred to Eastman v. West Chicago Street Railroad Co., 79 Ill. App. 585; Barron v. Burke, 82 Ill. App. 116; Hope v. West Chicago Street Railroad Co., Id 311; Chicago City Railway Co. v. Keenan, 85 Ill. App. 367; and Morton v. O'Connor, Id. 273. The instruction passed upon in each of those cases, as will be observed by an examination thereof, is plainly distinguishable from the one now before us. It is unnecessary to enter upon a detailed discussion of each of them. In City of La Salle v. Kostka, 190 Ill. 130, 60 N. E. 72, an instruction was approved which told the jury that in weighing the testimony of the witnesses they had a right to take into consideration the apparent intelligence or lack of intelligence of the witnesses, and an instruction of substantially the same import was approved in Chicago & Alton Railroad Co. v. Winters, 175 Ill. 293, 51 N. E. 901.

Finding no error in the action of the court

in giving either of the four instructions to which objection is made, the judgment of the Appellate Court will be affirmed. Judgment affirmed.

RANKIN V. SHARPLES.

(Supreme Court of Illinois. Dec. 16, 1903.) SALES-PATENTED ARTICLES-INDEMNITY TO BUYER REPAYMENT — CONSTRUCTION OF

CONTRACT-TERMINATION OF LITIGATIONRELEASE-LICENSE-LEGAL SUFFICIENCY

EXPERT TESTIMONY-EVIDENCE-EXCLUSION -TRIAL-REMARKS BY COURT.

1. In an action to recover on a contract under which plaintiff sold certain patented articles to defendant, defendant retaining 15 per cent. of the price thereof to indemnify him from the consequences of infringement suits, which 15 per cent. was to be repaid at the expiration of a year from the termination of all such suits, admissions of defendant that plaintiff might have tendered him 26 licenses, one for each machine purchased, and evidence that defendant had paid plaintiff one year's interest on 15 per cent. of the value of 24 machines, was sufficient to warrant a finding that defendant had in his hands an amount of money belonging to plaintiff equal to said 15 per cent., on which sum interest was due.

2. In an action to recover a balance retained by defendant, the buyer of certain patented articles, to indemnify him from the consequence of infringement suits, which balance was to be paid to plaintiff, the seller, after the termination of all suits against defendant, an instruction assuming that defendant purchased 26 of the patented articles, instead of 24, was harmless, where the verdict by its amount showed that the jury computed the damages on the basis of 24 of the articles.

3. Under a contract for the sale of certain patented articles alleged to be infringements, by which the buyer was to retain 15 per cent. of the value of the articles purchased as indemnity for any suits brought against him; of which suits he was to give the seller immediate notice, in the absence of any such notice the jury, in an action by the seller to recover the 15 per cent. as provided in the contract, were justified in finding that no suits of which notice should have been given were ever instituted.

4. Under a contract for the sale of certain patented articles, by which the buyer was to retain 15 per cent. of the value of the articles to indemnify him for loss "caused by any guaranty given to any person in case any suit should be instituted against any person on account of using" such articles, and which indemnity was to be returned to the seller at the expiration of a year from the termination of all suits, the seller could recover, though suits had been instituted against purchasers from the huyer, where the buyer gave no guaranty to such purchasers.

5. Under a contract for the sale of certain patented articles by which the buyer was to retain 15 per cent. of the value of the articles to indemnify him from the consequences of suits brought against him, or purchasers from him on account of their use until a year after the termination of such suits, suits instituted against other persons than such buyer or purchasers from him did not affect the seller's right to recover the indemnity.

6. In an action to recover the balance reserved by a buyer of patented articles to protect him from the consequences of any suits instituted against him on account of their being infringements of other patents, which indemnity fund was to be returned to the seller at the expiration of a year from the termination of all

such suits, evidence of a release to the seller and his vendees from the owner of one of the patents alleged to be infringed, and of licenses for each article purchased from the seller, from the owner of the other patent, both of which were given some years before the institution of the action, was sufficient to justify a finding that all litigation affecting the rights of the seller had ceased and determined more than a year prior to the commencement of the action.

7. A ruling of the court to the effect that he would admit certain evidence for what it was worth, but it was not going to be read to the jury, was, for all practical purposes, an exclusion of the evidence.

8. In an action to recover the balance retained by the buyer of certain patented articles to indemnify him for suits on account of their being infringements of other patents, which balance was to be returned at the end of a year from the termination of all suits concerning the same, error of the court in admitting in evidence copies of docket entries and opinions in certain infringement suits was harmless, where defendant was saved from the consequences of all suits by releases and licenses from the persons whose patents were claimed to be infringed.

9. In an action to recover an indemnity fund retained by the buyer of certain patented articles to protect him from the consequences of their being infringements of other articles, which fund was to be returned at the expiration of a year from the termination of all suits against the buyer or purchasers from him, defendant cannot avail himself of an objection to a remark of the court, on cross-examination of plaintiff, that he would let him answer a question, but it was not pertinent, where the examination was as to a suit which was based upon the use of an article in which defendant was not interested.

10. A patent lawyer is not a competent witness on the legal sufficiency of a patent license, but the question as to its sufficiency is one for the court.

11. To recover the balance due on a contract for the sale of certain patented articles, which balance was to be retained by the buyer until a year from the termination of all suits instituted against him or his vendees on account of such patents being infringements, and further providing that at the expiration of one year after all litigation has been finally settled the buyer shall pay over to the seller the money retained, provided he shall not have been required to pay the same for the purposes of the indemnity, it is not necessary for the seller to show that all litigation existing at the time of the contract, or subsequently commenced, which might affect the rights of the buyer, had been finally settled. Appeal from Appellate Court, First District.

Action by Philip M. Sharples against Thomas Rankin. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

This is an appeal from the Appellate Court for the First District to bring in review a judgment of that court affirming a judgment of the circuit court of Cook county in an action brought by appellee against appellant.

The Appellate Court fairly and fully stated the case as follows: "December 12, 1895, appellee brought an assumpsit against appellant upon a contract executed by and between Sharples and appellant and his partner, Davis, dated March 24, 1890, to the following effect: That Sharples is engaged in the manufacture of Sharples cream separators, which

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