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the written consent of Rebecca Lowden Scholes was not necessary.

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vides that those having uncertain or con- | ing a life estate in an undivided part of tingent interests who cannot be named in premises would be to nullify other provisions the bill shall be bound by the decree, and of the statute. As section 32 does not apply that is in accord with the doctrine of repre- where the life tenant is a cotenant with a sentation where there are parties having complainant having a present vested interest, identical interests enabled to give effective protection to any who may be afterward born. George Scholes and Jay Scholes were made parties and had interests identical in character with any children that might be born afterward. All defenses that afterborn children could make were available to those defendants, and it would not only be unjust but clearly contrary to the statute that the title of the four children of Henry B. Lowden should be postponed and they should have no right to the enjoyment of their separate shares until there should no longer be a possibility of a child being born to Rebecca Lowden Scholes. The rights of those having vested interests could not be required to await the possible birth of new claimants until the possibility of such birth had become extinct, and any that might be born afterward were represented in the suit and bound by the decree. Hale v. Hale, 146 Ill. 227, 33 N. E. 858, 20 L. R. A. 247; McCampbell v. Mason, 151 Ill. 500, 38 N. E. 672; Gavin v. Curtin, 171 Ill. 640, 49 N. E. 523, 40 L. R. A. 776; Thompson v. Adams, 205 Ill. 552, 69 N. E. 1; Denegre v. Walker, 214 Ill. 113, 73 N. E. 409, 105 Am. St. Rep. 98, 2 Ann. Cas. 787; Hopkins v. Patton, 257 Ill. 346, 100 N. E. 992.

[5] It is also contended that there could be no sale of the life estate of Rebecca Lowden Scholes without her consent, which was not given. Section 32 of the Partition Act provides that in case of sale the court may, with the consent, in writing, filed in the court, of the person having such an estate, sell it with the rest. That section evidently applies to a case where one has a life estate in the whole or some definite part of the premises, so that there can be no unity of possession until the death of the life tenant. If otherwise interpreted, the section would enable any party having an undivided interest to prevent a sale by the grant of a life estate and deprive the owner of another undivided interest of all remedy. In this case the children of Henry B. Lowden had an estate in possession in one-half of the land and Rebecca Lowden Scholes had an estate in possession for her life with a contingent remainder after her death. The parties were tenants in common of their estates in possession, and under the statute the complainants had a right to partition, and in case the premises could not be divided without manifest prejudice to the parties in interest, to have the same sold and the proceeds divided. The life estate of one having

[6] The final decree appointed a trustee to receive, manage, and invest one-half of the funds arising from the sale, and required him to enter into a bond and to loan the funds upon first mortgage security upon real estate situated in Marshall or Woodford county during the lifetime of Rebecca Lowden Scholes, and annually to file in the office of the clerk of the court an account and report of his acts as trustee. It created a trust for the lifetime of Rebecca Lowden Scholes, and provided that no portion of the principal of the funds should be used for any purpose; that the trustee should pay to her the net income; that at her death he should come into court and petition for instructions as to whom and in what manner the principal should be distributed; and that the same should be distributed, under the directions of the court, to the persons entitled thereto at that time. The titles of all the parties having interests being extinguished by the sale and transfer to the fund, the chancellor took the proper course for preserving the rights of such parties by creating a trust for the life of Rebecca Lowden Scholes and retaining jurisdiction of the trustee, and power to determine, at her death, to whom the principal of the fund should go. The decree, understood as we have stated, is affirmed.

Decree affirmed.

(273 Ill. 434)

MCCLINTOCK et al. v. MEEHAN et al.

(No. 10253.)

(Supreme Court of Illinois. April 20, 1916. Rehearing Denied June 22, 1916.)

1. WILLS 614(2) - ESTATE DEVISED — LIFE ESTATE.

Where testator's will devised land to his grandson, providing that at his death the title should vest in his sister, if she should be then living, and if both grandson and his sister should die without children the title should vest in another grandson, the first grandson took a life estate in the lands, such being the testator's intent as expressed in the language of the will. Dig. § 1394; Dec. Dig. 614(2).] [Ed. Note.-For other cases, see Wills, Cent. 2. WILLS 601(1)

ESTATE DEVISED

RE

STRICTION OF FEE. A devise of a fee may be restricted by subsequent words in a will and changed to an estate for life.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1340, 1341; Dec. Dig. 601(1).] 3. WILLS 602(6)- ESTATE DEVISED - FEE SIMPLE.

Where testator devised land to his grandson

an exclusive possession cannot be sold at a providing that at his death the title should vest suit of a remainderman, but to construe sec-in his sister if she should be then living, etc., in tion 32 as requiring the consent of one hav- such terms that the devise to the grandson was

of a life estate or a determinable fee, such grand- | H. McClintock was the owner in fee of the son could not have a fee-simple estate while his sister was living and there was a chance she would survive him, when by the will title would vest in her.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1357, 1358; Dec. Dig. 602(6).] 4. WILLS 602 (3)-ESTATE DEVISED-BASE FEE.

Where testator left land to his grandson for Where testator left land to his grandson for life, the title on the grandson's death to vest in his sister if living, and if both grandson and sister should die without children, to vest in another grandson, the first grandson's sister on his death took a base or determinable fee, the land going to the second grandson if she died childless and to her children, if she left any, unless conveyed in the meantime.

land mentioned in clause 3 of the will, and that the defendants to the bill, including Margaret Meehan (formerly Margaret H. McClintock and the sister of said John H. McClintock) and John Meehan, her husband, had no right, title, or interest therein, and that

they and other defendants to the bill be perpetually enjoined from asserting any right, title, or interest in said land. It is further alleged in the bill, and the court found in its decree, that John H. McClintock paid the $1,000 made a charge on the land of Margaret McClintock, after he became 21 years of age; that the father of John H. [Ed. Note.-For other cases, see Wills, Cent. McClintock and Margaret McClintock was Dig. § 1354; Dec. Dig. 602(3).] long since deceased; that Margaret McClin

5. WILLS 617-ESTATE GRANTED-LIFE ES-tock (now Meehan) was married, was about

TATE-ENLARGEMENT.

36 years of age, and at the time of the suit had six children living. Other parties were made defendants to the bill for the purpose of curing minor defects in the title, but they were defaulted and are not appearing in this court. Margaret Meehan and her husband have sued out this writ of error to reverse

Where a will, in its third clause, devised land to testator's grandson for life, title to vest in his sister at his death, and, if both should die childless, to vest in another grandson, the fifth clause of the will, providing that the devise to the first grandson was made upon certain conditions, and should not vest absolutely in him until he reached 21, title to vest in executors and trustees in the meantime, the grandson to pay the decree. $1,000 to his sister when he reached 21, the sum being charged upon the land, did not enlarge into a fee the life estate previously granted the first grandson, the devise referred to in the fifth clause being the devise mentioned in the third, while the language of the fifth clause, that "title to said land" devised to the first grandson should not vest absolutely in him until he reached 21, referred to the life estate rather than to the land.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1431-1435; Dec. Dig. 617.] 6. WILLS 441-CONSTRUCTION.

In construing a will, it is proper to look into the circumstances surrounding the testator, and the relationship and condition of the parties when the will was drawn.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 958; Dec. Dig. 441.]

Farmer and Cooke, JJ., dissenting.

Error to Circuit Court, La Salle County; Edgar Eldredge, Judge.

Bill by John H. McClintock against MarTo review a garet H. Meehan and others. decree for complainant, defendants bring error, making James McClintock and others, heirs at law of deceased complainant, defendants in error. Decree reversed, and cause remanded, with directions to enter a decree in conformity with the opinion.

Browne & Wiley and H. M. Kelly, all of Ottawa, for plaintiffs in error. Edward J. Kelly and Andrew J. O'Conor, both of Ottawa, for defendants in error.

