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lage of Teutopolis, 131 Ill. 552, 23 N. E. 651. | 3. WILLS (§ 634*)-REMAINDER AFTER LIFE
 Before the vacation of the street on this strip by the ordinance of 1905, the interest of the village of River Forest in the land in question had been held to be an easement, and upon such vacation of the street appellant, as the owner in fee of the street so vacated as well as the owner of the abut
ting land, was entitled to the land in controversy. Helm v. Webster, 85 Ill. 116: Helm v. Webster, 85 Ill. 116; Thomsen v. McCormick, 136 Ill. 135, 26 N. E. 373; Chicago & Eastern Illinois R. Co. v. Clapp, 201 Ill. 418, 66 N. E. 223; Bell v. Mattoon Waterworks Co., 245 Ill. 544, 92 N. E. 352, 137 Am. St. Rep. 338, 19 Ann. Cas.
The question is raised by both counsel in their briefs as to the interest of appellant in
the south half of Lake street between the Desplaines river and Oak avenue. That question is not in this record, and we express no opinion concerning it. It is not liable to arise in any practical way as long as Lake street continues to be used as a public high
 Where a municipality undertakes to take possession of a street to which it has no right, the proper remedy is injunction. City of Peoria v. Johnston, 56 Ill. 45; McIntyre v. Storey, 80 Ill. 127. Under these authorities the facts in this record authorized a court of equity to grant the relief prayed for. The circuit court erred in dismissing the bill for want of equity. The decree of that court will therefore be reversed, and the cause remanded, with directions to en
ter a decree in accordance with the prayer of
Reversed and remanded, with directions.
(259 Ill. 262.)
BURKE et al. v. BURKE et al.
(Supreme Court of Illinois. June 18, 1913.)
1. TRUSTS (§ 21*)-VALIDITY-CERTAINTY AS TO SUBJECT-MATTER.
Where a testator devised the rents and income from his real estate to his wife for her life, with power to sell the real estate, or any of it, if she should deem it necessary in order to supply herself with the comforts and necessities of life, and directed that upon her death the real estate remaining should be sold and the proceeds paid to a church parish for the erection and support of a parish school, the power of disposition given to the widow did not render the subject-matter of the trust for the erection and support of the school uncertain, so as to invalidate the trust.
[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 29, 30; Dec. Dig. § 21.*] 2. TRUSTS (§ 10*)
VALIDITY PROPERTY WHICH MAY BE SUBJECT OF A TRUST. Any right, interest, or thing which may be the subject of property, or which the law recognizes as valuable, may be granted or transferred in trust.
[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 8; Dec. Dig. § 10.*]
WILLS ($$ 600, 616*)-CONSTRUCTION-NATURE OF ESTATES CREATED "LIFE ESTATE" OR "FEE SIMPLE."
A devise of land with general power to dispose of it passes the "fee simple," but a devise for life, with power to dispose of the reversion, passes an estate for life only.
[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1335-1339, 1418-1430; Dec. Dig. §§ 600, 616.*
For other definitions, see Words and Phrases, vol. 3, pp. 2708-2710; vol. 8, p. 7662; vol. 5, pp. 4153, 4154.]
6. LIFE ESTATES (§ 23*)-SALES AND CONVEY
ANCES BY LIFE TENANT.
Where a life tenant of real estate was giv en power to sell the real estate, or any part, if she should deem it necessary in order to supply herself with the comforts and necessities of life, any exercise of the power of alienation without reference to the condition imposed would be restrained by a court of equity.
[Ed. Note.-For other cases, see Life Estates, Cent. Dig. §§ 21, 42-45; Dec. Dig. § 23.*] 7. CONVERSION (§ 15*)-DIRECTION IN WILL TO SELL.
Where a will directed that upon the death of the testator's wife his real estate should be sold and the proceeds paid to a church parish for a specified purpose, the gift was one of personal property.
