sales of stock of the Rova Radio Company constituted an unreasonable search and seizure of the records of appellants; and that the order was in violation of section 6 of article 2 of the State Constitution and the Fourteenth Amendment to the Federal Constitution. There was a hearing upon the motion on the attachment, the court found that appellants had violated the order and held them guilty of contempt, a fine of $50 was imposed on each appellant, and each was ordered to stand committed until the fines and costs were paid. From that judgment an appeal has been prosecuted to this court.

The sole question is whether or not the order as entered was in violation of the constitutional rights of appellants, and whether they were justified in refusing to comply with the same.

[1-5] Section 9 of chapter 51 of our statutes provides that:

"The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue."

The construction of this section has been before this court on many occasions, and it has been uniformly held that, before an order can be entered, there must be good and sufficient cause shown upon reasonable notice, and that the evidence sought to be obtained must be pertinent to the issues in the case. First Nat. Bank v. Mansfield, 48 Ill. 494. The statute contemplates the production of evidence which the party applying therefor is entitled to introduce and which the other party withholds. The court has power to compel the production of the books of a party to be used as evidence on the trial upon proper showing that they contain entries tending to prove the issues, but the statute cannot be construed as giving the court power and authority to take the books and papers of the party and impound them with an officer of the court for examination and inspection, or give the right to compel the submission of the books to a general inspection and examination for fishing purposes or with a view to finding evidence to be used in other suits or prosecutions. Lester v. People, 150 III. 408, 23 Ν. Ε. 387, 37 N. E. 1004, 41 Am. St. Rep. 375. Such an order cannot be used to procure a general investigation of the accounts and business of a party or of transactions not material to the issue. Walter Cabinet Co. v. Russell, 250 Ill. 416, 95 N. E. 462. An order which limits the examination to such matters as are pertinent to the issue does not infringe the constitutional guaranty against unreasonable search and seizure. Swedish-American Telephone Co. v. Fidelity & Casualty Co., 208 Ill. 562, 70 N. E. 768. The order may provide that memoranda may be taken from the

books concerning the matters material in the case. Denison Cotton Mill Co. v. Schermerhorn, 257 111. 128, 100 Ν. Ε. 491. Such an order is not erroneous because it permits such inspection at the office of the defendant and not in the presence of the court. The language of the statute does not limit the time when the books and writings are to be produced, to the time of the trial, but the examination may be either before or during the trial. Swedish-American Telephone Co. v. Fidelity & Casualty Co., supra. If the party against whom the order is made wishes to contest the validity of the order he may refuse to obey and in a prosecution for contempt show in defense that the court had no authority to make the order. Where the construction of a constitutional provision is involved in such an order, an appeal lies directly to this court. Lester v. People, supra; Denison Cotton Mill Co. v. Schermerhorn, supra.

[6,7] No complaint is made of that part of the order which requires appellants to submit to an inspection of their records relative to all transactions between the testator and appellants, but objection is made to all the rest of the order. The statute provides that the order may be made upon good and sufficient cause shown. This is one of the material and essential provisions of the statute, and it must be complied with before a valid order can be made. The materiality of the evidence and the good and sufficient cause may appear from the pleading, or they may be shown by the affidavit filed in support of the motion. Denison Cotton Mill Co. v. Schermerhorn, supra. There were no pleadings in this case except the claim which was filed. No issues were joined upon the claim; therefore the materiality of the evidence did not appear from the pleadings. It was therefore necessary that the good and sufficient cause and the materiality of the evidence should appear from the affidavit of the executrix. Many of the essential allegations of her affidavit are alleged only upon information and belief. In fact, all of the allegations of fraud with reference to the radio stock are based upon information and belief. This is the only part of the order to which objections are made. It is alleged on information and belief that most of the claim arose out of the buying and selling of radio stock; that portions of the transactions were payments made on margins and were gambling transactions; that appellants owned a large part of the stock of that company; that appellants sponsored the stock, circularized the sales, and were familiar with the assets and liabilities of the company; that the stock was boomed and falsely boosted through illegitimate sales, made for the sole purpose of raising its market price; that appellants knew that the price did not represent the value they claimed for it; that the Rova Radio Company had no assets that would warrant the booming of the stock by illegitimate sales; that appellants knowingly and fraudulently represented certain facts to the testator to induce him to buy. All of these allegations are not only based merely on information and belief, but the affidavit does not even state the facts upon which the belief is based. It merely states the conclusions of the affiant. It fails to allege what facts appellants knowingly and fraudulently represented to the testator in order to induce him to buy. It fails to allege how or in what manner any information in the books or documents would be pertinent or material to the issue. It does not specify any particular book or document needed but asks for an inspection of all documents, books and papers, without limitation. On the other hand, the affidavit filed by appellants denies in positive terms every allegation of fraud charged by the executrix. No part of it was on information and belief. No evidence was heard by the court but the hearing was on affidavits alone. The persons making the two affidavits were apparently of equal credibility, and yet the contradicted affidavit of the executrix was held to show such good and sufficient cause as justified the order. This affidavit did not show good and sufficient cause, and did not show the materiality of the evidence when it is considered in connection with the affidavit filed by appellants and when the sweeping character of the order entered is considered.

