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per annum, no good cause being shown to the court why such interest should not be taxed in accordance with the statute in such case provided. The statute referred to in the order of the court is: "All moneys, bonds, notes, and credits which any administrator or executor may have in his possession or control as property or assets of the estate, at a period of two years and six months from the date of his letters testamentary or of administration, shall bear interest, and the executor or administrator shall be charged interest thereon from said period at the rate of 10 per cent." Hurd's Rev. St. 1903, c. 3, § 114, p. 124.
The order of the probate court approving said account, charging the administrator with interest at 10 per cent. upon the amount belonging to said estate remaining in his hands after March 15, 1895, and determining the amounts, respectively, which should be paid to said attorney and distributees, was never appealed from or in any way annulled or set aside, but remained in full force and effect at the time this case was tried. and the law seems to be well settled in this state that such order is binding upon the administrator and the sureties upon his bond in this suit unless it is impeached for fraud. Ralston v. Wood, 15 Ill. 159, 58 Am. Dec. 604; Housh v. People, 66 Ill. 178; Frank v. People, 147 III. 105, 35 N. E. 530. There was no proof of fraud, and the most that is contended for here is that the probate court erred in charging the administrator, in his account, with interest on the funds of the estate which remained in his hands subsequent to March 15, 1895. This court has frequently held that interest for which a public officer or one appointed by the probate court is liable is a proper charge against his bondsmen. Stern v. People, 102 Ill. 540; Cassady v. Trustees of Schools, 105 Ill. 560; Hughes v. People, 111 Ill. 457; Winslow v. People, 117 Ill. 152, 7 N. E. 135. In the Frank Case, 147 Ill., on page 111, 35 N. E. 532, in commenting on the construction of section 115 adopted in Ralston v. Wood and subsequent cases, it was said: ""If we are to give any force to language, this statute certainly makes that order as conclusive against the security as against the administrator himself. That judgment or order is made evidence of a devastavit, if not complied with, and entitles the person in whose favor it is made, to recover upon the bond against both principal and security. The suit upon the bond is a collateral action, founded as well upon that judgment as upon the bond itself, and when the judgment is offered in evidence, like any other judgment of a court of competent jurisdiction, it cannot be inquired into by those affected by it, except for fraud.' And after noticing the argument based upon the supposed hardship of holding the security bound when he was not directly a party to the proceeding in which the judgment was obtained, and showing that there was no
hardship or inconsistency in so holding, for the reason that the law gave that effect to his bond when he entered into it and he had voluntarily consented to be bound by the order and judgment of the court, and the further reason that while he was bound by the judgment against his principal, he was given, by the 138th section of the same statute (Rev. St. 1845, p. 564, c. 109), which is section 124 of chapter 3 now in force, a right of appeal from that judgment, the court held that the security was concluded by the judgment, and that if the order against the administrator was not warranted by law the remedy of the security was by appeal, and that they could not question it collaterally when sued upon the bond. This case was followed and approved in Housh v. People. 66 Ill. 178."
It is also urged that the court erred in finding that there was due the attorney who represented the administrator in the settlement of the estate the sum of $310, and ordering the administrator to pay him that amount within five days. The administrator was ordered to pay that amount out of the funds of the estate in his hands, and that order did not increase the burden of the administrator or his bondsmen, as, had that amount not been ordered paid to the attorney for the estate, the amount due the distributees would have been by that amount increased. The judgment of the probate court of Cook county approving the account of the administrator and ordering the amount in his hands to be distributed was a final determination of the amount due by the administrator to the attorney and distributees of the estate, and that judgment cannot be reviewed or set aside in a suit at law on the administrator's bond except the finding of that court be impeached for fraud, and the trial court did not err in peremptorily instructing the jury to return a verdict in favor of the plaintiff for the amounts found due by that order of the probate court from John G. Brown, administrator, to said attorney and distributees.
