Mr. PresidiNg Justice Baldwin
delivered tlie opinion of the court.
Shortly after their appeal was perfected, appellants made a motion to strike from the files the certificate of evidence, showing the testimony given on the trial before Judge Kavanagh in July, 1904. This motion this court denied on December 10, 1909; but it is now renewed by the appellants, who contend that the evidence is not properly a part of the record, and should not be considered by this court; however, it appears that appellants, in their briefs and arguments, themselves extensively quote from it; and it also appears that the master had it before him and considered it in making up his report. After due consideration of the motion, we feel compelled to again deny it.
The first and most important question brought before us by this appeal, is whether the court erred in refusing to grant relief upon the cross-bill filed by Dr. Frank A. Stahl, and in dismissing it for want of equity.
After a careful consideration of all the testimony in the case, we have reached the conclusion that there is no adequate justification in the record for a reversal of the decree of the court below. The claim of Frank A. Stahl rests almost exclusively upon his own testimony; the master expressly found that there was nothing else upon which it could be based. His testimony given in this case, if taken by itself, might easily warrant the court in granting the relief prayed for; but, if as held by the master and the court below, he had so far discredited himself by previous contradictory and inconsistent statements and contentions, as to neutralize and destroy the effect of his testimony upon the hearing, he has no one to blame but himself.
When this hill was first filed and a hearing was had upon it before Judge Kavanagh in July, 1904, Dr. Frank A. Stahl and John Stahl respectively were endeavoring to substantiate their claims of ownership of the premises in question. Dr. Frank A. Stahl claimed that his mother had conveyed it to him in satisfaction of his claims against her, and that by the conveyance he became its absolute owner, free from any claims on the part of any of his brothers or sisters. It was also claimed by him and John that by his conveyance to John, the latter acquired an indefeasible title to the property in question, free from all claims of the other heirs. Upon that hearing, the court found that the contentions of both Dr. Frank A. and John Stahl were not substantiated, but were false; that the deed from the mother, was as claimed in the bill, actually in trust for the benefit of all her children, and Judge Kavanagh so decreed. In this finding the Supreme Court concurred, its decision being rendered on the 21st day of February, 1905. Within two days thereafter Frederick W. Stahl, one of the defendants in the proceeding, was appointed administrator of his mother’s estate, and it appears that while he was such administrator, there were allowed ex parte in the Probate Court, claims in behalf of appellants, aggregating about $18,-000, to pay which he endeavored to sell the premises in question. From an order of the Probate Court, dismissing his petition to sell the real estate, he appealed to the Supreme Court, where that action was affirmed. In the meantime, this cross-bill by Dr. Frank A. Stahl was filed, and all the appellants confessed its allegations to be true.
Waiving the questions that are raised by appellees here of merger of title in Frank A. Stahl; of estoppel (because of his warranty deed to John) to assert here a right of subrogation; and that by contesting complainants’ rights upon the ground of alleged ownership of the premises, he is precluded from his claim here by having elected his remedy; and that the subject-matter of his cross-bill is res adjudicata ;• — none of which do we decide, — we think the testimony in the case justifies the conclusion of the master and the court below.
The testimony of Frank A. and John Stahl given upon the hearing before Judge Kavanagh, and of Frank A. Stahl before Referee Wean, is so directly opposed to their present contentions as to challenge their right to be believed. While Frank A. Stahl is now claiming that he has an unsatisfied claim against the property for $7,596.43, growing out of an alleged agreement between his mother and himself, which he insists constituted a lien upon it, he and John then testified to a state of facts utterly inconsistent with such claim. Upon being recalled to the witness stand in the hearing before Judge Kavanagh, in July, 1904, and questioned by the court, Frank A. Stahl testified as follows:
“Q. Doctor, who owns that property now? A. My brother John.
Q. You have no claim upon it at all? A. No, sir.
Q. And was any agreement ever made between you and your brother as to your having any interest in it? A. No interest in it, absolutely.
Q. There is no paper in existence now of any character, showing you or anyone else having any interest in that property? A. No, John; he is the only one that has any interest, John.”
Upon the same hearing, the court examined John Stahl, who testified as follows:
“Q. Now if you were to sell it, you would put the money in your own pocket? A. I certainly should.
Q. You wouldn’t give him anything? A. It all depends.
Q. You would keep it all yourself? A. I would keep it all myself.
Q. Was there any understanding that you are to divide up or have any interest in that property between each other? A. Not a one.
“There is no understanding at all, in writing, of any character. It is absolutely my property without any condition at all attached. I have made no promise that I will at any time deed that property to him.