It

[8] The order required appellants to submit for inspection all of their books, journals, ledgers, cashbooks, invoices, circulars, letters, memoranda, records, and files pertaining to the buying and selling of Rova stock, made by appellants; also all of said documents pertaining to the question whether or not appellants owned any of the stock of said company prior to the sales to the testator; also all of said documents pertaining to the aid, assistance, and activities of appellants in the sales of all of the stock of said company. This order specified no particular period of time which the inspection was to cover. could have covered any time from the formation of the partnership by appellants to the death of the testator. It made no limitation as to the accounts to be investigated, provided they were Rova accounts. The inspection could have covered any and all accounts, regardless of whom they were with, when they took place or for whatever purpose they were made. The order threw open all of the records of appellants with reference to these matters without limitation of any kind. No safeguards were thrown around the inspection for the protection of appellants against an investigation not covered by the order. It left to the discretion of the attorneys for the executrix to determine what they would or would not inspect and what was or was not

material to the issue. The order in this respect was an invasion of the constitutional rights of appellants, and they were under no obligations to obey the part of it above indicated.

The judgment finding appellants guilty of contempt of court will be reversed and the cause remanded.

PER CURIAM. The foregoing opinion reported by Mr. Commissioner PARTLOW is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.

Reversed and remanded.

(329 111. 604) RARITAN STATE BANK et al. v. HUSTON et al. (No. 18506.)

Supreme Court of Illinois. April 21, 1928.

1. Deeds 95-Ordinary meaning must be given words used in deed where meaning is not doubtful.

Where the meaning of words as used in deed is not doubtful, they must be given their ordinary meaning.

2. Deeds 132-Wills 622-Any form of expression indicating intention to create remainder is sufficient.

Term "remainder" is not one of art, which it is necessary to employ in creating such an estate, and any form of expression indicating intention of grantor or devisor to do so is sufficient.

3. Remainders /-"Remainder" is remnant of estate, depending upon prior particular estate created at same time, by same instrument, arising immediately on determination of prior estate.

A "remainder" is a remnant of an estate, depending upon particular prior estate created at same time and by same instrument, and limited to arise immediately on determination of that estate and not in abridgment of it.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Remainder.]

5. Remainders 4 "Vested remainder" is one limited to determinate persons to take effect in possession immediately on determination of particular estate.

A remainder is vested when it is limited to determinate persons, to take effect in possession immediately on determination of particular estate.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Vested Remainder.]

6. Deeds 133(1)-Main feature distinguish ing vested from contingent remainder is its present capacity to take effect in possession in determinate person immediately upon de termination of particular estate.

Main distinguishing feature between vested and contingent remainder is present capacity of vested remainder to take effect in possession in determinate person immediately upon determination of particular estate, and not enjoyment of it.

7. Wills 524(6)-Generally, where same in. strument creates particular estate postponing distribution until determination of prior estate, devise vests only in those of class who survive particular estate.

General rule is that where testator makes devise or gift of property to certain persons or to survivors of them, and by same instrument creates particular estate and postpones period of distribution until determination of such prior estate, the gift or devise to such survivors will take effect and vest only in those of class who shall survive determination of particular estate and answer to description at that time.

8. Deeds 133 (2) Deed to intestate's son for life and upon death of son and his wife land to revert to heirs of intestate and his

wife created contingent remainder for benefit

of such heirs.

Where heirs of intestate executed deed con

veying life estate to intestate's son, providing that upon death of such grantee and his wife land should revert back to heirs of intestate and his wife, held that contingent remainder was created, since unless grantee's wife died during his lifetime particular estate which is necessary to support remainder will have terminated before right of possession accrues.

the will of Lydia J. Huston, appeal. Reversed and remanded, with directions.

Gumbart & Grigsby, of Macomb, for ap pellants.

Hanley & Cox and Safford & Soule, all of Monmouth, for appellees.

