Eugene Huss and Victor E. Rehm, both of of several townships in Coles county which had extended a tax at the rate of 66 cents on each $100 assessed valuation without the written consent of the board of town auditors acting in their official capacity at their regular meeting on the first Tuesday in September, 1922, as to the levy of the rate in excess of 50 cents on the $100. The act validating taxes such as these, passed by the Legislature May 31, 1923 (Laws of 1923, p. 566), has been held unconstitutional by this court. People v. Chicago Milwaukee & St. Paul Railway Co., 310 Ill. 428, 141 N. E. 827; People v. Illinois Central Railroad Co., 310 Ill. 212, 141 N. E. 822; People v. Chicago & Eastern Illinois Railway Co., 310 111. 257, 141 N. E. 824: People v. Illinois Central Railroad Co., 311 Ill. 113, 142 N. E. 473.pealed to the circuit court of Cook county, These decisions on this point must control. The judgment of the county court of Coles county will therefore be reversed. Judgment reversed. (312 III. 209) (No. 15506.) REDER v. REDER. (Supreme Court of Illinois. April 14, 1924.) 1. Husband and wife 492 (4)-Savings account in joint name of husband and wife held complete as gift inter vivos from each to the other. Where a husband and wife made deposits in a savings account in their joint names, payable to both or either or the survivors, and both the husband and wife had possession of the deposit book as each one made deposits which were entered in it, and it appeared that on the husband's death a new book was issued to the wife alone, if the case be treated as one of gift by each to the other the gift was complete. 2. Banks and banking 129-Joint savings deposit of husband and wife, payable to survivor, held valid. Where a husband deposited $5,000 in a savings account in the joint name of himself and his wife, payable to both or either or the survivor of them, and each made deposits and withdrawals, the contract was valid, regardless of the law concerning gifts, and on the husband's death it was not necessary for the wife as administratrix to inventory the deposit as part of his estate. Thompson, J., dissenting. Error to Second Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge. Proceedings by Joseph Reder against Emma Reder, administratrix of the estate of Peter Reder, deceased, for a citation to compel inventory. Petition dismissed. Judgment was affirmed on appeal to the circuit court and to the Appellate Court (228 Ill. App. 21), and petitioner brings error. Affirmed. CARTWRIGHT, J. Peter Reder died intestate on February 5, 1918, and his widow, Emma Reder, was appointed administratrix of his estate. She filed an inventory, to which Joseph Reder objected on the ground that she had omitted to inventory the amount of a savings deposit in the Central Trust Company of Illinois, and prayed for a citation against her to compel her to include that deposit in the inventory. The probate court of Cook county overruled the objection of Reder and dismissed the petition. He ap with the same result, and on a further appeal to the Appellate Court for the First District the judgment was affirmed. This court allowed a writ of certiorari to the Appellate Court for a review of the judgment of that court. There is no disputed question of fact. On April 27, 1914, Peter Reder had a savings deposit with the Central Trust Company of Illinois, and he then withdrew $5,000 from that account. He proposed to open a savings account in the joint names of himself and Emma Reder, his wife, and told the bank official that he wanted the account in such a way that he and his wife could use it at all times, no matter what happened, and that either one could draw it after the death of the other. Peter and his wife were present, and the savings account was opened, and the $5,000 deposited in their joint names, and the savings passbook issued by the bank bore the words stamped on it, "Payable to both or either." A signature card was also signed by Peter and Emma, reading as follows: "We hereby open our account with you and authorize and instruct you to honor the signature of both or either, or the survivor, in the withdrawal of the funds or any other transac tion in connection with this account." Other deposits were made thereafter from time to time by each, and the original deposit was exhausted. At the death of Peter there was a balance in the joint account of $7,364.45, of which $1,006.40 was money of Emma, contributed to the joint deposit, and $6,358.05 was money of Peter. It was stipulated at the hearing that the original deposit of $5,000 was the property of Peter, and "that no gift of the same, or any part thereof, was made to Emma Reder during the lifetime of Peter Reder, other than by the agreement executed by the said Peter Reder at the time of opening said joint bank account, on April 27, 1914." The day after the death of Peter, Emma sent Adam Reder, a son of Peter and her stepson, to the bank with the savings passbook and