was as 6. WILLS ($ 657*)-ESTATE DEVISED-CONDI- 1 queathed to his two children, and the fourth TIONS PRECEDENT. paragraph of the will follows: "Fourth. After the death of my wife, my farm, same being the west half of the northwest quarter and the north half of the southwest quarter of section 16, township 24, north, range 7, east of the fourth principal meridian, situated in Whiteside county, Illinois, I give and devise to my son, Louis Ditz, to have and to hold forever, but before he shall receive said farm under this will he shall pay to my daughter, Sophia Jacobs, as her share in said farm, the sum of $1,000, and to my wife's son, William Ditz, the sum of $500, and if in case I should pay a certain I die, then my son shall pay to my daughter the sum of $2,000, or in case I shall pay only $1,000 of said mortgage, then my son shall pay to my daughter the sum of $1,500 for her share, and upon my son filing the receipts of such payment to the county clerk of Whiteside county, Illinois, he shall have the above described lands under this will.” A will gave all testator's estate to his wife for life and provided that after her death his farm was to be devised to testator's son to have and hold forever "but before he shall receive said farm under this will he shall pay to my daughter as her share in such farm the sum of $1,000 and to my wife's son" the sum named, and that, if testator should pay a $2,000 mortgage on the farm, then his son should pay to his daughter the sum of $2,000, or, in case testator pays only $1,000 on the mortgage, the son should pay to the daughter the sum of $1,500 for her share, and "upon my son filing the receipts of such payment to the county clerk * he shall have the above described land under this will." Held, that the payment of the amounts specified and the filing of receipts therefor was a condition precedent to the vesting of the farm in tes-mortgage now on said farm of $2,000 before tator's son, and the legatees named could not, by refusing to accept their legacies, defeat the devise to the son by preventing performance of such condition. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1551, 1552; Dec. Dig. § 657.*] 7. WILLS (§ 630*)-ESTATE DEVISED-CONTINGENT REMAINDER. The estate devised was not a contingent remainder which would take effect on the termination of the life estate of testator's widow but was a contingent future interest which became a vested estate upon payment of the legacies by testator's son after the expiration of the life estate. [Ed. Note. For other cases, see Wills, Cent. Dig. 88 1464-1480, 1486, 1487; Dec. Dig. § 630.*] Error to Circuit Court, Whiteside County; Frank D. Ramsay, Judge. Action by Sophia Jacobs and others against Louis F. Ditz. Judgment for plaintiffs, and defendant brings error. manded, with directions. Reversed and re H. C. Ward, of Sterling, for plaintiff in error. A. A. Wolfersperger and Stager & Stager, all of Sterling, for defendants in error. CARTWRIGHT, J. This suit was begun by a writ of error issued from this court to bring up the record of the circuit court of Whiteside county in a suit for partition of lands in that county. The question involved is whether the title to lands devised to the plaintiff in error, Louis 'Ditz, by his father, Henry Ditz, vested in the devisee at the death of the testator or was subject to a condition precedent to be performed before the estate should vest. The question is to be determined from the following facts: Henry Ditz was the owner of the lands and had two children, Sophia Jacobs, one of the defendants in error, and Louis Ditz, plaintiff in error. His wife had a son (William) by a former husband, and this son took the name of Ditz and is William Ditz, the other defendant in error. Henry Ditz made his will on October 2, 1888, and, having provided for the payment of his debts and funeral expenses, he then gave to his wife, 'Dora Ditz, all his estate for life. After the death of his wife the personal property was be The relations between Henry Ditz and his stepson, William, were always pleasant. Henry Ditz died on April 1, 1889, and his will was admitted to probate. The circuit court of Whiteside county on May 18, 1893, rendered a judgment in favor of Christian Burkholder against Louis Ditz. Execution was issued and levied on the above-described premises, and a sale was made on June 24, 1893, to Burkholder for $392.55. A certificate of purchase was given to Burkholder, and he afterward assigned it to Dora Ditz, the widow. The premises not