It is lastly contended that the court erred in declining to grant a new trial on the ground of newly discovered evidence. It appears from certain affidavits found in the record that a few days after the trial of this case in the circuit court John G. Brown was arrested upon a warrant issued by a justice of the peace in Cook county for a violation of the statute in failing to turn over and account for all funds in his hands as said administrator upon demand, and that upon his preliminary examination before the justice he testified he made said loan to Hankins with the consent of his brother and sisters, and his testimony given on that occasion is urged as grounds for a new trial, on the theory that it was discovered subsequent to the trial. The tenth plea filed by the appellant set up as a defense to the suit that Brown, after the making of the bond sued on, with the advice, consent and connivance of
the parties for whose use this suit was brought, did fraudulently and unlawfully convert to his own use the various sums of money in said declaration mentioned. John G. Brown was on the witness stand, and testified for and on behalf of the plaintiff, and was cross-examined by the attorneys for the defendant. The Appellate Court, in disposing of the contention of the appellant that the trial court erred in declining to grant a new trial that he might on that trial avail himself of Brown's testimony, used the following language, which we think a conclusive answer to the contention of the appellant. That court said: "A discovery, after the trial, that a witness knew a material fact and did not disclose it furnishes no excuse if he was not questioned. If the consequence of failure specifically to interrogate the witness be the concealment of material evidence it indicates such lack of diligence as will deprive the person so failing, of a claim for a new trial on the ground that such evidence was afterwards newly discovered. Toledo, Wabash & Western Railway Co. v. Seitz, 53 Ill. 452; Fanning v. McCraney, Morris (Iowa) 398; Houston v. Smith, 2 Smedes & M. (Miss.) 597; 3 Graham & Waterman on New Trials, 10291095. In this case the newly discovered evidence relied on, putting it most strongly for the appellant, is the statement of John G. Brown that the beneficiaries of the bond consented to the loan made by him to Hankins. The allegation of 'consent, advice, and conniyance' of these beneficiaries in the misappropriation of the funds was explicitly made by the appellant in pleas filed two months before the trial. This certainly showed at least that his attention had been directed to the possibility of such a defense. Knowledge as to the facts must have been in the possession of John G. Brown himself and all the beneficiaries. There is nothing to show that the latter were interrogated or interviewed concerning it. John G. Brown was a witness at the trial. He was cross-examined by appellant's counsel, and asked,.without objection, if he was short all the money which should have been paid to the beneficiaries; if he turned it over to anybody that was entitled to it; to whom he turned it over, and if the court told him to so turn it over; and he answered that he was so short, that he had let Hankins have the money, and that he did not know whether Hankins was entitled to it or not. But he was not asked whether this was with the consent of the distributees. This plainly was lack of diligence fatal to a right to a new trial, on the ground that five days afterwards Brown testified, to defend himself in a criminal prosecution, that such consent was given."
Finding no reversible error in the record, the judgment of the Appellate Court will be affirmed.
GREENE v. HITCHCOCK.
(222 III. 216)
(Supreme Court of Illinois. June 14, 1906. Rehearing Denied October 11, 1906.)
1. WILLS-PROBATE-ADMISSIBILITY OF EVI
In proceedings for the probate of a will, the testimony of one of the attesting witnesses that he would not have signed it, except in the presence of the testatrix and of the other witness, was not admissible. 2. SAME.
In proceedings for the probate of a will, testimony of an attesting witness, as to whether in his judgment the things mentioned in the attestation clause of the will were in every respect complied with, was inadmissible. 3. SAME-PROOF OF EXECUTION-STATUTORY PROVISION.
Under Hurd's Rev. St. 1905, c. 148, § 2, prescribing the requisites to the execution of a will, and providing that testimony of two of the attesting witnesses that they were present and saw the testator sign the will in their presence, or acknowledged it to be his act and deed, and that they believed the testator to be of sound mind and memory, shall be sufficient proof of the execution of the will to admit it to record, the only evidence that can be considered in the circuit court on appeal from an order admitting the will to probate is the testimony of the attesting witnesses, and where one of them on such an appeal fails to testify that he was present and saw the testatrix sign the will, nor that she acknowledged it to be her act and deed, the will cannot be admitted to probate.
Appeal from Circuit Court, Peoria County; N. E. Worthington, Judge.
Proceedings by Burton A. Hitchcock for the probate of the will of Phebe Rose. From a judgment admitting the will to probate, Langford R. Greene appeals. Reversed and remanded,
Winslow Evans and Judson Starr, for appellant. Sheen, Miller & David, for appellee.
SCOTT, C. J. On February 25, 1905, the probate court of Peoria county admitted to probate a written instrument as and for the last will and testament of Phebe Rose, deceased. Langford R. Greene, a brother and one of the heirs at law of said deceased, appealed to the circuit court of Peoria county, where an order was also entered admitting said will to probate. This appeal is prosecuted by Greene from the order of the circuit court.