an order signed by her For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (143 N.E.) to draw $300. The bank paid the $300 and, thority to draw the whole or any part of the gave Adam a slip of paper to be signed, and the next day received the passbook and gave Adam a new book in the name of Emma for the amount of the deposit. Counsel argue the question whether, as a matter of law, the original and subsequent deposits and the agreement made by Peter Reder and Emma Reder, his wife, created a joint tenancy with a right of survivorship, and the Appellate Court considered that question, but it is of no importance whatever. The joint right of ownership, with the right of both or either, or the survivor, to withdraw the deposit was the subject of contract. Any question of joint tenancy or tenancy in common is entirely outside the issue. The question to be determined is whether the contract is valid. deposit, the gift is complete and is a joint one, so that during the lifetime of both parties either who has possession of the book may withdraw the deposit, and the donee, upon the death of the donor, is entitled to the amount undrawn. Industrial Trust Co. v. Scanlon, 26 R. I. 228, 58 Atl. 786, 3 Ann. Cas. 863. In that case Patrick Scanlon had $1,900 in the Bristol Institution for Savings, which he withdrew and redeposited in the names of Patrick Scanlon and Dennis F. Scanlon and payable to either or the survivor. The Industrial Trust Company succeeded the Bristol Institution for Savings and issued a new book in the same form. The court said the joint ownership of personal property was common, and, citing various decisions, held that there was a complete gift. The court rejected the argument against the vesting of a joint title, based on the ground that the depositor could defeat the gift by drawing the deposit, and said that it might be replied that the donee has the same power if he has possession of the book. [2] Regardless of any rule of law concerning gifts as related to the portion of the funds deposited by Peter Reder the judgment of the Appellate Court was right. In Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N. E. 371, cited in Erwin v. Felter, 283 Ill. 36, 119 N. E. 926, L. R. A. 1918E, 776, and Illinois Trust & Savings Bank v. Van Vlack, 310 Ill. 185, 141 N. E. 546, there was a bill in equity to determine the title to a tin box containing four deposit books, two deposits being in the Hoo Peter Reder and Emma Reder each made deposits in the joint account, and their rights are not to be determined under the rules governing gifts inter vivos, although the judgment of the Appellate Court may be readily sustained on that ground. It is true that, in order that a deposit of money in a savings bank by one person to the credit of another shall operate as a gift inter vivos, it must be proved that the gift was completed by an act or acts sufficient to pass the title. Where a deposit is made and a certificate of deposit taken payable to another person, which is in the nature of a promissory note, and the depositor retains the certificate, title to the fund will not pass as a gift, in the absence of any declaration of trust or showing of intention to vest title. Telford v. Patton, 144 Ill. 611, 33 N. E. 1119. So if a person de-sac Savings Bank and the other two in the posits money in a savings bank to the credit of another, and the rule of the bank requires that money shall not be paid except on presentation of the bank book, and the depositor retains the book and never delivers it, the gift is not complete, although a gift may be perfected without the delivery of the deposit book, where the depositor, in making the deposit, shows by his acts and declarations his intention to make a gift and divest himself of all dominion over the money. Ide v. Pierce, 134 Mass. 260; Burton v. Bridgeport Savings Bank, 52 Conn. 398, 52 Am. Rep. 602; Norway Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 840; Gardner v. Merritt, 32 Md. 78, 3 Am. Rep. 115. Where it is a mere gift, the title passes on evidence that the depositor made the deposit and delivered the deposit book to the donee. Sweeney v. Boston Five Cent Savings Bank, 116 Mass. 384. [1] In this case both Peter and Emma Re der had possession of the book as each one made deposits which were entered in it, and if the case is treated as one of gift by each to the other the gift was complete. In case of a deposit in a savings bank in the name of the depositor and another, payable to either or the survivor of them, and the other person has possession of the book with au North Adams Savings Bank. The contest was between Abbie Worthington, sister of Henry D. Williams, who made the deposits, and the administrator of his estate, and it was practically identical with this case. Williams in his lifetime had a deposit in the Hoosac Savings Bank, and by agreement with the bank and his sister, Abbie Worthington, withdrew the deposit and redeposited it with an agreement