being redeemed, the sheriff executed a deed on November 5, 1894. Dora Ditz paid the mortgage of $2,000 mentioned in the will from the income of the farm. She died in November, 1910, leaving a last will and testament, by which she gave all her property to William Ditz, Sophia Jacobs, and Louis Ditz, except the household furniture and bedding. Her will was admitted to probate and Sophia Jacobs was appointed executrix. On March 11, 1912, Louis Ditz tendered to Sophia Jacobs $1,500 on condition that she should receipt for the same under the will of Henry Ditz, and on March 27, 1912, he sent $500 to a bank in Minnesota to be tendered to William 'Ditz, and the tender was made on the same conditions as the tender to Sophia Jacobs. Both Sophia Jacobs and William Ditz refused to accept the money offered or to sign a receipt. Afterward Sophia Jacobs and William Ditz filed their bill for partition of the premises against Louis Ditz, claiming that by virtue of the sheriff's deed the remainder after the life estate became vested in Dora Ditz subject to liens in their behalf for the legacies specified in the will of Henry Ditz, and that by the will of 'Dora Ditz the property was devised to them and Louis Ditz in equal shares; the share of Louis Ditz being subject to liens in favor of Sophia Jacobs and Wil liam Ditz for the sums of money to which [4] A precedent condition is one which they were, respectively, entitled under the must be performed before the estate can vest. will of Henry Ditz. The plaintiff in error 2 Blackstone's Com. 154; 4 Kent's Com. 125; answered and filed a cross-bill denying that 16 Cyc. 606. the title to the real estate was vested in him at the death of the testator, and alleging that the estate devised was subject to conditions precedent and would only vest on the payment of the amounts specified in the will of Henry Ditz and filing receipts for such payments, as therein provided. The court entered a decree in accordance with the prayer of the original bill, holding that Louis Ditz was entitled to one-third of the premises, subject to a lien of Sophia Jacobs for $333 and a lien in favor of William 'Ditz for $166, and ordering partition accordingly. [1] The law presumes that the testator intended to dispose of his entire estate and not to die intestate as to any part thereof. Scofield v. Olcott, 120 Ill. 362, 11 N. E. 351; Hawkins v. Bohling, 168 Ill. 214, 48 N. E. 94; Northern Trust Co. v. Wheaton, 249 Ill. 606, 94 N. E. 980, 34 L. R. A. (N. S.) 1150. [2] It is also a rule that, to enable the court to arrive at the intention of the testator, extrinsic evidence is proper to show the circumstances under which the will was made. Counsel for plaintiff in error calls attention to these rules and asks us to apply them in this way. There was no residuary devise in the will of Henry Ditz, and if Louis Ditz should decline to make the payments and reject the devise the lands devised would be intestate property. There would be the further consequence that William Ditz, not be ing an heir, would lose the legacy of $500, and the proof of friendly relations made certain the intention of the testator that he should have that legacy. It is insisted that if we apply these rules the conditions must be held to be subsequent and not precedent. But neither of them is of much importance in this case. It cannot be presumed that the testator contemplated the refusal by Louis Ditz of the 160 acres of land about which the parties are contending, on account of the conditions annexed, but he evidently expected that the legacies would be paid. There was no more reason to suppose that the devise would be rejected and the land become intestate estate if the condition was precedent than if the legacies were charged upon the land. To hold the conditions precedent would not imply that the testator intended to die intestate as to the property or that William Ditz would lose his legacy. Whatever force the presumption against an intended intestacy may have, it in only a presumption and will not prevail over an intention expressed in the will. [3] The law favors the vesting of estates, and in the absence of words expressing a clear intent to the contrary an estate devised by will will be construed as vested. Armstrong v. Barber, 239 Ill. 389, 88 N. E. 246; [5] In doubtful cases the courts are inclined to construe an estate as vested in accordance with an accepted public policy and in such cases will construe a legacy as a charge upon the land devised rather than a condition