Mr. Chief Justice Sheldon
delivered the opinion of the Court:
It is solely the judgment of the Appellate Court which the appellant, Phebe A. Woodburn, complains of as erroneous, and that is in the respects, first, in ordering that Phebe A. Woodburn should be paid her annuity provided for by the will of George W. Woodburn, upon the basis of $800 per annum, in place of $1000 per annum, as directed by the will; second, in the disposition it ordered to be made of the notes and mortgage of Phebe A. Woodburn, for $2180.
The purport of the first assignment of error is, .that the Appellate Court erred in sustaining the agreement of March 13, 1873, between Mrs. Woodburn and James H. Woodburn, whereby she relinquished all the interest of the fund provided by the will for her support except the interest on the sum of $8000. The cross-bill of Mrs. Woodburn sought to have the agreement set aside on the ground that it had been fraudulently obtained from her by James H. Woodburn. Neither of the lower courts appears to have found there was any fraud in the transaction, and we concur in the same view, not finding the charge of fraud to be sustained by the evidence. But the circuit court did find that the agreement was without any good and valuable consideration, and on that ground set it aside. Waiving any question as to the variance of this finding from the allegations of the cross-bill, we will consider as to the correctness of the finding.
The evidence shows that upon the death of George W. Wood-bum, all his interest in the real estate in question ceased, and the whole title was in James H. Woodburn, except for the technical estoppel of the partition proceeding which had been had between George W. and James H. There was no evidence in the record of that proceeding to sustain the decree therein; but the decree was by default, and no evidence may have been necessary. The time for suing out a writ of error had not expired, so that there was yet opportunity to question the correctness of the partition decree on writ of error or by bill of review. There was, to some extent, a cloud upon the title, in the public mind, and this was manifested at the time of the .public sale at auction, by inquiry upon the subject, in response 'whereto James H. Woodburn, before the commencement of the sale, made public announcement that he had made arrangement with Mrs. Woodburn, and would quitclaim to the purchaser at the sale all his interest in the land. The question is not whether James H. Woodburn had actual title or interest in the land, but whether he honestly claimed an interest, or there was a cloud upon the title the removal of which by James H. would tend to promote the sale and enhance the price which the land would bring. We think, from the evidence, there did exist such a cloud upon the title; that its removal by James H. was of benefit to Mrs. Woodburn, in its tendency to enhance the price to be obtained for the land, and thereby increase the fund from the interest on which her annuity was to come, and that it would be of inconvenience to him in making a deed of relinquishment of his interest. We are of opinion there is found sufficient to furnish a consideration for the agreement made by Mrs. Woodburn.
As respects the notes for $2180, of Mrs. Woodburn, the proceeds of the sale of the real estate ($15,150) constituted, under the will of George W. Woodburn, a fund, the interest of which, to the extent of $1000, was to be paid to Mrs. Woodburn during her life. After her death this fund was to go to James H. Woodburn, for his use during his lifetime, and at his death to go to his children. Of the land bought by James H. at the executor’s sale, he sold a portion—the homestead—to Mrs. Woodburn, for which she gave her notes to the executor for $2180. He took these notes and held them, by the understanding of all the parties, as a part of this fund. He gave credit for that amount on the notes of James H. Woodburn, which he had given to the executor for the purchase price of the whole land. Mrs. Woodburn, in her answer, states that she gave the executor two notes, of $1250 each, and secured the same by mortgage, “of which said sum so secured by said mortgage, defendant (Mrs. Woodburn) is informed and believes that $2180 was to be regarded as a part of said fund, and to be substituted for the notes and mortgage that said complainant (James H. Woodburn) was to have executed and delivered to said Ege, as executor, as aforesaid.” So, then, these notes were a part of this trust fund, and should have been held and kept intact, and it was improper to cancel them, and order them to be surrendered up to Mrs. Woodburn in payment of her individual debt due from the executor. Nor was the error relieved by the direction that when the amount of the notes should afterwards be collected from the executor it should be re-invested in securities to be held as a part of the fund. We are of opinion the Appellate Court ordered rightly in respect to these notes.
The appellee James H. Woodburn has assigned cross-errors in this court, as follows: That the Appellate Court erred in holding that under said agreement James H. Woodburn should pay Mrs. Woodburn $800 per annum, instead of “the interest on the sum of $8000 per annum,” as the agreement reads. Where interest, simply, is named, the rate of interest, where nothing appears to the contrary, will be six per cent, the rate fixed by the statute, where there is no contract as to rate. It is not unlikely, from all the attendant circumstances, that the parties intended the rate of interest here to be ten per cent, and that the agreement, as it reads, fails to express the understanding of the parties in that regard. It was probably ten per cent interest that was in their minds. The notes James H. gave for the land he bought, bore that rate of interest. The notes Mrs. Woodburn gave for the part she purchased from James H. bore ten per cent interest. It was ten per cent interest ($800) which was paid to Mrs. Woodburn, under the agreement, for several years. In a letter of James H. to Mrs. Woodburn, he alludes to it as $800 which she was to have under the agreement.
