| Ill. | Jun 16, 1883
delivered the opinion of the Court:
It is exceedingly clear that when the bonds were first delivered it was not as an absolute gift. The express promise, made in writing by plaintiff in error, to deliver the bonds to Mrs. Wood “whenever called for, ” is a written contract, the terms and conditions of which can not be lawfully varied or modified by parol proof, and that undertaking is entirely incompatible with the idea of an absolute gift. It may be that it was then her intention and expectation that the bonds never should be called for by her, but it is equally plain that she intended to retain her right to call for them if circumstances should make that course desirable to her. It is not material what may have been her motives for this action. It may be-she intended all this practically as an advancement, or as a gift, but she did not choose to give it that form, or make it, either. It may be she took this course merely for the purpose of protecting the bonds and their proceeds from-creditors of her brother, and of preserving the same for his enjoyment. This does not; affect the question, unless she chose to make the same an absolute gift or an advancement. The burden of proof rests upon the plaintiff in error to show that what was at first a loan was afterwards changed into an absolute gift. While there are some proofs tending to support that conclusion', there is also proof tending strongly to the conclusion that she never did relinquish, or intend to relinquish, her right to demand these bonds, or the proceeds thereof. This is an issue of fact which it is not our province to determine. We must treat the case upon the hypothesis that the loan, in fact, was never converted into an absolute gift. But if it were our province to -weigh the evidence, the proofs fail to convince-us that either these bonds or their proceeds were ever donated to plaintiff in error as an absolute gift.
But it is contended that the liability of- plaintiff in error, if any, after their conversion to his own use, accrued in 18T1, when the bonds were disposed of by him, with her consent, and no" longer rested upon a written contract, and hence the right to sue for the same was barred by the Statute of Limitations; and the case is likened to that of a promissory note payable upon demand, against which it is said the statute begins to run at or soon after its date, and this without any actual demand. The cases are not alike. It was clearly,in this ease, the agreement of the parties that no duty to return the money or the bonds should arise until an actual demand for the same should be made. Under the original .contract no action could have been maintained by Mrs. Wood for these bonds without an actual demand; and the proofs tend to show, and we think do show, that the money for the bonds was not payable until actually demanded. The' permission by Mrs. Wood to plaintiff in error to retain this' money continued until the time of her death, and the lapse of time since her death had not been sufficient to bar the claim.
The propositions of law refused by the circuit court, relating to the subject of advancements, had no application to the ease, for no evidence in the case tended to establish the case of an advancement.
The judgment of the Appellate Court is therefore affirmed.
Judgment affirmed.