56 Ill. App. 499 | Ill. App. Ct. | 1894
delivered the opinion of the Coubt.
Appellant filed in the County Court of Kane County as a claim against the estate of Wm. II. Buste the following note:
“ $5,000. Aurora, Illinois, August 17, 1877.
One day after my decease I promise to pay to the order of Helen M. Safford the sum of five thousand dollars, with interest after due. Value received.
(Signed) Wm. H. Buste.”
In the County Court she recovered $2,000, and in-the Circuit Court on appeal she recovered a judgment for the full amount of principal and interest. The administrator of the estate appealed from the last mentioned judgment, which was by this court reversed at the May term, 1891, and the case remanded to the Circuit Court. See 41 Ill. App. 659.
The case was redocketed in the Circuit Court and when tried again, judgment was rendered in favor of the administrator.
On the trial, appellant, to sustain her claim, offered in evidence the note, proved its execution and delivery and the death of Buste. The administrator offered no evidence but relied upon the opinion of this court reported in 41 Ill. App. for a judgment in his favor.
The introduction of the note with proof of its execution and delivery and proof of the death of Ruste made a prima facie case for appellant. The note on its face purports a valuable consideration. Although made payable one day after the death of the maker, it is as valid as if made payable on a fixed day. Goodwin v. Goodwin, 65 Ill. 497; Worth v. Case, 42 N. Y. 362.
Appellee contends, however, that the finding and judgment of the Circuit Court is right because this court in its former opinion held that the note was in the main, shown to have been intended as a testamentary bequest merely, and that in so far as it was of that nature, and without valid consideration, it could not be enforced, and that the instrument was permitted to stand only for the purpose of enabling appellant to show whether an obligation had been incurred by the intestate for board and accommodation which had not been paid. In other words, that the decision of this court concluded appellant from all proof except to show whether anything was due for board and accommodation, and if so, how much.
The contention of appellee is untenable. True, this court in its former opinion said it was apparent the note was intended in the main as a testamentary bequest, and that in so far as it was of that nature and without valid consideration it could not be enforced, yet that was given as a reason why the judgment was against. the evidence; but the judgment of this court was that the judgment of the Circuit Court be reversed and the cause remanded for another trial. When remanded the case stood just as though it had never been tried. The court gave no directions to the Circuit Court, and could give none, as it is a case where parties were entitled to a trial by jury, and might introduce any competent evidence to maintain the issue, irrespective of what was introduced upon the trial, which resulted in the judgment reversed.
The judgment must be reversed and the cause remanded for another trial.