Phebe Rose departed this life at Dunlap, in Peoria county, on September 14, 1904. The instrument in question is dated May 5, 1888. The names of Norman H. Silliman and Emily Silliman are signed to an attestation clause, which recites that the said instrument was "signed, sealed, published and declared by Phebe Rose as and for her last will and testament in the presence of us, who, in the presence of the said testator and at her request and in the presence of each other, have signed our names as witnesses," etc. This attestation clause immediately follows the signature of Phebe Rose to the will.
Norman H. Silliman and Emily Silliman were residents of Boulder, Colo., at the time the proceedings were had in the probate court and circuit court to probate this will. On February 7, 1905, being prior to the hearing in the probate court, their depositions were taken by the proponent upon written interrogatories with the will attached.
The testimony of Norman H. Silliman, as contained in his first deposition, is to the effect that he signed his name to the attestation clause as a witness to the will; that it is his impression that he did this at the request of Phebe Rose, but does not distinctly remember; that Phebe Rose was present, but he cannot remember any one else being present; that he cannot now remember whether Phebe Rose saw him sign his name, nor whether he (the witness) saw Phebe Rose sign her name to the instrument; that he cannot say who were present when Phebe Rose signed her name, as he does not know; that her mind and memory were excellent during all the time he knew her. This is the extent of the testimony given by this witness in the deposition above referred to. On November 6, 1905, after the appeal had been taken to the circuit court, the depositions of the two subscribing witnesses were retaken by proponent, upon oral interrogatories, under a dedimus potestatem issued out of the circuit court. Appellant did not attend the taking of these depositions. At the taking of his second deposition Norman H. Silliman testified that he was acquainted with the handwriting of Phebe Rose; that the instrument in question was in her handwriting, as was also her name at the end of the instrument; that the signatures at the end of the attestation clause are those of himself and wife, Emily Silliman; that he does not remember the occasion of signing his name to the instrument; that he collected notes and rents for Mrs. Rose between 1880 and 1885 and thereafter prepared a deed for her; that he was in the grain and lumber business at Dunlap; that he advised Mrs. Rose in business affairs up to the time he left Dunlap, in 1894; that he had some knowledge of the requirements of the law about signing and witnessing wills before he left Dunlap; that he wrote a number of wills for other persons between 1885 and 1890, and at times witnessed wills; that he would not have signed the instrument in question except at the request of Phebe Rose. The remainder of the deposition, except interrogatory 42, which inquires why the witness' signature appears heavier than the others, and why it appears to be in a different ink, is as follows: "Q. 41. You may state whether or not you would have signed the same as one of the witnesses thereto except in the presence of Mrs. Phebe Rose? A. I would not; nor would I have signed it except in the presence of the other witness, I was very careful about such things. I knew she would either have to sign the will in my presence or ac
knowledge it to be her signature." "Q. 43. From your knowledge concerning the making and attesting of wills under the laws of Illinois, and from your methods of doing business with reference to them, what is your best judgment now whether or not the things mentioned in the attestation clause of the same instrument testified by you were, as a matter of fact, in every respect complied with? A. They were, to the best of my knowledge and belief."