that the deposit should be paid during his lifetime and that of his sister, or either of them, as they should call for it, wholly or in part, and the balance not withdrawn during their joint lives was to be paid to the survivor. The court decided that the contract was valid and vested title to the bank books and deposit in Mrs. Worthington upon the original depositor's death, that the case was not one of gift, and she took as survivor by virtue of the contract of deposit, so that compliance with the statute of wills was unnecessary. The court said that it was not a case of attempted gift of the property but a contract, by which either Williams or Mrs. Worthington could withdraw sums, in their discretion, during their joint lives, and the balance was to be withdrawn by and belong to the survivor, and Mrs. Worthington, the survivor, was the owner by virtue of the con tract. The same rule of law was declared in Wisner v. Wisner, 82 W. Va. 9, 95 S. E. 802; New Jersey Title Guarantee & Trust Co. v. Archibald, 91 N. J. Eq. 82, 108 Atl. 434; Kennedy v. McMurray, 169 Cal. 287, 146 Pac. 647, Ann. Cas. 1916D, 515; Kelly v. Beers, 194 N. Y. 49, 86 N. E. 980, 128 Am. St. Rep. 543; Blick v. Cockins, 252 Pa. 56, 97 Atl. 125; Negaunee Nat. Bank v. Le Beau, 195 Mich. 502, 161 N. W. 974, L. R. A. 1917D, 852; McLeod v. Hennepin County Savings Bank, 145 Minn. 299, 176 N. W. 987; 7 Corpus Juris, 640; 3 R. C. L. 714. The only difference between this case and Illinois Trust & Savings Bank v. Van Vlack, supra, is in the date of the deposit as related to certain statutes, and it was there shown that such a contract as this is valid. The judgment of the Appellate Court is af firmed. Judgment affirmed. THOMPSON, J. (dissenting). When the original deposit here involved was made, in 1914, when the deposits which compose the fund in question were made from time to time thereafter, and when Peter Reder died, in 1918, it was not possible under the laws of Illinois to create an estate in personal property with a right of survivorship. (See for analysis of law my dissent in the Van Vlack Case, 310 Ill. 194, 141 N. E. 546.) There was no transfer of title to the money pensation for the death of his son, Chester Borgstrom, opposed by the W. A. Jones Foundry & Machine Company, the employer. There was an award of compensation, which was confirmed by the circuit court, and the employer brings error. Judgment reversed, and award set aside. Gallagher, Kohlsaat, Rinaker & Wilkinson, of Chicago, for plaintiff in error. Beckman, Olson & Hough, of Chicago, for defendant in error. FARMER, C. J. This writ of error was allowed by this court to review a judgment of the circuit court of Cook county confirming an award under the Workmen's Compensation Act (Smith-Hurd Rev. St. 1923, c. 48. §§ 138-172) in favor of Gust Borgstrom, father of Chester Borgstrom, deceased, on the ground that the death of Chester resulted from an accidental injury arising out of and in the course of his employment, and that the father of Chester was dependent, or par tially dependent, upon him. The facts not in dispute are that Chester Borgstrom was shot and killed at his place of employment in plaintiff in error's plant April 5, 1922, by Charles S. Salfeld. Borgstrom was a draftsman for plaintiff in error, and had been so employed for about four his parents. Salfeld had some time previousyears. He was a single man, living with deposited by gift or otherwise during they also been employed by plaintiff in error, life of Peter, and at his death it became a part of his estate. All the money deposited when the rubber stamp agreement was signed was withdrawn before any of the money now claimed by Emma was deposited. The opinion does not show how title to this money passed from the owner to the claimant. (312 Ill. 27) but had left its employment some three months before the killing. While Salfeld was employed by plaintiff in error, he and Borg strom did not work together, and neither party had any supervision over the other. Salfeld had designed some kind of a gas engine, and desired a piece of timber 6 inches thick, 24 inches wide, and 12 feet long to place his engine on. The plaintiff in error had been in the habit of buying things for its employees, paying for the same and W. A. JONES FOUNDRY & MACHINE CO. charging the cost price to the employees. An v. INDUSTRIAL COMMISSION et al. (No. 15866.) (Supreme Court of Illinois. April 14, 1924.) Master and servant 373-Death by shooting held not compensable as accident "arising out of employment." Where a third party became involved in a controversy with officers of employer, and in his anger started shooting and opened safe door and killed a draftsman who had taken refuge therein, the death of the draftsman was not the result of an accident "arising out of his employment" within the meaning of the Workmen's Compensation Act. employee of plaintiff in error named Maiworm was its purchasing agent, and Salfeld requested him to secure