Volume 254 — Illinois Reports

<p>x. Wu-LS—circumstances surrounding testator may be considered. In ascertaining the intention of the testator, the relation of the parties, the nature and situation of the subject matter, the purpose of the instrument and the motives which might reasonably be supposed to have influenced the testator in the disposition of his property may be considered.</p> <p>2. Same—rule excluding evidence to explain will does not extend to circumstances surrounding testator. The rule concerning the exclusion of evidence offered to explain written instruments does not extend to the exclusion of the circumstances in which a testator was placed or the collateral facts surrounding him at the time the will was executed.</p> <p>3. Same—when the-word "grandchildren” will be held to mean "step-grandchildren.” A devise to the testator’s “grandchildren” will be held to mean the grandchildren of the testator’s second wife, where it appears that the testator left no children or grandchildren of his own but that he always referred to his second wife’s grandchildren as his grandchildren.</p>

<p>1. Habeas corpus—party in custody under a judgment may be discharged when judgment ceases to be operative. One who is lawfully in custody under a judgment is entitled to his discharge on writ of habeas corpus in case the judgment becomes inoperative subsequent to his imprisonment.</p> <p>2. Same—on habeas, corpus the court may determine whether judgment of other court has been paid. The rule that no court, upon writ of habeas corpus, can review or overturn the judgment of another court which had jurisdiction of the parties and the subject matter, does not preclude an inquiry on habeas corpus into the question whether the judgment of another court has been paid or has otherwise ceased to be operative.</p> <p>3. Same—when a prisoner is entitled to discharge. One imprisoned by virtue of an execution against' the body, issued on a joint judgment in an action for damages for false arrest, is entitled to be discharged on habeas corpus when his co-defendant pays the joint judgment; and the finding of the court in the habeas corpus suit that the judgment has been paid cannot be reviewed in a subsequent mandamus proceeding to compel the sheriff to re-arrest the defendant on the original execution. (People v. Zimmer, 252 Ill. 9, distinguished.)</p>

<p>1. Cloud on title—cloud on title defined. A cloud on title is a semblance of a title, either legal or equitable, or a claim of an interest in lands appearing in some legal form but which is, in fact, unfounded.</p> <p>2. Same—what claim constitutes cloud on title. Where a deed provides that the land shall revert to the grantor, her heirs and assigns, if the grantee shall fail to pay the taxes, a claim of title by the heir of the grantor based upon the forfeiture clause of the' deed and the redemption by him of the property from a tax sale, as shown by the tax judgment, sale and redemption record, is such a claim as constitutes a cloud upon the title of the grantee.</p> <p>3. Forfeitures—prevention of forfeitures is within jurisdiction of equity. Forfeitures are not regarded with favor, and their prevention is within the protecting care of a court of equity wherever wrong or injustice will result from their enforcement.</p> <p>4. Same—when forfeiture for non-payment of taxes will be relieved against. Forfeiture of title for non-payment of taxes, under a provision of a deed that the title should revert to the grantor, her heirs' and assigns if the grantee failed to pay the taxes, will be relieved against by a court of equity where the default in payment was not willful but was the result of a mistaken belief by the grantee as to when the taxes could be paid, and where he did all he could, by tender and otherwise, to effect a second redemption from the tax sale.</p>

<p>Writ of Error to the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.</p>

<p>Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding.</p>

<p>1. Criminal law—clear proof of an alleged admission upon which conviction is based is required. In a prosecution for murder, where the evidence is entirely circumstantial and the verdict of conviction must rest almost wholly upon an alleged voluntary admission made by the accused to the witness under circumstances rendering the making of it highly improbable, the fact that the admission was made must be clearly proved before it can be accepted as the basis of a conviction.</p> <p>2. Same—the Supreme Court cannot sustain conviction if evidence leaves question of guilt in serious doubt. Notwithstanding the jurors are the judges of the evidence in criminal cases, it is the duty of the Supreme Court to examine the evidence when called upon to do so, and if, after a careful consideration, there remains a serious and well founded doubt of the defendant’s guilt, leading to the belief that the verdict was not based upon a calm and dispassionate consideration of the evidence, the judgment must be reversed.</p>

<p>Original petition for mandamus.</p>

<p>Writ oE Error to the County Court of Cook county; the Hon. William L. Pond, Judge, presiding.</p>

<p>1. Contracts—it is the function of courts to enforce contracts as made. Parties competent to contract may enter into such agreements with each other as they see fit, and it is the purpose of the law and function of the courts to enforce their contracts if not in violation of law or opposed to public policy.</p> <p>2. Same—when construction of contract is a question for the court. Where a contract is in writing and there is no question involving proof as to the construction put upon it by the parties, the question of its construction is for the court.</p> <p>3. Benefit societies—when statements will not he regarded as warranties. If there is anything in the application or benefit certificate tending to show that the answers and statements were not intended to be regarded as warranties, such answers and statements as are not material to the risk and are honestly made in the belief that they are true present no obstacle to a recovery on the certificate even though they are untrue.</p> <p>4. Same—rule where statements are expressly declared to he warranties. Where an application for life insurance is expressly declared to be a part of the contract and the statements therein contained are warranted to be true such statements will be deemed material whether they are so or not, and if shown to be false there can be no recovery on the contract, however innocently the statements may have been made.</p> <p>5. Same—what answer to question in application is material to the risk. The answer, “Seven years,” given to a question as to how long it had been since the applicant was attended by a physician or had professionally consulted one, is material to the risk and does not relate to a matter of opinion or judgment concerning which there might be a mistaken but honest belief.</p> <p>6. Same—what question in application is not ambiguous. The question, “How long 'since you were attended by a physician or professionally consulted one?” asked of an applicant for membership in a benefit society, is not ambiguous, but can only mean how long had it been since the applicant had last been attended by a physician or consulted one.</p> <p>7. Same—language cannot be perverted to raise an ambiguity. The rule that ambiguous language in an insurance contract must be construed most strongly against the insurer does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.</p> <p>8. Special findings—general verdict inconsistent with special ■findings cannot stand. A general verdict against a benefit society for the amount of the benefit certificate cannot stand where the jury found specially that a fact material to the risk and within the knowledge of the member was contrary to the answer which she gave in her application.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding.</p>

<p>Appear from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Massac county; the Hon. William N. Sutler, Judge, presiding.</p>

<p>Appeal from the County Court of Rock Island county; the Hon. R. W. Olmsted, Judge, presiding.</p>