precedent to the vesting of the estate. In Jennings v. Jennings, 27 Ill. 518, the testator provided that his sons could take possession of the land devised immediately after his death if they should comply with the condition to take good care of their mother during her lifetime. They could not comply with the condition of future support in the sense of performing the condition and yet take immediate possession, and the word "comply" was construed as meaning assent, and the premises devised as passing subject to the charge. In Bergan v. Cahill, 55 Ill. 160, where the testator devised a life estate to his wife and the remainder to his son provided the son should pay over to his daughter $100 or an equivalent, there were no words implying a precedent condition, and it was held that upon the testator's death the son took the fee, subject to the legacy. In Daly v. Wilkie, 111 Ill. 382, the devise was subject to the condition that the devisee should, within the term of seven years after death of the testator, pay to the testator's daughter the sum of $500. The payment was postponed for seven years after the testator's death, and it was held that the son took the property charged with the payment of the legacy. In Parsons v. Millar, 189 Ill. 107, 59 N. E. 606, the devise was subject to the provision that the son should pay certain sums to the testator's daughters, respectively, within two and three years after his death. The payments were postponed and held to be charges on the property. There was a like condition in Spangler v. Newman, 239 Ill. 616, 88 N. E. 202, where payment was to be made within one year after the death of the testator. The postponement of the time of payment indicated that the payment was not a condition precedent. On the other hand, in Nevius v. Gourley, 95 Ill. 206, where the devisee was required to pay certain specified legacies out of his own private funds within one year from the death of the testator and to settle the estate of which he was executor without any other charge, it was held that the condition was precedent; and in Becker v. Becker, 241 Ill. 423, 89 N. E. 737, 26 L. R. A. (N. S.) 858, where, under an antenuptial contract, the consideration for property was that the husband should keep in force a certain existing life insurance policy or its equivalent, the condition was considered precedent. [6] In the will of Henry Ditz he provided that before the devisee should receive the farm under the will he should make the pay conviction. [Ed. Note.-For_other cases, see Rape, Cent. Dig. § 101; Dec. Dig. § 60.*] Error to Criminal Court, Cook County; Martin M. Gridley, Judge. and upon filing the receipts of such pay-, of rape in the manner and form as charged in ments with the county clerk of Whiteside the indictment" was not responsive to the iscounty he should have the devised lands un-sue and required a reversal of the judgment of der the will. This language created conditions precedent to the vesting of the estate, and it cannot be overcome by any presumption against the intention to die intestate or the possibility that the legacy to William Ditz might be lost to him. Although the law favors the vesting of estates, where a will shows a clear intent to the contrary the intention must prevail. The sale and sheriff's Ideed were void. The defendants in error refused to accept their legacies when offered to them, but they could not defeat the devise by preventing the performance of the condi tions. [7] Counsel for defendants in error contend that if the estate devised by Henry Ditz was not vested it was a contingent remainder, and an argument is based upon that ground. It was not a contingent remainder which would take effect by succession on the termination of the preceding life estate of the widow. It was a contingent future interest, which was to become a vested estate upon the payment of the legacies, and the legacies could only be paid after the expiration of the life estate. The argument, based on the assumption that the interest of Louis Ditz was a contingent remainder, does not therefore require attention. The decree is reversed, and the cause is reThe decree is reversed, and the cause is remanded to the circuit court, with directions to dismiss the original bill and, upon payment into court by plaintiff in error of the amounts of the legacies, to vest the title to the property in him, subject to a lien of the executrix of Dora Ditz for the principal of the $2,000 mortgage paid by Dora Ditz, with interest from her death. Reversed and remanded, with directions. (259 Ill. 592) PEOPLE v. KROLL. (Supreme Court of Illinois. Oct. 28, 1913.) 