[Ed. Note. For other cases, see Conversion, Cent. Dig. §§ 28-37, 52; Dec. Dig. § 15.*1 8. PERPETUITIES (§ 4*)-SUSPENSION OF PowER OF ALIENATION OF PERSONAL PROPERTY. A bequest in trust of an amount to be placed on interest and the income used for the perpetual care of burial lot was void, as violative of the rule against perpetuities.
Cent. Dig. §§ 4-44; Dec. Dig. § 4.*]. [Ed. Note.-For other cases, see Perpetuities,
9. CHARITIES (§ 12*)-PURPOSE OF GIFT-EDU
A bequest for the founding and maintenance of a school, under the control of a church parish, was for a public charity, although the instruction might not be gratuitous, and the branches to be taught were not specified.
[Ed. Note.-For other cases, see Charities, Cent. Dig. § 36; Dec. Dig. § 12.*] 10. CHARITIES (§ 16*)-PURPOSE OF GIFTPRAYERS OR MASSES.
The saying of masses for the soul of a testator, his wife and son, which was made a condition of a bequest in trust, was a charitable purpose.
[Ed. Note.-For other cases, see Charities, Cent. Dig. § 40; Dec. Dig. § 16.*]
11. CHARITIES (8 47*)-TRUSTEES
MENT BY COURT.
A bequest to an unincorporated church parish for the erection and maintenance of a school by such parish was not void, since courts of equity have original and inherent jurisdiction over charities, independent of statutes, and may appoint a trustee to carry out a charitable purpose, if no donee is named, or if the donee named is incapable of taking the property. [Ed. Note.-For other cases, see Charities, Cent. Dig. § 85; Dec. Dig. § 47.*] 12. WILLS (8 81*)-PARTITION-INVALIDITYEFFECT.
APPOINT- | expenses of administration, gave two legacies to be used in saying masses for the souls of the dead. It then gave all the residue of the personal property to the widow. The fifth and sixth clauses of the will are as follows: "Fifth. I give, devise and bequeath to my said wife all the rents and income from all the real estate of which I die possessed, so long as she may live, she to have the right to occupy or lease said real estate as she may prefer, and to keep the same in good repair and condition and pay all taxes and assessments levied or assessed thereon; and in case at any time she shall deem it necessary to sell said real estate, or any part thereof, in order to supply herself with the comforts and necessities of life, I hereby empower her with full right, power and authority to make such sale and to convey said
Where a will shows a complete and connected plan for the disposition of the whole estate, its valid provisions must be rejected with the invalid, if the latter are of such a character as to destroy the testator's scheme, or if the enforcement of the valid provisions would result in injustice.
[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 201, 202; Dec. Dig. § 81.*] 13. WILLS (§ 81*)-PARTITION—INVALIDITY- property so sold as her own. EFFECT.
Where a testator devised real estate worth $30,000 to his wife for life, with power to sell and convey if she deemed it necessary in order to supply herself with the comforts and necessities of life, and directed that upon her death the real estate remaining should be sold, $500 paid to a church parish, the income of which was to be used for the perpetual use and keeping of a burial lot, and the balance paid to such parish for the erection or support of a school by such parish, the invalidity of the trust for the care of the burial lot did not render invalid the trust for the school, in view of trifling amount of the bequest for the burial lot as compared with the whole estate.
[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 201, 202; Dec. Dig. § 81.*]
Appeal from Circuit Court, Whiteside County; Frank D. Ramsay, Judge.
Bill in equity by Mary Burke and others against Margaret Burke and others. a decree in favor of complainants, defendants appeal. Reversed and remanded, with directions.
