Lee v. Pennington.

ing even date with this instrument, whereby there is placed in his hands, as trustee, the sum of seven thousand nine hundred and four dollars, which said sum of money is to be loaned out at the usual rate of interest by the said Charles Johnson, Jr., and all the interest arising therefrom; the above bounden Charles Johnson, Jr., is to collect and pay over to Mrs. Ann Richards, widow, each and every year during her natural life, save and except two per cent. of the whole amount of interest, which said Charles Johnson is to retain as compensation for his services of this trust, and at the decease of Mrs. Ann Richards, widow, is to pay over to Maria T. Lee, her heirs, administrators or assigns, in moneys or notes, as may be in his hands at the time, the sum of three thousand nine hundred and fiftytwo dollars, being to each one the one-half of seven thousand nine hundred and four dollars, placed in his hands in this trust.

"Now if the said Charles Johnson, Jr., shall well and truly carry out this obligation and terms of agreement herewith, according to the tenor and intention thereof, and also give additional security in case the above or any portion of it shall become impaired at any time whenever called upon by the parties interested in this instrument, then this obligation to be null and void, otherwise to remain in full force and effect."

It is further averred, that the said Charles Johnson, Jr., at the time of the execution of said agreement and said writing obligatory, received the said sum of $7,904, and that he took upon himself the duties of said trust, and continued to discharge the same until the 21st day of March, 1873, when he departed this life wholly insolvent, without having any estate to answer for his debts and liabilities, and that no letters of administration have ever been taken out on his estate. That in his life-time he appropriated to his own use $7,804 of the said trust fund, and had at the time of his death of said trust fund only the sum of $100.

The declaration further avers, that said widow, Ann Richards, did on the 29th day of January, 1879, assign all her right and title in and to said written agreement, and her rights arising thereunder to the plaintiff and the said Annie Richards mentioned therein; by reason whereof the said plaintiff became

Lee v. Pennington.

entitled to demand and have of and from the said defendants the said sum of, etc.; and then avers that a demand for the same was made on defendants prior to the commencement of the suit.

A demurrer was sustained to this declaration, and plaintiff abiding by the declaration, judgment was rendered against her for costs, from which she appeals to this court.

So long as the widow continued entitled to the interest on the money, and the trustee was guilty of no breach of trust or violation of any duty imposed upon him by the terms of the bond, no right of action would have accrued to the plaintiff until the death of Mrs. Ann Richards.

But the embezzlement of the trust fund by the trustee, his insolvency and death, rendered it impossible for him ever to fulfill the conditions of the bond requiring him to pay over the money at the death of Mrs. Ann Richards, and the obligee in the bond acquired an immediate right of action, and need not wait the death of Ann Richards before commencing suit.

Where a person agrees to do an act by a certain time, and before that time arrives does something which renders it impossible for him to perform the act, there is an immediate. breach of contract, on which an action may be brought before the time for performance arrives. Short v. Stone, 8 Q. B. 358; Lovelock v. Franklyn, 8 Q. B. 371; Ford v. Riley, 6 B. & C. 325; Bowdell v. Parsons, 10 East. 359; Hockster v De Latour, 2 Ellis & B. 678; (S. C. 20 Eng. L. & Eq. 157) Chamber of Commerce, etc. v. Sollitt, 43 Ill. 519; Fox v. Kitton, 19 Ill. 519.

The right of the trustee to two per cent. of the interest, as a compensation for the management of the trust, gave him no vested interest in the fund, which would entitle him or his representatives to retain the same as against the plaintiff, after a breach of the condition of the bond. The condition, however, to pay over the money at the death of Ann Richards was not the only duty imposed upon the trustee by the terms of the bond, for which his sureties, became responsible.

By the bond, Johnson agreed to loan the money at the usual rate of interest, and pay over the same to the widow, each and every year, less his commission of two per cent., and to carry

Lee v. Pennington.

out the terms of the agreement and bond according to the tenor and intent thereof; and to give additional security, if necessary, when called upon to do so. The money belonged to the plaintiff, and the bond was given directly to her to secure her against loss by the wrongful acts of the trustee; and the terms of the trust expressly declared and fixed the use to be made of the fund by the trustee. And his securities undertook that he would discharge the duties of his trust according to the true intent of the agreement and bond.

