taking the case from the jury on the question | is divested of one of its most important atof contributory negligence, still the rule recognizing that defense was adhered to; and the same doctrine is reannounced in the case of Illinois Central Railroad Co. v. Warriner, 229 Ill. 91, 82 N. E. 246. In view of the numerous decisions of this court holding that the contributory negligence of the parents of a child, when established, is a bar to an action by the administrator to recover damages for the death of such child under the statute, it is not necessary to examine the question in the light of authorities in other jurisdictions. From the foregoing review of our own decisions the doctrine would seem to be too firmly established to be called in question at this time. tributes, becomes fluctuating and capricious, and instead of being a steady light to guide, or shield to protect, becomes an ignis fatuus to mislead, or a snare to entrap the citizen." Perkins v. Clements, 1 Pat. & H. (Va.) 141. The finding by the Appellate Court that the father of the deceased child was guilty of contributory negligence conclusively establishes a fact which, under the law, is an absolute bar to a recovery. The judgment is affirmed. Judgment affirmed. (259 111. 471) WINCHELL et al. v. WINCHELL. (Supreme Court of Illinois. June 18, 1913. Rehearing Denied Oct. 15, 1913.) 1. WILLS (§ 608*)-CONSTRUCTION-"RULE IN SHELLEY'S CASE." where the ancestor takes an estate of freehold, The "rule in Shelley's Case" was that and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, either in fee or in tail, "the heirs" are words of limitation of the estate and not words of purchase. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. § 608.* For other definitions, see Words and Phrases, vol. 7, pp. 6272, 6273.] 2. WILLS (§ 608*)-CONSTRUCTION-APPLICATION OF RULE IN SHELLEY'S CASE. The rule in Shelley's Case is in force in this state in all cases of limitations of a freehold estate to one with remainder to his heirs generally, and confers the inheritance on the ancestor, but has been abolished as to estates tail by Conveyance Act (Hurd's Rev. St. 1911, c. 30) 6, which provides that where, by the common law, any person might become seised in fee tail of any lands, etc., such person, instead of being or becoming seised in fee tail, shall become seised for his or her natural life only, and the remainder shall pass in fee simple absolute to the person or persons to whom grantee or devisee in tail, first pass according the estate tail would, on the death of the first to the common law. [6] Counsel for appellants has with great earnestness and ability urged upon our attention a reconsideration of the reasons upon which the previous holdings of this court rest, and, in effect, we are asked to overrule these decisions and to give to the statute a construction which would exclude the doctrine of contributory negligence as a defense, because the statute declares that "whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the injured party to maintain an action," then the action may be maintained by the representative for the benefit of the next of kin. It is argued that since, if the child had not been killed, contributory negligence of the parent would be no defense; therefore, death having resulted, the same evidence which would authorize the recovery by the child ought to sustain an action by the personal representative. If this question were an open one in this court appellants' argument would be entitled to serious consideration, but this court has ever regarded the rule of stare decisis, and under that rule we are required to adhere to our previous decisions. The stability of the rules of law by which the rights of citizens are determined is always the highest concern of courts of last resort. Rules of law once well established ought not to be lightly annulled and new foundations laid, which would result in a restless instability and unending uncertainty as to what the law is. If the maxim of stare decisis be disregarded and every case determined according to the way in which the court might be disposed to regard it if it were a matter of first impression, the result would be continued confusion and endless fluctuations. The rules changing with the varying views of the persons who happen, for the time being, to be members of the court, the legal profession would never be able to know, with any degree of certainty, what to expect under any given state of facts. As was well said by the Supreme Court of Virginia: "Without the observance of stare decisis the law [Ed. Note.