88 Ill. 239 | Ill. | 1878
delivered the opinion of the Court:
There is a manifest failure in the proof to establish the charge of improper practice in obtaining the assignment of the notes and the execution of the instrument in writing of December 3, 1874.
There is in support of the allegation but the testimony of the plaintiff herself, and some inconsequential admissions testified to as having been made by the defendant. In express contradiction is the direct testimony of three witnesses,—the defendant and another co-heir, and D. W. Fouts,—with other corroborative evidence.
The witness Fouts, who was a justice of the peace, and, so far as appears, entirely disinterested, testifies that he was present at the time of-the transaction, and, at the request of plaintiff, read the instrument to her, and that, on his inquiry, she replied that she understood the meaning of it, and at her request he signed her name thereto, and wrote her indorsements in blank on the notes, and she made her mark to them all; and his name appears signed thereto as a-witness.
The case of the plaintiff is only to be rested, if at all, upon the ground of the right to revoke, at her will, the trust which she had thus created; and this claim is advanced. It is contended that this instrument was but a power of attorney, and so revocable at pleasure; but it is certainly more than this. It in express terms constitutes defendant a trustee, in addition to attorney, and, besides the power to collect and pay over to her the moneys due upon the notes,- invests him with a trust in regard thereto, not only for her own benefit, but for that of the makers of the notes, her children. It appears to have been in the nature of a family arrangement, to a certain extent for the- benefit of her children, as well as herself, in view of her approaching marriage.
The defendant testifies that the original proposal upon the subject was from plaintiff herself, that she would indorse over the notes to the makers, and that he should give them up to each one of the heirs, and that the plan which was adopted—that in question—was at his own suggestion, as more beneficial for her. All the makers of these notes, defendant one of them, are concerned in interest that the trust should be continued as created, and that they should not be subject to have the collection of the notes, if placed in the hands of some other one, enforced against them—the interest unconditionally, and the principal upon an allegation of its being necessary for the support of plaintiff. By the face of the notes, the interest is payable absolutely, and the principal, if it shall be necessary for the support of the payee; but by the terms of the trust, the interest is not collectible and payable to the plaintiff, unless, in the judgment of the trustee, the wants of the plaintiff shall require the same. No case of abuse of trust is shown in not paying over any money which the wants of the plaintiff demanded. Indeed, the bill itself makes no case of that kind. It has no allegation of a refusal to pay any money which the wants of the plaintiff required, all the averment in. the matter being, the collection of a large amount of interest, and a failure to pay it over, and a demand of a return of the notes and payment of the amount collected, and -refusal to comply.
The proof shows David Light, the husband of plaintiff, to have $2000 at interest, and that he has a payment of $50 a year coming from his children, to whom he had given his land; that since December 3, 1874, the date of the creation of the trust, defendant has paid to plaintiff the sum of $758.50 —this, though, was not money collected on these notes, but from other claims which she had put into defendant’s hands.
On August 2, 1875, plaintiff attempted to revoke the trust, and the present bill was filed September 1, 1875.
The movement was prompted, as may be inferred from the evidence, by the dissatisfaction of the husband of plaintiff. It is but natural the arrangement should not be agreeable to him, as it bears unfavorably upon his interest.
The trust appears to have been a perfectly created one, and we can not admit the right of plaintiff to annul it at will.
The decree will be affirmed.
Decree affirmed.