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degts were contracted, and the court contention that the renunciation was said it would not be assumed that they made for the purpose of defeating the were contracted during coverture, collection of the judgment, or, if not, and that the question might be in- it was in effect a voluntary conveyquired into upon another trial. The ance and void as against existing court added that the widow's heirs at creditors, said that since it was oplaw and the personal representatives, tional with the husband to accept or except in so far as the rights of exist- renounce, it was immaterial what his ing creditors may be affected, are motives were so long as there was no bound by her election.

collusion with the remaindermen or In Penn v. Guggenheimer (1882) 76 residuary devisees by which he fraudVa. 839, the court, having held that a ulently received a benefit for his widow was put to her election to take renunciation, and of this there was no under her husband's will or to claim proof. The court further said: “The her own property, of which the will renunciation is not a voluntary conundertook to dispose, and that she had veyance, void against existing made a practical election to take un- creditors, because, when he has propder the will, it was also held that a erly renounced, the renunciation rechild of the testator could not either lates back to the date of the gift, and, by parol disclaimer or by voluntary as he has never accepted the gift, he deed affect the rights of his creditors has nothing that could be made the in respect of his inheritable share in subject of a voluntary conveyance." the interest which a deceased brother Judgment creditors of the father of took in the property under the will, in the testator, who bequeathed all his consequence of the widow's election. property to other persons, cannot

maintain a bill to set aside the father's III. Renunciation.

renunciation of any right in the esA debtor may, at least if he acts be- tate, upon the ground that it was made fore a conclusive presumption of ac- in the fraud of their rights as judgceptance or an estoppel to deny ment creditors, such creditors not acceptance has arisen, renounce a pro- being within the contemplation of the vision for his benefit in the will, even provision of the statute that, on the though it imposes no burden upon death of the testator, the reduction of him; and he may not in such circum- the donation can be sued for only by stances be compelled, in the interest "forced heirs or by their heirs or asof the creditors, to accept. SCHOON- signs.” Tompkins v. Prentice (1857) OVER V. OSBORNE (reported herewith) 12 La. Ann. 465. ante, 465; Tompkins v. Prentice In Mason v. Paschal (1896) 98 Tenn. (1857) 12 La. Ann. 465; Mason v. 41, 38 S. W. 92, holding that a husband Paschal (1896) 98 Tenn. 41, 38 S. W. had no interest which could be reached 92; Bradford v. Calhoun (1907) 120 by his creditors, under a will beTenn. 53, 19 L.R.A.(N.S.) 595, 109 S. queathing to him such of the proceeds W. 502.

of the real estate devised to the chilIn Bradford V. Calhoun (Tenn.)

dren as would be a reasonable supsupra, holding that a written renunci- port for himself individually, the balation by a husband of a devise of life ance to be used by him for the mainestate under his wife's will, executed tenance of the children, and the the day the will was admitted to pro- property to be divided among the bate, was effectual to defeat a levy children upon the arrival of the upon property under a judgment re- youngest at age, the court observed covered after the probate of the will, that he might decline to avail himself in an action commenced before the of the provision for his support, and death of the wife, the execution hav- in that event a court of equity would ing been issued and levied after the have no power to determine what execution of the renunciation, but be- would be a reasonable support and fore it was acknowledged and regis- subject it to the claims of creditors. tered,—the court, in reply to the In Stebbins v. Lathrop (1827) 4 Pick. (Mass.) 33, the court said that the testator's daughter was followed until the legatees should actually re- by a provision that it was given to her nounce their legacies, their assent to so long as she desired to "remain satthe provisions of the will, which were isfied upon it,” it was held that a apparently beneficial to them, would disclaimer by her of all right, title, be presumed; if they should persist in or interest in the land more than thirthe intention to renounce the estate, teen years after she had entered on it, the probate of the will would not re- was not effective to defeat the previ. strain them; and then the question ous levy of an execution under a would be fairly raised whether this judgment against her, even assuming can be done to the prejudice of credi- that the restraints sought to be placed tors.