1. CRIMINAL LAW (§ 1144*)-DRAWING GRAND JURY-PRESUMPTIONS. It need not affirmatively appear that there were 1,000 names in the grand jury box when the 50 names for a particular grand jury were drawn as required by Hurd's Rev. St. 1911 c. 78, § 29, since, in the absence of contrary evidence, that will be presumed. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. 1144.*] 2. INDICTMENT AND INFORMATION (§ 143*)VALIDITY. John Kroll was convicted of rape, and brings error. Reversed and remanded. James C. O'Brien, of Chicago, for plaintiff in error. P. J. Lucey, Atty. Gen., and Maclay Hoyne, State's Atty., of Chicago (Zach Hofheimer, of Chicago, and George P. Ramsey, of Springfield, of counsel), for the People. DUNN, J. The plaintiff in error was indicted for an assault with intent to commit rape, and upon a second trial the jury found him guilty of rape, fixing his punishment at imprisonment in the penitentiary for three years. The court overruled his motion for a new trial, sentenced him in accordance with the verdict, and he has already served more than half of his term. There is no bill of exceptions in the record. No motion was made to quash the indictment, but it is insisted that it was error for the court to receive or act upon the indictment because the grand jury was not legally constituted. Only 14 grand jurors appeared and the court ordered 50 names drawn. This was done, the panel was filled, and the grand jury was organized. [1] The objection of the plaintiff in error is based upon the fact that it does not affirmatively appear that at the time the 50 names were drawn there were a thousand names in the grand jury box, as required by section 29 of chapter 78 of Hurd's Statutes. This was not necessary. It will be presumed in the absence of evidence to the contrary. [2] If the indictment was not found by a legal grand jury, the plaintiff in error should have moved to quash it, and his failure to do so waived all objections to the grand jury. People v. McCauley, 256 Ill. 504, 100 N. E. 182; Berkenfield v. People, 191 Ill. 272, 61 N. E. 481; Hagenow v. People, 188 Ill. 545, 59 N. E. 242. [3] The verdict found the defendant "guilty of rape in manner and form as charged in the indictment." Since the defendant was not charged with rape in the indictment, the verdict was not responsive to the issue. Dec. Dig. to the issue. Rape is the carnal knowledge of a female forcibly and against her will, but every male person of the age of 17 years and upwards who shall have carnal knowledge of any female person under the age of 16 years and not his wife, either with or without her consent, shall be adjudged to be guilty of the crime of rape. The indict ment charged that the defendant, "being a male person of the age of 16 years and upwards, did unlawfully and feloniously make Accused's failure to move to quash the indictment waived all objections to the grand jury finding it. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 479; Dec. Dig. § 143.*] 3. RAPE (§ 60*)-VERDICT-SUFFICIENCY. Where accused was indicted for assault with intent to commit rape, a verdict of "guilty VICKERS, J. On the 9th day of April, 1912, an order was entered in the county court of De Kalb county admitting the will of George Delavergne to probate upon petition filed by Alice Fleming for re-probate of the will. From the order admitting the will to probate, H. E. Delavergne appealed to the circuit court of said county. In the circuit court his objections were again overruled. The will disposes of both real and personal property. To reverse the judgment of the circuit court overruling the objections and admitting the will to probate, Delavergne has prosecuted an appeal direct to this an assault upon one Anna Metke, then and there being a female, with intent then and there feloniously and forcibly to ravish and carnally know the said Anna Metke against her will." He could be convicted only upon proof of an assault upon Anna Metke with intent to have carnal knowledge of her forcibly and against her will but not upon proof of an assault upon her with intent to have carnal knowledge of her with her consent. A conviction of rape can be had upon proof of carnal knowledge of a female forcibly and against her will or with her consent if she is under the age of 16 years. Whether the jury found defendant guilty in the one way or the other does not appear. The finding of "guilty of rape as charged in the in- of June, 1909, and the testator died five days dictment" does not indicate, since he is not charged in the indictment with rape in any The verdict of the jury may have been based upon proof that the defendant had carnal knowledge of Anna Metke with her consent and that he was over 17 years old and she was under 16. If it was, then he was not guilty of an assault with intent to commit rape upon her forcibly and against her will. The plaintiff in error was errcneously convicted of a crime with which he was not charged. way. The judgment will be reversed and the cause remanded. Reversed and remanded. (259 11. 