DUNN, J. John F. Burke died on December 24, 1910, leaving a widow, Margaret Burke, his mother, Mary Burke, and two brothers and four sisters, his heirs. He owned personal property valued at $450, two lots in the city of Sterling, on which was a dwelling house which he occupied with his wife as a residence, and a farm of 160 acres, having a rental value of $7 an acre; all of said real estate being worth $30,000. He and his wife were members of the Roman Catholic church, and she was, and still is, a member of St. Mary's Catholic parish of Sterling, Ill. He left a will, which was admitted to probate, in which his wife was named as executrix, without bond. Letters testamentary were issued to her, the estate was fully administered, and the executrix discharged. The will, after providing for the payment of the testator's debts and funeral expenses and the
"Sixth. Upon the death of my said wife it is my desire that my real estate at the time remaining be sold and of the proceeds the sum of five hundred dollars ($500) be given to Saint Mary's Catholic parish of Sterling, Whiteside county, Illinois, said sum to be placed on interest and the income therefrom to be used for the perpetual care and keeping of my burial lot in Calvary cemetery of said Saint Mary's parish, the balance thereof to be given said Saint Mary's parish of Sterling, Illinois, for the erection or support of a school to be erected and maintained
by said parish in said city of Sterling; said bequest for said school being made upon condition that five masses be said annually from and after the death of my said wife, for the peaceful repose of the souls of my said wife, Margaret Burke, my son, Thomas Francis Burke, and myself."
The mother and other heirs at law of the testator filed a bill against the widow, St. Mary's Catholic parish, the pastor and certain members of the parish, and the Catholic bishop of Rockford, praying the court to declare that the sixth clause of the will was null and void, and to decree the property mentioned in it to the heirs. An answer was filed, the cause was heard upon a stipulation as to the facts, and the court rendered a decree that the sixth paragraph of the will is null and void, and that all of the real estate is intestate property, subject to the interest and power given to Margaret Burke by the fifth paragraph of the will. An appeal has been taken from this decree.
 The intention of the testator is plain, and it ought to be carried out, unless to do so would violate some fixed rule of law. The circuit court found that by reason of the power to sell the real estate, given to the life tenant by the fifth paragraph of the will, the subject-matter of the trusts attempted to be created in the sixth paragraph is uncertain, and the sixth paragraph is therefore void. It is argued that because the widow, in the exercise of the power of sale, may dis
[2-4] The fact that a trust is involved does not affect the question. The principle is that, having granted the whole dominion of the property, nothing remains for the grantor to give, in trust or otherwise. The uncontrolled ownership of property precludes any conditions as to its disposition or use. In general, any right, interest, or thing which may be the subject of property may be granted in trust. Every kind of vested right which the law recognizes as valuable may be transferred in trust. Perry on Trusts, §§ 67, 68. The law is well settled that an estate may be
pose of the real estate or some part of it, an | prior demands upon it before its application uncertainty exists as to the subject-matter to the purposes of the trust renders the subof the trust, and the cases of Mills v. New-ject-matter of the trust uncertain, but that berry, 112 Ill. 123, 1 N. E. 156, 54 Am. Rep. there is no fund which can be the subject213, and Wilce v. Van Anden, 248 Ill. 358, matter of a trust, where its application to 94 N. E. 42, 140 Am. St. Rep. 212, 21 Ann. the purposes of the trust depends upon the Cas. 153, are relied upon as supporting this absolute and unconditional discretion of the position. This is a misapprehension of what person in control of the fund. In such case was decided in those cases. They recognize there is nothing which a court of equity can and apply the established rule that the sub- lay hold of-nothing binding on the conject-matter of a valid trust must be certain. science. The chancellor cannot direct what But the rule is not violated in the will now disposition one shall make of property which under consideration. In Mills v. Newberry, is given to him to dispose of as he chooses. supra, the testatrix devised and bequeathed This was the character of both the cases cited to her mother all the property of the testa- and of the authorities on which the opintrix, "upon the express condition, however, ions in those cases rely. Wherever a clear that she devise, by will to be executed before discretion or choice to act or not to act is receiving this bequest, so much thereof as given, wherever the