Q. Now so that there will be no mistake about it: That property was given to you by your own brother, was it? A. Yes.
Q. Without any condition of any character? A. There was no condition attached to it at all. He says, ‘John,’ he says, ‘I give you this property, iconvey it to you, it is yours’. Frank was going to Europe at that time. He did not go. I still have title to that property. I have collected the rents and I have put them to my own account. I have not given him any, not a cent. ’ ’
And while the record in this case established beyond controversy that the doctor paid $4,000 of the $10,-000 encumbrance in 1897, $1,000 in 1898, and $3,500 in 1899, and $1,500 in 1902, yet, when testifying before Eeferee Wean in June, 1905, Frank A. Stahl’s testimony was shifty, equivocal, and utterly lacking in candor; he said:
“I don’t remember when I paid any money last to the Northern Trust Company. It might have been in 1§92, it might have been in 1893, it might have been in 1894, it might have been in 1895. I don’t remember testifying when I was here before that the remaining portion of that $10,000 encumbrance was paid off by me. I don’t know what the fact is in regard to that.
Q. You don’t know whether it has been paid or not? A. I don’t know now, no, sir.
Q.
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Mr. PresidiNg Justice Baldwin
delivered tlie opinion of the court.
Shortly after their appeal was perfected, appellants made a motion to strike from the files the certificate of evidence, showing the testimony given on the trial before Judge Kavanagh in July, 1904. This motion this court denied on December 10, 1909; but it is now renewed by the appellants, who contend that the evidence is not properly a part of the record, and should not be considered by this court; however, it appears that appellants, in their briefs and arguments, themselves extensively quote from it; and it also appears that the master had it before him and considered it in making up his report. After due consideration of the motion, we feel compelled to again deny it.
The first and most important question brought before us by this appeal, is whether the court erred in refusing to grant relief upon the cross-bill filed by Dr. Frank A. Stahl, and in dismissing it for want of equity.
After a careful consideration of all the testimony in the case, we have reached the conclusion that there is no adequate justification in the record for a reversal of the decree of the court below. The claim of Frank A. Stahl rests almost exclusively upon his own testimony; the master expressly found that there was nothing else upon which it could be based. His testimony given in this case, if taken by itself, might easily warrant the court in granting the relief prayed for; but, if as held by the master and the court below, he had so far discredited himself by previous contradictory and inconsistent statements and contentions, as to neutralize and destroy the effect of his testimony upon the hearing, he has no one to blame but himself.
When this hill was first filed and a hearing was had upon it before Judge Kavanagh in July, 1904, Dr. Frank A. Stahl and John Stahl respectively were endeavoring to substantiate their claims of ownership of the premises in question. Dr. Frank A. Stahl claimed that his mother had conveyed it to him in satisfaction of his claims against her, and that by the conveyance he became its absolute owner, free from any claims on the part of any of his brothers or sisters. It was also claimed by him and John that by his conveyance to John, the latter acquired an indefeasible title to the property in question, free from all claims of the other heirs. Upon that hearing, the court found that the contentions of both Dr. Frank A. and John Stahl were not substantiated, but were false; that the deed from the mother, was as claimed in the bill, actually in trust for the benefit of all her children, and Judge Kavanagh so decreed. In this finding the Supreme Court concurred, its decision being rendered on the 21st day of February, 1905. Within two days thereafter Frederick W. Stahl, one of the defendants in the proceeding, was appointed administrator of his mother’s estate, and it appears that while he was such administrator, there were allowed ex parte in the Probate Court, claims in behalf of appellants, aggregating about $18,-000, to pay which he endeavored to sell the premises in question. From an order of the Probate Court, dismissing his petition to sell the real estate, he appealed to the Supreme Court, where that action was affirmed. In the meantime, this cross-bill by Dr. Frank A. Stahl was filed, and all the appellants confessed its allegations to be true.
Waiving the questions that are raised by appellees here of merger of title in Frank A. Stahl; of estoppel (because of his warranty deed to John) to assert here a right of subrogation; and that by contesting complainants’ rights upon the ground of alleged ownership of the premises, he is precluded from his claim here by having elected his remedy; and that the subject-matter of his cross-bill is res adjudicata ;• — none of which do we decide, — we think the testimony in the case justifies the conclusion of the master and the court below.
The testimony of Frank A. and John Stahl given upon the hearing before Judge Kavanagh, and of Frank A. Stahl before Referee Wean, is so directly opposed to their present contentions as to challenge their right to be believed. While Frank A. Stahl is now claiming that he has an unsatisfied claim against the property for $7,596.43, growing out of an alleged agreement between his mother and himself, which he insists constituted a lien upon it, he and John then testified to a state of facts utterly inconsistent with such claim. Upon being recalled to the witness stand in the hearing before Judge Kavanagh, in July, 1904, and questioned by the court, Frank A. Stahl testified as follows:
“Q. Doctor, who owns that property now? A. My brother John.
