Slike stranica

- tion the most liberal rule in favor of vesting, still we do not think the property in controversy has yet vested in interest. It will be observed that no direct gift to the devisees is to be found in the will, but only such as is implied from the testator's expressed wish that the estate should be divided between them; yet we regard this as equivalent to a direct gift. The devise, as we construe it, is an original, absolute gift, at a particular time, to such of the children of Mrs. Osborn as shall be living at the designated time. By the terms of the limitation, the element of futurity is clearly annexed to the gift itself, and is descriptive of those who are to take. It is only those who are living at that time that come within the description of the class, and to say that parties may take a vested interest under a devise to a class who do not answer all the marks by which the class is to be ascertained, is to confound all distinctions, and disregard the plain requirements of the will.

The only thing in the will that affords the slightest foundation for the construction that would give the children of Mrs. Osburn a vested interest in the estate at the testator's death is found in the following language, occurring in the fourth clause of the will, namely: "But should any of the heirs, after arriving at that age, wish to engage in business, and wish to realize any portion of their interest in said estate, my executors can give them such an amount as they may think proper, and take their individual note or notes, bearing interest, to be added thereto, and deducted from their respective portions of said estate on the final division of the same." We are of opinion no special significance is to be attached to the fact that the testator in this connection speaks of the heirs' "interest in" or "portion of" the estate. In the connection in which these expressions occur, the testator doubtless means nothing more than the presumptive or prospective interests or portions of the children. Ring v. Hardwick, 2 Beav. 352; Leake v. Robinson, 2 Mer. 363, 381-384; Eccles v. Birkett, 4 De Gex & S. 105. This view we think is clearly strengthened by the reference to the final division of the estate in the conclusion of the citation. At any rate, the expressions in question cannot, on any principle of recognized construction, be permitted to control a clear and unequivocal limitation like the present, defining the time of distribution, and the class who are to take. This is expressly ruled in Bull v. Pritchard, 5 Hare, 567; Vawdry v. Geddes, 1 Russ. & M. 203. In addition to this, we think the fact that the testator required his executors to take notes for the amount of the advances is a circumstance tending strongly to show that it was not his intention that the estate should vest in interest till the period of distribution, or, in other words, till the youngest child of Mrs. Osburn attained the age of 21 years. The same distinction which is taken between a gift on a particular day and a gift to be paid on such day is also taken between a case like the present, where there is a simple direction to divide at a specified time, and where there is an express gift, accompanied with a direction to divide at such specified time. In the first case, the gift does not vest till the time of division; in the second, it vests at the testator's death, and the division only is postponed. 2 Jarm. Wills, 455 et seq. On page 457 the author expressly says: "Where the only gift is in the direction to pay or distribute at a future age, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in which time is of the essence of the gift." That is exactly the case here. In short, we hold the executors take, by implication, a fee in the legal estate, for the purposes of the trust created by the will, and the equitable interest does not vest till the youngest child of Mrs. Osburn attains the age of 21 years.

It necessarily follows from this conclusion that the present suit, in so far as it seeks a division of the land in question, is prematurely brought. It is manifest that if the time of distribution is not fixed as stated, the will does not determine the time at all, and hence it is fixed, as matter of law, at the death of the testator; for, as we have already seen, it is not a matter which

can be left open, to be determined in the discretion of the executors. So, if we concede the will does not fix the time of distribution, and that consequently the estate vested both in interest and possession at the testator's death, then it is very clear, under the authorities, Mrs. Osburn's youngest child would not be entitled to take at all, as she was born more than a year after that time. This, of course, would lead to a reversal of the decree of the court below, as the decree places the youngest child upon the same footing with the other children.