CRAIG, J. John H. McClintock filed his bill in chancery in the circuit court of La Salle county to construe the will of Thomas Herbert, deceased, and to quiet title in himself to the land described in clause 3 of said will, hereinafter set out. A decree was rendered at the October term, 1913, of said court, rinding, among other things, that said John

The question presented by the assignments of error is the proper construction of the will of Thomas Herbert. The only clauses of the will which refer to the land in controversy and the interest therein of the parties to this suit are clauses 3 and 5, which are as follows:

son of James McClintock and my daughter "Third-To my grandson John H. McClintock, Mary (now deceased), I give and devise the following described premises, viz.: The southeast quarter of section 34, in township 32, north of range 5, east of the third principal meridian, in La Salle county, Illinois, and at his death the title to said land shall vest in his sister, Margaret H. McClintock, if she shall then be living, and if the said John H. and Margaret H. McClintock shall both die leaving no children, then and in that case the title to said land shall vest in my grandson Charles Herbert, son of Patrick Herbert."

"Fifth-The above devise to my grandson John H. McClintock is made upon the following conditions, viz.: The title to said land devised to the said John H. McClintock shall not vest absolutely in him until he arrives at the age of twenty-one years, but in the meantime the title to the said land shall vest in the executors and trustees hereinafter named, who shall lease said land and divide the proceeds arising therefrom equally between the said John H. and Margaret when they become of the age of twenty-one years or when they pass out of the control of their father and he releases all claim to their property or income; and the said John H. McClintock shall, when he arrives at the age of twenty-one years, pay to his sister, the said Margaret H., the sum of $1,000, and the payment of said sum is hereby made a charge upon the land herein devised to the said John H. McClintock."

The plaintiffs in error contend that John H. McClintock took only a life estate in the land mentioned in the third clause of the will; that it was the intention of the testator to devise to him a life estate, in the land mentioned in clause 3, with the remainder in fee to his sister, Margaret H. McClin

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tock (now Meehan), if she survived him, and any event, in finding that John H. McClinshould now be decreed to be the owner of the land in fee simple. It is the contention of counsel for the defendants in error that the third clause of the will did not create a life estate in John H. McClintock, but devised to him a fee, determinable upon the contingencies stated in said clause becoming impossible of performance, and that under said clause Margaret H. McClintock and Charles Herbert are executory devisees; also, that clause 5 gives full force and effect to clause 3, and specifies the time when the fee-simple title to the land therein devised to John H. McClintock shall vest absolutely in him, to wit, when he arrives at the age of 21 years.

tock had a fee-simple estate in the land while Margaret was living and there was a chance that she would survive him. If Margaret died before John, then on his death, if neither of them left children, the land would go to Charles Herbert. If Margaret died before John and either of them left children, then on the death of John, there being no disposition of the fee in such event, this land would go as reversionary estate to the heirs at law of the testator. If John died before Margaret, the latter would take a base or determinable fee in the land. If Margaret Meehan dies childless-which will not be known until she dies-the land goes to Charles Herbert. If she leaves children, the land will, unless conveyed by her in the meantime, descend to them. Strain v. Sweeny, 163 Ill. 603, 45 N. E. 201.

[5] Nor do we think that the fifth clause of the will, taken in connection with the third clause, changes in any way the con

clause. The fifth clause does not enlarge the estate previously devised to John H. McClintock. In the fifth clause the testator provides that:

"The above devise to my grandson John H. McClintock is made upon the following conditions."

The devise referred to is the devise mentioned in clause 3. The fifth clause further provides:

[1, 2] It can hardly be said from the language employed by the testator in the will to express his intention that he intended to devise a fee-simple estate in the land to John H. McClintock. It is true that in the first part of clause 3 there is a straight devise to John H. McClintock. This is followed, how-struction we have placed upon the third ever, by the words, "and at his death the title to said land shall vest in his sister, Margaret H. McClintock, if she shall then be living." This language cannot be rejected or disregarded in construing the will. The effect, then, of the words last above quoted is to limit the estate devised to John H. McClintock to a life estate; and we also think that was the clear intent of the testator as expressed in the language of the will. A devise of a fee may be restricted by subsequent words in a will and changed to an estate for life. Hill v. Gianelli, 221 Ill. Hill v. Gianelli, 221 Ill. 286; Bergan v. Cahill, 55 Ill. 160; Johnson v. Johnson, 98 Ill. 564. Fewer words and plain terms were all that was required to devise a fee-simple estate in the land in question to John H. McClintock, and the effort made by the testator to limit his interest to a life estate in the lands is indicated conclusively by the provisions that at the death of the life tenant, John H. McClintock, the land should go to Margaret H. McClintock if she were alive at the time of the death of John H. McClintock, and if both she and John H. McClintock should die leaving no children, then to Charles Herbert.

[3, 4] The bill alleges, and the decree finds, that Margaret McClintock (now Meehan) is living and has six children, and even if, as defendants in error allege, the devise to John H. McClintock was a base or determinable fee and the devise to Margaret was an executory devise, it is very clear that whatever estate is devised to John H. McClintock by the will, whether a life estate merely or a determinable fee, it cannot be a fee-simple estate nor become a fee-simple estate in him as long as his sister Margaret is living, for in such case there is always, at least the possibility that he may die first and she survive him, and in such case the title to the land, by the terms of the third clause of the will, is to vest

"The title to said land devised to the said John

H. McClintock shall not vest absolutely in him until he arrives at the age of twenty-one years."

Counsel for defendants in error claim that this language, in connection with the rest of clause 5, shows the intention on the part of the testator to vest the fee-simple title absolutely in John H. McClintock when he arrives at the age of 21 years, and complies with the condition named therein-that is, to pay Margaret $1,000. The words "title to said land devised" could just as well have referred to the life estate, or whatever estate testator had previously devised by the third clause of the will, as to an estate in fee simple, and it is only by giving those words that meaning that full effect can be given to all the language of the will. The whole of clause 5, when read, discloses the clearly expressed intent of the testator that the executors and trustees named in the will should have control of the land during the minority of John, and that they were to lease the land and divide the proceeds equally between John and Margaret until John arrived at the age of 21 years, when he was to pay Margaret $1,000, and was thereafter to have full possession and control of said land during the rest of his natural life.

[6] It appears from the findings of the decree that the testator, at the time he made the will, was an old man, and that John H. McClintock and his sister, Margaret, the tes

ages of and 5 years, respectively. The tes- | Claus Tomhave, against the appellee, Richtator probably anticipated that he would not ard H. Vortman, in the circuit court of Morlive long. He evidently wished to provide gan county, on a trial before the judge withfor both of the children during their minori- out a jury, and an appeal was taken to this ty. Clause 5 is mainly taken up with mak- court. ing such an arrangement. It is proper to look into the circumstances surrounding the testator and the relationship and condition of the parties at the time the will was drawn. We do not think that clause 5 in any way tends to enlarge the estate in the land devised to John H. McClintock in clause 3 or to change the interest devised by clause 3, except in the particulars mentioned.

For the reasons given, the decree of the circuit court of La Salle county will be reversed, and the cause remanded to that court, with directions to enter a decree in conformity with the views herein expressed.

Reversed and remanded, with directions.

FARMER and COOKE, JJ., dissenting.

(274 Ill. 28)

TOMHAVE v. VORTMAN. (No. 10682.) (Supreme Court of Illinois. June 22, 1916.) 1. COURTS 219(12)—APPELLATE JURISDICTION-CASES INVOLVING FREEHOLD. An issue as to the ownership of the freehold is made by a plea of liberum tenementum. [Ed. Note.-For other cases, see Courts, Cent. Dig. 557; Dec. Dig. 219(12); Appeal § and Error, Cent. Dig. §§ 118, 119, 167.] 2. COURTS 219(22)-APPELLATE JURISDICTION-CASES INVOLVING FREEHOLD.