prior dispositions of the shall remain undisposed of or unspent at the property impart absolute and uncontrollable time of her decease, to such charitable insti- ownership, wherever the trustees have an tution for women, in said city of Chicago, as option to withdraw the funds from the purshe may select." The mother declined to exe- poses of the trust and apply them in their cute a will in accordance with the devise, own discretion, the court cannot execute such and therefore could take nothing under her a trust. This was the character of both the daughter's will. She was, however, her cases cited. The rule laid down in them goes daughter's only heir, and there was no resid- to this extent, and no farther, and is amply uary clause in the will. It was claimed that sustained by the numerous authorities cited. a trust in favor of charity attached to the property in the mother's hands, and it was held that the language was sufficient to create a trust with respect to such property as may be the subject of a trust. The insuperable difficulty which the court found to the creation of the trust was the uncertainty as to the subject-matter. The mother having the property absolutely, with full power of expending and disposing of it unconditionally, there was nothing to which a trust could attach. The question whether there should be any property or not for the trust to operate on was in the absolute discretion of the moth-given to a person for life, with power to sell er, and there was nothing which equity could and convey the fee, and that a remainder enforce. The case of Wilce v. Van Anden, may in such case be limited in fee after the supra, cites Mills v. Newberry, supra, to termination of the life estate. Henderson v. sustain the proposition that the trust in that Blackburn, 104 Ill. 227, 44 Am. Rep. 780; case was void, because it was uncertain that Walker v. Pritchard, 121 Ill. 221, 12 N. E. there would be any part of the trust fund 336; Skinner v. McDowell, 169 Ill. 365, 48 remaining at the death of the annuitants in N. E. 310, 61 Am. St. Rep. 183; Saeger v. the hands of the trustees, as at that time it Bode, 181 Ill. 514, 55 N. E. 129. A remainder might be entirely exhausted in the payment of so limited is vested, though subject to be deannuities. The latter case adds nothing to feated by the exercise of the power by the the former, but relies entirely upon it for this life tenant. The uncertainty as to the proposition. It may well be doubted whether amount of the reduction because of the disthe decision in Mills v. Newberry went so far position of the estate, or a part of it, for as it was carried in Wilce v. Van Anden, or the comfort or necessities of the life tenant, whether the trust in the latter case would and the consequent uncertainty as to the have been held void, because the payment of the annuities might exhaust the fund; but amount of the estate which may be undisit was clearly void for the second reason posed of, does not render the remainder constated in the opinion-that is, because of the tingent. Ducker v. Burnham, 146 Ill. 9, 34 N. discretion given to the trustees to give to E. 558, 37 Am. St. Rep. 135; Hawkins v. the brothers and sisters of the testator such Bohling, 168 Ill. 214, 48 N. E. 94; Harvard portion of the trust fund as they might think College v. Balch, 171 Ill. 275, 49 N. E. 543; best and devote the rest to charity. The Kirkpatrick v. Kirkpatrick, 197 Ill. 144, 64 proposition upon which Mills v. Newberry was decided (and the same applies to Wilce v. Van Anden) was, not that the possible ex
N. E. 267.
[5, 6] The devise here to the wife was expressly of the rents and income of the real
right to occupy the real estate if she preferred to. This was an express life estate. A devise of land with general power to dispose of it passes the fee simple; but a devise for life, with power to dispose of the reversion, passes an estate for life only. Dalrymple v. Leach, 192 Ill. 51, 61 N. E. 443. The power of disposition here is not unlimited, but is qualified, to be exercised only in case the life tenant shall deem it necessary in order to supply herself with the comforts and necessities of life. A court of equity would restrain any exercise of the power of alienation without reference to the condition imposed. Dalrymple v. Leach, supra. In a case of a devise of a life estate with a more liberal power of disposition than is the case here, we held that the life tenant could not give away the property or exercise the power without reference to the limitations. Bevans v. Murray, 251 Ill. 603, 96 N. E. 546. There is no uncertainty about the subjectmatter of the trust. It is all the real estate of the testator after the termination of the life estate of Margaret Burke, his widow. The whole estate may be defeated by the exercise of the power of Mrs. Burke in accordance with its conditions; but the estate is a vested estate in remainder, and a court of equity can and will protect the estate, if necessary, and enforce the trust.