Having reached this conclusion, we should feel inclined to withhold the expression of any opinion upon the question mainly discussed by counsel, namely, whether the property is to be divided per capita or per stirpes, but for the fact the will, as already seen, authorizes the executors, in certain contingencies, to make advances to the devisees, on account of their prospective interests in the estate, when they shall have attained the age of 21 years; and, as it is manifest the executors could not so intelligently exercise the discretion with which they are clothed by the will in respect to such advances without knowing the proportions in which they would be entitled to take, it is clearly important that the question should be now determined. Keeping in view what has already been said, a few words will suffice to present what we have to say on this subject. It is conceded, and such is unquestionably the law, that if a testamentary gift be made to one person and the children of another person, as, for instance, to A. and the children of B., A. and the children of B., in such case, in the absence of anything to show a contrary intention, will take per capita, and not per stirpes. 2 Jarm. Wills, 756. Yet it is equally well settled that the opposite construction will prevail when the intention to that effect can be gathered from the context; or, in the somewhat quaint language of Jarman: "This mode of construction will yield to a very faint glimpse of a different intention in the context." Id. 757. The question for determination, then, is what is there in the context to take the present case out of the general rule above stated, and which both parties fully recognize? After a very careful consideration of the various provisions of the will, we have been unable to discover anything which, in our judgment, affords even "a faint glimpse" of an intention on the part of the testator that the usual construction should be departed from in this case.

Two facts are disclosed by the will which are supposed by counsel to afford such evidence, namely: (1) That appellant is characterized in the will as heir of his deceased mother; (2) that the testator recognizes his rights and claims as such in the legacy to him of $30,000, and the giving of an equal amount to Mrs. Osburn, the sister of his deceased mother. These facts, particularly the last, are pressed with great earnestness. They will be considered together. As to the first, we regard it as of no special significance, except that it is one, among others, which tend to show, as we have already seen, the testator, in disposing of his property, clearly had in mind the objects of his affections, both living and dead, and their relations to one another, as well as to himself. Thus viewing them, the appellant was presented to him in the twofold character of sole representative of his deceased daughter, and also as a grandchild. That he should have intended, as we believe he did, to recognize him in the disposition of his estate in both these characters, was, to say the least of it, but natural. Having a living daughter, she was to be provided for, and the testator was the proper one to determine the amount necessary for that purpose. This was done by giving her, in her own right, a valuable property, worth about $30,000. Mrs. McCartney, her deceased sister, though dead, was equally an object of the testator's affection, and the only way he could make her equal with the living daughter, and thereby give effect to what may be supposed the promptings of affection, was through the appellant, her son and only heir. How could this be done? Manifestly in but one way; that is, by giving to him an amount equal to that

given to the living daughter,-the very thing that was done. The testator alone had the right to determine what would be a reasonable and proper provision for the living daughter, and for the appellant, as the sole representative of his deceased daughter. This he did, and we perceive no ground for questioning its liberality or sufficiency, even if we had the right to do so, which we have not. In all this we see nothing to justify a departure from the general rule requiring a per capita division of the estate On the contrary, we think it affords additional reasons why the rule should be adhered to in this case. After having made this equal and liberal provision for the living daughter, and the heir and sole representative of the dead one, there was yet a large residuum of the estate to be disposed of. That, as we construe the will, he gave to such of his grandchildren, Harry McCartney included, as should be living at the time of the distribution, or, in other words, when the youngest child of Mrs. Osburn should attain the age of 21 years. Those of the grandchildren who are living at that time, and take at all, will take as the will provided, share and share alike. As it is a gift or devise to take effect at a future time, it follows that it will fail as to such of the grandchildren who may happen to die before that time.

For the reasons stated, the decree of the court below, except in so far as it relates to the 67 lots above mentioned, is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Mr. Justice MAGRUDER, having been of counsel in the court below, took no part in the decision of this case.

(119 Ill. 617)


(Supreme Court of Illinois. November 13, 1886.`


A change of location of the polling-place of an election for school trustee, for a short distance in plain sight, not alleged or shown to have misled any voter, or changed the result, will not invalidate the election in that district.