DUNN, J. This is an appeal from a decree of the circuit court of Henderson county for the partition of 80 acres of land, which belonged in his lifetime to John M. Huston, who died intestate on November 27, 1913. His wife, Lydia J. Huston, survived him, and his heirs were his five sons, a daughter, and a grandson, Leon Gearhart, the child of a deceased daughter. A few days after his death the widow, the daughter, the grandson, and four of the sons executed a quitclaim deed conveying to the other son, "Burress Huston, during his lifetime, of the town of Raritan, county of Henderson and state of Illinois, all interest in the following described real estate: The west half of the northwest quarter of section twenty-six (26) in township eight (8) north of range four (4) west of the fourth principal meridian. And upon the death of said Burress and Nora Huston the above-described land to revert and go back to the legal heirs of John M. and Lydia Huston. Said Burress or Nora Huston shall pay all taxes and keep in repair all improvements, situated in the county of Henderson, in the state of Illinois." Nora Huston was the wife of Burrus. Robert Huston, one of the sons, died in 1917, unmarried, leaving as his heirs his mother, brothers, and sister and his nephew, Leon Gearhart, who died a few days after, leaving his son, Eldon Gearhart, as his only heir. On February 29, 1924, Burrus and Nora Huston conveyed to James Lofftus, a director of the Raritan State Bank, all interest in the premises, the consideration being a mortgage for $10,000 given by Burrus to the bank. Lofftus took the title for the use of the bank. On March 1, 1924, Luther Huston conveyed all his interest in the property to Minnie E. Black, and on March 22, 1924, he was adjudged a bankrupt. George A. Fal

does not pass by deeds of sale.

Where heirs of intestate executed deed conveying land to son of intestate for life and upon death of grantee and his wife land to revert to heirs of intestate and wife, conveyances by grantee and one of such heirs did not effect transfer of contingent remainder, and no title was obtained.

Appeal from Circuit Court, Henderson County; Willis F. Graham, Judge.

Bill by the Raritan State Bank and others against Luther Huston and others. From the decree Thalus and Scott Huston, individually and as executors and trustees under

their interest in the premises to Lofftus. The bank has been in possession of the premises since March, 1924. The bank and Eldon Gearhart, who was a minor, filed their bill for the partition of the land and the correction of an error in the deed to Lofftus of February 29, 1924. A decree was rendered correcting the error in the deed of February 29, 1924, to Lofftus, and finding that the bank, and Lofftus as trustee, are the owners of an undivided two-sevenths part of the premises and of an estate for and during the life of Burrus and Nora Huston in the undivided fivesevenths part of the premises, and, subject to the life estate, Eldon Gearhart, James Spiker, Scott Huston, Thalus Huston, and Mary E. Oakman are each entitled to the undivided one-seventh part of the property. Thalus and Scott Huston, individually and as executors and trustees under the will of Lydia J. Huston, have appealed.

The decision of the case depends upon the construction of the deed of the widow and heirs of John M. Huston to Burrus Huston. The decree is based upon the finding that the deed conveyed the undivided six-sevenths of the land to Burrus during his own life and also during the life of Nora Huston, and created a contingent remainder to those persons who should be the heirs of John M. and Lydia J. Huston, and that such heirs were ascertained by the death of Lydia. The appellants contend that the deed conveyed an estate to Burrus for his life only, with a gift over by way of springing use after the death of Burrus and Nora to the persons who at that time should be heirs of John and Lydia Huston. The only words of conveyance in the deed are "convey and quitclaim," which under our statute are sufficient to convey the title. The conveyance is expressly to "Burress Huston during his lifetime" and to no other person. We cannot add to the conveyance the additional words, "and during the life of Nora Huston." No contention is made by either party that any estate was conveyed to Nora, and clearly no such contention could be sustained, for the words used are incapable of such construction.

meaning of the words is not doubtful; they must be given their ordinary meaning; there is no obvious omission, the intention expressed is lawful, and there is no reason why that plain intention should not be given effect as it is written. Why Nora's name is mentioned in the deed is not apparent. She was not a party to it. The provision that "said Burress and Nora Huston shall pay all taxes and keep in repair all improvements" was of no effect so far as she was concerned and throws no light on the intention of the grantors. Burrus could have no possession and enjoyment of the estate during the life of Nora after his own death and she would have no right of possession. The deed may fail to express the intention of the grantors, but it does express an intention, which is not doubtful, to convey the land, disposing definitely of all interest in it upon the limitations stated.

[2] Under it, therefore, a present life estate in the land was conveyed to Burrus Huston, with remainder after the death of Burrus and Nora to the heirs of John M. and Lydia J. Huston. The deed provides that upon the death of Burrus and Nora the land shall revert and go back to the heirs of John M. and Lydia J. Huston. The word "revert" is not the technically appropriate word to create a remainder, but the term "remainder" is not one of art, which it is necessary to employ in creating such an estate, and any form of expression indicating the intention of a grantor or devisor to do this is sufficient. 2 Washburn on Real Prop. (6th Ed.) § 1540. The death of Nora was a condition precedent to the enjoyment of the remainder. The heirs of John M. and Lydia J. Huston have no fixed right to the enjoyment of the estate before her death. Their right is postponed until her death, and in case that should not occur until after the death of Burrus, which will terminate his life estate, the particular estate upon which the remainder depends will come to an end before the fixed right of enjoyment by the remaindermen shall have accrued.