the stick of timber. Maiworm agreed to do so, but told Salfeld the timber of the dimensions he wanted was not a stock size, and he would have to get one 12 inches thick, 24 inches wide, and 12 feet long and have it ripped in the middle. Maiworm bought the timber from the Hines Lumber Company at a cost of $28.80, and when the bill was rendered Salfeld disputed its correctness and refused to pay it. Shortly thereafter he was discharged from the plaintiff in error's employment after having been given a month's notice and was allowed two weeks' additional pay, but plaintiff in Error to Circuit Court, Cook County; Har- error deducted the $28.80 from the amount ry M. Fisher, Judge. due him. Salfeld accepted the check given Proceeding by Gust Borgstrom, under the him by plaintiff in error, but the next mornWorkmen's Compensation Act, to obtain com-ing returned and declined to accept it be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "An accident arises out of the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service." (143 N.E.) cause the $28.80 was deducted. He then sued plaintiff in error in the municipal court for the full amount of his wages, but the court decided he was only entitled to the amount tendered him, $163. Salfeld became angered at Maiworm and Sizer, the secretary of plaintiff in error, and made some threats, accusing them of perjury. On the 5th of April, 1922, Salfeld went to the office of plaintiff in error, walked up to the desk of Sizer, and threw a document on his desk, which started out with, "Read this if you want to live." It is of some length, indicates a deranged mind, and told Sizer to read it three times, and if he showed any sign of excitement he would be instantly killed. Sizer did not read the document, but undertook to talk with Salfeld and finally grabbed for him, when Salfeld fell over backwards, and as he did so fired two shots from guns in his pockets, one of which struck Sizer in the leg. Sizer ran out of the office with Salfeld still firing until he had fired several shots, after which he went out on the sidewalk. He returned very shortly to the office and began shooting again. A number of employees took refuge in a vault, among them Borgstrom. They endeavored to throw the combination lock from the inside but were unable to do so, and Salfeld pulled the vault door open, fired into the vault and killed Borgstrom and wounded Hoge, chief draftsman for the plaintiff in error. He then stopped shooting to reload his guns, and Powers, an employee of plaintiff in error, secured a revolver in the coatroom and fired two shoots at Salfeld, who dropped to the floor and died very quickly. The gun used by Powers was a Smith & Wesson 38. Both guns used by Salfeld were 25-caliber, and examination showed he was killed by a bullet of that caliber, from which it may be inferred he committed suicide. At the trial in the municipal court the judge directed plaintiff in error to locate the half of the piece of timber not used by Salfeld and advise Salfeld where it was, which plaintiff in error did. In Edelweiss Gardens v. Industrial Com., 290 Ill. 459, 125 N. E. 260, the court said: Those decisions are supported by City of "Whether the accident occurred in the course of her employment is not material unless it also arose out of her employment, had its origin in her employment and was the result of some risk attendant upon her employment which it can now be seen might have been reasonably contemplated as incidental to it. per Mill Co. v. Industrial Com., 293 Ill. 284.) (Weis PaThe Workmen's Compensation Act does not apply to every accidental injury which may happen to an employee during his employment. It does not make the employer an insurer against all injuries. The injury contemplated by that act must have had its origin in some risk of the employment. Edelweiss Gardens v. Industrial Com., 290 Ill. 459." Plaintiff in error insists the death of Borgstrom did not arise out of his employment and the award was not authorized by the The facts and circumstances of the killstatute. The Compensation Act requires the ing of Borgstrom by Salfeld above stated employer to pay compensation to employ- need no further argument to show that the ees who sustain accidental injuries which death was not the result of an accident arisarise out of and in the course of the employ-ing out of his employment. We cannot ment. Under the statute the accidental in- stretch the law to embrace a case clearly not jury must not only occur during the employ- within the contemplation of the statute. ment but must arise out of it. In United Disposal Co. v. Industrial Com., 291 Ill. 480, 126 N. E. 183, the court said: The judgment of the circuit court is reversed, and the award set aside. Judgment reversed. (312 Ill. 129) MAULE et al. v. MAULE et al. (No. 15918.) (Supreme Court of Illinois. April 14, 1924.) 