alleged are admitted and an issue of law is tendered as to whether such facts give a right of action. It is not the office of a demurrer to raise any question assigned as special causes of demurrer in this case. The declaration is quite diffusive, and alleges many matters which could be eliminated without in the least affecting its sufficiency. It not only names certain taxpayers at the outset, as before noted, but it alleges that they are aggrieved persons, belonging to the class mentioned in section 262 of the Revenue Act (Hurd's Rev. St. 1911, c. 120). They are not aggrieved persons entitled to sue on a collector's bond for their use, since they are not entitled, in their own right, to receive the money sued for. Neither does section 4 of article 10 of the Cities and Villages Act (Hurd's Rev. St. 1911, c. 24, § 172) authorize this kind of a suit, as it refers only to actions brought in the name and for the benefit of the city or village.

[5] The facts alleged in a declaration determine its character, and there is no claim that the facts alleged do not show a good cause of action in the city of East St. Louis. cause of action in the city of East St. Louis. The city has a right to prosecute such suit or dismiss it, and the question whether certain taxpayers are authorized to act for and protect the rights of the city cannot be raised by demurrer. The court erred in sustaining

the demurrer.

The judgment is reversed, and the cause remanded to the circuit court.

Reversed and remanded.

(259 Ill. 194)

ganized by the will was not cut down to three years by the codicil.

Cent. Dig. § 66; Dec. Dig. § 38.*]

[Ed. Note.-For other cases, see Charities,

2. WILLS ( 471*)-SPECIFIC PROVISIONS.
As a rule, a specific provision of a will
prevails over a general provision in case of
doubt.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 989; Dec. Dig. § 471.*]

3. WILLS (§ 707*) - PROCEEDINGS TO CON-
STRUE-COSTS.
Where testator expresses himself so am-
biguously as to make it advisable to obtain a
construction of the will in chancery, it is prop-
er to order the costs and solicitors' fees paid
out of the estate.

[Ed. Note.-For other cases, see Wills, Cent.
Dig. §§ 1684-1686; Dec. Dig. § 707.*]
4. COSTS (§ 13*)-CHANCERY CASES.
ance of costs in chancery proceedings is within
Except on dismissal of the bill, the allow-
the trial court's sound legal discretion.

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 21, 25; Dec. Dig. § 13.*] 5. WILLS ( 707*)-CONSTRUCTION-COSTS OF PROCEEDINGS.

Where the state has, for years, had undisputed possession of the premises in controversy under a deed from the testamentary trustee who took land under a will in trust to establish an asylum, and the Supreme Court in 1878 decided that a certain hospital was entitled to the property, and ordered it conveyed to it and discharged the trustee, costs will not be allowed out of the trust estate upon dismissing a crossbill filed to have the property adjudged to belong to cross-complainant.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1684-1686; Dec. Dig. § 707.*]

Appeal from Superior Court, Cook County; William E. Dever, Judge.

Suit by the Board of Administration and others against William H. Stead and others. The Washingtonian Home of Chicago filed a cross-bill. From a decree dismissing the

BOARD OF ADMINISTRATION et al. v. bill by consent and also the cross-bill, the Washingtonian Home of Chicago appeals.

STEAD et al.

(Supreme Court of Illinois. June 18, 1913.) Affirmed.

TIONS.

1. CHARITIES (§ 38*)-CONSTRUCTION-CONDI- A. W. Martin and Edward H. S. Martin, The first part of a will bequeathed certain both of Chicago, for appellant. Foreman, sums in trust to sundry organized charities, Levin & Robertson, of Chicago, for appeland the fourteenth clause following devised a lees. part of a described lot to be held in trust until such time as an insane asylum could be organized and established "in the northern part of the state of Illinois, under and by virtue of some state or municipal authority or charter," and to apply the income for maintaining the asylum, but providing that if the asylum was not established and put in successful operation within six years after testator's death, then in trust, to convey the premises and accumulated income to executors to be sold by them and devised between the institutions and corporations thereafter named. A codicil provided that, "in case any of the asylums or institutions which are named in my said last will and tes- of the east half of lot 6, in block 33, in the tament as recipients of any part of my prop-original town of Chicago, otherwise describerty shall not, within three years after my de- ed as Nos. 174 and 176 West Randolph street cease be duly organized and established as in