The provisions of the Illinois act relating to schools, for the election of school trustees, (2 Starr & C. c. 122, pars. 25-30,) do not contemplate that there shall be more than one polling-place in each school-district; and the fact that, under the general law on elections, two polling districts and places are established in one school-district, will not change this rule, nor invalidate a school election held at one polling-place in the school-district fixed by the school trustees. 3. SAME-IRREGULARITY NOT AFFECTING RESULT.

Where certain irregularities take place in the conduct of an election at one of the several polling-places of a township, which are not shown to have changed the result in that polling-place, and the result in the township will be the same whether the vote of that polling-place is counted or rejected, the election will not be invalidated thereby.

Appeal from appellate court, First district.

Quo warranto brought by the relator, Andrew Dunning, the appellee, to try the right of Edward Simons, the appellant, to act as trustee of schools of township 40 N., range 13, in Cook county, Illinois. The relator claimed to have been elected to the office in question at an election held November 21, 1885. The respondent, in his first plea, claimed to have been elected at an election held October 24, 1885, and in his second plea claimed to have been elected at the election of November 21, 1885. There was judgment in the lower court for the relator, and the respondent appealed.

Matthews & Dicker, for appellant.

Contemporaneous construction and usage is of great weight in the interpretation of statutes. People v. Loewenthal, 93 Ill. 200. Where the interpretation is doubtful, the court will adopt an interpretation of the law consonant with equity and convenience. Kerlin v. Bull, 1 Dall. 178; Crocker

v. Crane, 21 Wend. 211; People v. Utica Ins. Co., 15 Johns. 358; Jersey Co. v. Davison, 29 N. J. Law, 415, 424.

A polling-place can be changed on the day of election. Broadhead v. Milwaukee, 19 Wis. 658; People v. Martin, 5 N. Y. 22, 27; Goodel v. Baker, 8 Cow. 286; Dale v. Irwin, 78 Ill. 170, 181; Chicago v. People, 80 Ill. 496, 507.

Crafts & Stevens, for appellee.

As to the first plea, Rev. St. 1881, c. 122, § 27, in relation to schools, provide "that in townships where, for general elections, there is more than one polling-place, the trustees shall give notice that at each of said polling-places a poll will be opened for such election," etc. Sess. Laws 1885, p. 194, § 30, provide that "the county board, in every case, shall fix and establish the places for holding elections in its respective county, and all general and special elections shall be held at the places so fixed." The statute of 1883, above quoted, requires that a poll be opened at each polling-place used for general elections.

A fixed place for balloting is requisite; and, when once fixed, the place can only be changed by the proper authority. McCrary, Elect. p. 125, § 115; Miller v. English, 21 N. J. Law, 317; Com. v. Commissioners, 5 Rawle, 75; Marshall v. Kerns, 2 Swan, 68; Foster v. Scarff, 15 Ohio St. 535; Stephens v. People, 89 Ill. 342. Polling-places can only be established by the county board. Williams v. Potter, 114 ill. 628; S. C. 3 N. E. Rep. 729. The change in the polling-place allowed in Dale v. Irwin, 78 Ill. 170, was so allowed only on the ground of absolute necessity.

SCOTT, C. J. The information in this case is in the nature of a quo warranto, and charges Edward Simons with having usurped and entered into, and exercised the powers and duties of, the office of trustee of schools of a certain township particularly described both by name and numbers. Two pleas, stating definitely the title of respondent to the office in question, were filed by him, to both of which a demurrer was sustained, and, respondent not answering further, judgment of ouster was pronounced. In the first count of the information respondent is simply charged with usurping the office of trustee of schools in a certain township, and exercising the powers and duties of such office; but in the second count it is averred the relator, Andrew Dunning, on the twenty-first day of November, 1885, was regularly and legally elected to the office of trustee of schools in such township by the legal voters, and that he took the necessary oath required by law, and entered upon the duties of such office, and that afterwards respondent unlawfully usurped such office, and entered into and exercised the powers and duties of the same, without any authority of law for doing so. The title to such office, as set forth in the first plea, respondent avers, was acquired under an election held on the twenty-fourth day of October, 1885, to elect a successor to a former deceased trustee to fill the unexpired time of such deceased officer, and at which election respondent was elected his successor. In the second plea, respondent avers he was elected trustee of schools at a special election held in the township on the twenty-first day of November, 1885.