upon the devise in fee were not void. The right thus to renounce as The interest of a child under a against the interests of creditors may, will giving property to the testator's however, be lost by delay or acts in- widow during life or until remarriage, consistent with an intention to re- and directing that in the event of her nounce.

death or remarriage it should be disThus, in Ex parte Fuller (1842) 2 tributed among the children, was held Story, 327, Fed. Cas. No. 5,147, where in Strom v. Wood (1917) 100 Kan. 5-6, an estate was devised unconditionally 164 Pac. 1100, to be subject to the to a bankrupt and his sister, by a tes- lien of a judgment recovered against tator who died before the filing of the the child prior to the death of the tespetition in the bankruptcy, the will

tator, there having been no disclaimer having been admitted to probate after or renunciation for more than six the devisee had been adjudged a bank- years, and until after levy was made rupt, Story, J., said that at the time on the land under an execution upon of the bankruptcy the devise was a the judgment. The court said that a property right vested in the bankrupt; devisee is presumed to accept a devise that the law presumed his acceptance, favorable to him, that it would natuuntil the contrary was shown; and rally be expected that if the devisee that his title could be devested only desired to renounce he would do so by his renunciation and disclaimer of within a reasonable time, and that, in the devise before that time; that the the case at bar, having waited more subsequent probate of the will, by re- than six years and made no move lation, made the title complete in the until repeated executions had been assignee. Apparently in this case issued and proceedings for an actual there had been no renunciation of the sale had been begun, it was too devise by the bankrupt, and the opin- late to disclaim or renounce so as to ion alluded to the statement of facts affect the lien of the judgment. The to the effect that the bankrupt had court in distinguishing Bradford v. done no act accepting or declining the Calhoun (1907) 120 Tenn. 53, 19

devise. The court, however, said that L.R.A. (N.S.) 595, 109 S. W. 502, · until the devisee filed his petition in observed that in that case the judg

bankruptcy, the presumption of his ment was not obtained until ten days acceptance was irresistible, for it was after the renunciation was executed, clearly for his benefit, and that, after acknowledged, and registered, and in he had done so, he had no right to Tennessee the judgment becomes disclaim or renounce; that it would lien for twelve months from the date be a fraud upon his creditors, and a it is entered, and does not relate back court of equity would compel him to to the first day of the term. do all acts necessary to perfect his The decision in Daniel v. Frost title; and, if he did not, no court of (1879) 62 Ga. 697, against the effecbankruptcy would decree him a certifi- tiveness of a disclaimer by the devcate of discharge.

isee two years after the probate of So, in Crumpler v. Barfield & W. Co. the will, to defeat a levy by his credi(1901) 114 Ga. 570, 40 S. E. 808, where tors made in the meantime, was upon a devise in fee of a parcel of land to the ground that the devise was in confirmation of a gift of the property Ky. L. Rep. 1046, 64 S. W. 730, the by the testator in his lifetime, either court said that it did not mean to hold directly to the devisee or indirectly that a devisee or widow or husband to him through a gift to his wife might not be estopped by their con-' (the testator's daughter), under duct from taking under a will which which the devisee and his wife were they had not renounced in the manner in possession at the time of the in- indicated by the statutes, but did hold curring of the indebtedness in respect that their acts hostile to the will may of which the levy was made. The not be taken advantage of by them, opinion evinces some doubt on the or by others for their benefit. This part of the court as to more general was a suit by the creditors of the husquestions whether a devisee, out of band to subject whatever interest the mere perverseness and passion, and to debtor took under his wife's will, he defeat his creditors, ought to be per- not having renounced the same in the mitted to disclaim a devise which manner required by statute. The eximposes no obligation, and which, ecutors of the wife's will sought to supposing him to be possessed of the defeat the action upon the ground that average.traits of humanity, he would the husband, and therefore his crediaccept for himself were he unob- tors, would be estopped from asserting structed and unprovoked by his credi- a claim under the will by reason of tors. The court, however, recognized his claim to certain real property in that there were objections to any view Texas in hostility to the estate. For which limited the right of the devisee the reason above stated, it was held to disclaim, regardless of his motives. that this contention was not well