Before the trial in the circuit court appellant made a motion, in writing, to suppress the depositions taken on November 6, 1905, and to suppress certain interrogatories and answers therein contained, among which were interrogatories 41 and 43 propounded to Norman H. Silliman and the answers thereto, which are above set out. The circuit court denied this motion. At the hearing in the circuit court the proponent offered in evidence the depositions of Norman H. Silliman and Emily Silliman taken on February 7, 1905, which had been used in the probate court, and also offered the depositions of the same persons taken on November 6, 1905. These depositions were admitted in evidence by the court over the objection of appellant, and constituted all the evidence heard by the circuit court on the trial of this
The testimony of Emily Silliman complies with all the requirements of the statute. The principal contention of appellant is that the testimony of Norman H. Silliman does not meet the requirements of the statute in regard to the proof necessary to establish a will upon appeal from an order of the county court admitting it to probate, where two of the subscribing witnesses are living. In this connection it is also urged by appellant that certain interrogatories, and answers thereto, contained in the second deposition of Norman H. Silliman, which were specifically objected to by appellant before the trial, should have been suppressed. Interrogatories 41 and 43, and the answers thereto, were among those to which objection was made. Interrogatory 41 inquires of the witness whether or not he would have signed the instrument in question, as a witness thereto, except in the presence of Phebe Rose. It is evident that this question was improper, because it does not call for any statement of fact relative to the execution or attestation of the instrument in question. To ask a witness whether or not he would have done a certain thing except in a certain manner is manifestly not equivalent to inquiring of the witness whether he did do the act in that manner. Neither is the answer of the witness that he would not have signed the instrument except in the presence of Phebe Rose, and that he knew that Phebe Rose would either have to sign the will in the presence of the witness or acknowledge it to be her signature, equivalent to stating
that his signature was attached to the instrument in the presence of Phebe Rose, and that she either signed or acknowledged it to be her act and deed in the presence of the witness. The fact that the witness knew that Phebe Rose would have to sign the will in his presence or acknowledge it to be her signature is no proof whatever that either was in fact done. The statute requires the witness to swear that certain things were done, not that the witness knew that certain things were required by law. Interrogatory 43 inquires of the witness whether all the things mentioned in the attestation clause hereinabove set out were done. Inasmuch as the attestation clause recited the doing of those things which are required by the statute in order to make a valid will, it would seem that the question could be no more objectionable had the attention of the witness been directed to section 2 of the statute on wills, and the question asked whether that section had been fully complied with in the execution and attestation of the instrument. Whether or not the things mentioned in the attestation clause, being those required by the statute, had been complied with, was for the court to decide from the testimony of the two subscribing witnesses, and it was improper to ask the witness to give his conclusion in regard thereto. The motion to suppress the forty-first and forty-third interrogatories, and the answers thereto, contained in the deposition of Norman H. Silliman, should have been sustained.
It only remains to consider whether the other evidence given by this witness meets the requirements of the statute. Section 2 of chapter 148, Hurd's Rev. St. 1905, provides that all wills "shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be suf
ficient proof of the execution of said will, testament or codicil, to admit the same to record." It has been frequently decided by this court that, upon an appeal to the circuit court from an order of the county court admitting a will to probate, the only evidence that can be considered is that of the subscribing witnesses to the will. Andrews v. Black, 43 Ill. 256; Weld v. Sweeney, 85 Ill. 50; In the Matter of Noble, 124 Ill. 266, 15 N. E. 850; Hobart v. Hobart, 154 Ill. 610, 39 N. E. 581, 45 Am. St. Rep. 151. This court has also held that upon such appeal the circuit court is governed by the provisions of section 2, supra, as regards the evidence necessary to entitle a will to be probated. Walker v. Walker, 2 Scam. 291. This section requires that two of the attesting witnesses shall declare, on oath or affirmation, either that they were present and saw the testatrix sign the instrument, or that the testatrix acknowledged the same to be her act and deed, before the instrument can be admitted to probate. On an appeal by proponents from an order of probate court denying probate a different rule prevails. Norman H. Silliman does not testify, in either of his depositions, that he was present and saw Phebe Rose sign the instrument in question, nor does he testify that she acknowledged it to be her act and deed. He does not testify to these matters directly or indirectly, unless it can be said that his answers to interrogatories 41 and 43 in his second deposition indirectly establish that the instrument was either signed by Phebe Rose in the presence of the witness or she acknowledged the instrument to be her act and deed. As those interrogatories and answers should have been suppressed, they cannot be invoked to aid the remainder of the testimony of this witness.
The evidence of Norman H. Silliman, for the reasons above stated, does not meet the requirements of the statute in regard to the proof required in cases of this character, and neither the recitals in the attestation clause nor the testimony of the other subscribing witness can supply the deficiency in his testimony which we have herein pointed out.
The order of the circuit court will be reversed, and the cause will be remanded to that court.
Reversed and remanded.
(222 111. 303)
FLYNN v. PEOPLE.
(Supreme Court of Illinois. June 14, 1906. Rehearing Denied October 10, 1906.)