[3-7] A remainder is a remnant of an estate, depending upon a particular prior estate created at the same time and by the same instrument and limited to arise immediately on the determination of that estate and not in abridgment of it. 4 Kent's Com. 197; 2 Washburn on Real Prop. (6th Ed.) §§ 1526,

ment is suggested to support the statement that these words fix the time of the termination of the estate granted. It is pure assumption and is in contradiction of the express language of the deed, which fixes the duration of Burrus' estate during his life. The words "upon the death of Burress and Nora Huston" fix the time of the beginning of the subsequent estate and have no reference to the end of the preceding estate. The

Doyle, 257 111. 369, 100 N. E. 369. A remainder is contingent when the fulfillment of some condition precedent other than the termination of the preceding estate is necessary before it can become a present estate and when the right of enjoyment is to accrue on an uncertain event. Gray v. Shinn, 293 111. 573, 127 N. E. 755. A remainder is vested when it is limited to determinate persons, to take effect in possession immediately upon the determination of the particular estate, and is contingent when it is limited to take effect upon a dubious or uncertain event or to a dubious and uncertain person. The main thing which distinguishes a vested from a contingent remainder is its present capacity to take effect in possession in a determinate person immediately upon the determination of the particular estate. In the one case there is a person in being ascertained and ready to take with a present right of future enjoyment, while in the other there is either no ascertained person in being ready to take immediately upon the determination of the particular estate or it is uncertain whether the event upon which the estate is to vest will ever happen. It is the uncertainty as to the right to take the property, and not as to the enjoyment of it, that distinguishes a contingent from a vested remainder. The general rule is, that where a testator makes a devise or gift of property to certain persons or to the survivors of them, and by the same instrument creates a particular estate and postpones the period of distribution until the determination of such prior estate, the gift or devise to such survivors will take effect and vest only in those of the class who shall survive the determination of the particular estate and answer to the description at that time. Where a testator gives his wife a life estate and provides that after her death and after his youngest child becomes of age the estate shall be sold and the proceeds divided among his surviving children and the children of any children who may have died, the fact that the distribution is postponed, not only to let in a particular estate but also because of the minority of the youngest child, indicates an intention to create a contingent remainder. Jones v. Miller, 283 111. 348, 119 N. Ε. 324.

[8] In this case the right of possession is postponed, not only until the termination of the life estate of Burrus Huston, but until the death of Nora. The heirs of John M. and Lydia Huston will have no right of possession until after the death of Nora and they will have no present fixed right of future enjoy ment until her death, and unless that event occurs in Burrus' lifetime, the particular estate which is necessary to support the remainder will have terminated before the right of possession accrues. The remainder is therefore contingent. In a limitation to A for life, remainder to B, B has a capacity

to take the possession at any moment when A may die; but if the limitation is to A for life, remainder to B after the death of J. S., and J. S. is still alive, B can have no capacity to take until J. S. dies. When J. S. dies, if A is still living, the remainder becomes vested but not before, and if A should die in the lifetime of J. S., the remainder in B would fail although he was then alive. 2 Washburn on Real Prop. (6th Ed.) § 1543; 1 Preston on Estates, 70; Coke on Littleton, 265, note 213; 2 Crabb on Real Prop. 966.

[9] A remainder is vested when throughout its continuance the remainderman, or the remainderman and his heirs, have the right to the immediate possession whenever and however the preceding estates may terminate. It is contingent if it is limited to take effect in possession upon an event which may not happen until after the termination of the particular estate. Kales on Estates, Future Interests, and Illegal Conditions and Restraints in Illinois, § 29; Gray's Rule Against Perpetuities (2d Ed.) § 101; Fearne on Contingent Remainders, 9 Butler's note (g). A contingent remainder is not an estate, but is merely the chance of having one, and cannot be the subject of sale, cannot be levied upon by legal process, and cannot be conveyed voluntarily by deed. Du Bois v. Judy, 291 111. 340, 126 N. E. 104, and cases cited. The deeds of Luther and Burrus Huston had, therefore, no effect to transfer the contingent remainder, and neither the bank nor Spiker obtained any title through them. The bank is the owner of the one-seventh interest in the fee which Burrus inherited from his father and of the life estate in the remaining sixsevenths conveyed to Burrus by the deed from the other heirs of John M. Huston. If Nora Huston dies before Burrus the contingent remainder will vest in the persons who will then be the heirs of John M. and Lydia J. Huston, but if Burrus dies before Nora the contingent remainder will be destroyed. In that event the reversion in the undivided six-sevenths of the land which remained in the grantors in that deed who were the heirs of John M. Huston will remain in them or their heirs, devisees, or assigns.

The decree is reversed, and the cause is remanded to the circuit court of Henderson county, with directions to enter a decree in accordance with this opinion.

Reversed and remanded, with directions.