Q. You have no claim upon it at all? A. No, sir.
Q. And was any agreement ever made between you and your brother as to your having any interest in it? A. No interest in it, absolutely.
Q. There is no paper in existence now of any character, showing you or anyone else having any interest in that property? A. No, John; he is the only one that has any interest, John.”
Upon the same hearing, the court examined John Stahl, who testified as follows:
“Q. Now if you were to sell it, you would put the money in your own pocket? A. I certainly should.
Q. You wouldn’t give him anything? A. It all depends.
Q. You would keep it all yourself? A. I would keep it all myself.
Q. Was there any understanding that you are to divide up or have any interest in that property between each other? A. Not a one.
“There is no understanding at all, in writing, of any character. It is absolutely my property without any condition at all attached. I have made no promise that I will at any time deed that property to him.
Q. Now so that there will be no mistake about it: That property was given to you by your own brother, was it? A. Yes.
Q. Without any condition of any character? A. There was no condition attached to it at all. He says, ‘John,’ he says, ‘I give you this property, iconvey it to you, it is yours’. Frank was going to Europe at that time. He did not go. I still have title to that property. I have collected the rents and I have put them to my own account. I have not given him any, not a cent. ’ ’
And while the record in this case established beyond controversy that the doctor paid $4,000 of the $10,-000 encumbrance in 1897, $1,000 in 1898, and $3,500 in 1899, and $1,500 in 1902, yet, when testifying before Eeferee Wean in June, 1905, Frank A. Stahl’s testimony was shifty, equivocal, and utterly lacking in candor; he said:
“I don’t remember when I paid any money last to the Northern Trust Company. It might have been in 1§92, it might have been in 1893, it might have been in 1894, it might have been in 1895. I don’t remember testifying when I was here before that the remaining portion of that $10,000 encumbrance was paid off by me. I don’t know what the fact is in regard to that.
Q. You don’t know whether it has been paid or not? A. I don’t know now, no, sir.
Q. And yet you don’t remember whether the notes were paid off at the bank or not? A. No, sir, not just now. You asked me for the exact date, and I don’t remember it.
Q. I say any date, Doctor, do you remember of those notes being paid off? A. No, sir.
Q. Will you say they were not paid off? A. No, sir.
Q. The balance of the encumbrance in 1897, after yon paid off the first portion of it, was how much? A. I don’t remember.
Q. Abont how much? A. That I don’t know.
Q. Do yon have any recollection at all? Á. Not just at present, no, sir.
Q. Don’t yon know that it was $6,000? A. No, sir.
Q. Don’t yon know that yon said when yon were here on the stand before that it was $6,000? A. If I did it is possible that I remembered it at that time; bnt I don’t remember it now.
Q. Yon remembered it three weeks ago when yon were here, and yon don’t remember it now? A. I don’t know.
Q. Do yon know, doctor, whether that encumbrance was reduced in amonnt in 1897 ? A. My recollection is now, yes, sir.
Q. How much? A. I don’t know.
Q. Abont how much? A. I don’t know.
Q. Have yon any recollection in regard to it? If so what is the recollection? A. My recollection is that there was a redaction in the amonnt, and — that there was a certain amonnt of money borrowed in order to supply funds to pay for my brother’s education in Europe.
Q. I didn’t ask you about that? A. But you are asking me practically to refresh my memory.
Q. I am asking yon if yon recall the amonnt of the reduction. A. No, sir.
Q. Was it as much as one thousand dollars? A. I don’t remember.
Q. Will yon state now that you don’t know whether it was as much as $1,000 or not? A. Yes, sir.
Q. Do you know, Doctor, whether any amonnt had been paid on that encumbrance since the title got into your name in 1900? A. What encumbrance have yon reference to?
Q. The only encumbrance we are talking about. A. Well, if you define it, if you please, I will try to answer to the best of my ability.
Q. Do you know of any encumbrance on the property at 15 Blue Island avenue ever having been paid in whole or in part after the 18th day of August, 19001 A. I don’t remember.
Q. Will you say, Doctor, that you don’t remember ever having paid anything on that encumbrance after the.title got into your name! A. I don’t remember now, no, sir.
Q. Have you remembered at any time? A. I don’t remember. I don’t remember, sir.
0. What is your recollection? What has happened? Is there anything that you can place why it is that your recollection is not as good today as it was when you first testified here? A. I suppose — I would not answer. What I mean by that is I have no explanation to offer. I don’t know.