1. Witnesses 168-One may testify to matters occurring after death of another and to conversations with deceased, testified to by others. In an action to set aside a deed purporting to have been executed by one since deceased, defendant grantee was competent to testify in regard to matters which occurred after the death of the grantor, his wife, and to conversations which complainants had testified to in which deceased made claim in his presence to own the property, and to such matters testified to by witnesses not parties to the record, nor parties in interest, relative to conversations or admissions made by him in the absence of his wife. 2. Deeds 56(2)-Question of delivery one of intention, to be determined from words and acts of parties. The question of delivery of a deed is one of intention, which must be determined from the words and acts of the parties, in connection with the circumstances attending the transaction. 3. Deeds 194 (2)-Deed in hands of grantee presumed delivered. Where a deed duly executed is found in the hands of the grantee, a presumption of delivery arises which can only be overcome by clear and convincing evidence. 4. Deeds 194 (2)-Evidence held insufficient to overcome presumption of delivery. In an action to set aside a deed, evidence held not sufficiently clear and positive to overcome presumption of delivery arising from fact that deed was found in the hands of the gran tee. and the bill prayed an injunction against the prosecution of the bill by Keck and ing of the premises by Maule. The bill was against the conveying, incumbering, or selldismissed on a hearing, and the complainants have appealed. The greater part of the evidence is as to the genuiness of the signature of Mrs. Maule to the deed. The argument of the appellants on this question consists of the following statement: "We submit that a careful reading of the evidence in this record shows that, while the signature of Sarah Maule to the alleged deed resembles her signature, the same is not, in fact, her true and genuine signature." The original deed and other instruments bearing the genuine signature of Sarah Maule have been certified to us. An examination of these signatures and a careful reading of the testimony of the witnesses on this question satisfy us that the judgment of the chancellor, who saw the witnesses and heard them testify, cannot be held to be contrary to the evidence. The grantor, at the time of her death, on May 12, was 73 years old and the grantee about 87. They had lived on the property as long as their son Alexander, who was 46 years old, could remember. She was a second wife, and he had conveyed the property to her on January 5, 1894. There were children of the first marriage also. No evidence was introduced in chief by the complainants of the circumstances under which the deed was executed, but their case was confined to evidence, much of which was given by the complainants themselves, to show that the signature attached to the deed Appeal from Circuit Court, St. Clair Coun- was not the signature of Sarah Maule, and ty; Louis Bernreuter, Judge. Bill by Alex Maule and others against James Maule and others. Decree for defendants, and plaintiffs appeal. Affirmed. statements made since 1905 by Sarah Maule in the presence of John Maule to the effect that the place was her home or property or homestead or belonged to her, and she did not intend that it should be disposed of or sold unless the purchase price should be paid to her or until she had another home of her McHale & McHale and Louis P. Zerweck, all of East St. Louis, for appellants. Tecklenburg & Kruger, of Belleville, for own. In response to such statements Maule appellees. acquiesced either in words or by silence, or said that some day she would find out to whom the property belonged, and when complainants closed their case on the question of delivery it appeared only that the property had been the homestead of John Maule and Sarah, his wife, for many years; that Maule had conveyed it to his wife in 1894; that after 1905 she had frequently stated that it was her property, her home, her home stead, and she did not propose that it be sold unless the purchase money were paid to her or until she had another home in place of it; and that the deed here questioned was filed for record by Maule, who was the grantee, after the death of his wife, who was DUNN, J. Sarah Maule died on May 12, 1923, leaving her husband and eight children surviving her. On May 28 a deed purporting to have been executed by her on November 21, 1905, conveying to John Maule, her husband, certain real estate in St. Clair county, was filed for record. On August 30 five of the heirs filed a bill in the circuit court against the other three and John Maule to set aside the deed, on the ground that it had not been executed and delivered. George Keck was made a defendant on the allegation that he had filed a bill for the specific performance of an alleged contract with John Maule for the sale of a part of the premises, the grantor. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |