THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 /f 
 
 
 ^/. /f^-
 
 A TREATISE 
 
 ON THE 
 
 PROBATE PRACTICE 
 
 AND 
 
 LAW OF ESTATES 
 
 IN THE 
 
 STATE OF ILLINOIS 
 
 RELATING TO THE ADMINISTRATION, SETTLEMENT 
 AND DISTRIBUTION OF TESTATE AND INTES- 
 TATE ESTATES WITH TESTAMENTARY 
 WRITINGS AND FORMS 
 
 By FRANKLIN P. SIMONS 
 
 OF THE CHICAGO BAR 
 
 VOLUME I. 
 
 CHICAGO 
 
 CALLAGHAN & COMPANY 
 
 1907
 
 Copyright 1907 
 
 BY 
 
 CAIvLAGHAN & COMPANY 
 
 T
 
 PREFACE 
 
 This work has been prepared to meet the requirements of the 
 lawyer, the representatives and others interested in the admin- 
 istration, settlement and distribution of estates. 
 
 What appeared to be lacking in Illinois and other states, 
 was a practical compilation and arrangement of the law and 
 procedure relating to testate and intestate estates. For many 
 years the statutory enactments of the different states have 
 been considered the fundamental law governing the practice 
 and procedure in courts of probate. These enactments apply 
 to executors, administrators, guardians and conservators, and 
 generally define the duties and powers of such not expressed 
 by will or testament; but in those states where the common 
 law is still in force the powers and duties of such represent- 
 atives are enlarged by the statute, which, with the common 
 law, may and often does extend the same. 
 
 The works by Jarman, Redfield, Woerner, Perry, Story, 
 Pomeroy and others contain much of value that may be ap- 
 plied during the administration of any estate ; but these works 
 also contain much of no value to the lawyer and others who 
 must depend to a great extent upon the statutory enact- 
 ments of the different states and the well considered cases 
 handed down by the courts of final determination. The stat- 
 ute and case law, when all is said, are the proper weapons with 
 which to meet the varied and important questions that usually 
 arise during the administration of a large and important 
 estate. 
 
 We have in this work quoted liberally from the books of 
 standard text writers ; but in doing this we have been greatly 
 aided by the decisions of courts citing with approval those 
 authors, not in conflict with one another, or the well consid- 
 
 iii 
 
 735974
 
 27 PREFACE. 
 
 ered opinions of courts, from which the doctrine and rules laid 
 down by text writers have been largely taken. 
 
 It is recognized as true, that most if not all property real 
 and personal, in some form or other, must pass through admin- 
 istration once in every generation ; and it is probably true that 
 in each generation, new and additional legislation in the vari- 
 ous states enlarge the duties of those selected to administer 
 estates; these new enactments also enlarge the powers and 
 jurisdiction of courts of probate. In Illinois in recent years 
 many important changes relating to the administration of 
 estates have been made by the legislature. New and complex 
 questions arise as wealth and population increases, as evi- 
 denced by the Inheritance tax law and the "Torrens" sys- 
 tem of land titles, one of the principal objects of which law 
 was to bring in time all estates under that system. 
 
 In arranging the chapters and sections of this work, the 
 subjects relating to testate and intestate estates have been 
 considered in their proper order. The statutes of Illinois have 
 been quoted freely and generously, and where the .statute is 
 conclusive in any matter, the application is made and sup- 
 ported by the cases cited. Where the statute modifies the 
 common law, or where the latter entirely controls the subject 
 treated, such is supported by the decisions of courts giving 
 the doctrine and rule in support of the subject. Each section 
 of the Illinois statute as compiled by Starr & Curtis, with 
 Jones & Addington's supplements thereto, also Kurd's statute 
 of 1905, relating to Wills, Administration, Descent, Dower and 
 Homestead, Husband and Wife, Conveyances, Guardian and 
 Ward, Conservators, Evidence, etc., has either been copied or 
 its substance stated. 
 
 A large number of forms embracing those likely to be of 
 use can be found at the end of the second volume, with a sep- 
 arate index attached, referring to each form by number. Also 
 attached to most of the forms are foot notes to guide in the 
 use of the same, with citations to which the form has reference. 
 In preparing the forms, we have used those prescribed by the
 
 PREFACE. ▼ 
 
 statute of Illinois, also those forms adopted, used and applied 
 in the extensive proceedings relating to estates in the county 
 and probate courts of Cook county. We have used freely with 
 the aid and assistance of the Hon. Charles S. Cutting, Judge 
 of the Probate Court of Cook county, Illinois, the orders en- 
 tered of record in such court, that for many years have been 
 approved by the practice in such court and the courts review- 
 ing the records and proceedings thereof. 
 
 We should consider this preface incomplete if we failed to 
 call special attention to the importance of the courts of pro- 
 bate, which necessarily produce some of the most important 
 litigation known to the history of jurisprudence. The im- 
 mense volume of business transacted by these courts, partic- 
 ularly that of Cook county, is generally well conducted by 
 such courts within the powers granted and implied under 
 present legislative enactments. The general public sentiment 
 is always in favor of granting to these courts full and ample 
 power to meet every emergency that may arise in the adminis- 
 tration of every estate. Modern legislation must aim to accom- 
 plish through these courts of probate, a rapid legal and 
 equitable system looking to the complete settlement and dis- 
 tribution of all estates. Additional and extended power should 
 be granted such courts at the earliest possible session of the 
 legislature to administer testamentary trusts created by will. 
 Such legislation is now absolutely needed in order that negligent 
 trustees may be held to account quickly in aid of the trust 
 created in such instrument. 
 
 In Appendix I will be found paragraphs from the wills of 
 noted persons, devising large estates to trustees for charitable 
 and other public purposes. These wills are valuable aids to 
 the lawyer and others as evidence of the best type of testa- 
 mentary writings. 
 
 F. P. S. 
 
 Chicago, May, 1907.
 
 TABLE OF CONTENTS 
 
 VOLUME L 
 
 CHAPTER I. 
 THE PROBATE COURT. 
 
 Constitution of 1870 relating to such court. The act of the legisla- 
 ture establishing such court. Election of Judge. Jurisdiction- 
 Duties of SheriH and Clerk. Interchange of County and Probate 
 Judges. 
 
 CHAPTER II. 
 
 JURISDICTION OP PROBATE COURTS. 
 
 How far recognized in law and equity. Federal Courts take jurisdic- 
 tion in matter of estates, when, etc. 
 
 CHAPTER III. 
 
 DESCENT AND DISTRIBUTION. 
 
 Rules of descent. Lineal consanguinity. Lineal heirs. Will may 
 modify and completely change course of statutory descent Post- 
 humous child, illegitimates, child born after will made. Legiti- 
 matized child. Effect of marriage upon illegitimate, etc. When 
 there is a surviving wife or husband but no issue. Advancements, 
 rules applying to. Distribution of undivided estates. 
 
 CHAPTER IV. 
 
 WILLS. 
 
 Who may make and devise property. The statute of Illinois relating 
 to the making of wills. Fundamental and necessary requisites 
 of a valid will. Women under the statute relating to wills. When 
 the will or testament is the act of another mind. Testator or 
 testatrix deprived of free agency, effect of, etc. Acknowledging and 
 attesting of wills. 
 
 CHAPTER V. 
 
 WILLS CONTINUED. 
 
 Nuncupative, joint and mutual wills. Revocation of wills. When 
 codicil revokes. After born and adopted child have effect upon 
 will. Intention to disinherit. Erasure of part of will, effect. 
 
 vii
 
 Viii TABLE OF CONTENTS. 
 
 CHAPTER VI. 
 
 PROBATING WILLS IN COURTS OF PROBATE. 
 
 Petition for such purpose must state facts truthfully. For fraud or 
 lack of jurisdiction order admitting will to probate may be set 
 aside. Witnesses to will. When such are dead. Lost will, how 
 established. Copies of will evidence. Foreign will admitted to 
 probate, authentication of such will. Notice of foreign will to 
 adverse interest. Place of probate. 
 
 CHAPTER VIL 
 
 CONTEST OF WILL IN PROBATE COURT. 
 
 Statutory duty relating to — defined. Appeals from order allowing or 
 refusing probate of will. The practice in appeals. Burden of 
 proof. Concurrent and cumulative remedies. 
 
 CHAPTER VIII. 
 
 CONSTRUCTION OF WILLS. 
 
 Powers of disposition and limitations thereon. Words used construed 
 under established rule. Rules governing the meaning of words in 
 their ordinary and technical legal sense. What estate conveyed. 
 Words of inheritance. Quantity of interest Rule when instrument 
 doubtful. Precatory words, etc. 
 
 CHAPTER IX. 
 
 CONSTRUCTION OF WILLS CONTINUED. 
 
 Ancient rules of construction. Modification of such rules. American 
 principles of construction and interpretation. 
 
 CHAPTER X. • 
 
 CONSTRUCTION OF WILLS CONTINUED. 
 
 Modem rules relating to construction emanate largely from American 
 courts. Fundamental rule to give effect to intention where pos- 
 sible under existing law. Ninety-six modem rules compiled in 
 this chapter to give effect to intention.
 
 TABLE OF CONTENTS. ix 
 
 CHAPTER XL 
 
 CONTEST OF WILLS IN CHANCERY. 
 
 The issue of fact. Interested persons only can proceed in chancery. 
 Trial by jury. Jury may be waived. Contents of lost or destroyed 
 will, how established. Secondary evidence. Expert witnesses. 
 Statements and declarations before and after making will, effect 
 of. Testamentary capacity. Sound mind and memory. Effect of 
 old age upon testamentary capacity. Fraud compulsion or im- 
 proper conduct Advice, argument or persuasion, 
 
 CHAPTER XII. 
 
 TRUSTS AND TRUSTEES. 
 
 Who may be trustee. Who are held to be under the law. Trustees de 
 son tort. The rule in appointing trustees. The same person 
 appointed executor and trustee. Resulting trusts. Constructive 
 trusts. Trusts by implication or operation of law. Trusts ex 
 malificia. Spendthrift trust. Conveyance to Uses. Perpetuities. 
 Equitable conversion. Relation of creditor and remainder-man to 
 doctrine. 
 
 CHAPTER XIII. 
 
 TRUST AND TRUSTEES CONTINUED. 
 
 Collective trusts. Trustee cannot delegate trust, and when accepted 
 cannot renounce. Must seek discharge from court appointing. 
 Powers coupled with interest Title of trustees to land. Must 
 defend and protect title. Cannot create lien on assets held. Rea- 
 sonable care and diligence exacted. Trustee guilty of fraud or 
 willful default Tracing and restoring trust funds. Duty to col- 
 lect assets. Must keep clear and accurate accounts. Cannot pur- 
 chase at his own sale. Cannot make profits from trust property. 
 What considered proper and improper investment of trust funds. 
 Intermeddlers, etc. 
 
 CHAPTER XIV. 
 
 GIFTS CAUSA MORTIS AND INTER VIVOS. 
 
 Principal requisites necessary to constitute. Who may make such 
 gifts. May be made to one in trust All the legal elements must 
 center in gift A gift inter vivos. Distinction between such and 
 causa mortis. Right of dower, homestead and awards can not be 
 effected by.
 
 X TABLE OF CONTENTS. 
 
 CHAPTER XV. 
 
 INHERITANCE TAX LAW OF ILLINOIS. 
 
 Rate of tax. Who come under. Tax, when, how, and by whom paid. 
 What institutions exempt from tax. When real estate liable to 
 tax. When portion of tax repaid to legatee, refund. When tax 
 paid erroneously, how recovered. Appraisers. Expense of pro- 
 ceeding. Books to be kept. Treasurer's receipt. Proceedings to 
 test whether property liable to tax, etc. 
 
 CHAPTER XVI. 
 
 LAND TITLES "TORRENS LAW." 
 
 Tlie act extended to executors and administrators, unless excused by 
 probate court. Intended in time to bring under system all real 
 estate of a deceased party. Applications to be referred to examiner 
 who holds the same relation to court as a Master in Chancery. 
 
 CHAPTER XVn. 
 ADMINISTRATION. 
 Necessity of. Different administrators defined. 
 
 CHAPTER XVIII. 
 
 ADMINISTRATION CONTINUED. 
 
 Granting letters testamentary and of administration. Executor's ajid 
 custodian's duty to present will for probate. Age and qualifica- 
 tion of executor. Power and liability of such before probate of 
 will. Death — failure of part of executors to qualify. Removal of 
 executors or administrators to different counties. Form of letter 
 prescribed by the statute of Illinois. 
 
 CHAPTER XIX. 
 ADMINISTRATORS TO COLLECT. 
 Powers of such. Termination of powers and duties of such. 
 
 CHAPTER XX. 
 
 PUBLIC ADMINISTRATORS. 
 
 Governor of state appoints. When such may administer an estate. 
 Disposition of unclaimed estate by such, etc.
 
 TABLE OF CONTENTS. xi 
 
 CHAPTER XXI. 
 
 GRANTING LETTERS OF ADMINISTRATION. 
 
 Application of statute in that regard. Powers and duties of administra- 
 tors. Form of letters, oath of office. Revoking letters and remov- 
 ing executors and administrators from office. Bonds, security, 
 counter security. New bonds, etc. Resignation of executor or 
 administrator under statute, settlement, costs, etc. Foreign execu- 
 tor, powers, duties, etc. 
 
 CHAPTER XXII. 
 
 INVENTORIES AND APPRAISEMENTS. 
 
 What are personal assets. Inventory as evidence. When assets do not 
 exceed widow's allowance. 
 
 CHAPTER XXIII. 
 
 CLAIMS AGAINST ESTATES. 
 
 The mode of filing such. Equitable and legal powers of probate courts 
 in such matter. Allowance of claim, hearing, etc. Heir's right to 
 contest claims. Execution does not issue against representatives. 
 Effect of judgment recovered in another state. Proceedings in 
 Federal court to establish claim. Rule of that court in such mat- 
 ter as to order of judgment. Adjudication and judgment in pro- 
 bate court. Claims of representatives against their estate. Ap- 
 pointment of person to defend estate. Classifying claims, order of 
 payment, etc. 
 
 CHAPTER XXIV. 
 
 AWARDS TO WIDOWS AND CHILDREN. 
 
 Appraisers in such matter to consider conditions and mode of living 
 widow accustomed to at time of husband's death. Administrator's 
 duty in relation to awards. When the widow has and has not 
 a lien upon the real estate of deceased for payment of award. Legal 
 release of award, when and when it cannot be accomplished. Ante 
 nuptial contract, may or may not be a bar to award to widow.
 
 3Qi TABLE OF CONTENTS. 
 
 CHAPTER XXV. 
 
 COLLECTION AND DISPOSITION OF ASSETS OF AN ESTATE. 
 
 Concealment of effects of deceased. Discovery of assets, proceedings to 
 recover. Title sometimes involved in such proceeding. Legal pre- 
 sumption of title to property belonging to deceased, is in favor of 
 legal representative. Proof must overcome ttiat presumption. 
 
 CHAPTER XXVI. 
 
 PARTNERSHIP ESTATES. 
 
 Duty of surviving partner. Surviving partner should not be appointed 
 administrator. Rights and liabilities of surviving partner. Rela- 
 tion of assets to individual and partnership debts. 
 
 CHAPTER XXVII. 
 
 SALE OF PERSONAL PROPERTY. 
 
 "What title passes private and public sale. Distribution in kind under 
 will and order of court. Growing crops, when personalty and 
 when considered real estate. Compounding and sale of desperate 
 and doubtful claims. Sale of claims not due. 
 
 CHAPTER XXVIII. 
 
 EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 
 
 Powers of executors in the sale of lands. Administrator with the will 
 annexed and his powers in sale of land under will. He must receive 
 power to act from court as he has no power by will. Effect of 
 death or disqualification of executor or administrator. 
 
 CHAPTER XXIX. 
 
 SALE OP REAL ESTATE TO PAY DEBTS. 
 
 Bale may be coerced. Proceedings, practice, notice, hearing and decree. 
 Jurisdiction of persons and subject matter of suit. Overplus, 
 Homestead & Dower rights. Adjustment and sale of life estate 
 liens and other matters effecting title.
 
 TABLE OF CONTENTS. XIU 
 
 CHAPTER XXX. 
 
 SETTLEMENT OF EXECUTORS AND ADMINISTRATORS. 
 
 Distribution. Annual and final settlements. Notice of final settlement 
 must be given heirs or legatees. Closed estate, final order and its 
 effect. Settlement enforced, contempt. Removal of representative. 
 Demand, arrest, commitment, imprisonment of representative. 
 Order for payment and distribution. Suits between representa- 
 tives. 
 
 CHAPTER XXXI. 
 
 MORTGAGING AND LEASING REAL ESTATE!. 
 
 Foreclosure of such mortgage specially provided for by statute. No 
 strict foreclosure. 
 
 CHAPTER XXXII. 
 
 ACTIONS WHICH DO AND DO NOT SURVIVE. 
 
 The legal construction of contracts may determine the right of action. 
 Real estate contracts enforced after death. Implied duties relating 
 to actions by heirs, devisees and legal representatives. 
 
 CHAPTER XXXIII. 
 APPEALS AND WRITS OF ERROR. 
 To what courts appeals in different cases go. 
 
 CHAPTER XXXIV. 
 
 ASSIGNMENT OF DOWER AND HOMESTEAD. 
 
 Necessary steps in such proceedings. Notice, pleadings, hearing, decree. 
 Appointment and report of commissioners in such matter. Power 
 of court in such proceeding. Waste by person endowed. 
 
 CHAPTER XXXV. 
 
 DOWER, JOINTURE, ADVANCEMENTS. 
 
 Dower right subject to lien and incumbrance. Effect of conveyance 
 by either party on eve of marriage. Jointure bars dower. Pur- 
 chase in name of wife, etc., presumed to be advancement. Pro- 
 vision in will bars dower. Election and renunciation under statute. 
 Divorce, effect of — on dower. Adultery, effect of — on dower. Judg-
 
 Xiv TABLE OF CONTENTS. 
 
 ment, conveyance, laches, crime, etc., when not a bar to dower. 
 Exchange of land, when dower in same. Property acquired after 
 will made. 
 
 CHAPTER XXXVI. 
 
 DISPOSAL OF UNCLAIMED MONEY. 
 
 To be deposited as directed by statute. How obtained after deposit 
 Must apply to court making order of deposit. 
 
 CHAPTER XXXVII. 
 
 EVIDENCE AND DEPOSITIONS UNDER STATUTE. 
 
 Witnesses, competency and credibility of. Events after death of 
 decedent and after death of minor. As to transactions proved by an 
 agent. Conversations during life of deceased adduced by adverse 
 witnesses. Witnesses when not competent against trustee, legal 
 representatives, heirs, legatees and devisees. Interested parties 
 who are. When party competent or incompetent to testify. Admis- 
 sions and declarations. Written instruments, book accounts. Hus- 
 band and wife, when may be witness for and against each other. 
 Adverse party compelled to testify. Production of books and writ- 
 ings. Exemplified and certified records. Records of private and 
 public corporations. 
 
 CHAPTER XXXVIII. 
 
 APPRENTICES. 
 
 Who may bind such. Proceedings for such purpose with or without 
 consent of parents or minor. Indenture of apprenticeship and 
 what it must provide for. Complaints against masters. Removing 
 apprentice out of the state, enticing away, etc., penalty. 
 
 CHAPTER XXXIX. 
 
 APPOINTMENT AND QUALIFICATION OF GUARDIANS. 
 
 Different kinds of guardians. Powers and duties of testamentary guar- 
 dian. Inventories, etc. 
 
 CHAPTER XL. 
 
 PUBLIC GUARDIAN. 
 
 When appointed by the Governor of the State, when appointed by the 
 Court. When such guardian fails to qualify.
 
 TABLE OF CONTENTS. XV 
 
 CHAPTER XLI. 
 
 DUTIES AND POWERS OF GUARDIANS. 
 
 Suits by, for or against wards, guardians, next friend. The power to 
 contract how far binding on ward. Management of ward's estate, 
 education of ward. Investments by guardian solely statutory 
 in Illinois. 
 
 CHAPTER XLII. 
 
 LEASING, MORTGAGING AND SELLING REAL ESTATE BY 
 GUARDIANS. 
 
 Foreclosure of such mortgage special, no strict foreclosure. Bill of 
 review in such matter. Requisites of petition, notice, practice sale, 
 return title. Non-resident guardian's powers, sale by such, notice 
 terms, deed, title, etc. 
 
 CHAPTER XLIII. 
 
 GUARDIAN'S SETTLEMENT AND ACCOUNTING ON FINAL 
 SETTLEMENT. 
 
 Powers of probate court and of guardian not strictly confined to statute, 
 common law powers and duties still in force in Illinois. Citation, 
 limitation, liability of sureties, etc. Removal of guardian, pro- 
 ceedings for. Effect of marriage of female ward discharges her 
 guardian. Unclaimed moneys in hands of guardian, to be deposited, 
 etc. 
 
 CHAPTER XLIV. 
 
 IDIOTS, LUNATICS, DRUNKARDS AND SPENDTHRIFTS. 
 
 Proceedings to determine question of sanity. Summons, service, hear- 
 ing, jury, continuance and appointment of conservator. When 
 court of equity will adjudicate as to insanity. Settlements of con- 
 servator, manner of accounting, etc. Performance of contracts of 
 insane, etc. Contracts of insane, when and when not void. Man- 
 agement of estates of insane, etc. 
 
 CHAPTER XLV. 
 
 COMMITMENT AND DETENTION OF LUNATICS. 
 
 Proceedings for supposed insanity. Inquest by jury or commission. 
 Jurisdiction, of persons not charged v/ith crime, docket and record 
 of such kept. Authority to discharge vested in trustees. Adminis-
 
 XVi TABLE OF CONTENTS. 
 
 tration and enforcement of laws governing insane after commit- 
 ment entrusted to State Commissioners of Public Charities. 
 
 CHAPTER XLVI. 
 
 INVESTMENT OF MONEY. LEASING, MORTGAGING AND SELLING 
 REAL ESTATE BY CONSERVATOR. 
 
 Proceedings where conservator sells real estate, petition, notice, prac- 
 tice, etc. Powers conferred upon the court in such case. Non- 
 resident conservator's sale of real estate. Proceedings, practice, 
 etc., in such case. 
 
 CHAPTER XLVII. 
 
 RESTORATION OF REASON TO INSANE. 
 
 Proceedings for such purpose. Trial. Judgment. Settlement of con- 
 servator. 
 
 CHAPTER XLVIII. 
 
 COMMON DISASTER. 
 
 Presumption of death under Roman and common law. Inferences of 
 survivorship may be drawn from the best evidence suggested by 
 every case. When insured and beneficiary die in same disaster. 
 
 CHAPTER XLIX. 
 
 FEES OF CLERKS OF PROBATE COURTS IN CLASSIFIED 
 COUNTIES. 
 
 Act in relation to docket fee held unconstitutional. Fees of clerks of 
 county courts in probate matters. Remission of fees, etc. Record 
 in case of appeal or writ of error, fees and costs in such matter. 
 
 VOLUME II. 
 
 CHAPTER L. 
 
 REVERSIONS AND REMAINDERS. 
 
 Defined. Distinction between and gift to be paid at a future time, and 
 a direction to pay, or transfer the gift or legacy, at a future time. 
 How created by words and language used. Court determines 
 whether remainder is vested or contingent and whether such take 
 effect immediately or in the future, or not at all. Vested may
 
 TABLE OF CONTENTS. XVU 
 
 be transferred by sale on execution, by deed or will. Contingent 
 remainder may be merged, may be void for remoteness, may fail 
 or be destroyed. How such preserved, how lost. Who may take 
 vested and contingent interests. Prior estate. Deed may con- 
 vey. Future interest were possible construed to vest. Devises 
 of remainders to a class of persons named and not named. Future 
 springing and changing interests. Determinable interestSw Ex- 
 ecutory devises. When property devised for life must be con- 
 verted into money under established rules. Security for preserva- 
 tion of future estate. Life estate coupled with power of sale. 
 — Limiting a fee upon a fee. Cross remainders implied under 
 rules of construction. Power of disposal in first devisee. Restric- 
 tion when prior and subsequent clause of Will are in conflict. 
 
 CHAPTER LI. 
 
 COMMON LAW MARRIAGES. 
 
 General remarks concerning. The Statute of Illinois of 1905, declaring 
 same void. Evidence of such marriage under rules established. 
 Restrictions upon such marriage where all legal elements do not 
 center in such marriage. Held valid in Illinois when legally estab- 
 lished. 
 
 APPENDIX I. 
 
 Paragraphs from Wills of Noted and Prominent Persons, namely: 
 William H. Vanderbilt, Marshall Field, George M. Pullman, Cyrus 
 H. McCormick, George Smith, Levi Z. Leiter, John Crerar, Walter 
 L. Newberry, Philip D. Armour, Gustavus F. Swift, Otto Young, 
 George E. P. Dodge, Charles T. Yerkes, Edwin C. Swift, Nathaniel 
 K. Fairbanks, Sarah B. Eaton, Annie W. Durand, and Daniel B. 
 Shipman. 
 
 APPENDIX II. 
 
 A Collection of Forms relating to the Matter of Estates and the Ad- 
 ministration and Settlement thereof, including Petitions, Orders 
 and Decrees, and such other Written Instruments as Releases, Dis- 
 charges, Deeds, etc., applicable to the Administration of Estates.
 
 TABLE OF CASES CITED 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Abney v. Miller, 168. 
 Abbott V. People, 386, 449. 
 Adams v. Adams, 512, 514. 
 Adair v. Bremner, 331. 
 Aden v. Bear, 576, 
 Agnew V. Uchten, 617. 
 
 V. Fultz, 624. 
 Aken v. Cassiday, 733. 
 Albers Com. Co. v. Sessel, 661, 
 
 676. 
 Albretch v. Wolf, 308. 
 Alden v. St. Peter's Parish, 210. 
 Alexander v. Hoffman, 660. 
 
 V. Masonic Aid Assn., 75. 
 Allen V. Allen, 633. 
 
 V. McFarland, 93, 862, 864. 
 
 V. Croft, 195. 
 
 V. Jackson, 210. 
 
 V. Shepard, 583. 
 Ailing V. Brazee, 659, 668. 
 Allman v. Ruckma.n, 452. 
 Alna V. Plummer, 796. 
 Alwood V. Ruckman, 452. 
 Amber v. Weishaar, 96. 
 Ames V. Ames, 44, 45. 
 
 V. Am, T. & S, Bk., 270. 
 American v. Rimpert, 625. 
 American Bd. of F. Miss. v. Nel- 
 son, 68. 
 American Bible Soc'y v. Price, 82, 
 
 269, 270, 279. 
 Ammons v. People, 592, 712, 761. 
 Anderson v. Friend, 672, 
 
 V. Block, 131. 
 
 V. Anderson, 177, 588, 661. 
 
 Andrews v. Andrews, 210, 211. 
 
 V. Irwin, 116, 268, 667. 
 
 V. Mahoney, 822. 
 Anthony Itter B. Co. v. Ashby, 
 
 653. 
 Aortson v. Ridgeway, 707. 
 Appeal of Seibert, 378. 
 Argo V. Coffin, 274. 
 Armstrong v. Cooper, 486, 592. 
 Arnet v. Arnet, 98. 
 Arnt V. Griggs, 380. 
 Arnold V. Alden. 134, 229, 335, 865. 
 
 V. Keil, 286. 
 
 V. Crowder, 453. 
 Asay V. Allen, 330, 332. 
 Ashurst V. Given, 305. 
 Atkins V. Merrell, 622, 625, 627, 
 
 633. 
 Atkinson v. St. Croix Mfg. Co., 
 
 666. 
 Auger V. Tatham, 249. 
 Austin V. Bristol, 229, 862, 865. 
 Ayers v. Chicago Title & T. Co., 
 375, 377, 378, 379, 862, 864. 
 
 V. Baumgarten, 740. 
 
 V. Mussetter, 830, 832. 
 
 B 
 
 Badgley v. Votrain, 851. 
 Baggins v. Yates, 141. 
 Bailey v. Briggs, 753. 
 
 V. Gould, 326. 
 
 V. Bailey, 241, 243, 724. 
 Baker v. Baker, 80, 82, 258, 266, 
 270, 274, 328, 653, 667. 
 
 V. Carpenter, 200, 310. 
 
 ZlX
 
 XX 
 
 TABLE OF CONTENTS. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Baker v. Scott, 136, 177, 193, 194. 
 
 V. Brown, 395, 477. 
 
 V. Hamilton, 726. 
 
 V. Thompson, 612, 
 Balance v. Samuel, 606. 
 Balder v. Meddeke, 836. 
 Baldwin v. Ball, 530. 
 Bales V. Elder, 57. 
 Banerle v. Long, 215. 
 Bank V. White, 68, 633. 
 
 V. Beesley, 298. 
 
 V. Brown, 449. 
 
 V. EUedge, 668. 
 
 V. Mansfield, 678. 
 Baptist Ed. Society v. Carter, 608. 
 Barclay v. Piatt, 851. 
 Bardwell v. Brady, 258, 264, 265, 
 281. 661, 663, 676. 
 
 V. Bardwell, 141. 
 Barkman v. Barkman, 641. 
 Barkworth v. Young, 297. 
 Barnett v. Wolf, 580. 
 Barnard v. Barnard, 67, 660. 
 Barnes v. People, 336, 337, 339. 
 Barnsback v. Dewey, 706, 754. 
 Barnum v. Reed, 337, 340, 513. 
 Barrel! v. Joy, 297. 
 Barth v. Lines, 636. 
 Bartholomew v. People, 651. 
 Bartlett v. King, 169, 868. 
 Bartmess v. Fuller, 66. 
 Banta v. Boyd, 196, 311. 
 Bassett v. Lockwood, 528. 
 Bates V. Gilbert, 93. 
 
 V. Machine Co., 607, 665. 
 
 T. Gillette, 854. 
 Bateman v. Ritter, 112. 
 Bauer Grocer Co. v. McKee Shoe 
 
 Co., 520. 
 Bay V. Williams, 471. 
 
 V. Cook, 471. 
 Bayers v. Spencer, 717. 
 Baylor v. Baylor, 97. 
 Beach v. Dyer, 299. 
 
 Beacroft v. Strawn, 134. 
 
 Beaird v. Wolf, 601. 
 
 Beardsley v. Hill, 614. 
 
 Beattie v. Nafl Bk. of 111., 666. 
 
 Beaubien v. Cicotte, 277. 
 
 Becker v. Foster, 651. 
 
 V. Quigg, 621. 
 
 V. Becker, 191, 866. 
 Bedford v. Bedford, 617. 
 Beers v. Myers, 713. 
 Beeves v. Stipp, 607. 
 Bell V. People, 424. 
 
 V. Thompson, 649. | 
 
 V. Farrer, 659. 
 Bellamy v. Burrows, 297. 
 Belslay v. Engle, 182, 190. 
 Benefield v. Albert, 580, 739. 
 Bennett v. Bennett, 302, 312. 
 
 V. Hanifen, 587, 598, 750. 
 Benson v. Dempster, 285, 297. , 
 Bentley v. People, 678. 
 Benton v. Broth. R. R. Brakemen, 
 
 838. 
 Bergen v. Cahill, 140, 871. 
 Berry v. Powell, 478, 518. 
 Best V. Jenks, 623. 
 Betts V. Jackson, 116. 
 Bevelot v. Lestrade, 84, 131, 264, 
 
 269. 
 Beverly v. McGough, 269. 
 Beyers v. Spencer, 865. 
 Bibbens v. Potter, 139. 
 Biggins V. Brackman, 673. 
 
 V. Biggins, 298, 301. 
 Biglow v. Cady, 309, 321. 
 Billings V. People, 375, 376, 378. 
 
 V. City of Chicago, 683. 
 Bingle v. Voltz, 165, 173. 
 Binns v. LaForge, 311. 
 Birdsell v. Waggoner, 727. 
 Birmingham v. Kirwan, 244. 
 Bishop v. Davenport, 64, 65, 216. 
 
 V. Morgan, 173. 
 
 V. O'Connor, 528.
 
 TABLE OF CASES CITED. 
 
 2ja 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Bixby V. Dunlop, 702. 
 Black V. Miller, 265, 653. 
 Blackburn v. Bell, 712. 
 Blackiaw v. Milne, 75. 
 Blair v. Sennott, 485, 611. 
 
 V. Vamblaroum, 190, 191. 
 Blake v. People, 597. 
 Blakeslee v. Mansfield, 134. 
 Blanchard v. Blanchard, 235, 655, 
 661. 
 
 V. Maynard, 228. 
 
 V. Williams, 591, 608. 
 Bland v. Bland, 134, 140, 179. 
 Blasdel v. Locke, 339. 
 Bliss V. Seeley, 118, 121, 122. 
 
 V. Seaman, 439, 440, 586, 587. 
 Blood V. Harvey, 611, 612. 
 Boatman v. Boatman, 196, 852. 
 Bodgson V. Baldwin, 515. 
 Boehm v. Baldwin, 202. 
 Bogert V. Furman, 386. 
 Bonner v. Peterson, 618, 625, 627, 
 
 633. 
 Bonnett v. Glattfeldt, 669. 
 Bond V. Lockwood, 586, 724, 749, 
 
 750. 
 B. & I. Bldg. Assn. v. Cochrane, 
 
 669. 
 Borders v. Murphy, 329. 
 
 V. People, 461, 512. 
 Boord V. M. Ferst Sons & Co., 666. 
 Booth V. Tabbenor, 661. 
 Bostwick V. Skinner, 43, 390, 395, 
 
 706, 749. 
 Bottomly v. Spencer, 643. 
 Botsford V. O'Connor, 67, 580. 
 Bough ton V. Cameron, 727. 
 Bow V. People, 652. 
 Bowen v. Shay, 527, 529. 
 V. Allen, 173, 222. 
 
 V. Dean, 851. 
 Bowers v. Block, 577. 
 Bowerman v. Sessel, 187. 
 Bowler v. Bowler, 856. 
 Bowling V. Dobyn, 849. 
 
 Bowles V. Rouse, 387. 
 
 V. Allen, 726. 
 Bouzer v. Stoughton, 519. 
 Boyd V. Boyd, 663. 
 
 V. Strahan, 140, 871. i 
 
 V. Broadwell, 196. 
 
 V. Yerkes, 668. 
 
 V. Railway Co., 683. 
 Boyer v. Boyer, 491, 494. 
 
 V. Sweet, 606. 
 Boynton v. Phelps, 660. 
 Bozza V. Rowe, 584. 
 Brack v. Boyd, 499. 
 Brace v. Black, 82, 676. 
 Bradley v. Rees, 173, 221. 
 
 V. Gardner, 668. 
 
 V. Palmer, 279. 
 
 V. Drone, 580. 
 
 V. Wallace, 866. 
 Bradford v. Bennett, 392. 
 Bradshaw v. Combs, 649, 659, 662. 
 Bradwell v. Wilson, 483.\^ 
 Branch v. Ervington, 694.\ 
 
 V. Rankin, 387, 393, 408, 413» 
 439, 440. 
 Brandon v. Brown, 528, 750. 
 Brannon v. Strauss, 335. 
 Braunfield v. Braunfield, 278. 
 Brecenridge heirs v. Ormsby, 778. 
 Breckenridge v. Ostrom, 518. 
 Bree v. Bree, 580. 
 Breen v. Richardson, 523. 
 Bret V. Yeaton, 307, 324. 
 Brewing Co. v. Ohlerking, 673. 
 Brice V. Hall, 97, 117, 131, 273. 
 Bridge v. Bridge, 851. 
 Brobston v. Cahill, 268. 
 Brooks V. Barrett, 131. 
 
 V. McKinney, 659. 
 
 V. Funk, 668. 
 
 V. People, 713, 717. 
 Brokaw v. Ogle, 852. 
 Brookfield v. Allen, 79S. 
 Bromfield v. Wilson, 179, 180. 
 Bronson v. Hill, 229.
 
 XXll 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Bropp V. Fox, 523. 
 Brown v. Morgan, 462. 
 
 V. Riggins, 86, 272. 
 
 V. John, 177. 
 
 V. Pitney, 201, 244, 638. 
 
 V. Ward, 274. 
 
 V. Hurd, 659. 
 
 V. Miner, 776. 
 Brownback v. Kessler, 196. 
 Brownell v. Steers, 525. 
 Bruce v. DoolitUe, 598, 750, 754. 
 Bruler v. Setz, 327. 
 Bruner v. Bruner, 87. 
 
 V. Battell, 265, 660, 664. 
 Bryan v. Prinn, 707. 
 
 V. Wash, 717. 
 Buchanan v. McLennon, 201, 266. 
 Bucher v. Bucher, 233. 
 Buckman v. Alwood, 265, 656. 
 Buckingham v. Morris, 335, 869. 
 Bull V. Harris, 471. 
 Bunker v. Green, 451. 
 Burr V. Bloomer, 448, 576. 
 
 V. Lyon, 253. 
 Burbach v. Burbach, 296, 310, 313, 
 
 317. 
 Burger v. Polters, 610. 
 Burgivin v. Babcock, 261. 
 Burnett v. Lester, 867, 868, 871. 
 Burnham v. Burnham, 851. 
 Bursen v. Goodspeed, 630, 703. 
 Burson v. Dow, 634. 
 Burt V. Quisenberry, 82, 278. 
 Burton v. Gagnon, 196. 
 
 V. Cameron, 730. 
 Bush V. Blanchard, 324. 
 Bute V. Kneale, 643. 
 Butler V. Hubbard, 694. 
 
 V. Butler, 62, 324, 331. 
 V. Huestis, 134, 190, 603, 854, 
 874. 
 Butler Paper Co. v. Robbins, 329. 
 Butterbaugh Appeal, 319. 
 
 Butz V. Schwartz, 657, 663. 
 Byers v. McAuley, 47, 49, 472. 
 
 V. Thompson, 677. 
 Byrne v. Norcott, 326. 
 
 Cagney v. O'Brien, 588. 
 Cairnes v. Hunt, 668. 
 Calhoun v. Ross, 682. 
 Calvert v. C!arpenter, 261. 
 Callon V. Jacksonville, 847. 
 Cayne v. Leach, 836. 
 Camp V. Elliott, 392. 
 Campbell v. Campbell, 82, 86, 272, 
 273, 274, 281, 661, 663. 
 
 V. Quinn, 127. 
 
 V. Moore, 617. 
 
 V. Miller, 685, 742, 826, 827. 
 
 V. Mason, 872. 
 Cantesey v. Cantesey, 79, 117. 
 Cantwell v. Welch, 684, 685. 
 Capek V. Kropek, 582. 
 Cappo V. Hickman, 710. 
 Carr v. Carr, 265, 653. 
 Carey v. Rawlins, 851. 
 Carper v. Crawl, 862, 864. 
 Carroll v. Bosley, 424. 
 C'armichael v. Reed, 256. 
 Carpenter v. Browning, 133. 
 
 v. Van Orlander, 134, 177, 195. 
 
 v. Calvert, 263, 266, 269, 274. 
 
 V. Mitchell, 610. 
 Carper v. Crowl, 201, 638. 
 Carter v. Grunnels, 276. 
 
 V. Stookey, 625. 
 
 v. Tice, 713, 750, 751. 
 Cartwright v. Wise, 637. 
 Caruthers v. McNeil, 166, 243. 
 Carruthers v. Carruthers, 295, 417. 
 Cary v. Stead, 134, 139. 
 Casey v. Canavan, 313, 316. 
 
 V. Casey, 315. 
 Cash V. Taylor, 666.
 
 TABLE OF CASES CITED. 
 
 XXlll 
 
 [befebences are to sections.] 
 
 Cashman v. Will, 182. 
 Cassen v. Kennedy, 93. 
 
 V. Heustis, 673. 
 Cassell V. Joseph, 580. 
 Casoni v. Jerome, 390. 
 Central Lumber Co. v. Keller, 667. 
 Central Electric Co. v. Sprague 
 
 El. Co., 667. 
 Chambers v. Jones, 583. 
 
 V. Howell, 522. 
 Chamberlain v. Williams, 337. 
 Champney v. Blanchard, 338. 
 Chandler v. Morey, 822. 
 Chapin v. Crow, 186. 
 Chapman v. Cheney, 191, 857, 858. 
 
 V. U. L. I. Co., 453. 
 Chappell V, Knight, 545. 
 Chase v. Cheney, 652. 
 V. Redding, 340. 
 V. Smith, 694. 
 Cheney v. Teese, 147, 182, 197, 873. 
 V. H. F. & F. Miss. Society, 
 
 117. 
 V. Roodhouse, 534, 750, 754. 
 Chestnut v. Chestnut, 639. 
 Chicago Elec. L. & R. Co. v. Hut- 
 chinson, 666. 
 Title & T. Co. V. Brown, 39, 
 
 117, 127, 128. 
 Terminal T. Co. v. Wins- 
 low, 283, 305, 306, 317. 
 Union Nat'l Bk. v. Goetz, 
 
 300. 
 Fire Place Co. v. Tait, 321, 
 Mut. Ins. Assn. v. Hunt, 327. 
 & E. I. R. R. Co. V. O'Con- 
 nor, 451, 607. 
 R. I. & P. R. R. Co. V. 
 
 Welch, 660. 
 City Railway Co. v. Tuohy, 
 
 665. 
 B. & Q. R. R. Co. V. Dunn, 
 
 672. 
 Stove Works v. Lalley, 695. 
 
 Chicago, R. I. & P. R. R. Co. r. 
 
 Munger, 776. 
 Chisolm V. Beaman Mfg. Co., 668. 
 
 V. Ben, 116. 
 Christy v. Marmon, 58, 502, 506. 
 Christiansen v. D. T. & W. Co., 
 651, 661, 676. 
 
 V. Graver Tank Co., 679. 
 City of Alton v. County of Madi- 
 son, 766, 796. 
 City of Peoria v. Darst, 179, SSI- 
 City of Aurora v. Scott, 651. 
 City of Chicago v. Nodeck, 657. 
 City of Chicago v. Vesey, 667. 
 City of Chicago v. English, 68?, 
 
 683. 
 Clark V. Thompson, 580, 583. 
 
 V. Carr, 530. 
 
 V. Shanon, 196. 
 
 V. Clark, 635. 
 
 V. Canfield, 253, 
 
 V. People, 073. 
 
 V. Pierce, 327, 
 
 V. American Surety Co., 438L 
 
 V. Middleton, 871. 
 
 V. Burnside, 453, 629, 728, 
 730, 
 
 V. Mogle, 467. 
 
 V, Lotts, 641. 
 Clapp V. Emery, SOO, 
 Clausennius v. Clausennius, 54, 
 
 89, 114, 131, 258, 278. 
 Clay V. Hart, 429. 
 
 V. Freeman, 515. 
 
 V. Hammond, 778. 
 
 Clewes V. Fox, 43, 
 Cleland v. Fish, 707. 
 Clifford V. Davis, 182. 
 Cline V. Jones, 64, 66, 87, 865. 
 Clinefelter v. Clinefelter, 399. 
 
 V. Ayers, 545. 
 Cloggins Appeal, 850. 
 Clough V, Clough, 337.
 
 XXIV 
 
 TABLE OF CASES CITED, 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Clyboum v. Pitts, Ft. W. R. R. 
 
 Co.. 633. 
 Coat V. Coat, 487. 
 Cobb V. Charter, 323. 
 Ctockerman v. Cockerman, 277, 
 Cochran v. Cochran, 168. 
 
 V. Adams, 327. 
 Coffey V. Coffey, 512, 513, 514, 
 Cole V. Haws, 142. 
 Coles V. Terrill, 639. 
 Coleton V. Field, 486. 
 Collins V. Ayers, 623. 
 
 V. Kinnare, 588, 612. 
 
 V. Wood, 638. 
 Columbia Mfg. Co. v. Hastings, 
 
 •657. 
 Combs V. Bradshaw, 659. 
 Comer v. Comer, 64. 
 Oommercial Nat'l Bk. v. Lincoln 
 F. Co., 666. 
 
 V. Proctor, 515. 
 Compher v. Browning, 86, 272, 
 
 273, 278. 
 Compton V. McCaffrey, 469, 585. 
 Commonwealth v. Gilson, 429. 
 
 V. Toms, 401. 
 Condon v. Churchman, 765. 
 Conklin v. City of Springfield, 863. 
 
 V. Foster, 630. 
 Connor v. Akin. 512. 
 Connelly v. Dunn, 672. 
 Conover v. Musgrave, 740. 
 Consolidated Coal Co. ▼. Gruber, 
 
 726. . 
 Constable v. Bull, 138. 
 Conservatorship of Hall, 775, 781. 
 Cook Co. V. Fairbanks, 842. 
 Cook V. Wood, 468, 484. 
 
 V. Gilmore, 328, 335. 
 Cool V. Jackson, 623. 
 
 V. Jackman, 627. 
 Cooper V. Cooper, 191, 197, 243, 
 859. 
 
 V. McClun, 296. 
 
 Coppin V. Fernybough, 168. 
 C'orderey v. Hughes, 675. 
 Cornell v. Crosby, 376, 378, 379. 
 Corrington v. Corrington, 487. 
 Corwin v. Shoup, 741. 
 County of Cook v. Ind. School for 
 
 Girls, 616. 
 Cowdry v. Hichcock, 133, 149, 245, 
 
 638, 639. 
 Cowman v. Rogers, 836, 838. 
 Cox V. Garst, 627, 634. 
 Craig V. Southard, 80, 82, 266, 270, 
 
 271, 272, 274. 
 Grain v. Kennedy, 602. 
 Crane v. Crane, 660. 
 Crawford v. Burke, 164. 
 
 V. Cemetery Assn., 312. 
 
 V. Thompson, 779. 
 Creel v. Kirkham, 452. 
 Crerar v. Sawyer, 108. 
 Critz V. Pierce, 117. 
 Crose V. Rutledge, 672. 
 Cross V. Carey, 386. 
 
 V. People, 268. 
 Crossett v. Owens, 686. 
 Grossman v. Wohllenben, 662. 
 Cromine v. Tharp, 712. 
 Cronin v. Royal League, 653. 
 Crone v. Crone, 298. 
 Croucher v. Croucher, 298. 
 
 V. Dillon, 295. 
 Crowley v. Crowley, 79, 131. 
 Crum V. Sawyer, 108, 216. 
 Grumpier v. Governor, 401. 
 Crumley v. Warden, 75, 667. 
 Cruse V. Cruse, 485, 496. 
 Cuming v. Hill, 694. 
 Cunningham v. Dougherty, 89. 
 
 V. Railroad Co., 727, 751. 
 Curtis V. Rippon, 142. 
 
 V. Brown, 316, 822. 
 
 V. Brooks, 589, 613. 
 Currie v. Syndicate, 666.
 
 TABLE OF CASES CITED, 
 
 XXV 
 
 Curry v. People, 529, 530, 598. 
 Cutler V. Cutler, 578, 581, 582. 
 outright V. Stanford, 601. 
 
 D 
 
 Dady v. Condit, 657. 
 Daggart v. White, 295. 
 Dailey v. Dailey, 274. 
 
 V. Wilkie, 239, 243, 295. 
 Dalndridge v, Washington, 484. 
 
 V. County of Kanka- 
 
 781, 796. 
 
 Daniher. 634, 635. 
 
 Taylor, 339. 
 McDonald, 475, 477, 
 
 Dandurand 
 kee, 
 Daniher v 
 Darland v. 
 Darling v. 
 
 483. 
 Darrah v. Boyce, 327. 
 Darst V. Gale, 665. 
 Daub V. Englebach, 471. 
 Dauel V. Arnold, 578, 579, 638. 
 David V. Ellis, 668. 
 Davidson v. Riddin, 255. 
 Davis v. People, 662. 
 
 v. Upson, 113, 255. 
 
 V. Stergeon, 134. 
 
 v. Hudson, 706. 
 
 V. Ripley, 177. 
 
 V. Stromberg, 289, 333. 
 
 V. Hamlin, 707. 
 
 V. Strambaugh, 301. 
 
 V. Harkness, 314, 703, 
 750. 
 
 V. James, 603, 733. 
 
 V. Jones, 611. 
 Davenport v. Farrar, 633. 
 
 V. Kirkland, 310. 
 
 v. Reynolds, 443, 550. 
 Daxanbeklar v. People, 651. 
 Day V. Everett, 694. 
 Dean v. Walker, 471. 
 
 V. Bittinger, 253. 
 
 V. Long, 304, 660. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Dearlove v. Otis, 250. 
 Dearth v. Bute, 612. 
 Dee V. Dee, 196. 
 
 Decker v. Decker, 165, 173, 243, 
 248, 642, 645. 
 
 V. Patton, 387, 445. 
 Deford v. Deford, 853. 
 Deiterman v. Ruppel, 485. 
 Deland v. Metzer, 736. 
 Deltzer v. Schuester, 638. 
 Demilly v. Grosresand, 43. 
 Denegre v. Walker, 316. 
 Dennis v. McCagg, 315, 332. 
 Dennison's Appeal, 277. 
 Deniston v. Hoagland, 672. 
 De Pay v. Wurtz, 374. 
 Despain v. Wagner, 285. 
 Dettszer v. Schuester, 498. 
 Deuterman v. Ruppel, 657, 683. 
 Deval v. Dye, 337, 339. 
 Devine v. Devine, 298. 
 Dews V. Osborne, 651. 
 Dick V. Dick, 298. 
 Dickey v. Parker, 79. 
 
 V. Malechi, 267. 
 
 V. Carter, 271. 
 Dieken v. McKinley, 297. 
 Dickison v. Dickison, 726. 
 Dickson v. Hitt, 588. 
 
 V. N. Y. Bis. Co., 215. 
 Dickinson v. Dickinson, 166, 618. 
 711, V. Griggsville Nat'l Bk., 869. 
 
 Dillman v. McDaniels, 270. 
 Dingman v. Beale, 291, 295. 
 Dinsmore v. Bressler, 449, 512. 
 Dinwiddle v. Self, 191. 
 Ditch V. Sennott, 201, 245, 638. 
 Diversey v. Smith, 260, 608. 
 
 V. Johnson, 327, 520, 579. 580, 
 591. 
 Dixon V. Buell, 386, 750. 
 
 V. Nichols, 534. 
 Dobbins v. First Nat'l Bk., 717.
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE 
 
 Dodge V. Nat'l Ex. Bk., 666. 
 V. Mack, 486. 
 V. Cole, 602, 770, 771, 790, 820, 
 
 822. 
 Dodgson V. Henderson, 659, 660, 
 
 662. 
 Dodson V. Sears, 668. 
 Doe V. Considine, 849. 
 Doggert V. Dill, 44, 490, 523. 
 Donoghue v. Chicago, 625. 
 Donlevy v. Montgomery, 265. 
 Donlin v. Bradley, 298. 
 Doolittle V. Bruce, 750. 
 Dooley v. Crist, 453. 
 Doran v. Mullen, 130, 267. 
 Dorman v. Dorman, 298, 386. 
 Doty V. Doty, 651. 
 Doubleday v. Kress, 666. 
 Douglas V. Fullerton, 651. 
 Douthart v. Logan, 515, 524. 
 Dows V. Swan, 170. 
 Downing v. Plate, 667. 
 Drake v. Kinsell, 401. 
 Draper v. Draper, 651. 
 Drew V. Haggerty, 336. 
 Drury v. Connelly, 96. 
 Ducat V. City of Chicago, 379. 
 Ducker v. Burnham, 93, 310, 849, 
 
 864. 
 Duffin V. Abbott, 43, 390, 395, 439, 
 
 440, 549, 586, 602, 770. 
 Duggart V. White, 295. 
 Durham v. Mulkey, 621. 
 Duncan v. Duncan, 162. 
 
 V. Charles, 101. 
 Dunham v. Dunham, 641. 
 Dunlap V. Lamb, 607. 
 V. McGee, 486, 592. 
 
 Dunnigan v. Stevens, 479. 
 Duryea v. Duryea, 68, 108, 134, 
 
 227. 
 Durror v. Matteaux, 210. 
 Durant v. Rogers, 332. 
 Dosing V. Nelson, 598. 
 Dutton V. Board of Review, 379. 
 
 TO SECTIONS.] 
 