A legatee, as against the rights of founded. his attaching creditors, cannot waive In Payton v. Monroe (1899) 110 Ga. the bequest any more than he could

262, 34 S. E. 305, not strictly within assign the legacy subsequent to the

the scope of the annotation, it was service of the attachment. Buckius's

held that, upon the death of a wife inEstate (1895) 17 Pa. Co. Ct. 270.

testate leaving a separate estate in But delay in renouncing does not

lands, title to such estate vests in her estop the debtor from setting up the

heirs at law, and where these heirs are renunciation to defeat an execution

a husband and minor children they take levied against his interests immediate

the estate hare ar share alike; and ly after the testator's death and a suit in aid of the execution, where the

the share of the husband is subject to creditor is not shown to have relied the payment of the debts, notwithupon his conduct or incurred any ex

standing that he was ignorant that the pense because of his failure to act law of inheritance vested in him title more promptly. SCHOONOVER V. Os- to any part of the estate, and refuses, BORNE (reported herewith) ante, 465. upon ascertaining that such is the

In Gillespie v. Boisseau (1901) 23 law, to accept his share. G. H. P.

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(305 Ill. 244, 137 N. E. 214.) Workmen's compensation - effect of statute on injury by stranger.

1. The provision in the Workmen's Compensation Act abolishing the common-law right to recover damages for an injury sustained by an em

ployee in the line of his duties as such employee does not apply to injuries caused by the negligence of persons other than the employer, who have not elected to be bound by the provisions of the statute.

[See note on this question beginning on page 493.] Damages — action by employer under employer, or that defendant had elect

Compensation Act against stranger. ed not to be bound by the provisions

2. Under the provision of the Work- of the Workmen's Compensation Act. men's Compensation Act that, in case Evidence that defendant had electof injury by a stranger who had ed not to be bound by Workmen's elected to be bound by the act, the Compensation Act. employer shall be subrogated to the

5. In a common-law action against employee's rights against him, and

a stranger for injuries to an employee, may recover an amount not exceeding a showing that plaintiff was entitled the aggregate amount of compensa- to compensation from his employer tion payable under the act, the meas- under the Workmen's Compensation ure of damages is what are actually Act does not exclude evidence that desustained by the injured employee, not fendant had elected not to be bound exceeding the aggregate amount of

by such act. compensation payable under the act

Action by reason of the injury to the em

common law

statutory ployee.

provision for division of recovery. [See 28 R. C. L. 739. See also note

6. Merely providing by statute for in 19 A.L.R. 790.]

division, between employer and em

ployee, of the proceeds of a recovery Election between workmen's com

from a stranger for injuries to the pensation and damages at common

employee, does not convert the comlaw.

mon-law action for such recovery into 3. In case of injury to an employee

a statutory one. by a stranger not bound by the provisions of the Workmen's Compensa

Statute - retrospective effect tion Act, the injured employee is not

when given. put to his election between compensa

7. A statute will not be given retrotion under the statute, and damages spective operation unless the lanat common law, but he may prosecute guage is so clear that it will admit of the common-law action and statutory

no other construction. claim for compensation at the same

[See 25 R. C. L. 787 et seq.; 28 R. time.

C. L. 715.] [See 28 R. C. L. 738, 833. See also

- change of substantive right. note in 19 A.L.R. 770.]

8. Substituting fixed compensatior. Pleading action by employee for industrial injuries for the com

against stranger — necessity of al- mon-law action for negligence which legation.

caused them is a change of substan4. A declaration by an employee for tive right within the rule that statinjuries caused by a stranger need not utes affecting such rights will not be allege that the injuries were not given retrospective effect unless the caused by the negligence of plaintiff's language showing such intent is clear.