-For other cases, see Wills, Cent. Dig. §§. 1372-1378; Dec. Dig. § 608.*] 3. WILLS (§ 506*)-CONSTRUCTION-"HEIRS." The word "heirs," in its legal sense, means those persons whom the law appoints to take intestate estate, and unless the word is qualified by the context it is always given that meaning; but in ordinary use it is frequently given a different or limited meaning, and, if it is apparent from reading a will that the testator did not use the word in its strict legal meaning, it will be given such meaning as will carry out his intention. Dgi. §§ 1090-1099; Dec. Dig. § 506.* [Ed. Note.-For other cases, see Wills, Cent. For other definitions, see Words and Phrases, vol. 4, pp. 3241-3265; vol. 8, pp. 7677, 7678.] 4. WILLS (§ 614*)-CONSTRUCTION-APPLICATION OF RULE IN SHELLEY'S CASE-"HEIRS." Where a testator devised land to a daughter during her lifetime, and at her death to her heirs, but provided that in case she should die without issue the property should go to the testator's other heirs, it was manifest that he used the word "heirs" as meaning heirs of the body in view of the limitation over in default of issue; and hence, under Conveyance Act Fannie Standard was afterward married (Hurd's Rev. St. 1911, c. 30) § 6, providing to Volney W. Winchell, and there was born that, where a person at common law would to them one daughter, named Gail Maxine have been seised in fee tail by virtue of any devise, such person shall have a life estate, with remainder in fee simple absolute to the persons to whom the estate tail at common law would first pass on the death of such devisee, she had an estate for life, with remainder in fee simple absolute to the heirs of her body. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1393-1416; Dec. Dig. § 614.*] Winchell. Fannie Winchell filed her bill in the circuit court of McDonough county to the January term, 1911, against her daughter, Gail Maxine Winchell, and her brother, John Standard, and afterward filed an amended bill to the May term, 1911. The amended bill alleged that the defendant Gail Maxine Winchell was five years of age and claimed that by virtue of the will she was the owner Under a will devising land to the testator's daughter for life, with remainder to the heirs in fee of the premises subject to the life of her body, the remainder was contingent until estate of the complainant, and that the dethe birth of a child; whereupon it vested in fendant John Standard, one of the heirs her subject to be diminished by the birth of at law of the testator, claimed that he had a other children, who might be let in successive-conditional estate by virtue of the limitation ly at birth. 5. WILLS (§ 634*)-ConstrUCTION-VESTED OR CONTINGENT REMAINDER. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] 6. WILLS (§ 636*)-CONSTRUCTION-REMAINDERS-DIVESTING. Where property was devised to a person for life, with remainder to the heirs of her body, the remainder, which vested in a child at her birth, could be devested only by a valid executory devise. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1514-1518; Dec. Dig. § 636.*] to the heirs of the testator in default of issue of the complainant. The prayer of the bill was that the complainant's title should be quieted and the claims of the defendants be removed as clouds upon the same. John Standard was defaulted. Wallace A. Walker, a solicitor of the court, was appointed guardian ad litem for the infant defendant, Gail Maxine Winchell, and answered for her. The chancellor construed the devise as vest 7. WILLS (§ 638*) - CONSTRUCTION-EXECU-ing a fee simple title in the complainant, and TORY DEVISES. Where property was devised to a person for life, with remainder to the heirs of her body, and, in case she should die without issue, to the testator's other heirs, the executory devise to the other heirs would take effect only if the devisee died without having had issue; and hence the birth of a child to her defeated the possibility of the contingency upon which the executory devise depended occurring and rendered the executory devise void. [Ed. Note. For other cases, see Wills, Cent. Dig. & 1521; Dec. Dig. § 638.