But it is said that this order of the court, in this respect, amounted to a reforming of the contract by the Appellate Court, and that there was no allegation in the cross-bill to warrant it, there being in it no charge of any mistake in the contract, or prayer for the correction of any mistake. This may be a debatable question, and as there is to be a reversal on another ground, there will be afforded opportunity to amend the cross-bill in this respect, and we will dismiss this question without further remark. We can not say the court erred in ordering the costs of the entire consolidated suits to be paid from the trust fund. Manifestly, the sale of the real estate to James H. Woodbum should not be set aside, as is insisted, for the reason that at the date of the sale he was the beneficial and real owner of the lands sold. He could not be said to be such owner in the face of the partition decree. That decree can not be put aside and disregarded in this collateral proceeding.
A further assignment of cross-error is in respect of the note of James H. Woodburn to George W. Woodbum, the testator, for $3050, which was claimed to belong to James H. as a donatio mortis causa made to him by the testator. In respect of this note the circuit court rendered a judgment against Peter Ege, as executor of the last will of George W. Woodbum, deceased, for the face of the note and interest, amounting to the sum of $8604.52.
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Mr. Chief Justice Sheldon
delivered the opinion of the Court:
It is solely the judgment of the Appellate Court which the appellant, Phebe A. Woodburn, complains of as erroneous, and that is in the respects, first, in ordering that Phebe A. Woodburn should be paid her annuity provided for by the will of George W. Woodburn, upon the basis of $800 per annum, in place of $1000 per annum, as directed by the will; second, in the disposition it ordered to be made of the notes and mortgage of Phebe A. Woodburn, for $2180.
The purport of the first assignment of error is, .that the Appellate Court erred in sustaining the agreement of March 13, 1873, between Mrs. Woodburn and James H. Woodburn, whereby she relinquished all the interest of the fund provided by the will for her support except the interest on the sum of $8000. The cross-bill of Mrs. Woodburn sought to have the agreement set aside on the ground that it had been fraudulently obtained from her by James H. Woodburn. Neither of the lower courts appears to have found there was any fraud in the transaction, and we concur in the same view, not finding the charge of fraud to be sustained by the evidence. But the circuit court did find that the agreement was without any good and valuable consideration, and on that ground set it aside. Waiving any question as to the variance of this finding from the allegations of the cross-bill, we will consider as to the correctness of the finding.
The evidence shows that upon the death of George W. Wood-bum, all his interest in the real estate in question ceased, and the whole title was in James H. Woodburn, except for the technical estoppel of the partition proceeding which had been had between George W. and James H. There was no evidence in the record of that proceeding to sustain the decree therein; but the decree was by default, and no evidence may have been necessary. The time for suing out a writ of error had not expired, so that there was yet opportunity to question the correctness of the partition decree on writ of error or by bill of review. There was, to some extent, a cloud upon the title, in the public mind, and this was manifested at the time of the .public sale at auction, by inquiry upon the subject, in response 'whereto James H. Woodburn, before the commencement of the sale, made public announcement that he had made arrangement with Mrs. Woodburn, and would quitclaim to the purchaser at the sale all his interest in the land. The question is not whether James H. Woodburn had actual title or interest in the land, but whether he honestly claimed an interest, or there was a cloud upon the title the removal of which by James H. would tend to promote the sale and enhance the price which the land would bring. We think, from the evidence, there did exist such a cloud upon the title; that its removal by James H. was of benefit to Mrs. Woodburn, in its tendency to enhance the price to be obtained for the land, and thereby increase the fund from the interest on which her annuity was to come, and that it would be of inconvenience to him in making a deed of relinquishment of his interest. We are of opinion there is found sufficient to furnish a consideration for the agreement made by Mrs. Woodburn.