It is obvious, if the respondent was regularly and legally elected trustee of schools at the election held on the twenty-fourth day of October, 1885, to fill the unexpired term of the former trustee, the second election, held on the twentyfirst day of November, 1885, to elect a successor to the same deceased trustee, would be a mere nullity, for it would be an election to fill a vacancy in an office where none existed either in law or in fact. The facts appear on admission by demurrer to the plea, and it is a question of law whether the facts, as stated on the first plea, show that respondent was legally elected to the office of trustee of schools at the election held on the twenty-fourth day of October, '885.

On the tenth day of October, 1885, the surviving trustees ordered an election to be held in the township on Saturday, the twenty-fourth day of October, 1885, to elect a trustee to fill the vacancy in the board occasioned by the death of one of the trustees. At the same meeting when the election was ordered, the board appointed the polling-places in township,-six in number,— all of which polling-places are situated in the township, and conveniently located for receiving the votes of all the voters of the township. Accordingly the township treasurer gave the usual notice for the holding of such election on the day named, and at the several places appointed by the board to be polling-places to be used at the ensuing election. It is then averred "that the manner of calling said election, and of fixing the polling-places, and giving notice of the same, was as provided by law, and in accordance with the custom used at the previous election of the school trustees in said township. The polling-places before named were the same polling-places named and used at three previous elections of trustees of schools of said township, and the boundaries of the districts for which each of said polling-places was appointed were well understood by the electors of said township; and said districts, taken together, embraced the whole of said township, and no more territory, and no person entitled to vote at said election failed to do so by reason of any insufficiency of the number of polling-places appointed, or by reason of any misunderstanding of the boundaries of any district for which any of the said polling-places were appointed as aforesaid."

The election ordered to be held on the twenty-fourth of October, 1885, was in fact held on that day at the polling-places appointed by the board in pursuance of the notice given, except that on the day of the election the polling-place in district No. 3 was changed from Kuhn Hall to Kuhn's real-estate office, the latter place being in plain sight of the former, with the space between vacant; and except a similar change was made, before the voting began, on the day of the election, in the Norwood Park district, from Ball's store, across the railroad, to Fox's store. It is averred the polling-places, and the boundaries for the voting districts used at such elections, were the same as fixed by the board of commissioners of Cook county to be used at general elections in the towns of Jefferson and Norwood Park, except that the county board divided the town of Norwood Park into two voting districts, with a polling-place for each, and with one-half of the territory of each such voting district within township 40; and at such election only one polling-place was used in the part of the town of Norwood Park within township 40, which polling-place, so used, was nearer the center of that part of the town of Norwood Park within township 40 than were either of the polling-places fixed by the board of commissioners to be used at general elections in the town for polling-places for the two voting districts into which the whole town of Norwood Park was divided.

It will thus be seen the polling-places at which the election was held, under the order of the board calling such election, were the same as fixed by the county board for holding general elections, except in the district of Norwood Park. In all districts other than the latter, the election was held at the places fixed by the county board for holding general elections, and that is according to law. As to the Norwood Park district, the admission is that the election was appointed to be held at the place where the three previous elections for trustees of schools had been held. At the election, so held in pursuance of the notice given, respondent received a majority of the votes of the township cast at such election, and it is by virtue of that election respondent claims the right to exercise the powers and duties of the office of trustee of schools.

It must be conceded the election held in the First, Second, Fourth, and Fifth districts, at which respondent claims to have been elected on the twentyfourth of October, was entirely regular in every respect. The election in these several districts was held at the time stated in the notices given, at the

« PrethodnaNastavi »