*] Error to Circuit Court, McDonough County; Harry M. Waggoner, Judge. Action by Fannie Winchell and another against Gail Maxine Winchell. Decree for complainant, and the defendant brings error. Reversed and remanded, with directions. Wallace A. Walker, of Macomb, for plaintiff in error. Elting & Hainline and George D. Tunnicliff, both of Macomb, for defendants in error. CARTWRIGHT, J. John B. Standard died in 1889, leaving a last will and testament, which was admitted to probate, by which he devised many tracts of land to his sons and daughters, severally. The fourth paragraph of the will was as follows: "Fourth. To my daughter, Fannie Standard, I give, devise and bequeath the northwest quarter of section twenty (20), in township four (4), north, and range one (1), west, in McDonough county, Illinois, valued at $8,000, to have to hold the same during her lifetime and at her death to go to her heirs; but in case she shall die without issue, then the property above devised to her shall go to my other heirs, share and share alike." found that no other person or persons had any interest in or title to the premises, in remainder, reversion, or otherwise. The fee-simple title was decreed to be in the complainant, and the executory devise in default of issue was ordered canceled and removed from the record as a cloud upon her title. The decree was pro confesso as to the defendant John Standard. The guardian ad litem sued out a writ of error from this court to obtain a review of the decree. It is said by counsel that the opinion of the chancellor was'that the devise came within the rule in Shelley's. Case, and therefore vested a fee simple in the complainant, and that upon the birth of Gail Maxine Winchell the limitation over to the heirs of the testator was defeated, and counsel contend that each of those conclusions was correct. [1] The rule stated in Shelley's Case was that "where the ancestor takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, either in fee or in tail, the heirs are words of limitation of the estate and not words of purchase." [2] That rule is in force in this state in all cases of limitations of a freehold estate to one with remainder to his heirs generally, and confers the inheritance on the ancestor; but it has been abolished as to estates tail by the sixth section of the Conveyance Act. As to limitations controlled by that section, the only use made of the rule is for the purpose of determining whether by the common law a fee tail would have been created. If it would, the person who would have been seised in fee tail is seised for her or his natu ral life only, and the remainder passes in fee simple absolute to the person or persons to [ Supervisors of Peoria County, 74 Ill. 282; whom the remainder is limited. The testa- Welliver v. Jones, 166 Ill. 80, 46 N. E. 712; tor in this case, in devising the property, de- Lehndorf v. Cope, 122 Ill. 317, 13 N. E. 505. vised to the complainant an estate of free- [6, 7] The fee-simple title in remainder havhold and limited the remainder to her heirs, ing vested in Gail Maxine Winchell at her with the further limitation that in case she birth, it could only be divested by a valid should die without issue the property should executory devise. Smith v. Kimbell, 153 Ill. go to his other heirs. 368, 38 N. E. 1029; Strain v. Sweeny, 163 Ill. 603, 45 N. E. 201. The executory devise was to take effect in case the complainant should die without issue, and those words are construed to mean, not to die without surviving issue, but to die without having had issue. King v. King, 215 Ill. 100, 74 N. E. 89; Stafford v. Read, 244 Ill. 138, 91 N. E. 91; Kendall v. Taylor, 245 Ill. 617, 92 N. E. 562, 37 L. R. A. (N. S.) 164; Voris v. Sloan, supra. The contingency upon which the executory devise was to take effect can never occur, and the limitation to other heirs of the testator is void. [3] The word "heirs," in its legal sense, means those persons whom the law appoints to take intestate estate, and unless the word is qualified by the context it has always been given that meaning. In ordinary use, however, it is frequently given a different or limited meaning, and as the purpose of construing a will is to find the intention of the testator, whenever it is apparent from reading a will that the testator did not use the word in its strict legal meaning, it will be given such meaning as will carry out his intention. Gannon v. Peterson, 193 Ill. 372, 62 N. E. 210, 55 L. R. A. 701. The decree is reversed, and the cause remanded, with directions to enter a decree in accordance with the views expressed in this opinion. Reversed and remanded, with directions. ZOBOROSKY v. STATE. (180 Ind. 187) (No. 22,399.) Oct. 8, 1913.) 