As respects the notes for $2180, of Mrs. Woodburn, the proceeds of the sale of the real estate ($15,150) constituted, under the will of George W. Woodburn, a fund, the interest of which, to the extent of $1000, was to be paid to Mrs. Woodburn during her life. After her death this fund was to go to James H. Woodburn, for his use during his lifetime, and at his death to go to his children. Of the land bought by James H. at the executor’s sale, he sold a portion—the homestead—to Mrs. Woodburn, for which she gave her notes to the executor for $2180. He took these notes and held them, by the understanding of all the parties, as a part of this fund. He gave credit for that amount on the notes of James H. Woodburn, which he had given to the executor for the purchase price of the whole land. Mrs. Woodburn, in her answer, states that she gave the executor two notes, of $1250 each, and secured the same by mortgage, “of which said sum so secured by said mortgage, defendant (Mrs. Woodburn) is informed and believes that $2180 was to be regarded as a part of said fund, and to be substituted for the notes and mortgage that said complainant (James H. Woodburn) was to have executed and delivered to said Ege, as executor, as aforesaid.” So, then, these notes were a part of this trust fund, and should have been held and kept intact, and it was improper to cancel them, and order them to be surrendered up to Mrs. Woodburn in payment of her individual debt due from the executor. Nor was the error relieved by the direction that when the amount of the notes should afterwards be collected from the executor it should be re-invested in securities to be held as a part of the fund. We are of opinion the Appellate Court ordered rightly in respect to these notes.
The appellee James H. Woodburn has assigned cross-errors in this court, as follows: That the Appellate Court erred in holding that under said agreement James H. Woodburn should pay Mrs. Woodburn $800 per annum, instead of “the interest on the sum of $8000 per annum,” as the agreement reads. Where interest, simply, is named, the rate of interest, where nothing appears to the contrary, will be six per cent, the rate fixed by the statute, where there is no contract as to rate. It is not unlikely, from all the attendant circumstances, that the parties intended the rate of interest here to be ten per cent, and that the agreement, as it reads, fails to express the understanding of the parties in that regard. It was probably ten per cent interest that was in their minds. The notes James H. gave for the land he bought, bore that rate of interest. The notes Mrs. Woodburn gave for the part she purchased from James H. bore ten per cent interest. It was ten per cent interest ($800) which was paid to Mrs. Woodburn, under the agreement, for several years. In a letter of James H. to Mrs. Woodburn, he alludes to it as $800 which she was to have under the agreement.
But it is said that this order of the court, in this respect, amounted to a reforming of the contract by the Appellate Court, and that there was no allegation in the cross-bill to warrant it, there being in it no charge of any mistake in the contract, or prayer for the correction of any mistake. This may be a debatable question, and as there is to be a reversal on another ground, there will be afforded opportunity to amend the cross-bill in this respect, and we will dismiss this question without further remark. We can not say the court erred in ordering the costs of the entire consolidated suits to be paid from the trust fund. Manifestly, the sale of the real estate to James H. Woodbum should not be set aside, as is insisted, for the reason that at the date of the sale he was the beneficial and real owner of the lands sold. He could not be said to be such owner in the face of the partition decree. That decree can not be put aside and disregarded in this collateral proceeding.
A further assignment of cross-error is in respect of the note of James H. Woodburn to George W. Woodbum, the testator, for $3050, which was claimed to belong to James H. as a donatio mortis causa made to him by the testator. In respect of this note the circuit court rendered a judgment against Peter Ege, as executor of the last will of George W. Woodbum, deceased, for the face of the note and interest, amounting to the sum of $8604.52. The testimony of Ege is, that at the time he was writing the will, a few evenings before the testator’s death, this note, at the testator’s request was brought to him, the testator, by Mrs. Woodburn; that the testator afterward handed the note to Ege, saying: “You give that note.to James in case he does not contest the will. * * * If he contested the will I was to collect the note, if I could, for the benefit of Mrs. Phebe A. Woodburn. I handed the note over to Mrs. Phebe A. Woodburn, and told her to take care of it. I next saw the note a long time after that. Mrs. Woodburn gave it to me, and told me that everything was satisfactory, or had been satisfactory, and for me to give it to James H. Wood-burn, which I did.” The note remained with the latter, who produced it at the hearing. The executor charged himself with the note, and also gave himself a credit .for it, doing this, he says, to show what was done with, the note in case of any question concerning it.
James H. Woodburn testified that he had a conversation with Mrs. Woodburn in regard to the note, after the testator’s death; that she asked him if he knew what had become of the note, or what was to be done with the note. He replied he did not, whereupon she said that it was to be given up to him; that she said: “Tour father left the note to be given up to you in case you did not contest the will.” “I said it ought to be given up to me.” Mrs. Woodburn, however, denies that she handed the note," at the time the will was being drawn, either to her husband or Ege, and denies that she gave the note to Ege after the death of her husband, directing him to give it to James H.