VICKERS, J. The Board of Administration filed a bill in chancery in the superior court of Cook county against the Attorney General and a number of corporations and associations who were supposed to be interested as devisees under the last will and testament of Jonathan Burr, praying for advice and instruction in regard to the execution of a 99-year lease upon the east half

corporated institutions and placed upon an ef- in said city. It is alleged in the bill that said fective basis," the bequests to them should be premises are now under lease to Frederick equally divided among the other institutions T. Hoyt, which lease expires on May 1, 1922, made recipients of testator's bounty. Held that clause 14 of the will was independent of at a ground rental of $1,600 per annum; that the codicil, so that the six-year period within said Hoyt owns the building and improvewhich the insane asylum was required to be or- ments on the premises, and has applied for

state with some particularity the facts set. up in the cross-bill.

a new lease for 99 years, offering to surrender his present lease and pay rent under the new lease of $2,400 per year for the first 10 Jonathan Burr died February 4, 1869, leavyears and $4,000 per year for the remain- ing a will and codicil, by which he devised der of the term. The complainant, as suc- the real estate in controversy to Thomas cessor of the board of trustees of the Illi- B. Bryan in trust, for the benefit of an innois Northern Hospital for the Insane at sane asylum, if one should thereafter be esElgin, claims title to the premises under the tablished in the northern part of Illinois. last will and testament of Jonathan Burr, The original will by the first clause directs deceased. William H. Stead, as Attorney the payment of all just debts and funeral General, and the following incorporated so- expenses. By the second to tenth clauses, incieties or institutions, were made defend- clusive, the testator bequeaths bequeaths specific ants: The Washingtonian Home of Chicago, amounts of money to various relatives. The the American Bible Society, the Chicago eleventh clause bequeaths $20,000 to certain Protestant Orphan Asylum, the Chicago Or- trustees named, to invest and pay the income phan Asylum, the City of Chicago, the Board to Lucy Jane Biglow during her natural life, of Education of the City of Chicago, the Chi- and at her death to pay $2,000 to each of cago Erring Women's Refuge for Reform, the her children, the balance to go into the residChicago Refuge for Girls, the Nursery and uary fund. The twelfth clause gives $2,000 Half Orphan Asylum, the Chicago Nursery to the Chicago Historical Society in trust, to and Half Orphan Asylum, and the Home for invest and use the income towards defraying the Friendless. Of these defendants the the expenses of its publications. The thirWashingtonian Home alone answered the teenth clause devises certain real estate in bill, in which it denies that the complainant Chicago to the Home for the Friendless in has any interest in or title to the said prop- trust, three-fourths of the income of which erty, and claims that the premises in ques- is to be expended in furtherance of the obtion belong to the Washingtonian Home and jects and purposes for which said instituthe other corporations named as defendants, tion was organized, and the other one-fourth as residuary devisees under the last will of of the income to be expended in promoting Jonathan Burr. The Washingtonian Home the objects of an institution located on Third filed a cross-bill, alleging that it is one of avenue, in Chicago, and known as the Burr the residuary legatees under the Burr will, Industrial and Mission School and Free Chapand as such, with its codefendants to the el. The fourteenth clause, by which the said original bill other than the Attorney property in controversy was devised to ThomGeneral, is the owner of the premises in con- as B. Bryan, is in the following language: troversy. The prayer of the cross-bill is that the last will and codicil of Jonathan Burr may be construed by the court and its meaning ascertained and declared; that an account may be taken, under the direction of the court, of the amount of rents, income, and profits of said real estate which may have been received by the Board of Administration, and that a decree be entered requiring said board to pay cross-complainant and the other corporations made defendants to the original bill whatever amount may be found due, and prays for a partition and division of the real estate involved among the corporations that may be found to be entitled to the same, and in case said premises cannot be divided, that a decree of sale may be entered and a distribution of the proceeds made. The Board of Administration and Frederick T. Hoyt, who was made a defendant to the cross-bill, filed a demurrer to the cross-bill, which was sustained, and crosscomplainant electing to stand by said crossbill, the same was dismissed at the cost of 'cross-complainant, and the original complainant was permitted to dismiss its bill at its own costs, without prejudice. The Washingtonian Home prayed for and was granted an appeal to this court.