1. INDICTMENT AND INFORMATION (§ 137*)— MOTION TO QUASH-PUBLIC OFFENSE. Where an indictment charged that accused did then and there unlawfully touch the person of N. in a rude, insolent, and angry manner, with the unlawful and felonious intent then and there to ravish her, she being a child under 12, it was not subject to a motion to quash on the ground that it did not state facts constituting a public offense, addressed to the indictment as a whole, since the indictment at least contained a good charge of assault and battery under Burns' Ann. St. 1908, § 2242. [4] The manifest intention of the testator expressed in this will was to give the fee after the life estate to the heirs of the body of the devisee, because the limitation over to other heirs was to take effect in default of issue, which means heirs of the body, unless there are explanatory words showing that the term was used in a restricted sense. He could not have intended to limit a remainder to the heirs general of the complainant and then take it from them in default of a particular class of heirs. His intention was to limit the remainder to the heirs of the body of the complainant, since it was only in default of such heirs that the remainder was to go to others. Such a limitation would at the common law have given the complainant a fee tail. Language identical in meaning with that used in this will has been held to limit a remainder to heirs of the body and to create an estate tail by the rule in Shelley's Case. Curtis v. Longstreth, 44 Pa. 297; Reimer v. Reimer, 192 Pa. 571, 44 Atl. 316, 73 Am. St. Rep. 833; Dengel v. Brown, 12. App. D. C. 423; Tolman v. Score, 57 L. T. (N. S.) 40. In Pennsylvania what would have been an estate tail at the common law is converted into a fee simple by the act of April 27, 1855 (Carroll v. Burns, 108 Pa. 386), and it was held that the estates in the cases cited would have been estates tail at common law, but had been so converted into fees. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.*] RAPE (§ 23*)-INDICTMENT-AGE OF VIC TIM-RECITALS. Where an indictment under Burns' Ann. St. 1908, § 2250, charged that accused did unlawfully touch the person of N. in a rude, inand felonious intent to ravish her, she being a solent, and angry manner, with the unlawful child under 12 years, to wit, 10 years, etc., the allegation of age was not objectionable as a mere recital, so that the felony within the intent averred was well charged. Dig. § 27; Dec. Dig. § 23.*] 3. RAPE (§ 23*)-INDICTMENT-FEMALE-AL LEGATION OF AGE. [5] As the complainant at common law would have taken a fee tail, she has, by virtue of section 6 of the Conveyance Act, an estate for her natural life only, with remainder in fee simple absolute to the heirs of her body. While that remainder was contingent until the birth of Gail Maxine Winchell, it vested in her at her birth subject to be diminished by the birth of other heirs of the body of the complainant, who may be let in successively at birth. Voris v. Sloan, 68 Ill. 588; Butler v. Huestis, 68 Ill. 594, 18 Am. Rep. 589; Frazer v. Board of Burns' Ann. St. 1908, § 2250, provides that whoever unlawfully has carnal knowledge of a female child under 16 years of age is guilty of rape. Held, that an indictment charging that accused did unlawfully touch the person of N. with the unlawful and felonious intent to ravish her, she being then a child under the age of 12 years, to wit, 10 years of age, was not objectionable as using the words "twelve years" instead of "sixteen years,' the statutory age of consent; since the statute merely fixes a definite time below which the crime is com years, the imprisonment shall be imprisonment in the state prison for life." Section 2250, Burns 1908, Acts 1907, p. 85. [1] Counsel for appellant assail the indictment on the ground that it fails to set forth with that that precision and certainty Appeal from Circuit Court, Newton Coun- which the law requires the facts constituty; Charles W. Hanley, Judge. Parmer Zoborosky was convicted of assault with intent to ravish, etc., and he appeals. Affirmed. T. B. Cunningham, of Kentland, and Fred G. Richmire, of Morocco, for appellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, for the State. COX, J. Appellant was tried below by jury, and convicted of an assault and battery upon the person of a female child, 10 years of age, with the intent to ravish and carnally know her. The only errors assigned in this court, and not waived by failure to state propositions or points in support of them, put in question the sufficiency of the facts stated in the indictment to constitute a public offense. This one question is raised both by motions to quash and in arrest of judgment. The indictment, omitting the caption, reads as follows: "The grand jurors of Newton