[7, 8] The real estate is directed to be sold and the proceeds paid to St. Mary's Catholic parish. The gift is therefore one of personal property. Five hundred dollars of the amount is to be placed on interest and the income used for the perpetual care of the testator's burial lot in Calvary cemetery of said parish, the remainder to be used for the erection and support of a school to be erected and maintained by said parish in the city of Sterling. It is insisted that the trust for the perpetual care of the burial lot is void, and we so held in Mason v. Bloomington Library Ass'n, 237 Ill. 442, 86 N. E. 1044, 15 Ann. Cas. 603, on the ground that it violated the rule against perpetuities.
the instruction may not be gratuitous and the branches to be taught not specified, is a public charity, is held in Andrews v. Andrews, 110 Ill. 223. The saying of five masses annually for the souls of the testator, his wife and son, which is made a condition of the bequest, is a charitable purpose. Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. 527, 40 L. R. A. 730, 63 Am. St. Rep. 241.
 It is contended that the parish is an unincorporated association which cannot be a grantee or act as trustee, and that the bequest cannot, under such circumstances, be sustained as a charity. In support of this proposition reliance is placed upon Philadelphia Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. 1, 4 L. Ed. 499, which sustains it. This decision was based upon the two propositions that the statute of charitable uses (43 Eliz. c. 4) was repealed by the Legislature of Virginia, and that charitable bequests, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot be established by a court of equity, independent of the 43 Eliz. The first proposition is not true in this state, and as to the second the decision has been expressly overruled in Kain v. Gibboney, 101 U. S. 362, 25 L. Ed. 813. The original and inherent jurisdiction of courts of equity over charities, independent of the statute, is now recognized in most of the states. Virginia, Maryland, and North Carolina are exceptions. In this state deeds made to the rector, church wardens, and vestrymen of an unincorporated church for church purposes and to pay the salary of the rector were held not void for want of a grantee capable of taking the deed. Alden v. St. Peter's Parish, 158 Ill. 631, 42 N. E. 392, 30 L. R. A. 232. Where a gift is made to a charitable use and no donee is named, or the donee named is incapable of taking the property, the gift will not fail, but a court of equity may appoint a trustee to carry out the charitable purposes.
[12, 13] It is argued that the trust for the [9, 10] The testator and his wife were mem- care of the burial lot was a part of the tesbers of St. Mary's Catholic parish of Ster- tator's scheme for the disposition of his enling, Ill., which is an unincorporated re- tire estate, and that to enforce the rest of ligious society and a duly established parish the will, while rejecting this part, would be of the diocese of Rockford of the Roman to violate the testator's wishes and to make Catholic Church, having about a thousand a new will for him. The rule is, where the members, who are subject to constant change by reason of deaths, births, and removals. The parish has no property in its own name, but its property is all held in the name of the bishop, and cannot be diverted from the use of the parish. A parish school is an integral part of every parish of the Roman Catholic Church, and it is the duty of St. Mary's parish, under the rules of the church, to maintain such a school. The rules of the church provide what branches shall be taught in such school and how it shall be conducted. That the founding and maintenance of a
will shows a complete and connected plan for the disposition of the whole estate, that the valid provisions of the will must be rejected with the invalid, where the latter are of such a character as to destroy the testator's scheme, or where the enforcement of the valid provisions would result in injustice. Barrett v. Barrett, 255 Ill. 332, 99 N. E. 625. But here the invalid bequest for the care of the burial lot is trifling in amount compared to the rest of the estate. The school, it is manifest, was the testator's great concern after his wife was taken care of.
his intention to take his bequest away from the school and bestow it on his heirs, thus entirely disregarding his wishes, than substantially to carry out his will as he made it. The decree will be reversed and the cause remanded to the circuit court, with directions to enter a decree finding the provisions of the will valid, except as to the bequest of $500 for the care of the burial lot, and, as to that, finding it invalid.
character the trial court is authorized to apply more appropriate correctives.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] 2. TRIAL (§ 132*)-MISCONDUCT OF COUNSEL -CURE OF ERROR.