589.) In re DELAVERGNE'S WILL. (Supreme Court of Illinois. Oct. 28, 1913.) 1. WILLS (§ 116*) - VALIDITY-ATTESTING WITNESSES. Statute of Wills (Hurd's Rev. St. 1911, c. 148) § 2, requiring a will to be attested by two or more credible witnesses, requires the attesting witnesses to be competent; but their competency is to be tested by the facts existing at the time of the attestation, and, if then competent, any subsequent incompetency, such as the purchase of the shares of devisees or legatees, will not prevent the probate of the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 284-298; Dec. Dig. § 116.*] court. [1] The will was executed on the 7th day later. The attesting witnesses to the will were W. R. Moon and W. H. Anderson. No objection is made to the competency of the attesting witnesses at the time the will was executed. The testator left no widow, and no child or other lineal descendants, but left as his only surviving heirs at law a sister, Mary Roberts, and certain nephews and nieces. By his will the testator bequeathed Mary Roberts and Georgeana Wogan each $800, and devised all of the residue and remainder of his estate to Franklin Poust. Section 2 of our statute of wills requires that the will shall be in writing, and signed by the testator or by some one in his presence and by his direction, and "attested in the presence of the testator or testatrix by two or more credible witnesses." The fifth sec 2. WILLS ($ 116*)-EXECUTION-WITNESSES- tion of the English statute of frauds requirCOMPETENCY-IMPEACHMENT. ed attesting witnesses to a will to be "credWhile the acquisition by an attesting wit-ible witnesses," and these words are held to ness of the interest of legatees or devisees under the will will not render him incompetent, so as to prevent the probate of the will, it may be shown for the purpose of impeaching his testimony. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 284-298; Dec. Dig. § 116.*] Appeal from Circuit Court, De Kalb County; Mazzini Slusser, Judge. In the matter of the probate of the will of George Delavergne, deceased, Alice Fleming filed objections. From an order admitting the will to probate, she appealed to the circuit court, where her objections were again overruled, and she appeals. Affirmed. Cliffe & Cliffe, of Sycamore, for appellant. H. S. Earley, of Sycamore, for appellee. 1 Jarman on mean competent witnesses. Wills, 77. The same construction has been generally given to these words in statutes relating to the execution of wills. In the Matter of Noble, 124 Ill. 266, 15 N. E. 850. Attesting witnesses are regarded, in law, as persons placed around the testator in order that no fraud may be practiced upon him in the execution of the will and to judge of his capacity. 2 Greenleaf on Evidence, § 691; 1 Redfield on Wills, 257. The competency of an attesting witness to a will is to be tested by the facts existing at the time of attestation. If then competent, any subsequent incompetency will not prevent the probate of the will; and if then incompetent, subsequently acquired competency will not validate the will. Gardner on Wills, 225; Fisher v. Spence, 150 Ill. 253, 37 N. E. 314, 41 Am. St. Rep. 360; Slingloff v. Bruner, 174 Ill. 561, 51 N. E. 772; Johnson v. Johnson, 187 Ill. 86, 58 N. E. 237. [2] Under the above authorities the question presented by this record cannot be regarded as an open one in this state. To hold that a witness who was competent at the time of attestation could be rendered incom petent, after the death of the testator, by acquiring some disqualifying interest in the estate, would be to establish an easy method by which wills could be nullified by inducing the witness to acquire or accept some interest in the estate. While an interest thus acquired cannot be held to render the witness incompetent, still such interest may be shown for the purpose of affecting the weight