Where on a trial for homicide there was no evidence of a struggle between accused and decedent prior to the killing, and the proof showed that decedent struck accused with a stone and threatened to kill him, and thrust his right-hand in his overcoat pocket in a threatening manner, and that accused staggered from the blow, and when he straightened he struck decedent with a pick handle, killing him, an instruction that an acquittal would not be justified on the ground of self-defense unless it appeared that accused believed at the time of striking the blow that he was in danger of losing his life, and that it must appear that the person assaulted by accused was the assailant and that accused had really and in good faith endeavored to decline any further struggle before the assault was made by him, was erro
2. CRIMINAL LAW PRESUMPTION OF INNOCENCE INSTRUCTIONS.
An instruction that it is the duty of the jury to presume that accused is not guilty and give him the benefit of the presumption throughout the trial "until evidence shall have been introduced which * * * is sufficient to establish the guilt of defendant beyond all reasonable doubt, and if such evidence be not introduced, then defendant should have the benefit of such presumption throughout all stages of the trial" is erroneous as authorizing the jury, if they deem the evidence establishes guilt beyond a reasonable doubt, to consider the evidence offered by defendant without any regard to the presumption of innocence.
3. SAME-IMPROPER ARGUMENT OF COUNSELREVIEW-RECORD.
An attorney who has in his argument to the jury in a criminal case transgressed the rules of law by making improper remarks will not
trial was overruled, defendant was sentenced upon the verdict, and prosecutes this writ of
John Flynn, at about 1 o'clock in the morning of Sunday, January 22, 1905, was working for the Chicago City Railway Company on Halsted street, in the city of Chicago, removing frozen ice and snow from the gutter near the curb with a pick. Thomas Jordan and John Brannan were working with him. Other men in the employ of the same company and engaged in the same work were working a short distance away. The night was dark, and the other men were not in a position to see Flynn and the two men working with him. While Flynn was so at work, Peter Warren, the deceased, Frank Langlois, William Miller, and a man named Duchelle, passed along the street. These men had been spending the last few hours in the saloons, and the evidence indicates that they were all intoxicated. Miller who testified on the part of the prosecution, recites the fact that the members of the party of four had taken a number of drinks, and says that he was not perfectly sober; that he was drinking a little-was just feeling good-had a few beers in him; that he had knowledge of what he was doing, and that he thought that a man who is intoxicated don't know what he is doing. As to Warren's condition, Miller says: "He was sober. He was not too sober; he was what I call drunk. He was not too sober or too drunk." As Warren and his associates passed the place where Flynn was at work, Langlois and Duchelle were walking ahead. Warren and Miller were walking together about 25 feet behind the other two.
be permitted to justify his course by saying Miller testifies that as they reached the place
that he was answering improper statements made by his opponent, unless such statements are preserved in the record so that the court on appeal may determine whether they warrant the reply made.
Error to Criminal Court, Cook County; George A. Dupuy, Judge.
John Flynn was convicted of manslaughter, and he brings error. Reversed and remanded.
Daniel Donahoe and James Hartnett, for plaintiff in error. W. H. Stead, Atty. Gen., John J. Healy, State's Atty., and Frank Crowe, for the People.
SCOTT, C. J. John Flynn was indicted by the grand jury of Cook county in January, 1905, for the murder of Peter J. Warren, charged to have been committed on January 22, 1905. He interposed a plea of not guilty and contended that the killing was done in selfdefense. Upon a trial in the criminal court the jury returned a verdict in the following words: "We, the jury, find the defendant, John Flynn, guilty of manslaughter in manner and form as charged in the indictment, and we fix his punishment at imprisonment in the penitentiary, and we recommend him to the mercy of the court." A motion for a new
where Flynn was at work, Warren turned and stepped towards the gutter, and there upon Flynn, without anything having been said by him to Warren or by Warren to him, ran up and struck Warren on the head with a pick handle. Warren, who was then 22 years of age, was removed to the People's Hospital, where he died on January 29th from a skull fracture caused by the blow inflicted by Flynn. Langlois, who was walking ahead, says that as he went past Flynn and his colaborers he made some joking remarks to them. The next thing he noticed he heard "some one holler," and walked back and found that Warren had been struck, and assisted in carrying him away. Duchelle did not testify. Jordan testified on behalf of the prosecution, and says that as Warren passed where he was working with Flynn, Warren said: "Pick up, you sons of bitches, pick up," and Flynn told Warren to go ahead and mind his own business; that nobody was interfering with him, and that one of the two who had preceded Warren along the sidewalk called him to "leave those fellows alone-they are all right"; that Warren then walked away about 10 feet, turned and came back, and as he did so applied to Flynn an epithet too foul