The master to whom the cause was referred to take the testimony in the case, and report his finding of facts, by his first report found, from the testimony, the fact to be as testified to by Ege, as regards the delivery by the testator of the note to Ege, and the latter delivering it to Mrs. Woodburn, the master stating further, the note was put back by her (Mrs. Woodburn) in the pocket-book from whence it was taken, and was among the papers of George W. Woodburn, deceased, Avhen Col. Ege took possession of them as executor. Exception was taken to this finding of the master, but does not appear to have been passed upon by the court. At a subsequent term the case was re-referred to the master, under specific directions. The second report of the master, which was approved, charged the note against Ege in his account with the estate; but this may have been but the master’s conclusion of laAY from the facts which had before been found by him. The master’s former finding of fact does not appear ever to have been disturbed. The surrender, by the executor, of the notes to James H. Woodburn, goes to the strengthening of his testimony. Upon consideration of the whole evidence, our conclusion is, that the statements of Ege and James H. Wood-burn in the matter should be accepted as to the facts; and according to their testimony, we think there was here a complete and valid donation of the note mortis causa. The delivery, which in such case is essential, may be either to the donee or to another person for him. There was, here, according to the testimony of Ege, an absolute delivery of the note to Ege, to be given to James H. Woodburn in case he did not contest the will, and if he did, then to collect it for Mrs. Woodbum. The testator never afterward resumed possession of the note or revoked the delivery, or manifested any intention or desire to do so. If the note was afterward placed back by Mrs. Woodbum in the pocket-book from whence it was taken, as found by the master, this was not a resumption of possession by the testator, but it was done by one of the conditional donees of the note, for its safe keeping.
It is said that James H. Woodbum can not assign this as cross-error, because it affects only Peter Ege, and that Peter Ege, one of the appellees, is not entitled to make this objection to the decree, as he did not assign cross-errors in this court. But he did assign this as a cross-error in the Appellate Court, and we think this was sufficient to entitle him to insist upon it here.
We think there was error in not finding that there was a gift mortis causa of this note to James H. Woodburn, and in decreeing against the executor the payment of the amount of the note.
The decree and judgment of the -courts below will be reversed, and the cause remanded to the circuit court for further proceedings conformable to this opinion. Leave is given to amend the cross-bill touching the matter of mistake referred to in the written agreement between Phebe A. and James H. Woodburn, and to introduce any further evidence in that particular. The appellant will pay the costs in this appeal.
Judgment reversed.
Subsequently, on March 23, 1888, on an application for rehearing, the following additional opinion was filed:
Per Curiam :
After a careful consideration of the petition for a rehearing in this case, we find no sufficient reason for changing the conclusion which we reached in our former opinion, and a rehearing will be denied. The language of the opinion, however, in some particulars requires modification.
It was said in the opinion, that Peter Ege, executor, filed cross-errors in the Appellate Court to the finding that there was due from him, as executor of the estate of George W. Woodburn, deceased, the sum of $8604.52. Upon an examination of the record, we find that Peter Ege did not assign such cross-error in the Appellate Court. We were led into this misapprehension from the statement of the counsel for Ege that he did assign that cross-error in the Appellate Court. James H. Woodburn did assign in the Appellate Court that finding against Ege as error. The question then is, whether James H. Woodburn’s assignment of error will justify us in reviewing this finding.
The resistance of Ege against being charged in his final report as executor with the amount of this $3050 note of James H. Woodburn to George W. Woodburn, was upon the ground that there had been a gift of the note.from the latter to the former mortis causa. The charging of Ege with the amount of this note as due from him to the estate of George W. Wood-burn, was a determination against such a gift. If there was not such a gift, then James H. Woodburn would be liable over to Ege for the payment of the note. Ege’s appeal from the charging of this $3050 note against him in his final report as executor, "was consolidated in the circuit court with the chancery suit between James H.Woodburn and Phebe Woodburn, and James H. Woodburn, after such consolidation, actually participated in the defence made by Ege against being charged as executor with said $3050 note, as the record shows that he filed exceptions to the master’s report made in such consolidated suit with respect to said note, wherein he insisted the report should state specifically that the note should he given up to him. If there had been no valid gift of the note mortis causa, James H. Woodburn would ultimately be liable for its payment; and in any further action against him upon the note, by Ege, as executor, we are not prepared to say that this charging of Ege, as executor, with this note and judgment against him for the amount of the note, would not be conclusive evidence against James H. Woodburn that there had been no valid gift mortis causa of the note to him, under the principle, that where one is liable over in the case of a judgment against another, and he defends or had notice to make defence in the action wherein the judgment was rendered, such judgment, in a subsequent suit against him, will be conclusive evidence of his liability. (See Drennan v. Bunn, 124 Ill. 175.) We think James H. Woodburn was enough of a party to the suit, and of a party in interest, to entitle him to assign as error the rendering of the judgment for the amount of this note against Ege, as executor, in favor of the estate of George W. Woodburn.
We may have misapprehended that the amount, $8604.52, with which Ege was charged, as executor, and for which judgment was rendered against him in favor of the estate, was made up wholly of the principal of this $3050 note, and interest on it. We decide nothing more against the indebtedness found due from Ege, as executor, to the estate of George W. Woodburn, than in respect of this note—that he should not have been charged therewith.