<p>Appeal from the Circuit Cdurt of Williamson county; the Hon. William W. Clemens, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Logan county; the Hon T. M. Harris, Judge, presiding. ■ In this case the executors of the last will of Baker P. Andrews, deceased, formerly a resident of Logan county, Illinois, filed a petition in the county court of that county for a citation against A. J. Stinson and Nelson T. Hand, as surviving partners of said Andrews, to cause them to come into that…

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Redemption—judgment creditor acquires only the judgment debtor’s title. Where the husband and wife are tenants in common and execute a note and mortgage,—the wife signing the note as surety for the husband,—and the mortgage is foreclosed, a judgment creditor of the husband only acquires the husband’s interest on redeeming from the foreclosure sale.</p> <p>2. Same—when wife is not liable to contribute portion of redemption money. Judgment creditors of the husband who redeem from the foreclosure of a mortgage upon land in which the husband and wife were tenants in common do not acquire the wife’s interest in the land, where the note and mortgage which she signed were given to secure money borrowed by the husband to pay his individual debts; and while the redemption frees the wife’s interest from any lien on account of the mortgage sale, it does not raise any liability on her part to contribute to the payment of the redemption money as a condition to having the deeds issued under the redemption set aside as a cloud upon her title.</p>

<p>Writ or Error to the Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Max EberhardT, Judge, presiding.</p>

<p>Appear from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Greene county; the Hon. James A. Creighton, Judge, presiding.</p>

Heard, Judge, presiding. This was a bill in chancery filed by the appellants, John J. Genz and Mathilda Thode, against the appellees, in the circuit court of Jo Daviess county, to impeach a decree in partition for error upon its face, entered by the circuit court of Jo Daviess county in the year 1874, and for other relief.

<p>1. Evidence—rule as to admission of testimony upon promise of counsel to shozv its materiality. Testimony may be admitted upon the promise of counsel to subsequently show its materiality to the issues involved, and in such case if enough evidence tending to show such materiality is introduced to make it a fair question for the jury the testimony should not be excluded.</p> <p>2. Criminad daw—when refusal to exclude evidence because not connected zmth defendant is error. Evidence of the sale of a revolver by a pawnbroker, admitted in a murder trial upon the promise of the prosecution to connect the evidence with the defendant, should be excluded even though there may be some testimony tending to show that the sale was made to the defendant, where there is no evidence that the revolver with which the deceased was killed was the one which the witness sold.</p> <p>3. Same—when giving instructions stating law of self-defense is error. Giving instructions offered by the prosecution stating the law of self-defense is error, where the defendant made no claim that the killing was in self-defense but contended throughout that the deceased was accidentally shot with his own revolver while attempting to shoot the defendant; nor can the giving of such instructions be justified because the prosecution proved an alleged admission by the defendant tending to show that he shot the deceased in self-defense, where the defendant denies that he made the admission testified to.</p> <p>4. AppEads and errors—-when objection to instruction may be considered though abstract does not contain all instructions. A claim that an instruction mis-states the law cannot be considered unless the abstract contains the whole series of instructions; but such is not the rule where it is claimed that the instruction should not have been given at all because it presented an issue not involved in the case, and it is admitted that the complaining party asked no instruction on such issue.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>1. Appeals and errors—Supreme Court is bound by facts as found by Appellate Courfs judgment. A finding in the judgment of the Appellate Court that a certain note was executed by the maker without consideration and was executed by him and received by the holder upon an agreement that the maker should never be called upon to pay it, is a finding of an ultimate fact which the Supreme Court'is bound to accept as true.</p> <p>2. Bills and notes—when a note is invalid in hands of payee. A note executed without consideration and received by the payee upon an agreement that the maker should never be called upon to pay the same is invalid in the hands of the payee and cannot he enforced by him against the maker.</p>

Writ oE Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.

<p>1. Deeds—rule where deed describes only one of several tracts conveyed by former deed. Where a deed conveys two or more tracts of land by separate descriptions, a subsequent deed or mortgage which describes but one of such tracts will convey only that tract even though the-instrument recites that it is the same land conveyed by the former deed, and in such case the title to the tract or tracts undescribed is not affected by the conveyance.</p> <p>2. Same—when deed conveys the fee and not a mere easement. A deed conveying a certain tract of land by metes and bounds, following which description is the recital, “I also give ten feet wide adjoining on the south of this tract, or the strip between this tract and the alley I gave in my deed of September 3, 1881, to John Lorenz, for alley purposes,” conveys the fee of the strip to the grantee even though the words “for alley purposes” be construed as referring to such strip, and in such case the grantor has no interest remaining therein which he can convey to another.</p>

Writ of Error.to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.</p>

<p>1. Specific performance—contract, not signed by wife, to convey homestead premises is not void. A contract by which the owner of the fee agrees to convey his homestead premises is not void even though not signed by the wife but may be enforced in equity as to the excess above the value of the homestead estate; and if the proposed vendor, within the time fixed by the contract, tenders a general warranty deed, in which the wife unites, releasing her dower and homestead rights, the objection that the wife did not sign the contract is no defense to specific performance.</p> <p>2. Same—when a provision for forfeiture of deposit does not limit remedy. A provision in a contract for the exchange of Beal estate that each party shall deposit a certain sum to insure the faithful performance of the contract on his part, which he agrees to forfeit if he fails to carry out his contract, is not intended to limit the remedy against the defaulting party to the recovery of his deposit, there being nothing in the contract to indicate that the parties were to have the option of performing the contract or forfeiting the deposit.</p>

<p>1. Contracts—when an executory contract is terminable at the will of either party. An executory contract whereby a brewing company agrees to furnish beer to a bottling company is terminable at the will of either party, where no definite time is fixed during which the contract shall continue in force.</p> <p>2. Same—when contract lacks mutuality. An executory contract between a brewing company and a bottling company lacks mutuality where the only obligation incurred by the bottling company is to pay for, bottle and market the beer as the brewing company’s product so long as it furnished beer satisfactory in quality and in such quantities as the trade demanded, thus leaving it in the power of the bottling company to terminate the contract at any time, either by claiming the beer was not satisfactory or by so decreasing or increasing its demand that the performance of the contract by the brewing company would be either unprofitable or impossible.</p>

<p>1. Taxes—all property is subject to taxation unless exempt by law. All property in the State is subject, to taxation unless relieved therefrom by the constitution and statutes passed in accordance therewith.</p> <p>2. Same—tax exemption cannot be raised by judicial construction. • One claiming the benefit of a statute exempting property from taxation must clearly show that his property is within the contemplation of the law, as the statute must be strictly construed, and if there is any doubt upon the subject the doubt must be resolved against the exemption.</p> <p>3. Same—the primary use of property determines its character. In determining whether property falls within the terms of an exemption from taxation, whether constitutional or statutory, it is the primary use to which the property is put which must be considered, and not its secondary use.</p> <p>4. Same—rule for determining whether property of church is exempt from taxation. If property is devoted primarily to religious purposes, the fact that it is incidentally used for a secular purpose does not destroy the exemption from taxation under the constitution and the statute; but if the primary use is secular, the fact that there is an incidental use for religious purposes does not bring the property within such exemption.</p> <p>5. Same—a parsonage is not exempt from taxation tinder the present law. The primary use of a church parsonage is a home for the pastor, and the fact that some parts of the parsonage are used for purposes in connection with the pastor’s work or the work of the church does not render the parsonage exempt from taxation under the act of 1909, which substantially follows the language of the constitution and exempts “property used exclusively for religious purposes.”</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William H. McSurEly, Judge, presiding.</p>

Appear from the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Willard M. Mc-FwpN, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Writ OE Error to the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Criminal law—judgment may require a prisoner to work out ñne after expiration of maximum term of imprisonment. Under paragraph i68Z> of the Criminal Code, a prisoner who is found guilty of obtaining money by false pretenses and who is sentenced to imprisonment and to pay a fine may be required by the judgment, if the fine is not paid, to work out such fine and all costs in the house of correction at the rate of $1.50 per day after the term of imprisonment has expired, even though the term of imprisonment imposed is the maximum term provided - by law for the offense. (Berkenfield v. People, 191 Ill. 272, followed.)</p> <p>2. Same—mere fact that a person is a pauper does not entitle him to he released from working out a Une. Even though there might be circumstances under which a person would be entitled to be released, under paragraph 455 of the Criminal Code, from working out a fine in the house of correction, yet the mere fact . that he is a pauper and has no money to pay the fine does not entitle him to such release.</p> <p>3. Same—paragraph 168b of the Criminal Code applies to case where prisoner is unable to pay ñne in money. Paragraph 168& of the Criminal Code, which authorizes the court, in proper cases, to require -that a fine be worked out by the prisoner at the rate of $1.50 per day, was intended to enable the State to collect, in labor, fines that cannot be collected by execution, and applies as well to a case where the prisoner is able to pay in labor but unable to pay in money, as to a case where the prisoner is able to pay in money but is unwilling to do so.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Plats—no express declaration is necessary to show dedicartion for street. A survey and plat alone, without any express declaration, are sufficient to show a dedication of land for a street if they manifest an intention to devote the land to the public use for that purpose.</p> <p>2. Same—effect where a plat is not a statutory one. A plat which is not a statutory one has no effect as a conveyance to the public of the strips dedicated on the plat as streets but constitutes a mere offer to dedicate, and if the offer is accepted the public acquire an easement of passage but the fee remains in the owner, and passes, subject to easement, to his grantees of abutting lots.</p> <p>3. Deeds—zvhen grant of land carries .fee to center of highzvay. A grant of land carries the fee to the center of the highway by which the land is bounded, if the grantor owns the fee, unless the language shows an intention to exclude the highway; and it makes no difference if the land is described by metes and bounds, as a lot having a certain number or as an estate having a certain name.</p> <p>4. Tax deeds—when a tax deed is void. If land has been assessed by a proper description other than that under which it is sold at a tax sale and the taxes extended on such proper description are paid before the tax sale, then the assessment of the land under the other description is double and the tax sale and deed based thereon are void.</p> <p>5. Same—when holder of tax deed is not entitled to reimbursement. If the taxes extended against land under an assessment based upon a proper description have been paid before a sale of the land for taxes assessed under another description, the holder of a tax deed based upon such sale is not entitled to reimbursement.</p> <p>6. Same—tender is not necessary to fix liability for costs if the holder of a tax deed is not entitled to reimbursement. It is only where the holder of a tax deed is entitled to reimbursement as a condition precedent to granting the relief sought by a complainant that a tender is required as a condition of imposing a liability upon the defendant for costs.</p>

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Constitutional law—provision of the Municipal Court act concerning abbreviated forms is not invalid. The provision of the Municipal Court act authorizing the chief justice of that court to prescribe abbreviated forms of entries of orders is not invalid.</p> <p>2. Same—phwer to make rules for conducting the business of a cotirt is not legislative. The provision of the Municipal Court act authorizing the chief justice to prescribe abbreviated forms of entries of orders is not invalid as being a delegation of legislative power to the chief justice, as the power to make rules for conducting the business of a court is not legislative but judicial.</p> <p>3. Same—requiring party to work out fine for violating ordinance. is not against Federal constitution. The provision of the thirteenth amendment of the Federal constitution prohibiting slavery or involuntary servitude except as a punishment for crime, uses the word “crime’’ in its most comprehensive sense, and has no application to a judgment requiring a person to labor in a house of correction in payment of a fine for violating an ordinance.</p> <p>4. Judgments and decrees—provision of the Municipal Court act concerning abbreviated forms applies to entries of judgments. The provision of the Municipal Court act authorizing the chief justice of that court to prescribe abbreviated forms of entries of orders includes all orders, whether interlocutory or final, and applies to entries of final judgments.</p> <p>5. Same—when a judgment sentencing defendant to house of correction is not invalid for uncertainty. A judgment of the municipal court finding the defendant guilty of violating an ordinance and providing that he shall “stand committed to the house of correction” until his fine and costs are paid is not invalid because it does not specify what house of correction is meant, as the municipal court could not sentence him to any house of correction other than that of the city of Chicago; nor need the judgment specify whether the defendant shall work out his fine inside or outside of the house of correction.</p> <p>6. Same*—judgment must limit period of imprisonment in the house of correction to maximum term. A judgment sentencing a defendant to the house of correction to work out a fine for violating an ordinance must limit the term of such imprisonment so that it will not exceed the maximum of six months provided by the statute, and the omission of such element in an abbreviated form of an entry of judgment cannot be supplied by entering an amplified form.</p> <p>7. Same—when a reversal of judgment does not require a new trial. Where there is no assignment of error questioning the proceeding against the plaintiff in error for violating an ordinance up to the entry of the final judgment nor raising any question as to his guilt, a reversal of the judgment for its failure to limit the term. of imprisonment does not require that a new trial shall be awarded, but the cause will be remanded with leave to the city to move for a proper judgment on the finding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.</p>

<p>1. Undue influence—undue influence is not presumed from fact of illicit relations. Undue influence by an unmarried woman over a married man will not be presumed, as a matter of law, even though their relations may be illicit; but proof of such relations requires a close scrutiny of their acts in determining the question whether a gift of land from him to her was the result of the donor’s free choice or the undue influence of the donee.</p> <p>2. Same—burden of proving undue influence is upon party asserting it. Undue influence may be proved by circumstantial evidence and direct proof is not essential, but the burden of proving undue influence is upon the one who asserts it.</p> <p>3. Same—the proof must show tlvat influence overcame donor’s free will. To justify setting aside a gift of land upon the ground of undue influence by the donee over the donor, it must appear expressly, or by fair inference from the circumstances proven, that such influence was so exercised as to deprive the donor of his free will and cause him to make a disposition of the property which otherwise he would not have made.</p> <p>4. Same—what not ground for setting aside gift of land. The fact that the evidence has a tendency to show that the relations between the donor and donee were illicit does not justify setting aside a gift of land upon the ground of undue influence by the donee, where the evidence also shows that the donor was the dominating factor in the negotiations for the purchase of the land, and in the management thereof from its purchase until his death.</p> <p>5. Trusts—a resulting trust may be established by parol evidence. A resulting trust arises, not from the contract or agreement of the parties, but from their acts, and such trust may be established by parol evidence.</p> <p>6. Same—resulting trust must arise, if at all, when title vests. A resulting trust must arise, if at all, at the moment the legal estate vests, and no payment made will create a resulting trust unless at the moment the title passes the trust results from the transaction itself.</p> <p>7. Same—payment of consideration merely raises prima facie presumption in favor of resulting trust. Payment of the consideration merely raises a prima facie presumption in favor of a resulting trust, and it may be shown, to rebut such presumption, that it was the intention of both parties that the grantee should take the beneficial interest.</p> <p>8. Same—intention that grantee should take beneñeial interest need not be proved by express declarations. Intention on the part of the party paying the consideration that the party taking title Should take the beneficial interest may be shown not only by express declarations but lay the circumstances of the transaction.</p> <p>9. Same—when declarations of payor that farm was his are not admissible. In a suit against the holder of the legal title to establish a resulting trust in the heirs of the party who paid the consideration, declarations of the payor to the effect that the land was his are self-serving, and are not admissible in his favor, or in favor of those in privity with him, unless made at the time of the purchase, so as to form a part of the res gesta.</p> <p>10. Same—burden is -upon party seeking to 'establish a trust. The burden of proof is upon the party seeking to establish a resulting trust, and the evidence must be clear, unequivocal and unmistakable and establish the fact of payment by the alleged beneficiary beyond a reasonable doubt.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. Sheridan E. Ery, Judge, presiding.</p>

Writ or Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. TuT-hill, Judge, presiding.

<p>1. Registration os titee—a title acquired under section 6 of Limitation act may be registered. A title acquired under section 6 of the Statute of Limitations, concerning possession and payment of taxes for seven successive years under claim and color of title, is one which may be registered.</p> <p>2. Same—partition decree is color of title though it may be erroneous. A partition decree which confirms the report of the commissioners and purports to vest the title to the same extent as would a deed from a sole owner is color of title, even though the" decree may be erroneous and though all persons were not parties who should have been.</p> <p>, 3. Same—knowledge of defects in title or adverse claims does not necessarily mean bad faith. There may be good faith in the acquiring of claim and color of title notwithstanding actual notice of existing claims or liens, or knowledge of legal defects which prevent the title, ■ of which there is color, from being absolute.</p> <p>4. Same—when it is not error to permit titles of different parties to separate lots to be registered in one proceeding. Where the owner of several lots sells some of them after obtaining a decree registering title to all of them, and thereafter a third party is given leave to answer the petition for registration and set up a claim to an undivided interest in all the lots, it is not error for the court to permit the original petitioner and his grantee to file separate supplemental petitions and proceed to the determination of the whole controversy in the one proceeding.</p> <p>5. Same—registrar not entitled to have judgment or execution for fees. Under the act concerning the registration of land titles the court has power to allow fees for the registrar, but no judgment should be rendered or execution awarded in favor of the registrar for such fees.</p>

<p>Writ op Error to the Circuit Court of Marion county: the Hon. Jamps C. McBridp, Judge, presiding.</p>

<p>1. Corporations—there is a distinction between franchise of a corporation and its right to use streets. There is a distinction between the franchise of a corporation and its right to exercise its franchise in the streets of a city, as the former can emanate only from the State while the latter is a privilege granted by the city.</p> <p>2. Same—franchise of a lighting corporation exists independently of any action by city. The franchise of a gas or electric lighting corporation exists independently of any action by the city, but under the law such franchise cannot be exercised except by virtue of the license or permission given by the city.</p> <p>3. Same—franchise of w corporation cannot be assigned. The franchise of a corporation is not assignable for the reason that it is a grant of special power conferred by the State and cannot exist independently of the corporation itself.</p> <p>4. Same—mere sale of all the property of corporation docs not dissolve the corporation. A sale by a corporation of all its property does not dissolve the corporation, and all that will pass by such a sale is such property as is clearly vendible.</p> <p>5. Same—when a transaction between corporations is illegal. A transaction between corporations which involves not only a sale of the property of one corporation to the other, but also the assignment of its stock to a trustee for the purpose of putting it out of its power to thereafter engage in the business for which it was chartered, as a competitor of the purchasing corporation, is illegal, and confers no authority upon the purchasing corporation to exercise the street rights and privileges of the selling corporation.</p> <p>6. Same—gas and electric lighting corporations are quasi pub-, lie corporations. Gas and electric lighting corporations are quasi public corporations and the public has a greater and more direct interest in their management and conduct than in the case of a purely private corporation, as the lighting of a city is of great importance to the welfare and safety of the public, and such corporations are for that reason granted privileges with reference to the use of streets which are the equivalent of the power of eminent domain.</p> <p>7. Same—one public service corporation cannot contract with another to suppress competition. One public service corporation cannot, by contract with a competing public service corporation, divest the competing corporation of the power'to exercise its franchise and by tying up its stock prevent such competing corporation from again engaging in business.</p> <p>8. Same—zvhat is a violation of rule that one corporation can not hold stock in another. An attempt by one corporation to hold stock in another by purchasing in the name of another and having the legal title held in the name of another in trust for the benefit of the purchasing corporation is contrary to law and the public policy of Illinois.</p> <p>9- Same—a gas corporation has no power to purchase stock in other corporations. ,A corporation organized under the general Incorporation act “to furnish and sell gas, electricity and other lighting and heating substances for light, heat and power purposes, for public and private uses,” has no express power to purchase stock in other corporations, and as it is not necessary to make such purchase to carry into effect the object for which it was formed, such power it not given to it by implication.</p> <p>10. Same—when corporation cannot take advantage of Gas act of i8pf. In order for a corporation to avail itself of the authority given by the Gas act of 1897 to purchase or lease the property of another corporation, it must, at the time of availing itself of the benefits of the act, be in the actual business of furnishing gas to consumers, and it is not enough that it has been organized 'to engage in that business.</p> <p>11. Same—when doctrine of estoppel in pais is available in a quo warranto proceeding. In a quo warranto proceeding against a corporation having a franchise from the State to engage in the gas business, to require it to show by what right it is exercising its franchise in the streets of a certain city, the city is the real party in interest, and the doctrine of estoppel in pais may, in a proper case, be invoked as a defense.</p> <p>12. Same—when a city is estopped to oust gas company from use of streets. Where a city has for ten years permitted a gas corporation to do such things as the city had power to authorize originally and to expend large sums of money in attempting to comply with the requirements of the municipal authorities, the city is estopped to oust the corporation from continuing the exercise of its franchise merely because it was not granted permission by ordinance to use the streets; but such estoppel does not give the corporation an exclusive or irrevocable privilege in the streets, and it is still subject to the constitution and laws of the State and to the control of the city council acting thereunder.</p>

N. E. Worthington, Judge, presiding. A bill was filed in the circuit court of Peoria county by the Dime Savings and Trust Company and Leslie Robison, executors of the will of John Green Ballance and trustees imder its provisions, for a .construction of the will, and the court decreed that paragraphs 12, 13, 14, 15 and 16 were in violation of the rule against perpetuities and that the residuary property referred to in those paragraphs was intestate.

<p>Appeal from the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding.</p>

Writ or Error to the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.

Appeal -from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.

<p>Appeal from the County Court of Madison county; the Hon. J. E. Hillskotter, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>1. Winns—extrinsic evidence is not admissible to supply omissions in will. While surrounding facts and circumstances may be proved to explain a latent ambiguity which is not found upon the face of the instrument itself, extrinsic evidence cannot be admitted to explain an ambiguity which appears on the face of the will or to supply omissions and deficiencies in the will.</p> <p>2. Same—that, only, is the testator’s will which is in writing and signed by him. Under the statute that, only, is the testator’s will which is in writing and signed by him, and to allow deficiencies and omissions in a will to be supplied by extrinsic evidence would render nugatory the provisions of the statute.</p> <p>3. Same—extrinsic evidence not admissible to make a will for the testator. Extrinsic evidence is never admissible for the purpose of making a will for the testator even though it establishes the fact that he intended to make a will.</p> <p>4. Same—circumstances cannot import into a will an intention not expressed. The intention to be ascertained is not one which it may be inferred existed in the mind of the testator but is the intention expressed in the language of the will, and surrounding circumstances cannot be resorted to to import into a will an intention which is not there expressed.</p> <p>5. Same—gift cannot rest upon conjecture. There is a strong presumption that a testator did not intend to die intestate as to any of his property, and a gift will be sustained without any express or formal words if the intention to make it clearly appears from the will as a whole, but a gift cannot rest upon mere conjecture, based upon the fact that the testator owned a large amount of land which he failed to dispose of by the will.</p> <p>6. Same—a want of formality does not defeat will if the testator’s intention can be ascertained. Great allowance should be made for the ignorance or lack of skill of one who writes a will, and no want of technical formality will prevent the courts from executing the intention of the testator, provided the intention can be ascertained from the language used, however informal.</p> <p>7. Same—will must indicate some subject of the devise or bequest. After the disposition of a portion of an estate by devises and bequests, a provision may be sustained as a residuary disposition of what remains without the use of the word “residue” or “remainder,” but it is essential that the will indicate some subject of the devise or bequest.</p> <p>8. Same—what provision cannot be sustained as a residuary devise or bequest. A paragraph of a will reading, “Second that is my Will that My Daughter Mary Spellmeyer and My Son Charles F. Karsten and My Daughter annie Knox shall be Equally Devided between all three,” entirely omits the subject of the devise and cannot be sustained as an intended gift of the residuary estate.</p> <p>9. Same—when question of correcting description of devise is immaterial. The question of correcting a description of land so that it may be sold, as provided in the will, and the proceeds divided is immaterial, where there is nothing alleged in the bill to show that it would be for the best interests of the parties to receive the proceeds instead of receiving the land itself, which, if the description is not corrected, will descend as intestate property to the same persons and in the same proportions as would the proceeds of the land.</p> <p>10. Same—provision made in case all legatees shall die means die before the testator. A provision in a will authorizing the sale of certain land and the payment of specific bequests to three named grandchildren, and providing, if they all die, that “the grant shall fall back to the original heirs,” means die before the testator, and if they are all living at the testator’s death they are entitled to their legacies.</p>

<p>Appeal from the Circuit Court of Boone county; the Hon. Charles Whitney, Judge, presiding.</p>

<p>1. Wills—when widow cannot claim homestead and dower in lieu of bequest of personal property. The fact that the bequest of the testator's personal property to the widow is so burdened with the payment of bequests as to be of no value to her does not authorize her to claim homestead and dower in lieu thereof, where she has for seven years, under the provisions of the same will, enjoyed a devise of the testator’s whole farm and at the time of filing her bill is still enjoying a devise of her infant son’s share of the farm, which she is to have during his minority and which includes and extends beyond the homestead estate.</p> <p>2. Widow’s award—when right to apply for order to sell land is barred. A delay of seven years from the grant of letters of administration in applying for an order for the sale of land to pay the widow’s award is a bar to such proceeding unless some valid reason is shown for the delay.</p> <p>3. Homestead—when ividow is estopped to claim homestead. Where the widow accepts a provision in the will giving her the use and occupancy, during the minority of her infant son, of the share of the farm devised to him, which includes the homestead premises and extends beyond it, she is estopped to claim contrary to the provisions of the will and assert a homestead right under the statute.</p>

<p>1. Deeds-—when opinions as to grantor’s mental powers are not entitled to much weight. Brief conversations and petty business dealings between the grantor and strangers, and the opinions based thereon, are competent evidence upon the subject of the grantor’s mental powers, but they are not entitled to great weight.</p> <p>2. Same—when deed will not he set aside for grantor's lack of mental capacity. A deed will not be set aside for lack of mental capacity by the grantor where the preponderance of the evidence is that whatever temporary aberrations may have' affected him at other times, he had sufficient mental capacity, when he made the deed, to understand that particular business and its effect and to exercise his will in regard to it.</p> <p>3. Same—undue influence which will avoid a deed must have operated when deed was made. The undue influence which will avoid a deed must be a wrongful influence operating at the time of the execution of the instrument to the extent of depriving the grantor of his free agency.</p> <p>4. Same—undue influence not presumed from fact of relationship of parent and child. The fact of the relationship of parent and child does not, where the parent is the grantor and the child the grantee, raise any presumption of undue influence, and in such case there must be proof of fraud or undue influence in fact in order to avoid the deed-on those grounds.</p> <p>- 5. The court reviews the evidence in this case, and holds that as to the first of the two deeds set aside by the decree the evidence is not sufficient to sustain the decree, but that as to the second deed, made some five years later, when the grantor’s condition was materially changed, the evidence sustains the decree.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Myers, Judge, presiding.</p>

<p>1. Criminal law—party may be convicted of receiving stolen property on testimony of the thieves. The jury may convict the accused of the crime of receiving stolen property on the uncorroborated testimony of the thieves, even though the latter contradict each other as to certain details and although the accused and his foreman deny that they had any dealings with the thieves except to refuse to buy the goods.</p> <p>2. Same—evidence as to other transactions before the one in question is admissible to show guilty knowledge. In a prosecution for receiving stolen property, evidence of other transactions before the one in question is admissible in order to show guilty knowledge; but testimony concerning another transaction is properly stricken out, where the witness is unable to say whether it took place before or after the transaction in question.</p> <p>3. Same—court may, ttpon proper showing, call a witness so that both sides may cross-examine him. If the prosecution is unable to vouch for or guarantee the testimony of a person who was an eye-witness of the crime, the court may, on a proper showing, call the witness and examine him, in order that the prosecution, as well as the defense, may cross-examine him.</p>

<p>1. Motor vehicles—act of 1911 was intended to put the subject of motor vehicles under State control. The manifest purpose of the Motor Vehicle act of 1911 was to place the whole subject of regulating the use of motor vehicles under the control of the State and to supersede all previous laws and ordinances on the subject.</p> <p>2. Constitutional law—what is meant by the “subject” of an act. The “subject” of an act, as that word is used in the constitution, means the matter or thing forming the groundwork of the act, and it may contain many parts which grow out of it and are germane to it, and which, if traced back, will lead the mind to the subject as the generic head.</p> <p>3. Same—what is properly included in an act. Any matter or thing which may reasonably be said to be subservient to the general subject or purpose is germane to the subject and may be properly included in the act.</p> <p>4. Same—Motor Vehicle act of 1911 does not embrace more than one subject. While the subject of the Motor Vehicle act of 1911 is expressed in the title with more particularity than is required, yet the act relates to but one subject,—the regulation of the use of motor vehicles,-—and is not in violation of section '13 of article 4 of the constitution.</p> <p>5. Same—provision for creating road fund with motor vehicle license money is not special legislation. The provision of the Motor Vehicle law of 1911 directing the Secretary of State to pay the fees collected under the act into the State treasury, to be held as a special fund for the permanent improvement of the highways of the State, is not a local or special law “for the laying out, opening, altering and working roads or highways,” such as is prohibited by section 22 of article 4 of the constitution.</p> <p>6. Same—Secretary of State must pay all license fees into the State treasury. The Secretary of State cannot apply the motor vehicle license fees received by him to the payment of the expenses of any particular department of his office, but the total amount received by him must be paid into the State treasury and be paid out only in pursuance of an appropriation by the legislature, and if any provision of the Motor Vehicle act of 1911 authorizes the contrary such provision is invalid, but its invalidity does not affect the remainder of the act.</p>

<p>1. Notice—appearance by individuals does not waive defective notice as to corporation. A general appearance in a cause waives a defective notice, but the appearance, in their individual capacity, of the officers or members of a private or public corporation does not waive the defects as to the corporation.</p> <p>2. Schools—who must sign petition to consolidate two whole school districts. To authorize the trustees of schools to form a new school district by consolidating the whole of two old districts the petition must be signed by the majority of the legal voters in each district.</p>

<p>1. Attorneys’ liens—attorney’s lien may be enforced by petition in a court of law. In view of the language of the Attorneys’ Lien law of 1909, (Laws of 1909, p. 97,) a court of equity is not the only forum in which such lien may be enforced but the same may be enforced by a petition in a court of law. (Cairo and Vincennes Railroad Co. v. Fackney, 78 Ill. 116, National Bank v. Petterson, 200 id. 215, and Park Comrs. v. Western Granite Co. 200 id. 527, distinguished.)</p> <p>2. Same—permitting attorney’s lien to be enforced by petition in court of law does not violate constitutional right of trial by jury. Construing the Attorneys’ Lien law of 1909 so as to permit an attorney’s lien to be enforced by petition in a court of law does not violate the constitutional provision concerning the right of trial by jury, since the Attorneys’ Lien law creates new rights not recognized at the time the constitution was adopted, and the legislature may provide for the enforcement of such new rights without a jury trial. (Turnes v. Brenckle, 249 Ill. 394, explained.)</p> <p>3. Same—attorney’s lien may be enforced by petition in the client’s cause. An attorney’s lien may be enforced by petition in the client’s cause wherein the employment was made without violating the constitutional provision concerning the uniformity of practice in courts of the same class or grade, as the Attorneys’ Lien law does not specify any particular court or class of courts, but provides that the petition may be filed in any court of competent jurisdiction.</p> <p>4. Same—attorney’s lien not limited to money recovered by a formal judgment. The word “recovered,” used in the Attorneys’ Lien law of 1909, is used in the sense of “received,” and hence said act does not limit the lien to money recovered by the client by a formal judgment or decree, but contemplates that the attorney shall have a lien from and after the service of notice on the defendant, which shall protect him in any settlement the defendant may thereafter make with the client, whether suit has been begun, is pending or has been finally determined by a judgment.</p> <p>5. Constitutional law—Attorneys’ Lien lava is not tmconstitutional. The Attorneys’ Lien law of 1909 (Laws of 1909, p. 97,) is not unconstitutional because it applies only to the class of persons consisting of attorneys at law, nor upon the alleged ground that it deprives persons against whom suits are brought of their constitutional and property right to buy their peace by making a contract of settlement, as the act does not prevent making a contract'of settlement, but merely requires that the attorney’s claim must be taken into account when such settlement is made.</p>

<p>Writ oE Error to the Circuit Court of Lawrence county; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>1. Jurisdiction—whether appeal from non-judicial body will be entertained depends on the nature of the rights involved. The jurisdiction of a court to hear and determine a matter brought to it by appeal from a non-judicial body depends upon the nature of the rights involved rather than upon the character of the body from which such appeal is taken.</p> <p>2. Same—acts of drainage commissioners may be judicially reviezvcd. Although drainage commissioners are not judicial officers and cannot exercise judicial powers under the constitution, yet in the administration of the affairs of their office they are required to take action upon and determine questions which involve the property rights of the land owners of the district, of which the courts, in the exercise of their general judicial powers, take jurisdiction. (Conover v. Gatton, 251 Ill. 587, distinguished.)</p> <p>3. Constitutional law—provision of Farn\ Drainage act for appeal to county court from action of drainage commissioners is valid. Sections 24 and 25 of the Farm Drainage act, (Hurd’s Stat. 1911, p. 907,) providing for an appeal to the county and circuit courts from the decision of drainage commissioners upon the question of the classification of lands, are valid, as the nature of the rights involved are such as are properly cognizable by the judiciary when properly brought before it.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Richard E. Buri<E, Judge, presiding.</p>

<p>1. Criminal law—an indictment for forging certification of a check need not aver extrinsic facts. A check regularly certified by a solvent bank is a valid obligation of the„bank and is a well known commercial instrument, and if an indictment alleges that the certification was forged it need not allege extrinsic facts showing the possibility of defrauding by means of such instrument.</p> <p>2. Same—indictment need not allege manner in which accused intended to defraud. An indictment for forging the certification of a check, which alleges an intent by the accused to defraud a certain person, need not allege the manner in which the accused intended to defraud such person, as that is a matter of evidence.</p> <p>3. Same—indictment need not allege the existence of the bank on which check was drawn. An indictment in the usual form of a forgery indictment, which sets out a copy of the check and'of the forged certificate, purporting to be made by a certain person as teller, need not otherwise allege the existence of the bank; nor is it necessary to aver that the person whose name was forged as teller was, in fact, the bank’s teller.</p> <p>4. Same—indictment need not aver authority of agent. An indictment for forging an instrument purporting to have been made by an agent in the name of his principal need not aver the authority of the agent.</p> <p>5. Same—one judgment may be entered on a plea of guilty to both counts of indictment. The entry of one judgment on a plea of guilty to both counts of an indictment for forging the certification of a check is proper, and as the court has no discretion as to the extent of punishment there is no occasion for hearing evidence.</p> <p>6. Same—what cannot be considered in proceeding to review judgment of conviction. Upon a writ of error to review a judgment on a plea of guilty the alleged failure of the board of pardons to parole the plaintiff in error or to act upon his application for parole cannot be considered.</p> <p>7. Practice—object of entering an order nunc pro tunc. The object of entering an order nunc pro hmc is to make the record speak the truth and to make a present record of an order which the court has made at a previous time but which has not been entered of record; but an order not previously made cannot be entered as a nunc pro tunc order.</p> <p>8. Same—after term has passed, the court cannot set aside sentence. After the term has passed at which a judgment on a plea of guilty to an indictment was entered and the sentence was pronounced the court cannot set aside the judgment and sentence.</p>

<p>1. Murder—when the proof of express malice is unnecessary. Proof of malice, express or implied, is . essential to establish a charge of murder; but malice is implied where the evidence is that the accused, while waiting with his companion for her to take a car, suddenly and without provocation or excuse shot her several times and then attempted to commit suicide.</p> <p>2. Same—when it is not error to send blood-stained clothing of victim to fury room. Where there is a discrepancy in the evidence as to how near the body of the victim the revolver was held and it is material to determine that question, the powder-burned clothing of the victim, in evidence in the case, may be sent to the jury room, and the fact that the clothing is blood-stained does not require that it be excluded therefrom.</p> <p>3. New trial—proof of prejudice of juror must be clear and satisfactory. To justify granting a new trial in a criminal case upon the ground of the prejudice of a juror the proof of such prejudice must be clear and satisfactory.</p> <p>4. Instructions—vahen accused cannot complain that instructions stating doctrine of self-defense were given. If the accused obtains an instruction that the jury should acquit him if they believed the deceased assaulted him with a deadly weapon, he can not complain that instructions stating the doctrine of self-defense correctly were asked for and given on behalf of the prosecution.</p>

<p>Writ op Error to the County Court of Coles county; the Hon. J. P. Harrah, Judge, presiding.</p>

<p>1. Criminal law—indictment for forcible rape need not allege that the female was not the wife of accused. An indictment for the crime of rape without force must allege that the female was not the wife of the accused, but an indictment for forcible rape need not contain such allegation.</p> <p>2. Same—exception to action on a motion to quash panel must be incorporated in bill of exceptions. An exception to the action of the court on a motion to quash the panel of jurors must be incorporated in the bill of exceptions in order to present the question for review.</p> <p>3. Same—when allowing jurors to separate is not error. In a prosecution for rape it is not error to allow the four jurors accepted by both sides to separate during the adjournment of court over Sunday, where the court instructed them concerning their duties and no objection was made by the accused to their separation and no prejudice to him is shown to result therefrom.</p> <p>4. Same—purpose of provision of the statute requiring jury to find the age of the accused. The provision of-the statute requiring the jury to find the age of one convicted of rape is to determine whether he shall be sentenced to the penitentiary or the reformatory, and while it is intended the jury should find the age at the time of the trial instead of at the time of the offense, yet a finding of the age at the time of the offense is not prejudicial, as the court is thereby given sufficient information to enable it to determine the place where the imprisonment shall be.</p> <p>5. Same—effect where jury find accused guilty of rape and assault with intent to commit rape. Where the jury find the accused guilty under two counts, one charging forcible rape and the other assault with intent to commit rape, the court may sentence the accused for the crime of forcible rape, thereby, in effect, ignoring the verdict as to the lesser offense, which in such case is necessarily included in the greater.</p> <p>6. Same—age of accused when rape was committed does not govern place of imprisonment. The age of the accused at the time the rape was committed does not determine the place of his imprisonment, as if he is convicted after he has passed the age of twenty-one years he cannot be sentenced to the reformatory.</p>

<p>Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the City-Court of Granite City; the H011. J. M. Bandy, Judge, presiding.</p>

<p>1. Specific performance—oral testimony as to contract must be clear and explicit. A court of equity will not decree the specific performance of a contract which depends upon oral testimony for its existence unless the proof is clear and explicit that such contract was made, and the contract itself must be certain and all of its terms be clearly proven.</p> <p>2. Same—when Statute of Frauds is a defense. In the absence of any question of estoppel the Statute of Frauds is a good defense to a suit to specifically enforce a contract made by an agent to sell land, where the agent had no written authority to make it.</p> <p>3. Same—when party cannot invoke the doctrine of estoppel. Where a contract, made by an agent, to sell land is repudiated by the owner before the proposed purchaser has changed his position in any way to his detriment, the latter is not in a position to claim that the owner is estopped, by reason of something occurring after the contract had been repudiated, to raise the defense of the Statute of Frauds upon the ground that the agent had no written authority to make the contract.</p>

Writ op Error to the Circuit Court of Kankakee county; the Hon. Frank' L. PIoopER, Judge, presiding.