to be given to the testimony of such witness. We have held that the conviction of one of the attesting witnesses of a felony subsequent to the attestation of the will, but before the probate hereof, might be shown for the purpose of affecting the credibility of the witness, but that such conviction did not render him incompetent under the statute. In the Matter of Noble, supra. There was no error in overruling the objections to the competency of the witness Anderson. The judgment of the circuit court of De (259 Ill. 549) MINEAR v. STATE BOARD OF AGRI- (Supreme Court of Illinois. Oct. 28, 1913.) If the State Board of Agriculture is an agency of the state for the exercise of governmental functions, it is not liable at common law for injuries resulting from its negligence. [Ed. Note.-For other cases, see States, Cent. Dig. §§ 179-184; Dec. Dig. § 191.*] W. B. Scholfield, Judge. Appeal from Circuit Court, Clark County; State Board of Agriculture. From judgment Action by Jesse P. Minear against the for plaintiff, defendant appeals. Reversed. Sidney S. Breese, of Springfield, Robert A. Holland, Jr., of St. Louis, Mo., and John J. Arney, of Casey, for appellant. S. M. Scholfield and Fred J. Bartlett, both of Marshall, for appellee. PER CURIAM. Appellee, as plaintiff in the court below, recovered a judgment against the State Board of Agriculture for a personal injury alleged to have been sustained by the plaintiff by reason of the collapse of certain elevated seats, or bleachers, at the Illinois State Fair on October 4, 1911. The declaration alleged that the plaintiff attended the State Fair on the day named; that the defendant, among other things, had advertised trials of speed to be given on the speedway or race course on the fair grounds; that the defendant charged an admission fee to enter its said grounds, which the plaintiff paid, and, for the purpose of giving a better view of the trials of speed, defendant had constructed the elevated seats, or bleachers, for use by visitors and patrons of the fair; that plaintiff entered upon said elevated seats, or bleachers, and while standing upon the highest one of said seats, the support of which Laws 1871-72, p. 113, § 1, provides that was rotten, decayed, and defective, said seat the business of the department of agriculture by reason thereof broke and gave way, whereshall be conducted by a board styled "State by the plaintiff was precipitated to and Board of Agriculture." Section 2 gave the thrown with great force and violence upon board sole charge of the affairs of the depart- the ground and greatly bruised, hurt, and ment of agriculture and of all state fairs, with power to make such regulations in the manage- wounded. The declaration contains three ment of the business of the department and of counts. It alleges that defendant is a corstate fairs, and in offering premiums, as it might determine, provided that the state' should poration created, organized, and existing unnot be liable for any premium offered or debt der and by virtue of an act of the General contracted by the board. Section 4 provided Assembly of the state of Illinois entitled "An that appropriations from time to time for the act to revise the law in relation to the dedepartment of agriculture should be paid to the state board to be expended to advance the partment of agriculture, agricultural sociebest interests of agriculture. Section 5 provid- ties, and agricultural fairs and provide for re ed for offices for the board in the state house. ports of the same," approved June 23, 1883, in Section 6 authorized it to contract and be con- force July 1, 1883 (Laws 1883, p. 1). The dectracted with, to purchase, hold, or sell property, and to "sue and be sued" in all courts, but pro- laration is based upon the theory that the devided that the state should not be liable for any fendant, the State Board of Agriculture, is liaof its debts or contracts; and section 7 re-ble for the negligence charged to the same exquired it to make reports to the Governor. The act was revised by Rev. St. 1874, c. 5, and was again revised by Laws 1883, p. 1, without making any material changes. Held, that the State Board of Agriculture was a public board and not subject to the liabilities of a private or quasi public corporation, so that it was not tent as any private corporation. Defendant demurred to the declaration, but the demurrer was overruled, and it thereupon pleaded the general issue and filed six special pleas, alleging, in substance, that defendant was not |