 Duval V. Duval, 44, 45. 
 Dwight V. Newell, 541, 602. 
 Dwyer V. O'Connor, 298. 
 Dye V. Noel, 611. 
 Dyer v. Hopkins, 660, 678. 
 
 E 
 
 Eads V. Thompson, 673. 
 
 V. Mason, 490, 523. 
 Eagan v. Clark, 588, 601. 
 
 V. Connolly, 679. 
 Easterly Harvester Co. v. Hill, 
 
 657. 
 Eaton V. Watts, 142. 
 
 V. Straw, 851. 
 Ebey v. Adams, 317, 854. 
 Ebert v. Cording, 660. 
 Eddy v. People, 770. 
 Egbers v. Egbers, 279. 
 Elder v. Bales, 57. 
 Eldred v. Meek, 850. 
 Eldridge v. Palmer, 779. 
 
 V. Eldridge, 855. 
 Ellicott v. Lewis, 386. 
 Ellis v. Ellis, 141. 
 Ellithorpe v. Buck, 261. 
 Ely V. Dix, 545. 
 Emerick v. Hileman, 487, 587, 
 
 65L 
 Emerson v. Marks, 90. 
 Emmerson v. Durand, 332. 
 Emmert v. Hayes, 54, 88, 133, 173. 
 Emmons v. Moore, 707. 
 English v. Porter, 86. 
 
 v. Cooper, 310. 
 
 v. Landon, 663. 
 Ennis v. Ennis, 615, 765. 
 Entwistle v. Meikle, 80, 258, 266, 
 
 275. 
 Estate of Corrington, 44, 200, 296, 
 598. 
 
 Kohley, 131. 
 
 Biddle, 862, 865.
 
 TABLE OF CASES CITED. 
 
 XXVll 
 
 [BEFEBENCES ABE 
 
 Estate of Carstensen, 850, 855. 
 
 Delaney, 855. 
 
 Johnson, 850. 
 
 Cashman, 93, 243, 871. 
 
 Steele, 265, 466, 487, 653, 740, 
 749. 750, 754, 757, 764. 
 
 Page, 266, 267, 268. 
 
 Scoville, 491, 494, 500. 
 
 Bonse, 268, 659. 
 
 Chafee, 274. 
 
 Smith, 274, 709. 
 
 Story, 283. 
 
 Whitman, 295. 
 
 Hoffman, 378. 
 
 Stewart, 378. 
 
 Dow, 378. 
 
 Sloan, 378. 
 
 Swift, 379. 
 
 Speed, 379. 
 
 Bailie, 379. 
 
 Shell, 277. 
 
 Dietz, 99. 
 
 Grossman, 98. 
 
 Wagner, 386. 
 
 Dock, 389. 
 
 Wincox, 391. 
 
 Wilson, 415. 
 
 Porter, 489. 
 
 Phillip Kraher, 512, 514. 
 
 Scofield, 595. 
 
 Ramsey, 598. 
 
 Witton, 611. 
 
 Margaret Handlin, 651. 
 
 Walker, 652. 
 
 Selwyn, 836. 
 
 Earl, 836, 837. 
 
 Cope, 842. 
 
 Rapp V. Phoenix Ins. Co., 607. 
 Etheridge v. Corprew, 127a. 
 Etling V. Bank, 44, 45, 401, 434, 
 467, 468, 470, 487, 579, 583, 
 584. 
 Evans v. People, 682. 
 
 V. Price, 149, 150, 638, 640. 
 
 TO SECTIONS.] 
 
 Ewart V. Village of Western 
 
 Springs, 685. 
 Ewing V. Bailey, 652. 
 Exter V. Odiorne, 305. 
 Ex Parte Guernsey, 629. 
 Ex Parte Burkhart, 706. 
 
 F 
 
 Fairbanks v. Crane, 851. 
 Fairman v. Beal, 851. 
 Faloon v. Sinshauen, 865. 
 Fairwans Appeal, 489. 
 Farrand v. Long, 633. 
 Fash V. Blake, 268. 
 Flatjo V. Blister, 842. 
 Fell V. Young, 603. 
 Felsenthal v. Kline, 300. 
 Female Academy v. Sullivan, 862. 
 Ferbache v. Ferbache, 660. 
 Fidal V. Girard, 212. 
 Figge V. Rowlen, 679, 681. 
 Field V. Oppenstein, 280. 
 
 V. People, 196, 739, 740. 
 
 V. Herrick, 724, 727, 730. 
 Filmore v. Weeks, 725, 580. 
 Finley v. King, 851. 
 Firemans Ins. Co. v. Peck, 662, 
 
 663. 
 First Nat'I Bk. v. Gage, 449, 526. 
 Fish V. Glover, 471. 
 Fisher v. Fishbank, 134, 200, 318. 
 
 V. Fisher, 660. 
 Fishback v. Joesting, 134, 862. 
 Fishbeck v. Gross, 298. 
 Fisk V. Seeberger, 315, 330. 
 Fitzgerald v. Turner, 565, 575. 
 
 V. Glancy, 386, 395. 579. 
 
 Fitzgibbon v. Lake, 737, 740, 820. 
 Fitzsimmons v. Cass, 485. 
 Fitzpatrick v. Joliet, 615. 
 Flagg V. Stone, 515. 
 Flannigan v. Howard, 68.
 
 XXVlll 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE 
 
 Fletcher v. Shepherd, 6G1. 
 
 V. Ashburner, 215, 310. 
 Fleming v. Mills, 661, 663. 
 
 V. Vennum, 625. 
 Fleischman v. Walker, 616. 
 Flint V. McClung, 659. 
 Flynn v. Gardner, 672. 
 
 V. Davis, 851. 
 Ford V. McVay, 694, 695. 
 
 V. First Nat'l Bk., 468, 483, 
 484, 485. 488, 587, 512. 
 Fogarty v. Ream, 750. 
 Foskett V. Wolf, 488, 587. 
 Foster v. Adler, 406. 
 
 V. Hart, 670. 
 
 V. Hale, 297. 
 Fox V. Fox, 141. 
 Frail v. Carstairs, 70, 866. 
 Frame v. Frame, 590. 
 Francis v. Wilkerson, 278. 
 Francisco v. Hendricks, 630. 
 Frank v. Moses, 615. 
 Frankenstein v. North, 298. 
 Frans v. People, 615. 
 Frazer v. Supervisors, 190, 191, 
 
 192, 854. 
 Frederick v. Emig, 582, 633. 
 Freer v. Lake, 101. 
 Freeman v. Freeman, 672. 
 
 V. Easly, 54, 82, 86, 89, 263, 
 272, 279. 
 
 V. Hartman, 635. 
 French v. Northern Trust Co., 
 292. 
 
 V. Woodruff, 42. 
 Frendenstein v. McNeir, 598. 
 Friedman v. Steiner, 140, 179, 181, 
 
 857, 866, 871. 
 Fredrick v. Fredrick, 217, 299. 
 Frink v. People, 660. 
 Frothingham v. Petty, 401, 415, 
 
 424, 434. 
 Frothman v. Deters, €10. 
 Fruitt V. Anderson, 776. 
 
 TO SECTIONS.] 
 
 Fry V. Bidwell, 739. 
 
 V. Morrison, 162, 201, 637. 
 Frynear v. Lawrence, 445. 
 Fuller V. Field, 678. 
 
 V. Linzee, 836, 838. 
 Funk V. Eggleston, 174, 182, 673, 
 
 851. 
 Furlong v. Riley, 495, 497, 499. 
 Fussey v. White, 206. 
 
 G 
 
 Gage Hotel Co. v. Bank, 666. 
 Gage V. Eddy, 651, 662, S63. 
 
 V. Smith, 127. 
 
 V. Gage, 851. 
 
 V. Caraher, 380. 
 
 V. Consumers El. L. Co., 381, 
 382. 
 Galagher v. Kilkeary, 96. 
 Galbraith v. McLain, 64, 216, 637, 
 
 660, 672. 
 Gale V. Gale, 201. 
 
 V. Kinzie, 633. 
 Galena C. & U. R. R. v. Welch, 
 
 649. 
 Gammon v. Gammon, 215, 295. 
 Gannon v. Peterson, 134. 177, 191-. 
 
 866. 
 Gardt v. Brown, 101. 
 Gardner v. Ladue, 119. 
 
 v. Maroney, 770. 
 Garrison v. Little, 212. 
 Garvin v. Curtin, 295, 316. 
 Garvey v. Coughlin, 451. 
 
 v. Newton, 216. 
 Gauch V. St. Louis Mut. L. Ins 
 
 Co., 74, 638. 
 Gaunt V. Tucker, 340. 
 Geisen v. Heiderick, 285. 
 Gehrke v. Gehrke, 617. 
 Gibbons v. Hoag, 321. 
 Gibson v. Gibson, 576. 
 Gifford v. Wilkins, 661.
 
 TABLE OP CASES CITED. 
 
 XXIX 
 
 [BEFEBENCES ABE TO SECTION'S.] 
 
 Gilbert v. Guptill, 417, 711, 717, 
 
 750, 754. 
 Giles V. Anslow, 140, 141, 191. 
 
 V. Smith, 292. 
 Gilespie v. Gilespie, 673. 
 
 V. Smith, 292. 
 Gill V. Manufacturing Co., 196. 
 
 V. G. T. M. Co., 310. 
 Gillette v. Wiley, 705, 712, 713, 
 
 750, 751, 754. 
 Gilman v. Stone, 212. 
 
 V. Hamilton, 213. 
 Glass V. Scott, 102. 
 Gloss V. Kingman, 381. 
 
 V. Cessna, 381, 382, 
 
 V. Hickow, 381. 
 
 V. Hoban, 382. 
 
 V. Halberg, 381. 
 
 V. Hallowell, 382. 
 
 V. Talcott, 382. 
 Glover v. Condell, 134, 306, 872. 
 
 V. Cayton, 330. 
 Goodale v. Lawrence, 796. 
 Goodall V. Hibbard, 851. 
 Goodman v. Kotrel, 44, 45. 
 
 V. Koppert, 386. 
 Goodland v. Burnett, 168. 
 Goodbar v. Lldikey, 271. 
 Godschalk v. Fullmer, 285, 297. 
 Goels V. Goels, 637, 662. 
 Goeppner v. Leitzelman. 449, 461, 
 
 469. 
 Goff V. Pensonhafer, 198, 851. 
 
 V. O'Connor, 453. 
 
 V. Insurance Co., 661. 
 Gogan V. Burdick, 624. 
 Golder v. Bressler, 680. 
 Gold V. Bailey, 448, 468, 469, 484, 
 526. 
 V. Judson, 168. 
 Gondy v. Hall, 820. 
 Gordon v. Dickinson, 641. 
 
 V. Gilfoil, 47. 
 
 V. Dodge, 201. 
 Qormley v. Bunyan, 679. 
 
 Gorton v. Frizzell, 597. 
 Governor v. Barr, 401. 
 
 V. Matlock, 401. 
 Gove V. Gather, 625. 
 Gould V. Theological Seminary, 
 
 79. 82, 117, 138. 
 Grafifenreid v. Kundert, 390, 530, 
 
 598, 600, 601. 
 Graham v. U. S. S. Inst, 666. 
 V. People, 481. 
 V. Dodge, 245. 
 Grand Pass Shooting Club v. Cros- 
 by, 679. 
 
 Grand Tower Manf g Co. v. Hall, 
 
 733. 
 Granjang v. Merkle, 475. 
 Grattan v. Grattan, 64, 127. 
 Gray v. Gillilan, 751. 
 
 V. Newton, 66. 
 Graybeal v. Gardner, 263, 266. 
 Green v. Birch, 638. 
 
 V. Hitchcock, 117. 
 
 y. Taney, 614. 
 
 V. Green, 86, 272, 279. 
 
 V. Hewett, 184. 
 Greenbaum v. Austrian, 633, 634. 
 
 V. Greenbaum, 737. 
 Greenwood v. Greenwood, 310. 
 Greer v. Walker, 542. 
 Gregory v. Loose, 666. 
 Grier v. Cable, 611, 612, 616. 
 Griffin v. Griffin, 182, 333, 662. 
 
 V. Bogert, 819. 
 Grimmer v. Friederick, 196, 849, 
 
 850, 855, 862, 864. 
 Groembel v. Arnett, 523. 
 Grover v. Grover, 339. 
 Griswold v. Smith, 588. 
 
 v. Greer, 851. 
 
 v. Hicks, 851. 
 Gritten v. Dickerson, 633. 
 Gruhn v. Richardson, 300, 301. 
 Guild v. Hall, 84, 269, 274. 
 Guilfoil v. Arthur, 296.
 
 XXX 
 
 TABLE OF CASES CITED. 
 
 [eefebences are to sections.] 
 
 GuUett V. Farley, 496, 638, 640. 
 Gum V. Richardson, 280, 333. 
 Gunnell v. Cocker, 717. 
 
 H 
 
 Hadley v. Hopkins, 212. 
 Hagan v. Varney, 300, 
 Hagerman v. Hagerman, 193, 340. 
 Haines v. Hewett, 622. 
 Hale V. Hale, 207, 210, 215, 251, 
 
 295, 309, 317. 
 Halfield v. Fowler, 134. 
 Hall V. Irwin, 333, 390, 441, 527, 
 546. 
 
 V. Warren, 154. 
 
 V. Moxey, 479. 
 
 V. Harris, 623. 
 Halloran v. Fitzgerald, 300. 
 Hambrook v. Simmons, 341. 
 Hamlin v. U. S. Express Co., 133, 
 
 140, 179, 864, 871, 874. 
 Hamilton v. Hamilton, 641. 
 
 V. Wells, 530. 
 
 V. Latakee, 819. 
 
 V. People, 840. 
 Hanchett v. Rice, 606. 
 Hancock v. Am. L. Ins. Co., 253. 
 Hanifan v. Needles, 390, 433, 440, 
 
 596, 602, 760. 
 Haniford Oil Co. v. First Nat'l 
 
 Bank, 665. 
 Handberry v. Doolittle, 145, 855. 
 Hanna v. Reed, 778. 
 
 V. Palmer, 582. 
 Harding v. Le Moyne, 577, 579. 
 580, 581. 
 
 V. Shephard, 45, 478. 
 
 V. Osborne, 318. 
 Harrer v. Wallner, 704. 
 Harris v. Mclntyre, 298. 
 
 V. Connell, 318. 
 
 V. Millard, 488, 587. 
 
 Harrison v. Wetherby, 118, 121, 
 122. 
 
 V. Rowan, 272. 
 Harriman v. Sampson, 661. 
 Harrington v. Stees, 96, 97. 
 Harmony v. Bingham, 323. 
 Harp V. Parr, 95, 263, 271. 
 Hart V. Seymour, 320. 
 
 V. Brown, 329. 
 
 V. Burch, 585. 
 Hartz V. Seinsheimer, 852. 
 Harshbarger v. Carroll, 856, 865. 
 Hartford Life Ins. Co. v. Sher- 
 man, 665. 
 Hartman v. Schultz, 582, 630, 852. 
 Hartwell v. McDonald, 630. 
 
 V. DeVault, 644. 
 Harvey v. Harvey, 750, 751. 
 
 V. Sweet, 740. 
 
 V. Cook County, 382. 
 Harvard College v. Balch, 196, 849, 
 864. 
 
 Hapgood V. Cornwell, 523. 
 
 Haskins v. Martie, 595. 
 
 Hatch v. Atkinson, 336. 
 
 Hause V. Van Ingen, 332. 
 
 Mauser v. Moore, 851. 
 
 Hawhe V. C. & W. I. Ry. Co., 106. 
 
 Hawkins v. Bohling, 862. 
 
 v. Wills, 141, 142. 
 Hawver v. Hawver, 672, 674. 
 Hayac v. Will, 578, 581, 582. 
 Hayes v. Hayes, 374. 
 
 v. Mass Mut. L. Ins. Co., 724. 
 729. 
 
 v. Thomas, 51. 
 
 V. Parmlee, 674. 
 
 V. Borders, 702. 
 Haynes v. Mcllwain, 300. 
 
 V. People, 597, 615. 
 
 V. Clearlock, 790, 791. 
 Haynie v. Dickens, 638. 
 Hazeltine v. Fourney, 300. 
 Hazelrigg v. Pursley, 727, 751, 765. 
 Heacock v. Hosmer, 261.
 
 TABLE OF CASES CITED. 
 
 xxxl 
 
 [KEFEBENCES ABE TO SECTIONS.] 
 
 Headley v. Kirby, 336, 340. 
 Healy v. Eastlake, 8G6, 874. 
 Heath v. Hewitt, 851. 
 Heckenkemper v. Dingwehrs, 597. 
 Heirs of Langworthy, 393. 
 Heirs of Critz v. Pierce, 131. 
 Heinrichson v. Heinrichson, 866. 
 Heintz v. Algren, 254. 
 
 V. Dennis, 307. 
 Heiser v. Sutton, 636. 
 Henchel v. Hamers, 298. 
 Henderson v. Virden Coal Co., 309. 
 
 V. Blackburn, 179, 182, 183, 
 333, 871. 
 
 V. Coover, 401. 
 
 V. Treadway, 664. 
 Hendrickson v. Van Winkle, 712. 
 
 V. Mudd, 261. 
 Henry v. Caruthers, 466. 
 
 V. Eddy, 449. 
 
 V. Tiffany, 670. 
 
 County V. Drainage Co., 321. 
 Henson v. Moore, 72, 88, 582. 
 Hesse v. Simpson, 850. 
 Hersey v. Purington, 850. 
 Herman v. Vogt, 86, 273. 
 Herrington v. Lawman, 386. 
 Heslet V. Heslet, 530, 638. 
 Heslop V. Grattan, 230. 
 Hesterbrook v. Clark, 94, 396. 
 Hetfield v. Fowler, 870. 
 Hill V. Hill, 851. 
 Hough V. Rawson, 863. 
 Houstes V. Johnson, €02. 
 Heuschkel v. Heuschkel, 617. 
 Howard v. Slagle, 587, 613. 
 
 V. Peavey, 854. 
 Howe V. Hodge, 858. 
 Hickox V. Frank, 387, 445. 
 Higgins V. Dwen, 202. 
 
 V. Lansingh, 310. 
 
 V. Curtis, 329. 
 
 V. Spring, 601. 
 
 V. Higgins, 617. 
 
 Highland v. Highland, 87. 
 Hildebrandt v. Ames, 836, 838. 
 Hill V, Bahrns, 80, 271, 279. 
 
 V. Grannelli, 39, 206. 
 Hinds V. Hinds, 295. 
 Hinkley v. Reed, 665. 
 Hitt V. Scammon, 260, 627. 
 Hoagland v. Great W. Tel. Co., 
 678. 
 
 V. Crum, 448. 
 Hoare v. Harris, 726. 
 Hobson V. Ewan, 43, 390, 395, 408. 
 
 V. Payne, 579, 615. 
 Hobble V. Ogden, 318. 
 Hoeffer v. Clogan, 210, 211, 212. 
 Hoffman v. Chicago Title & T. 
 
 Co., 665. 
 Holbrook v. Forsythe, 75, 224. 
 Holden v. Herkimer, 615. 
 
 V. Cook County, 212. 
 
 V. Piper, 390. 
 Holderman v. Gray, 660, 
 Holton V. Dunker, 665. 
 
 V. Daily, 451. 
 Hollaway v. Galloway, 131, 266. 
 Holerman v. Blue, 729. 
 Holister v. Corder, 836. 
 HoUiday v. Dixon, 164. 
 
 V. Gamble, 702. 
 Holmes v. Field, 710, 728. 
 
 V. Shaver, 528. 
 
 V. Burwell, 601. 
 Holson V. Fullerton, 709. 
 Hopkins v. McCann, 543, 576, 588. 
 
 V. Medley, 127. 
 Hooper v. McCaffery, 492, 510. 
 Hoover v. Hoover, 865. 
 Homer v. Zimmerman, 712. 
 
 V. Spellman, 682. 
 
 V. Goe, 615. 
 Horvitt V. Estelle, 279. 
 Hotchkiss V. Brooks, 630. 
 Hough v. Harvey, 595. 
 House V. House, 142. 
 
 V. People, 43.
 
 XXXI 1 
 
 TABLE OF CASES CITED, 
 
 [references are 
 
 Hovey v. Thompson, 668. 
 Howe V. Hutchinson. 280. 
 
 V. Hodge, 320. 
 
 V. People, 598". 
 Howard v. P"'lannigan, 105. 
 
 V. Slagel, 518. 
 Hoy V. Martin, 142. 
 Hoydt V. Shepherd, 330, 335. 
 Hubbard v. Hubbard, 109, 162. 
 Hudson V. Hudson, 216. 
 Huey V. Huey, 717. 
 Huesser v. Harris, 211, 212, 213, 
 
 214. 
 Huffman v. People, 390. 
 Huggins V. Drury, 266, 274. 
 Hughes V. Washington, 215. 
 
 V. People, 729, 730, 514. 
 Hull V. Eddy, 851. 
 Hulock V. Ferville, 865. 
 Hundall v. Ham, 57, 68, 103, 108, 
 
 637. 
 Hunt V. McCartney, 196. 
 
 V. Fowler, 212. 
 Kurd V. Goodrich, 330, 332, 382. 
 Hurlbut V. Meeker, 659. 
 Hutchinson v. Hutchinson, 665. 
 
 V. McLaughlin, 727. 
 Hyman v. Harding, 286. 
 Hyslop V. Finch, 611. 
 
 lago V. lago, 771. 
 
 Ide V. Ide, 851. 
 
 Illinois Cent. Ry. Co. v. Lattimer, 
 726. 
 
 V. Messnard, 674. 
 
 V. Cragin, 495. 
 
 V. Weldon, 649, 651. 
 
 V. Reardon, 664. 
 
 V. Taylor, 672. 
 
 Christian Miss. Con. v. Hall, 
 337. 
 
 TO SECTIONS.] 
 
 Illinois Life Ass'n v. Wells, 663. 
 Land & L. Co. v. Bonner, 199, 
 
 215, 850. 
 V. Speyer, 259. 
 Independent Order v. Stall, 276. 
 Inglis V. Trustees Sailors Harbor, 
 
 213. 
 Ingraham v. Ingraham, 134, 208, 
 210, 211, 212, 256, 466, 471. 
 Insurance Co. v. Gorisch, 415. 
 V. Woodworth, 415. 
 V. Hardesty, 451. 
 V. Johnson, 657. 
 Irwin V. Walpert, 241, 243. 
 Iroquois Furnace Co. v. Hardware 
 
 Co., 665. 
 Isle V. Cranby, 770, 771, 776, 792. 
 
 Jackson v. Leek, 717. 
 
 V. Minor, 707. 
 
 V. Wilcox, 707. 
 
 V. Bank, 666. 
 
 V. Phillips, 210. 
 
 V. Horton, 300. 
 
 V. Phipps, 617. 
 
 V. Rowland, 617. 
 
 V. Spink, 819. 
 Jackson Paper Co. v. Com. Nat'l 
 
 Bank, 666. 
 Jacquin v. Davidson, 265. 
 Jele V. Lemberger, 127, 255, 259. 
 Jenkins v, Drane, 67. 
 Jennings v. Graves, 694. 
 
 V. Jennings, 199. 
 
 V. Smith, 310, 638, 
 
 V. Neville, 513. 
 
 V. Dumphy, 585. 
 Jernberg v. Mix, 657. 
 Jessup V. Jessup, 598, 751. / 
 
 John v. Redmond, 666. 
 Johns v. Johns, 316.
 
 TABLE OF CASES CITED. 
 
 XXXIU 
 
 [references are to sections.] 
 
 Johnson v. Gillette, 611. 
 
 V. Mellhorsen, 43. 
 
 V. Askey, 134, 196, 874. 
 
 V Johnson, 140, 179, 182, 236, 
 243, 253, 258, 263, 266, 279. 
 
 V. Bank, 164. 
 
 V. Davidson, 418. 
 
 V. Van Epp, 450. 
 
 V. Von Kettler, 512, 597. 
 
 V. Berlizheimer, 515. 
 
 V. Maples, 598. 
 
 V. Beasley, 706. 
 
 V. Merrithew, 836, 837. 
 
 V. Buck, 139, 200, 310, 469, 
 585. 
 Jones V. Gilbert, 630. 
 
 V. Jones, 295, 276. 
 
 V. Habbersham, 213. 
 
 V. Lloyd, 315. 
 
 V, ColbecK, 874. 
 Judy V. Kelly, 445, 470. 
 Jolly V. Graham, 469, 726, 276. 
 
 K 
 
 Kaenders v. Montague, 277. 
 Kaufman v. Peacock, 633. 
 
 V. Breckinridge, 226, 302, 871. 
 Kann Moll v. Gardner, 297, 305, 
 
 317. 
 Karr v. Karr, 424. 
 Keating v. Cornell Bros., 657. 
 Kebaum v. Cordell, 673. 
 Keegan v. Geraghty, 68, 640. 
 Keefer v. Mason, 445. 
 Keithly v. Parker, 79. 
 Keith V. Miller, 101, 297. 
 Keister v. Keister, 117. 
 Kelly V. Parker, 79. 
 
 V. Vigas, 75, 134, 249, 251. 
 
 V. Gonce, 93. 
 
 V. Austin, 453. 
 Kellett V. Shepard, 849, 864. 
 
 Kellogg V. Hale, 178, 305. 
 
 V. Wilson, 583. 
 
 V. Peddicord, 297. 
 Kelsey v. Snyder, 660. 
 Kenley v. Bryan, 577, 581, 630. 
 Kennedy v. Kennedy, 166. 
 
 V. Knoble, 215. 
 
 V. Northup, 778. 
 Keniston v. Scoeva, 337. 
 Kent V. Mason, 659. 
 Koster v. Clark, 703. 
 Killgour V. Gockley, 580. 
 Killbe V. Myrick, 778. 
 Kimball v. Cuddy, 777. 
 
 V. Cook, 649. 
 
 V. Lincoln, 522. 
 Kindig v. Deardorff, 134. 
 King V. Worthington, 659. 
 
 V. Goodwin, 499. 
 
 V. King, 311, 317. 
 
 V. Talbot, 331. 
 Kingman v. Higgins, 630, 653. 
 
 V. Harmon, 196, 736, 850. 
 Kingsbury v. Burnside, 67, 297. 
 
 V. Buckner, 67, 726. 
 
 V. Sperry, 615, 724, 733, 734, 
 736, 765. 
 
 V. Powers, 734, 736. 
 Kinne v. Schumacher, 592. 
 Kinnebrew v. Kinnebrew, 851. 
 Kinney v. Keplinger, 390, 514, 
 547. 
 
 V. Knoebel, 819. 
 Kirby v. Watt, 668. 
 Kirkham v. Boston, 610. 
 Kirkland v. Cox, ITS, 220, 303, 
 305, 317, 318. 
 
 V. Conway, 224. 
 Kirkpatrick v. Kirkpatrick, 185, 
 196, 249, 862, 864. 
 
 V. Haley, 477. 
 
 V. Clark, 285, 276. 
 Kittridge v. Nicholes, 581. 
 Klicka V. Klicka, 600. 
 Klokke V. Dodge, 41, 42, 43.
 
 xxxiv 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Knapp V. Knapp, 116. 
 Knickerbocker v. People, 42. 
 Knight V. Pottgieser, 196, 849, 862, 
 
 864. 
 Knowles v. Goodrich, 321. 
 Knowlton v. Knowlton, 641. 
 Koeffler v. Koeffler, 857, 866. 
 Kohtz V. Eldred, 862, 865. 
 Kochersperger v. Drake, 75, 260, 
 
 372, 373, 606. 
 Krebaum v. Cordell, 300. 
 Kroell V. Kroell, 502, 509, 607, 
 
 636. 
 Kron V. Kron, 872. 
 Kruse v. StefEens, 329. 
 Kruger v. Kruger, 580. 
 Kunnen v. Zurline, 100. 
 Kunz V. Hibner, 178, 223. 
 Kurtz V. Graybill, 215. 
 Kusch V. Kusch, 582. 
 Kyner v. Ball, 191. 
 
 Landt v. McCullough, 667. 
 Lancaster v. Lancaster, 134. 
 Lane v. Thorn, 494, 612. 
 Langley v. Dodsworth, 660. 
 Langworthy v. Golden, 243. 
 
 V. Baker, 408, 615. 
 Lantry v. Lantry, 301. 
 La Fayette Bank v. Stone, 679. 
 Lamar v. Micou, 705, 729. 
 Lambe v. Drayton, 196. 
 Lambert v. Harvey, 219. 
 Lamkin v, Burnett, 651. 
 Larson v. Wolf, 624. 
 
 V. Ditts, 285. 
 Larman v. Knight, 289, 299, 301, 
 
 333. 
 Lattimer v. Lattimer, 865. 
 Laughlin v. Covel, 381. 
 Lavalle v. Strobel, 606. 
 
 Lawrence v. Balch, 56, 638, 640. 
 
 V. Smith, 309, 858. 
 
 V. Lawrence, 311, 317, 661. 
 Lawrie v. Radmitzer, 94, 106. 
 Lawson v. Copeland, 326. 
 Lawwill V. Lawwill, 75. 
 Leamon v. McCubbin, 386, 416. 
 Leavitt v. Leavitt, 661. 
 Ledford v. Weber, 673. 
 Lee V. People, 615, 616. 
 Leiter v. Sheppard, 141. 
 Le Fray v. Flood, 142. 
 Lehman v. Rothbarth,' 314, 323, 
 327, 335, 728, 750, 751, 753, 
 754. 
 Lehndorf v. Cope, 140, 144, 177, 
 
 191. 
 Lehnard v. Specht, 196, 324, 333. 
 Leman v. Sherman, 295. 
 Lenfers v. Henke, 617, 033. 
 Lesher v. Worth, 492, 510. 
 Lessley v. Lessley, 492, 640. 
 Lewis V. King, 61, 633. 
 
 V. Bambart, 121, 122. 
 
 V. Pleasants, 191. 
 
 V. Lyons, 386, 586. 
 
 V. Moffett, 525. 
 
 V. McGraw, 630. 
 Liddicoat v. Trigtown, 386. 
 Lieserow^itz v. Railroad Co., 726. 
 Life Ass'n of Am. v. Fasset, 609. 
 Ligger v. Mut. U. L. Ass'n, 329. 
 Lilly V. Waggoner, 272, 777. . 
 Linebaugh v. Atwater, 726. 
 Lincoln Ave. G. R. Co. v. Dadans, 
 
 672. 
 Lingren v. Railway Co., 673. 
 Lepa V. Fox, 494. 
 Litch V. Clinch, 665. 
 Little V. Williams, 462, 495. 
 Lloyd V. Malone, 621, 622, 737, 
 740. 
 
 V. Knights of Pythias, 684. 
 
 V. Kirkwood, 726.
 
 TABLE OF CASES CITED. 
 
 XXXV 
 
 [BEFEBENCES Any. TO SECTIONS.l 
 
 Lockwood V. Mills, 329, 584. 
 
 V. MofEett, 56. 
 
 V. Foster, 707. 
 Loeb V. Stern, 265. 
 
 V. Stern, 654. 
 Loewenthal v. McCormick, 668. 
 Logan V. Taylor, 598. 
 Lombard v. Kenzie, 633. 
 
 V. Whitbeck, 171, 191, 857, 
 866, 873. 
 Lomax V. Shinn, 177. 
 Lovass V. Olson, 850. 
 Louisville T. Co. v. Cincinnati, 47. 
 Lunt V. Lunt, 205. 
 Luther v. Luther, 113, 127, 255. 
 Lynch v. City of Litchfield, 683. 
 
 V. Hutchinson, 38. 
 
 V. Lynch, 523. 
 
 V. Rotan, 386. 
 
 V. Hickey, 488, 492, 498. 
 Lyman v. Conkey, 401. 
 Lyne v. Sanford, 706. 
 Lynn v. Lynn, 616, 733. 
 
 V. Sentel, 641. 
 
 M 
 
 Mack V. Woodruff, 478, 486, 592. 
 Mackay v. Pulford, 487. 
 Macnab v. Whitehead, 141. 
 Madden v. Cooper, 579. 
 Maddison v. Larmon, 849, 853, 
 
 854, 873. 
 Maghar v. O'Harra, 602. 
 Magoun v. 111. T. & S. Bank, 375. 
 Magnuson v. Magnuson, 197. 
 Maher v. Aldrich, 307, 308. 
 
 V. Trust Co., 265, 656, 661. 
 Mahoney v. Mahoney, 660. 
 
 V. People, 512, 514. 
 Makepeace v. Moore, 526, 541. 
 Markham v. Hufford, 851. 
 Maloney v. Scanlon, 478. 
 
 Mannardt v. 111. Staatz Zeitung, 
 
 313, 321. 
 Manna v. Yocum, 464. 
 Markillie v. Ragland, 140, 182, 
 
 871. 
 Martin v. Stubbings, 838. 
 
 V. Judd, 127. 
 
 V. Martin, 336, 337, 338, 341. 
 343, 512, 514, 613. 
 Marsh v. People, 439, 443, 549, 
 550, 586, 602. 
 
 V. Reed, 316. 
 
 V. Prentiss, 337. 
 
 V. Hoyt, 850, 855. 
 Marshall v. Rose, 494, 576. 
 
 V. Coleman, 66, 290, 469, 587, 
 589, 595, 668. 
 
 V. Adams, 467. 
 
 V. Karl, 265. 
 
 V. Peck, 673. 
 Marston v. Wilcox, 431. 
 Marsey v. Huntington, 87. 
 Marvin v. Collins, 72. 
 
 V. Ledwith. 638, 849. 
 Masonic Orphans Home v. Gracy, 
 
 82, 131. 
 Massie v. Belford, 428. 
 Mason v. Wait, 728, 737. 
 
 V, Tiffany, 490. 
 
 V. Johnson, 614. 
 Matson v. Griffin, 453. 
 Mather v. Mather, 134, 14G, 182. 
 Matter of Eddy, 389. 
 Matter of Curtis, 390. 
 Matthews v. Am. Cent. Ins. Co., 
 389. 
 
 V. Hoff, 580, 583. 
 
 v. Granger, 663. 
 Matthewson v. Cheek, 865. 
 
 V. Davis, 332. 
 
 & H. Z. Co. V. City of La Salle, 
 864. 
 Mattoon Gas, L. & C Co. v. Dolan, 
 
 451. 
 Mattox v. Moulton, 331.
 
 XXXVl 
 
 TABLE OF CASES CITED. 
 
 [EEFEBENCES ABE TO SECTIONS.] 
 
 Matzenbaugh v. People, 651. 
 Maxey v. Heckethol-n, 666. 
 Maxwell v. Maxwell, 64, 285, 637. 
 May V. May, 66. 
 
 V. Llghty, 389, 487. 
 Mayfield v. Forsyth, 298. 
 Maynard v. Maynard, 299, 447, 
 449, 500, 613. 
 
 V. Richards, 512, 515, 525. 
 
 Mc 
 
 McArthur v. Scott. 127, 415. 
 McAnulty v. McAnulty, 108. 
 McAyeal v. Gullett, 653. 
 McClun V. McClun, 826, 827. 
 McCloskey v. McCormick, 751. 
 McCormack v. Littler, 777. 
 McCormick v. Wheeler, 819. 
 McCann v. Atherton, 660. 
 McCall V. Lee, 44, 182, 464, 483. 
 McCommon v. McCommon, 89, 279. 
 MJcConnell v. McConnell, 398. 
 
 V. Smith, 50, 67, 175. 
 
 V. Stewart, 196. 
 McCullom V. Chidester, 97, 234. 
 McCarthy v. Hall, 428. 
 
 V. Osborne, 134, 148, 196. 
 McClay v. Smith, 285. 
 McCartney v. Ridgeway, 341, 342, 
 
 513. 
 McClune v. People, 415. 
 McCleary v. Menke, 742, 750, 752. 
 McCreedy v. Mier, 416, 427, 543. 
 McCollister v. Bank. 449. 
 McCoy V. Morrow, 465. 
 McClure v. Otrich, 659, 662. 
 
 V. Williams, 608. 
 McDale v. Shepardson, 317. 
 McDavid v. McLean, 653. 
 
 V. Ellis, 668. 
 
 V. Rork, 674. 
 McDeed v. McDeed. 679, 681. 
 McDevitt V. Hibben, 251. 
 
 McDonald v. White, 126, 259, 260. 
 V. Stow, 298. 
 V. People, 594, 597. 
 
 McElheny v. Musick, 730. 
 
 McFarland v. McFarland, 177, 
 215, 238, 765. 
 
 McGrew v. McGrew, 661. 
 
 McGee v. McGee, 636. 
 
 McGillis V. Hogan, 314. 
 
 McGlinsey's Appeal, 489. 
 
 Mclntyre v. People, 417, 711. 
 V. Sholty, 776. 
 
 McKay v. Riley, 653. 
 
 McKee v. Abbott, 386. 
 
 McKean v. Vick, 515. 
 
 McLaurie v. Partlow, 297. 
 
 McLean v. McBean, 579. 
 
 McLean County Coal Co. v. Long, 
 386. 
 
 McMahill v. McMahill, 491, 492, 
 j 495, 500, 502, 504. 
 
 I McManus v. Kuth, 528. 
 I McManaman v. Blocks, 633. 
 j McMurphy v. Boyles, 638. 
 I McNabb v. Young, 318. 
 j McNeil V. Caruthers, 164. 
 I McNeer v. McNeer, 582. 
 
 McNulta V. Lockridge, 127, 132. 
 1 V. Corn Belt Bank, 665. 
 
 I McNail V. Ziegler, 673. 
 
 Means v. Earles, 724, 728. 
 V. Harrison, 538. 
 
 Medowcroft v. Winnebago Co., 
 648. 
 
 Meddeke v. Balder, 836. 
 
 Meecham v. Steel, 305. 
 
 Meek v. Allison, 432. 
 
 Meeker v. Meeker, 261, 272. 
 
 Meister v. Zimmerman, 659. 
 
 Menkins v. Lightner, 274. 777. 
 
 Meredith v. Henage, 142. 
 I Merrifield v. People, 379. 
 I Merrill v. Atkins, 660.
 
 TABLE OF CASES CITED. 
 
 XXXVll 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Merritt v. Merritt, 630. 
 
 V. Simpson, 603, 734. 
 Meserve v. Delaney, 42. 
 Messenger v. Messenger, 382. 
 Metropolitan Nat. Bank v. Jones, 
 
 666. 
 Metzen v. Schopp, 134, 177. 
 Meyers v. Ladd, 173. 
 
 V. Pfeiffer, 625. 
 
 V. Temme, 726. 
 Michigan L. Co. v. Forer, 667. 
 Middeke v. Balder, 75, 835, 838. 
 Middlesex Co. Bk. v. Hirsh Bros., 
 
 666. 
 Millard v. Harris, 587, 589, 613. 
 Mills V. Newberry, 75, 212, 251. 
 Miller v. Miller, 455, 491, 494, 495, 
 496. 
 
 V. Kingsbury, 406, 515. 
 
 V. Harris, 44. 
 
 V. Williams, 57. 
 
 V. Markle, 276. 
 
 V. Simons, 466. 
 
 V. Heder, 596. 
 
 V. Travers, 172. 
 
 V. Didisheim, 398. 
 
 V. Jones, 515, 518. 
 
 V. Physick, 717. 
 
 V. McManus, 751. 
 
 V. Craig, 777. 
 
 V. Chittenden, 865. 
 Middleton v. Middleton, 62. 
 Minkler v. Simons, 197. 
 Miskmen v. Culbertson, 575. 
 Mitchel V. McDougal, 673. 
 
 V. Mayo, 464, 484. 
 
 V. Pease, 340. 
 
 V. Sawyer, 643. 
 Mitchinson v. Cross, 672. 
 Mittel V. Karl, 197. 
 Mobile Fruit Co. v. Judy & Son, 
 
 607. 
 Moffitt V. Moffitt, 390, 580. 
 Moline W. & P. Co. v. "Webster, 
 469. 
 
 Monson v. Hutchinson, 298. 
 Montague v. Selb, 582, 627. 
 More V. More, 116, 266. 
 
 V Pickett, 297. 
 Moore v. Moore, 116. 
 
 V. Wright, 114, 398, 651. 
 
 V. Lyons, 229. 
 
 V. Smith, 453. 
 
 V. Horsley, 301. 
 
 V. Hamilton, 527. 
 
 V. Bruner, 712. 
 Moores v. Hare, 850, 855. 
 Mooney v. Oleson, 277. 
 Morgan v. Corlies, 678. 
 
 V. Roberts, 651. 
 
 V. Stewart, 640. 
 
 V. Morgan, 589. 613, 869. 
 
 V. Stevens, 97. 
 
 V. Johnson, 730. 
 
 V. Grand Prairie Seminary, 
 212. 
 
 V. Hoydt, 776, 809. 
 Morris v. Hogle, 588. 
 Morrison v. Schoor, 133. 
 
 V. Mayer, 327. 
 
 V. King, 624. 
 
 V. Morrison, 627. 
 Morton v. Barnett, 305. 
 Morse v. Thorsell, 633. 
 Mott V. Danville Seminary, 861. 
 Motsinger v. Cole, 469. 
 
 V. Wolf, 612. 
 Moyer v. Swyggart, 264, 281. 
 Mueller v. Rebhan, 663, 673. 
 Muhkle V. Tiedermann, 858. 
 Mulberry v. Mulberry, 140. 
 Muller V. Conrad, 582, 583. 
 
 V. Bemner, 703, 726, 730. 
 Mulligan v. Lamb, 215. 
 Mulville V. White, 514. 
 Murfitt V. Jessup, 50, 175, 179, 
 
 874. 
 Mustain v. Gardner, 197. 
 Munford v. Miller, 672. 
 Mungate v. Reynolds, 461.
 
 XXXVIU 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Munroe v. People, 433, 434, 435, 
 
 436. 441. 596, 760. 
 Murdock v. Murdock, 502, 509, 607, 
 
 636. 
 Murry v. Strang, 450. 
 Myatt V. Myatt, 415. 
 V. Walker, 86, 272. 
 
 N 
 
 Nat'l Bank v. Nichols Shephard 
 
 Co., 666. 
 Nat'l Cash Reg. Co. v. Navy 
 
 Co., 682. 
 Neely v. Shephard, 791. 
 Neiman v. Schnitka, 80, 263, 271, 
 
 279. 
 Neich V. Gannon, 653. 
 Nelson v. Davis, 306. 
 
 V. Hayner, 329, 515. 521. 
 Neninger v. Fietsam, 390, 581. 
 Neutzel v. Neutzel, 771. 
 Nevett V. Woodburn. 196, 198, 310, 
 
 315, 321, 426, 427, 442. 
 Nevious V. Gourley, 198. 
 Nevell V. Jennings, 337. 
 Newhall v. Nichols, 836. 
 
 V. Turner, 390, 440, 478, 549. 
 Newell V. Montgomery, 578, 581. 
 Newman v. Willetts, 119. 
 Newton v. Luster, 268. 
 New England Ins. Co. v. Wet- 
 more, 659. 
 New York Iron Mine v. Bank, 666. 
 Nicewander v. Nicewander, 89, 91, 
 
 277, 278. 
 NiehofE v. People, 712. 
 Nicoll v. Todd, 633. 
 Nichol V. Miller, 296. 
 v. Ogden, 296. 
 V. School Directors, 652. 
 v. Adams. 340. 
 V. Sargent. 727, 730. 
 V. Scott, 333, 390, 441, 546, 
 
 638. 
 
 Nicholson v. Bettle, 851. 
 Nickrans v. Wilk, 580. 
 Noble V. Runyan, 727. 
 
 v. Tipton, 174. 
 Noble's Will, 79, 117. 
 Noe v. Moutray, 448. 468, 471, 484. 
 Noffts V. Koss, 633. 
 Norris v. Beyea, 153. 
 
 V. Camble. 865. 
 Norman v. Hudleston, 530. 
 Norton v. Tuttle. 259. 
 
 V. Hixon, 703. 
 Northern L. P. Co. v. Shearer, 
 673. 
 
 o 
 
 O'Brien v. Bonfield, 255. 
 O'Connor v. O'Connor. 464. 
 O'Melia v. Mullarkey, 305, 851. 
 Ogden V. Stook, 453. 
 V. Larrabee, 329. 
 Olcott v. Bynum, 297. 
 Oliver v. Oliver, 316. 
 Olney v. Howe, 87. 
 Order of Forresters v. Heath, 
 
 684. 
 Orr V. Yates, 857, 866. 
 Osborne v. Jefferson Nat'l Bank, 
 
 67, 68. 69. 106, 107. 
 Osgood V. Blackmore, 819, 820. 
 Ottinger v. Specht, 580, 582, 583, 
 
 620, 630, 633. 
 Otis V, Gardner. 280. 
 
 V. Spencer, 672. 
 Ould V. Washington Hospital, 213. 
 Over V. Herrington, 530. 
 Overdeer v. Updegraff, 822. 
 Owen V. Robbins, 683. 
 
 Pace V. Pace, 429. 
 
 Padfield v. Pierce, 726. 
 
 Page V. Administrator, etc., 116.
 
 TABLE OF CASES CITED. 
 
 XXXIX 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Page V. Davidson, 603. 
 
 V. Marsh, 688. 
 Pain V. Farson, 298, 663, 673. 
 Palmer v. Forbes, 453. 
 
 V. Cook, 851, 872. 
 Parker v. Merritt, 523. 
 Pardridge v. Cutler, 666. 
 Parden v. Briscoe, 838. 
 Parsons v. Ely, 216. 
 
 V. Miller, 252. 
 Patch V. White, 172, 173. 
 Patton V. Luddington, 850, 855. 
 Payne v. Hook, 47. 
 Peacock v. Marven, 478. 
 Pearce v. Pearce, 617, 661. 
 Pease v. Hunt, 265, 653, 655. 
 
 V. Rhawn, 679. 
 
 V. Roberts, 707, 759, 760. 
 Pell V. Ball, 836, 837. 
 Penn v. Oglesby, 265, 664. 
 
 V. Folger, 289, 290, 392, 331, 
 332, 333, 441, 586. 
 Penney v. Fallows, 297. 
 Pembia Cons. Sil. Mine Co. v. 
 
 Pennsylvania, 379. 
 Peoria G. L. & Coke Co. v. Peoria 
 
 T. Ry. Co., 377. 
 Perrin v. Lepper, 222. 
 Perry v. Bowman, 93, 165. 
 
 V. Carmichael, 703, 709. 
 Petefish V. Becker, 80, 271, 279. 
 Pettis V. Atkins, 515. 
 Petition of Wilbor, 836. 
 Peterson v. Jackson, 191. 
 Peterman v, U. S. Rubber Co., 613. 
 Peyton v. Jeffries, 617, 622. 
 People V. Allen, 401, 426, 429, 471. 
 
 V. Admire, 600, 602. 
 
 V. Atkinson, 602. 
 
 V. Brooks, 448, 449, 526, 543, 
 754. 
 
 V. Borders, 663. 
 
 V. Benson, 613. 
 
 V. Church, 772. 
 
 V. Mccormick, 131, 376, 378. 
 
 People V. County Court, 44. 
 V. Curry, 435. 
 V. Gilbert, 766. 
 V Gray, 706. 
 V. Harrison, 466. 
 V. Hoffman, 295, 401, 429, 
 598. 
 
 V. Hunter, 426. 
 
 V. Knickerbocker, 126. 
 
 V. Kohlsaat, 290, 589. 590. 
 
 V. Kelly, 379. 
 
 V. McKee, 512. 
 
 V. Lease, 590. 
 
 V. Loomis, 733. 
 
 V. Lanahan, 290, 582. 
 
 V. Lott, 426, 436, 438. 
 
 V. Hinrichson, 842. 
 
 V. Lane, 426, 427. 
 
 V. Medart, 706, 749. 
 
 V. Madison Co., 683. 
 
 V. Moier, 374, 378, 379. 
 
 V. Miller, 426, 682. 
 
 V. Moon, 401. 
 
 V. Petrie, 295, 427, 429. 450. 
 
 V. Peck, 445. 
 
 V. Phelps, 450, 486. 
 
 V. Randolph, 401, 426. 
 
 V. Seeley, 706, 749. 
 
 V. Stewart, 713, 750, 754. 
 
 V. Steel, 717, 761. 
 
 V. Simon, 380. 
 
 V. Solomon, 391, 426. 
 
 V. Stacy, 401, 426. 
 
 V. Sommers, 401 405. 426. 
 
 V. Stett, 634. 
 
 V. Starr, 651. 
 
 V. Tooney, 429. 
 
 V. White, 515. 
 Phares v. Barbour, 329. 
 Phalman v. Smith, 546. 
 Phelps V. Phelps, 491, 501, 508, 
 592. 
 
 Pfirshing v. Falsh, 611. 
 V. Heiter, 673. ,
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Phillips V. Hood, 261. 
 
 V. South Park Comraission- 
 
 ers, 297. 
 V, Edsall, 300. 
 
 V, Webster, 685. 
 
 V. Phillips, 726. 
 Pickler v. Pickler, 298. 
 Pigg V. Carroll, 661, 662, 663, 673. 
 Pingree v. Jones, 281. 
 Pinkstaff v. People, 435. 
 Pinneo v. Knox, 733. 
 
 T. Goodspeed, 486, 587. 
 Pittard v. Foster, 269, 270. 
 Pitzel V. Schneider, 309. 
 Plain V. Roth, 265, 660, 664. 
 Pratt V. Northam, 424. 
 
 V. Trustees B. Society, 608. 
 Preachers Aid Soc'ty v. England, 
 
 178, 304, 317. 
 Presbyterian Church v. Emmer- 
 son, 668. 
 
 V. Venables, 861. 
 Price V. Laing, 307. 
 Pritchett v. People, 424. 
 Pritchard v. Walker, 75. 
 Primmer v. Clabaugh, 674. 
 Propst V. Meadows, 580, 706. 
 Provident Hospital v. People, 376, 
 
 379. 
 Prutsman v. Baker, 717. 
 Podrasnik v. Martin Co., 515. 
 Pool V. Potter, 603. 
 
 V. Phillips, 298. 
 Pooler V. Christman, 92, 277. 
 Pope V. Dapray, 299. 
 
 V. Pope, 141. 
 
 V. Dodson, 608. 
 Poppers V. Miller, 673, 674. 
 Post V. Roherbach, 309, 320. 
 Potter V. Potter, 131. 
 
 V. People, 334. 
 Poulter V. Poulter, 215. 
 Powers V. Godmise, 197. 
 Powell V. Kettelle, 606. 
 
 V. Rich, 452. 
 
 Powell V. Powell, 660, 662. 
 Purdy V. Hall, 92, 256, 262, 277. 
 Putnam v. Wadley, 268. 
 Pyle V. Pyle, 265, 270, 676. 
 
 V. Oustatt, 660, 672. 
 Pynchon v. Day, 669, 678. 
 Pyott V. Pyott, 726, 771. 
 
 Q 
 
 Quincey v. Rogers, 163. 
 
 R 
 
 Railway Co. v. Corson, 667. 
 
 V. Prast, 667. 
 
 V. Story, 667. 
 
 V. Bank, 666. 
 
 V. Randolph, 657. 
 
 V. Kelly, 617, 623. 
 
 V. E. St. Louis, 847. 
 
 V. Curtenius, 627. 
 
 V. Beavor, 451. 
 
 V. Hock, 261. 
 
 V. Lane, 726. 
 
 V. Am. S. B. Co., 668. 
 
 V. Shires, 679, 683. 
 
 V. Winters, 683. 
 
 V. Eggermann, 683. 
 
 V. Binder, 683. 
 
 V. Haley, 726. 
 
 V. Keck, 726. 
 Railsback v. Lovejoy, 182, 196, 
 
 311, 852, 862. 
 Rainey v. Vance, 523. 
 Ralston v. Wood. 426, 427, 761. 
 Ramsey v. Ramsey, 388, 415, 486. 
 Rand v. Walker, 617. 
 Randall v. Randall, 871. 
 Rankin v. Rankin, 200, 215, 296. 
 Randolph v. People, 616. 
 