<p>1. Wn.ES—when the issue of undue influence is properly taken from the jury. The issue of undue influence in a will contest case is properly taken .from' the jury where the evidence shows that the testator came alone to the scrivener and directed the drawing of the will, and that no one was present at its execution except the testator, the scrivener and the attesting witnesses, who were disinterested persons.</p> <p>2. Same—issue must be fairly presented where evidence is in irreconcilable conflict. Where the evidence upon the question of the testator’s mental capacity is in irreconcilable conflict it is important that the trial should be so conducted that such issue shall be fairly presented to the jury.</p> <p>3. Same—when it is error to refuse to admit testimony that the testator’s near relatives zvere insane. In a will contest case, if there is testimony tending to show that the testator was lacking in mental capacity, it is reversible error to refuse to permit witnesses to be asked whether two sisters and a nephew of the testator had not been insane.</p> <p>4. Same—whether a non-expert is qualified, to give opinion on the testator’s mental condition is for the court. Whether a non-expert witness has sufficient knowledge of the testator to express an opinion as to his mental condition is a question to be determined by the court, but there can be no fixed rule laid down declaring the extent of acquaintance or opportunities for observation which will qualify a witness to express such an opinion.</p> <p>5. Same—opinion of non-expert witness is to be taken by the jury for what it is worth. A non-expert witness in a will contest case may, if qualified to testify, state facts and circumstances from which the jury may form an opinion as to the testator’s mental condition, and he may then give his own conclusion in the form of an opinion, which is to be taken by the jury for what it is worth.</p> <p>6. Same—declarations of testator in conflict zmth will are not admissible. Declarations by the testator to the effect that he intended to make a disposition of his property in a manner different from that made by the will are not ádmissible.</p> <p>7. Same—when instructions as to degree of mental power necessary to make a will are not incorrect. Instructions in a will contest case which state that the testator was of sound mind and memory, within the meaning of the law, if he had sufficient mind and memory “to know and understand what disposition he was making of his property” when he executed the will, are not incorrect because they do not require him to understand the extent of his property devised and the nature of the claims of others on him.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. W. B. ScholeiEld, Judge, presiding.</p>

<p>1. Constitutional law&emdash;object of title of an act is to give a ■ general statement of the subject matter. The object of the title of an act is to give a general statement of the subject matter, and such a general statement will be sufficient to include all provisions of the act having a reasonable connection with the "subject matter mentioned and a reasonable tendency to accomplish the purpose of the act.</p> <p>2. Same&emdash;provisions of act of ipn to prevent drinking intoxicating liquor'on trains are within the title. All the provisions of the act of 1911 (Laws of 1911, p. 462,) to prevent the drinking of liquor on trains and at stations concern the subject matter of the act as expressed in its title and tend to accomplish the object of the act, which is to preserve good order on railroad trains and at stations.</p> <p>3. Same&emdash;act of ipil is not invalid as discriminating against passengers in day coaches. The fact that the act of 1911 does not, in terms, apply to dining cars, buffet cars or sleeping cars does not, of itself, afford ground for holding the law invalid, as thereby discriminating against passengers in smoking cars,, day coaches and parlor cars, as the classification so fixed by the legislature can not be said to be without reasonable basis.</p> <p>4. Same&emdash;the act of ipu is not a special or local regulation of the duties of constables and justices. The act of 1911, to prevent the drinking of intoxicating liquor on railroad trains or at railroad stations, is not a special or local regulation of the duties of justices of the peace and constables, as the act affects alike all justices and constables who may be called upon to act thereunder.</p> <p>5. Same&emdash;regulation of right to drink liquor is within the police power of the Slate. The right to drink intoxicating liquor is a personal right, but it is no more sacred than other rights of the individual, and all such rights are subject to the police power of the State for the preservation of order and good morals.</p> <p>6. Same—act of ipn, to prevent use of liquor on trains, is not invalid. The act of 1911, to prevent the use of intoxicating liquor on railroad trains and at railroad stations, is within the police power of the State, and is not invalid as depriving persons of liberty and property without due process of law, by prohibiting the drinking of intoxicating liquor under the conditions named.</p> <p>7. Same—arrest of passenger under act of ipn is not unconstitutional. For a violation of the act of 1911, to prevent the use of liquor on railroad trains, a passenger can be punished or convicted only in the regular way, and his arrest is not unconstitutional, as the act merely extends the right of in officer or private citizen to arrest without a warrant under certain circumstances, which is recognized both at the common law and by statute.</p> <p>8. Same—act of ipn does not make conductor a State officer, in violation of the constitution. The act of 1911 does not, by authorizing the conductor of the train to arrest a person drinking intoxicating liquor in violation of the act, make the conductor a State officer, as his power to arrest continues only while he is a conductor and is on-duty, and is one which might have been conferred upon a private person.</p> <p>9. Same—act need not cover every part of the subject which may come within the title. The fact that the title of the act of 1911 refers to all railroad passenger cars whereas the body of the act includes only certain kinds of passenger cars does not invalidate the act, as there is no rule which requires an act to cover every part of the subject which might come within the title.</p> <p>10. Same—provisions excluding drunken passengers from cars and providing for their arrest are within title of the act, of ipn. The provisions prohibiting the presence of intoxicated persons on certain cars and at stations and platforms and providing for the prompt arrest of offenders by conferring certain powers on conductors are reasonably calculated to prevent the drinking of intoxicating liquors at such places, and are therefore within the title of the act.</p> <p>11. Same—penalty for violating act of ipn is not manifestly unreasonable. The penalty for violating the act of 1911, to prevent the use of intoxicating liquor upon railroad trains and about railroad stations, is not so unreasonable and disproportionate as to be subject to a constitutional objection.</p>