Q. You cannot explain why it is you then remembered and not now? A. I don’t know.”
In this very proceeding, Frank A. Stahl testified before the master in 1907, with reference to the payments made by him on the indebtedness to the Northern Trust Company:
“I always held this $5,000 indebtedness against her. That was one of the considerations for the conveyance of the property to me in 1900.
Q. Was that 'consideration mentioned at the time? A. Yes.”
Upon the hearing before Judge Kavanagh, he had testified that he could not think of any reason why she should favor him with reference to her property rather than her son John; that there was no difference between his relation to his mother and that of the other children; that Gustave, her youngest son in Europe, was her favorite. At that time, it is clear that he did not regard himself as holding any claim of indebtedness against his mother, for he says: “She wanted to give me a mortgage to secure us on her property, and I said ‘Mother, I don’t want any indebtedness; I am perfectly willing to give you my last cent, and you can have John’s also. Yon have done for ns all these years. Yon are welcome to every cent I have got.’ ”
Numerous other inconsistencies in the positions taken by Frank A. Stahl in the extended litigation over this property might be pointed ont, bnt it is 'sufficient to say, that in our opinion, he is so far discredited as to warrant the master and the court in holding that he had not sustained the averments of his cross-bill.
Even if it be granted that he was generous in aiding his mother and other members of the family, we do not think the testimony establishes any contract or even an understanding that he should be reimbursed for these ■ advances, nor any such a condition as would justify the court in holding that he was equitably entitled to be subrogated to the rights of the Trust Com-pány, as claimed by him. The fact that he had thus been generous to his mother and other members of the family undoubtedly brought its reward in the satisfaction which such conduct brings, but it does not establish a right to the lien claimed by him.
Appellants also contend that the court erred in holding that they were not entitled in this proceeding to enforce their alleged claims against Gustave Stahl and Emma M., his wife, and others found by the decree en • titled to share the proceeds of the property. Among these claims thus sought to be enforced, was one by Dr. Frank A. Stahl against his sister, Mrs. Eigheimer, for medical services; another was his claim against Gustave and his present wife, Emma M. Stahl, upon their promissory note; another was his claim against Robert G. Stahl for medical services rendered to his deceased wife, and claiming that Hugo Munzer, as as-signee in bankruptcy of Robert G. Stahl, should receive his interest in the property subject to this claim; John Stahl also had certain claims against Gustave and Emma, his wife, also against Robert G. Stahl for money advanced. We are unable to sustain these contentions. We know of no theory of law which would warrant the trial court in requiring a settlement of the individual claims of these parties, one against another, or claims of any of the children against their mother, which did not arise as rent, or were in some other manner connected with the real estate in question.
Appellants contend that the court erred in allowing solicitor’s fees to be paid to Morse Ives out of the proceeds of the sale of the trust estate. There is no question made as to the correctness of the amount; indeed, that is agreed upon, the contest being only as to whether or not any compensation is permissible out of the proceeds of the sale for Ives’ services in establishing and preserving the trust estate.
Appellees have maintained throughout that this was a trust estate. The premises were claimed by Frank A. Stahl and John Stahl, and their assertion of title to it made the services of attorneys necessary to secure an adjudication that it was in fact a trust estate; such adjudication having been made, there should be an allowance of reasonable solicitor’s fees to be paid out of the fund, and before it is divided among those entitled to it. Abend v. Endowment Fund Commission, 174 Ill. 96; Chick v. Northwestern Shoe Co., 118 Fed. 933; White v. University Land Co., 49 Mo. App. 450; Trustees v. Greenough, 105 U. S. 527.
Appellants object to the amount of the fees allowed the master, and also object to the distribution of such fees. The total fee allowed was $450, and of this amount $360 was taxed against Frank A. Stahl. By the act of 1907 it was provided that in Cook county masters might receive as a “fee for examining questions in issue referred to them, and reporting conclusions thereon, * * * such compensation as the court may deem just.” In view of the testimony of the master as to the character and extent of the services thus rendered by him, and of what the record discloses as to the mass and complexity of the litigation, we cannot say that the court erred in allowing the amount; and in view of the conflicting positions taken by cross-complainant Frank A. Stahl, and the contradictory evidence offered by him in various phases of the litigation, and the necessarily large record which was thereby caused, we can-tradictions, as are disclosed by this record, it may be the amount to be charged against him.
While in a case involving such complications and contradictions, as are dislosed by this record, it may be difficult for the parties to believe that they have been justly dealt with, we are of the opinion that in the record before us there is no substantial error, and the decree will, therefore, be affirmed.
Decree affirmed.