 V. Trustees of School, 595. 
 Rann v. Rann, 649.
 
 TABLE OF CASES CITED. 
 
 xli 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Ransdell v. Boston, 303. 
 Rapp V. Phoenix Ins. Co., 606. 
 Rassieur v. Jenkins, 464. 
 Rawson v. Rawson, 135. 
 V. Corbett, 617. 
 V. Curtis, 666. 
 Ray Ex. v. Vilas, 522. 
 Raybold v. Raybold, 297. 
 Raymond v. Vaughn, 775. 
 Reagon v. Long, 398. 
 Ream v. Lynch, 754, 761. 
 Redmond v. Collins, 127a. 
 Redlich v. Bouerlee, 668. 
 Reed v. Kidder, 661. 
 V. Reed, 298, 299. 
 V. Peterson, 301. 
 Reed, Murdock & Co. v. Sheffy, 
 
 324, 333. 
 Reedy v. Canfield, 580. 
 
 V. Millizen, 253. 
 Reeves v. Herr, 672. 
 Regard v. McNeil, 300. 
 Regent v. Bell, 663. 
 Reich V. Berdel, 621. 
 Reid V. Reid, 297. 
 V. Corrigan, 232. 
 V. Morton, 739, 740. 
 Rendleman v. Rendleman, 641. 
 Renfrow v. Pearce, 332. 
 Remick v. Emig, 519. 
 Remann v. Buckmaster, 659. 
 Republican L. Ins. Co. v. Swigert, 
 
 665. 
 Retzell V. Miller, 467. 
 Renter v. Struckart, 634. 
 Reynolds v. Adams, 269, 277. 
 V. Summer, 298. 
 V. Strange, 323. 
 V. Williams, 583. 
 V. People, 591. 
 V. Ferree, 666. 
 Rhode V. McLean, 116. 
 Rhoades v. Rhoades, 763, 870. 
 Rice V. Rice, 298. 
 Richie v. Cox, 638. 
 
 Kicker v. Kessler, 93, 851. 
 Richards v. Miller, 134, 135, 249, 
 250, 310. 
 V. Greene, 712. 
 Richardson v. Eveland, 242, 243, 
 247. 
 
 V. Ranson, 240. 
 
 V. Sternburg, 265. 
 
 V. Richardson, 448, 513. 
 
 V. Emberson, 613. 
 Ridden v. Thrall, 337. 
 Ridgeway v. McCartney, 337, 341. 
 
 V. Underwood, 134, 200, 310. 
 Ridgeley v. People, 290, 586. 
 Rigdon V. Conly, 678. 
 Rigg V. Wilton, 127, 258, 264. 
 Ring V. Lawless, 86, 273, 274, 279. 
 Rish V. Commonwealth, 378. 
 Rissman v. Wierth, 139, 176, 191, 
 
 192. 
 Roan V. Kirkpatrick, 390, 439, 
 
 549, 586, 750. 
 Roberts v. Roberts; 93, 165. 
 
 V. Woods, 661. 
 
 V. Draper, 336, 337. 
 
 V. Pierce, 660. 
 Robertson v. Brost, 674. 
 Robins v. Butler, 329. 
 Robinson v. Brown, 682. 
 
 V. Ruprecht, 60. 
 
 V. Botkins, 296, 310. 
 
 V. Millard, 429. 
 Robinson's Will, 131. 
 Rochey v. Downey, 613. 
 Roe V. Taylor, 82, 263. 
 Rogers v. Tuley, 318. 
 Rohn V. Rohn, 392. 
 Rohan v. Bluhm, 651, 776. 
 Rose V. Hale, 134. 
 Rosenthal v. People, 378, 379. 
 
 V. Prussing, 395, 413, 415. 
 
 V. Renick, 408, 470, 477, 579. 
 Ross V. Sayler, 665. 
 
 V. Smith, 495. 
 Roth V. Michalis, 305, 851.
 
 xlii 
 
 TABLE OF CASES CITED. 
 
 Rothchlld V. Sessel, 668. 
 Rothstein v. Siegel, Cooper & Co., 
 
 670. 
 Roughan v. Morris, 771, 778. 
 Rountree v. Talbot, 851. 
 Rucker v. Redmon, 591. 
 Ruck V. Rock Island, 864. 
 Ruckman v. Alwood, 660. 
 Ruddell V. Wren, 854. 
 Rudstone v. Rudstone, 168. 
 Ruffin V. Farmer, 159, 602. 
 Ruggles V. Gratton, 668. 
 Russell V. Hallett, 836. 
 
 V. Happ, 661. 
 
 V. Hubbard, 464, 465, 471, 
 475. 
 
 V. Madden, 50, 75, 95. 
 
 V. Peyton, 329. 
 Ruston V. Ruston, 169. 
 Rutherford v. Morris, 80, 84, 86, 
 257, 269, 272, 275, 278, 279. 
 Rutledge v. Rutledge, 494. 
 Ryan v. People, 712. 
 
 V. Allen, 182, 193, 195. 
 
 V. Jones, 601. 
 Ryder v. Topping, 676. 
 Ryhiner v. Frank, 127, 255. 
 Rymes Appeal, 210. 
 
 Saboni v. Kirkman, 606. 
 Saeger v. Bode, 191, 196. 
 Saffer v. Mast, 777. 
 Sale V. Moore, 141. 
 Salem Nat'l Bank v. White, 104 
 Salisbury v. Aldrich, 82. 
 Sands v. Potter, 777, 792. 
 Sanger v. Nadlehoffer, 127, 428. 
 Saw Mill Co. V. Dock, 389. 
 Sayles v. Christie, 68, 75, 640, 661 
 Scanlon v. Cobb, 777. 
 Seago V. People, 663, 750. 
 Seager v. Bodie, 177. 
 
 [EEFEBENCES ABE TO SECTIONS.] 
 
 Searle v. Galbraith, 777, 820. 
 Seavey v. Seavey, 336, 512. 
 Sebastian v. Johnson, 314, 583. 
 Seibert's Appeal, 210. 
 Selb V. Montague, 582, 627, 634. 
 Sewell V. Roberts, 640. 
 Sexton V. Sikking, 584. 
 
 V. U. S. Y. & T. Co., 665. 
 
 V. Brown, 668. 
 Seymour v. Richardson Fueling 
 
 Co., 665. 
 Schaefer v. Schaefer, 93, 309. 
 
 V. Wunderle, 682. 
 Schaeffer v. Burnette, 480, 611, 
 
 733. 
 Scheel v. Eidman, 485, 713. 
 Scheible v. Rinck, 56, 638, 639. 
 Scheerer v. Scheerer, 298, 662. 
 Schelling v. County of Kankakee, 
 
 796. 
 Schenck v. Schenck, 130, 391, 405. 
 Schlee v. Guckenheimer, 606. 
 Schlink v. Moxton, 468, 484. 
 Schmidt v. Pierce, 7 70. 
 
 V. Schmidt, 279. 
 
 V. Glade, 471. 
 
 V. Shaver, 666, 724, 727, 749, 
 751. 
 
 V. McBean, 726. 
 Schnell v. Chicago, 395, 408. 
 Schneider v. Manning, 80, 82, 86, 
 89, 270, 272. 
 
 V. Kabach, 674. 
 Schnebly v. Schnebly, 617, 622, 
 
 633. 
 School Trustees v. Kirwin, 325, 
 
 703. 
 Schoot V. People, 683. 
 Schofield V. Olcott, 203, 849, 850, 
 
 862, 864. 
 Schope V. Schaffner, 634. 
 Schotte V. Puscheck, 668. 
 Schouler Petitioner, 210. 
 Schultz V. Houfer, 280. 
 
 V. Schultz. 865.
 
 TABLE OF CASES CITED. 
 
 xliii 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Schumacher v. Schmidt, 100. 
 Scott V. Bassett, 766, 777. 
 
 V. Scott, 64. 
 Sconse v. Henderson, 659. 
 Seigwald v. Seigwald, 872. 
 Seymour v. Bowles, 851, 874. 
 Sharp V. Sharp, 255. 
 Shackelton v. Sebree, 856. 
 Shaw V. Camp, 258, 281, 282, 337. 
 
 V. Woodcock, 323. 
 Shea V. Doyles, 514, 664. 
 Sheldon v. Harding, 298. 
 Shelburne v. Robinson, 601. 
 Shepard v. Carrill, 119. 
 Shepherd v. Speer, 44, 648. 
 
 V. Nottidge, 142, 
 
 V. Rhodes, 432. 
 Sherman v. Sherman, 601. 
 
 V. Saylor, 600. 
 
 V. White, 331. 
 
 V. Whiteside, 468, 483, 484. 
 Sherrell v. Christ's Church, 376. 
 Shevalier v. Silager, 261. 
 Shields v. Smith, 429. 
 Sholty V. Sholty, 307, 324, 330, 
 
 331. 
 Short V. Johnson, 538, 550. 
 Show V. Schoonover, 660. 
 Shup V. Calvert, 584. 
 Shute V. Doer, 694. 
 Siddon v. Cocerill, 855. 
 Sick V. Smith, 633, 642. 
 Sill V. Sill, 617, 618. 
 Silverman v. Chase, 490, 523. 
 
 V. Kristufek, 304, 305, 317. 
 Simmons v. Oliver, 331. 
 Simpson v. Haue, 627. 
 
 v. Simpson, 64, 66, 216. 
 Singleton v. Scott, 313. 
 Singloff V. Bruner, 258, 266, 267. 
 Sisk V. Woodruff, 679. 
 Skinner v. McDowell, 864. 
 
 V. Newberry, 449. 
 Skiles V. Switzer, 317. 
 Skrymsher v. Northcote, 197. 
 
 Slater v. Norton, 168. 
 
 V. Gruger, 197. 
 Sloan V. Graham, 583. 
 
 V. Sloan, 96. 
 Sloniger v. Sloniger, 108, 633. 
 Small V. Small, 278. 
 Smith V. Bartholomew, 766. 
 
 V. Co-operative D. Assn., 666. 
 
 V. Curry, 93. 
 
 V. Dennison, 225, 614. 
 
 V. Gibbons, 666. 
 
 V. Goodrich, 465, 473. 
 
 V. Hamline, 80, 92, 277. 
 
 V. Henline, 256, 258, 277, 665. 
 
 V. Hutchinson, 603. 
 
 V. Kenny, 177. 
 
 V. Kembell, 191. 
 
 V. Kimball, 851, 866, 872. 
 
 V. Long, 672. 
 
 V. McConnell, 67. 
 
 V. McLaughlin, 463. 
 
 V. Bell, 874. 
 
 V. Moore, 453. 
 
 V. Price, 534. 
 
 V. Smith, 379, 443, 510, 661, 
 663, 673. 
 
 V. Summer's Manf'g Co., 285, 
 606. 
 
 V. Smock, 116. 
 
 V. West, 651, 662. 
 
 V. Willard, 298. 
 Snydacker v. Swan L. & C. Co., 
 
 464. 
 Solomon v. Holden, 290, 406. 
 
 V. People, 406, 415, 427. 
 Spades v. Barrett, 323. 
 Spalding v. White, 127, 255. 
 Spangler v. Jacoby, 679. 
 Speck V. Pullman P. C. Co., 776. 
 Spellman v. Dowse, 737, 740, 745. 
 
 V. Matthewson, 739. 
 Spencer v. Boardman, 116, 502, 
 505, 636, 662. 
 
 V. Spruell, 854. 
 Sperry v. Fanning, 727.
 
 xliv 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Spire V. Lovell, 489. 
 Sprigg V. Gannemann, 657. 
 Spring V. Crane, 737. 
 
 V. Kane, 739. 
 Spurck V. Cook, 642. 
 Stahl V. Stahl. 299. 
 Standard El. Co. v. Crane El. Co., 
 
 682. 
 Stanley v. Leonard, 305. 
 Stanton v. Embry, 47. 
 Stark V. Conde, 855. 
 Starr v. Moulton, 178, 603. 
 Starring v. Keating, 532. 
 State V. Gorman, 842. 
 
 V. Johnson, 401. 
 
 V. Corey, 401. 
 
 V. Young, 401. 
 
 V. Marm, 842. 
 Steib V. Whitehead, 302. 
 Stein V. "Whitehead, 90. 
 Steel V. La Frambois, 622. 
 
 V. Clark, 662. 
 Stetson V. Stetson, 102. 
 Stettaner v. White, 668. 
 Stewart v. Stewart, 851. 
 
 V. Fellows, 143, 661. 
 
 V. Kirk, 265, 653. 
 Strauther v. Mohler, 662. 
 Streeter v. People, 127. 
 Steidel v. People, 682, 683. 
 Steinman v. Steinman, 512. 
 Stevens v. Farrell, 612. 
 
 V. Brown, 265. 
 
 V. Van Cleve, 272. 
 
 V. Edwards, 855. 
 Stevenson v. Crapnell, 297. 
 
 V. Westfall, 703, 704. 
 
 V. Ernest, 682. 
 Stickel V. Crane, 134, 237. 
 Stillman v. Young, 471. 
 Stinde v. Goodrich, 836. 
 Stoetzell V. Fullerton, 609. 
 Stokes V. Kane, 659. 
 Stoff V. McGinn. 215, 252, 399, 546. 
 Stoltz V. Doering, 75. 
 
 Story's Will, 86, 95, 96. 
 
 Stookey v. Stobkey, 625. 
 
 Stoors V. St. Luke's Hospital, 258, 
 
 259, 260. 
 Stone V. Steel, 633. 
 
 V. Clark, 464. 
 
 V. Haskins, 487. 
 
 V. Wood, 416, 468, 484, 543. 
 
 V. Fargo, 478. 
 Stonecipher v. Hall, 265. 
 Strawbridge v. Strawbridge, 134. 
 Strauss v. Phillips, 648, 467, 468. 
 Strawn v. Strawn, 491, 492, 495. 
 Strain v. Sweeney, 134, 854, 866, 
 
 874. 
 Strode v. McCormick, 310. 
 Strubher v. Belsey, 753. 
 St. Peters R. C. Church v. Ger- 
 
 maine, 208. 
 Stuke V. Glaser, 136. 
 Stunz V. Stunz, 497, 726. 
 Sturges V. Ewing, 75. 
 Sues V. Leinouh, 633. 
 Sugden v. Lord St. Thomas, 267. 
 Sullivan v. Breen, 611. 
 Sumner v. McKee, 495. 
 Summers v. Smith, 134, 851, 866, 
 874. 
 
 v. Highley, 177, 312. 
 Supervisors & etc. v. Colers, 401. 
 Sutherland v. Sutherland, 636. 
 
 V. Harrison, 491, 496, 579. 
 Sutton V. Read, 638. 
 Supply Co. V. Davis Manf'g Co., 
 
 607. 
 Swearington v. Gulick, 580. 
 
 v. Inmann, 86, 256, 258, 273. 
 Sweitzer v. Skiles, 315. 
 
 v. Kee, 487. 
 Swift V. Lee, 173. 
 
 Talcott V. Dudley, 575. 
 Tanton v. Keller, 663, 667.
 
 TABLE OF CASES CITED. 
 
 zl\r 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Tarrant v. Kelly, 510. 
 Tate V. Tate, 264. 
 Tatum V. Wright, 379. 
 Tautenham v. Dunz, 166, 204. 
 Taylor v. Taylor, 637. 
 
 V. Pegram, 80, 92, 266, 271, 
 277, 676. 
 
 V. Cox, 131. 
 
 V, Keep, 209. 
 
 V. Harrison, 340, 513. 
 
 V. Walson, 316, 318. 
 
 V. Deblois, 424. 
 
 V. Deplock, 836. 
 Teed v. Morton, 855. 
 Telford v. Patton, 336, 337, 339, 
 341, 342, 378, 513. 
 
 V. Boggs, 495. 
 Terry v. Anderson, 255. 
 Tewalt V. Irwin, 464, 
 The Puritan, 665. 
 The Benefactor, 665. 
 Thomas v. Miller, 134, 177. 
 
 V. Whitney, 299. 
 
 V. Black, 429. 
 
 V. Eckard, 863. 
 Thompson v. Bennett, 80, 262, 
 266, 271, 274, 277, 278. 
 
 V. Owen, 131. 
 
 V. Black, 427, 465, 485, 657. 
 
 V. Love, 530. 
 
 V. Mason, 682, 685. 
 
 V. Becker, 866. 
 
 V. Adams, 854. 
 
 V. Luddington, 855. 
 Thorndyke v. City of Boston, 374. 
 Thorp V. Goewery, 465. 
 
 V. Wheeler, 675. 
 Thornton v. Mehrig, 526 
 Tibbs V. Allen, 630. 
 Tilden v. Green, 309. 
 Tilton V. Pearson, 583. 
 Tillson V. Ward, 390. 
 Tilley v. Bridge, 528, 584. 
 Tisdale v. Conn. Mut. L. Ins. Co., 
 253. 
 
 Tinkler v. Cox, 680. 
 Tobey v. Miller, 398. 
 Tracey v. Hadden, 485, 586. 
 Transportation Co. v. Gill, 173. 
 Treleaven v. Dixon, 662, 673. 
 Trepp V. Baker, 674. 
 Trish V. Newhall, 86, 272. 
 Trogdon v. Murphy, 871. 
 Trowbridge v. Cross, 523. 
 Trustees of Schools, 428. 
 Trustees v. Garvey, 608. 
 Trust Co. V. Railroad Co., 57. 
 
 V. Palmer, 451, 606. 
 Truesdall v. Burke, 392. 
 Trutt V. Cummons, 392. 
 Trunkey v. Hedstrom, 657. 
 Tucker v. People, 598. 
 Tuller's Will, 88. 
 Turner v. Hause, 177, 191. 
 Turney v. Smith, 627. 
 Tyler v. Tyler, 103. 
 
 V. Sanderson, 329. 
 
 U 
 
 Uhlich V. Muhlke, 89, 315. 
 Underwood v. Wing, 836. 
 Unknown heirs of Langworthy v. 
 
 Baker, 395. 
 Union Surety Co. v. Tenney, 667. 
 Union National Bk. v. Goetz, 325. 
 R. & T. Co. V. Schacklet, 387. 
 
 512. 
 
 Trust Co. V. Trumble. 616. 
 United States v. Bainbridge, 694. 
 
 V. Duncan, 639. 
 
 V. Perkins, 260. 
 
 V. Cheeseman, 401. 
 
 V. Walker, 439, 586. 
 United Mortgage Co. v. Sperry, 
 605, 733, 735. 
 
 Casualty Co. v. Kacer, 836, 
 838.
 
 xlvi 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 Thompkins, 77, 167, 
 
 Updike V 
 168. 
 Ure V. Ure, 305, 306. 
 U. R. & T. Co. V. Shacklett, 445 
 
 Vallette v. Tedens, 298. 
 
 V. Bennett, 318. 
 Vanderoier v. Fetta, 487. 
 Vanderhayden v. Crandall, 305. 
 Van Schaak v. Leonard, 201. 
 Van Orlander v. Carpenter, 193. 
 Van Buskirk v. Van Buskirk, 328, 
 
 776. 
 Van Meter v. Heirs of Love, €01. 
 Van Bibber v. Bank, 666. 
 Vannetta v. Carr, 140, 191. 
 Vestal V. Garrett, 110, 163, 173. 
 Vidal V. Girard, 213. 
 Village of Hyde Park v. Bordon, 
 
 864. 
 Virgus V. Bannon, 662. 
 Virgin v. Virgin, 578, 579, 580, 581, 
 
 633, 634. 
 Viskniskii v. Bleakley, 473. 
 Volbracht v. White, 653, 656, 676. 
 Voigt V. Kersten, 838. 
 Voris V. Sloan, 190, 753, 822, 854. 
 Von Kettler v. Johnson, 580, 597. 
 Von Giessen v. Bridgford, 386. 
 Vyne v. Glen, 323. 
 
 W 
 
 Wackerly v. People, 757, 758, 759, 
 
 760. 
 Wabash R. R. Co. v. Schacklett, 
 
 445. 
 Wade V. Pritchard, 512. 
 Wadswortli v. Duncan, 665. 
 V. Connell, 44, 417, 711. 
 Wagonseller v. Rexford, 674. 
 
 Walker v. Doan, 623, 682. 
 V. Douglas, 610. 
 V. Craig, 541. 
 V. Walker, 130, 865. 
 V. Diehl, 579. 
 
 V. Pritchard, 137, 138, 188, 
 191, 87L 
 
 V. Brown, 694, 695. 
 
 V. People, 375, 377. 
 
 V. Chovin, 597. 
 
 V. Welber, 386. 
 
 V. Welker, 388. 
 
 V. Kimball, 420. 
 Walbridge v. Day, 416. 
 Waldo V. Cummings, 205, 869, 870, 
 
 871. 
 Walford v. Deemer, 492. 
 Wallace v. Reddick, 64. 
 
 V. Bozarth, 140, 191. 
 
 V. Rappleye, 67. 
 
 V. Whitehead, 256. 
 
 V. Carpenter, 298. 
 
 V. Monroe, 488. 
 Wall V. Bissell, 398. 
 Walton V. Follansbee, 285, 297. 
 Walters v. Witherell, 660. 
 Walter v. Kirk, 541. 
 Walsh V. Reis, 625. 
 Ward V. Ward, 67, 68, 104, 149. 
 
 V. Armstrong, 315, 329. 
 
 V. Dunham, 468, 484. 
 Wardswell v. McDowell, 399, 546. 
 Wardwell v. McDonald, 218. 
 Warner v. Scott, 610. 
 
 V. People, 712. 
 Wanneker v. Hitchcock, 530. 
 Washington v. L. & N. R. Co., 538. 
 Watt V. McGilliard, 707. 
 Watts V. Dull, 105. 
 Waters v. State, 401. 
 
 V. Stickney, 127a. 
 
 V. Waters, 273. 
 Watkins v. Shaw, 424. 
 
 V. Dean, 851.
 
 TABLE OF CASES CITED. 
 
 xlvii 
 
 [references are to sections.] 
 
 Waterman v. Alden, 295, 313, 322, 
 
 326, 328, 532. 
 Watson V. Watson, 275. 
 Waugh V. Moan, 79, 117, 653. 
 Waughop V. Bartlett, 449. 
 Way V. Harriman, 660. 
 
 V. Cox, 796. 
 Weaver v. Weaver, 501, 502, 503, 
 
 504. 
 Webster v. Birchmore, 253. 
 
 V. Yorty, 278. 
 
 V. Conley, 602, 730. 
 Weed v. Waterbury, 389. 
 Weeks v. Gibbs, 398. 
 Weer v. Grand, 612. 
 Weir v. Chidester, 97. 
 
 V. People, 424, 600. 
 
 v. Brooks, 451, 607. 
 Weigle V. Brautigam, 668. 
 Weill V. Zache, 665. 
 Weingartner v. Pabst, 659. 
 Weld V. Sweeney, 79. 
 Welch V. Hoydt, 478, 528. 
 
 V. Wallace, 471, 475. 
 
 V. Savings Bank, 169, 170, 182, 
 864, 867, 868, 869, 871. 
 
 V. Sykes, 682. 
 Wells V. Miller, 448, 449, 526. 
 Wellman v. Highland, 514. 
 Wellner v. Jones, 860. 
 Werner v. Thornton, 215, 546, 580, 
 Wernse v. Hall, 431. 
 Wentworth v. Cook, 606. 
 West V. Fitz, 140, 177, 251, 317. 
 
 v. Maples, 389. 
 Weston V. Weston, 862. 
 Wetheral v. O'Brien, 325. 
 
 V. Harris, 603. 
 Wheeler v. Dawson, 464, 468, 484, 
 625. 
 
 V. Wheeler, 127, 255. 
 White V. Ross, 297, 299. 
 
 V. Cannon, 297, 300. 
 
 V. Briggs, 142. 
 
 V. Glover, 217, 316. 
 
 White V. Sherman, 292, 307, 315, 
 
 321, 324, 329, 330, 331, 332. 
 
 White Memorial Home v. Price, 
 
 117, 130. 
 Whiteside v. Taylor, 707. 
 Whitesides Appeal, 253. 
 Whitbeck v. Estate of Ramsey, 
 
 485. 
 Whitlock v. McClosky, 487. 
 Whitman v. Baker, 163. 
 
 V. Fisher, 753. 
 Whiting V. Nicholl, 253. 
 Whitley v. Equit. L. A. Society, 
 
 836. 
 Whitney v. Peddicord, 326, 461. 
 Whittaker v. Whittaker, 651. 
 Whitson V. Grovsner, 56. 
 Whipple V. Eddy, 80, 83, 261, 274, 
 
 279. 
 Whyte V. Mann, 837. 
 Wicker v. Ray, 193, 195. 
 Wickliffe v. Lynch, 651. 
 Wickiser v. Cook, 727. 
 Wiggins Ferry Co. v. C. & M. Ry. 
 
 Co., 191. 
 Wilber v. Wilber, 92, 266, 274, 277. 
 Wilcox V. Palmer, 775. 
 Wilcoxon V. Reed, 673. 
 Wild V. Sweeney, 124. 
 Wilkins v. Ellett, 75, 415. 
 Wilkinson v. Thomas, 66. 
 
 V. Dening, 709, 710. 
 Willemin v. Dunn, 777. 
 Will V. Will, 127. 
 Willenborg v. Murphy, 449. 
 Williams v. Williams, 173, 230, 
 519. 
 V. Rogers, 579. 
 V. Brown, 298. 
 V. McConico, 305. 
 V. Chamberlain, 337, 573. 
 V. Morton, 401. 
 V. Adams, 523. 
 V. Rhodes, 591. 
 V. Johnson, 645.
 
 xlviii 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE TO SECTIONS.] 
 
 "Williams v. Walker, 751. 
 
 V. Case, 116. 
 Willbanks v. Willbanks, 201, 244. 
 Willis C. & M. Co. V. Grizzell, 51, 
 
 75. 
 Wilson V. Leland, 44. 
 
 V. Root, 101. 
 
 V. Mason, 314. 
 
 V. Kirby, 485. 
 
 V. Gault, 863. 
 Winchell v. Edwards, 667. 
 Windslow v. Leland, 464, 471. 
 Winch V. Brutton, 141. 
 Wingate v. Pool, 461. 
 Wing V. Sherrer, 116. 
 
 V. Angrave, 836. 
 
 V. Goodman, 674. 
 
 T. Dodge, 528, 583, 747, 781, 
 820, 821, 822, 826, 827, 828. 
 Wisdom V. Becker, 399, 600. 
 Witcomb V. Williams, 173. 
 Witham v. Brooner, 220, 303, 304. 
 
 V. People, 772. 
 Witman v. Brooner, 856. 
 Winslow V. People, 713, 717. 
 Wood V. Stone, 576. 
 
 V. Johnson, 462, 591, 613. 
 
 V. Vanderburg, 489. 
 Woodburn v. Woodburn, 300, 336. 
 Woodhouse v. Crandali, 325. 
 Woodward v. Woodward, 148. 
 Wooley V. Schrader, 201, 245. 
 Wolf V. Griffin, 600. 
 
 Exr. V. Beaird, 44, 485, 592. 
 
 V. Bollinger, 261. 
 
 V. Ogden, 630. 
 Wolfer V. Hemmer, 93, 191. 
 Wolverton v. Taylor, 479. 
 
 Wombacher v. Barthelme, 80, 271. 
 Woman's U. M Society v. Mead, 
 
 312. 
 Wright V. Wallbaum, 43 395, 408, 
 432, 770. 
 V. Simpson, 112, 113, 114, 127, 
 
 131, 132. 
 V. Dunn, 169, 868. 
 V. Purson, 305. 
 V. Marshall, 310. 
 V. People, 597. 
 V. Conley, 724. 
 V. Barry, 851. 
 Wunderlee v. Wunderlee, 379. 
 
 Yarde v. Yarde, 636. 
 Yoe V. McCord, 82, 257, 272. 
 Yokem v. Hicks, 513, 661, 664. 
 Yonley v. Lavender, 47. 
 York V. York, 495, 497, 526. 
 Young V. Martin, 142. 
 
 V. Young, 851. 
 
 V. Harklervad, 854. 
 
 V. Larain, 708, 757, 760. 
 
 V. Robertson, 154. 
 
 V. Graft, 285. 
 
 V. People, 427. 
 
 V. Wittenmyre, 591. 
 
 Zackman v. Zackman, 63, 502, 509. 
 Ziegler v. Clinton M. Life Ins. Co., 
 670.
 
 THE LAW OF ESTATES 
 
 AND PROBATE PRACTICE 
 
 CHAPTER I 
 
 THE PROBATE COURT 
 
 Sec. 
 1. 
 
 2. 
 3. 
 4. 
 
 5. 
 
 6. 
 
 7. 
 
 8. 
 
 9. 
 10. 
 11. 
 12. 
 13. 
 14. 
 15. 
 16. 
 17. 
 18. 
 19. 
 20. 
 
 21. 
 22. 
 23. 
 24. 
 25. 
 
 The constitutional provision 
 authorizing such court. 
 
 Style of court, seal. 
 
 Where to be held. 
 
 Election of judge, term of of- 
 fice. 
 
 Judge to take oath. 
 
 Jurisdiction. 
 
 Terms of court always open. 
 
 Jury trial fees of jurors. 
 
 Practice and pleadings. 
 
 Duties of sheriff. 
 
 When judge interested. 
 
 Appeals. 
 
 Appeal sale of real estate. 
 
 Clerk, election, term. 
 
 Clerk to give bond. 
 
 Clerk may appoint deputies. 
 
 Duties of clerk. 
 
 County board, stationery. 
 
 OflBces and furniture. 
 
 Books to be delivered to suc- 
 cessor. 
 
 How records to be kept. 
 
 Fees of clerk. 
 
 Clerks fees in Cook county. 
 
 Salary of Judge. 
 
 Vacancy how filled. 
 
 Sec. 
 
 26. When clerk may designate and 
 
 call any county or probate 
 judge to hold court. 
 
 27. Repeal of act. 
 
 28. Emergency. 
 
 29. Probate Judge not to act as 
 
 attorney, etc. 
 
 30. Penalty, 
 
 31. Interchange of county and pro- 
 
 bate judges. 
 
 32. Jurisdiction to control testa- 
 
 mentary trusts created by 
 original wills. 
 
 33. Practice in such case. 
 
 34. Power to sell real estate, etc., 
 
 under such act, 
 
 35. Sales, how made and executed, 
 
 where executor, etc., dies, 
 
 36. Clerks fees, under act. 
 
 37. Not to be construed to repeal 
 
 land title act. 
 3S. Note, Lynch v. Hutchinson, act 
 
 declared not legally passed. 
 Conclusive and mandatory 
 in certain States, in others 
 joui'nal may be looked in- 
 to. 
 
 Sec. 1. The Constitutian of the State of Illinois of 1870, 
 granting power to the General Assembly to establish Probate 
 Courts. Article VI, section 20, is as follows: "The General 
 Assembly may provide for the establishment of a probate court 
 
 1
 
 3 THE LAW OP ESTATES. 
 
 in each county having a population of over fifty thousand, and 
 for the election of a judge thereof, whose term of office shall 
 be the same as that of the county judge, and who shall be 
 elected at the same time and in the same manner. Said courts, 
 when established, shall have original jurisdiction of all probate 
 matters, the settlement of estates of deceased persons, the ap- 
 pointment of guardians and conservators, and settlement of 
 their accounts; in all matters relating to apprentices, and in 
 cases of the sales of real estate of deceased persons for the 
 payment of debts. "^ The authority given by the con- 
 stitution to establish probate courts was exercised by the 
 Legislature of Illinois, in 1877, when "An Act to establish 
 probate courts in all counties having a population of seventy 
 thousand or more, to define the jurisdiction thereof, and regu- 
 late the practice therein, and to fix the time for holding the 
 same." (Title of act approved April 27, 1877, amended by act 
 approved May 21, 1881. In force July 1, 1881 ; and by amend- 
 ments thereafter approved and in force, April 1, 1885 ; July 1, 
 1897; July 1, 1899, July 1, 1903; July 1, 1905.) Some of the 
 original sections have been entirely rewritten, and some 
 amended in part. The act relating to the establishment of 
 said court, and the amendments thereto are given with exten- 
 sive authorities, in Starr & Curtis Annotated Statutes of Il- 
 linois, with Jones & Addington's Supplements thereto.^ "We 
 give the act as it now stands, including the amendment of 1905.^ 
 
 2. Style of court — seal. § 1. Be it enacted by the People 
 of the State of Illinois, represented in the General Assembly, 
 That there shall be established in each county of this state, now 
 
 1— Starr & Curtis Annotated 2— Vol. 1, pp. 1194 to 1200, in- 
 
 Statutes of Illinois, with Jones & elusive, and authorities cited; 
 
 Addington's Supplements thereto. Vol. 4, pp. 370, 371, and authori- 
 
 Vol. 1, pp. 154, 155, and author!- ties cited; Vol. 5, p. 154, and au- 
 
 ties cited; Vol. 4, p. 13, and au- thorities cited; Kurd's R. S. of 
 
 thorities cited; Kurd's R. S. of 111., 111., 1905. 
 
 1905, p. 66. 3— Kurd's Statutes, pp. 627-631 
 
 inclusive.
 
 THE PROBATE COURT. 3 
 
 created and organized, or which may be hereafter created and 
 organized, and which has a population of seventy thousand or 
 more, a court of record, to be styled "The Probate Court of 
 (name of) County." Such court shall have a seal and may 
 from time to time, as may be necessary, renew or alter the 
 same. The expense of such seal and of renewing and altering 
 the same shall be paid by the county.'* 
 
 3. Where to be held. § 2. Said courts shall be held in the 
 court houses of the respective counties in which they shall be 
 established;, or in the usual places of holding courts, or in suit- 
 able rooms provided therefor at the county seat. 
 
 4. Election of judge — term of office. § 3. The judge of 
 said court in each county in which such court shall be estab- 
 lished shall be elected on the Tuesday next after the first Mon- 
 day in November, at the same election at which the county 
 judge is elected, and every fourth year thereafter, and shall 
 enter upon the duties of his office on the first Monday of De- 
 cember after his election, and shall hold his office for a term 
 of four years and until his successor is elected and qualified, 
 and shall be known as the probate judge of (name of) county. 
 
 5. Judg'e to take oath. § 4. The probate judge of each 
 county in which a probate court shall be established shall, 
 before entering upon the duties of his office take and subscribe 
 and file with the secretary of state the oath required by the 
 constitution. 
 
 6. Jurisdiction. § 5. Probate courts shall have original 
 jurisdiction in all matters of probate, the settlement of estates 
 of deceased persons, the appointment of guardians and con- 
 Bervators and settlement of their accounts, and in all matters 
 relating to apprentices, and in cases of the sales of real estate 
 of deceased persons for the payment of debts. And as soon 
 
 4 — As amended by Act approved May 21, 1881, in force July 1, 1881. 
 L. 1881, p. 72.
 
 4 THE LAW OF ESTATES. 
 
 as such court is organized in any county, the county court of 
 such county shall turn over to the probate court all of its 
 probate records, and all files, books and papers of every kind 
 relating to probate matters in such county court, and all rec- 
 ords, files and papers in matters of guardianship and con- 
 servators, and the clerk of the probate court shall be author- 
 ized to demand and receive from the county clerk all such 
 records, files, books and documents, and upon the receipt 
 thereof, the probate court shall proceed to finish and complete 
 all unfinished business relating to probate, guardianship and 
 conservatory matters in the manner provided by law. 
 
 7. Terms of court — ^always open. § 6, The terms of the 
 probate court shall commence on the first Monday of each 
 month during the year, and shall be always open for the 
 granting of letters testamentary, letters of administration and 
 guardianship and for the transaction of probate business and 
 all other matters of which it has jurisdiction, and shall con- 
 tinue open from day to day until all business before it is dis- 
 posed of.5 
 
 8. Jury trial — fees of jurors. § 7. The probate court shall 
 have the power to impanel a jury for the trial of issues or 
 matters of fact in any matter or matters pending before the 
 court, and for such purpose the court may at any time, when 
 it becomes necessary to have a jury, direct the clerk of said 
 court to issue a venire for either six or twelve competent jurors, 
 and deliver the same to the sheriff or coroner or any bailiff 
 of the court, who shall summon such jurors from the body of 
 the county to be and appear before said court at any term or 
 day named in such venire, and if by reason of non-attendance, 
 challenge or otherwise, said jury shall not be full, the panel 
 may be filled by talesmen. Said court shall have the same 
 power to compel the attendance of jurors and witnesses as 
 
 5 — As amended by Act approved of acts in conflict herewith are 
 May 13, 1905, in force July 1, 1905, hereby repealed. And by Act ap- 
 L. 1905, p. 188. All acts or parts proved May 13, 1905, in force July 
 
 1, 1905.
 
 THE PROBATE COURT. 5 
 
 the circuit court has or may hereafter have, and jurors to act 
 as such in said court shall possess the same qualifications and 
 be entitled to the same privileges of exemption and subject 
 to the same rules of challenge for cause or peremptorily as 
 jurors in the circuit courts of the state. "When such jury shall 
 be brought into said court, the court may retain such jury 
 during the term or any portion thereof, as may be necessary 
 for the trial of any matter or matters of fact which in the 
 discretion of the court requires a jury. The per diem and 
 mileage of said jurors shall be the same as they are for jurors 
 in the circuit court, to be paid out of the county treasury upon 
 the presentation of a certificate of the clerk of said court, 
 issued to each juror at the time of their discharge, certifying 
 to the number of days he may have attended court as a juror 
 and the amount of juror's fees and mileage due him. 
 
 9. Practice and Pleadings. § 8. The process, practice and 
 pleadings in said court shall be the same as those now provided, 
 or which may hereafter be provided, for the probate practice 
 in the county courts of the state, and all laws now in force, 
 or which may hereafter be enacted concerning wills, or the 
 administration of estates, shall govern and be applicable to 
 the practice in the probate courts of the state. 
 
 10. Duties of sheriff. § 9. The sheriff, in person or by his 
 deputy, shall attend the sittings of the probate court of his 
 county, preserve order in the same and execute the legal com- 
 mands and process thereof. 
 
 11. When judge interested. § 10. Whenever the probate 
 judge of any county is interested in the estate of any deceased 
 person, and the letters testamentary or of administration shall 
 be grantable in the county of such judge, such estate shall 
 be probated in the county court of such county, unless the 
 county judge be also interested, in which event the facts of 
 such interest may be entered of record in the probate court 
 of the county and certified to the circuit court of the county, 
 and upon the filing of such certificate with the clerk of the
 
 6 THE LAW OF ESTATES. 
 
 circuit court, such court shall have full and complete jurisdiction 
 in all matters pertaining to such estate under all laws of this 
 state concerning the administration of estates or the probate 
 of wills, and in all cases so transferred the clerk of said circuit 
 court shall have the same power in all matters of such estate, 
 in term time or vacation, that the clerk of the probate or 
 county court has: Provided, that, if the probate judge is only 
 interested as a creditor, no change may be made except in 
 relation to his claim. 
 
 12. Appeals. § 11. Appeals may be taken from the final 
 orders, judgments and decrees of the probate courts to the 
 circuit court of their respective counties in all matters except 
 in proceedings on the application of executors, administrators, 
 guardians and conservators for the sale of real estate, upon 
 the appellant giving bond and security in such amount and 
 upon such condition as the court shall approve, and upon such 
 appeal the case shall be tried de novo. 
 
 13. Appeals — sale of real estate. § 12. Appeals and writs 
 of error may be taken and prosecuted from the final orders 
 and decrees of the probate court to the supreme court in pro- 
 ceedings on the application of executors, administrators, guard- 
 ians and conservators for the sale of real estate. Such appeals 
 and writs of error, when not otherwise provided, shall be taken 
 and prosecuted in the same manner as appeals from and writs 
 of error to the circuit court. 
 
 14. Clerks — ^election — ^term. § 13. There shall be elected 
 at the same time as the probate judge is elected a clerk of the 
 probate court, who shall hold his office for a term of four years 
 and until his successor shall be elected and qualified. Before 
 entering upon the duties of his office he shall take and sub- 
 scribe the oath required by the constitution of the state. 
 
 15. Clerk to give bond. § 14. Every clerk shall, before 
 entering upon the duties of his office, give bond with two or 
 more sureties, to be approved by the judge of the court of
 
 THE PEOBATE COURT. 7 
 
 which he is clerk, which bond shall be in such penalty, not 
 less than five thousand dollars ($5,000), as may be determined 
 by such judge, payable to the People of the State of Illinois, 
 and conditioned for the faithful performance of the duties of 
 his office and to pay over all moneys that may come to his 
 hands by virtue of his office to the parties entitled thereto, and 
 to deliver up to his successor in office all moneys, papers, books, 
 records and other things appertaining to his office whole, safe 
 and undefaced, which bond shall be copied at large upon the 
 records of the court and then filed in the office of the secretary 
 of state, upon which such clerk shall be immediately commis- 
 sioned by the governor and enter upon the duties of his office. 
 
 16. Clerk may appoint deputy. § 15. Every such clerk 
 shall attend in person to the duties of his office when it is 
 practicable so to do, and perform all the duties thereof which 
 can reasonably be performed by one person: Provided, how- 
 ever, he may, when necessary, appoint deputies, who shall take 
 the same oath or affirmation as is required of the principal 
 clerk, which shall be entered at large upon the records of the 
 court, and the principal clerk shall in all cases be responsible 
 for the acts or omissions of his deputies. 
 
 17. Duties of Clerk. § 16. Every such clerk shall attend 
 the sessions of their respective courts, issue all process thereof, 
 preserve all the files and pages thereof, make, keep and pre- 
 serve complete records of all the proceedings and determina- 
 tions thereof, and do and perform all other duties pertaining 
 to their said offices as may be required by law or the rules and 
 order of their courts respectively, and shall enter of record all 
 judgments, decrees and orders of their respective courts before 
 the final adjournment of the respective terms thereof or as 
 soon thereafter as practicable. 
 
 18. County board— stationery. § 17. It shall be the duty 
 of the county board of every county in which there shall be 
 established a probate court in pursuance of this act, to provide 
 the clerk thereof with all necessary blanks, books, stationery.
 
 8 THE LAW OF ESTATES. 
 
 pens and ink for their respective offices, the same to be paid 
 for out of the county treasury, and in case such supplies shall 
 not be so furnished, then the clerk of such court shall furnish 
 the same from time to time as may be necessary, the cost 
 thereof to be allowed by the county board and paid out of 
 the county treasury. 
 
 19. Offices and furniture. § 18. The necessary rooms, of- 
 fice and furniture, the proper vaults or other safe means of 
 keeping the archives of their respective offices shall be provided 
 for the clerks of the probate courts in their respective counties 
 by the county and the cost thereof paid out of the county 
 treasury. 
 
 20. Books to be delivered to successor. § 19. It shall be 
 the duty of the probate clerk to deliver over to his successor 
 in office, and of his successor to demand and receive from him, 
 all the books, papers, records and other things appertaining 
 to his office, or in his possession by virtue of his office, and 
 should he refuse or neglect to do so, the court shall have 
 power to use such compulsory process and take such measures 
 as may be necessary to compel the delivery as aforesaid, ac- 
 cording to the true intent and meaning hereof. 
 
 21. How records to be kept. § 20. In all matters con- 
 cerning the probate of the estates of deceased persons, the 
 granting of letters testamentary or of administration, letters 
 of guardianship, the manner of keeping the records of said 
 court, the form of docket entries, journals, fee books, mem- 
 orandums, the form of process, the recording of papers and 
 documents connected with any matter of which said court has 
 jurisdiction, the clerk of said court shall be governed by and 
 follow all laws now in force, or which may hereafter be 
 enacted, concerning similar matters in the county courts of 
 the state. 
 
 22. Fees of clerk. § 21. The clerk of the probate court 
 shall charge and collect for each official act the same fees as
 
 THE PEOBATE COURT. 9 
 
 are allowed to clerks of the county courts of the state in pro- 
 bate matters, which fees shall be charged in accordance with 
 the laws now in force or which may hereafter be enacted con- 
 cerning fees and salaries, and according to the class to which 
 the county belongs. Such clerk shall keep full, true and cor- 
 rect accounts of all fees collected by him and report the same 
 in accordance with said laws, for the keeping of which accounts 
 no fees shall be allowed such clerk, and the same shall be 
 open for inspection by the county board, in accordance with 
 said laws, and all fees in excess of the compensation allowed 
 to such clerk, and necessary clerk hire and other expenses, 
 shall be paid into the county treasury in accordance with said 
 laws concerning fees and salaries.^ 
 
 23. Clerk's fees in Cook Coouity. § 22. Clerks of the pro- 
 bate court shall receive such compensation or salary as shall 
 be allowed them by the county board, together with the amount 
 of their necessary clerk hire, stationery, fuel and other ex- 
 penses, in accordance with the provisions of the constitution: 
 Provided, that in the county of Cook the probate clerk shall 
 receive, aside from clerk hire, necessary expenses for fuel and 
 stationery, the sum of three thousand dollars ($3,000) per 
 annum as his only compensation, to be paid out of the fees of 
 his office. 
 
 24. Salary of judge. § 23. Probate judges shall be allowed 
 such salary as shall be fixed by their respective county boards, 
 to be paid out of the county treasury. 
 
 25. Vacancy— <liow filled. § 24. When a vacancy shall oc- 
 cur in the office of judge of the probate court of any county, 
 the clerk of the court in which the vacancy shall exist shall 
 notify the governor of such vacancy. If the unexpired term 
 of the office made vacant is less than one year, at the time the 
 vacancy occurs, the governor shall fill such vacancy by ap- 
 pointment; but if the unexpired term exceeds one year, the 
 
 6— See Chapter ^9, "Fees of Clerks of Probate Courts in Clas- 
 sified Counties."
 
 10 THE LAW OP ESTATES. 
 
 governor shall issue a writ of election as in other eases of 
 vacancy to be filled by election. 
 
 26. When clerk may designate and call any county or pro- 
 bate judge to hold court. § 1. That in case of the death, 
 resignation or inability of the judge of a county or probate 
 court, of any county, the clerk of such court shall designate 
 and call any county or probate judge to hold such county or 
 probate court; and such county or probate judge, when so 
 designated and called, may hold such county or probate court 
 and perform all the duties of the judge thereof until the ap- 
 pointment or election of his successor, or until the disability 
 to act ceases.'^ 
 
 27. Repeal of act. §2. The act entitled "An Act to author- 
 ize county judges to perform the duties of judges of probate 
 courts, in certain cases," approved May 23, 1883, is hereby 
 repealed. 
 
 28. Emergency. § 3. Whereas, there has been a recent 
 death of a county judge, and a necessity thereby created to 
 authorize a county or probate judge to perform the duties of 
 the office of such deceased judge; therefore an emergency 
 exists and this act shall be in force from and after its passage. 
 
 29. Probate judge not to act as attorney, etc. § 1. That it 
 shall be unlawful for any judge of any county or probate court, 
 in this state, to act as attorney or solicitor for or against any 
 widow or heirs or other person or persons interested in the 
 estate of any deceased person, in respect to the estate, real or 
 personal, of such deceased person, when administration on the 
 estate of such deceased person is pending in said court and 
 final settlement thereof has not been made. 
 
 30. Penalty. § 2. That any county or probate judge who 
 shall violate the provisions of this act shall be fined not less 
 than fifty dollars nor more than one thousand dollars, and 
 upon conviction of the second offense shall be removed from his 
 office. 
 
 7 — As amended by Act approved April 24, 1899, in force July 1, 
 1899. Laws of 1899, p. 130.
 
 THE PROBATE COURT. 11 
 
 31. Interchange of county and probate judges. Paragraph 
 215h, a part of the county court act, Hurd's Statutes, 1901, 
 page 570, applies also to probate court. "That the county and 
 probate judges in the several counties of this state, with like 
 privileges as the judges of the circuit courts of this state, may 
 interchange with each other, hold court for each other, and 
 perform each other's duties, in their own or any other county, 
 when they find it necessary or convenient." 
 
 32. Jurisdiction to control testamentary trusts created by 
 original wills. § 1. That original jurisdiction is hereby con- 
 ferred upon probate courts and county courts in counties where 
 no probate courts are now, or may hereafter be established 
 according to law to supervise and control all testamentary 
 trusts created by original wills of deceased persons proved and 
 admitted to probate in such court. The jurisdiction hereby 
 conferred shall include the appointments and removals of trus- 
 tees, the issuing of letters of trusteeship to such trustees, 
 the fixing and approving of their bonds and the settlement 
 of their accounts; and in regard thereto said court shall have 
 and exercise full chancery powers. 
 
 33. Practice. § 2. The practice in such matters of testa- 
 mentary trusts in probate or county courts as herein provided 
 shall be as nearly as may be analogous to that now existing 
 in the probate and settlement of testate estates. The court 
 shall have power in a summary manner to require the filing of 
 accounts of testamentary trustees and to enforce all orders in 
 relation thereto by citation or attachment in the same manner 
 as is now provided by law in case of executors and adminis- 
 trators. 
 
 34. Power to sell real estate. § 3. The supervision and 
 control of testamentary trusts vested by this act in probate 
 courts and county courts in counties where no probate courts 
 are now, or may hereafter be established according to law, 
 shall extend to and include the power in such courts to order 
 the sale of the real estate to which any testator had claim or
 
 12 THE LAW OF ESTATES. 
 
 title, or such part thereof as may be necessary, for the payment 
 of legacies or other charges made thereon by the testator, and 
 in cases where the court shall find it necessary or expedient 
 for the complete execution of the will of the testator and the 
 equitable distribution of his estate in accordance therewith, 
 that such real estate or a part thereof be sold. In the exercise 
 of this power such courts shall proceed, as near as may be, in 
 conformity with the procedure established by law for the sale 
 of real estate to pay debts in courts having probate jurisdic- 
 tion. 
 
 35. Sales, how made and executed — where executor, etc., 
 dies. § 4. All such sales of real estate shall be made, and con- 
 veyances executed for the same by the executor, administrator 
 with the will annexed, or testamentary trustee applying for 
 such order and shall be valid and effectual against the heirs 
 and devisees of such testator, and all other persons claiming by, 
 through or under him or them. In case of the death of the 
 executor, administrator with the will annexed or testamentary 
 trustee applying for an order of sale before conveyance is 
 made, his successor shall proceed in the premises and make 
 conveyance in the same manner as if he had originally applied 
 for such order, which conveyance shall be good and valid. 
 
 36. Clerk's fees. § 5. The clerks of probate and county 
 courts having probate jurisdiction shall be entitled to take fees 
 as are now, or hereafter may be authorized by law for like 
 services in the matter of the estates of deceased persons, but 
 no docket fee shall be charged against any estate so held in 
 trust where the original estate when probated was charged 
 and paid a docket fee as provided by law. 
 
 37. Not to be construed to repeal land title act. § 6. Noth- 
 ing in the act contained shall be construed as repealing any of 
 the provisions of an act entitled, "An Act concerning land 
 titles," approved and in force May 1, 1897, nor any of the 
 provisions of an act entitled, "An Act to amend sections seven 
 (7) and eighteen (18) of an act entitled, 'An Act concerning
 
 THE PROBATE COURT. , 13 
 
 land titles,' approved and in force May 1, 1897," approved 
 May 18, 1903, and in force July 1, 1903. 
 
 The bill (containing the six sections in question) having re- 
 mained with the Governor for a period of ten days (Sunday 
 excepted) after the adjournment of the General Assembly, and 
 he not having filed it with his objections thereto in the office 
 of the Secretary of State, it becomes a law in like manner as 
 if he had signed it. 
 
 JAMES A. ROSE, Secretary of State. 
 
 Note — It appears from the enrolled bill filed in this office 
 that the presiding officer of the Senate did not sign the same, 
 but the records of this office show that said bill, designated as 
 Senate Bill No. 118, passed the Senate March 28, 1905, re- 
 ceiving 30 affirmative votes and 2 negative votes, and that the 
 said bill with House amendments, passed the House of Repre- 
 sentatives May 5, 1905, receiving 113 affirmative votes and 7 
 negative votes; and the records further show that the Senate 
 concurred in the House amendments May 5, 1905, there being 
 27 votes in favor of concurring and no negative votes. 
 
 JAMES A. ROSE, Secretary of State. 
 
 38. Note. The case of Lynch v. Hutchinson, 219 111. 193, 
 appealed direct from the probate court of Cook county to the 
 October term of the Supreme court of Illinois, was by that 
 court decided and its opinion handed down in December, 1905. 
 In substance it is held: That the Act of 1905, extending the 
 jurisdiction of probate and county courts having probate juris- 
 diction, and giving such courts full jurisdiction and 
 control of testamentary trusts is not a valid law; the 
 law in question was not passed in compliance with the con- 
 stitutional provisions of this State, that is to say, the President 
 of the Senate and the Speaker of the House of Representatives 
 did not certify the law as required by the constitution, and 
 therefore the act was not properly passed as a law. It is also
 
 14 THE LAW OF ESTATES. 
 
 held in that case, that every bill which has passed both houses, 
 must be signed by the President of the Senate, and the Speaker 
 of the House, this being mandatory, even though such signa- 
 tures are not conclusive evidence that the bill was properly 
 passed. 
 
 Note. In those States where the enrolled bill, duly authen- 
 ticated, is held to be conclusive evidence of its passage, the 
 provision has uniformly been held to be mandatory; while in 
 those States, where the journal of the respective hoiLses may be 
 looked into to determine whether the bill was passed in com- 
 pliance with the constitutional provisions, there exists a con- 
 flict of authority. s 
 
 8— 26 Am. & Eng. Ency. of Law, State, 45 Ohio St. 263; Cooley's 
 2d ed., p. 545. See Keiswettor v. Const. Lim., 2d ed., p. 152.
 
 CHAPTER II 
 
 JURISDICTION OF PROBATE COURTS 
 
 Sec, 
 
 39. Jurisdiction of Probate and 
 
 County courts having pro- 
 bate jurisdiction. 
 
 40. Jurisdiction defined. 
 
 41. Klokke v. Dodge. 
 
 42. Meserve v. Delany. 
 
 43. Jurisdiction of probate courts 
 
 are as conclusive as that 
 of any court of common 
 law jurisdiction. 
 
 44. The Illinois decisions recog- 
 
 nize the jurisdiction of 
 
 Sec. 
 
 such courts extensively in 
 law and equity. 
 
 45. Chancery courts have estab- 
 
 lished almost a universal 
 rule of jurisdiction in pro- 
 bate courts. 
 
 46. Testamentary trusts and trus- 
 
 tees. 
 
 47. The Federal courts take juris- 
 
 diction in matter of estates 
 when? 
 
 48. Yonley v. Lavender, 
 
 49. Byers v. McAuley. 
 
 Sec. 39. Jurisdiction of probate and county courts having 
 probate jurisdiction. The jurisdiction of probate courts is 
 fixed by section 20 of article 6 of the constitution of 1870, and 
 by the Act to establish probate courts, approved April 27, 
 1877, conferring jurisdiction in the language of the constitu- 
 tion, viz. : Said courts, when established, shall have original 
 jurisdiction of all probate matters, the settlement of estates of 
 deceased persons, the appointment of guardians and conserva- 
 tors, and settlement of their accounts.^ 
 
 40. Jurisdiction defined. Bouvier's Law Dictionary defines 
 "jurisdiction" as the authority by which judicial officers take 
 cognizance of and decide cases; power to hear and determine 
 a case; the right of a judge to pronounce a sentence of the 
 law in a case or issue before him, acquired through the process 
 of law. 
 
 1— Chicago Title & Trust Co, v. Brown, 183 111, 42. 
 of this work. 
 15 
 
 See chapter I
 
 16 THE LAW OF ESTATES. 
 
 41. In Klokke v. Dodge,^ it is said: It is appar- 
 ent, then, that county courts in all the counties of the state 
 have, and must have under the constitution, the same powers 
 and jurisdiction, whether probate courts are established in 
 some of them or not; and hence constitute a "class of 
 courts," within the meaning of that instrument, eoncerning 
 which all laws must be general, and of uniform operation. 
 
 42. In the case of Meserve Exr. v. Delany,^ it is 
 said: This case comes directly to this court because the sole 
 question discussed is the constitutionality of that portion of 
 the statute of April 27, 1877, pursuant to which the probate 
 records and files of the county court of Cook county was 
 transferred to the probate court of that county. This 
 court held in Knickerbocker v. The People,'^ that so much of the 
 act above referred to as created the probate court was constitu- 
 tional, and this was subsequently reiterated in Klokke v. Dodge.^ 
 And a majority of the court are still of the opinion announced 
 in Klokke v. Dodge, supra, that the creation of the probate court 
 divested the county court of all probate jurisdiction. 
 
 43. Jurisdiction of Probate Courts are as conclusive as that 
 of any court of common law jurisdiction. When acting under 
 the power conferred upon them, such courts are entitled to the 
 same presumptions in their favor when collaterally assailed 
 as other courts. In most of the states by express statutes, or 
 by a long line of judicial decisions the orders and decrees of 
 probate courts, when acting within their powers, are as bind- 
 ing as that of other courts and will generally be upheld.® 
 
 44. The Illinois decisions recognize the jurisdiction of such 
 courts. As clothed with jurisdiction in all matters of pro- 
 
 2—103 111. 129. V. People, 66 III. 178; Bostwick v. 
 
 3—105 111. 55. Skinner, SO 111. 147; Johnson v. 
 
 4—102 111. 218. Mellhorsen, 105 111. App. 368; De- 
 
 5—103 111. 125. milly v. Grosrenand, 201 111. 273; 
 
 6— Wright V. Wallbaum, 39 111. Clewes v. Fox, 25 Colo. 39; Frencb 
 
 554; Duffin v. Abbott, 48 111. 17; v. Woodruff, 25 Ck)lo. 349. 
 Hobson V. Ewan, 62 111. 146; House
 
 JURISDICTION OF PROBATE COURTS. 17 
 
 bate, the settlement of estates of deceased persons, appoint- 
 ment of guardians and conservators and settlements of their 
 accounts. It is confined to the exercise of legal power, but 
 may also exercise equitable power in the adjudication of all 
 matters pertaining to the settlement of estates. And it is only 
 in extraordinary cases that a court of equity assumes jurisdic- 
 tion in the settlement of an estate and supersedes the probate 
 court, which has ample power to adjust and settle equitable 
 rights and claims of parties as far as it has authority under 
 the statute and decisions of the courts of last resort.'^ 
 
 And it appears to be settled in Colorado, that where it be- 
 comes necessary in the settlement and distribution of the estate 
 of a testator the court of probate has power to construe wills 
 that may involve the settlement and distribution of an estate 
 under administration.^ 
 
 45. Chancery Courts have established almost a universal 
 rule of jurisdiction in Probate Courts. It has been repeatedly 
 held, that a court of chancery will not exercise jurisdiction 
 at the instance of the personal representatives, creditors, lega- 
 tees, or distributees, unless some special circumstances are 
 shown, why the probate court cannot afford adequate remedy 
 in the premises; and this rule is adhered to more particularly 
 where the estate is already in process of settlement in the 
 probate court. But it appears the exception to this established 
 rule is, that gross mismanagement by the executor, both as to 
 real and personal property, and a breach of trust as to the sale 
 of the real estate, and the fraud and collusion of the executor 
 
 7— Wadsworth v. Connell, 104 238; Ames v. Ames, 148 111. 321; 
 
 111. 369; Doggett v. Dill, 108 111. Duval v. Duval, 153 111. 49; Good- 
 
 560; Miller v. Harris, 119 111. 185; man v, Kopperl, 169 III. 136; Et- 
 
 McCall V. Lee, 120 111. 261; Wolf, ling v. First National Bank, 173 
 
 Exr., V. Beaird et al. Exrs., 123 111. 368. 
 
 111. 585; Estate of Corrington. 124 8— People v. County Court, 3 
 
 111. 363; Wilson v. Leland, 128 111. Colo. Ct. of App. 425. 
 304; Shepherd v. Speer, 140 111.
 
 18 THE LAW OF ESTATES. 
 
 or executrix, are grounds for equitable interference by a court 
 of chancery.^ 
 
 46. Testamentary trusts and trustees. Should the Act of 
 July 1, 1905, extending jurisdiction of probate and county 
 courts having probate jurisdiction, be held constitutional, 
 then such courts will have original jurisdiction to super- 
 vise and control all testamentary trusts, created by original 
 wills of deceased persons proved and admitted to probate 
 in such courts; with power to appoint and remove testa- 
 mentary trustees; issue letters of trusteeship and fix and 
 approve of the bonds of such trustees, and settle their 
 accounts. Also power to sell real estate, to which any tes- 
 tator or testatrix had claim or title, or such part thereof 
 as may be necessary for the payment of legacies, or charges 
 made thereon by the testator or testatrix ; general power being 
 conferred by said Act of July 1, 1905, to fully administer such 
 trust estates.^ ^ 
 
 47. The Federal Cotirts take jurisdiction in matters of 
 estates when? The right to sue the administrator of an estate 
 in the federal court where the requisite diversity of citizenship 
 exists is indisputable.^^ The fact that the complainants have 
 likewise proven their claims in the state court constitutes no bar 
 to the proceedings in the federal court. These courts are foreign 
 to each other.^^ The mere pending of a prior suit in a. state 
 court, though it be between the same parties, and upon the 
 identical cause of action, will not prevent the Federal Court 
 from taking jurisdiction.^^ 
 
 9— Etling V. First National 11— Payne v. Hook, 7 Wall. 425; 
 
 Bank, 173 111. 368; Goodman v. Yonley v. Lavender, 21 Wall. 276; 
 
 Kopperl, 169 111. 136; Duval v. Byers v. McAuley. 149 U. S. 608. 
 
 Duval, 153 111. 53; Ames v. Ames, 12 — Louisville T. Co. v. Cincin- 
 
 148 111. 321 ; Harding v. Shephard, nati, 22 C. C. A. 359, and cases 
 
 107 111. 273; McKinnon v. Hall, 10 cited. 
 
 Colo. Ct. of App. 291. 13— Stanton v. Embry, 93 U. S. 
 
 10 — Lynch v. Hutchinson, ante, 548; Gordon v. Gilfoil, 98 U. S. 
 
 38. 168.
 
 JURISDICTION OF PROBATE COURTS. 19 
 
 48. In Yonley v. Lavender, ^'^ it is held: That a non- 
 resident creditor may obtain a judgment in a federal court, 
 against a resident executor or administrator, and come in on 
 the estate according to the law of the state for such payment 
 as that law, marshalling the rights of creditors' awards to 
 debtors of his class. 
 
 49. In Byers v. McAuley,^^ the following rule is laid 
 down: A citizen of another state may proceed in the federal 
 court to establish a debt against the estate, but the debt thus 
 established must take its place and share in the estate as 
 administered by the probate court; it cannot be enforced by 
 direct proceedings against the estate itself. This court has the 
 right and it is its duty to determine the character and extent 
 of the complainant's claim against the estate, and the class 
 to which the complainants belong; the federal court does not 
 and cannot draw to itself the administration of the estate. 
 
 14—21 Wall. 276. 15—149 U. S. 608.
 
 CHAPTER III 
 
 DESCENT AND DISTRIBUTION 
 
 Sec. 
 
 50. Descent and distribution. 
 
 51. The Statute of Descent as first 
 
 passed. 
 
 52. Rules of descent. 
 
 53. Lineal consanguinity, lineal 
 
 heirs. 
 
 54. Will and testament may modi- 
 
 fy and completely change 
 course of descent. 
 
 55. The early statutes of descent. 
 
 56. Application of clauses 1, 3, 6, 
 
 Sec. 1, of Descent Act. 
 
 57. Application of Sec. 2 of that 
 
 act. 
 
 58. Illegitimates, Sec. 2 of Statute 
 
 of Descent. 
 
 59. Child legitimated. 
 
 60. Robinson v. Ruprecht. 
 
 61. Lewis V. King. 
 
 62. Butler v. Butler. 
 
 63. Zachman v. Zachman. 
 
 Sec. 
 
 64. Advancements. 
 
 65. Hotchpotch. 
 
 66. Advancements must be evi- 
 
 denced by writing. 
 
 67. Posthumous child. 
 
 68. Child born after will, effect. 
 
 Marriage effect. 
 
 69. Death of devisee being child, 
 
 etc., before testator. 
 
 70. Frail v. Carstalrs. 
 
 71. Distribution of undivided 
 
 estates. 
 
 72. Sutton V. Read. 
 
 73. Where there is a surviving 
 
 widow or husband but no 
 issue. 
 
 74. Where intestate leaves a child 
 
 or children or their descen- 
 dants. 
 
 75. Miscellaneous. 
 
 Sec. 50. Descent and distribution. When an individual 
 dies, his or her real and personal estate "descends" and is 
 "distributed" as provided by statute law, to and among those 
 persons whom that law designates as the heirs of the deceased. 
 Strictly speaking, real estate only "descends" while the per- 
 sonal estate is distributed. In this work we omit a discussion 
 of the common law, pertaining to the administration of estates 
 by ecclesiastical authorities, to whom, under the early com- 
 mon law, such was almost entirely entrusted. The very able 
 and extensive works of Blackstone and Kent each contain a 
 full and complete history of such courts administering estates. 
 The modem text book writers, treating the subject of estates 
 
 20
 
 DESCENT AND DISTRIBUTION. 21 
 
 and their administration, give but little space and time in dis- 
 cussing the history and administration of estates by ecclesias- 
 tical courts. These courts at one time all powerful in the 
 administration of estates, have given way in this country to a 
 better and more equitable modern system, to be found in the 
 legislative enactments of all the states of the United States. 
 We must therefore look to the legislative enactments of the 
 several states comprising the Union, to ascertain the law relat- 
 ing to the administration, settlement and distribution of es- 
 tates. It is under the statute laws of the different states, the 
 heirs of deceased persons are entitled to the personal estate of 
 deceased persons. It is now universally held that the distribu- 
 tion of estates relating to personal property is governed by 
 the lex domicilii — real estate descending and being governed 
 by the lex rei sitae. The doctrine laid down by Judge Story in 
 his workj "Conflict of Laws," section 481, has long been 
 adopted and applied by the courts of Illinois, viz. : ' ' That 
 the succession to personal property is governed by the laws 
 of the actual domicile of the intestate at the time of his death, 
 no matter what was the country of his birth or his former 
 domicile or the actual situs of the property at the time of his 
 death. "1 Real estate descending or devised is governed by the 
 law of the place or state where the real estate is situated. So 
 upon the death of the householder, the homestead estate devolves 
 upon the surviving husband or wife for life and upon the chil- 
 dren of the householder during the minority of the youngest 
 child, and the heirs-at-law take a reversionary interest only, ex- 
 pectant upon the termination of the estate of homestead.^ 
 
 1— Russell V. Madden, 95 111. 485. Vol. 5, pp. 113 to 116, and cases 
 
 2— Robertson v. Tipple, 209 111. cited; Kurd's R. S. of 111. 1905, 
 
 38. Sees. 1, 2, 3, 5, 6, 14, Chapt. 30, same sections and chapter, pp. 463, 
 
 "Conveyance" Act, Starr & Curtis 464, 466; McConnell v. Smith, 23 
 
 Annotated Stat, of 111., with Jones 111. 617; Murfitt v. Jessop, 94 111. 
 
 & Addington's Supplements there- 158; Starr & Curtis Stat. Vol. 2, 
 
 to. Vol. 1, pp. 910 to 918, inclusive, p. 1874; Sec. 4, Chapt. 52, "Exemp- 
 
 with cases cited, making applica- tions;" Robertson v. Tippie, supra, 
 
 tion of the sections noted. Vol. 4, 40. 
 pp. 252 to 255, and cases cited.
 
 22 THE LAW OF ESTATES. 
 
 51. The statute of descent was first passed by the legisla- 
 ture soon after Illinois became a state, the act being approved 
 March 29, 1819. (Session Laws of 1819.) The first act re- 
 mained in force until January 23, 1829; in the meantime, the 
 statute was construed by the Supreme Court, which adopted 
 the rule of the civil law in ascertaining who are "next of 
 kin." After tliis opinion, the legislature in 1829 expressly 
 adopted the civil law rule of computation, and that rule has 
 ever since been the rule of this state for ascertaining the 
 "next of kin. "3 
 
 52. Descent. Section 1 of chapter 39, entitled "Descent'* 
 was approved April 9, 1872, and put in force July 1, 1872; 
 was amended May 25, 1877, and in force July 1, 1877; that 
 section as it stands today is as follows : 
 
 Rules of descent. That estates, both real and personal, of 
 residents and non-resident proprietors in this state dying in- 
 testate, or whose estate or any part thereof shall be deemed 
 and taken as intestate estate, after all just debts and claims 
 against such estates are fully paid, shall descend to and be 
 distributed in manner following, to-wit: 
 
 First — To his or her children and their descendants, in equal 
 parts; the descendants of the deceased child or grandchild 
 taking the share of their deceased parents in equal parts 
 among them. 
 
 Second — When there is no child of the intestate, nor de- 
 scendant of such child, and no widow or surviving husband, 
 then to the parents, brothers and sisters of the deceased and 
 their descendants, in equal parts among them, allowing to 
 each of the parents, if living, a child's part, or to the survivor 
 of them if one be dead, a double portion; and if there is no 
 
 3— Laws of 1829, p. 206; 2, Kent's thereto. Vol. 2, pp. 1425, 1426, and 
 Com., 339; Hay's Adm'r v. Thorn- cases cited under "General Notes;" 
 as, 1 111. (Breese) 180; Starr & Vol. 4, p. 437, and cases cited un- 
 Curtis Annotated Stat. of. 111., with der "General Notes;" Vol. 5, p. 
 Jones & Addinston's Supplements 176, and cases under "General 
 
 Notes."
 
 DESCENT AND DISTRIBUTION. 23 
 
 parent living, then to the brothers and sisters of the intestate, 
 and their descendants. 
 
 Third — When there is a widow or surviving husband, and 
 no child or children, or descendants of a child or children of 
 the intestate, then (after the payment of all just debts) one- 
 half of the real estate and the whole of the personal estate 
 shall descend to such widow or surviving husband ^s an abso- 
 lute estate forever, and the other half of the real estate shall 
 descend as in other cases, where there is no child or children 
 or descendants of a child or children. 
 
 Fourth — When there is a widow or a surviving husband, 
 and also a child or children or descendants of such child or 
 children of the intestate, the widow or surviving husband shall 
 receive, as his or her absolute personal estate, one-third of all 
 the personal estate of the intestate. 
 
 Fifth — If there is no child of the intestate or descendant of 
 such child, and no parent, brother or sister or descendant of 
 such parent, brother or sister, and no widow or surviving hus- 
 band, then such estate shall descend in equal parts to the next 
 of kin to the intestate in equal degrees (computing by the 
 rules of the civil law), and there shall be no representation 
 among collaterals, except with the descendants of brothers and 
 sisters of the intestate; and in no case shall there be any 
 distinction between the kindred of the whole and the half 
 blood. 
 
 Sixth — If any intestate leaves a widow or surviving husband 
 and no kindred, his or her estate shall descend to such widow 
 or surviving husband. 
 
 Seventh — If the intestate leaves no kindred, and no widow 
 or husband, his or her estate shall escheat to and vest in the 
 county in which said real or personal estate, or the greater por- 
 tion thereof is situated.'* 
 
 4 — Starr & Curtis' Annotated in question is applied and its dif- 
 
 Statutes of Illinois, with Jones & ferent clauses; Vol. 4, p. 437, and 
 
 Addington's Supplements thereto, cases cited; Kurd's R. S. of 111., 
 
 Vol. 2, pp. 1426 to 1429 inclusive, 1905, same section and chapter, pp. 
 
 and cases cited where the section 763, 764, and cases cited.
 
 24 THE LAW OF ESTATES. 
 
 53. Lineal consanguinity — lineal heirs. Lineal consan- 
 guinity is that relation which exists among persons where one 
 is descended from the other, as between the son and a father 
 or the grandfather, and so upward in the ascending line, and 
 between the father and the son or the grandson, and so down- 
 ward in a direct descending line.^ 
 
 54. Will and testament may modify or completely change 
 course of descent. Prior to his or her death, the owner of any 
 real or personal estate may, by last will and testament, prop- 
 erly executed, modify or completely change the course of 
 descent, so that the whole or a part of his or her estate may 
 become the property of total strangers. The power so to do 
 may be enlarged or curtailed by the legislature. And, while 
 the owner of real and personal property by his or her will have 
 that right and power, they must not contravene any well recog- 
 nized and admitted principle of public policy, or rule of clear 
 right.^ 
 
 55. The early statute of descent provided, when there was 
 a surviving widow, and no child or children or descendants of 
 a child or children, the widow took one-half of the real estate 
 and the whole of the personal estate, as her own exclusive 
 estate forever. But while the widow was provided for in case 
 of the death of her husband intestate under the early statute, 
 there was no corresponding provision for the husband in ease 
 of the death of his wife intestate, leaving no child or children 
 or their descendants. The husband was left to his right of 
 curtsy in his deceased wife's real estate as it stood at common 
 law. This condition of the law remained as to the rights of 
 
 5 — Bouvier's Law Die, title of 111., with Jones & Addington's 
 
 "Consanguinity;" Willis Coal & Supplements thereto. Vol. 3, pp. 
 
 Mining Co. v. Grizzell, 198 111. 317. 4022 to 4026 inclusive, with cases 
 
 6 — Emmert v. Hayes, 89 111. 11; cited under "Rights and power of 
 
 Freeman v. Easly, 117 111. 117; disposition of property by Will," 
 
 Clausennious v. Clausennious, 179 Vol. 4, pp. 1283, 1284, and cases 
 
 111. 545. Sec. 1, Chapt. 148 "Wills" cited; Hurd's R. S. of 111. 1905, 
 
 Starr & Curtis' Annotated Statutes same section and chapter, p. 2050.
 
 DESCENT AND DISTRIBUTION. 25 
 
 the surviving husband in such case, as to the real estate of his 
 deceased wife until 1843, v^hen the legislature on March 6 of 
 that year provided, that when any feme covert shall die intes- 
 tate, leaving no child or children, or descendants of a child or 
 children, then one-half of the real estate of the decedent shall 
 descend and go to the husband as his exclusive estate forever. 
 Revised Statutes, 1845, 546, section 47, embodying the laws 
 of 1829 and 1843. But the word "dower" used in the act of 
 1843, was subsequently explained, as including one-third of the 
 personal property in intestate estates.'^ 
 
 Under the law of 1872 and prior acts, when there are no 
 children or descendants thereof, the surviving husband or wife, 
 takes one-half of the real estate and the whole of the personal 
 estate of the deceased husband or wife dying intestate, subject 
 to debts. 
 
 56. Application of Clauses 1, 3, 6, section 1, of the act of 
 "Descent" will be found in numerous cases.^ In Christy v. 
 Marmo7i,^ it is held, that an ante-nuptial contract which bars 
 widow's dower, does not defeat her inheritance as heir, unless 
 such contract expressly so provides.!^ 
 
 57. Application of section 2 of the act, illegitimates when 
 heirs. A bastard takes nothing by descent, except as provided 
 by statute.ii In the latter case the court says: The statute as we 
 understand it confers upon illegitimates and their lawful issue, 
 as respects the mother and any maternal ancestor, and any per- 
 son from whom the mother might have inherited, if living, the 
 right to inherit from such. The lawful issue of an illegitimate 
 person shall represent such, and take, by descent, any estate 
 which the parent would have taken if living. There is nothing 
 in the statute that will allow an illegitimate to inherit from the 
 father of such person; but the object of the framers of the 
 
 7— Statute 1845, p. 545, Sec. 46. 9—163 111. 225. 
 
 8— Whitson v. Grasvner, 170 111. 10— See Kroell v. Kroell, 219 111. 
 
 276; Scheible v. Rink, 195 111. 638; 105. 
 
 Laurence v. Balch, 195 111. 628; 11— Stoltz v. Doering, 112 111. 
 
 Lockwood V. Moffett, 177 111. 58. 234; Bales v. Elder, 118 111. 436.
 
 26 THE LAW OF ESTATES. 
 
 statute seems to have been, to remove the common law disability 
 of inheritance through the maternal line, and, in that regard, 
 place such persons upon the same footing as legitimate persons. 
 Two classes of persons are provided for under the statute of 
 descent in sections 1 and 2 ; where there are no persons to claim 
 •under section 2, as would ordinarily be the case where a man 
 dies intestate, leaving no children, descendants of children, or 
 widow, then the entire estate would pass and be distributed 
 under section 1; but in case there were persons who were 
 heirs under section 2, then the estate would descend and 
 have to be distributed under both sections.i^ In Eundall v. 
 Ham,^^ it is said: Clause 2 of section 2 of the Stat- 
 ute of Descent providing that the estate, real and 
 personal, of an illegitimate person shall descend to and 
 vest in the widow or surviving husband and children, 
 confers no right whatever upon collaterals. Children 
 of the mother of an illegitimate can claim under clause 4 
 of section 2 of the Statute of Descent only where there is no 
 widow or surviving husband, and if there is a widow it is 
 immaterial, so far as the right of such children to inherit is 
 concerned, that she has estopped herself from asserting her 
 right, as sole heir, under the statute. 
 
 58. Illegitimates. Section 2 of the Statute of Descent is as 
 follows : An illegitimate child shall be heir of its mother and 
 any maternal ancestor, and of any person from whom its 
 mother might have inherited, if living; and the lawful issue 
 of an illegitimate person shall represent such person, and take, 
 by descent, any estate which the parent would have taken, if 
 living. 
 
 Second — The estate, real and personal, of an illegitimate per- 
 son, shall descend to and vest in the widow or surviving hus- 
 band and children, as the estate of other persons in like cases. 
 
 Third — In case of the death of an illegitimate intestate leav- 
 
 12— Jenkins v. Deane, 121 111. Trust Co. v. R. Co., 91 111. App. 
 217; Elder v. Bales. 127 111. 425; 336; Miller v. Williams, 66 111. 9L 
 
 13—183 111. 486.
 
 DESCENT AND DISTRIBUTION. 27 
 
 ing no child or descendant of a child, the whole estate, per- 
 sonal and real, shall descend to and absolutely vest in the 
 widow or surviving husband. 
 
 Fourth — When there is no widow or surviving husband, and 
 no child or descendants of a child, the estate of such 
 person shall descend to and vest in the mother and her chil- 
 dren, and their descendants — one-half to the mother, and the 
 other half to be equally divided between her children and their 
 descendants, the descendants of a child taking the share of 
 their deceased parent or ancestor. 
 
 Fifth — In case there is no heir as above provided, the estate 
 of such person shall descend to and vest in the next of kin to 
 the mother of such intestate, according to the rule of the civil 
 law. 
 
 Sixth — When there are no heirs or kindred, the estate of 
 such person shall escheat to the state, and not otherwise. Hurd 
 Statutes. 
 
 59. Child legitimated — intermarriage of parents. Section 3 
 of the Statute of Descent is as follows : An illegitimate child, 
 whose parents have intermarried, and whose father has ac- 
 knowledged him or her as his child, shall be considered legiti- 
 mate.i* 
 
 60. In Robinson v. Buprecht,^^ it is said: Section 
 3 enables parents to intermarry where they may legally do 
 so, and acknowledge their offspring born prior to the legal cele- 
 bration of their union; we do not see the force of the reason- 
 ing, that would restrict the meaning of the section, so as to 
 exclude from its operation- parents, one or the other of whom 
 has violated his or her marriage obligations in the procreation 
 of the child. The child of such parents is not less innocent 
 or unoffending than the child of parents who were married at 
 the time of the copulation; and the ground upon which the 
 insistence is based, ''that the child should be punished for the 
 sins of the parents," shocks every sense of justice and right. 
 
 14— R. S. 1845, p. 547, Sec. 52. 15—191 111. 424.
 
 28 THE LAW OP ESTATES. 
 
 The degree of moral or criminal delinquency of the parents 
 does not enter into consideration in construing the statute. 
 The court in that case holding, that a common law marriage 
 is established in this state, where at the time of the celebration 
 of the supposed marriage, the man knew that he had a legal 
 wife living, and the woman had a husband living whom she in 
 good faith supposed to be dead; the parties continuing to 
 cohabit as husband and wife, and publicly conducting and 
 announcing themselves as such, acknowledging their offspring 
 as their children, after receiving knowledge that the man's 
 legal wife was dead and after the woman's legal husband had 
 died; in which case the children are rendered legitimate, for 
 it was not the legislative intent to exclude from the benefits 
 of sections 2 and 3 any illegitimate person legitimized. 
 
 61. In Lewis v. King,^^ the deceased, who died seized of 
 certain lands in controversy, was a negro, who, for a num- 
 ber of years immediately prior to the late civil war, was a 
 slave. His marriage was consummated under the statute of 
 Kentucky relating to the marriage of negroes and mulattoes, 
 by persons living in that state as husband and wife while 
 in slavery, which legitimized previously born issue. He lived 
 for many years before and after the war, at a point known as 
 Hillman's Iron Works located on the Cumberland river in 
 Trigg county, Kentucky. It was held that under the Kentucky 
 statutes his marriage was made lawful ; that the children born 
 to him as the issue of such marriage were the legitimate chil- 
 dren of the marriage of the deceased to one Betsy Baker. As 
 a marriage between persons in a state of slavery is rendered 
 valid by their ratification of the same after emancipation, and 
 children born thereafter are legitimate, the title to the land 
 in question, upon the death of Edward Baker, passed to his 
 surviving daughter, and to the children of his deceased daugh- 
 ter. 
 
 62. In Butler v. Butler,^'' the court holds: that a marriage 
 16—180 111. 263. 17—161 111. 451.
 
 DESCENT AND DISTRIBUTION. 29 
 
 between persons in a state of slavery is not binding upon the 
 parties to it, if repudiated upon emancipation; and that ratifi- 
 cation of a marriage between slaves by cohabitation of the par- 
 ties after emancipation renders such marriage valid, and this 
 doctrine is affirmed again in Middleton v. Middleton}^ 
 
 63. In Zachman v. Zachman,^^ the court held: A 
 minor child reared in the family of a lawfully married hus- 
 band and wife, who are living together as husband and wife, 
 and is treated and recognized as their lawful offspring, is 
 prima facie to be regarded as the child of the husband, and 
 the burden of disproving such parentage is cast upon those de- 
 nying it; and this notwithstanding, the parents had been mar- 
 ried but fifteen days at the time of the birth of such child; 
 and notwithstanding further, that at the time of its concep- 
 tion its mother was the lawful wife of another man, from 
 whom she was divorced only twenty days before such mar- 
 riage. 
 
 64. Advancements. Section 4 of the Statute of "Descent" 
 is as follows: ''Any real or personal estate given by an in- 
 testate in his life-time as an advancement to any child or 
 lineal descendant, shall be considered as part of the intestate's 
 estate, so far as it regards the divisions and distributions 
 thereof among his issue, and shall be taken by such child or 
 other descendant towards his share of the intestate's estate; 
 but he shall not be required to refund any part thereof, al- 
 though it exceeds his share." 
 
 In the following case it is held that advancements are not 
 required to be returned in kind; but the value of such after 
 being estimated is deducted from the child's share who re- 
 ceived such benefit ; and such heir may elect to retain the prop- 
 erty advanced and relinquish claim to share in distribution; 
 but infants have not capacity to elect in such case, therefore 
 equity will direct election in their interest.^*^ It is 
 
 18—221 111. 623. 20— Grattan v. Grattan, 18 111. 
 
 19—201 111. 38S. 167.
 
 30 THE LAW OP ESTATES. 
 
 held where a conveyance of land by a father to a son, was 
 made in consideration of a son's relinquishing, is no advance- 
 ment; the case turning on the fact that the son was a minor 
 and that any receipt given indicating the deed was made as 
 an advancement was not binding as the minor and those act- 
 ing for him could not make a valid and binding agree- 
 ment. 21 In Galhraith v. McLain,"^^ it is held, the purchase 
 of land by a parent in name of child, or by husband in name 
 of wife is presumed 'prima facie to be an advancement, not a 
 trust; but the intention of the one making the advancement 
 may be established by evidence in such case ; and to the same 
 effect.23 In the following cases it is held, an advancement 
 is a gift from parent to child or heir ; and if the child or heir, 
 to whom the gift or advancement was made, dies in the life- 
 time of the parent making the gift or advancement, the chil- 
 dren of the son or heir who had received the gift, were barred 
 from any share in their grandfather's estate, of course to the 
 extent of the advancement, if it appears that the advancement 
 made was not in full of the heir's share of the deceased parent's 
 estate.24 
 
 65. Hotchpotch. Under the statute of Descent of this 
 State passed in 1845, provision was made for bringing real or 
 personal estate into hotchpotch; a common law doctrine or 
 principle applied in the State up to the time of passing the. 
 statute of 1872, we now have in force. The term is defined 
 by Webster as "a mingled mass"; a ''mixture of ingredients." 
 In Law Blackstone defines the term, a mixing of lands. Thus 
 land given in frank marriage to one daughter, shall, after the 
 death of the ancestor, be blended with the lands descending 
 to her and to her sisters from the same ancestor, and then 
 divided in equal portions to all the daughters. In Bishop 
 
 21 — Bishop V. Davenport, 58 111. 24 — Simpson v. Simpson, 114 111. 
 
 105. 603; Wallace v. Reddick, 119 111. 
 
 22—81 111. 376. 151; Comer v. Comer, 119 111. 170; 
 
 23— Maxwell v. Maxwell, 109 111. Scott v. Scott, 191 111. 630. 
 376; Cline v. Jones, 111 111. 563.
 
 DESCENT AND DISTRIBUTION. 31 
 
 V. Davenport,^^ the doctrine was applied, the court hold- 
 ing: the statute of 1845, made provision for bringing real or 
 personal estates into hotchpotch, and gave the party advanced, 
 if of age, the right to elect whether he would do so or not; 
 if he refused to bring his advancement into hotchpotch, he 
 was precluded from any share in the intestate's estate, on the 
 presumption that he is sufficiently provided for or he would 
 not refuse so to do. 
 
 66. Advancements must be evidenced by writing. This is 
 required, in all cases under section 7 of the act of "Descent." 
 In the following cases the statute is applied. It being held, 
 however clearly it may appear it was so intended, if not ex- 
 pressed in writing will be no advancement.^^ And as in many 
 cases where the testator in his will stated, that on former occa- 
 sions, he gave various pieces of property to his children, it was 
 held, not an expression of a gift by way of advancement. ^^ 
 
 67. Posthumous child. Section 9 of the statute of "De- 
 scent" is as follows: "A posthumous child of an intestate 
 shall receive its just proportion of its ancestor's estate, in all 
 respects as if it had been born in the life-time of the father." 
 Such child takes directly from parent as though in being at 
 parent's death. The section also applies to land in the State 
 of Illinois, although a will is probated out of the State. ^^ 
 The courts of this State have placed the rights of such 
 children upon precisely the same footing with the rights of 
 children born in the life-time of the intestate. They cannot be 
 divested of title unless made a party to proceedings at law or 
 
 25—58 111. 105. 1431, 1432; Vol. 4, p. 438; Vol. 5, 
 
 26 — Cline v. Jones, 111 111. p. 176, and cases cited. 
 
 571; Simpson v. Simpson, 114 111. 27 — Wilkinson v. Thomas, 128 
 
 605; Long v. Long, 118 111. 638; 111. 363; Bartmess v. Fuller, 170 
 
 Wilkinson v. Thomas, 128 111. 368; 111. 197; Gray v. Newton, 201 111. 
 
 Kershaw v. Kershaw, 102 111. 307; 181; May v. May, 36 111. App. 77; 
 
 Marshall v. Coleman, 187 111. 556; Haines v. Christie, 28 Colo. 502. 
 
 Starr & Curtis Annotated Statutes 28— McConnell v. Smith, 23 111. 
 
 of 111., with Jones & Addington's 611 ; Kingsbury v. Burnside, 58 111. 
 
 Supplements thereto. Vol. 2, pp. 310.
 
 32 THE LAW OF ESTATES. 
 
 equity.23 The form of action whether in chancery, at law or 
 under the statute, does not make or change the rights of such 
 posthumous child.30 
 
 68. Child born after will — Effect of marriage. Section 10 
 of the Statute of "Descent" is as follows: "If, after making 
 a last will and testament, a child shall be born to any testator, 
 and no provision be made in such will for such child, the will 
 shall not on that account be revoked ; but unless it shall ap- 
 pear by such will that it was the intention of the testator to dis- 
 inherit such child, the devises and legacies by such will granted 
 and given, shall be abated in equal proportions to raise a por- 
 tion for such child equal to that which such child would have 
 been entitled to receive out of the estate of such testator if 
 he had died intestate, and a marriage shall be deemed a revo- 
 cation of a prior will." Devises and legacies are to be reduced 
 under this section pro rata to raise same portion as if parent 
 had died intestate.^i In Osbwn v. Jefferson National Bank^^ it 
 was held : A mother may provide for such posthumous child or 
 children in case they should survive her; and should she make 
 a will with proper provision for such child, it does not abate 
 under the statute. In Flannigan v. Howard,^^ it is held: 
 That the act of 1867, providing for the adoption of children 
 was in force, at the time the act of July 1, 1872, of the statute 
 in regard to the descent of property took effect, that after- 
 wards the act in relation to the adoption of children was re- 
 vised by the act in force July 1, 1874, constituting Chapter 4, 
 of the Revised Statutes ; section 5 of that act being as follows : 
 "A child so adopted shall be deemed, for the purpose of in- 
 heritance by such child, and his descendants and husband or 
 
 29— Smith v. Connell, 17 111. of Illinois, with Jones & Adding- 
 
 135; Botsford v. O'Connor, 57 111. ton's Supplements thereto. Vol. 2, 
 
 72; Ward v. Ward, 120 111. Ill; p. 1432, and cases cited. 
 
 Osborn v. Jefferson Nat'l Bk.. 118 31— Ward v. Ward, 120 111. 112; 
 
 111. 130; Kingsbury v. Buettner, Bank v. White, 159 111. 140; Hun- 
 
 134 U. S. 650. dall v. Ham, 172 111. 82. 
 
 30— Ward v. Ward, 120 111. Ill; 32—116 111. 130. 
 
 Starr & Curtis Annotated Statutes 33—200 111. 400.
 
 DESCENT AND DISTRIBUTION. 33 
 
 wife, and other legal consequences and incidents of the nat- 
 ural relation of parents and children, the child of the parents 
 by adoption, the same as if he had been born to them in lawful 
 wedlock, except that he shall not be capable of taking prop- 
 erty expressly limited to the body or bodies of the parents by 
 adoption, nor property from the lineal or collateral kindred 
 of such parents by right of representation." By accepted 
 definitions a child is the immediate progeny of human pa- 
 rents, and in its natural meaning the word a,pplies to offspring 
 born to such parents. By the statute, however, the relation 
 of parent and child is recognized and declared as legally ex- 
 isting between persons not so related by nature. The Statute 
 of Descent does not, in any case, mention this legal relation of 
 an adopted child and the adopting parent, but the right of 
 the adopted child is fixed by the act providing for adoption, 
 which creates, in law, the relation of parent and child. The 
 purpose of section 10 of the act in regard to descent is to give 
 to a child who shall come into existence after the making of 
 a will, and who would inherit but for the will, the same rights 
 it would have if the estate were intestate, where no provision 
 is made in the will for such child and no contrary intention is 
 expressed in the will. An adopted child becomes the lawful 
 child of the adopting parents for all purposes of inheritance, 
 and is in the eyes of the law as much the child of such parent 
 as though it had been his own child.^* 
 
 69. Death of devisee being child, etc., before testator. Sec- 
 tion 11 of the Statute of "Descent" is as follows: ''When- 
 ever a devisee or legatee in any last will and testament, being 
 a child or grandchild of the testator, shall die before such 
 testator, and no provision shall be made for such contingency, 
 the issue, if any there be, of such devisee or legatee, shall take 
 the estate devised or bequeathed as the devisee or legatee 
 
 34— Keegan v. Geraghty, 101 111. of 111., with Jones & Adding- 
 26; Sayles v. Christie, 187 111. 420; ton's Supplements thereto. Vol. 2, 
 Starr & Curtis Annotated Statutes p. 1433; Vol. 4, p. 438; Vol. 5, p. 
 
 177, and cases cited. 
 3
 
 34 THE LAW OF ESTATES. 
 
 would have done had he survived the testator, and if there 
 be no such issue at the time of the death of such testator, the 
 estate disposed of by such devise or legacy shall be considered 
 and treated in all respects as intestate estate. "^^ 
 
 70. In Frail v. Carstairs,^^ applying and construing 
 this section of the statute, it is held: Whenever a dev- 
 isee, being a child or grandchild of the testator, dies without 
 issue, before the testator, and the will makes no provision for 
 Buch contingency, the estate so devised is to be treated as in- 
 testate property, and would under statute go to heirs of such 
 child or grandchild. See also cases cited in that opinion. 
 
 71. Distribution of undivided estate. Section 12 of the 
 Statute of "Descent" is as follows: **A11 such estate, both 
 real and personal, as is not devised or bequeathed in the last 
 will and testament of any person, shall be distributed in the 
 same manner as the estate of an intestate ; but in all such cases 
 the executor or executors, administrator or administrators, 
 with the will annexed, shall have the preference in administer- 
 ing on the same. "37 
 
 72. In Sutton v. Read,^^ the record shows, the will 
 in question nowhere attempted to dispose of the fee in 
 the realty; it was not devised to any one. The court holding, 
 in such case the provisions of section 12 of the Statutes of De- 
 scent must control and which provides that all such estate, 
 both real and personal, as is not devised or bequeathed in the 
 last will and testament of any person, shall be distributed in 
 the same manner as the estate of an intestate. In Benson v. 
 Moore,^^ the deceased left a mother and a surviving husband, 
 but no issue; the mother and husband each inherited one half 
 of the real estate. 
 
 73. Where there is a surviving widow or husbajid but no 
 issue. Prior to the act of the Legislature of this State passed 
 
 35— R. S. 1845, p. 539, Sec. 14. 38—176 111. 69. 
 
 36—187 111. 310. 39—104 111. 408. See Marvin v. 
 
 37— R. S. 1845, p. 545, Sec. 42. Collins, 98 111. 517.
 
 DESCENT AND DISTRIBUTION. 35 
 
 in 1829, what was termed or called "the widow's third" of the 
 personal property, in all cases went to the surviving widow; 
 by that act where there was no child or children or descend- 
 ants of a child or children, the widow received one half of the 
 real estate and the whole of the personal estate absolutely; 
 subject of course to the payment of all just debts and cost of 
 administration. The surviving husband, where there was no 
 child or children or their descendants, prior to the act of the 
 Legislature passed in 1843, as to the real estate of his intestate 
 wife had nothing but his estate of curtsy a right recognized 
 and growing out of the common law. Under the act of 1843 
 (Statutes of 1845, p. 546, Sec. 47), the surviving husband, in 
 case there was no child or children or their descendants, was 
 given one half of the real estate of his wife in fee so dying in- 
 testate, without issue. Later in 1872, the Statute of Descent 
 was revised and passed (Chapter entitled "Descent," Sec. 1, 
 Clause 3), under which the husband was given the whole of 
 the personal estate absolutely, burdened with just debts and 
 cost of administration, in case the wife died intestate and left 
 no child or children or their descendants. This act was fol- 
 lowed by an act relating to married women's rights revised 
 and passed by the Legislature in 1874. (Statutes 1874, Chapter 
 68, entitled "Husband and Wife.")4o And, as the result of this 
 act and the act relating to descent, the husband in case of the 
 wife 's death intestate as aforesaid, leaving no issue, was placed 
 in precisely the same relation under the law as the surviving 
 widow formerly held ; at the present time, therefore, the inter- 
 est of the widow or surviving husband is that of an heir, under 
 the statutes of this State, in the estate of the deceased husband 
 or wife dying intestate, in both the real and personal property 
 in the absence of issue or their descendants; the other half of 
 the real estate descending as provided by the Statutes of De- 
 
 40— Starr & Curtis Annotated 2, pp. 2117 to 2136 inclusive; Vol, 
 Statutes of 111., with Jones & Ad- 4, pp. 673 to 675 inclusive; Vol. 5, 
 dington's Supplements thereto. Vol. pp. 286, 287.
 
 36 THE LAW OF ESTATES. 
 
 scent to the next of kin of either the paternal or maternal line 
 of consanguinity. 
 
 74. Where intestate leaves a child or children or their de- 
 scendants. Under the early statutes of this state, when the 
 husband died intestate, and left a surviving- widow and also a 
 child or children or descendants of such child or children, the 
 widow received as her absolute estate, one third of the per- 
 sonal estate after the payment of just debts and cost of admin- 
 istration. If the wife died intestate, and left a surviving hus- 
 band and also a child or children or their descendants, the 
 child or children or their descendants succeeded to the per- 
 sonal estate, after payment of just debts and cost of admin- 
 istration. But as the result of various acts of the Legislature 
 relating to the rights of married women and their dominion, 
 control and ownership of their separate property resulting in 
 the revision of all such laws, the act of 1872, relating to "De- 
 scent" and the act of 1874, relating to "husband and wife," 
 and their separate properties, noted and referred to in the 
 preceding section, one third of the intestate wife's personal 
 estate was by statute given to the husband; so, that since the 
 acts in question and now, both husband and wife in this re- 
 spect stand equal before the law. The real estate under the 
 early statutes descended to such child or children or their de- 
 scendants, burdened with or subject to the surviving widow's, 
 or the surviving husband's estate of curtsy under the common 
 law. On March 4, 1874, a change was made in the status of the 
 surviving husband, on that date the Dower Act was revised 
 and passed by the Legislature ; and, under that act going into 
 force July 1, 1874, the estate of curtsy theretofore recognized 
 in the surviving husband was abolished; both the surviving 
 husband and wife being endowed by that statute with a one 
 third part of "all the lands whereof the deceased husband or 
 wife was seized of an estate of inheritance, at any time during 
 the marriage, unless the same shall have been relinquished in 
 legal form," etc.*^ The third of the personal estate is a portion 
 
 41 — Chapt. 41, Sec. 1. "Dower."
 
 DESCENT AND DISTRIBUTION. 37 
 
 of the husband's or wife's dower, subject to be exhausted by 
 claims or debts allowed against the respective estates and the 
 cost of the administration thereof. Under the statutes of 1872 
 and 1874, both the husband and wife are endowered ; and, where 
 there is no child or children or descendants thereof, the surviv- 
 ing husband or wife dying intestate take as heirs^'^ 
 
 75. Miscellaneous. Under Section 1, of the Statutes of De- 
 scent, it is generally held, "children" mean legitimate chil- 
 dren. Blacklaws v. MilneJ^ Provision for widows is 
 strictly confined to eases of intestacy. Sturges v. Eiving.^*^ 
 Proof that certain persons are the only children who 
 survived their father does not establish the fact that they 
 are his only heirs. It may be that the ancestor had other chil- 
 dren who died before he did, leaving issue who survived their 
 grandfather. It should be shown whether he left such grand- 
 children, and leave the law to decide who are the heirs. Suc- 
 cession to personal property is governed by law of intestate's 
 domicile at the time of his death, no matter what was the coun- 
 try of his birth or his former domicile or situs of property at 
 the time of his death. Russell v. Madden^^ Color of title 
 owned by intestate descends to his heirs at law. Holhrook v. 
 Forsyth^^ When devise is made to class of persons named 
 "heirs at law" property will be divided among heirs as in case 
 of intestacy. Kelly v. Vigas^'' Land in Illinois descends 
 according to law of Illinois. Stoltz v. Doering*^ Where legacy 
 lapses there being no residuary bequest, it will go to the next of 
 kin as property undisposed of by will. Mills v. NewberryJ^ 
 Where two persons hold as joint tenants with the right of sur- 
 
 42 — Gauch v. St, Louis M. L. 43 — 82 111. 505. 
 
 Ins. Co., 88 111. 251; Starr & Curtis 44—18 111. 176. 
 
 Annotated Statutes of Illinois, 45 — 95 111. 485; Wilkins v. Ellet, 
 
 with Jones & Addington's Supple- 108 U. S. 256. 
 
 ments thereto. Vol. 2, pp. 1456 to 46—112 111. 306. 
 
 1462 inclusive; Vol. 4, p. 446; Vol. 47—112 111. 242. 
 
 5, p. 180, and cases cited; Kurd's 48—112 111. 234. 
 
 R. S. of 111., 1905, same section 49—112 111. 123. 
 and chapter, p. 768.
 
 38 THE LAW OF ESTATES. 
 
 vivorship, upon the death of one, the whole interest passes to 
 the survivor. But the right does not extend to growing crops, 
 nor to crops already harvested. Pritchard v. Walker.^^ Under 
 provision in life insurance, making insurance payable "to my 
 heirs at law," the widow will take as heir.^^ The common law 
 rule of inheritance no longer exists in Illinois, the statutes con- 
 trol.^- But the Legislature may change at will laws of de- 
 scent.^2 Where two or more persons lose their lives in a com- 
 mon disaster, there is no presumption under the common law 
 of a survivorship ; such must be proved by one having the bur- 
 den of proof of survivorship.^'* The right to inherit does not 
 exist in favor of one who has neither been born of the body of 
 the deceased, nor legally adopted by him.^^ Lineal consanguin- 
 ity, is that relation which exists among persons, where one is 
 descended from the other, etc.^* 
 
 As a general rule, whenever an estate is not wholly testate 
 and cannot be entirely administered, settled and distributed 
 under the terms of a will, the statute of descent at once ap- 
 plies. This statute in whole or in part with the aid of the 
 courts, distributes the personal property and vests the real es- 
 tate of deceased person as the statute law of the different 
 states of the Union may direct. The statute of descent was 
 passed to meet every condition that might arise whenever any 
 contest by interested parties results in legally setting aside the 
 will and testament of a deceased person. This statute also ap- 
 plies when the courts under well settled rules for the interpre- 
 tation and construction of wills, find a deceased person in 
 whole or in part has undertaken by testamentary bequest to 
 dispose of his or her property in a manner forbidden by law; 
 or for some manifest legal cause a deceased person has entirely 
 
 50—22 111. App. 286. 54— Middeke v. Balder, 198 111. 
 
 51 — Alexander v. Masonic Aid 594. 
 
 Assn., 126 111. 558; Lawwill v. Law- 55— Crumley v. Worden, 201 111. 
 
 will, 29 111. App. 643. 117. 
 
 52 — Kochersperger v. Drake, 167 56 — Willis Coal Mining Co. v. 
 
 111. 125. Grizzell, 198 111. 317. 
 
 53— Sayles v. Christie, 187 111. 
 432.
 
 DESCENT AND DISTRIBUTION. 39 
 
 failed to make a bequest, grant or devise, intelligent enough 
 to pass property under a will. The statute may be applied 
 where an estate is wholly testate or in part so. Thus, estates 
 of all persons under disability, the insane, the habitual drunk- 
 ard, the illegitimate child, the adopted child where the adoption 
 is legally questioned, the minor, etc. The law is well settled 
 in this country, that any state of the Union, has the undoubted 
 right to regulate the disposition of the property of its citizens 
 by descent, devise or alienation. The question, therefore, 
 arises under the "Torrena Land Act," as to the descent of 
 lands on the death of a registered owner, which may involve 
 the validity of certain sections of that act which may at any 
 time come before the courts for construction and considera- 
 tion (post 380). Also the statute of uses (post 303 to 306). 
 The statute relating to distribution in kind by order of court 
 (post 532). Distribution of the overplus from the sale of 
 lands (post 561, 564). Property acquired after will made (post 
 645). The rights of surviving husband or wife as heir of 
 either (post 636). Renunciation of the terms of a will by the 
 surviving husband or wife and the election of such to take a 
 legal and equitable estate in lieu thereof under the law (post 
 638). The homestead estate of either husband or wife (post 
 623). Also where an estate reverts on failure of issue to heirs 
 of devisor (post 191). Where failure of the object prevents 
 conversion taking place (post 310). Where specific articles 
 bequeathed, are sold, lost or destroyed and replaced by other 
 articles which do not pass under will, because no provision in 
 the will is made for such contingency (post 168). Where it is 
 held fraud vitiates a will (post 113, 117, 276). Where repug- 
 nant clauses are held to destroy the will (post 179 to 181, 190, 
 191). Where gifts causa mortis are held illegal (post 337 to 
 340), Where gifts inter vivos are held to be illegal (post 342). 
 Where the rule in Shelly 's case is applied to a devise in a will 
 (post 189 to 192). Where the statutes relating to perpetuities 
 and per capita and per stirpes are applied and called in ques- 
 tion in the interpretation of wills (post 249, 205, 309). Where
 
 40 THE LAW OF ESTATES. 
 
 the question of who survives in a common disaster determines 
 to whom the particular estate shall go {post 834, et seq). 
 Generally, therefore, the matters cited and many others grow- 
 ing out of the contest and construction of wills have more or 
 less relation to the statute of descent and distribution. We 
 therefore conclude this chapter, because the Statute of 
 "Descent" always steps in and takes the place of a will not 
 leg'ally established by law. It will also apply where an estate 
 is partly testate and partly intestate, as where the will of a 
 father devises to his son John a legacy of $5,000, and does not 
 provide for the contingency in the will of John 's dying intestate 
 without heirs of his body; in such case, and under the father's 
 will, the Statute of "Descent" at once applies, and distributes 
 his portion of his father's estate to his brothers and sisters, if 
 any exist ; if no such exist, the statute, and not the will, directs 
 to whom the estate shall go.
 
 CHAPTER IV 
 
 WILLS 
 
 Sec, 
 
 76. Who may devise property. 
 
 77. A will and testament. 
 
 78. The statute of Illinois relat- 
 
 ing to making of wills. 
 
 79. The fundamental and neces- 
 
 sary requisites of a valid 
 will. 
 
 80. Exposure of human imperfec- 
 
 tions when will offered for 
 probate. 
 
 81. Insane persons, idiots and im- 
 
 beciles. 
 
 82. Mania, dementia or partial in- 
 
 sanity. 
 
 83. Delusions. 
 
 84. Afflicted with disease. 
 
 85. Note. 
 
 86. What is legal capacity, the 
 
 rule in Illinois. 
 
 87. General character of wills, 
 
 deeds, etc. 
 
 Sec. 
 
 88. Woman iinder the statute re- 
 
 lating to wills. 
 
 89. Testamentary rights and pow- 
 
 ers of men and women. 
 
 90. Have the right by will to put 
 
 their property beyond the 
 reach of the creditors of the 
 objects of their bounty. 
 
 91. Where the will or testament 
 
 is the act of another mind. 
 
 92. Testator deprived of free 
 
 agency. 
 
 93. The law extends the greatest 
 
 indulgence to use of lan- 
 guage. 
 
 94. Interlineations, erasures and 
 
 alterations. 
 
 95. The acknowledgment. 
 
 96. The attesting of the will. 
 
 Sec. 76. Who may devise property by will. Section 1, 
 Chapter 148, Revised Statutes of Illinois, pertaining to wills is 
 as follows: ''Every male person of the age of twenty-one 
 years, and every female of the age of eighteen years, being of 
 Bound mind and memory, shall have power to devise all the 
 estate, right, title and interest, in possession, reversion or re- 
 mainder, which he or she hath or at the time of his or her 
 death shall have, of, in and to any lands, tenements, heredit- 
 aments, annuities or rents, charged upon or issuing out of 
 
 41
 
 42 THE LAW OF ESTATES. 
 
 them, or goods or chattels, and personal estate of every de- 
 scription whatsoever by will or testament."^ 
 
 77. A will and testament. A will is said to speak from the 
 death of the testator ;2 and until the death happens, 
 devisees and legatees have no interest whatsoever in the property 
 given to them by will. The author of "Redfield on 
 Wills," defines a last will and testament, as, "the 
 disposition of one's property to take effect after death." 
 A codicil, as defined by Bouvier Law Dictionary, is, "a 
 supplement to a will, an addition to, or alteration of a will"; 
 the same authority defines the word or term "devise" as used 
 to signify "a testamentary disposition of real estate" and the 
 word "bequest" to signify a gift by will or testament"; a 
 "legacy." As most wills offered for probate contain the 
 words, "give, devise and bequeath," they often apply to both 
 real and personal estate of the testator; and are authorized 
 by the language of the statute of Illinois ; it may, therefore, be 
 considered as certain, that such words used in a will and testa- 
 ment, are used as synonymous terms, relating to the testa- 
 mentary disposition of property. 
 
 78. The Statute Law of Illinois relating to making of wills. 
 
 Section 2, of Chapter 148, entitled "Wills," is as follows: All 
 wills, testaments and codicils, by which any lands, tenements, 
 hereditaments, annuities, rents or goods and chattels are de- 
 vised, shall be reduced to writing, and signed by the testator 
 or testatrix, or by some person in his or her presence, and by 
 his or her direction, and attested in the presence of the testa- 
 tor or testatrix, by two or more credible witnesses, two of 
 whom, declaring on oath or affirmation, before the county court 
 of the proper county, that they were present and saw the testa- 
 tor or testatrix sign said will, testament or codicil, in their 
 
 1— Starr & Curtis' Annotated Vol. 4, pp. 1283, 1284, and cases 
 Statutes of Illinois, with Jones & cited; Kurd's R. S. of 111., 1905, p. 
 Addington's Supplements thereto, 2050. 
 
 Vol. 3, pp. 4022 to 4026 inclusive; 2— Updike v. Thompkins, 100 111. 
 
 406.
 
 WILLS. 43 
 
 presence, or acknowledged the same to be his or her act and 
 deed, and that they believed the testator or testatrix to be of 
 sound mind and memory at the time of signing or acknowl- 
 edging the same, shall be sufficient proof of the execution of 
 said will, testament or codicil, to admit the same to record: 
 Provided, that no proof of fraud, compulsion or other im- 
 proper conduct be exhibited, which, in the opinion of said 
 county court, shall be sufficient to invalidate or destroy the 
 same ; and every will, testament or codicil, when thus proven 
 to the satisfaction of the court, shall, together with the probate 
 thereof, be recorded by the clerk of said court, in a book to 
 be provided by him for that purpose, and shall be good and 
 available in law for the granting, conveying and assuring the 
 lands, tenements and hereditaments, annuities, rents, goods and 
 chattels therein and thereby devised, granted and bequeathed.^ 
 
 79. Fundamental and necessary requisites of a valid will. 
 
 First: The testator must be twenty-one years of age, at the 
 time of making his will; the testatrix must be eighteen years 
 of age at the time of making her will. Second: The instru- 
 ment must be in writing. Third : It must be signed by the 
 testator or testatrix, in his or her presence or by some credi- 
 ble person, in his or her presence, and by his or her direc- 
 tion. Fourth: The instrument must be attested in the pres- 
 ence of the testator or testatrix, by two or more credible wit- 
 nesses, two of whom must declare on oath when the will is 
 offered for probate, that they were present and saw the testa- 
 tor or testatrix sign the will, testament or codicil in their pres- 
 ence, or acknowledged the same to be his or her act and deed. 
 Fifth : The witnesses, must under oath at the time the instru- 
 ment is offered for probate, declare that they believed the 
 testator or testatrix to be of sound mind and memory at the 
 time of signing or acknowledging the said instrument. Sixth : 
 
 3 — Starr & Curtis' Annotated 1284; Vol. 5, p. 576, and cases 
 
 Statutes of 111., with Jones & Ad- cited; Kurd's R. S. of 111., 1905, 
 
 dington's Supplements thereto, same section, and chapter, p. 2050. 
 Vol. 3, pp. 4026 to 4032; Vol. 4, p.
 
 44 THE LAW OF ESTATES. 
 
 That there was no fraud, compulsion, undue influence, or im- 
 proper conduct (exhibited or shown) at the time of signing 
 or acknowledging said instrument, which in the opinion of 
 the proper court, where the instrument is offered for pro- 
 bate, is sufficient to invalidate or destroy said instrument 
 as a will, testament or codicil.* 
 
 80. Exposure of human imperfections when will offered for 
 probate. It is possible under every will offered for probate, 
 to expose to the world at large the mental peculiarities, ec- 
 centricities, degree of intelligence and mental capacity of the 
 testator or testatrix, as to whether he or she at the time of 
 making his or her will, had sufficient mind and memory to un- 
 derstand the nature of the business in hand, to properly make 
 testamentary disposition of his or her property and effects; 
 the quantum of intelligence being for the court.^ The 
 declarations and statements of a testator, made both before 
 or after the execution of his will, may be proved for the pur- 
 pose of showing his mental condition at the time of the exe- 
 cution of the will.^ And where the testator has made pre- 
 vious wills, his declarations and statements made about the 
 time of the execution of those former wills, upon the subject 
 of, or manner in which he had therein disposed of his property, 
 have been held to be competent evidence.''^ And it is 
 held, in Craig v. Southard,^ all persons who have the 
 means of observation are permitted to testify concerning 
 the existence and measure of capacity of a testator, so far as it 
 
 4— Noble's Will Case, 124 111. 507; Schneider v. Manning, 121 111. 
 
 266; Canatasey v. Canatasey, 130 376. 
 
 111. 397; Gould V. Theological Sem- 6— Craig v. Southard, 148 111. 
 
 inary, 189 111. 290; Critz v. Pierce, 37; Petefish v. Becker, 176 111. 
 
 106 111. 167; Brice v. Hall, 120 111. 448; Hull v. Bahrns, 158 111. 314; 
 
 597; Waugh v. Moan, 200 111. 298; Taylor v. Pegram, 151 111. 106. 
 Sec. 2, Chapt. 148, "Wills;" Kelly 7— Taylor v. Pegram, 151 111. 
 
 V. Parker, 186 111. 59; Dickey v. 106; Neiman v. Schnitker, 181 111. 
 
 Parker, 42 111. 376; Crowley v. 403; Thompson v. Bennett, 194 111. 
 
 Crowley, 80 111. 469; Weld v. 57; Wombacher v. Barthelme, 194 
 
 Sweeney, 85 111. 50. 111. 425. 
 
 5— Keithley v. Stafford, 126 111. 8—148 111. 37.
 
 WILLS. 45 
 
 may tend to shed light upon the issue, and may give their 
 opinions touching mental capacity, based upon such observa- 
 tion. The weight or effect of such opinions depends upon the 
 means of knowledge of the witness and the facts on which it is 
 based, possible of delineation, and the capacity of the wit- 
 ness to correctly interpret what he has observed. Therefore, 
 the facts upon which the opinion is predicted may be gone into, 
 either to sustain and give force to the opinion, or to discredit 
 it. And to the same effect Baker v. Baker.^ Often 
 the habits, character, peculiar eccentricities and superstitious 
 beliefs, become a subject of inquiry, where the testator or 
 testatrix is said to harbor or hold some delusion of the mind. 
 Thus, in Whipple v. Eddy,^^ it is adopted as the doc- 
 trine in Illinois: "The fact that a person is afflicted with in- 
 sanity, or labors under some delusion, believes in witchcraft, 
 clairvoyance, spiritual influences, presentments of the occur- 
 rence of future events, dreams, mind reading, etc., will not 
 affect the validity of his or her will on the ground of insanity, 
 as a person's belief can never be made a test of insanity. It 
 being said in that case, when we leave the domain of knowl- 
 edge and enter upon the field of belief, the range is limitless, 
 extending from the highest degree of rationality to the wild- 
 est dreams of superstition, and no standard of mental sound- 
 ness can be based on one belief rather than another. What to 
 one man is a reasonable belief is to another wholly unreason- 
 able, and while it is true, that belief in what we generally un- 
 derstand to be supernatural things may tend to prove insanity 
 under certain circumstances, it is a well known fact, that many 
 of the clearest and brightest intellects have sincerely and hon- 
 estly believed in spiritualism, mind reading, etc. In one of 
 the early cases, which has been cited often with approval, Ruth- 
 erford V. Morris, ^^ the court in the beautiful language 
 of Chancellor Kent, say, "A man may freely make his 
 testament, how old soever he may be. It is one of the painful 
 
 9—202 111. 608. 11—77 111. 408. 
 
 10—161 111. 122
 
 46 THE LAW OF ESTATES. 
 
 consequences of extreme old age, that it ceases to excite in- 
 terest, and is apt to be left solitary and neglected. The con- 
 trol which the law still gives to a man over the disposal of his 
 property, is one of the most efficient means he has, in pro- 
 tracted life, to command the attention due to his infirmities. 
 The will of such an aged man ought to be regarded with great 
 tenderness, when it appears not to have been produced by 
 fraudulent acts, but contains those very dispositions which the 
 circumstances of his situation and the course of the natural af- 
 fections dictated." See also Entwistle v. Meikle,^- where the 
 person making the will was a man of 91 years of age at the time. 
 In Smith v. Hamline,^^ it is said: While the existence of an illicit 
 relation between the testator and the beneficiary, does not raise 
 a legal presumption of undue influence, it is a circumstance, 
 from which such influence may be more fully inferred. And 
 such fact may be shown and considered with proof tending to 
 show constraint and interference by the beneficiary; with im- 
 paired mental capacity, loss of will power, disease and other 
 impairments of the testator when the will was made. 
 
 81. Insane persons, idiots and imbeciles, are regarded under 
 the law as having no mental faculties or capacity. Such per- 
 sons are considered absolutely incompetent to transact any and 
 all business; and, cannot do and perform any binding act; 
 they are regarded as having no mind by which they can ex- 
 ercise any free agency or judgment ; such cannot act for them- 
 selves nor perform any binding act under the law; but they 
 may be represented by conservators, who are persons created 
 by legislative enactment, and who must act for such unfortu- 
 nates only, to the extent and in the manner pointed out and 
 directed by the Legislature of the several states of the Union 
 and the courts who appoint such and give them authority. 
 Where insanity is established in any form, those so afflicted 
 are considered incompetent to make valid testamentary dispo- 
 sition of their property. No law has been enacted, and never 
 
 12—180 111. 9. 13—174 111. 184.
 
 WILLS. 47 
 
 will be, by which those adjudged insane and remain so, can 
 through their legal representatives make a valid will; if such 
 have property or effects, they must of necessity die intestate, 
 and their property be distributed as the law directs under the 
 table of descent. 
 
 82. Mania, dementia or partial insanity. Bouvier's Law 
 Dictionary, Section 33, defines mania — as general or partial, 
 disease of the mind, which may affect the intellectual faculties 
 or the affective or emotional faculties. And it is said: De- 
 mentia may follow as a consequence or result of mania or in- 
 juries to the brain, or it may be senile, or peculiar to old age. 
 The question whether the dementia is total or partial, is always 
 recognized as a fact for the jury to pass upon. When the 
 mania or dementia is continuous, it is considered the party so 
 afflicted, is incompetent to make a valid will; but if the af- 
 fliction is partial, occurring at intervals, it is presumed that at 
 times, the party is sane and has sufficient mental capacity to 
 make a valid will. Thus it was held, in Roe v. Taylor. ^"^ 
 A testator possesses testamentary capacity, within the 
 meaning of the law, when he has an understanding of the na- 
 ture of the business in which he is engaged, of the kind and 
 value of the property devised, and of the persons who were the 
 natural objects of his bounty, and of the manner in which he 
 desires his property to be distributed; unless affected with 
 some morbid and insane delusion as to some one of those nat- 
 ural objects of his bounty. And it is further said in that case : 
 a person who is not an expert, may give his opinion concerning 
 the mental capacity of a testator, after first detailing the partic- 
 ular facts and circumstances upon which he bases his judgment, 
 leaving the jury to fix such value upon the opinion expressed, 
 as the intelligence and capacity of the witness to form it will 
 warrant. And in Yoe v. McCord,^^ it is said: he or 
 she "must be sane with respect to the matter in hand." The 
 
 H— 45 111. 485. 15—74 III. 33.
 
 48 THE LAW OF ESTATES. 
 
 following cases hold to the general doctrine noted above, which 
 is now firmly established as a settled rule of this state.^^ 
 
 83. Delusions. In Whipple v. Eddy,^'^ it is said: "The 
 fact that a person is afflicted with insanity, or labors under 
 some delusion, believes in witchcraft, clairvoyance, spiritual 
 influence, presentiments or the occurrence of future events, 
 dreams, mind reading," etc., etc., will not affect the validity of 
 his or her willj on the ground of insanity; as a man's belief 
 can never be made a test of insanity. And it has nowhere 
 been held that an eccentric person, having his or her pecu- 
 liarities cannot make a valid will. In Clauscnnius v. Clausen- 
 7iius,^^ where a testator disinherited certain of his children, be- 
 cause of influence exerted by their step-mother, and where it 
 appeared the testator was not affected by insane delusions, made 
 the issue, it was held, the will was valid. 
 
 84. Afflicted with disease. The testator or testatrix may 
 be afflicted with disease, and aged. Yet if his or her capacity 
 remains unimpaired within the meaning of the law, he or she 
 is capable of making a valid will ; capacity existing it makes no 
 difference that he or she has suffered for two years or more 
 with softening of the brain.^^ 
 
 85. Note. The subjects, sound mind and memory, fraud 
 and compulsion, undue influence and improper conduct, will 
 be discussed and considered in regular order in chapter pertain- 
 ing to "Contest of Wills in Chancery." 
 
 86. What is legal capacity and the rule best defining same 
 in Illinois. Was the testator or testatrix at the time of sign- 
 
 16— Am. Bible Society v. Price, 190 111. 102; Gould v. Chicago The- 
 
 115 111. 640; Freeman v. Easly, 117 ological Society, 189 111. 292; Bak- 
 
 111. 317; Keithly v. Stafford, 126 er v. Baker, 202 111. 608; Amos v. 
 
 111. 507; Salisbury v. Aldrich, 118 Am. T. & S. Bank, 221 111. 100. 
 
 111. 200; Schneider v. Manning, 121 17—161 111. 122. 
 
 111. 376; Brace v. Black, 125 111. 33; 18—179 111. 545. 
 
 Campbell v. Campbell, 130 111. 466; 19 — Rutherford v. Morris, 77 111. 
 
 Burt V. Quisenbury, 132 111. 385; 397; Guild v. Hull, 127 111. 523; 
 
 Craig V. Southard, 148 111. 37; Bevelot v. Lestrade, 153 111. 625. 
 Masonic Orphans' Home v. Gracy,
 
 WILLS. 49 
 
 ing the instrument of sound mind and memory? Do you be- 
 lieve the testator or testatrix was of sound mind and memory 
 at that time? These same necessary questions are as old as 
 the law itself; they were the fundamental subject of inquiry 
 under the common law of England, and date as far back 
 as civilized nations enacted laws to govern the rights of per- 
 sons and property. What degree of mental capacity is requi- 
 site to the validity of a will, and what shall be the test of that 
 capacity by the court and jury, have been answered differ- 
 ently by different courts. The courts universally hold, or 
 nearly so, that one grossly ignorant, or of very limited capac- 
 ity, if otherwise of sane mind, may make any instrument, how- 
 ever complex it may be, and be bound thereby.^^ In Trish v. 
 Newliall,^^ it is said: When a court undertakes to inform the 
 jury what amount of mental capacity a man must have to know 
 and understand what he is about, it is futile, and tends rather 
 to mislead than to afford any practical aid to a jury. Thus it 
 has been held in Meeker v. Meeker,^^ as one of the rules in rela- 
 tion to such matter, that a person who is capable of transacting 
 ordinary business, is also capable of making a valid will. It is not 
 required that he shall possess a higher capacity for that than for 
 the transaction of the ordinary affairs of business. A man ca- 
 pable of buying and selling property, settling accounts, col- 
 lecting and paying out money, or borrowing or loaning money, 
 must usually be regarded as capable of making a valid disposi- 
 tion of his property by will. The rule is the same in the case 
 of a sale of property, and its disposition by will, and the usual 
 test is that the party be capable of acting rationally in the 
 ordinary affairs of life. "^3 The rule is stated in 
 
 20— Trish v. Newhall, 62 111. 204, Freeman v. Easly, 117 111. 317 
 
 and case cited in opinion; also cases English v. Porter, 109 111. 285 
 
 cited generally in this section. Schneider v. Manning, 121 111. 376 
 
 21—62 111. 204. Story's Will Case, 20 111. App. 183 
 
 22—75 111. 260. Campbell v. Campbell, 130 111. 481 
 
 23— Brown v. Riggin, 94 111. 560; Myatt v. Walker, 44 111. 485; Trish 
 
 Rutherford v. Morris. 77 111. 397; v Newhall, 62 111. 204; Green v. 
 
 Green, 145 III. 264.
 
 50 THE LAW OF ESTATES. 
 
 Campbell v. Campbell,^^ One may have the capacity to 
 comprehend a few simple details, and in consequence have 
 testamentary capacity to make valid disposition of his prop- 
 erty, while if he had to remember many facts, and comprehend 
 many details, the same degree of mental capacity would be 
 wholly insufficient to an intelligent understanding of the busi- 
 ness of which he was engaged. The difficulty of stating stand- 
 ards or tests by which to determine the degree of mental ca- 
 pacity of a particular person, has been everywhere recognized, 
 and grows out of the inherent impossibility of measuring men- 
 tal capacity, or its impairment by disease or other causes.^s 
 
 87. General character of wills, deeds, etc. A paper merely 
 signed, but not attested, cannot be treated as a will ; nor is an 
 indorsement made on a benefit certificate issued by fraternal 
 association or fraternal insurance association, directing to 
 whom the benefit shall be paid a will; and such indorsement 
 is not revoked by subsequent marriage.^^ The essential dif- 
 ference between a will and a deed is this, the deed takes effect, 
 if at all, immediately on its execution and delivery, while a will 
 does not take effect till the testator's death; but the absence of 
 actual delivery does not necessarily invalidate the deed, if it ap- 
 pears that the grantor retained possession, and that he intended 
 it to take effect at its date.^^ 
 
 88. A woman under the statute relating to wills, whether 
 married or single, has the right and power to devise by will 
 and testament her separate estate. And under the statute Der- 
 taining to women, chapter 68, sections 7, 9, 10, may manage, 
 sell and convey, her separate property, to the same extent and 
 in the same manner that the husband can property belonging 
 to him. She may thus dispose by will of such property owned 
 
 24—130 111. 481. 26— Highland v. Highland, 109 
 
 25— Herman v. Vogt, 181 111. 111. 367. 
 
 400; Ring v. Lawless, 190 111. 520; 27— Cline v. Jones, 111 111. 569; 
 
 Swearington v. Inman, 198 111. Olney v. Howe, 89 111. 556; Bruner 
 
 256; Compher V. Browning, 219 111. v. Bruner, 115 111. 40; Marsey v. 
 
 429. Huntington, 118 111. 80.
 
 WILLS. 51 
 
 by her at the time of her marriage or such as she acquired dur- 
 ing her marriage in good faith, from any person other than 
 her husband, by devise, descent, or otherwise. But she has no 
 power to devise her homestead, so as to deprive her husband 
 of that estate^ nor deprive him of his dower right or other 
 right fixed by established law.^s 
 
 89. Testamentary rights and powers of men and women. 
 
 Any person competent to make a will, or testamentary dis- 
 posal under the statute, is, in general unlimited, whether as 
 to person or object. The testator or testatrix, acting free from 
 undue influence, may dispose of his or her property in any way 
 not forbidden by law; and it makes no difference whether the 
 disposition is just or unjust. The testator or testatrix is under 
 no obligation to divide equally among his or her children; he 
 or she may cut off one and prefer another, or may give all to 
 a stranger at pleasure.^^ An afterborn child may be totally 
 disinherited, and the bounty of the parents may be limited to 
 any sum however insignificant.^*^ And it is the settled 
 law of Illinois, that if one accepts a devise under a will, they 
 will be estopped and cannot set up any claim of their own to 
 defeat any part of the will, including its reeitgOs as to the titles 
 of the testator or testatrix.^^ 
 
 90. Have the right by will to put their property beyond 
 the reach of the creditors of the objects of their bounty. A 
 testator and testatrix in disposing of his or her property by 
 will, has the right and power to put the property so disposed 
 
 28— In re Tuller, 79 111. 99; Em- 317; Schneider v. Manning, 121 III. 
 
 mert v. Hayes, 89 111. 11; Henson 376; Uhlich v. Muhlke, 61 111. 499; 
 
 V. Moore, 104 111. 403; Starr & Cur- Nicewander v. Nicewander, 151 111. 
 
 lis' Annotated Statutes of 111., with 156; McCommon v. McCommon, 
 
 Jones & Addington's Supplements 151 111. 428; Clausennius v. Claus- 
 
 thereto. Vol. 2, pp. 2124, 2125, 2126 ennius, 179 111. 545. 
 
 to 2132; Vol, 4, p. 674, and cases 30 — Osborn v. Jefferson Nat'l 
 
 cited; Kurd's R. S. of 111., 1905, Bk., 116 111. 130. 
 
 same section and chapter, p. 1147. 31 — Cunningham v. Dougherty, 
 
 29— Freeman v. Easly, 117 111. 220 111. 45, and cases cited in the 
 
 opinion.
 
 52 THE LAW OF ESTATES. 
 
 of beyond the reach of the creditors of the objects of their 
 bounty. They or either of them may devise a life estate or 
 devise in trust.^^ 
 
 91. Where the will or testament is the act of another mind. 
 
 The rule adopted in Nicewander v. Nicewander^^ is: There is 
 undue influence for which a will may be set aside, where, by 
 the pressure of improper persuasion, the testator or testatrix, is 
 virtually deprived of his or her free agency, so that the will is 
 the act, not of the testator's or testatrix's own mind, but that 
 of another. 
 
 92. Testator deprived of free agency. It is also held, that 
 undue influence, to invalidate a will, must be connected with 
 the execution of the will and be operative at the time the 
 will is made. And it must be such as to deprive the testator 
 or testatrix of free agency .^^ And it is immaterial by whom un- 
 due influence is exercised.^ ^ 
 
 93. The law extends the greatest indulgence to use of lan- 
 guage. It is merely necessary that the will express the in- 
 tention of the testator or testatrix. Courts construe wills, so 
 as to ascertain the intention of the maker ; and, where the will 
 construed is not inconsistent with the law of the land, the 
 court will always give effect to the intention expressed by the 
 instrument.^^ No word or phrase wiU be rejected unless it is 
 unintelligible, or so far repugnant to other and controlling por- 
 tions, that it can have no effect.^ '^ 
 
 32— Emerson v. Marks, 24 111. 337; Wolfer v. Hemmer, 144 111 
 
 App. 642; Stein v. Whitehead, 111 554; Ducker v. Burnham, 146 111 
 
 111. 247. 9; Cassen v. Kennedy, 147 111. 660 
 
 33—151 111. 156. Allen v. McFarland, 150 111. 455 
 
 34— Wilber v. Wil 138 111. Crerar v. Williams, 145 111. 625 
 
 446; Pooler v. Christman, 145 111. Kelly v. Gonce, 49 111. App. 82 
 
 405; Taylor v. Pegram, 151 111. Perry v. Bowman, 151 111. 25; Rob- 
 
 106; Purdy v. Hall, 134 111. 298. erts v. Roberts, 140 111. 345. 
 
 35— Smith v. Hamline, 174 111. 37— Smith v. Curry, 52 111 App. 
 
 184. 227; Bates v. Gilbert, 132 111. 287; 
 
 36— In re Cashman's Estate, 134 Rickner v. Kessler, 138 111. 636. 
 111. 88; Schafer v. Schafer, 141 111.
 
 WILLS. 53 
 
 94. Interlineations, erasures and alterations of will, are al- 
 ways a subject of inquiry and investigation.^s A clause inter- 
 lined in a duly executed will is invalid, where it is unsigned and 
 the will is not re-attested. And this, although the alteration is 
 made by one of the witnesses by direction of the testator. A 
 clause in a will through the words of which a line is drawn, by 
 direction of the testator, before the will was signed, will be re- 
 garded as cancelled ; and it makes no difference if the words are 
 clearly legible, it is no more a part of the will, than if the words 
 were completely obliterated; nor than if the clause had never 
 been inserted.^^ 
 
 95. The acknowledgment, by the testator or testatrix, that 
 the instrument is his or her will, need not be in words.^^ 
 
 96. The attesting of the will. The will if attested in the 
 presence of the testator or testatrix, and where the witnesses 
 are in such a position when they sign, that the testator or 
 testatrix can see them if he or she chooses, or a formal request 
 and desire by the testator or testatrix to witnesses to bear 
 witness to will is sufficient. ■^i It is not necessary for a testator or 
 testatrix to state, or for the subscribing witnesses to know, that 
 the instrument which they attest was his or her will ; nor for him 
 or her to acknowledge to the subscribing witnesses that she had 
 signed it; it being sufficient if she acknowledged to them, 
 either by word or acts, that the instrument was her act and 
 deed.42 
 
 38— Hesterbrook v. Clark, 166 109; Harrington v. Stees, 82 111. 50; 
 
 111. 241. Buchanan v. McLennan, 105 111. 
 
 39— Laurie v. Radnitzer, 166 111. 56; Drury v. Connelly, 177 111. 47; 
 
 609. Sloan v. Sloan, 184 111. 583; In re 
 
 40— Allison v. Allison, 46 111. Story's Will, 20 111. App. 183; Gal- 
 
 61; In re Story's Will, 20 111. App. lagher v. Kilkeary, 29 111. App. 
 
 183; Harp v. Parr, 168 111. 474. 415. 
 
 41— Amber v. Weishaar, 74 111. 42— In re Will of Barry, 219 111. 
 
 391.
 
 CHAPTER V 
 
 WILLS— CONTINUED 
 
 Sec. 
 
 97. Nuncupative wills. 
 
 98. Conjecture or inference from 
 
 testator's language does not 
 constitute nuncupative will. 
 
 99. Citation or publication re- 
 
 quired in all cases where 
 nuncupative will shall be 
 proved and recorded. 
 
 100. Joint and mutual wills. 
 
 101. Keith V. Miller. 
 
 102. Revocation of will. Statutory 
 
 requirement. 
 
 103. Child born after will— Mar- 
 
 riage revokes prior will. 
 
 Sec. 
 
 104. Afterborn child. 
 
 105. An adopted child entitled to 
 
 benefits of section. 
 
 106. Intention to disinherit after- 
 
 born child need not be ex- 
 pressly stated. 
 
 107. Mother's will attempting to 
 
 provide for her children by 
 her own act failed. 
 
 108. Miscellaneous points. 
 
 109. Erasure of part of will, effect. 
 
 110. Where the codicil revokes 
 
 the will. 
 
 Sec. 97. Nuncupative wills. Under the statute, section 15, 
 chapter 148, entitled ''Wills," are to be regarded as made in 
 the time of the last sickness of the testator or testatrix; such 
 wills when the statute is followed strictly or substantially are 
 good and available in law for the conveyance of personal prop- 
 erty, thereby bequeathed.^ Such will under the statute must be 
 committed to writing within twenty days, after the 
 making thereof, and proven before the Probate or 
 County court by two or more credible witnesses, who 
 were present at the speaking and publishing thereof; who 
 shall declare on oath or affirmation, that they were present 
 and heard the testator pronounce the said words, and that they 
 believe him or her to be of sound mind and memory; and that 
 he or she did at the same time, desire the persons present, or 
 some of them, to bear witness that such was his or her will, or 
 
 1— McCullom V. Chidester, 63 111.477. 
 
 54
 
 WILLS— CONTINUED. 55 
 
 words to that effect; and it being also proven by two disin- 
 terested witnesses, other than those hereinbefore mentioned, 
 that the said will was committed to writing within ten days 
 after the death of the testator or testatrix; and no proof of 
 fraud, compulsion or other improper conduct be exhibited, 
 which, in the opinion of said court, shall be sufficient to invali- 
 date or destroy the same ; and all such wills, when proven and 
 authenticated as aforesaid, shall be recorded in like manner 
 as other wills are directed to be recorded by this act ; provided 
 that no letters testamentary shall be granted on such will, until 
 the expiration of sixty days, after the death of the testator or 
 testatrix. Such has been the statute law of this state since 
 1845.2 iji Baylor v. Baylor,^ the evidence established' a strict or 
 substantial compliance with the statute, and it was held, such 
 evidence established a valid nuncupative will, as the statutory 
 requisites were complied with.* In Harrington v. Stees, it is 
 held: The statute restricts a person under common law 
 power to make nuncupative will, in his last illness; and al- 
 though testator have time to have his will reduced to writing, 
 it may be nuncupative ; no formal request to witness such will 
 is necessary. And in Weir v. Chidester,^ it is held, 
 testator need not use terms "devise" and "bequeath"; nor in 
 terms call persons to "witness his will" substantial compliance 
 with statute held sufficient. But in Morgan v. Stevens,^ it is 
 held, there must be at least two witnesses to the facts essential 
 to the proving of nuncupative will. 
 
 98. Conjecture or inference from testator's language does 
 not constitute nuncupative will. While such wills are fre- 
 quently made, and have attained a foothold in our jurispru- 
 dence, they are looked upon with much suspicion when offered 
 
 2 — Starr & Curtis' Annotated 3 — Baylor v. Baylor, 9 111. App, 
 
 Statutes of 111., with Jones & Ad- 410. 
 
 dington's Supplements thereto, 4 32 m. 50, 
 
 Vol. 3, pp. 4043, 4044; Vol. 4, p. 1290, 
 
 and cases cited; riurd's R. S. of ^ ^^ "^- ^^2- 
 
 111., 1905, same section and chap- 6—78 111. 287. 
 ter, p. 2053.
 
 56 THE LAW OF ESTATES. 
 
 for probate; for if not strictly following the law, or substan- 
 tially following the provisions of the statute, might open the 
 door to frauds and impositions the statute was passed to pre- 
 vent. In Arnet v. Arnef^ it is said: There is noth- 
 ing in this ease to show that the testator ever expected or 
 wished that any one present should remember what he had 
 said, or should ever repeat those declarations, or should ever 
 go before any tribunal to prove that such was his will. If 
 we say that such must have been his desire, from the nature of 
 things, that is but conjecture at last, and the legislature has 
 declared that such conjecture shall not be sufficient. Under- 
 standing the operations of the human mind as well as any of 
 us, the legislature knew that most likely any one would, in 
 extremis, declare to those about him the disposition he wished 
 made of his property, would also desire that those present 
 would remember and bear witness to his wish. Such an infer- 
 ence must necessarily arise in almost every case where a will 
 is declared by a dying man to those around him, but the law- 
 makers thought it unsafe to rely upon such inference, however 
 strong, and saw fit to require a direct expression of such wish 
 by the testator at the time of pronouncing the words of the 
 will. In re Grossmati's Estate,^ decedent was taken 
 suddenly ill, and an operation was set for three o'clock the 
 next day, and his brothers and others consulted with him 
 about his making a will; one of the brothers wrote down the 
 wishes of decedent, and said he would write it up and send it 
 over in the morning, and, if it was right, decedent could sign it, 
 and, if not right, it could be made so. Nothing was said by 
 decedent as to desiring any one present to bear witness that 
 it was his will, as provided in Revised Statutes, chapter 148, 
 section 15, relating to nuncupative wills. The next morning, 
 before the will was brought to him, he was dead. Held, not to 
 be valid as a nuncupative will. 
 
 99. Citation or publication required in all cases where 
 nuncupative will shall be proved and recorded. The court shall 
 
 7—27 111. 247. 8—175 111. 425.
 
 WILLS— CONTINUED. 57 
 
 issue a citation to the heirs and legal representatives of the 
 testator or testatrix, if they reside in the county, if not, then 
 said court shall cause an advertisement to be inserted in some 
 one of the newspapers printed in the state, notifying the said 
 heirs and legal representatives of the testator or testatrix, at 
 which time and place letters testamentary will be granted upon 
 such will, requiring them and each of them to appear and show 
 cause, if any they have, why letters testamentary should not 
 be granted; and if no sufficient cause be shown, letters shall 
 be granted thereon, as in other cases.^ 
 
 100. Joint and mutual wills. Such wills are held valid, as 
 the separate will of whichever dies first; they are often the 
 subject of litigation and generally prove unsatisfactory to the 
 parties making the same; resulting trust litigation is often 
 the outcome of such wills. Under the law two or more persona 
 may execute a joint will, which will operate as if executed 
 separately by each, and will require a separate probate upon 
 the death of each as his or her will.^*^ 
 
 101. In Keith v. Miller?-'^ The facts of record show, 
 that Keith and his wife were married in 1845, were well 
 advanced in years and were without children. They had a 
 farm of 280 acres of valuable land, the accumulation of their 
 joint labor; they talked over the matter as to how it should be 
 disposed of at their death. The husband's evidence shows, 
 that he and his wife talked over their affairs and about the 
 land each should have, and after that conversation it was re- 
 duced to writing in these wills, that it was put in the wills 
 just as they agreed; that he wrote the wills and they were in 
 his own handwriting. The court holding, where husband and 
 
 9— Statutes, Chap. 148, sec. 16, 10— Re Diez, 50 N. Y. 88; Kun- 
 
 entitled "Wills;" Starr & Curtis' nen v. Zurline, 2 Cin. (Ohio) 440; 
 
 Annotated Statutes of Illinois, Schumacher v. Schmidt, 44 Ala. 
 
 with Jones & Addington's Supple- 454. 
 
 ments thereto. Vol. 3, p. 4044; 11—174 111. 64. See cases cited 
 
 IHurd's R. S. of 111., 1905, same sec- in opinion, 
 tion and chapter, p. 2053.
 
 58 THE LAW OF ESTATES. 
 
 wife having agreed upon a testamentary disposition of their 
 property, and the husband prepares two wills at the same time 
 to give effect to that agreement, the wills will be construed to- 
 gether as a single instrument. Citing the well established rule, 
 "that where different instruments are executed as the evidence 
 of one transaction or agreement, they are to be read and con- 
 strued as constituting but a single transaction. "12 
 
 102. Revocation of vdll — how accomplished. Revised Stat- 
 utes of Illinois, chapter 148, section 17, is as follows: "No 
 will, testament or codicil shall be revoked, otherwise than by 
 burning, cancelling, tearing or obliterating the same, by the 
 testator himself, or in his presence, by his direction and con- 
 sent, or by some other will, testament or codicil in writing, 
 declaring the same, signed by the testator or testatrix, in the 
 presence of two or more witnesses, and by them attested in his 
 or her presence ; and no words spoken shall revoke or annul 
 any will, testament or codicil in writing, executed as afore- 
 said, in due form of law.''^^ 
 
 In Stetson v. Stets&n,^'^ the statute is cited and ap- 
 plied in these words. No will can be revoked other than 
 by burning, cancelling, etc., or by some other "will, testament 
 or codicil" and cannot be revoked by any writing not testa- 
 mentary in character; the destruction of a will which revoked 
 a former one, revives the former. It is also held in the same 
 case, that the English statute of Victoria, providing that no 
 will or codicil, which has in an}' manner been revoked, shall 
 be revived otherwise "than by a re-execution thereof, or by a 
 codicil showing an intention to revive the same" has not been 
 adopted by the courts of Illinois and is not the law of this state. 
 Under Colorado statute erasure of will held to revoke same.^^ 
 
 12— Wilson V. Roots, 119 111. 379; Vol. 3, pp. 4044, 4045; Vol. 4, p. 
 
 Gardt v. Brown, 113, 475; Duncan 1290; Vol. 5, p. 579, and cases 
 
 V. Charles, 4 Scam. (111.) 561; cited; Kurd's R. S. of 111., 1905, 
 
 Freer v. Lake, 115 111. 622. same section and chapter, p. 2053. 
 
 13— Starr & Curtis' Annotated 14—200 111. 601. 
 
 Statutes of Illinois, with Jones & 15 — Glass v- Scott, 14 Colo. Ct. 
 
 Addington's Supplements thereto, of App. 378.
 
 WILLS— CONTINUED. 59 
 
 103. Child bom after will — marriage revokes prior will. 
 
 Revised Statutes of Illinois, chapter 39, section 10, "Descent," 
 is as follows : "If, after making a last will and testament, a child 
 shall be born to any testator, and no provision be made in such 
 will for such child, the will shall not on that account be revoked ; 
 but unless it shall appear by such will that it was the intention 
 of the testator to disinherit such child, the devises and legacies 
 by such will granted and given, shall be abated in equal pro- 
 portions to raise a portion for such child equal to that which 
 such child would have been entitled to receive out of the estate 
 of such testator if he had died intestate, and a marriage shall 
 be deemed a revocation of a prior will. "^^^ 
 
 In Hundall v. Ham,^'^ this section of the statute was 
 held constitutional. In that case the court speaking of the pro- 
 vision of the statute, "a marriage shall be deemed a revocation 
 of a prior will." Prior to the enactment of this statute it was 
 held in this state, where husbands and wives are heirs to each 
 other, a subsequent marriage operated as a revocation of a will, 
 disposing of the whole estate of the testator, which made no 
 provision for such contingency or change of relation as the sub- 
 sequent marriage.^* Under these decisions the will of J. T. 
 would have been revoked by his subsequent marriage regard- 
 less of the provisions of the statute, since the will contained 
 no provision in contemplation of the relation arising out of 
 such marriage, unless the rule in that respect would be affected 
 by the terms of the ante-nuptial contract. That contract de- 
 clared that Mary F. had been informed of the will, and ap- 
 proved of it, and she agreed that she would not interfere with 
 it in any way during the lifetime of the said J. T., or there- 
 after. It is argued on behalf of the claimants under the will 
 
 16— Starr & Curtis' Annotated 17—172 111. 82; Tyler v. Tyler, 
 
 Statutes of Illinois, with Jones & 19 111. 151 ; Am. Bd. of Forg'n Mis- 
 
 Addington's Supplements thereto, sions v. Nelson, 72 III. 564 ; Duryea 
 
 Vol. 2, p. 1433; Vol. 4, p. 438; Vol. v. Duryea, 85 111. 41. 
 
 5, p. 177, and cases cited; Kurd's 18 — Hundall v. Ham, 172 111. 85. 
 R. S. of 111., 1905, same section 
 and chapter, p. 765.
 
 60 THE LAW OF ESTATES. 
 
 that this agreement prevented a revocation under the rule prior 
 to the passage of the statute, and that there was no revocation 
 under the statute because of its invalidity. It will not be 
 necessary to consider the effect of her agreement upon her 
 rights, for the reason that, if the statute is valid, plaintiffs in 
 error have a right to claim the benefit of it, and the will is 
 revoked by virtue of the statute. Page 85, the statute was 
 passed at the same session of the legislature as the Statute of 
 Wills providing for a revocation of a will by particular means 
 mentioned in that statute, and the two provisions are to be 
 read together, as embracing the legislative will on that subject. 
 
 104. Afterborn child. In Salem National Bank v. White,^^ 
 the statute relating to afterborn child was again con- 
 .strued and applied as to the rights of such child. The 
 court by its opinion finds the testator died on December 13, 
 1863, without changing or amending his will, which was duly 
 probated, it being held from that fact that it does not appear 
 that William White intended to disinherit Joseph I. White, 
 it follows, that the devise of the mortgaged premises, except 
 the said strip, should be abated to raise a portion for appellee, 
 Joseph I. White, equal to that which he would have been en- 
 titled to receive out of the estate of William White, if the latter 
 had died intestate. In other words, under the construction 
 given to the foregoing statute by this court in Ward 
 V. Warc?,2o Joseph I. White is entitled to an undivided one- 
 fourth part of that portion of the premises embraced in the 
 mortgage, of which his father died seized, and which was de- 
 vised to his mother and his brothers and sisters, subject to the 
 dower therein of his mother, the widow, Susan White. 
 
 105. An adopted child entitled to benefits of this section. 
 In Howard v. Flannigan,-^ it is held, an adopted 
 child, is entitled to the benefits of this section. The court 
 quoting the section of the statute in question, say: That act 
 
 19—159 111. 136. 21—200 111. 400. 
 
 20—120 111. 111.
 
 WILLS— CONTINUED. 61 
 
 was in force July 1, 1872. The Act of 1867, providing for 
 the adoption of children was then in force. (Gross' Statute, 
 Ed. 1869-319.) That act provides that the relation between 
 a person adopting a child and such child should be, as to their 
 rights and liabilities, the same as if the relation of parent and 
 child existed between them, except that the adoptive father or 
 mother should never inherit from the child. Afterwards the 
 law in relation to the adoption of children was revised by the 
 act in force July 1, 1874, constituting chapter 4 of the Revised 
 Statutes, section 5 of that act being as follows: "A child so 
 adopted shall be deemed, for the purpose of inheritance by 
 such child, and his descendants and husband or wife, and 
 other legal consequences and incidents of the natural relation 
 of parents and children, the child of the parents by adoption, 
 the same as if he had been born to them in lawful wedlock, 
 except that he shall not be capable of taking property ex- 
 pressly limited to the body or bodies of the parents by adop- 
 tion, nor property from the lineal or collateral kindred of such 
 parents by right of representation." By this section an 
 adopted child, for the purpose of inheritance and other legal 
 consequences and incidents of the natural relation of parents 
 and children, is declared to be, in law, the child of the parents, 
 the same as if he had been born to them in lawful wedlock, 
 except as therein stated. By the plain and unambiguous lan- 
 guage of the statute the right of the plaintiff in error to 
 inherit from B. H. is made identical with the right of a child 
 born to her, and when plaintiff in error became her child by 
 adoption after the making of the will, the effect, in law, was 
 precisely the same as the birth of a child to the testatrix.22 
 
 106. Intention to disinherit after born child need not be 
 expressly stated. In Hawhe v. C. & W, I. R. B. Co.,"^'^ 
 
 22— Watts V. Dull, 184 111. 91; thereto. Vol. 1, p. 354; Vol. 4, p. 
 
 Webb V. Jackson, 6 Colo. Ct. of 46; Vol. 5, p. 22, and cases cited; 
 
 App. 211; Starr & Curtis' Anno- Kurd's R. S. of 111., 1905, same sec- 
 
 tated Statutes of Illinois, with tion and chapter, p. 128. 
 
 Jones & Addington's Supplements 23 — 165 111. 567.
 
 G2 THE LAW OF ESTATES. 
 
 it is said: There is another significant fact which has 
 an important bearing on the construction of the will. At the 
 time the will was executed by the testator he had two children 
 then living, one four and the other two years old. These chil- 
 dren were excluded from taking any portion of the testator's 
 estate by will. Is it reasonable to believe that the testator 
 intended to exclude these two infants and not at the same time 
 exclude another child to be born within the next two months 
 after the will was executed? It seems plain, if the testator 
 had intended to make any distinction between his children 
 then born or unborn, he would have inserted a provision in 
 his will manifesting that intention. In order to disinherit 
 appellant the testator was not required to state the fact in 
 express terms in the will. It is enough that the intention 
 appears from the will, upon consideration of all its provisions. 
 The statute in question was before the court in shorn 
 V. Jefferson National Bank,^^ and in the decision of 
 that case it was among other things said (p. 136) ; But whether 
 any provision is made for afterborn children or not, the will, 
 under the statute, must still remain as originally made, **if it 
 shall appear by such will that it was the intention of the testa- 
 tor to disinherit such child or children," In Laurie 
 V. Radnitzer,^^ the same doctrine was applied, where the 
 will contained nothing from which it could justly be said the 
 testator did not intend the afterborn child should inherit. The 
 court holding, that it does not appear by the will in question, 
 expressly or by implication, that the testator intended to dis- 
 inherit the child in question, and that such child did inherit 
 under the section of the statute.^^ 
 
 107. Mother's will attempting to provide for her children, 
 by her own act, failed. In Oshorn v. Jefferson National 
 Banli,^'' the testatrix, soon after her marriage, being about 
 to go abroad, made and published her last will and testament. 
 
 24—116 111. 130. 26— See Sherrer v. Brown, 5 
 
 25—166 111. 609. Colo. Ct. of App. 255, 
 
 27—116 111. 130.
 
 WILLS— CONTINUED. 63 
 
 One of the paragraphs of the will, as shown by the record of 
 the ease, is as follows: "In ease my husband, Francis, shall 
 not survive me, and I shall die leaving a child or children, then 
 I give, devise and bequeath unto such child^ or if there be more 
 than one, then to such children, forever, all my estate, property 
 and effects, real and personal, in whatever it may consist or 
 wherever situated at the time of my decease." The testatrix 
 died in 1880, leaving her surviving three children, born after 
 the execution of the will, and her husband. Held, that the will 
 showed a clear intention on the part of the testatrix to disin- 
 herit her afterborn children, in case of her husband surviving 
 her, the court saying : The testatrix in this case had the power 
 to disinherit her afterborn children, and she has seen proper 
 to do it upon a contingency which has happened, and great as 
 the hardship to them may be, we feel constrained to hold that 
 the will, under the statute, is valid, and must be enforced as 
 their mother made it and allowed it to remain unrevoked and 
 unchanged till her death. 
 
 108. Miscellaneous points. The marriage of testator re- 
 vokes prior will absolutely ; and means marriage of either man 
 or woman. And the presumption of law is, testator knew that 
 subsequent marriage revokes his will.^^ 
 
 109. Erasure of part of will effect. Where a bequest in a 
 will has been erased by the testator by the drawing of lines 
 across the words comprising it, the erased portion ceases to be 
 a part of the will, as much so as if it had never been inserted 
 in it.29 
 
 110. Where the codicil revokes the will. In Vestal v. Gar- 
 reft,^^ the rule is laid down that a codicil revokes the will 
 only in so far as it is clearly inconsistent therewith ; the codicil 
 in question did not revoke the devise to the daughter, but only 
 
 28— Duryea v. Duryea, 85 III. 41; 29— Hubbard v. Hubbard, 198 111. 
 McAnnulty v. McAnnulty, 120 111. 621. 
 26; Crum v. Sawyer, 132 111. 443; 30—197 111. 398. 
 Sloniger v. Sloniger, 101 111. 278; 
 Hundall v. Ham, 172 111. 82.
 
 64 THE LAW OF ESTATES. 
 
 incumbered the land given her with a life estate in favor of 
 testator's wife, especially as otherwise the fee in such land 
 would have been left intestate, and as other clauses in the will 
 giving life estates in every instance provided for a disposition 
 of the fee. The general rule applied in this case being : * ' Where 
 a codicil is appended to a will and does not contain any clause 
 of revocation, the provisions of the will are to be disturbed only 
 so far as is absolutely necessary to give effect to the provisions 
 of the codicil, and in other respects, such a will and codicil are 
 to be construed together."** 
 
 31 — Page on Wills, sec. 462, and cases cited in notes.
 
 CHAPTER VI 
 
 PROBATING WILLS IN COURTS OF PROBATE 
 
 Sec. 
 
 111. Petition to be filed, notice to 
 
 be given. 
 
 112. The facts required by peti- 
 
 tion must be stated truth- 
 fully. 
 
 113. Court of probate at subse- 
 
 quent term may set aside 
 order of probate, for fraud 
 or lack of jurisdiction. 
 
 114. Probate of will before and 
 
 after act of 1897. 
 
 115. Witnesses to will. 
 
 116. Where subscribing witnesses 
 
 to will are dead, lost will. 
 
 117. What necessary to show 
 
 Sec. 
 
 when will offered for pro- 
 bate. 
 
 118. Will to remain with clerk, 
 
 copies evidence. 
 
 119. Foreign will admitted to pro- 
 
 bate. Effect of wills proven 
 without the state. 
 
 120. Will to be recorded, notice. 
 
 certified copies as evidence. 
 
 121. Authentication of foreign 
 
 will. 
 
 122. Notice of foreign will, to ad- 
 
 verse interests. 
 
 123. Foreign wills admitted to 
 
 probate. 
 
 124. Place of probate. 
 
 Sec. 111. Petition to be filed — notice to be given. Par. 21, 
 
 section 1, chapter 148, * ' Wills, ' ' provides : ' ' That before any will 
 shall be admitted to probate the person desiring to have the same 
 probated shall file a petition in the probate court of the proper 
 county asking that said will be admitted to probate, which 
 petition shall state the time and place of the death of the 
 testator and the place of his residence at the time of his death; 
 also the names of all the heirs-at-law and the legatees, with the 
 place of residence of each, when known, and when unknown, 
 the petition shall so state, and the said petition shall be verified 
 by the affidavit of the petitioner. And thereupon the clerk of 
 said county court shall send by mail to each of said parties 
 a copy of said petition within five days after the filing thereof, 
 and not less than twenty days prior to the hearing on said peti- 
 tion. And in case the postoffice address of any of said parties 
 5 65
 
 66 THE LAW OF ESTATES. 
 
 is not shown by the said petition, then publication shall be 
 made for at least three weeks before the day set for the hear- 
 ing in a newspaper of general circulation published in the 
 county where said will is to be offered for probate, which pub- 
 lication notice shall contain the name of the testator, the heirs- 
 at-law and legatees, when known, the time and place where 
 said will is to be offered for probate: Provided, that in case 
 such a petition is not filed and a will has been deposited in said 
 county court for the space of 10 days, then it shall be the duty 
 of the county court to proceed to probate said will without 
 petition being filed, but only after having caused publication 
 and notice of the intention to probate said will to be given to 
 the parties in interest as to the court may seem proper." As 
 amended by Act in relation to the probate of wills, in force 
 July 1, 1897.1 
 
 112. The facts required must be stated correctly and truth- 
 fully. In the case of W rigid v. Simpsan,- the record 
 shows that the parties petitioning for the probate of a will, 
 knowingly and intentionally omitted the name of one of the 
 heirs-at-law, a daughter of the deceased, so that she had no 
 notice whatsoever of the order admitting the will to probate, 
 until too late to take an appeal as provided by the probate act. 
 It appears, that as soon as the heir ascertained what had been 
 done, and at a subsequent term of the probate court, she filed 
 her petition in that court, alleging, "that if she had received 
 notice, she could have made a good defense by showing, the 
 parties petitioning for probate of the will actually knew she 
 was a daughter of deceased, and should have named her in the 
 petition filed by them for the probate of the will in question 
 as an heir. ' ' The court in its opinion in that case say : ' ' The 
 admission of said will to probate acted as a judgment, obtained 
 by fraud, and such judgment could be re-examined and set 
 
 1 — Starr & Curtis' Annotated 579, and cases cited; Kurd's R. S. 
 
 Statutes of Illinois, with Jones & of 111., 1905, same paragraph, sec- 
 
 Addington's Supplements thereto, tion and chapter, p. 2054. 
 
 Vol. 4, pp. 1290, 1291; Vol. 5, p. 2—200 111. 62.
 
 PROBATING WILLS. 67 
 
 aside at a subsequent term of the probate court by the party- 
 aggrieved by the fraud, under the well settled rule of law, 
 that a court may protect its own dignity and prevent itself 
 from being made an instrument in the hands of a designing 
 man to accomplish a wrong." In applying this rule, however, 
 the court specifically states, that no question of the rights of 
 third parties arise on the record.^ 
 
 113. The Court of Probate at a subsequent term may set 
 aside its order of probate where fraud is shown, or it is lacking 
 in jurisdiction. In Wt-ight v. Simpson,'^ cited in the pre- 
 ceding section, it is also said: That a compliance with the 
 statute is necessary and requisite to the probate of a will ; that 
 the probate court is warranted in setting aside the probate of 
 a will after the lapse of the term of such court, at which the 
 order of probate was obtained in consequence of fraudulent 
 acts, notwithstanding the aggrieved party has filed a bill in 
 chancery to contest the will and its probate. In the case of 
 Davis V. Vpson,^ it is held: It is not within the gen- 
 eral jurisdiction of courts of equity (in the absence of enabling 
 statutes), to entertain bills to set aside the probate of will on 
 the ground the probate court was lacking in jurisdic- 
 tion.^ But if the probate court was lacking in jurisdic- 
 tion of the subject matter, as found by the appellate court, the 
 judgment admitting the will- to probate could be revoked by 
 motion entered either at the term at which the judgment was 
 made or at any subsequent term. If jurisdiction was lacking, 
 the proceedings resulting in the admission of the will and 
 codicil to probate is void, and may be set aside at any time 
 by motion in the probate court. 
 
 114. The probate of a will before and after the act of 1897. 
 
 Prior to the act in question, the probate of a will was an ex 
 
 3— Bateman v. Reitler, 19 Colo. 6— Luther v. Luther, 122 111. 
 
 547. 558; 23 Am. & Eng. Enc'y of La-w- 
 
 4—200 111. 56. (2d Ed.), 136, 138. 
 5—209 111. 211.
 
 68 THE LAW OF ESTATES. 
 
 parte proceeding, wherein the inquiry of the court was limited 
 to the determination of the facts pertaining to the execution 
 of the will specified in section 2 of the act entitled ''Wills." 
 That section contemplated no contest, and required no citation 
 of the heirs-at-law and legatees or other representatives of the 
 testator. The act of 1897 does require notice to such par- 
 ties, and is in fact preliminary to a contest, and where, under 
 the late act for the probate of the willj which must be read in 
 connection with section 7 of the same act, the probate is de- 
 nied, no contest can be had in chancery, the remedy is by ap- 
 peal.'^ 
 
 115. Witnesses to will. Section 3 of the act relating to 
 Wills empowers the court of probate to compel the attend- 
 ance of attesting witnesses, who may be fined and imprisoned 
 if they fail to appear w^hen duly summoned; if the witness 
 should be a non-resident a dedimus protestatum may issue 
 from the court, with interrogatories in chief and cross for 
 such witness to answer, directed to officers authorized by law 
 to take evidence and administer oaths.^ 
 
 116. Where subscribing witnesses to will are dead — lost 
 
 will. If the wall appears to have been regularly executed and 
 the signatures of the testator and of the deceased subscribing 
 witnesses are proved to be genuine, the inference arises that 
 the witnesses believed the testator to be of sound mind and 
 memory, even though there is no recital to that effect in the 
 attestation clause, and there is proof that the testator at the 
 time the will was made, transacted intelligently the ordinary 
 business affairs of life. The opinion was rendered in connec- 
 tion with the construction of section 2, chapter 148, of wills; 
 and section 6 of the same act providing for proof of hand 
 writing of deceased witnesses and for the taking of secondary 
 
 7 — Clausennius v. Clausennius, Addington's Supplements thereto, 
 
 179 111. 552; Wright v. Simpson, Vol. 3, pp. 4033, 4034 and cases 
 
 200 111. 63. cited; Kurd's R. S. of 111., 1905, 
 
 S — Starr & Curtis' Annotated same section and chapter, p. 2050. 
 Statutes of Illinois, with Jones &
 
 PROBATING WILLS. 69 
 
 evidence, in "all cases where any one or more of the witnesses 
 of any will, testament or codicil, shall die, become insane, or 
 remove to parts unknown to parties concerned, so that his or 
 her testimony cannot be procured," etc. Moore v. Moore.^ 
 It appears to be the established law, that where a 
 written instrument has in fact been made, executed and deliv- 
 ered, and afterwards lost or destroyed, or not produced under 
 proper notice to the party having possession of the same, a 
 legal presumption arises that such instrument, if a will, was 
 destroyed by the testator or lost or destroyed by the party hav- 
 ing possession of the same when such is traced into his pos- 
 session ; and such presumption is against the party having pos- 
 session when the will is not produced.^^ The pre- 
 sumption is rebuttable; Bedfield on Wills.^''^ In the 
 matter of Page, Administrator,^ 2 ^j^g cases cited were 
 fully reviewed, the court holding that section 6 of the 
 statute of wills, relating to the proof of wills when an attest- 
 ing witness is dead, applies to lost or destroyed wills the same 
 as to wills produced before the court. In this country, the 
 ruling is general, that a will may be established by one, only, 
 of the attesting witnesses, if he can testify to a compliance 
 with the statute relating to its execution. This does not, how- 
 ever, dispense with the necessity of the will being attested by 
 two witnesses; and this rule applies equally to a lost or de- 
 stroyed will. The contents of a lost or destroyed will may be 
 proved by the testimony of a single witness. The declarations, 
 written or oral, made by a testator after the execution of his 
 will, are, in the event of its loss admissible, not only to prove 
 that it has not been cancelled, but also as secondary evidence 
 of its contents. Thus, if a testator were to say, "when I am 
 
 9 — 201 111. 268. presumption is clearly stated in 
 
 10— Moore V. Wright, 90 111. 470; Betts v. Jackson, 6 Wend. 173; 
 
 Williams v. Case, 79 111. 356; Wing Knapp v. Knapp, 10 N. Y. 276; 
 
 V. Siierrer, 77 111. 200; Rhode v. Chisholm v. Ben, 7 B. Mon. 408; 
 
 McLean, 101 111. 467; Spencer v. Smock v. Smook, 11 N. J. Eq. 156. 
 
 Boardman, 118 111. 553; Redfield 11— P. 307, Sec. 8; p. 348, Sec, 
 
 on Wills, p. 307, Sec. 8; p. 348, 9, and notes. 
 
 Sec. 9, and note 14. The rule of 12— Page Adm'r, 118, 576.
 
 70 THE LAW OF ESTATES. 
 
 dead, you will find my will in such a place," or, "I have left 
 my estate of Blackacre to my son John," or "I have left 5,000 
 pounds sterling to my daughter Mary," such, or similar dec- 
 larations, would be receivable in evidence to show that the will 
 was, so far as was known to the testator, in existence at the 
 time they were made.^^ 
 
 So where the subscribing witnesses to a will are dead, and 
 there is no formal recital in the attestation clause that they 
 "believed the testator to be of sound mind and memory," and 
 the will on its face appears to be regularly executed, and the 
 signatures of the testator and the witnesses are shown to be 
 genuine, and there is proof that the testator, at the time the 
 will was made, transacted intelligently the ordinary business 
 affairs of life, such will is prima facie entitled to probate.^"* 
 
 117. What necessary to show when vdll offered for probate. 
 In the court of probate four general requisites are necessary 
 to entitle a will to probate. First: The instrument offered 
 must be in writing and signed by the testator or testatrix, or 
 in his or her presence by some one under his or her direction. 
 Second : It must be attested by two or more credible and com- 
 petent witnesses and two witnesses must prove that they saw 
 the testator or testatrix sign the will in their presence, or that 
 he or she acknowledged the same to be his or her act and deed. 
 Third : The witnesses must swear that they believed the testa- 
 tor or testatrix to be of sound mind and memory at the time 
 of signing and acknowledging the same. Fourth: That the 
 testator was 21 years of age, or that the testatrix was 18 years 
 or more of age at that time ; that there was no fraud, compul- 
 sion, undue influence or improper conduct w^hen the will was 
 signed. The right to probate the will is not dependent upon 
 
 13— Anderson v. Irwin, 101 111. Vol. 3, pp. 4026, 4035; Vol. 4, pp. 
 
 413. The latter case establishes a 1284, 1286; Vol. 5, p. 576, and cases 
 
 lost will by the evidence of one cited by the authors in each vol- 
 
 witness in a Court of Chancery, ume; Kurd's R. S. of 111., 1905, pp. 
 
 See Starr & Curtis' Annotated 2050, 2051. 
 
 Statutes of Illinois, with Jones & 14 — More v. More, 211 111. 271, 
 
 Addington's Supplements thereto, and cases reviewed in that opinion.
 
 PROBATING WILLS. 71 
 
 the belief of the attesting witnesses formed after their attesta- 
 tion. The will, the certificates and the oath of the subscribing 
 witnesses, make a prima facie case.^^ It is also proper to show 
 all that transpired at the time of the execution of the will; 
 the acts and declarations of the parties participating are admis- 
 sible as of the res gestae}^ No collateral attack can be made, 
 however, upon an order admitting a will to probate,^''' 
 
 But it is held improper to put the following interrogatories 
 to a subscribing witness, viz. : Whether he would have signed 
 the instrument except in the presence of the testatrix; and, 
 whether all the things mentioned in the attestation clause were 
 complied with? Such interrogatories and answers should be 
 suppressed.i^ 
 
 118. Wills to remain with clerk — copies evidence. Section 
 18 of the act relating to wills provides: "All original wills, 
 together with the probate thereof, shall remain in the office 
 of the clerk of the county court of the proper county; and 
 copies of the record of the same, and copies of the exemplifica- 
 tion of foreign wills recorded in said office as in this act pro- 
 vided, duly certified under the hand of the clerk and the seal 
 of said court, shall be evidence in any court of law or equity 
 in this state.i^ 
 
 119. Foreign wills admitted to probate — effect of wills 
 proven without the state. Section 9, chapter 148, of Wills pro- 
 
 15— Chapter 148, entitled Wills, v. Brown, 183 111. 46; Waugh v. 
 
 Sec. 2, Kurd's R. S. of 111., 1905. Moan, 200 111. 298. 
 
 See Authorities {Ante 116). No- 18— Green v. Hitchcock, 222 111. 
 
 ble's Will, 124 111. 266; Canatsey v. 216. 
 
 Canatsey, 130 111. 397; Gould v. 19— R. S. 1845, p. 540, Sec. 16. 
 
 Theological Seminary, 189 111. 290; Bliss v. Seeley, 191 111. 471; Harri- 
 
 Critz V. Pierce, 106 111. 167; Brice son v. Wetherby, ISO 111. 434; Starr 
 
 V. Hall, 120 111. 597; Waugh v. & Curtis' Annotated Statutes of II- 
 
 Moan, 200 111. 298. linois, with Jones & Addington's 
 
 16 — Cheney v. H. F. & F. Mis- Supplements thereto. Vol. 3, p. 
 
 slonary Society, 28 111. App. 621. 4045; Vol. 5, p. 579, and cases cited 
 
 17 — Memorial Home v. Price, by the author in each volume; 
 195 111. 282; Keister v. Keister, 178 Kurd's R. S. of 111., 1905, same sec- 
 Ill. 106; Chicago Title & Trust Co. tion and chapter, p. 2053.
 
 72 THE LAW OF ESTATES. 
 
 vides: "All Avills, testaments and codicils, or authenticated 
 copies thereof, proven according to the laws of any of the 
 United States, or the Territories thereof, or of any country out 
 of the limits of the United States, and touching or concerning 
 estate within this State, accompanied with the certificate of 
 the proper officer or officers that said will, testament or codicil, 
 or copy thereof was duly executed and proved, agreeable to 
 the laws and usages of that state or country in which the same 
 was executed, shall be recorded as aforesaid, and shall be good 
 and available in law, in like manner as wills made and exe- 
 cuted in this state." A certificate of probate in New York, 
 held sufficient, and will admitted in evidence, though not filed 
 in probate court, and not recorded in this state. ^o 
 
 120. Will to be recoirded — notice— certified copies evidence. 
 Section 33, chapter 30, entitled "Conveyances," provides: 
 "All original wills duly proved, or copies thereof duly 
 certified, according to law, and exemplifications of the record 
 of foreign wills made in pursuance of the law of congress in 
 relation to records in foreign states, may be recorded in the 
 same office where deeds and other instruments concerning real 
 estate may be required to be recorded; and the same shall be 
 notice from the date of filing the same for record as in other 
 cases, and certified copies of the record thereof shall be evi- 
 dence to the same extent as the certified copies of the records 
 of deeds. "21 
 
 20 — Newman v. Willetts, 52 111. S. of Illinois, 1905, same sections 
 
 98; Shepard v. Carrill, 19 111. 313; and chapter, p. 2052. 
 
 Gardner V. Ladue, 47 111. 21; Corri- 21 — Starr & Curtis' Annotated 
 
 gan V. Jones, 14 Colo. 311; Sees. Statutes of Illinois, with Jones & 
 
 9, 10, Chapt 148 "Wills;" Starr & Addington's Supplements thereto. 
 
 Curtis' Annotated Statutes of Illi- Vol. 1, p. 954, Vol. 4, p. 258, and 
 
 nois, with Jones & Addington's cases cited in volumes noted. 
 
 Supplements thereto. Vol. 3, pp. Kurd's R. S. of 111., 1905, same sec- 
 
 4040, 4041; Vol. 4, p. 1289, and tion and chapter, p. 470. 
 cases cited in volumes; Kurd's R.
 
 PROBATING WILLS. 73 
 
 121. Authentication of foreign will. This must be as pre- 
 scribed by act of congress, and approved agreeably to the laws 
 of probate.22 
 
 122. Notice of foreign will. To persons acquiring interests 
 adverse to devisees, is dependent upon observance of statutory 
 formalities. It will not be notice unless authentication and 
 certification is as provided by statute. The certificate to for- 
 eign will should state, that it is duly executed and proved 
 agreeable to laws of state of probate.-^ The words in section 9 of 
 the statute of this state "shall be recorded as aforesaid," evi- 
 dently refer to the recording by the clerk of the county court in 
 a book to be provided by him, as stated in section 2 of the Stat- 
 ute of Wills. On February 14, 1857, an act of the legislature 
 was passed, which with slight changes and additions, appears 
 now in the Revised Statutes as section 33 of the act in regard 
 to conveyances, to-wit: "The same shall be notice from date 
 of filing the same for record as in other cases," were intended 
 to have some meaning. If "exemplifications of the record of 
 foreign wills made in pursuance to the law of congress in rela- 
 tion to records in foreign states," operate as notice from the 
 date of filing the same for record in the recorder's office of a 
 county in this state, then third persons, acquiring interests in 
 land adverse to the devisees in such wills, cannot be said to 
 have constructive notice of such wills when such exemplifica- 
 tions are not so recorded.^* 
 
 123. Foreign wills admitted to probate. Section 10 of the 
 act relating to wills, chapter 148, provides: "All wills, testa- 
 ments and codicils, which heretofore have been, or shall here- 
 after be made, executed and published out of this state may be 
 admitted to probate in any county in this state in which the 
 
 22 — Harrison v. Wetherby, 180 Harrison v. Wetherby, ISO 111. 438. 
 
 111. 438; Bliss v. Seeley, 191 111. (Note. — In Bliss v. Seeley, supra, 
 
 473; Lewis v. Barnhart, 145 U. S. the statute of Illinois is construed 
 
 79. and applied, j 
 
 23 — Bliss V. Seeley, 191, 473; 24 — See Statute quoted and cited 
 
 Lewis V. Barnhart, 145 U. S. 79; (Ante 120).
 
 71 THE LAW OF ESTATES. 
 
 testator may have been seized of lands, or other real estate, 
 at the time of his death, in the same manner^ and upon like 
 proof as if the same had been made, executed and published 
 in this state, whether such will, testament or codicil has first 
 been probated in the state, territory or country in which it was 
 made and declared or not. And all original wills, or copies 
 thereof, duly certified according to law, or exemplifications 
 from the records in pursuance to the law of Congress in rela- 
 tion to records in foreign states, may be recorded as aforesaid, 
 and shall be good and available in law, the same as wills proved 
 in such county court. "^^ 
 
 124. Place of probate. Section 11 of the act relating to 
 wills provides: "If any testator or testatrix shall have a man- 
 sion house or known place of residence, his or her will shall 
 be proved in the county court of the county wherein such 
 mansion house or place of residence shall be. If he or she has 
 no place of residence, and lands be devised in his or her will, 
 it shall be proved in the court of the county wherein the lands 
 lie, or in one of them, where there shall be land in several 
 different counties ; and if he or she have no such known place 
 of residence, and there be no lands devised in such will, the 
 same may be proved either in the county where the testator 
 or testatrix shall have died, or that wherein his or her estate, 
 or the greater part thereof, shall lie.^s 
 
 25— See "Conveyance Act, Chapt. 26— Starr & Curtis' Annotated 
 
 30. Sees. 33-35. (Ante 120 of this Statutes of Illinois, with Jones & 
 
 worlc.) See also Starr & Curtis' Addington's Supplements thereto. 
 
 Annotated Statutes of Illinois, Vol. 3, p. 4041, and cases cited; 
 
 with Jones & Addington's Supple- Kurd's R. S. of 111., same section 
 
 ments thereto. Vol. 3, p. 4040. and chapter, p. 2052; Wild v. 
 
 Kurd's R. S. of 111., 1905, same sec- Sweeney, 84 111. 243. 
 tions and chapt, p. 2052.
 
 CHAPTER VII 
 
 CONTEST OF WILL 
 
 Sec. 
 
 125. Will contested, statutory 
 duty defined. 
 
 126. The statute construed. 
 
 127. Section seven, a grant of 
 
 jurisdiction. 
 127a. Luther v. Luther. 
 
 128. Section construed to be a 
 
 statute of repose. 
 
 Sec. 
 
 129. Appeals from order allowing 
 
 or refusing probate of will. 
 
 130. The practice in appeals. 
 
 131. The burden of proof. Prac- 
 
 tice, evidence. 
 
 132. Concurrent and cumulative 
 
 remedies are not forbidden. 
 
 Sec. 125. Will contested. Section 7 of chapter 148, entitled 
 "Wills," is as follows: "When any will, testament or codicil 
 shall be exhibited in the county court for probate thereof as 
 aforesaid, it shall be the duty of the court to receive the pro- 
 bate of the same without delay and to grant letters testa- 
 mentary thereon to the person or persons entitled, and to do 
 all other needful acts to enable the parties concerned to make 
 settlement of the estate at as early day as shall be consistent 
 with the right of the respective persons interested therein: 
 Provided, however, that if any person interested shall, within 
 one (1) year after the probate of any such will, testament or co- 
 dicil in the county court as aforesaid, appear and by his or her 
 bill in chancery contest the validity of the same, an issue at law 
 shall be made up whether the writing produced be the will of 
 the testator or testatrix or not, which shall be tried by a jury 
 in the circuit court of the county wherein such will, testament 
 or codicil shall have been proven and recorded as aforesaid, 
 according to the practice in courts of chancery in similar cases ; 
 but if no such person shall appear within the time aforesaid, 
 the probate shall be forever binding and conclusive on all of 
 the parties concerned, saving to infants or non compos mentis 
 the like period after the removal of their respective disabilities. 
 
 75
 
 76 THE LAW OF ESTATES. 
 
 And in all such trials by a jury as aforesaid the certificate 
 of the oath of the witnesses at the time of the first probate, 
 shall be admitted as evidence and to have such weight as the 
 jury shall think it may deserve. "^ 
 
 This statute compared with former statute, is changed in 
 punctuation slightly; also the words "rights" to "right," the 
 singular being now used. The material change, however, is 
 that the present statute provides that a bill in chancery to con- 
 test must be filed in one year instead of two as formerly. 
 
 126. The statute construed. It was settled in People v. 
 Knickerbocker,- as applied to the court of probate, that 
 the probate of a will is a judicial act, and that the words 
 "without delay" does not require the probate court to proceed 
 immediately, but without unnecessary delay to grant letters 
 testamentary. In McDonald v. White,^ the terms "par- 
 ties interested" mean those upon whom the law imposes 
 the duty of settling the estate, and the words "interested 
 therein" mean those interested in the settlement of the estate, 
 that is, those who will be directly affected, in a pecuniary sense, 
 by its settlement ; and the words, ' ' any person interested, ' ' can 
 only mean one of the same class of persons. The interest must 
 be a direct pecuniary interest affected by the probate of the 
 will, for the reference is to an existing interest, and not to an 
 interest which may be subsequently acquired, since, in that 
 event, the language would have been, "or any one who shall 
 within (one) year, be interested, and appear, and by his or 
 her bill in chancery," etc. That this is the correct meaning of 
 
 1 — As amended by laws of 1903, inclusive, and cases cited; Kurd's 
 
 p. 355. Approved May 15, 1903. In R. S. of 111., 1905, same section and 
 
 force July 1, 1903. See Starr & chapter, pp. 2051. 2052. See also 
 
 Curtis' Annotated Statutes of Illi- the following cases, construing 
 
 nois, with Jones & Addington's and applying the statute in ques- 
 
 Supplements thereto. Vol. 3, pp. tion: Davis v. Upson, 209 111. 206; 
 
 4035 to 4039, and cases cited; Vol. Sharp v. Sharp, 213 111. 332; Da- 
 
 4, pp. 1286 to 1289 inclusive, and vidson v. Redden, 214 111. 61. 
 
 cases cited; Vol. 5, pp. 576 to 578 2—114 111. 539. 
 
 3—130 111. 493.
 
 CONTEST OF WILL. 77 
 
 the words is further manifested by reference to section 14 of 
 the same chapter, where it is provided that "appeals may be 
 taken from the order of the county court, allowing or disallow- 
 ing any will to probate, to the circuit court of the same county, ' ' 
 by any person interested "in such will, in the same manner as 
 appeals may be taken from justices of the peace, etc.," and 
 precisely the same reasons exist why the legislature should 
 restrict the right of contest under section 7, as the right of 
 appeal under section 14." 
 
 The time fixed in the statute for filing bill to contest will 
 is held to be jurisdictional ; and the probate of a will is not com- 
 plete while an appeal from the order admitting or refusing a 
 will to probate is pending.^ 
 
 127. Section 7 construed a grant of jurisdiction. The sev- 
 enth section of the statute of wills, allowing the contest of 
 wills by bill in chancery at any time (fixed by the statute) 
 after their probate, is held upon construction not to be a stat- 
 ute of limitation, but a mere grant of jurisdiction, to be exer- 
 cised only in case it is invoked within the time prescribed by 
 the statute. Jurisdiction conferred extends to an investiga- 
 tion of every ground upon which the validity of the will may 
 be assailed. Courts of equity in the state of Illinois have no 
 jurisdiction to contest a will or impeach a judgment of pro- 
 bate, except such jurisdiction has been conferred by statute.^ 
 
 4— O'Brien v. Bonfield, 220 111. amended May 15, 1903, will give 
 219. the legislative enactments as to 
 
 5— Ryhner v. Frank, 105 111. 326 
 Luther v. Luther, 122 111. 558 
 Spaulding v. White, 173 111. 130 
 Wheeler v. Wheeler, 134 111. 522 
 McNulta V. Lockridge, 137 111. 270 
 Jele V. Lemberger, 163 111. 338 
 Wright V. Simpson, 200 111. 63 
 
 the section of the statute in ques- 
 tion. The section of the statute as 
 originally passed was taken from 
 the Kentucky Statute founded up- 
 on the early Virginia Statute; 
 therefore since 1829, this section 
 of the statute (now known as sec- 
 
 Chicago Title & Trust Co. v. Brown, tion 7 of the Act relating to 
 183 111. 42. This statute first passed "Wills"), has been the law of Illi- 
 in 1829. (Laws of 1829, p. 193, nois. The amendments being but 
 Sec. 5, Statutes of 1845, Chapt. 109, slight and not affecting the gen- 
 Sec. 6; Statutes of 1872, Chapt. 148, eral terms of the law. See Rigg 
 Sec. 7; amended April 11, 1895; v. Wilton, 13 111. 15; Will v. Will,
 
 78 THE LAW OF ESTATES. 
 
 Under the rule of construction applying to a statute of another 
 state, made a part of our laws, this section and the amendments 
 thereto have often been construed. And the construction given 
 is that placed upon the law by the courts of the state from 
 which the statute was taken.® 
 
 127a. In Luther v. Luther,'^ Mr. Justice Magruder, in 
 a very able and elaborate opinion construing this section of the 
 statute, says: "In England the probate of wills of personal 
 property was exclusively vested in the ecclesiastical courts. 
 There were two modes of probate, one ex parte, the other inter 
 partes. One was proof of the will *'in common form"; the 
 other was proof thereof *'in solemn form" or "per testes.'' 
 When a will was proven "in common form," it was taken 
 before the judge of the proper court of probate, and the 
 executor produced witnesses to prove it to be a will of the 
 deceased, without citing or giving notice to the parties inter- 
 ested ; it was admitted to probate in the absence of such parties. 
 When, however, a will was proven "in solemn form," it was 
 done upon petition of the proponent for a hearing, and all such 
 persons as had an interest, such as the widow, heirs, next of 
 kin, etc., were notified and cited to be present at the probat- 
 ing of the testament; interrogatories were propounded to the 
 witnesses by those producing the will and by the adverse party. 
 The executor of the will, proved "in common form," might 
 at any time within thirty years be compelled by a person, hav- 
 ing an interest, to prove it per testes ' ' in solemn form. ' '^ In Eng- 
 
 5 Litt. (Ky.) 273; 12 Henning's Streeter v. People, 69 111. 597; 
 
 Virginia Statutes at Large, p. 142, Gage v. Smith, 79 111. 219; Martin 
 
 pp. 454, 455; 1 Little's Laws of v. Judd, 81 111. 488; Hopkins v. 
 
 Kentucky, p. 611, Sec. 293 and Medley, 97 111. 402; Luther v. Lu- 
 
 notes. For complete history of ther, 122 111. 558. 
 
 statutes in question see Luther v. 7 — 122 111. 558. 
 
 Luther, 122 111. 558, and its appli- 8 — 1 Williams on Executors (6th 
 
 cation. Trust Co. v. Brown, 183 111. Am. Ed.), foot pp. 325, 333, 334 
 
 42; O'Brien v. Bonfield, 220 111. Waters v. Stickney, 12 Allen 1 
 
 219. Redmond v. Collins, 4 Dev. 430 
 
 6 — Campbell v. Quinn, 3 Scam. Etheridge v. Corbrew, 3 Jones 14. 
 
 (111.) 288; Ring v. Wilton, 13 111. iVofe.— The following cases, in 
 
 15; Grattan v. Grattan, 18 111. 162; addition to those above cited, show
 
 CONTEST OF WILL. 79 
 
 land there was no court for the probate of wills of realty. The 
 validity of the will was decided incidentally in controversies con- 
 cerning rights of property claimed under or against it. These 
 controversies were settled in the appropriate jurisdiction. The 
 title of the heirs was in its nature legal, and might be asserted in 
 an action of ejectment. The statute of Virginia, upon which our 
 own and that of Kentucky are based, provided for the probate 
 *'in common form" or ex parte of will of both personalty and 
 realty, and also extended the privilege of requiring a re-probate 
 "in solemn form" to wills of realty as well as those of person- 
 alty. Such re-probate was to be asked within five years instead 
 of three years (under the act of 1872, in force in Illinois at the 
 time of this opinion). Those to be cited were the persons inter- 
 ested in sustaining rather than those interested in setting 
 aside the will. The contest was to be decided in a court 
 of chancery through the instrumentality of a jury rather 
 than in the original court of probate. The words of 
 section 7 of our act in regard to wills: "When any will, etc., 
 shall be exhibited in the county court for probate, as aforesaid^ 
 it shall be the duty of the county court to receive probate of 
 the same without delay," refers back to section 2 of the act. 
 Section 2 provides for the ex parte proof of wills on the testi- 
 mony of the attesting witnesses, which is analogous to the 
 probate in England "in common form." The subsequent pro- 
 ceedings by bill in equity, imder section 7, to contest the valid- 
 ity of the will, is analogous to the probate "in solemn form" 
 by the executor upon being cited in by the next of kin. Both 
 
 the American Courts retain the 13 Ga. 171; Kinnard v. Riddle- 
 practice of the English court in re- hoover, 3 Rich. (S. C.) 258; Noyes 
 quiring probate and re-probate in v. Barber, 4 N. H. 406; George v. 
 common form and solemn form. George, 47 id. 44; Wall v. Wall, 30 
 Colier V. Idley, 1 Bradf. 94; Camp- Miss. 91; Hamberlin v. Terry, 7 
 hell V. Logan, 2 id. 90; Proctor v. Howe (Miss.) 148; Cowden v. Dob- 
 Wanamaker, 1 Barb. Ch. 302; Gib- bins, 5 S. & M. 82; Martin v. Per- 
 son V. Lane, 9 Yerg (Tenn.) 475; kins, 56 Miss. 204; Tucker v. 
 Townsend v. Townsend, 4 Coldw. Whitehead, 58 id. 762; Barksdale 
 (Tenn.) 70; Brown v. Anderson, v. Hopkins, 23 Ga. 332; Hubbard v. 
 
 Hubbard, 7 Ore. 42.
 
 80 THE LAW OF ESTATES. 
 
 stages of the proceedings, however, differ from the former 
 English probate in that they extend to the real estate as weH 
 as the personal property.^ 
 
 128. Section 7 is construed to be a statute of repose. In the 
 
 case of Chicago Title and Trust Co. v. Brown,^^ a petition 
 was filed in the probate court, seeking to set aside the probate 
 of a will in that court seven and one-half years after the same 
 was admitted to probate. On page 50 of the opinion, speaking 
 of the exercise of equitable jurisdiction by probate courts, 
 say: "Conceding this to be true, and treating the proceed- 
 ing instituted by appellees as a proceeding in the probate court 
 in chancery, it cannot be sustained, because the jurisdiction 
 of the court was not invoked within the time prescribed by the 
 statute. If the probate court is clothed with equitable jurisdic- 
 tion in a case of this character, that jurisdiction must be exer- 
 cised in the same way and within the same time that the cir- 
 cuit court might entertain a bill had one been filed in that 
 court," page 51. The act confers jurisdiction on a court of 
 equity, provided the aid of the court shall be invoked within 
 a specified time. "While the act is one conferring jurisdiction, 
 yet it may also be regarded as a statute of repose." In view 
 of the large quantity of real estate transmitted annually by 
 will, it is a question of great public importance whether the 
 probate of a will shall remain open for contest (three years) 
 as provided by the statute, or whether the time shall remain 
 at the option of the party who may seek to institute proceed- 
 ings to contest. Doubtless the importance of the question 
 was duly appreciated and considered by the legislature, as the 
 
 9— McArthur v. Scott, 113 U. S. Gratt. 18; Connolly v. Connolly, 32 
 
 340. id. 657; Rogers v. Thomas, 1 B. 
 
 10—183 111. 46. Section 7 of the Mon. 390; Bradford v. Andrews, 20 
 
 Illinois Act, has been construed Ohio St. 208; Mears v. Mears, 15 
 
 a statute of limitations. Heirs of id. 96; McArthur v. Scott, 113 U. S. 
 
 Critz V. Pierce, 106 111. 167; Brown 340; Noyes v. Barker, 4 N. H. 406, 
 
 V. Riggin, 94 id. 560; Well's Will, also construed a grant of jurisdic- 
 
 5 Litt. 273; Coalters v. Bryan, 1 tion (ante 127), and cases there 
 
 cited.
 
 CONTEST OF WILL. 81 
 
 time within which a contest might be instituted by bill was 
 first five years, then reduced to three, then to two, and now to 
 one year.^^ 
 
 129. Appeals from the order allowing or refusing probate 
 of will. Section 13, chapter 148, entitled ''Wills," provides: 
 "That when the probate of a will shall have been refused and 
 an appeal shall have been taken from the order or decision of 
 the court, refusing to admit such will to probate, into the cir- 
 cuit court, etc., the party seeking probate of the will may sup- 
 port the same, on hearing in the circuit court, by any evidence 
 competent to establish a will in chancery ; and in case probate 
 is allowed, the will shall be admitted to probate, liable, how- 
 ever, to be subsequently contested, as provided in case of wills 
 admitted to probate in the first instance, "^^ Under 
 section 14 of the act entitled wills, authorizing ap- 
 peals to be taken from the order of the county court, allowing 
 or disallowing any will to probate, into the circuit court, of the 
 same county, by any person interested in the will, in the same 
 time and manner as appeals may be taken from justices of the 
 peace, except that the appeal bond and security may be ap- 
 proved by the clerk of the county court; and the trial of such 
 appeal shall be de novo}^ 
 
 130. The practice in appeals. It is the practice to try ap- 
 peals under both sections of the statute cited, by jury.^'* But 
 
 11 — And affirming the opinion in R. S. of III,, 1905, same section 
 
 Chicago Title & Trust Co, v, and chapter, p. 2053, See, also 
 
 Brown, 183 111, 46; Davis v. Up- O'Brien v, Bonfield, 220 111. 219. 
 son, 209 111. 206; Sharp v. Sharp, 13— Starr & Curtis' Annotated 
 
 213 111, 332; O'Brien v. Bonfield, Statutes of Illinois, with Jones & 
 
 220 111. 219. Addington's Supplements thereto, 
 
 12— Starr & Curtis' Annotated Vol. 3, p. 4043; Vol. 4, p. 1290; Vol. 
 
 Statutes of Illinois, with Jones & 5, p. 579, and cases cited in each 
 
 Addington's Supplements thereto, volume under section in question; 
 
 Vol. 3. pp. 4042, 4043; Vol. 4, pp. see also Kurd's R. S. of III., 1905. 
 
 1289, 1290; Vol. 5, pp. 578, 579, and p. 2053, same statute, chapter 79, 
 
 cases cited in foot notes to section par. 115, p. 1286. 
 of statute in each volume; Kurd's 14 — Walker v. Walker, 2 Scam. 
 6
 
 82 THE LAW OF ESTATES. 
 
 by consent circuit court instead of trying case de novo may try 
 case on record of evidence heard in probate court.^^ Probate 
 of will is not complete while appeal is pending.!^ 
 
 131. The burden of proof is on the party affirming the 
 validity of the will, he having the right to open and close the 
 case.i 7 
 
 On appeal to circuit court from order admitting will to pro- 
 bate, it is proper in circuit court to exclude all evidence of 
 execution of will and sanity of testator, except testimony of 
 subscribing witnesses to will.^^ An appeal from a judgment ad- 
 mitting a will to probate does not broaden the inquiry, so as to 
 entitle a party to try question of sanity and undue influence be- 
 fore a jury; if a party so interested desires to broaden the in- 
 quiry and challenge the mental capacity of the testator to exe- 
 cute the instrument, or show he was unduly or improperly 
 influenced to execute it, and to have such question tried by a 
 jury he must resort to a bill in chancery.^ ^ A clear prepon- 
 derance is essential to reverse a judgment admitting a will to 
 probate.2o The appeal must be taken within the time prescribed 
 by statute.2i The person interested alone has the right of ap- 
 peal, and he must be one having a vested as distinguished from 
 a contingent interest.22 
 
 On appeal to circuit court refusing probate of will under 
 section 13, aforesaid, appellant may prove execution of will 
 and sanity of testator by any legitimate evidence ; such appel- 
 
 (111.) 291; Schenck v. Schenck, 80 256; Crowley v. Crowley, 80 111. 
 
 111. App. 617; White Memorial 469; Heirs of Critz v. Pierce, 106 
 
 Home V. Price, 195 111. 282. 111. 167; Brice v. Hall, 120 111. 597; 
 
 15— Doran v. Mullen, 78 111. 342. Thompson v. Owen, 174 111. 232. 
 
 16 — O'Brien v. Bonfield, 220 111. 19 — Clausennius v. Clausennius, 
 
 219. 179 111. 545. 
 
 17— Brooks v. Barrett, 17 Pick. 20— 7n re Estate of Kohley, 200 
 
 94; Potter v. Potter, 41 111. 801; 111. 195. 
 
 Hollaway v. Galloway, 51 111. 159; 21 — Wright v. Simpson, 200 111. 
 
 Tayor v. Cox, 153 111. 22; Bevelotv. 63. 
 
 Lester, 153 111. 625 ; In re Estate of 22 — People v. McCormick, 201 111. 
 
 Kohley, 200 111. 192. 313. 
 
 18 — Anderson v. Black, 43 111.
 
 CONTEST OF WILL. 83 
 
 lant is not limited to testimony of attesting witnesses.^^ Attes- 
 tation clause by witness is competent upon appeal from order 
 refusing probate, in connection with testimony of such, witness. 
 And the impeachment of attesting witness by proponent, is com- 
 petent.24 
 
 On appeal admitting will to probate, the contestants may in- 
 troduce any competent evidence for the purpose of invalidating 
 the willj upon the ground of fraud or other improper conduct ; 
 but the fact that the testatrix was in a comatose condition at 
 the time it is claimed she signed the will cannot be shown by 
 witnesses other than the subscribing witnesses upon an appeal 
 admitting will to probate.^^ 
 
 132. Concurrent and cumulative remedies are not forbidden. 
 
 In Wright v. Simpson-^ it is said: Appellee was not 
 precluded from filing her petition to set aside the order probat- 
 ing the will by the fact, that theretofore on May 1, 1901, she had 
 filed a bill in chancery to set aside the probate of the will. 
 ''Concurrent and cumulative remedies are not forbidden.^^ The 
 pendency of the bill in chancery to set aside the probate of the 
 will does not operate to abate this petition to the county court to 
 set aside such probate. If the petition to set aside the probate 
 fails, then the case begun by the filing of the bill in chancery 
 may proceed. If, however, the proceeding by petition to set 
 aside the probate of the will succeeds, the proceeding by bill 
 in chancery is unnecessary. The proceedings by petition to 
 set aside the probate is addressed to the county court, and has 
 reference to the execution of the will, w'hich is a matter for the 
 determination of the court. The proceedings by bill in chan- 
 cery is addressed to the circuit court, and requires, under the 
 
 23 — Heirs of Critz \. Pierce, 106 24— Thompson v. Owen, 174 111. 
 
 111. 167; Thompson v. Owen, 174 111. 241. 
 
 232; Masonic Orphans' Home v. 25 — Stuke v. Glacer, 223 111. 316. 
 
 Gracy, 190 111. 97; Gould v. Chica- 26—200 111. 63. 
 
 go Theological Seminary, 189 111. 27 — 8 Am. & Eng. Ency, of Law, 
 
 285; In re Estate of Kohley, 200 1st ed. p. 549, and cases cited. 
 
 111. 195; In re Tobin, 196 111. 488; Wright v. Simpson, 200 111. 63. 
 In re Robinson Will, 190 111. 95.
 
 84 THE LAW OF ESTATES. 
 
 statute, the empaneling of a jury for the purpose of trying an 
 issue of fact. The proceedings in the county court to set aside 
 the probate of the will under the act of 1897 is to a large extent 
 a proceeding in rem, while the proceeding by bill in chancery 
 in the circuit court, calling for the intervention of a jury upon 
 a question of fact, partakes of the nature of a proceeding in 
 personam. It is well settled that proceedings in rem and in 
 personam to collect the same demand, or to accomplish the 
 same object, do not necessarily interfere, until satisfaction is 
 obtained or the object secured in one of such proceedings.^^ It 
 is, moreover, a well settled principle of law that "in construing 
 a remedial statute its language, so far as is consistent with a 
 fair construction of the law, should be so interpreted as to pro- 
 mote and advance the remedy. * ' The act of 1897 above set forth 
 is a remedial statute. 29 
 
 28 — Am. & Eng. Ency. of Law, 29 — McNulta v. Lockridge, 137 
 1st ed. p. 549, and cases cited. 111. 270.
 
 CHAPTER VIII 
 
 CONSTRUCTION OF WILLS 
 
 Sec. 
 
 133. Powers of disposition and 
 
 limitations thereon. 
 
 134. Particular words construed. 
 
 135. The rule governing the mean- 
 
 ing of words. 
 
 136. What estate conveyed; words 
 
 of inheritance; quantity of 
 interest. 
 
 137. Walker v. Pritchard. 
 
 138. The rule in such case. 
 
 139. Bibbens v. Potter. 
 
 140. West V. Fitz; Giles v. Ans- 
 
 low. 
 
 141. If the instrument be doubt- 
 
 ful, precatory words will 
 
 Sec. 
 
 not be construed into a 
 declaration of trust. 
 
 142. The doctrine in respect of 
 
 the creation of trusts. 
 
 143. Devise of land held in se- 
 
 curity of a debt. 
 
 144. Estates tail. 
 
 145. Devises to a class. 
 
 146. Mather v. Mather. 
 
 147. Cheney v. Teese. 
 
 148. McCartney v. Osburn. 
 
 149. Widow's renunciation and 
 
 election. 
 
 150. Widow of illegitimate given 
 
 whole of estate. 
 
 Sec. 133. Power of disposition and limitation thereon. The 
 
 laws in force at the date of the execution of a will may be con- 
 sidered in determining the intention of the testator ; while laws 
 in force at testator's death controls rights of parties.^ The power 
 to devise by will may be enlarged or curtailed by the legisla- 
 ture.2 It has been decided, that on bill for partition and for 
 construction of will, calling for division among devisees, a decree 
 in such partition proceedings, fixing all rights, is a sufficient 
 construction of a will.3 The statutory award to widow or chil- 
 
 1 — Carpenter v. Browning, 98 111. 
 282. 
 
 2— Emmert v. Hayes, 89 111. 11. 
 
 3— Cowdry v. Hitchcock, 103 111. 
 262. See also sections 74, 76, 77, 
 chapter 3. "Administration Act," 
 Starr & Curtis' Annotated Statutes 
 of Illinois, with Jones & Adding- 
 ton's Supplements theretb, Vol. 1, 
 pp. 310, 311, 313, and cases cited; 
 
 Vol. 4, pp. 38, 39, and cases cited; 
 Vol. 5, p. 19, and cases cited. See 
 also sections 10, 12, chapters 41, 
 "Dower Act," Starr & Curtis' An- 
 notated Statutes of Illinois, with 
 Jones & Addington's Supplements 
 thereto. Vol. 2, pp. 1456 to 1462, and 
 cases cited; Vol. 2, pp. 1464 to 
 1467, and cases cited; Vol. 4, pp. 
 446, 447, and cases cited; Vol. 5, p. 
 
 85
 
 86 TPIE LAW OF ESTATES. 
 
 dren is a limitation upon power of disposition by will. Right of 
 dower, and right of surviving wife, and estate of homestead is 
 statutory limitation upon testator's power over his land in favor 
 of surviving wife and children. Under statute testator may dis- 
 pose of his property by will as he chooses, and select the objects 
 of his bounty, provided always, in so doing, he contravenes no 
 well recognized and admitted principle of public policy, or rule 
 of clear right.* Express words of limitation are not necessary 
 to create a less estate than a fee; and upon construction of a 
 will, such limitation may appear by necessary implication.^ 
 
 134. Particular words construed. "Or" construed "and" 
 where the devise was, "should one or both die before they 
 should arrive at the age of twenty-one, or either die without 
 heirs, his or their share shall be equally divided with my chil- 
 dren, and the surviving one of the two grandchildren, if any;" 
 because the estate does not go over to the ulterior devisee, 
 unless both the specified events happen; and this rule is ap- 
 plicable to real and personal estate.^ In a bequest using word 
 "fee," but making bequest over on death of donee, the word as 
 used in the will, held, to give life estate.''' "Heirs" and "heirs 
 at law," these words are construed in primary sense, unless 
 context shows intention to use words in different sense.^ The 
 word "heir" was construed "child" to carry out intention of 
 testator.^ In Beacroft v. Strawn, where the devise or conveyance 
 is to a person and the children of his body, the words are not 
 technical and the word "children" is not one of limitation 
 but of purchase, and creates a remainder. The word "chil- 
 dren" is primarilv. a word of purchase and is not to be con- 
 
 180, and cases cited. See also sec- 566; Hamlin v. United States Ex- 
 
 tions 1, 2, chapter 52, "Exemption press Co., 107 111. 443. 
 
 Act," Starr & Curtis', etc.. Vol. 2, 6— Kindig v. Deardorff, 39 111. 
 
 pp. 1865 to 1873, and cases cited; 300. 
 
 Vol. 4, pp. 614, 615, and cases cited; 7— Hatfield v. Fowler, 60 111. 45. 
 
 Vol. 5, p. 257, and cases cited. 8— Richards v. Miller, 62 111. 417; 
 
 4— Emmert v. Hayes, 89 111. 11. Bland v. Bland, 103 111. 11; Fish- 
 
 5 — Morrison v. Schorr, 197 111. back v. Joesting, 183 111. 416. 
 
 9—67 111. 28.
 
 CONSTRUCTION OF WILLS. 87 
 
 Btrued as equivalent to "heirs" in the absence of other words 
 or circumstances showing it to have been used in that sense.^** 
 
 In Bidgeway v. Underwood,^^ the words "inheriting" 
 and "inheritance" construed, referring to the same thing 
 — the distributive share of the proceeds arising from the sale 
 of the land. 
 
 In Duryea v. Duryea,^^ in general, word "survivor" will 
 be construed in its natural sense, but to carry out testa- 
 tor's intention it will be read as synonymous with the word 
 "other." The word "survive" may mean to continue to live 
 beyond a specified period, event or condition.^' 
 
 In Mather v. Mather, '^'^ a devise of "net income" of 
 realty and personalty to children for life, held, to require 
 executors to retain management. In Kennedy v. Kennedy, ^^ 
 a devise of "homestead" held, to mean devise of farm on which 
 testator lived, and not statutory estate of homestead. 
 
 In McCarthy v. Oshurn,'^^ the testator used the words, "heirs 
 of H, " meant simply the children of H "living at the time of 
 said division," in connection with the words "heirs of H." 
 
 In Kelley v. Vigas,^'^ a devise was made to a class of persons 
 named, only "heirs at law" of testator; held, it was necessary 
 to refer to the statute to ascertain who constitute the class, and 
 the statutes providing the quantity each shall take must also 
 govern; in such case property devised will be divided among 
 heirs as in case of intestacy. 
 
 In Arnold v. Alden,^^ it is held, when the word 
 "issue" in one part of a limitation is explained by the word 
 "children" in another, it will be inferred that the testator 
 intended the word "issue" to denote children. It is only where 
 the word "issue" is not qualified or explained, that it is con- 
 strued to include grandchildren as well as children. But the 
 
 10— Strawbridge v. Strawbridge, 14—103 111. 607. 
 
 220 III. 61. 15—105 111. 350. 
 
 11—67 111. 419. 16—118 111. 403. 
 
 12—85 111. 41. 17—112 111. 242. 
 
 13— Gary v. Stead, 220 111. 508. 18—173 111. 239.
 
 88 THE LAW OF ESTATES. 
 
 word "children" is never meant where the word "heirs" ap- 
 plies in its technical sense.^^ 
 
 In Rose v. Eale,^^ the words "give devise and bequeath," 
 which precede the description of the real estate, refer to both 
 real estate and personalty, as do also the words "whilst she 
 remains my widow;" pass a life estate in both real and per- 
 sonalty, "whilst she remains my widow." 
 
 In Lancaster v. Lancaster, ^'^ the words "I give and bequeath 
 to the legal and direct descendants — the heirs of their bodies 
 begotten and their heirs — of my eldest brother and his wife," 
 construed as though phrase, "that is to say" had followed 
 word "descendants." 
 
 In Thomas v. Miller, ^^ the word "estate" was held, to be 
 broad enough to pass fee, but it must not be considered as doing 
 60 generally. In Ingraham v. Ingraham,-^ the words, * * I author- 
 ize, " used in connection with absolute gift, implies creation of 
 trust. 
 
 In Gannon v. Paterson,^* several clauses of the will 
 were construed making use of the words, "heirs," "issue" 
 and "children" indiscriminately, giving such words the com- 
 mon and popular meaning instead of their strict and legal 
 meaning. The court holding, when such use of those words 
 is made by the testator the court is warranted in reading them 
 interchangeably, so as to give the will such construction as 
 will best comport with the intention of the testator as drawn 
 from the entire instrument. 
 
 In Blakeslee v. Mans field, "^^ the words "per cent" held, to 
 mean parts or shares as distinguished from its ordinary mean- 
 ing, to wit, "by the hundred." 
 
 In Fisher v. Fishbank,^^ the word "rest" construed "the 
 
 19— Davis V. Sturgeon, 198 111. proval, Butler v. Huestis, 68 111. 
 
 B22. 594; Summers v. Smith, 127 111. 
 
 20—185 111. 382. 645; Strawn v. Sweeny, 163 111. 
 
 21—187 111. 544. COS; Carpenter v. Van Orlinder, 
 
 22—161 111. 67. 127 111. 42. 
 
 23—169 111. 470. 25—66 111. App. 119. 
 24—193 111. 375, citing, with ap- 26—188 111. 194.
 
 CONSTRUCTION OF WILLS. 89 
 
 estate remaining." In Johnson v. Askey,'^'^ the words, "revert 
 back" held equivalent to "shall go to." In Stickel v. Crcme,^^ 
 the words, "undisposed of" eonstinied to mean "residue." 
 
 In Glover v. Condell,^^ the words "without living heirs of 
 their body" imports definite failure of issue; and the words 
 "without leaving issue," in Metzen v. Schopp,^^ are held, to 
 apply to the time of the death of the devisee, and not to the 
 time of the death of the testator. 
 
 135. The rule g-oveming the meaning of words has been 
 laid down by both Wigram and Redfield in their work on 
 wills ; the courts of Illinois have followed the rules in this par- 
 ticular laid down by these authors, viz. : "A testator is always 
 presumed to use the words in which' he expresses himself, ac- 
 cording to their strict and primary acceptation, unless, from 
 the context of the will, it appears he has used them in a dif- 
 ferent sense, in which case the sense in which he thus appears 
 to have used them will be the sense in which they are to be 
 construed.3^ 
 
 136. What estate conveyed, words of inheritance, quan- 
 tity or interest. The Statutes of this State, Section 13, Chap- 
 ter 30, entitled "Conveyance" is the law passed in 1874, and 
 now in force. It provides that, "every estate in lands which 
 shall be granted, conveyed or devised, although other words 
 heretofore necessary to transfer an estate of inheritance be 
 not added, shall be deemed a fee simple estate of inheritance, if 
 a less estate be not limited by express words, or do not appear 
 to have been granted, conveyed or devised by construction or 
 operation of law."^^ The words used in the instrument 
 
 27 — 190 111. 62. Statutes of Illinois, with Jones & 
 
 28 — 189 111. 218. Addington's Supplements thereto, 
 
 29—163 111. 585. Vol. 1, p. 925, and authorities cit- 
 
 30—202 111. 286. ed; Vol. 4, p. 255, and authorities 
 
 31 — Rawson v. Rawson, 52 111. cited; Vol. 5, p. 116, and authori- 
 
 63; Richards v. Miller, 62 111. 419. ties cited. Kurd's R. S. of III., 
 
 32 — Starr & Curtis Annotated 1905, same section and chapter, p. 
 
 466.
 
 90 THE LAW OF ESTATES. 
 
 as in a will, must determine whether the fee is 
 granted or not; and this is always a question for the 
 court when construing the language to give effect there- 
 to. Before the passing of this statute, it was the law of Illi- 
 nois, that in a grant or conveyance, or devise, the word "heirs," 
 or an equivalent word, was necessary to transmit the inheri- 
 tance; and, by the omission of such a word a life estate only 
 was created. Now if such word be omitted the fee passes to 
 the grantee and is transmissible to his heirs, if a less estate 
 is not limited by express words, or do not appear to have been 
 granted, conveyed, or devised, by construction or operation of 
 law. Thus it has been held, in Baker v. Sc&ttp that 
 this section does not abolish the rule in Shelly 's case in this 
 State, for had the legislature designed to abolish that rule 
 they would have done so in express terms easily understood. 
 The rule in Shelly 's case in force in this State, has been ac- 
 knowledged as a rule of property by the common law, from 
 the time of Edward II, over five hundred years. "While 
 some of the states have abolished this rule, as applied to both 
 deeds and wills, the courts of every State in the Union in which 
 the common law has been adopted as in Illinois, retain that 
 rule, and of course will enforce it until an act of the legislature 
 shall abolish the same. It will be noted from a review of the 
 authorities the question arises what words are necessary to 
 carry the fee in real estate? Particularly, this is so where 
 the language of a will is to be given its meaning and effect 
 pertaining to a grant of land by such instrument. We there- 
 fore, give the reader some of the cases construed by our court 
 of last resort indicating the quantity of interest passing under 
 the language of the wills construed. 
 
 137. In Walker v. Pritchard,^* a testator devised 
 certain lands to his vsdfe, giving her full power and au- 
 thority to sell and convey the title thereof at any time and 
 convert the avails to her own use and benefit, and his will 
 
 33—62 111. 86. 34—121 111. 221.
 
 CONSTRUCTION OF WILLS. 91 
 
 thus proceeds: "I further bequeath during her natural life- 
 time one span of horses, and all other items not otherwise dis- 
 IX)sed of, during her natural life as aforesaid," and at her 
 death, "all the property hereby devised or bequeathed to her 
 as aforesaid, or so much thereof as may remain unexpended, 
 to my sons (naming them), and to their heirs and assigns for- 
 ever:" Held, that the widow took only a life estate, with a 
 power of disposition, and that the sons took the remainder, or 
 such part as remained undisposed of at her death and could be 
 identified. A power of sale superadded to a life estate does not 
 enlarge it to a fee. At common law a devise of land without 
 declaring the estate therein, gave only a life estate ; but our 
 statute has changed this rule, so that a fee simple title shall 
 be intended if a less estate be not limited by express words, 
 or do not appear to have been granted, conveyed or devised, 
 by construction or operation of law. In the absence of limiting 
 or qualifying words, a devise of land will vest the fee ; but 
 with such words the will is to be construed with reference te 
 giving effect to the intention of the testator, as manifested by 
 the entire instrument, which is all to be considered together. 
 The burden under the statute, lies on him who contends for the 
 restricted construction of the devise. 
 
 138. The rule in Shelly 's Case. Theobold on Wills, page 
 484, says: "As a rule, when there is a gift to A, indefinitely, 
 followed by a gift at his decease, A will take only a life inter- 
 est." The application of the rule will be found in the follow- 
 ing cases in which the rule was applied : Walker v. Pritchardf 
 supra, citing case of Constable v. Bull, 3 DeG and S, 41 ; and 
 giving words of will: "I give, devise and bequeath unto my 
 dear wife, Mary Ann Constable, all and every my estate and 
 effects, goods, chattels, house, lands, moneys, etc., and where- 
 soever the same may be at the time of my decease, for her 
 sole, separate use and benefit. I further give, will and direct, 
 that at the decease of my said wife, whatever remains of my 
 said estate and effects shall go to and be equally divided, share 
 and share alike, between the following persons hereinafter
 
 92 THE LAW OF ESTATES. 
 
 named," etc. It was held, that this will gave only a life estate 
 to the widow, 
 
 139. In the ease of Bibbins v. Potter,^^ Emily Bib- 
 bins by her will, gave her sister, Ann Maria Bibbins, 
 "all her estates and effects, both real and personal," 
 for her own use and benefit, absolutely. By a cod- 
 icil, made afterwards, and directed to be taken as a part of 
 her will, she added: "After the death of my sister, Ann 
 Maria Bibbins, I give, devise and bequeath all propertj^ of mine 
 which may then be remaining, to," etc. Held, that construing 
 the will and codicil together, the gift to Ann Maria was cut 
 down to a life estate. 
 
 Under rule in Shelly 's case, a devise of the testator's prop- 
 erty to his wife, "to hold and to have to her, my said wife, 
 and to her heirs and assigns forever, but if she gets married 
 again, then at the time of her second marriage one-half of 
 said estate, real and personal, to be sold and divided as fol- 
 lows, etc.," passes a fee to the widow, notwithstanding a sub- 
 sequent clause attempts to limit her interest to a life estate. 
 Held: It is not essential to the application of the rule in 
 Shelly 's case, that the will shall in express language create a 
 freehold estate in the ancestor, since the application of the 
 rule does not depend upon the quantity of the estate given to 
 the ancestor but upon the estate devised to the heirs. Rissman 
 V. Wierth,^^ reviews previous cases supporting conclusions in 
 case cited. 
 
 Again, where a will provided, that real estate devised to the 
 husband of the testatrix shall, after the husband's death, re- 
 vert to the heirs of the testatrix, "but only after payment by 
 them" to the husband's heirs for improvements on the land, 
 passes only a life estate to the husband, and not a fee, and 
 Buch does not create a perpetuity, since "heirs of the testa- 
 
 35 — 10 Law Reporter, Ch. Div., reviews former cases. See also, in 
 
 733. this connection, and applicable, 
 
 36—220 111. 181, pp. 185 to 187, Johnson v. Buck, 220 111. 226; Gary 
 
 V. Stead, 220 III. 508.
 
 CONSTRUCTION OF WILLS. 93 
 
 trix" means those living at her death, and payment by them 
 for improvements on land thus devised must be made in the 
 lifetime of the "heirs of the testatrix, "^^ 
 
 140. The case Giles v. Anslow,^^ a clause of the will was 
 as follows: *'I have full faith and confidence in my be- 
 loved wife, Mary, that she will do what is best and proper with 
 my effects, and that she would do with my property the same 
 as I would wish to have done, — that she will take care of the 
 proceeds. ' ' In the reasoning of the court this question is put, 
 and answered by the court. For whose benefit did he expect 
 her to manage the estate and take care of the proceeds of the 
 property? Manifestly for her own benefit, and to guard 
 against improvidence and consequent destitution and want. 
 There is not the slightest intimation that such care was to be 
 exercised in the interest of any other beneficiary. No provi- 
 sion is made in favor of the nephews or any other person, after 
 the estate should have vested in the widow. The clause last 
 quoted of the will is immediately followed by the words : ' ' She 
 is, by this gift, free from all restraint to do as may seem to 
 her best and proper." The testator had previously left her 
 "free from all restraint" in the discharge of her duties as 
 executrix of his will. She was to be free from all restraint 
 in the settlement of the estate, and she was left free from all 
 restraint to do with the subject of the "gift" as might in her 
 discretion, seem best and proper. No desire or even recom- 
 mendation is expressed that she should make any disposition 
 of any part of the proceeds of the estate to or for the nephews, 
 or to any other person or use, or the expression of a desire that 
 they should have a claim on her bounty or generosity. (Theo- 
 bold on Laws of Wills, 380 and cases cited), lays down the 
 following rule: "When there is an absolute power of disposal, 
 with the confidence expressed that the donee will dispose of 
 the property according to the testator's wishes, where none 
 are expressed, there is no trust." There is no limitation ex- 
 
 37— Hill V. Gianelli, 221 111. 286. 38—128 III. 187.
 
 94 THE LAW OF ESTATES. 
 
 pressly creating a life estate in the wife of the testator. Nor 
 is there a limitation over for the benefit of the nephews, either 
 express or that arise by implication from the language em- 
 ployed. By the first clause of the will, the absolute estate in 
 the property is devised to the wife, and, apparently to pre- 
 vent any mistake or misapprehension arising from the clause 
 inserted in respect to the disposition of the estate upon her 
 death before final settlement, she is, by that last clause, given 
 absolute dominion and control over it. In other words, she 
 was given the property absolutely and in fee, upon the hap- 
 pening of the event of a settlement of the estate during her 
 life, and then, upon the contingency of its vesting in her, she 
 is left * ' unlimited and unfettered ' ' in the dominion, control and 
 disposition of the estate.^^ 
 
 141. If the instrument be doubtful precatory words will 
 not be construed into a declaration of trust. In Giles v. 
 Anslow,'^^ the court citing from Theobold on the law of wills, 
 p. 379, say: "Therefore mere expression of a desire that the 
 donee will "be kind to,"^^ Baggins v. Yates,'^^ "remember," 
 
 39— See West v. Fitz, 109 111. Gary v. Stead, 220 111. 508; Hill v. 
 
 436, this case holding in reasoning Gianelli, 221 111. 286; Vannetta v. 
 
 and conclusion, the same as Giles Carr, 223 111. 160; Wallace v. Bo- 
 
 V. Anslow, 128 111. 187. zarth, 223 111. 339. 
 
 40 — The following cases constru- Note — We call attention to chap- 
 
 ing wills, determine whether a life ter 50 of this work, "Reversions 
 
 estate or a fee was intended by the and Remainders," as many of the 
 
 testator, as interpreted under rules cases cited, in note 40, involve the 
 
 applied to the language used in creation of remainders, and the le- 
 
 the will. Boyd v. Strahan, 36 111. gal character of such as deter- 
 
 355; Mulberry v. Mulberry, 50 111. mined from the instrument con- 
 
 67; Bergan v. Cahill, 55 111. 160; strued. And further as to whether 
 
 Markillie v. Ragland, 77 111. 98; possession of the remainder vests 
 
 Johnson v. Johnson, 98 111. 564; immediately, or at the end of a 
 
 Bland v. Bland, 103 111. 11; Hamlin term of years, or for life or fail for 
 
 V. United States Express Co., 107 some legal reason determined in 
 
 111. 443; Lehndorf v. Cope, 120 111. each case. 
 
 330; Friedman v. Steiner, 107 111. 41—128 111. 195. 
 
 126; Rissman v. Wieth, 220 111. 42—9 Mo. 122; 8 Vin. Ab. PI. 27. 
 
 181; Johnson v. Buck, 220 111. 226; 43—9 Sim. 319.
 
 CONSTRUCTION OF WILLS. 95 
 
 Bardswell v. Banrdswell,'^* "consider," Sale v. Moore, "deal justly 
 by," Pope V. Pope,'^^ "educate and provide for,"^^ Macnab v. 
 "Wkitehread, Winch v. Bruttan,*'' Fox v. Fox,*^ "or do justice 
 to," Ellis V. Ellis,*^ "a certain class of persons, will raise no 
 trust." 
 
 In the absence of words showing a contrary intent, a gift, 
 whether of land or personal property, will be presumed to be 
 absolute, and before it will be held to be in trust, it must be 
 clear that the testator intended the property bequeathed, or 
 some part of it, to be applied by the donee for the purpose of 
 a trust; and this is to be determined, as before stated, from a 
 consideration of the entire will, and the circumstances and 
 conditions of the estate devised. So the fact that personal 
 property was included in the devise to the wife, and was ex- 
 pected by the testator to go with the real estate to her, may 
 be considered as indicative of an intent to give her an abso- 
 lute estate in land.^° 
 
 142. The doctrine in respect of the creation of trusts: 
 
 Hawkins on Wills, page 381: "No trust will be implied from 
 precatory words: (a) where the donee may at his discretion, 
 apply the property to other purposes ;^i LeFray v. Flood, Cur- 
 tis V. Bippon, Hoiose v. House, Ex parte Payne, (b) or where 
 there is an express direction that the donee's absolute interest is 
 not to be curtailed; Huskinson v. Bridge, ^^ Eaton v. Watts, (c) 
 where the precatory words are stated not to be obligatory; 
 Young v. Martin, Shepherd v. Nottidge, Cole v. Hawes,^^ (d) or 
 where the donee is to take free and unfettered ;^^ Meredith v. 
 Heneage, Hoy v. Martin, White v. Briggs. 
 
 44—1 Sim. 534. 51—4 Ir. ch. 1; 5 Mad. 434; 23 
 
 45—10 Sim. 1. W. R. 22; 2 Y. & C. Ex. 636. 
 
 52—15 Jur. 730; 1 Eq. 151. 
 
 46—17 B. 299. 
 
 47—14 Sim. 379. 
 
 48—27 B 301. S3— 2 Y. Y. C. C. 582; 2 J. & H. 
 
 49—23 W. R. *38. 766; 4 Ch. D. 238. 
 
 50— Hawkins on Wills, 131; Lei- 54—1 Sim. 542; 6 Sim. 568; 15 
 ter V. Shepard, 85 111. 243; Giles v. Sim. 33. 
 Anslow, 128 111. 196.
 
 96 THE LAW OF ESTATES. 
 
 In Jarma/n on Wills, page 388, it is thus stated: **And 
 when the words of a gift, expressly point to an absolute en- 
 joyment by the donee himself, the natural construction of sub- 
 sequent precatory words is, that they express the testator's 
 belief or wish, without imposing a trust." 
 
 In 2 Eedfield on Wills, 418, the rule is stated as follows: 
 "It seems clear, that when the expression of request or desire 
 in the will is ever so strong, it will not be construed to create 
 a trust for others, when the will contains an expression that 
 the devisee is, nevertheless, to be free to act in his own dis- 
 cretion." 
 
 In the case of Giles v. Anslow,^^ the court holds, that 
 case clearly falls within the rules announced by the authorities 
 cited, and the principal devisee, the wife of the testator, upon 
 the settlement of the estate in question, took absolutely the 
 property remaining. The court saying, "we are not justified 
 in creating a limitation upon the devise to the wife, by con- 
 struction; nor, in our opinion, does any such limitation arise 
 by implication from the language of the will." 
 
 143. Devise of Land Held in Security of a Debt. In Stewart 
 V. Fellows,^^ it is held: "If a party holding the legal 
 title to land as a security for the payment of moneys advanced 
 for the benefit of the real owner, devises the land, the devise 
 will carry whatever right the devisor had therein, to his de- 
 visee. ' ' The following facts appear of record in the case cited : 
 A party taking the title to a lot as a security for the purchase 
 money advanced, by his will bequeathed and devised the prop- 
 erty to F; subject to the condition that in case one S (the 
 debtor), should, within one year, pay to F, "such principal 
 and interest as shall, at the time of such payment, be due me 
 on an account now open between us, the principal sum and 
 interest thereon, then I authorize and empower said F, to con- 
 vey said realty to said S, and in said case, I give and bequeath 
 to said F, such sum of money so paid," etc. The testator, in 
 
 55—128 111. 157. 56—128 111. 480.
 
 CONSTRUCTION OF WILLS. 97 
 
 his lifetime, made a deed of the property to the wife of S, and 
 left it with his banker, to be delivered in case of his death. 
 On bill to foreclose S's equity of redemption, the court admit- 
 ted the will in evidence, holding the will was competent evi- 
 dence to show complainant's title by the devise, and that it 
 was also competent evidence as tending to sustain the conten- 
 tion that the deed had not been delivered to the wife of S, and 
 was not intended to be delivered except on payment of the 
 open account. 
 
 144. Estates tail. The legislature of Illinois in passing Sec- 
 tion 6, Chapter 30, of the Conveyance Act, obviously intended, 
 to prevent the tying up of titles in perpetuity by entails. And 
 also enable the grantor in making a conveyance or the testator 
 by will, to say to whom the land in a deed or will made by 
 him should go in remainder. Fee tail estates are under the 
 statute life estates, when such is intended. Any words limit- 
 ing to a certain line of heirs, will create an estate tail or life 
 estate ; no special formula being necessary.^^ A deed to a tract of 
 land to A, a married woman, * ' and her heirs by her present hus- 
 band, B." Conveyed to her what would have been an estate tail 
 by the common law, but under the statute noted, an estate for 
 her life, only, with remainder in fee to her heirs by B, or those to 
 whom the estate was immediately limited. The court hold- 
 ing, the words "to her heirs by her present husband B, " 
 meant, to the issue of her body by her then present husband 
 begotten. So that her heirs, the issue of her body by B, take 
 the remainder in fee simple on the death of the first grantee or 
 donee.**^ 
 
 145. Devises to a class. It is a well settled rule in the con- 
 struction of wills, that where there is a devise to a class of 
 persons, as to the children or issue of A, and the estate is to 
 
 57— Lehndorf v. Cope, 122 III. Vol. 1, pp. 917, 918, and cases cited; 
 
 317. Vol. 4, p. 254, and cases cited; Vol. 
 
 58 — Starr & Curtis Annotated 5, p. 116, and cases cited. Kurd's 
 
 Statutes of Illinois, with Jones & R. S. of 111., 1905, p. 464. 
 Addington's Supplements thereto, 
 7
 
 98 THE LAW OF ESTATES. 
 
 come into possession of the devisees immediately upon the 
 death of the testator, those persons of the class who are in 
 being at the death of the testator will take the devise, to the 
 exclusion of those thereafter born. But if the will carves out 
 a particular estate, which intervenes between the death of the 
 testator and the period of distribution of the estate devised to 
 the class, then all persons belonging to such class, at the tim*^ 
 when the estate is divided, are included, though born after the 
 death of the testator. ^^ 
 
 146. In Mather v. Matlier,^^ the will made devise 
 of the "net income, of testator's estate to his wife and chil- 
 dren, during their lives," the court holding the language used 
 was a devise of his estate to his children during their lives, 
 and on the death of the last surviving child the remainder to 
 go to his grandchildren, or their children, living at the period 
 of distribution. A particular estate would then vest in his 
 children at the death of the testator, and it is such an estate 
 in them as will support the remainder in the grandchildren 
 to whom it is devised. That being so, the children of the tes- 
 tator took a particular estate which would prevent the estate 
 devised to the grandchildren from vesting in possession at the 
 death of the testator, and thus it would let in afterborn chil- 
 dren. Adopting this construction, the case is relieved of much 
 difficulty, and effect can be given to the plainly expressed in- 
 tention of the testator. In the case the rule given in the text 
 was applied and under that rule all grandchildren living at 
 the termination of the life estate of the testator's children, as 
 well those born after as before his death, were permitted to 
 share in his estate. 
 
 147. In Cheney v. Teese,^^ the testator's will read: 
 * ' I hereby give the fee simple of ' the lands ' to my grandchil- 
 dren, whatever number they may be, share and share alike, 
 to take possession only after the death of my said daughters." 
 
 59—2 Jarman on Wills, 75, 79; 60—103 111. 607. 
 Handberry v. Doolittle, 38 111. 202. 61—108 111. 482.
 
 CONSTRUCTION OF WILLS. 99 
 
 Held, except so far as limited by the words postponing the pos- 
 session, the grant is present and unconditional of a present full 
 fee simple to the grandchildren. Under this will the two 
 grandchildren iii esse at the death of the testator took at once 
 a vested remainder in all the lands, to open however, upon the 
 subsequent birth of other grandchildren, if any, to let in those 
 subsequently born. 
 
 148. In McCarthey v. Osburn,^^ it is said: All the 
 provisions of the will considered, we have no doubt of the 
 correctness of the conclusions of the court below in holding 
 that the expression, "heirs of Henrietta," means simply the 
 children of Mrs. Osburn. That the words, "child of Hen- 
 rietta," are here used in the same sense as "heirs of Henrietta" 
 in the preceding sentence, can not seriously be doubted. The 
 testator having in the second clause of the will, spoken of 
 Harry G. McCarthey as the only heir of his deceased daughter, 
 Jennie, and of the children of Mrs. Osburn as "heirs of Hen- 
 rietta." In the third clause follows the words "should any 
 of the heirs, after arriving at that age (twenty-one years), wish 
 to go into business," etc. Held, the testator by the expres- 
 sion, "the heirs," evidently means to include the children of 
 both of his daughters, thus bringing all his grandchildren, the 
 remaining objects of his bounty, into a common class, and 
 clearly placing them on a common footing, at least so far as 
 that particular provision of the will is concerned. The case 
 cited is long, but fully discusses the principles contended for 
 in this section. In Woodward v. Woodward,^^ where 
 a will devised real estate in fee, and the testator before 
 his death conveyed the real estate to the devisee in trust for 
 the benefit of the devisor, it was held, that at the death of the 
 devisor all the title, which he had, both legal and equitable, 
 passed to the devisee. 
 
 149. Widow's renunciation and election. In Cowwaij v. 
 
 Hitclicoch,^^ the record disclosed that the widow sup- 
 
 62—118 III. 414. 64—103 III. 271. 
 
 63—33 Colo. 457.
 
 100 THE LAW OF ESTATES. 
 
 posed she had the right to take under the will, and at the 
 same time accept the widow's award. It being held: "Under 
 the circumstances it would be adopting a hard rule to hold that 
 the mere act of accepting the widow's award, under a mis- 
 taken belief, would bar her of all rights under the will, and we 
 do not believe that any respectable authority would sustain 
 a precedent of that character, "^s Before any presump- 
 tion of an election can arise, it is necessary to show 
 that the party acting or acquiescing was cognizant of 
 his rights. When this is ascertained it may be further neces- 
 sary to consider whether the party intended an election. The 
 widow in this case, by accepting the award, as appears from 
 the evidence never intended to reject the provisions of the will, 
 but all the time supposed, and was advised, that it was her 
 right to take under the will and accept the widow's award. 
 Under such circumstances we perceive no ground for holding 
 that she cannot take under the will.^^ 
 
 In Evans v. Price,^'^ the record shows that the widow 
 by written renunciation elected to take her dower as 
 widow, and not an absolute estate as heir. Held: It matters 
 little what she claimed or did not claim. Her rights were fixed 
 by statute, on renouncing the will, and they could not be af- 
 fected by claiming, or omitting to claim, any specific estate. 
 And in Colorado it is held, where the widow renounces under 
 the will and elects to take one-half of whole estate, she is en- 
 titled to remaining moiety after discharge of debts against the 
 estate.68 
 
 In Ward v. Ward,^^ it is held: The portion raised 
 for an after-born child, from the various devises, was subject 
 to the widow's dower, notwithstanding, she may have re- 
 nounced under the will ; the part taken by such child is to be 
 treated as intestate property, and the provisions of the will 
 
 65— story's Eq., Vol. 2, Sec. 1097. 68 — Hannah v. Palmer, 6 Colo. 
 
 66— Conway v. Hichcock, 103 111. 161. 
 
 271. 69—129 111. 111. 
 67— lis 111. 598.
 
 CONSTRUCTION OF WILLS. 101 
 
 made for the widow is subject to its proportionate part in mak- 
 ing up the portion of such child. 
 
 150. Widow of illegitimate given whole estate. In Evans 
 V. Price,"^^ the widow of an illegitimate was given, on re- 
 nouncing, the whole estate under the statute of descent. The 
 record shows that on the day the will was admitted to probate, 
 the widow filed her written renunciation of its provisions in 
 her favor, and requested that it be made a matter of record, 
 which was done. It was conceded the testator was an "illegiti- 
 mate person," as the term is used in the statute; that he died 
 leaving no child or descendants of any child, and that his 
 widow, P., survived him. Held : Under the act of 1872, where 
 an illegitimate person died testate, leaving a widow and no 
 descendants, his widow, upon renunciation of his will within 
 one year after its probate, took absolutely the whole of his 
 estate, both real and personal. 
 
 70—118 111. 598.
 
 CHAPTER IX 
 
 CONSTRUCTION OF WILLS-CONTINUED 
 
 Sec. 
 
 151. General rules relating to the 
 
 construction of wills. 
 
 152. Ancient English rules of con- 
 
 struction, general. 
 
 153. Ancient rules modified and 
 
 broadened, Rule VII. 
 
 Sec. 
 
 154. Rule XVII modified. 
 
 155. Rule XIX modified. 
 
 156. American principles of con- 
 
 struction. 
 
 157. The Illinois decisions follow 
 
 the modern principles. 
 
 Sec. 151. General rules relating^ to the construction of 
 wills are here given as published by Mr. Redfield in his work 
 on Wills,! collated by Mr. Jarman in his work on 
 "Wills. We omit the authorities cited by the author 
 in support of the various rules, referring the reader 
 to the works in question for such purpose. The Ameri- 
 can cases, under the modern rules of construction, very often 
 disregard the general rules when it becomes necessary so to do, 
 in order to uphold a will and give effect to the intention of 
 the testator. Mr. Redfield says, page 421 of the same volume : 
 "There is no better principle in regard to all rules of con- 
 struction, whenever applied, than to use them as helps and as- 
 sistants toward reaching the intent of the testator ; and to aban- 
 don them whenever it is apparent they lead one side of that 
 object, thus making them our servants rather than our mas- 
 ters." We also cite from note 2 of this author, as it is quite 
 pat to the subject in hand. "Lord Kenyon's opinion in 
 Small V. Allen.^ It has happened in regard to the 
 wills of some of the most eminent of the English bar that they 
 have been held absolutely void for uncertainty. The case of 
 Sir J. Bland is here mentioned by his lordship, who said at the 
 close of his will, that he had disposed of his estate in so clear 
 
 l_Vol. 1, 4th ed., p. 425, et seq. 
 
 -8 T. R. 497, 502. 
 
 102
 
 CONSTRUCTION OF WILLS— CONTINUED. 103 
 
 a manner that it was impossible for any lawyer to doubt about 
 it. This will was afterwards contested, and came before Lord 
 Hardwicke, who said that he was utterly at a loss to conjecture 
 the intention of the testator, that he "wished he could find 
 some ground on which to found a conjecture." 
 
 152. Ancient English rules of construction generaL 
 
 I. That a will of real estate, wheresoever made, and in what- 
 ever language written, is construed according to the law of 
 England (in other words, according to the law of the place 
 where the real estate is situated). But a will of personalty is 
 governed by the lex domicilii (the place of residence of the 
 deceased person; in the county and State fixed by statute law 
 for the probating of such will).^ 
 
 II. That technical words are not necessary to give effect to 
 
 any species of disposition in a will. 
 
 III. That the construction of a will is the same at law and in 
 equity. The jurisdiction of each being governed by the nature 
 of the subject though the consequences may differ, as in the in- 
 stance of a contingent remainder, which is destructible in the 
 one case and not in the other. 
 
 IV. That a will speaks, for some purposes, from the period 
 of execution, and for others from the death of the testator; 
 but never operates until the latter period. 
 
 v. That the heir is not to be disinherited without an express 
 devise or necessary implication, such implication importing not 
 natural necessity, but so strong a probability that an intention 
 to the contrary cannot be supposed. 
 
 VI. That merely negative words are not sufficient to ex- 
 
 3— R. S. of 111., 1874, Sec. 13, Same statutes Vol. 3, p. 4041, and 
 
 Chapt. 30, "Conveyance" Act, chap- case cited under section 11, "Wills" 
 
 ter 148, section 11, "Wills." Starr Act. Kurd's R. S. of 111., 1905, 
 
 & Curtis Annotated Statutes of Chapt. 30, Sec. 13, "Conveyance" 
 
 Illinois, with Jones & Addington's Act, p. 466; Turner v. House, 199 
 
 Supplements thereto. Vol. 1, p. 111. 464. Kurd's R. S. of 111., 1905, 
 
 925; Vol. 4, p. 255; Vol. 5, p. 116, Chapt. 148, Sec. 11, "Wills" Act, p. 
 
 and cases cited in each volume: 2052, R. S. of 1845, p. 540, Sec. 17.
 
 104 THE LAW OF ESTATES. 
 
 elude the title of the heir or next of kin. There must be an 
 actual gift to some other definite object. 
 
 VII. That all the parts of a will are to be conttrued in re- 
 lation to each other, and so as, if possible, to form one con- 
 sistent whole, but where several parts are absolutely irrecon- 
 cilable, the latter must prevail. 
 
 VIII. That extrinsic evidence is not admissible to alter, de- 
 tract from, or add to, the terms of a will; though it may be 
 used to rebut a resulting trust attaching to a legal title created 
 by it; or to remove a latent ambiguity (arising from words 
 equally descriptive of two or more subjects or objects of gift). 
 
 IX. Nor to vary the meaning of words ; and, therefore to at- 
 tach a strained and extraordinary sense to a particular word; 
 an instrument, executed by the testator, in which the same 
 words occurs in that sense is not admissible. 
 
 X. But the courts will look at the circumstances under 
 which the devisor makes his will, as the state of his property 
 and the like. 
 
 XI. That in general, implication is admissible only in the 
 absence of, and not to control, an express disposition. 
 
 XII. That an express and positive devise cannot be con- 
 trolled by the reason assigned or by subsequent ambiguous 
 words; or by inference and argument from other parts of the 
 will ; and, accordingly, such a devise is not affected by a subse- 
 quent inaccurate recital of, or reference to, its contents ; though 
 recourse may be had to such reference to assist the construc- 
 tion in case of ambiguity or doubt. 
 
 XIII. That the inconvenience, or absurdity of a devise, is no 
 ground for varying the construction, where the terms of it are 
 unambiguous; nor is the fact, that the testator did not foresee 
 all the consequences of his disposition, a reason for varying 
 it. But where the intention is obscured, by conflicting expres- 
 sions, it is to be sought rather in a rational and consistent, than 
 an irrational and inconsistent, purpose. 
 
 XIV. That the rules of construction cannot be strained, to 
 bring a devise within the rules of law ; but it seems that, where
 
 CONSTRUCTION OF WILLS— CONTINUED. 105 
 
 the will admits of two constructions, that is to be preferred 
 which will render it valid; and therefore the court, in one in- 
 stance, adhered to the literal language of the testator, though it 
 was highly probable that he had written a word, by mistake, 
 for one which would have rendered the devise void.* 
 
 XV. That favor, or disfavor, to the object, ought not to influ- 
 ence the construction. 
 
 XVI. That words, in general, are to be taken in their ordi- 
 nary and grammatical sense, unless a clear intention to use 
 them in another can be collected, and that other can be ascer- 
 tained ; and they are in all cases to receive a construction which 
 will give to every expression some effect, rather than one that 
 will render any of the expressions inoperative ; and of the two 
 modes of construction, that is to be preferred which will pre- 
 vent a total intestacy. 
 
 XVII. That where a testator uses technical words, he is 
 presumed to employ them in their technical sense, unless the 
 context clearly indicates the contrary. 
 
 XVIII. That words, occurring more than once in a will, 
 shall be presumed to be used always in the same sense, unless 
 a contrary intention appears by the context, or unless the 
 words be applied to a different subject. And, on the same prin- 
 ciple, where a testator uses an additional word or phrase, he 
 must be presumed to have an additional meaning. And where 
 the argument, that the testator, notwithstanding some varia- 
 tion of expression had the same intention, in several instances 
 prevailed, in the English cases. 
 
 XIX. The words and limitations may be transposed, where 
 warranted by the immediate context, or the general scheme of 
 the will; but not merely on a conjectural hypothesis of the 
 testator's intention, however reasonable, in opposition to the 
 plain and obvious sense of the language of the instrument. 
 
 XX. That words which it is obvious are miswritten (as 
 dying with issue for dying without issue), may be corrected. 
 
 XXI. That the construction is not to be varied by events, 
 
 4—3 Bur. 1626; 3 Br. P. C. Toml. 209.
 
 106 THE LAW OF ESTATES. 
 
 subsequent to the execution; but the courts, in determining" 
 the meaning of particular expressions, will look to possible 
 circumstances, in which they might have been called upon to 
 affix a signification to them. 
 
 XXII. That several independent devises, not grammatically- 
 connected, or united by the expression of a common purpose, 
 must be construed separately, and without relation to each 
 other; although it may be conjectured, from similarity of re- 
 lationship, or other such circumstances, that the testator had 
 the same intention, in regard to both. There must be an appar- 
 ent design to connect them. This, and the former class of 
 cases, chiefly relate to a question of frequent occurrence; 
 whether words of limitation, preceded by several devises, relate 
 to more than one of those devises. 
 
 XXIII. That where a testator's intention cannot operate to 
 its full extent, it shall take effect as far as possible. 
 
 XXrV. That a testator is rather to be presumed to calculate 
 on the disposition of his will before taking effect, than the con- 
 trary; and, accordingly, a provision for the death of devisees 
 will not be considered as intended to provide exclusively for 
 lapse, if it admits of any other construction. 
 
 153. General rules modified and broadened. General rule 
 VII. was modified and broadened in Norris v. Beyea,^ as follows : 
 "Every part of the instrument must have its just operation, un- 
 less there arises some invincible repugnance, or else some portion 
 is absolutely unintelligible." This modified rule being now 
 universally applied by American courts. 
 
 154. Rule XVII. was modified by English decisions. Young 
 V. Robertson, Hall v. Warren,^ as follows : The primary 
 duty of a court of construction, in the interpretation 
 of wills, is to give to each word employed, if it can 
 with propriety receive it, the natural, ordinary mean- 
 ing, which it has in the vocabulary of ordinary life, and 
 
 6—13 N. Y. 273, 285. 6—4 Mack, H. L. 314, 325; Hall 
 
 V. Warren, 9 H. L. Cas. 420.
 
 CONSTRUCTION OF WILLS— CONTINUED. 107 
 
 not to give words employed in that vocabulary an artificial, a 
 secondary, and a technical meaning. In the latter case it being 
 held, in construing the will of an illiterate man, the meaning 
 of technical language may be disregarded, but no word which 
 has a clear and definite operation can be struck out. 
 
 155. Rule XIX. has also been broadened by American and 
 English decisions, and as the modified rule is quite often applied 
 in the Illinois cases, the authorities will be cited under the 
 proper head when the rule is applied ; it is as follows : Words, 
 or clauses of sentences, or even whole paragraphs may be trans- 
 posed to any extent, with a view to show the intention of the 
 testator. But it must appear either from the words of the will, 
 or extrinsic proof, admissible in aid of the construction of the 
 words, that the transposition does really bring out the true 
 intent of the testator, and thus render clear what was before 
 obscure. For if the transposition leaves the same uncertainty, 
 only giving a different import, it is not allowable. But where 
 it gives effect to all provisions of the will, and renders them 
 all harmonious and consistent, both with each other, and with 
 the general purpose and intent of the will, it affords very sat- 
 isfactory ground of presumption, that it reaches the source 
 of the difficulty and explains the mode in which it arose. 
 
 156. American principles of construction. American courts 
 through a long line of decisions, which are now generally fol- 
 lowed, have established many principles of interpretation 
 rightly their own; these principles have arisen from long 
 experience and from the modern desire of the American courts 
 to uphold and give effect to any will they may be called upon 
 to construe, if in so doing, the conclusion is supported by 
 sound reasoning and well settled principles of our own courts. 
 The result being, the proportion of wills, and the devises 
 and bequests thereunder, which in olden times would have been 
 declared void for uncertainty, have under modem construction 
 materially diminished, until now, we might say, it is very uncom- 
 mon for wills to be declared void for uncertainty, and then it
 
 108 THE LAW OF ESTATES. 
 
 will occur through some grave oversight, or lack of ability in 
 the preparation of the instrument. 
 
 157. The Illinois decisions will be found to follow the path 
 laid out by the modern principles; and while the old general 
 rules are not and cannot be abandoned, for they apparently 
 embrace nearly every case that could arise, American courts 
 find it impossible at all times to do full justice, by following 
 blindly the old rules without the application of modern prin- 
 ciples.
 
 CHAPTER X 
 
 CONSTRUCTION OF WILLS— CONTINUED 
 
 Sec. 
 
 158. General remarks. 
 359. The construction of wills, etc., 
 is for court. 
 
 160. No distinction In method of 
 
 executing, attesting and 
 proving, 
 
 161. Codicils attached or append- 
 
 ed, considered part of will. 
 
 162. Publication of codicil is pub- 
 
 lication of will. 
 
 163. The general rules of Ameri- 
 
 can courts for interpreting 
 wills. 
 
 164. Technical and grammatical 
 
 errors, punctuation. 
 
 165. Greatest indulgence to use of 
 
 language. 
 
 166. The purpose of construction. 
 
 167. Particular expressions yield 
 
 to general purpose. 
 
 168. Specific articles bequeathed, 
 
 cannot be sold, lost or de- 
 stroyed and replaced by an- 
 other ai:ticle, unless specific- 
 ally required. 
 
 169. Words will be read into will 
 
 when necessary to give in- 
 tention. 
 
 170. But under pretense of con- 
 
 struction, courts have no 
 right to either reject or 
 supply words. 
 
 171. Patent and latent ambigui- 
 
 ties. 
 
 172. Latent ambiguity Is disclosed 
 
 by extrinsic evidence. 
 
 109 
 
 Sec. 
 
 173. Ambiguity explained and fur- 
 
 ther defined. 
 
 174. Facts dehors the will. 
 
 175. Will devising real estate. 
 
 176. Will devising personalty. 
 
 177. Words of inheritance not nec- 
 
 essary to convey fee. 
 
 178. Where devises are made to 
 
 trustee. 
 
 179. Repugnant clauses. 
 
 180. Brownfield v. Wilson. 
 
 181. Friedman v. Stelner. 
 
 182. Life estate power of sale. 
 
 183. Henderson v. Blackburn. 
 
 184. Green v. Hewitt. 
 
 185. Kirkpatrick v. Kirkpatrick. 
 
 186. Chapin v. Crow. 
 
 187. Bowerman v. Sessel. 
 
 188. Walker v. Pritchard. 
 
 189. Fee-tail, life estate to grantee, 
 
 remainder to successor in 
 fee. 
 
 190. Frazer v. Supervisors. 
 
 191. Fee simple intended, if lessor 
 
 be not limited. 
 
 192. The rule in Shelley's case. 
 
 193. Hageman v. Hageman. 
 
 194. Baker v. Scott. 
 
 195. Carpenter v. Van Orlinder. 
 
 196. Vesting of estates, vested and 
 
 contingent remainder. 
 
 197. Joint tenancy, tenancy in 
 
 common. 
 
 198. Conditions and conditional 
 
 limitations. 
 
 199. Jennings v. Jennings.
 
 110 
 
 THE LAW OF ESTATES. 
 
 Sec. 
 
 200. Conversion. 
 
 201. Election allied with doctrine 
 
 of. 
 
 202. Testator presumed to dispose 
 
 of his whole estate. 
 
 203. Schofield v. Olcott. 
 
 204. Tautenham v. Dunz. 
 
 205. Perpetuities. 
 
 206. Fussey v. White. 
 
 207. Hale v. Hale. 
 
 208. St. Peter's Roman Catholic 
 
 Church V. Grermain. 
 
 209. Charitable gifts and uses. 
 
 210. The legal definition of. 
 
 211. Statute of Charitable Uses, 43 
 
 Elizabeth, chapter 4. 
 
 212. The chancellor will direct a 
 
 scheme for the charity. 
 
 213. The doctrine of cy pres. 
 
 214. Heuser v. Harris. 
 
 215. Power of sale under will. 
 
 216. Sale of an heir's expectancy. 
 
 217. Executor's interest. 
 
 218. Act of 21 Henry VII, chapter 
 
 4, In force in Illinois. 
 
 219. Lambert v. Harvey. 
 
 220. The application of the statute 
 
 of Illinois. 
 
 221. Misdescription, surrounding 
 
 circumstances. 
 
 222. Bowen v. Allen. 
 
 223. Kurtz v. Hibner. 
 
 224. Kirkland v. Conway. 
 
 225. Smith v. Dennison. 
 
 226. Kaufman v. Breckinridge. 
 
 227. Survivorship. 
 
 Sec. 
 
 228. Blanchard v. Maynard. 
 
 229. Arnold v. Alden. 
 
 230. Charging legacies and debts 
 
 on land. 
 
 231. General rule. 
 
 232. Reid v. Corrigan. 
 
 233. Bucher v. Bucher, 
 
 234. McCullom v. Chidester. 
 
 235. Miscellaneous cases charging 
 
 debts and legacies. 
 
 236. Johnson v. Johnson. 
 
 237. Stickel v. Crane. 
 
 238. McFarland v. McFarland. 
 
 239. Daily v. Wilkie. 
 
 240. Irwin v. Walpert. 
 
 241. Richardson v. Ranson. 
 
 242. Richardson v. Eveland. 
 
 243. Charges upon gifts election 
 
 applied. 
 
 244. Doctrine of election applied 
 
 to dower and other rights. 
 
 245. Election express and implied. 
 
 246. Ademption of legacies. 
 
 247. Richardson v. Eveland. 
 
 248. The application of the word 
 
 "money" as used in will. 
 
 249. Per capita and per stirpes. 
 
 250. Residuary bequests and lega- 
 
 tees. 
 
 251. To whom the residuary es- 
 
 tate will go. 
 
 252. Abatement suits to collect. 
 
 253. Presumption of death after 
 
 seven years. 
 
 254. Heintz v. Ahlgren. 
 
 Sec. 158. General remarks. Ow^ng to the vast number of 
 cases involving the construction of wills, testaments and codi- 
 cils by the Illinois court, we give in this chapter, the well set- 
 tled general rules governing the interpretation and construc- 
 tion of such instruments by the supreme court of this state. 
 The courts of Illinois have and do apply when necessary, all
 
 CONSTRUCTION OF WILLS— CONTINUED. Ill 
 
 the ancient rules of construction and such modifications thereof, 
 as the courts of this country consider best adapted to our prac- 
 tice in this regard. American courts have, for many years, 
 applied modem rules to give effect to the intention and purpose 
 of the testator. These modern rules for interpreting and con- 
 struing wills are found largely in American decisions, coming 
 as they have from eminent and distinguished jurists of our 
 country, they are as a matter of fact a part of the impor- 
 tant equity jurisprudence of America. In those states of the 
 United States in which the several legislatures have not inter- 
 posed by positive enactment, there still remain a few well rec- 
 ognized arbitrary rules that are applied in the construction of 
 wills and other instruments where similar rules of construc- 
 tion apply. These arbitrary rules often defeat the manifest 
 intention of the testator; particularly, the often quoted and 
 readily applied rule in Shelly 's case, which has perhaps con- 
 tributed more than all other rules, to defeat the wishes and 
 purposes of those who have attempted to make disposition of 
 their estates by will. The rule in Shelly 's case is a part of 
 the law of the State of Illinois, and is in fact a rule of property 
 that our courts fully recognize and will continue to do so, until 
 the legislature sees fit to abolish that rale. The words and 
 expressions used in a will differ materially; the object and 
 purpose of the testator or testatrix also differ, thus establish- 
 ing the fact, that no two wills are exactly alike. A certain 
 guide in making testamentary disposition of one's estate, may 
 be found in the statute law of the various states; and par- 
 ticularly, in the well considered decisions of the courts of last 
 resort. It is presumed to be the universal desire of men and 
 w^omen to bestow their bounty wisely and well ; and it may also 
 be said, such seek legally safe and sound testamentary disposi- 
 tion of their property. Immense and great estates in this coun- 
 try are rapidly accumulating, consisting of all kinds and species 
 of property, extending over many and possibly all states of the 
 Union. This is the natural result of the easy commingling of 
 the people of one state with that of another ; the thrift, identity
 
 112 THE LAW OF ESTATES. 
 
 or interest of the individual with persons, firms or corpora- 
 tions conducting business in the different states. The testator, 
 therefore, in making testamentary disposition of property should 
 possess or acquire a knowledge of the laws of the different 
 states and the rules governing the construction and interpreta- 
 tion of wills. Modern legislation should aim to accomplish a 
 rapid legal system for the complete settlement and distribution 
 of estates of deceased persons. And when it is certain courts 
 of probate lack sufficient power to accomplish this result, the 
 legislature should take notice and act without delay to meet 
 the exigency. The decisions of the Illinois supreme court are 
 convincing proof of the strong personnel of that court from 
 its earliest days. Its careful interpretation of wills and codicils 
 has rightly earned for it the strongest confidence and respect of 
 the legal profession within and without this state. Its funda- 
 mental rule for the interpretation of wills has always been to 
 give effect to the intention of the testator where it is possible 
 so to do under existing law. 
 
 159. The construction of wills and codicils is always a mat- 
 ter for the court and not for a jury.i 
 
 160. No distinction in method of executing, attesting and 
 proving of w^ills and codicils. The statute of Illinois makes no 
 distinction between wills, testaments and codicils, in the method 
 of executing, attesting and proving the same, the statute directs 
 how it should be done and should be closely followed.^ 
 
 161. Codicils attached or appended to considered part of 
 will. Such are taken and considered as a part of the will ; they 
 are universally construed together as one instrument, if the 
 codicil does not contain any clause of revocation.^ 
 
 1— Ruffin V. Farmer, 72 111. 615. Vol. 4, pp. 1284, 1285, and cases 
 
 2 — Sec. 2, chapter 148, "Wills. ' cited; Vol. 5, p. 576, and cases cit- 
 
 Starr & Curtis Annotated Statutes ed; Kurd's R. S. of 111., 1905, same 
 
 of Illinois, with Jones & Adding- section and chapter, p. 2050. 
 
 ton's Supplements thereto. Vol. 3, 3 — Paige on Wills, Sec. 462, and 
 
 pp. 4026 to 4033, and cases cited; authorities cited by author.
 
 CONSTRUCTION OF WILLS— CONTINUED. 113 
 
 162. Publication of codicil is publication of the will. ''A 
 publication of the codicil is a publication of the will in the fonn 
 it was at the time of the execution of the codicil, and proof 
 of the execution of the codicil establishes the will."* 
 
 163. The general rule of American courts for interpreting 
 wills and codicils. "That the whole will takes effect, so far 
 as it is not inconsistent with the codicil, if it can fairly be done, 
 so as. to make it harmonize with the body of the will. It is the 
 established rule not to disturb the dispositions of the will fur- 
 ther than is absolutely necessary for the purpose of giving 
 effect to the codicil.^ In Vestal v. Garrett,^ the court expresses 
 itself in these words. A codicil revokes so much of the will as is 
 inconsistent with it, but as a general rule, it will not be held to be 
 inconsistent beyond the clear import of its langTiage, and when 
 a devise is clear, it is incumbent upon those who contend it is 
 not to take effect by reason of a revocation in the codicil, to show 
 that the intention to revoke is equally clear and free from doubt 
 as the original intention to devise. Indeed, it may be stated gen- 
 erally, as a canon of construction, that a clear gift cannot be cut 
 down by any subsequent words, unless they show an equally clear 
 intention. It may also be said to be an established principle, 
 that an express intention to make the alteration in a will in one 
 particular, negatives, by implication an intention to alter it 
 in any other respect.'^ 
 
 164. Technical and grammatical errors, punctuation. Gen- 
 eral intent overrides technical and grammatical rules, the word 
 "never" rejected and "forever" given effect, under this rule.^ 
 Punctuation is not regarded in construing wills.'' 
 
 4 — Duncan v. Duncan, 23 111. 296; Whitman v. Baker, 52 N. Y. 
 
 364; Fry v. Morrison, 159 111. 244; 46. 
 
 Hubbard v. Hubbard, 198 111. 624. 8— Holiday v. Dixon, 27 111. 33; 
 
 5—3 Am. & Eng. Ency. of Law, McNeil v. Caruthers, 4 111. App. 
 
 p. 294, and cases cited. 552. 
 
 6—197 111. 407. 9— Johnson v. Bank, 192 111. 543; 
 
 7 — Greenleaf on Evidence, Sec. Crawford v. Burke, 201 111. 589. 
 682; Quincy v. Rogers, 9 Cush, 
 
 8
 
 114 THE LAW OF ESTATES. 
 
 165. Greatest indulgence to the use of language. The law 
 
 of Illinois extends the greatest indulgence to the use of lan- 
 guage in a will; the intention of the testator is always sought 
 in the words of the instrument ; the court will read the will and 
 the various expressions therein, in the sense in which they were 
 employed; courts will consider the instrument in the light of 
 the circumstances in which the testator was placed when the 
 will was made, and give effect to each and every part in con- 
 struing.i*^ 
 
 166. The purpose of construction. The sole purpose of con- 
 struction of the instrument is to find and declare the intention 
 of the testator, that effect may be given to such intention when 
 not contrary to public policy or in contravention of law or the 
 rules of property; the construction is to be ascertained from 
 a full view of everything contained in the will, giving just 
 weight and operation to each clause and word employed, unless 
 there is some invincible repugnance, or some portion of the 
 instrument is absolutely unintelligible.^^ 
 
 167. Particular expressions yield to general purpose. A will 
 is held to speak from the death of the testator. To this rule, 
 there is, however, the limitation, that when language is used 
 which repels the presumption, it is otherwise ; and, in deter- 
 mining that question the entire will must be considered, with 
 the specific language employed in the clause being construed, to 
 find the true intent of the testator. Particular expressions will 
 not control where the whole tenor or purpose of the instrument 
 forbids a literal interpretation of the specific words. Wills, 
 like deeds, contracts and enactments, must be construed accord- 
 ing to the intent of the maker, and that must be ascertained 
 
 10— Wigram on Wills, 2 Am. Ed. 11— Redfield on Wills, 334; Ca- 
 
 161; Jarmin on Wills, Vol. 2, Sec. ruthers v. McNeil, 97 111. 256 
 
 733; Decker v. Decker, 121 111. Kennedy v. Kennedy, 105 111. 350 
 
 341; Bingle v. Voltz, 142 111. 214; Taubenham v. Dunz, 125 111. 529 
 
 Roberts v. Roberts, 140 111. 345; Dickinson v. Dickinson, 138 111. 
 
 Perry v. Bowman, 151 111. 33. 541.
 
 CONSTRUCTION OF WILLS— CONTINUED. 
 
 115 
 
 from an examination of the instrument and all its provisions, 
 without the aid of extraneous testimony.^ ^ 
 
 168. Specific articles bequeathed cannot be sold, lost or de- 
 stroyed, and replaced by another article, unless specifically re- 
 quired by the terms of the will. The doctrine is firmly settled, 
 that where a specific article is bequeathed, its sale, loss or 
 
 12— Redfield on Wills, p. 381, 
 sec. 7; 1 Jarman on Wills, 593; 
 Cochran v. Cochran, 14 Sim, 248; 
 Slater v. Norton, 16 Ves, 197; 
 Abney v. Miller, 2 Atkins, 598; 
 Goodland v. Burnett, 5 Kay & J. 
 349; Rudstone v. Rudstone, 2 Ves, 
 418; Coppin v. Fernybough, 2 B. 
 C. C. 291; Gold v. Judson, 21 
 Conn. 616; Updyke v. Thompkins, 
 100 111. 410. 
 