APPEAL by plaintiff from a judgment of the Appellate Court, First District, affirming a judgment of the Superior Court for Cook County (Kavanagh, J.) in favor of defendants in an action brought to recover damages for personal injuries alleged to have been caused by their negligence. Reversed.

The facts are stated in the opinion of the court.

Mr. James C. McShane, for appel- had elected not to be bound by the lant:

act. Freedom from contributory negli- nes v. Fisher, 286 Ill. 606, 19 gence on the part of the city and its A...R. 760, 122 N. E. 96; Keeran v. employees is not a condition of plain- Peoria B. & C. Traction Co. 277 III. tiff's rights against defendants, who 413, 115 N. E. 636; Houlihan v. Sulz(305 Ill. 244, 137 N. E. 214.) berger & Sons Co. 282 Ill. 84, 118 N. St. Rep. 559, 15 N. E. 181; Boston & E. 429; O'Brien v. Chicago City R. Co. M. R. Co. v. Sullivan, 275 Fed. 890; 293 Ill. 145, 127 N. E. 389; Goldsmith Viscount De Valle Da Costa v. Southv. Payne, 300 Ill. 119, 133 N. E. 52; ern P. Co. 100 C. C. A. 313, 176 Fed. Crooks v. Tazewell Coal Co. 263 Ill. 843. 343, 105 N. E. 132, Ann. Cas. 1915C, Messrs. Charles LeRoy Brown, John 304, 5 N. C. C. A. 410; Marshall-Jack

R. Guilliams, Frank L. Kriete, and son Co. v. Jeffery, 167 Wis. 63, 166 N. John E. Kehoe, for appellees: W. 647; Star Brewing Co. v. Cleve

The cause of action maintainable land, C. C. & St. L. R. Co. 275 Fed. 330;

by or on behalf of an employee to 28 R. C. L. 741; Bowers v. Claxton, 212

whom compensation is payable against Ill. App. 609; Kelly-Atkinson Constr.

a negligent third party defendant is Co. v. Foreman Bros. Bkg. Co. 218 Ill.

regulated and governed by statute, App. 345; Otis Elevator Co. v. Miller

notwithstanding certain common-law & Paine, 153 C. C. A. 302, 240 Fed.

principles are retained, and such a 376, 14 N. C. C. A. 1013; Fidelity & C. Co. v. Cedar Valley Electric Co.

cause of action is, therefore, a statu187 Iowa, 1014, 174 N. W. 709; Carl

tory one, and can be enforced only by

a compliance with the statutory terms son v. Minneapolis Street R. Co. 143

and conditions. Minn. 129, 173 N. W. 406. It was not necessary for plaintiff to

New York C. R. Co. v. White, 243 plead this alleged condition, for the

U. S. 188, 61 L. ed. 667, L.R.A.1917D, question of negligence upon the part

1, 37 Sup. Ct. Rep. 247, Ann. Cas. of the employer, etc., could not be

1917D, 629, 13 N. C. C. A. 943; Midlitigated at the trial.

dleton v. Texas Power & Light Co. Taylorville v. Central Illinois Pub.

249 U. S. 152, 163, 63 L. ed. 527, 534, Serv. Co. 301 III. 157, 133 N. E. 720.

39 Sup. Ct. Rep. 227; Matthiessen & The superior court erred in over

H. Zinc Co. v. Industrial Bd. 284 Ill. ruling plaintiff's demurrer to defend

378, 120 N. E. 249; Johnson v. Choate, ants' plea of the Statute of Limita

284 Ill. 214, 119 N. E. 972; Purcell v. tions to the third and fourth addition

Chicago City R. Co. 221 Ill. App. 343; al counts.