In order to determine whether the court erred in sustaining the demurrer and dismiss

"Fourteenth-To Thomas B. Bryan I give, devise and bequeath the east half of the east half of lot 6, in block 33, in the original town of Chicago aforesaid, with the buildings and improvements thereon, to have and to hold the same to him, his heirs and assigns forever, but in trust, however, to and for the following uses and purposes, namely: In trust to hold, manage and improve the same and the net annual income thereof to invest, and the same to hold until such time as an insane asylum shall be organized, located and established in the northern part of the stateof Illinois under and by virtue of some state or municipal authority or some charter which shall give to the institution a character of permanence and stability, and then in further trust to convey and transfer said premises, and the accumulated income therefrom, to the authority or corporation managing. and controlling said asylum, but in trust, however, to hold, manage, improve and invest the same, and the net annual income thereof to use and expend in and towards keeping and maintaining such asylum in a condition to relieve those who are so unfortunate as to need its treatment and care; and in case an effort reasonably promising success shall be made by some competent authority to establish such an asylum, the said trustee is hereby authorized, at his discretion, to aid it,

buildings therefor to the extent of the net income of said property which may be in his hands, but in case such an asylum shall not be established and put in full and successful operation within six years after my decease, then in further trust to convey and transfer said premises, and the net accumulated income therefrom, to my executors hereinafter named, or the survivors or survivor of them, and the same to be by them sold and conveyed and converted into money and cash securities, and the proceeds thereof divided among and paid over to the several institutions and corporations hereinafter named, the recipients of the residue of my estate as hereinafter divided and bequeathed, and in the proportions in which they are, respectively, hereinafter made the recipients of the said residue, to be held by them, respectively, upon the same trusts and for the same purposes as hereinafter declared."

schools of said city. By the twenty-second clause the city of Chicago is given two additional eleventh parts of the residuary estate, to hold in trust and invest, and to use the annual income in providing fuel for the needy and suffering people of said city. The twenty-sixth clause contains some directtions in relation to the improvements in the cemetery lot of the testator, erection of a suitable monument, and a division among the several institutions and corporations of the residue of the estate. Clause 27 authorizes the executors to sell and convey all of the testator's estate, both real and personal, not specifically devised and bequeathed, and gives directions in respect to the terms of sale and manner of conveying, etc. The twenty-eighth clause directs that the estate be settled up, if practicable, within five years after the death of the testator. The twenty-ninth clause is advisory to the several societies and corporations to whom legacies are given, in regard to the character of investments that are recommended. The thirtieth clause waives the executors' bonds, and the thirtyfirst nominates four persons as executors.

By the fifteenth clause $5,000 is given in trust to William A. Passavant, to hold and invest until a hospital shall be duly organized and established in Chicago in accordance with the plans suggested by the trustee, and, when said institution is duly organized and The will was executed on the 31st day of incorporated, to pay over said trust fund to December, 1867, and duly probated February said institution, to be by it invested and the 25, 1869. On the 5th day of August, 1868, net annual income expended for the objects the testator made and executed a codicil to and purposes for which the institution was said will, containing eight clauses. The first, organized. The sixteenth clause directs that second, and third clauses of the codicil give all the rest and residue of the testator's es- money bequests to relatives. The fourth tate be converted into money and cash se- makes a change in one of the trustees named The fifth clause curities and divided into 11 equal parts, to be in clause 11 of the will. disposed of as thereinafter specified. The provides that in case the hospital mentioned in clause 15 of the original will "shall not, seventeenth clause gives and bequeaths oneeleventh of all the rest and residue of the within three years after my decease, be duly testator's property to appellant, to have and organized and established as an incorporated hold the same to said institution and its as- for success and permanence," the $5,000 meninstitution and placed upon an effective basis · signs forever, in trust, however, to invest, hold, manage, and control the same, and from tioned in that bequest is to pass to the time to time to reinvest, and the annual in- residuary fund and be distributed in the come thereof to use and expend in defray-The sixth clause of the codicil provides that same manner as the other residuary estate. ing the current expenses of said institution. in case the Burr Industrial and Mission Clauses from 18 to 25, inclusive, dispose of School and Free Chapel, mentioned in the the remaining ten-elevenths of the residuary thirteenth clause of the original will, shall estate among the several corporations or as- at any time fail and cease to be carried on sociations named as defendants to the orig- and managed as an effective institution to inal bill. All of said bequests are given to carry out the objects for which the same was the respective societies, institutions, and cor- organized, the whole of the income from that porations in trust, with power to hold the devise is to pass to the Home for the Friendsame and reinvest, and to use the income in less, to be used to further the objects and furtherance of the charitable purposes for purposes of that institution. The seventh which said institutions were severally and and eighth clauses of the codicil are as folrespectively organized.

The foregoing general statement applies to all of the residuary bequests except the twenty-first and twenty-second. By the twenty-first the city of Chicago is given one eleventh part of the residuary estate, to be held in trust and invested, and the income paid over to the board of education, to be by said board expended for the use and benefit of the public schools of said city and for the purchase of books and other school supplies

lows:

"Seventh-In case any of the asylums or institutions which are named in my said last will and testament as recipients of any part of my property and estate shall not, within three years after my decease, be duly organized and established as incorporated institutions and placed upon an effective basis for success and permanence, I hereby order and direct that the several bequests in and by said last will and testament made and

In 1909 the Legislature passed an act of the testator no institution answering the (Laws 1909, c. 102) revising the laws relating description in this devise was in existence, to the state charitable institutions, which but the testator saw the necessity for such took the control and management of certain an institution, and, actuated by a humane enumerated institutions out of the hands of desire to benefit the unfortunate, sought to the several boards of trustees and placed aid, encourage, and facilitate the organizaall of said institutions under a board to be tion and establishment of an institution to composed of five persons to be appointed by care for those who might be in need of such the Governor, and 'known as the Board of treatment. Appreciating that it would in all Administration. Said board was made a probability require considerable time to esbody corporate, and given full and complete tablish and put in successful operation an power to manage and control all of the char-institution of that character, the testator, in itable institutions enumerated or that might said clause 14, fixed a time limit of six years afterwards be acquired or created, and con- after his decease for the complete establishferred upon said board all of the property ment of such asylum. The testator manirights held by the several boards of trustees, festly contemplated the organization of an managers, or commissioners of the respective institution for the benefit of the people in a state charitable institutions which were larger scope of territory than a county, since placed under said Board of Administration. it was provided that the institution should [1] Appellant contends that clause 7 of the be "located and established in the northern codicil modified clause 14 of the original part of the state of Illinois." If he had had will by cutting down the limitation within in mind the establishment of a local instituwhich the beneficiary of the devise therein tion, it is fair to assume that he would have made should be organized and established designated the city or county within which from six to three years, and that the Illi- it was to be located. The institution was to nois Northern Hospital was not organized, be organized by virtue of some state or muestablished, and incorporated within three nicipal authority, or under some charter years next after the testator's death, as re- which would give the institution a character quired by clause 7 of the codicil; that said of permanence and stability. If such instihospital was not open and ready for the re- tution was not established and put in full ception of patients until more than three and successful operation within six years years after the death of the testator, and after the death of the testator, then there was not an incorporated institution until the was a direction that the executors should passage of the act of 1875. As we under- sell and convey the premises and pay over stand appellant's contention, it is that, in the proceeds to the several institutions and order to entitle the Illinois Northern Hos- corporations which are named as the benefipital to the devise under clause 14 of the ciaries of the residue of the estate. All of original will and clause 7 of the codicil, it the other charitable bequests made by the was necessary that the asylum should be testator were made to or for the benefit of established on an effective basis for success societies, organizations, or corporations that and permanence, and duly incorporated, with- had either an actual or potential existence, in three years after the testator's death. and in every instance the bequest was made If appellant's premises are sound, we can direct to the beneficiary, except those made see no escape from the conclusion that the to the city of Chicago, which were in trust, Illinois Northern Hospital had not complied as heretofore stated. It will be observed, alwith the conditions of the will in such way so, that no institution or asylum is named as to entitle it to a conveyance of the prop-in clause 14. The devise is to Thomas B. erty at the time the deed was executed. But we cannot agree with appellant in the construction to be given to clause 14 of the will and clauses 7 and 8 of the codicil. It must If clauses 7 and 8 of the codicil be read be conceded, we think, on all hands, that with the several provisions of clause 14 in the devise in clause 14 is a special devise of mind, together with the other charitable a definitely described parcel of real estate bequests made in subsequent clauses of the to a particular person as trustee, in trust will, it will clearly appear that said clauses for a particular purpose. This clause of of the codicil have no reference whatever to the will is complete within itself. It has no the provisions of clause 14 of the original connection with any other clause of the will, will. Clause 7 of the codicil provides, that and the trustee therein named is charged "in case any of the asylums or institutions with no duty except in regard to this par- which are named in my said last will and ticular property. This devise was made in testament as recipients of any part of my trust for the benefit of an institution to be property and estate shall not, within three thereafter organized and located somewhere years after my decease, be duly organized in the northern part of the state of Illinois and established as incorporated institutions as an asylum and hospital for the treatment and placed upon an effective basis for sucand care of those who might be so unfor- cess and permanence," etc. What "asylums tunate as to require the same. At the death or institutions" are embraced within the sev

Bryan in trust, for the benefit of an insane asylum to be organized, located, and established in the northern part of the state.