A judgment should not be reversed for misconduct of counsel for the prevailing party in alleging facts which no evidence tends to establish if from the nature of the case, the retraction of counsel, and the admonition of the court it appears that the natural effect of the
Reversed and remanded, with directions. misconduct has been averted.
(259 Ill. 145)
HOOPESTON DRAINAGE DIST. v. HONEY-
(Supreme Court of Illinois. June 18, 1913.)
Assignments of error relating only to a purported bill of exceptions, which has been stricken from the record, cannot be reviewed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2955; Dec. Dig. § 555.*] Error to Vermilion County Court; Law rence T. Allen, Judge.
Proceedings for annexation of the Hoopeston Drainage District. an order of annexation, and A. brings error. Affirmed.
COOKE, C. J. This is a writ of error to review an order of the county court of Vermilion county annexing certain territory to the Hoopeston drainage district.
When filed, the record in this case contained a purported bill of exceptions. Upon the consideration of a motion by defendant in error at a former term, this bill of exceptions was found not to be properly a part of the record, and was expunged therefrom. All of the assignments of error which have been argued relate to matters presented only by the purported bill of exceptions. As these matters are not now open for our consideration, and no other errors are complained of, the judgment of the county court is affirmed. Judgment affirmed.
(88 Ohio St. 150)
DRISCOLL v. CINCINNATI TRAC-
STATE v. TUTTLE.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 315, 316; Dec. Dig. § 132.*]
Error to Circuit Court, Hamilton County. Error to Circuit Court, Marion County. Two actions, one by one Driscoll against the Cincinnati Traction Company, the other
an action wherein one Tuttle was convicted of assault. From a reversal of a judgment for plaintiff in the former case and of a conviction in the latter case, plaintiffs bring error. Judgment of the circuit court in both cases reversed, and the original judg
Stricker & Johnson, of Cincinnati, for for Cincinnati Traction Co. Mouser & MoDriscoll. Kinkead & Rogers, of Cincinnati, loney and Charles L. Justice, both of Marion,
for the State. H. E. Hill and Crissinger & Guthery, all of Marion, for Tuttle.
PER CURIAM. However wide may have been the difference between the original cases out of which these proceedings in error arose, judgments of reversal were rendered by the circuit courts in both cases because of the misconduct of counsel for the prevailing parties, and the propriety of the judgments of reversal should be tested by considerations which are substantially identical. In both cases the misconduct for which the circuit court reversed the judgments consisted of remarks, obviously improper, which counsel made in presenting the case to the jury. Remarks of counsel to jury always constitute misconduct when they either tend to diminish respect for the administration of justice or to subject the claims of the adverse party in the case to prejudice not warranted by the case actually presented for determination.
 But misconduct of the former character may constitute a very grave offense against the administration of justice without entitling the adverse party to a new trial if he suffers only in common with his fellows, all of whom are entitled to have proceedings in courts conducted with such decorum and propriety as to win the respect of all observers. For offenses of that character a new edy to which the judge of the trial court is trial is an expensive and inappropriate remA judgment should not be reversed for such not driven by any necessity; there being misconduct of counsel for the prevailing party within his power modes of correction which as tends only to discredit the administration of justice without subjecting the claim of the ad- will both secure the orderly conduct of verse party to prejudicial considerations not procedure and avert the delays incident to involved in the case. For misconduct of that mistrials. But, for such remarks as natural
(Syllabus by the Court.)
1. APPEAL AND ERROR (§ 1060*)-GROUND FOR REVERSAL-MISCONDUCT OF COUNSEL.