county, in the state of Indiana, good and lawful men, duly and legally im paneled, charged, and sworn to inquire into felonies and certain misdemeanors in and for the body of said county of Newton, in the name and by the authority of the state of Indiana, on their oath present that one Parmer Zoborosky, late of said county, on the 17th day of August, 1912, at said county and state aforesaid, did then and there unlawfully touch the person of Edna Nichols in a rude, insolent, and angry manner, with the unlawful and felonious intent then and there to ravish and carnally know her, the said Edna Nichols, a female child then and there being under the age of twelve (12) years, to wit, ten (10) years of age, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana." The indictment is drawn under the following provisions of the Criminal Code: "Whoever perpetrates an assault and battery upon any human being, with intent to commit a felony, shall, on conviction, be imprisoned in the state prison," etc. Section 2240, Burns 1908, Acts 1905, p. 660, § 352. ting the felony attempted or intended to be committed. If it should be conceded that the felony which, it is alleged, appellant possessed the intent to commit at the time he is alleged to have committed the assault and battery is not sufficiently charged, it would not follow that error was committed by the trial court in overruling either the motion to quash or the motion in arrest of judgment, both of which are based on the ground that the facts stated do not constitute a public offense, and were addressed to the indictment as a whole and not mereThe indictment contains a good charge of asly to that part charging the intended felony. sault and battery as that public offense is defined by section 2242, Burns 1908. Gillett on Crim. Law (2d Ed.) § 237. saves it from overthrow by either of the moLaw (2d Ed.) § 240; Greer v. State (1875) tions directed against it. Gillett on Crim. 50 Ind. 267, 19 Am. Rep. 709; McGuire v. State (1875) 50 Ind. 284; Stucker v. State (1908) 171 Ind. 441, 84 N. E. 971. This alone [2] But if this were not the rule, still we could not yield to the contention of appelintent averred was not well charged. Relylant's counsel that the felony within the ing on Axtell v. State, 173 Ind. 711, 715, 91 N. E. 354, counsel claim that the clause in the indictment, "the said Edna Nichols a female child then and there being under the age of twelve (12) years, to wit, ten (10) years of age," is but a recital, and not equivalent to a direct and positive averment of her age, which was an issuable fact; and it is claimed that as this issuable fact is not directly and unequivocally alleged, the indictment is bad. But in Agar v. State (1911) 176 Ind. 234, 94 N. E. 819, this question was given thorough consideration by this court, and Axtell v. State, supra, was expressly overruled in this particular. The indictment before us does not fail in the allegation of the age of the alleged victim of the offense. This form of allegation of age has been approved by this court in a similar case. McClure v. State (1888) 116 Ind. 169, 173, 18 N. E. 615. Gillett on Crim. Law, § 727. [3] It is further contended by counsel that if the indictment is to be taken as directly averring the age of the child alleged to be the subject of appellant's felonious intent, it does not charge an intent to commit the felony of rape as defined by statute, for the reason that "twelve years" is used instead of "sixteen years," the statutory age of consent. We find no merit in the contention. No particular form of allegation of the age of the female is required. It is not necessary that the indictment shall follow the exact words of the statute that at the time she was under 16 years of age. The statute merely fixes a definite time in the life of womankind below which the crime of rape will be committed by sexual intercourse with them, whether with their consent or without it, and an allegation which gives positive information of the age of the woman child who is alleged to be the subject of the offense, and that it was below the statutory limit of consent must be held sufficient. State v. Burt (1908) 75 N. H. 64, 71 Atl. 30, Ann. Cas. 1912A, 232; Inman v. State (1898) 65 Ark. 508, 47 S. W. 558; State v. Newton (1876) 44 Iowa, 45; People v. Gardner (1893) 98 Cal. 127, 32 Pac. 880; State v. Fetterly (1903) 33 Wash. 599, 74 Pac. 810; 17 Ency. of Pl. and Pr. 653. Finding no error in the record, the judg ment of the trial court is affirmed. (180 Ind. 191) STATE ex rel. MANLOVE v. CURTIS. (Supreme Court of Indiana. Oct. 10, 1913.) 