In an action of trespass where an issue made by plea of liberum tenementum is not tried, and plaintiff's ownership is admitted, the defense being a license to cut a hedge for posts, and there is no proposition of law given or refused or error assigned involving ownership of the freehold, the Supreme Court has no appellate jurisdiction.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 557; Dec. Dig. 219(22); Appeal and Error, Cent. Dig. §§ 118, 119, 167.] 3. COURTS

219(25)-APPELLATE JURISDICTION-CASES INVOLVING FREEHOLD-BOUND

ARIES.

An action raising the question whether a fence is a boundary line or where the line is does not involve the freehold.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 8557; Dec. Dig. 219(25); Appeal and Error, Cent. Dig. §§ 118, 119, 167.]

Appeal from Circuit Court, Morgan County; Norman L. Jones, Judge.

Action by Claus Tomhave against Richard H. Vortman. From a judgment for defendant, plaintiff appeals. Cause transferred to Appellate Court.

John J. Reeve and Kirby, Wilson & Brockhouse, all of Jacksonville, for appellant. William N. Hairgrove, of Jacksonville, and William L. Patton, of Springfield, for appellee.

CARTWRIGHT, J. There was a finding and judgment for the defendant in this action of trespass, brought by the appellant,

There were two counts in the declaration, each charging the defendant with cutting osage orange hedge trees of the plaintiff. The pleas were not guilty and liberum tenementum. The plaintiff joined issue on the plea of not guilty and traversed the plea of liberum tenementum by a replication, on which the defendant joined issue.

On the trial it was proved that the plaintiff and defendant owned adjoining tracts of land; that there had once been a division fence, the north end being a rail fence and the south end a post-and-board fence; that the predecessor in title of the plaintiff set out the hedge on his land within a few feet of the fence, which in the course of time decayed and disappeared, and that the hedge had grown up to a considerable height, so that there were many portions large enough for fence posts. The only defense interposed at the trial was a license to cut the hedge trees for posts. The plaintiff testified that about 1905 he said to the defendant:

"Now, you have got no poles; this hedge 1 like to leave grow up in poles; now, if you will trim that hedge on one side I will give you some poles."

The defendant testified that the plaintiff told him they would leave the hedge standing there and let it grow up and make posts and each take one-half. The claim of the defendant was that he had a license to cut the north half and the plaintiff was to have the south half.

[1-3] An issue as to the ownership of the freehold was made by the plea of liberum tenementum (Piper v. Connelly, 108 Ill. 646; Illinois Central Railroad Co. v. Hatter, 207 Ill. 88, 69 N. E. 751), but there was no trial of that issue, and the defendant having offered no evidence under the plea that defense was abandoned. It was admitted on the trial that the plaintiff owned the premises, and the only defense offered was a license to cut the hedge for posts. There was no proposition of law given or refused concerning the ownership of the freehold and there is no assignment of error involving such ownership. The court held a proposition of law submitted

by the defendant stating an hypothesis of
fact which the proposition stated would make
the hedge fence a boundary line; but the
question whether the hedge fence was a
boundary line or where the line was does not
involve the freehold. Brownmark v. Livings-
ton, 190 Ill. 412, 60 N. E. 618. The appeal
should have been taken to the Appellate
Court.

The cause is transferred to the Appellate
Court for the Third District.
Cause transferred.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(274 Ill. 116)
PEOPLE ex rel. HOYNE, State's Atty., v.
FISHER. (No. 10472.)

(Supreme Court of Illinois. June 22, 1916.)

TAXATION 327 ASSESSMENT LIST BY TAXPAYER-STATUTE-IMPLIED REPEAL. Revenue Act of 1872 (Laws 1871-72, p. 6) § 24, as amended in 1879 (Laws 1879, p. 252), making a refusal, neglect, or failure to list personal property a misdemeanor, was repealed by the Assessment Act of 1898 (Laws Extra Sess. 1898, p. 43) § 19, which contained the same provisions except the misdemeanor provision, since the latter act revised the prior act as to assessment, and was evidently intended as a complete substitute in that respect, and since the omission of the misdemeanor provisions in the substantially re-enacting section raised a presumption of legislative intent to repeal the omitted provision; although the only express repeal in the 1898 act was of another statute, and although by section 55 of the 1898 act it was provided that all of the provisions of the general revenue law in force prior to the taking effect of the act should remain in force, except as otherwise in the later act expressly provided.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 550; Dec. Dig. 327.]