Grand Trunk Western R. Co. v. IndusRobertson v. Northwestern Elev. R.

trial Commission, 291 Ill. 167, 125 N. Co. 210 Ill. App. 89; North Chicago

E. 748; McNaught v. Hines, 300 Ill. Street R. Co. v. Aufmann, 221 Ill. 614,

167, 133 N. E. 53; Illinois Pub. & 112 Am. St. Rep. 207, 77 N. E. 1120,

Printing Co. v. Industrial Commis20 Am. Neg. Rep. 511; Shaughnessy v.

sion, 299 Ill. 189, 132 N. E. 511; ShanHolt, 236 Ill. 487, 21 L.R.A.(N.S.) 826,

ahan v. Monarch Engineering Co. 219 86 N. E. 256; Vogrin V. American

N. Y. 469, 114 N. E. 795; Keeran v. Steel & Wire Co. 263 Ill. 477, 105 N.

Peoria, B. & C. Traction Co. 277 Ill. E. 332; O'Brien v. Chicago City R.

413, 115 N. E. 636; Friebel v. Chicago Co. 293 Ill. 145, 127 N. E. 389; Von

City R. Co. 280 Ill. 76, 117 N. E. 467, Boeckmann v. Corn Products Ref. Co.

16 N. C. C. A. 390; Gones v. Fisher, 274 III. 611, 113 N. E. 902; Friebel v.

286 Ill. 606, 19 A.L.R. 760, 122 N. E. Chicago City R. Co. 280 Ill. 78, 117

95; Bishop v. Chicago R. Co. 215 Ill. N. E. 467, 16 N. C. C. A. 390; Zukas

App. 153; 28 R. C. L. 834, 8 121; RayV. Appleton Mfg. Co. 279 Ill. 171, 116

v. Sligh Furniture Co. L.R.A. N. E. 610; Keeran v. Peoria B. & C.

1916A, pp. 100, 101, note; Merrill v. Traction Co. 277 Ill. 413, 115 N. E.

Marietta Torpedo Co. L.R.A.1917F, p. 636; Gones v. Fisher, 286 Ill. 606, 19 1044, note; Barry v. Bay State Street A.L.R. 760, 122 N. E. 95; Smith v. At

R. Co. 222 Mass. 366, 110 N. L. 1031; lantic Coast Line R. Co. 127 C. C. A. Turnquist v. Hannon, 219 Mass. 560, 314, 210 Fed. 761; Monroe v. Detroit, 107 N. E. 443; Hall v. Thayer, 225 M. & T. S. L. R. Co. 257 Fed 782;

Mass. 151, 113 N. E. 644; Labuff v. O'Connor v. Fond du Lac, 109 Wis. 253,

Worcester Consol. Street R. Co. 231 53 L.R.A. 831, 85 N. W. 327; Frieder

Mass. 170, 120 N. E. 381; Cripps's ichsen v. Renard, 247 U. S. 210, 62 L. Case, 216 Mass. 586, 104 N. E. 565, ed. 1082, 38 Sup. Ct. Rep. 450; Union Ann. Cas. 1915B, 828; Dettloff v. HamP. R. Co. v. Wyler, 158 U. S. 235, 39 mond, S. & Co. 195 Mich. 117, 161 N. L. ed. 983, 15 Sup. Ct. Rep. 877; Mis- W. 949, 14 N. C. C. A. 901; Albert A. souri, K. & T. R. Co. v. Wulf, 226 U. Albrecht Co. v. Whitehead & K. Iron S. 570, 57 L. ed. 355, 33 Sup. Ct. Rep. Works, 200 Mich. 109, 166 N. W. 855; 135, Ann. Cas. 1914B, 134; Chicago & Pawlak v. Hayes, 162 Wis. 503, L.R.A. A. R. Co. v. Dillon, 123 Ill. 570, 5 Am. 1917A, 392, 156 N. W. 464, 11 N. C. C. A.

27 A.L.R.-31.

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