1. OFFICERS (§ 72*)-TERMS OF OFFICE-DURA TION. Where a term of office is not fixed by law, the officer may be removed at pleasure and without notice, charges, or reasons assigned by the appointing officers, especially in view of Const. art. 15, § 2, providing that when the duration of any office is not provided for by the Constitution or declared by law, the office shall be held during the pleasure of the officer making the appointment. [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 101-103, 105-107; Dec. Dig. § 72.*] 2. MUNICIPAL CORPORATIONS ($159*)-CITY ATTORNEY-TERM OF OFFICE "MAYOR." Burns' Ann. St. 1908, § 8682, authorizes the mayor to appoint in cities of the fifth class a city marshal, chief of the fire force, and city commissioner, all of whom shall hold office until their successors are appointed and qualified, but that the mayor may, at any time, suspend or remove any of such heads of departments or other persons appointed by him or by any of his predecessors by notifying them to that effect and sending a message to the council, stating in writing his reasons for such removal. Section 8692, as amended by Acts 1909, c. 122, provides that the city attorney shall be appointed by the mayor and hold office "as herein before provided," except that in cities of the fifth class he shall be appointed by the common council. Held, that, conceding that the phrase "as herein before provided" refers to section 8682, that section does not use the word "mayor" as meaning the appointing power so as to require the council to give reasons in writing on removal of a city attorney, and applies only to the officers therein mentioned, and, there being therefore no statutory limitation on the power to remove a city attorney for a city of the fifth class, he holds office during the pleasure of the council, and may be removed by the council under Const. art. 15, § 2, providing that when the duration of any office is not provided for by the Constitution or declared by law, it shall be held during the pleasure of the authority making the appointment. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 350-356; Dec. Dig. § 159.*] Appeal from Circuit Court, Lake County; John C. Richter, Special Judge. Quo warranto by the State, on relation of George H. Manlove, against Harvey J. Curtis. From a judgment for defendant, the relator appeals. Affirmed. Ralph W. Ross and Walter J. Lotz, both of Hammond, for appellant. L. L. Bomberger and John F. Sawyer, both of Hammond, for appellee. quo warranto by the state, on the relation SPENCER, C. J. This is a proceeding in Curtis, to oust the latter from the office of of George H. Manlove, against Harvey J. city attorney for the city of Gary, and to have the possession of said office awarded to the relator, together with damages in his favor against appellee for the detention of the office in question. The cause was tried by the circuit court without the intervention of a jury, and from a finding and judgment in favor of appellee this appeal is taken. [1] It appears from the evidence that on November 8, 1909, the common council of the city of Gary, then a city of the fifth class, duly appointed the relator as city attorney for said city. Eight days later said common council voted to and did reconsider and rescind said appointment, and elected appellee to succeed the relator to such office. The substance of the relator's contention is that the common council was without authority to rescind his appointment, after it only after a hearing; that his attempted was completed, except for cause, and then removal was therefore invalid. The general rule is conceded to be that "where the term of office is not fixed by law, the officer or officers, by whom a person was appointed to a particular office, may remove him at pleasure, and without notice, charges, or reasons assigned." Throop on Public Officers, § 354. See, also, Mechem on Public Offices and Officers, §§ 445, 454. Furthermore, it is stated in article 15, § 2, of our state Constitution that "when the duration of any office is not provided for by this Constitution it may be declared by law; and if not so declared, such office shall be held during the pleasure of the authority making the appointment." [2] But appellant takes the position that the term of office of the city attorney in cities of the fifth class is fixed within the meaning of the constitutional provision, and in support of his position relies on the rule that where the appointing power is required to assign written reasons before removing an |