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Oscar M. Torrison, Judge.

Petition for mandamus by the People, on the relation of Maclay Hoyne, State's Attorney, against Harry M. Fisher. From a judgment of the Appellate Court, affirming a judgment of the circuit court for defendant, plaintiff was granted a certificate of importance and a further appeal. Affirmed.

Maclay Hoyne, State's Atty., of Chicago (Henry A. Berger and Irvin N. Walker, both of Chicago, Patrick J. Murphy, of South Chicago, and Hayden N. Bell, of Chicago, of counsel), for appellant. Samuel A. Ettelson, Corp. Counsel, of Chicago (David T. Alexander, of Chicago, of counsel), for appellee.

ant demurred to the petition, and the parties entered into a stipulation that the facts set forth in the petition were true (which, of course, the demurrer had admitted), and that if section 24 of the Revenue Act of 1872, as amended in 1879, was still in force the court

should award a peremptory writ of mandamus. The court sustained the demurrer and dismissed the petition. The Appellate Court for the First District affirmed the judgment on appeal and granted a certificate of importance and a further appeal to this court.

The Revenue Act of 1872 not only provided for the assessment of property, but it covered the whole subject of revenue, and provided what property should be assessed and taxed, what should be exempt from taxation, what should be treated as personal property, provided for the collection of taxes by township and county collectors, for proceedings in court for judgment and sale, the sale of delinquent lands, suits against collectors, and every other matter connected with securing revenue. It mingled in one act all the different processes of valuing and assessing property and extending and collecting taxes.

It was entitled "An act for the assessment

of property and for the collection of taxes," and constituted chapter 120 of the Revised Statutes of 1874. Section 24 of that act of 1872, as amended in 1879, provided that each person required to list personal property should make out under oath and deliver to the assessor a schedule of the numbers, amounts, quantities, and quality of all personal property in his possession or under his control, and required to be listed for taxation by him, with this provision for a penalty for disobedience:

"And if any person shall refuse to make such schedule under oath, then the assessor shall list the property of such person according to his best judgment and information, and shall add to the valuation of such list an amount equal to fifty per cent. of such valuation and if any person making such schedule shall swear falsely he shall be guilty of perjury and punished accordingly. Any person so required to list personal property who shall refuse, neglect, or fail when requested by the proper assessor so to do shall be deemed guilty of a misdemeanor and on conviction thereof shall be fined in any sum not exceeding $200."

CARTWRIGHT, J. The state's attorney of Cook county, in the name of the people of the state of Illinois, filed a petition in this case in the circuit court of that county for a writ of mandamus commanding Harry M. Fisher, one of the judges of the municipal court of Chicago, to grant leave to file in the court of which he was a judge an information which had been presented to him In 1898 the General Assembly took out charging Jacob L. Kesner with refusing, neg- of the Revenue Act the subject of the assesslecting, and failing to file with the board of ment of property and made a revision of that assessors of Cook county a schedule of his subject by the act entitled "An act for the personal property, which was alleged to be a assessment of property and providing the violation of the statute. The petition con- means therefor, and to repeal a certain act tained a copy of the information and averred therein named." It contained an express rethat evidence was produced to the judge to peal of the act passed in 1893, which has no substantiate its statements, and that he re- relation to this case, and that was the only fused the information to be filed because sec- express repeal in the act. By section 55 tion 24 of the Revenue Act of 1872 (Laws it was provided that all of the provisions of 1871–72, p. 6), as amended in 1879 (Laws 1879, the general revenue law in force prior to the p. 252), making a refusal, neglect, or failure taking effect of the act should remain in to list personal property a misdemeanor, was force and be applicable to the assessment of repealed by the Assessment Act of 1898 property and the collection of taxes, except (Laws Extra Sess. 1898, p. 36). The defend-in so far as by that act was otherwise ex

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