Under the terms of the trust, it was the duty of the trustee to loan the money from time to time on sufficient security to protect the plaintiff from loss. His embezzlement of the fund, and insolvency, was such a violation of this duty as to render him and his securities liable for his breach of the condition of the bond, and entitle the plaintiff to recover the fund in a suit upon the bond. Even if the trust in favor of the widow still continued, the plaintiff, after a breach of the condition of the bond, would have a right to enforce the payment of the money for her own protection, leaving a court of equity to enforce the trust afterwards by the appointinent of a new trustee.

A court of law will not inquire whether a plaintiff sues for himself or as trustee for some other person; it is sufficient if he has the legal interest in the subject-matter of the suit. Chadsey, Adm. v. Lewis, 1 Gil. 153; Manlove v. McHatten, 4 Scam. 95; McLean et al. v. The People, 85 Ill. 208; The People v. Stacey et al. 6 Bradwell, 521.

We are of opinion that the cause of action set out in the declaration, entitled the plaintiff to recover, and that the court erred in sustaining the demurrer.

The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.

CASES

IN THE

APPELLATE COURTS OF ILLINOIS.

SECOND DISTRICT-JUNE TERM, 1880.

JAMES M. HUNTER

V.

ELLA B. HUNTER.

1. SEPARATE MAINTENANCE.-To authorize a decree for separate maintenance for causes other than those for which a divorce will be granted, it ought at least, to be proved that there was reasonable danger of personal violence to complainant, or a persistent, unjustifiable course of conduct on the part of the husband, which would necessarily render the wife miserable if she continued to remain with him. In this case the evidence fails to show a sufficient cause to support a decree for separate maintenance.

2. A decree upon a bill for divorce, and separate maintenance, dismissing the bill for divorce, and entering a decree for separate maintenance is a final decree. It fixes the status of husband and wife.

APPEAL from the Circuit Court of Kankakee county; the Hon. FRANKLIN BLADES, Judge, presiding. Opinion filed December 4, 1880.

Mr. JAMES N. ORR, for appellant; cited Babbitt v. Babbitt, 69 Ill. 277; Angelo v. Angelo, 81 Ill. 251; Wahle v. Wahle, 71 Ill. 510.

Hunter v. Hunter.

Mr. C. R. STARR, for appellee; that no appeal lies in this case, it being a mere interlocutory order, cited Gage v. Eich, 56 Ill. 297; Woodside v. Woodside, 21 Ill. 207; Perhant v. Magaher, 4 Scam. 326; Myers v. Manny, 63 Ill. 211; Blake v. Blake, SO Ill. 523.

LACEY, P. J. This was a bill praying for divorce and separate maintenance, filed April 18, 1879, by appellee against appellant, charging cruelty. After answer denying all the charges of the bill, the court, Dec. 8, 1879, submitted the following issue to the jury:

1st. Has the defendant been guilty of extreme and repeated cruelty, as charged in the bill of complaint? And if not, 2nd. Has the defendant been guilty of such conduct and treatment towards the complainant as justified her in separating herself and living apart from defendant?

The jury, after hearing the evidence, returned into court the following verdict, to wit: "As to the first issue, we find the defendant not guilty; and, as to the second issue, we find the defendant guilty of such cruelty and treatment toward complainant as justified her in separating and living apart from defendant."

After overruling motion for a new trial, the court ordered that the bill relating to a divorce be and the same is dismissed, and complainant forever barred from recovering for the same cause therein alleged; and decreed that the plaintiff was enti tled to a separate maintenance from defendant.

Appellant excepted to the decree providing separate maintenance, and has appealed to this court; and assigns for error the overruling of the motion to set aside the verdict of the jury as to separate maintenance, and not dismissing the bill as to separate maintenance, and that the court erred in decreeing separate maintenance to appellee, and in submitting both issues to the jury; and that the court erred in modifying instructions Nos. seven, eight and nine, and in refusing ten and eleven, offered by defendant, and in giving one, two, three, four and five for complainant; and in admitting evidence offered by appellee, and rejecting evidence offered by appellant.