 ]<lote. — Judge Redfield clearly 
 recognizes the law, as laid down by 
 an unbroken line of authorities, 
 that while a general devise of 
 property is presumed to take ef- 
 fect from death, that is not the 
 rule in cases of specific devises of 
 personal property. He says: "Spe- 
 cific gifts, whether of stock or 
 other personal estate, have been 
 construed to have refeirence to 
 the property of the testator then 
 in existence, and if the testator 
 disposes of the articles described, 
 either in whole or in part, and 
 subsequently acquires more of the 
 same description, the legacy will, 
 nevertheless, fail as to all, except 
 the portion not disposed of." The 
 following cases hold, that when 
 a testator expresses himself in the 
 present tense, it must relate to 
 what is in being at the time of 
 making the will. Abney v. Miller, 
 supra; Goodland v. Burnett, su- 
 pra; Rudstone v. Rudstone, su- 
 
 pra; Coppin V. Fernybough, supra. 
 And when a testator refers to an 
 actually existing state of things, 
 the language will be referred to 
 the date of the will, and not to his 
 death, as this is then a prospec- 
 tive event. Gold v. Judson, 21 
 Conn. 616. In the case of Updyke 
 V. Thompkins, supra, the third 
 clause of the will construed was 
 "If I survive my mother, Mary 
 A. Updyke, it is my will that my 
 estate, real and personal, shall 
 descend and be distributed in the 
 manner as intestate estates de- 
 scend and are distributed under 
 the laws of Illinois." The fourth 
 clause read: "I hold a number of 
 notes against my brother (nam- 
 ing him) — one of these notes is 
 for $900, and I intend that one 
 to be cancelled absolutely at my 
 death, and given up to him. As 
 to the others, if I survive mother 
 (naming her), then at my death 
 I want all the other notes can- 
 celled and surrendered to (G. W. 
 U.) but if mother survives me, 
 then George must pay the inter- 
 est on the other notes until her 
 death, and then the other notes 
 are to be cancelled and surren- 
 dered to him, the said George; 
 and I will that said $900 note 
 shall be given up as aforesaid, 
 and I declare that said (G. W. 
 U.), in case I survive my said
 
 116 
 
 THE LAW OF ESTATES. 
 
 destruction cannot be replaced by substituting another article 
 in its stead. So it has been held where specific stocks are be- 
 queathed, and are afterwards sold and another kind purchased 
 with the proceeds, the latter do not pass by the bequest. And 
 so where a lease is the subject of a bequest for a term of years, 
 if it is afterwards surrendered and a new lease taken, the latter 
 does not pass by the will. When a specific article is bequeathed, 
 another cannot be substituted, unless specifically required by 
 the terms of the will.^^ 
 
 169. Words will be read into will when necessary to give 
 intended effect. It is said in the well considered case of 
 Welch V. Belleville Savings Bank.^"^ We will consider this 
 case on the grounds counsel have placed it, and may possibly 
 then give some additional views upon a phase of it that has only 
 
 mother, shall inherit equally in 
 all my estate with my other heirs, 
 notwithstanding the cancelling 
 and surrendering of the said 
 notes, his full share herein. "The 
 note for $900, spoken of in the 
 will, at the time of the death of 
 the testatrix, had already been 
 surrendered to the maker by the 
 testatrix, and at the time of her 
 death she held six notes upon her 
 brother; there being but one of 
 the original notes remaining, the 
 testatrix held at the date of the 
 will; the others having been ob- 
 tained afterwards. Held, the tes- 
 tatrix intended to have only the 
 notes held by her at the date of 
 the will concelled and surren- 
 dered, and not those which she 
 might acquire after that time. 
 And further it is held: It was 
 not the scheme of the will to pro- 
 vide a fund for the support of the 
 mother of the testatrix, in case 
 she should survive her daughter, 
 from the interest to accrue upon 
 
 notes, for in another clause of 
 the will the mother was made the 
 sole devisee of all the property in 
 case of her survivorship. So it 
 should not be understood from 
 the clause which required the 
 maker of the notes to pay the in- 
 terest on "the other notes" to the 
 mother in case she survived the 
 testatrix, and upon her death 
 "the other notes to be cancelled 
 and surrendered" to the maker, 
 that any other notes than those 
 held by the testatrix at the date 
 of her will were included. 
 
 13—1 Redfield on Wills, p. 381, 
 sec. 7; 2 Jarman on Wills, sec. 
 593; Cochran v. Cochran, 14 Sim, 
 248; Slater v. Norton, 16 Ves, 
 197; Abney v. Miller, 2 Atkins, 
 593; Goodland v. Burnett, 5 Kaj* 
 & J. 349; Rudstone v. Rudstone, 
 2 Ves, 418; Coppin v. Fernybough, 
 2 B. C. C. 291; Gold v. Judson, 
 21 Conn. 616; Updyke v. Thomp- 
 kins, 100 111. 410. 
 
 14—94 111. 199.
 
 CONSTRUCTION OF WILLS— CONTINUED, 117 
 
 in part been suggested by counsel for appellee. Formerly wills 
 were not construed by the courts with the liberality they now 
 are, in furtherance of the intention of the testators. This is 
 particularly true of devises, properly so called ; and even now, 
 in those States in which the legislature has not interposed by 
 positive enactment, there are a few well recognized arbitrary 
 rules of construction that often defeat the manifest intention 
 of testators, among the most noted of which may be mentioned 
 what is known as the rule in Shelly 's case. The rule of construc- 
 tion established by that most celebrated of cases has perhaps 
 contributed more than all other causes combined to defeat the 
 manifest wishes and purposes of those who have attempted to 
 make dispositions of their estates by will. Subject to these few 
 exceptions, however, the principle is firmly established and uni- 
 versally recognized that a will should be construed so as to 
 effectuate the intention of the testator as far as possible, and, 
 in case of doubt, the scope of the instrument should be consid- 
 ered, and its various provisions compared, one with another, in 
 ascertaining such intention. To this fundamental rule of con- 
 struction all others, with the exceptions above noted must be 
 subordinated. Under its influence, the express words of a will 
 must sometimes yield to the manifest intention of the testator ; 
 and even words will be added where it is necessary to effectuate 
 such intention.15 
 
 170. But under pretense of construction courts have no 
 right to either reject or supply words, except where necessary 
 to avoid an absurdity or give effect to the intention. Courts 
 under the pretense of construction have no right to either reject 
 or supply words, except where it is absolutely necessary to 
 avoid an absurdity or give effect to the manifest intention of the 
 testator; courts have no right to make a will either by rejecting 
 some of its provisions or by adding new ones, nor by placing 
 upon its provisions an arbitrary construction. Where the lan- 
 
 15— Wright V. Dunn, 10 Wheat. 537; Ruston v. Ruston, 2 Dall. 
 204; Bartlett v. King, 12 Mass. 244.
 
 118 THE LAW OF ESTATES. 
 
 guage of a will is clear and unambiguous, and there is no con- 
 flict in the various provisions, and no absurdity would thereby 
 be involved, it should be given effect according to the literal 
 terms used, taken in their general and popular sense, except 
 where technical terms are used, in which case they should 
 be taken in their technical sense, unless the context shows 
 they are used in a different sense.*^ 
 
 171. Patent and latent ambiguities. The liberality of the 
 law for construing wills was intended to give the courts the 
 largest possible dominion over the subject; and, where the 
 courts are consistent, and put themselves within the well estab- 
 lished rules of construction, they have ample power to fully 
 give effect to every word of the will of any testator, where such 
 will is not affected by some law or the carelessness of the party 
 making or putting the will in form. Under one general class 
 of wills, a construction will be placed upon the language used, 
 without any assistance from extrinsic circumstances, if in so 
 doing the true meaning and intention of the testator can be 
 obtained. This rule is usually applied, where, on the face of 
 the will an ambiguity arises, called in the law patent ambigu- 
 ity. When the courts are called upon and find such ambiguity, 
 they will apply the language of the testator or testatrix, with 
 the express purpose of giving effect to their intentions mani- 
 fested in the instrument, without the aid or assistance of 
 extrinsic circumstances. In the other general class of wills, 
 
 16 — Dows V. Swan, 4 Mass. 208; does not give absolute fee." When 
 
 Welch V. Belleville Savings Bank, "property devised for life must be 
 
 94 111. 199. converted into money." The rule 
 
 2^ote. — The latter case is dis- supporting this doctrine and its 
 cussed in chapter 50 of this work, extension as originally applied by 
 "Reversions and Remainders." the courts, in the absence of ex- 
 Several important legal questions press language, or other intention 
 are raised and passed upon by to be drawn from the will, and its 
 Justice Mulkey, viz.: "As to char- application to remainder-man's 
 aoter of estate devised by the rights. "Remainder in chattels 
 will." "When limitation over is with limitation over," etc. "Ex- 
 void." "When power of disposal ecutory gift" and rule applied to 
 
 same, etc.
 
 CONSTRUCTION OF WILLS— CONTINUED. 119 
 
 the court in order to construe the instrument, regular on its 
 face, finding it ambiguous seeks assistance by obtaining evi- 
 dence of extrinsic circumstances in aid of its construction; 
 the latter class of wills are said in the law to contain latent 
 ambiguities. And when such appear, the court for the purpose 
 of giving effect to the whole will, seek evidence to assist the 
 construction and to establish the intention of the testator. 
 
 172. Latent ambiguity is only disclosed by extrinsic evi- 
 dence. And if removable at all, it may be removed by extrinsic 
 evidence.* ''^ Redfield mi 'Wills}^ The latter says: "That where the 
 description of the object or subject of a devise is erroneous and 
 mistaken, extrinsic evidence is admitted to aid the construction, 
 by showing to whom or to what the testator must have re- 
 ferred." Chief Justice Tindal, in the case of Miller v. Travers,^^ 
 defines latent ambiguities, which might be explained by 
 parol in two classes. First: "Where the description of the 
 devise or subject matter of devise is clear on the face of the 
 will, but on inquiry it is found that the words describe two or 
 more persons or things with equal accuracy, so, unless it can 
 be shown, by extrinsic evidence, to which the testator intended 
 his words to apply, the devise must fail for uncertainty. 
 Second : Where the description of the devise or of the devisee 
 is correct in part and in part incorrect, as, where devisee's 
 name is correctly given, but his residence, or some other cir- 
 cumstance descriptive of the person or thing incorrect." 
 
 173. Ambiguity explained and further defined. Justice 
 Bradley in the case of Patch v. White,^^ speaking for 
 the court, said: "It is settled doctrine, an ambiguity may 
 arise upon a will, either when it names a person as the subject 
 of the gift, or a thing as the subject of it, and there are two 
 persons or things that answer such name or description; or 
 
 17— Patch V. White, 117 U. S. 19—8 Bing. 244. 
 210. 20—117 U. S. 210. 
 
 18— Redfield on Wills, Vol. 1, 
 p. 584, and cases cited.
 
 120 THE LAW OF ESTATES. 
 
 secondly, it may arise when the will contains a misdescription 
 of the object or subjeetj as, where there is no such person or 
 thing in existence, or, if in existence, the person is not the 
 one intended, or the thing does not belong to the testator." 
 The first kind of ambiguity, where there are two persons or 
 things equally answering the description, may be removed by 
 any evidence that will have that effect, or by either circum- 
 stances, or declarations of the testator.21 "Where the ambiguity 
 consists of a misdescription, as before stated, if the misdescrip- 
 tion can be struck out, and enough remains in the will to identify 
 the person or thing, the court will deal with it in that way ; or if 
 it is an obvious mistake, will read it as if corrected.-- The 
 rules cited relating to ambiguities have been adopted and 
 applied by the Illinois courts.^^ Authorities in point under 
 the statutory requirements of Illinois, providing that wills 
 and testaments must be in writing and properly witnessed, 
 hold that extrinsic evidence is never admissible to alter, de- 
 tract from or add to the terms of a will. So if the words 
 used are ambiguous, the words of a will cannot be varied by 
 evidence of extraneous facts, however clearly a different in- 
 tention may appear. ^^ And the Illinois authorities hold to this 
 rule: "When there is a latent ambiguity in the description of 
 the object or subject of the gift, and such ambiguity can be 
 removed by rejecting false words, leaving a complete intelligible 
 description, it is the duty of the court to do so, as when there 
 are two descriptions, one good and the other bad, the latter may 
 be rejected. And when such can be done the introduction of 
 parol evidence to explain the intention of the testator is un- 
 necessary. 
 
 25 
 
 21—1 Jarman on Wills, 370; 552; Bradley v. Rees, 113 111. 327. 
 
 Hawkins on Wills, 910. 24— Kunz v. Hibner, 55 111. 514; 
 
 22— Patch V. White, 117 U. S. Bishop v. Morgan, 82 111. 351; 
 
 210. Bingel v. Volz, 142 111. 214; Wil- 
 
 23— Emmert v. Hayes, 89 111. liams v. Williams, 189 111. 500; 
 
 12; Bowen v. Allen, 113 111. 53; Vestal v. Garrett, 197 111. 398. 
 
 Decker v. Decker, 121 111. 341; 25 — Emmert v. Hayes, 89 111. 
 
 Transportation Co. v. Gill, 111 111. 11; Myers v. Ladd, 26 111. 415;
 
 CONSTRUCTION OF WILLS— CONTINUED. 
 
 121 
 
 174. Facts dehors the will. When the subject of the power 
 is realty, and the question is as to the execution of the power 
 by the devise, it is the well established doctrine, you may al- 
 ways look at the conditions of the property and the facts 
 dehors the will, to arrive at the intention of the testator.2<5 
 
 A recital in a will referring to certain property as "having 
 theretofore deeded"; and the facts show the deed referred to 
 was enclosed in an envelope and given to a custodian to be 
 delivered after the grantor's death, — but with the reservation 
 that the grantor retained the right to recall it, is not delivered, 
 and cannot operate as a deed delivered; nor under this condi- 
 tion of facts, does the recital in the will aid in establishing that 
 there was a valid delivery of the deed so as to make it opera- 
 tive.2'^ 
 
 175. Will devising real estate. In whatever language the 
 will is written, it is construed according to the law of the place 
 
 Swift V. Lee, 65 111. 336; Bowen v. 
 Allen, 113 111. 53; Decker v. Deck- 
 er, 121 111. 341; Witcomb v. Wil- 
 liams, 189 111. 500; Vestal v. Gar- 
 rett, 197 111. 405. 
 
 Note. — In Vestal v. Garrett, su- 
 pra, the authorities are reviewed 
 and harmonized; the rule and the 
 application thereof cited, as it re- 
 lates to other questions arising 
 under the will construed. Thus, 
 it is held: "Unambiguous words 
 cannot be varied by evidence of 
 extraneous facts." That "false 
 words of description may be re- 
 jected under rules of construc- 
 tion." The decision giving illus- 
 trations when rule is applied for 
 the purpose of removing ambi- 
 guity by rejecting false words of 
 description. And it is also laid 
 down under rule cited, that a pro- 
 vision of a will not inconsistent 
 with the codicil thereto, must be 
 given effect. The rule being stated 
 
 from Paige on Wills, sections 462, 
 as follows: "Where a codicil is 
 appended to a will and does not 
 contain any clause of revocation, 
 the provisions of the will are to 
 be disturbed only as far as is ab- 
 solutely necessary to give effect to 
 the provisions of the codicil, and 
 in other respects such a will and 
 codicil are to be construed to- 
 gether." Held, A codicil which 
 devises land which — by the will 
 had already been given in fee to 
 a daughter — to the testator's wife, 
 "for her sole use and benefit dur- 
 ing her life," but which makes no 
 disposition of the remainder, 
 leaves such remainder still in the 
 daughter. See also chapter 50 of 
 this work, "Reversions and Re- 
 mainders." 
 
 26— Funk v. Eggleston, 92 IlL 
 538. 
 
 27— Noble v. Tipton, 219 111. 182, 
 and cases cited in the opinion.
 
 122 THE LAW OF ESTATES. 
 
 or state where the real estate is situated. Further elaboration 
 of this rule being unnecessary, as the devising of real estate 
 will appear in many ways and forms in wills construed and 
 under the proper heading relating thereto.^^ 
 
 176. Will devising personalty is governed by the lex domi- 
 cili, the place of residence of the deceased person, in the 
 county and state fixed by statute law of Illinois for the pro- 
 bating of wills.29 
 
 177. Words of inheritance not necessary to convey fee — 
 requisites of rule in Shelly 's case. Section 13 of chapter 30, 
 entitled "Conveyances," is as follows: Every estate in lands 
 which shall be granted, conveyed or devised, although other 
 words heretofore necessary to transfer an estate of inheritance 
 be not added, shall be deemed a fee simple estate of inheri- 
 tance, if a less estate be not limited by express words, or do 
 not appear to have been granted, conveyed or devised by con- 
 struction or operation of law.^'' 
 
 In Baker v. Scott,^'^ it is said: This section does not 
 abolish or affect the rule in Shelly 's case, which is a part of 
 the common law, in force in this state, it being in harmony with 
 the genius of our institutions, and not in conflict with any stat- 
 utory provision. ''The requisites of the rule in Shelly 's case 
 are, that there must in the first instance, be an estate of free- 
 hold devised; there must be a limitation to the heirs, or heirs 
 
 28 — Section 13, chapter 30, "Con- Addington's Supplements thereto, 
 
 veyance" Act. Starr & Curtis An- Vol. 3, p. 4041, and cases cited; 
 
 notated Statutes of Illinois, with Kurd's R. S. of 111., 190C, same 
 
 Jones & Addington's Supplements section and chapter, p. 2052. 
 
 thereto. Vol. 1, p. 925, and cases 30 — Starr & Curtis Annotated 
 
 cited; Vol. 4, p. 255, and cases Statutes of Illinois, with Jones & 
 
 cited; Vol. 5, p. 116, and cases Addington's Supplements thereto, 
 
 cited; Kurd's R. S. of 111., 1905, Vol. 1, p. 925, and cases cited; 
 
 same section and chapter, p. 466. Vol, 4, p. 255, and cases cited; 
 
 29 — Section 11, chapter 148, Vol. 5, p. 116, and cases cited. 
 
 "Wills." Starr & Curtis Annotated Kurd's R. S. of 111., 1905, same 
 
 Statutes of Illinois, with Jones & section and chapter, p. 466. 
 
 31—62 111. 86.
 
 CONSTRUCTION OF WILLS— CONTINUED. 123 
 
 of the body of the person taking that estate, by that name, and 
 not to the heirs as meaning or explained to be sons, children, 
 etc. ; the heirs must be named to take as a class or denomina- 
 tion of persons in succession from generation to generation, 
 and by way of remainder, or at least, so that the estate to arise 
 from the limitation to the heirs, and the estate of freehold in 
 the ancestor shall both owe their effect to the same deed, will 
 or writing ; and that the several limitations shall give interests 
 of the same quality, both legal or both equitable. The rule 
 does not apply when the words lawful issue, sons or children, 
 are used, instead of the words 'heirs,' because those words 
 are regarded as words of purchase, and not of limitation ; and 
 the ancestor, when such words are used, will take only a life 
 estate, and his sons and children will take by purchase, or un- 
 der the will, for the reason that they are a designation of per- 
 sons to take originally in their own right. When taking in 
 character of heir, he must take in quality of heir, that is by 
 descent." This application of the statute of Illinois is con- 
 firmed and carried out.^^ 
 
 32 — West V. Fitz, 109 111. 425; named person without the use of 
 Lehndorf v. Cope, 122 111. 317; the words "heirs and assigns," the 
 Carpenter v. Van Orlinder, 128 devisee will take an estate in fee 
 111. 187; Lomax v. Shinn, 162 111. simple unless a less estate is lim- 
 127; Lombard v. Witbeck, 173 IlL ited by express words in a subse^ 
 405; McFarland v. McFarland, 177 quent part of the will or by con- 
 Ill. 215; Anderson v. Anderson, struction or operation of law. So 
 191 111. 102; Summers v. Highley, a provision in a will that the resi- 
 191 111. 196; Gannon v. Peterson, due of the testator's estate "shall 
 193 111. 378; Seager v. Bodie, 181 become vested in my adopted son 
 111. 518; Smith v. Kenny, 89 111. (naming same), and I hereby 
 App. 297; Davis v. Ripley, 194 111. give, devise and bequeath to 
 401; Thomas v. Miller, 161 111. 68; .... my son aforesaid, all the 
 Metzen v. Schopp, 202 111. 283; residue of my estate, .... to 
 Turner v. Hause, 199 111. 469; him and the heirs of his body for- 
 Brown v. John, 201 111. 295; Riss- ever," passes a life estate, only, 
 man v. Wierth, 220 111. 181. to the son, with remainder to heirs 
 
 Isfote. — In Metzen v. Schopp, su- of his body. Also, the words 
 
 pra, it was held a fee may be lim- "Without leaving issue," used in a 
 
 ited by a subsequent part of a will, clause of a will providing a dis- 
 
 Thus, if an estate is devised to a position of property in case of tha
 
 124 
 
 THE LAW OF ESTATES. 
 
 178. Where devises are made to trustee. The general rule 
 in regard to wills is, that a trust estate is not to continue be- 
 yond the period required for the purpose of the trust; and it 
 makes no difference whether the limitation to the trustee be in 
 fee or otherwise. But this general rule is subject to the qual- 
 ification, that such rule, when applied, shall be consistent with 
 the intention of the party creating the trust, as manifested by 
 the words used in the instrument by which the trust is created. 
 The instrument itself will be construed for the express purpose 
 of carrying out the intention of the testator as expressed by the 
 language of the will. In the cases cited, it is held, that not- 
 withstanding the devise is to the trustee in fee, the trustee took 
 a chattel interest only, for as many years as the minority of 
 the devise might last ; and the estate over is a vested remainder 
 and may or may not under the language used fall within the 
 statute of uses.-^3 
 
 death of the testator's son without 
 leaving issue, mean without leav- 
 ing issue at the death of the son, 
 and import a definite failure of is-, 
 sue. Smith v. Kimbell, 153 111. 
 368; Strain v. Sweeney, 163 111. 
 603. See chapter 50 of this work, 
 "Reversions and Remainders." 
 So if a clause in a will provides 
 that the sole survivor of the three 
 devisees shall be "the sole owner 
 in fee of all said premises," the 
 fee simple title is not reduced to a 
 life estate by reason of the further 
 declaration that "he shall con- 
 tinue to be such owner during the 
 rest of his life." A testator, after 
 devising an estate in fee, cannot 
 take from such estate the quality 
 of inheritance or the right of the 
 owner to alien the estate. Bowen 
 V. John, 201 111. 292. See also 
 12 Am. & Eng. Ency. of Law, 2d 
 ed., 890. Illinois Mutual Ins. Co. 
 V. Marseilles Manf. Co., 1 Gilm. 
 
 (111.) 236; Wicker v. Ray, 118 111. 
 472; Giles v Anslow, 128 111. 187; 
 Davis v. Ripley, 194 111. 399; Wal- 
 ker V. Pritchard, 121 111. 221; 
 Jones v. Port Huron Engine and 
 Thresher Co., 171 111. 502. A char- 
 acteristic of a base or determin- 
 able fee is, that upon the happen- 
 ing of a named event or the per- 
 formance of a named condition 
 the title conveyed is confirmed as 
 a title in fee simple. Lombard v. 
 Witbeck, 173 111. 396; Summers v. 
 Smith, 127 111. 645; Strain v. 
 Sweeny, 163 111. 603; Smith v, 
 Kimball, 153 111. 368. And see 
 and compare Bergan v. Cahill, 55 
 111. 160; Walker v. Pritchard, 121 
 id. 221; Siddons v. Cockrell, 131 
 id. 653; Johnson v. Johnson, 98 
 id. 564; Healy v. Eastlake, 152 id. 
 424; Thomas v. Miller, 161 id. 60. 
 33— Kirkland v. Cox, 94 111. 400; 
 Starr v. Moulton. 97 111. 525; 
 Preachers' Aid Society v. Eng-
 
 CONSTRUCTION OF WILLS— CONTINUED. 
 
 125 
 
 179. Repugnant clauses. Conditions that are repugnant to 
 the estate to which they are annexed are absolutely void.-*^^ The 
 Illinois authorities when applying this rule of construction, con- 
 sider all the words of the will, including its provisions and con- 
 ditions, for the purpose of ascertaining what estate the testator 
 intended to confer by the granting words of the will; and of 
 two repugnant clauses, the latter will prevail in a will; it will 
 be regarded as intended to modify the former where they are 
 simply inconsistent in part.^^ 
 
 land, 106 111. 125; Kellogg v. Hale, 
 108 111. 164. See also chapters 
 12 and 13 of this work, "Trusts 
 and Trustees." 
 
 'Note. — A devise of an estate, 
 real and personal, after the pay- 
 ment of debts, etc., to trustees, 
 with power "to make such disposal 
 of the estate as shall," in the Judg- 
 ment of the trustees, "benefit and 
 increase the value of said estate," 
 and imposing the duty of paying 
 to the testator's daughter "such 
 installments of money as in the 
 judgment of said trustees shall be 
 proper, and sufficient to meet her 
 current expenses and provide an 
 ample and comfortable support," 
 necessarily implies the power to 
 sell the lands of the testator and 
 convert them into money or in- 
 terest bearing securities, and the 
 power implied to sell is to sell the 
 whole title, and to this is essen- 
 tial the power to convey that title, 
 requiring as a condition precedent 
 a fee simple estate in the trus- 
 tees, Kirkland v. Cox, supra. In 
 the same case, the line of authori- 
 ties are given in the opinion by 
 Justice Schofield. as to when the 
 statute of uses executes the trust 
 
 created and the exceptions to the 
 operation of the statute of uses. 
 See pp. 411 to 414. The opinion in 
 Kellogg V. Hale, supra, by Justice 
 Craig, arises on a bill in equity to 
 compel a conveyance of land. The 
 opinion defining when the statute 
 of uses executes and passes legal 
 title to the person for whose use 
 made. The court holding in that 
 case, that it is the settled law of 
 England and this country, that a 
 conveyance of property from a 
 husband to his wife, when made 
 as a provision for her, will be sus- 
 tained and upheld in courts of 
 equity, where the rights of credi- 
 tors are not affected by such 
 transaction. See cases cited on 
 pp. 168, 169 of opinion. 
 
 34— Jarman on Wills, 810; 4 
 Kent's Com., sections 131, 270. 
 
 35— Bromfield v. Wilson, 78 111. 
 467; Johnson v. Johnson, 98 111. 
 570; Murfit v. Jessop, 94 111, 158; 
 City of Peoria v. Dant, 101 111. 
 609; Bland v. Bland, 103 111. 11; 
 Henderson v. Blackburn, 104 111, 
 227; Friedman v. Steiner, 107 111. 
 125; Hamlin v. U. S. Express Co., 
 107 111. 443; Noble v. Tipton, 219 
 111, 182,
 
 126 THE LAW OF ESTATES. 
 
 180. In Brownfield v. Wilson,^^ the testator by one 
 clause of his will gave to his wife a forty acre tract of land in 
 fee; and by a subsequent clause he gave to his children, to 
 share equally and alike in his real estate ; the real estate to be 
 sold after his wife's death. In construing the will, the court 
 said : ' ' We are clearly of opinion, that the second clause must 
 be read as devising to the persons named the remainder of his 
 real estate, after excluding the forty acres named in the first 
 clause. This seems to us the most reasonable interpretation 
 that can be given to this clause, when considered in connection 
 with the first." 
 
 181. In Friedman v. Steiner,^"^ a testator after making 
 certain bequests, devised the residue of his estate to his wife; 
 "and unto his heirs and assigns forever, to the total exclusion 
 of any and all persons whatsoever," but upon the express con- 
 dition that in case the wife should die intestate, and without 
 leaving her surviving lawful issue, then all the rest and residue 
 of the estate so bequeathed to the wife should be converted 
 into money, and paid over by his executors, as follows: To 
 A, $5,000, to B, $1,000, etc. Held, that the estate of the wife in 
 the realty was not a mere life estate with power to dispose of 
 the fee by will, as that could not be inherited, nor was it an 
 estate in fee simple, as it could not descend to her heirs gen- 
 erally, but to the heirs of her body; that the estate granted 
 the wife, was an estate in fee determinable, which may be per- 
 petual, or may be determined by her death intestate, without 
 lawful issue, or previous alienation of the land. A clear power 
 of sale conferred by will can be restricted only by subsequent 
 explicit words. Courts will not interfere with discretionary 
 powers of trustees except for fraud. It is also held, benefi- 
 ciaries cannot disaffirm sale, and retain the purchase money, 
 and the purchaser is not bound to look to the application of the 
 purchase money where power of sale is discretionary.^^ 
 
 36—78 111. 467. 38— Dickson v. N. Y. B. Co., 211 
 
 37—107 111. 125. 111. 468.
 
 CONSTRUCTION OP WILLS— CONTINUED. 127 
 
 182. Life estate power of sale. A power of sale exists by 
 or under the will only; it may be expressed by the language 
 of the will or it may be implied according to the construction 
 given the will in the absence of an expressed power to give 
 effect to the testator's intention. What is a life estate is often 
 a subject of controversy growing out of the language of the 
 will. The courts universally hold that a devise in fee in one 
 clause of the will may be restricted by other parts of the 
 will to a life estate; and when such appears by the language 
 of the will, they will not enlarge a life estate to a fee. The fol- 
 lowing cases construing wills contain an express power of sale 
 or a power of sale is implied from the language used in the will ; 
 the cases cited also make a distinction between a devise in fee 
 and one for life ; they are also striking illustrations of the ap- 
 plication of the general rule, "the intention of the testator gath- 
 ered from a consideration of the whole will, must prevail over 
 technical expressions and individual clauses in the will.''^^ 
 
 183. In Henderson v. Blackburn,^^ a devise for life to 
 ** occupy and use the same, or dispose of it and use and con- 
 trol the proceeds thereof," confines the power of sale to the 
 life interest. 
 
 184. In Green v. JSewett,'^'^ it was held: A life estate 
 was created subject to being terminated by marriage, 
 where the language of the will was, "the farm on which we 
 now reside, also my personal property so long as she remains 
 my widow"; at the expiration of that time, the whole, or 
 whatever remains, to descend, etc. Held, the words -'what- 
 ever remains" applied to the personal estate only. 
 
 39 — Welsch v. Belleville Savings Henderson v. Blackburn, 104 111. 
 
 Bank, 94 111. 191; Funk v. Eggles- 229; McCall v. Lee, 120 111. 268; 
 
 ton, 92 111. 515; Markillie v. Rag- Griffin v. Griffin, 125 111. 431; Clif- 
 
 land, 77 111. 101; Johnson v. John- ford v. Davis, 22 111. App. 316; 
 
 son, 95 111. 569; Mather v. Mather, Cashman's Will, 28 111. App. 351; 
 
 103 111. 608; Belslay v. Engle, 107 Dickson v. N. Y. B. Co., 211 lU. 
 
 111. 184; Ryan v. Allen, 120 111. 468. 
 
 653; Railsback v. Lovejoy, 116 111. 40—104 111. 229. 
 
 442; Cheney v. Teese, 108 111. 473; 41—97 111. 117.
 
 128 THE LAW OF ESTATES. 
 
 185. In Kirkpatrick v. Eirkpatrick^^ A will gave 
 the wife a life estate, with power to manage, rent, or 
 sell, and recites that after her death, "if not already dis- 
 posed of," it shall go to certain persons in remainder; held, 
 the phrase quoted does not enlarge the power of disposition, 
 so as to authorize a testamentary disposition by the life tenant. 
 
 186. In Chapin v. Crmv.^^ A grant to a person 
 named for and during his natural life, and, upon his death, 
 then to his sons^ gives the person named a life estate. 
 
 The will of A devised his property to his wife, *'to hold and 
 have to her, my said wife, and to her heirs and assigns for- 
 ever, but if she gets married again, then at the time of her 
 second marriage one-half of said estate, real and personal, to 
 be sold and divided as follows, etc.," passes a fee simple to 
 the widow, notwithstanding a subsequent clause attempting 
 to limit her interest to a life estate.** 
 
 187. In Bowerman v. Sessel.'^^ A testator left his 
 homestead to his wife during life, and devised that all 
 his property, real, personal and mixed, be put on interest for 
 the wife's benefit, and that at any time she might have any 
 additional amount which the executor should decide she 
 needed. The testator further provided, that after his wife's 
 death the homestead should be sold and certain legacies paid, 
 and that his wife should have his life insurance to use as she 
 saw fit, and then gave "all balance of my estate to my wife 
 to distribute as she sees fit after her death." Held, that this 
 last provision was valid, and gave the wife only a life estate, 
 with power of disposition. 
 
 188. In Walker v. Pritchard,^^ it was held: That 
 a life estate in personal property gives the donee a right 
 to consume such articles as cannot be enjoyed without con- 
 
 42—197 111. 144. 
 
 
 45—191 111. 651. 
 
 43—147 111. 219. 
 
 
 46—121 111. 221. 
 
 44 — Rissman v. Wierth, 
 
 220 111. 
 
 
 181. 
 

 
 CONSTRUCTION OF WILLS— CONTINUED. 129 
 
 sumption, and to wear out by use such as cannot be used with- 
 out destroying them. 
 
 189. Fee-tail — life estate to grantee — remainder in fee to 
 successor in tail — application of the rule in Shelly 's case. 
 
 Section 6 of chapter 30, entitled "Conveyances," provides: 
 ' ' In cases where, by the common law, any person or persons 
 might hereafter become seized in fee tail of any lands, tene- 
 ments or hereditaments, by virtue of any devise, gift, grant or 
 other conveyance, hereafter to be made, or by any other means 
 whatsoever, such person or persons, instead of being or becom- 
 ing seized thereof in fee tail, shall be deemed and adjudged to 
 be, and become seized thereof, for his or her natural life only, 
 and the remainder shall pass in fee simple absolute, to the 
 person or persons whom the estate tail would, on the death 
 of the first grantee, devisee, donee in tail, first pass, according 
 to the course of the common law, by virtue of such devise, 
 gift, grant or conveyance. "^'^ 
 
 190. In Frazer v. Supervisors,'^^ the statute quoted 
 is applied, the court saying: "It was obviously the purpose 
 of the general assembly, in adopting the sixth section, to pre- 
 vent the tying up of titles in perpetuity by entails. This man- 
 ifestly is the first purpose ; and another was to carry out the 
 intention of the grantor in making the conveyance, that the 
 land should go in remainder to the particular persons desig- 
 nated in the deed. The artificial and highly technical rules 
 of the ancient common law are not known or understood by 
 the people generally, or by the great majority of persons who 
 are called upon to prepare conveyances; and hence, it was 
 also the purpose of this statute to more effectually carry out 
 the intention of the parties. But few understand the rule in 
 Shelly 's case, which is defined to be, "in any instrument, if a 
 
 47 — Starr & Curtis Annotated cited; Vol. 4, p. 254, and cases 
 Statutes of Illinois, with Jones & cited; Vol. 5, p. 116, and cases 
 Addington's Supplements thereto, cited; Kurd's R. S. of 111., 1905, 
 Vol. 1, pp. 917, 918, and cases same section and chapter, p. 464. 
 
 48—74 111. 287.
 
 130 THE LAW OF ESTATES. 
 
 freehold is limited to the ancestor for life, and the inheritance 
 to his heirs, either mediately or immediately, the first taker 
 takes the whole estate; if it be limited to the heirs of his 
 body, he takes a fee tail; if to his heirs, a fee sim- 
 p2g_"49 "The general assembly must have intended to 
 refer to all estates tail created by the statute de donis. 
 They speak of persons becoming seized o"f such estates 
 by the common law, when we have seen that estates tail 
 grew out of the statute de donis, and not out of the common 
 law. The object of our statute was to convert the estate tail 
 in the donee into an estate for life^ and in the person who 
 would first take under the grant into an estate in fee simple 
 absolute, and thus cut off the reversion to the donor expectant 
 on the failure of issue of the donee, of this class designated in 
 the instrument conveying the land, and to vest the fee in the 
 first taker. The last clause of the section, in declaring that 
 the fee should pass according to the course of the common 
 law, by virtue of the instrument creating the estate, is mani- 
 festly intended in the same manner as the reference to the 
 common law in the first clause of the section. It could not 
 have been intended to so limit or qualify the provision as to 
 the manner the heir should take, else other and very different 
 language would have been employed." In Belslay v. 
 Engle,^^ it is said: The rule in Shelly 's case, is at most 
 a technical rule of construction, and must give way to the 
 clear intention of the testator or donor, where that intention 
 can be ascertained from the instrument in which the words 
 supposed to be words of limitation are used."^ 
 
 49 — Preston on Estates, section The last case cited quotes the 
 
 263. rule laid down in Blackstone, and 
 
 50—107 111. 182. applies that rule to the decision 
 
 51 — The following cases support of the case, viz.: p. 292, "the word 
 
 the text in 189 {ante) and also 'heirs' is necessary to create a fee, 
 
 the suhstance of cases cited in so, in further limitation of the 
 
 {ante 190) Butler v. Herests, 68 strictness of the feudal donation, 
 
 111. 594; Voris v. Sloan, 68 111. 588; the word 'body,' or some other 
 
 Blair v. Vanblarcum, 71 111. 290. word of procreation, are necessary
 
 CONSTRUCTION OF WILLS— CONTINUED. 131 
 
 191. A fee simple title is intended if a lesser estate be not 
 limited by express words. In the first instance it is presumed 
 that the grantor or donor had the title he sought to convey, 
 for he can not grant or give that which he has not. This 
 fundamental rule is always applied in the matter of construc- 
 tion, to ascertain what title the grantor or donor had, and 
 what in contemplation of law he did convey or devise, aided 
 by a view of the entire instrument construed and the intention 
 manifest therein of the grantor or donor. Thus a deed from 
 a life tenant passes only a life estate to the grantee, and the 
 possession of the latter is, in contemplation of the law, the 
 possession of the remainderman, the same as was the posses- 
 sion of the original life tenant.^^ Again, where an estate is 
 devised to A without the use of the words "heirs and assigns" 
 A will take a fee simple estate of inheritance unless the will or 
 instrument of conveyance reduces the estate to an estate less than 
 a fee by express words, or by construction or operation of 
 law.^2 So where a testator bequeathed and devised imto 
 his only daughter ''and to the heirs of her body and to their 
 heirs and assigns," all his real estate, it was held imder this 
 devise the daughter took a life estate only, with the remain- 
 der over to the heirs of her body in fee simple absolute, and 
 that the limitation to her heirs was valid and binding. ^^ A 
 
 to make it a fee tail, and ascer- portions:" Held, that Mary took 
 
 tain to what heirs in particular under this devise, a simple life es- 
 
 the fee is limited." The clause tate, with a remainder over to 
 
 of the will construed and applica- the heirs of her body, in fee sim- 
 
 ble was: "I will, give, bequeath pie absolute, and that the limita- 
 
 and devise unto my daughter tion to her heirs was valid and 
 
 (naming her), and to the heirs binding. 
 
 of her body, and to their heirs 52 — Turner v. Hause, 199 III. 
 
 and assigns, all my real estate, of 464; Giles v. Anslow, 128 111. 
 
 whatever description and wher« 187; Mettler v. Miller, 129 111. 
 
 ever situated; and in case the said 630. 
 
 Mary shall die without issue, then 53 — Wolfer v. Hemmer, 144 111. 
 
 the real estate hereby willed, be- 554; Saeger v. Bode, 181 111. 514; 
 
 queathed and devised unto her. Smith v. Kimball, 153 111. 368; 
 
 shall go to and descend unto my Rissman v. Wierth, 220 111. 181. 
 
 brothers and sisters, and to their 54 — Blair v. Vanblarcum, 71 III. 
 
 heirs and assigns, in equal pro- 290; Turner v. Hause, 199 111. 464;
 
 132 
 
 THE LAW OF ESTATES. 
 
 power of sale superadded to a life estate does not enlarge such 
 estate to a fee.^^ Where the testator devised to his children 
 and "to them only and the heirs of their bodies share and share 
 alike," it was held, the instrument passed a life estate to such 
 children with remainder in fee in each share to the heirs of their 
 respective bodies.'^^ And in case of an entire failure of issue, to 
 the heirs at law of the devisor.^ ^ 
 
 A devise of an estate in fee simple to the testator's widow, 
 followed by the qualification that if she re-marries she shall 
 have only one-third of the estate, passes a base or determina- 
 ble fee, and not merely a life estate. The devisee of a base 
 or determinable fee has the same rights as if the devise were 
 in fee simple absolute.^^ 
 
 Where use of the words in a will "whatever remains" was 
 held not to enlarge a life estate into a fee.^® And where a will 
 contained the words "all the rest and residue of my property, 
 in fee simple, I give, devise, etc., to my wife for life, after her 
 
 Lewis V. Pleasants, 143 111. 271; 
 Frazer v. Supervisors, 74 111. 282; 
 Cooper V. Cooper, 76 111. 57; Lehn- 
 dorf V. Cope, 122 111. 317; Din- 
 widdle V. Self, 145 111. 290; Kyner 
 V. Boll, 182 111. 171. 
 
 55— Walker v. Pritchard, 121 
 111. 221. 
 
 56 — Peterson v. Jackson, 196 111. 
 44. 
 
 57— Turner v. Hause, 199 111. 
 464. 
 
 58— Becker v. Becker, 206 111. 
 53. Also supporting the rule and 
 doctrine of that case, see Wiggins 
 Ferry Co. v. Ohio & Mississippi 
 Railway Co., 94 111. 83; Lumbard 
 V Witbeck, 173 111. 396; Chapman 
 V. Cheney, 191 111. 574; Gannon 
 V. Peterson, 193 111. 372; 2 Am. 
 and Eng. Ency. of Law, 2nd ed., 
 368, 369, and cases cited. 
 
 Isfote. — In the case of Becker v. 
 Becker, supra, the following rule 
 
 is quoted from Underbill on 
 Wills, sec. 507, and applied to the 
 case, giving construction to short 
 will of testator. "No rule of law 
 prevents the testator from giving 
 her a fee simple in lieu of dower, 
 which shall be defeasible and 
 shall go to others on her re-mar- 
 riage. Thus, where the testator 
 in general terms devises land in 
 trust, to pay the income to the 
 widow for an indefinite period, 
 without words of perpetuity or 
 inheritance (and a fortiori, when 
 it is to her and her heirs), with 
 a proviso that if she shall re-mar- 
 ry the land is to go to others. 
 She takes a fee — conditional at 
 common law, which will be de- 
 feated by her re-marriage; but if 
 she dies without having re-mar- 
 ried, the fee descends to her heirs 
 and the devise over is defeated." 
 59— Vannetta v. Carr, 223 111. 
 160.
 
 CONSTRUCTION OF WILLS— CONTINUED. 133 
 
 death to be equally divided, etc.," held to pass a life estate 
 only to widow, with remainder to heirs.^*^ 
 
 192. The rule in Shelly 's case. "In any instrument, if a 
 freehold be limited to the ancestor for life, and the inheritance 
 to his heirs, either mediately or immediately, the first taker 
 takes the whole estate ; if it be limited to the heirs of his body, 
 he takes a fee tail; if to his heirs a fee simple." This rule is 
 closely allied with the subject of life estates; the rule is in 
 full force and operation in the state of Illinois. A very elab- 
 orate discussion of the rule in connection with the statute of 
 Illinois, sections 6, 13, chapter 30, entitled "Conveyances," 
 can be found in the opinion rendered in Frazer v. Supervisors, 
 etc.,^^ and authorities cited in sections of this work 193 to 195. 
 
 193. In Hageman v. Hageman,^'^ Chief Justice Shope, 
 quoting from Kent, says: "The result of the famous 
 controversy tended to confirm, by the weight of judicial au- 
 thority at Westminster Hall, the irresistible pre-eminence of 
 the rule, so that even the testators' manifest intent could not 
 control the legal operation of the word 'heirs,' when stand- 
 ing for the ordinary line of succession as a word of limitation, 
 and render it a word of purchase. If the term 'heirs,' as 
 used in the instrument, comprehend the whole class of heirs, 
 and they become entitled on the death of the ancestor, to the 
 estate, in the manner and to the same extent, and with the 
 same descendible qualities, as if the grant or devise had been 
 simply to A, and his heirs, then the word 'heirs' is a word 
 of limitation, and the intention will not control the legal effect 
 of the word." This doctrine has received repeated recogni- 
 tion by this and other courts where the rule in Shelly 's case 
 
 60— Wallace v. Bozarth, 223 111. 254, 255, and cases cited; Vol. 5, 
 
 339. p. 116, and cases cited. Kurd's R. 
 
 66—75 111. 287. Starr & Curtis' S. of 111., 1905, same section and 
 
 Annotated Statutes of Illinois, chapter, pp. 464, 466. Rissman v. 
 
 with Jones & Addington's Supple- Wierth, 220 111., pp. 181, 185 to 
 
 ments thereto. Vol. 1, pp. 917, 918, 187, reviews former cases, apply- 
 
 925, and cases cited; Vol. 4, pp. ing rule in Shelly's case. 
 
 67—129 111. 167.
 
 134 THE LAW OF ESTATES. 
 
 is in force.^8 The same Chief Justice, citing from 
 Preston on Estates,^^ "In wills, the rule applies gen- 
 erally, and without exception, to the several limitations, as 
 often as the gift to the heirs is without any expression of 
 qualification, and that neither the express declaration, first, 
 that the ancestor shall have an estate for his life, and no 
 longer; nor, secondly, that he shall have only an estate for 
 life in the premises, and that after his decease it shall go to 
 the heirs of his body, and in default of such heirs vest in the 
 person next in remainder, and that the ancestor shall have no 
 power to defeat the intention of the testator; nor, thirdly, 
 that the ancestor shall be tenant for life, and no longer, and 
 that it shall not be in his power to sell, dispose or make way 
 with any part of the premises, will change the word 'heirs' 
 into a word of purchase." Under the Illinois decisions, when 
 the statute gives a fee unless the contrary appears, the rule in 
 Wild's case, which in certain cases enlarges, by construction, a 
 life estate into an estate tail, does not apply. '^'^ 
 
 194. In Baker v. Scott, "^^ it is said: The rule in 
 Shelly 's case is a rule of property in this state, and 
 its application to the particular case depends, not upon 
 the quality of the estate intended to be given to the ancestor, 
 but upon the estate devised to the heir. When the devise is 
 to heirs generally, the rule applies, and is held to conclusively 
 express the intention of the testator ; and, will necessarily gov- 
 ern and control in determining the estate devised, notwith- 
 standing the expression of an intention on the part of the 
 testator that the ancestor shall take a less estate than the fee. 
 
 195. In the case of Carpenter v. Van Orlinder,''- Mr. 
 Justice Schofield reviewing the authorities at length in this 
 
 68— Baker v. Scott, 62 111. 88; 70— Davis v. Ripley, 194 111. 
 
 Wicker v. Ray, 118 111. 472; Ryan 399; Boehm v. Baldwin, 221 111. 
 
 V. Allen. 120 111. 648; Carpenter v. 59. 
 
 Van Orlinder, 127 111. 42. 71—62 111. 88; Ryan v. Allen, 
 
 69— Preston on Estates, Vol. 1, 118 111. 472. 
 
 pp. 281-283. 72—127 111. 42.
 
 CONSTRUCTION OF WILLS— CONTINUED. 135 
 
 and other states, where the rule in Shelly 's case is and is not 
 applied, quotes with much approval from Mr. Justice Elliott, 
 delivering the opinion in Allen v. Croft J^ "It has 
 seemed to many that there is a conflict between the rule 
 declaring that the intention of the testator must govern, and 
 the rule in Shelley 's case ; but the appearance of conflict fades 
 away when it is brought clearly to mind that when the word 
 'heirs' is used as a word of limitation, it is treated as con- 
 clusively expressing the intention of the testator. Where it 
 appears that the word was so used, the law inexorably fixes 
 the force and meaning of the instrument. If once it is granted 
 that the word was used in its strict legal sense, nothing can 
 avert the operation of the rule in Shelly 's case; so that the 
 inquiry is, was the word used as one of limitation? The only 
 method in which an instrument employing the word 'heirs' 
 can be shown not to be within the rule, is by showing that 
 the word was not employed in its strict legal sense." The 
 doctrine thus elaborately and finely stated was adopted and 
 sustained in three cases,'^* treating the devise in the will con- 
 strued, as if the language used in the will was a devise to the 
 daughter of the testator and their heirs, without qualification. 
 
 73 — 109 Ind. 475. three daughters took an estate in 
 
 74 — Ryan v. Allen, 118 111. 472; fee simple, as tenants in common. 
 
 Wicker v. Ray, 120 111. 648; Allen subject to dower, and that either 
 
 V. Carpenter, 127 III. 42; note Car- heir might have sold her estate, 
 
 penter v. Van Orlinder, 127 HI. 42. without regard to the others, and 
 
 In the case of Carpenter v. Van that the word "heir," in the de- 
 
 Orlinder, stcpra (72), a testator vise, under this will, was not used 
 
 devised to his wife and three as the equivalent of "child" or 
 
 daughters "the use of all" his "children" or "issue." This brings 
 
 property after the payment of his the case within the rule in Shel- 
 
 debts, to be divided between them ly's case. In this case former de- 
 
 "as the same would be by law cisions are reviewed, including 
 
 without a will," except that none text writers' rules, supported by 
 
 of the real estate, other than the unquestioned decisions. Preston 
 
 wood-land, be sold or disposed of, on Estates, Vol. 1, pp. 281, 283; 4 
 
 "but be kept sacred for their Kent's Com., p. 233, 8th ed. ; Hay's 
 
 heirs." Held, that the widow took Principles for Expounding Dispo- 
 
 a dower estate for life, and the sitions of Real Estate, 96 (7 Law
 
 136 THE LAW OF ESTATES. 
 
 196. Vesting of estates — vested and contingent remainders. 
 A vested remainder is one by which a present interest passes 
 to a party, though to be enjo3''ed in the future, and by which 
 the estate is invariably fixed to remain to a determinate per- 
 son after the particular estate has been spent.^^ A 
 contingent remainder is one limited to take effect on 
 an event or condition which may never happen or be 
 performed, and by which no present or particular interest 
 passes to the remainder-man, so that the particular estate may 
 chance to be determined and the remainder never take 
 effect.^^ The question of vesting or remaining contin- 
 gent depends upon the condition of the intervening 
 estate determining, and the estate over taking effect; it is 
 one that may happen some time, or it may never happen. If 
 the former, then the estate in remainder will always be re- 
 garded as vested.^2 The law does not determine who 
 shall be the heirs of any person, until his death; and one to be 
 an heir of another, must survive that other.^^ j^ ^[n ]^q noted, in 
 relation to the vesting of estates, that the cases cited to sustain 
 the text, falls within one or the other of the following classes. 
 First: Where the gift takes effect, both in interest and possession, 
 at the death of the testator, unless such gift is expressl}^ or 
 by necessary implication, deferred to a future period. Second: 
 Where the gift is so limited as to take effect, both in interest 
 and possession, at a specified time subsequent to the testator's 
 death. Third: Where it is limited to take effect in interest 
 
 Lib. 52) ; Bender v. Fleurie, 2 see Underbill on Wills, pp. 192, 
 
 Grant's Cases, 345; Butler V. Hues- 212; "Underbill and Straban's" 
 
 tis, 68 111. 594; Hileman v. Bous- Rules, Articles 39 to 43, inc. 
 
 laugb, 13 Pa. St. 344; Allen v. 81—2 Blackstone's Com. 169. 
 
 Croft, 109 Ind. 476; Tbeobald on 82— Hunt v. McCartney, 18 111. 
 
 Wills, 336, et seq.; Wicker v. Ray, 129; Gill v. Manufacturing Co., 92 
 
 118 111. 472; Ryan v. Allen, 120 111. 254; 2 Redfield on Wills, Sees. 
 
 id., 648; Miller v. Ford, 109 Ind. 215, 217; Jarman on Wills, Sec. 
 
 159; Urich Appeal, 86 Pa. St. 386. 406. 
 
 80—3 Blackstone's Com. 169; 83— McCartney v. Osburn, 118 
 
 111. 403.
 
 CONSTRUCTION OF WILLS— CONTINUED. 137 
 
 at the testator's death, but the vesting in possession is de- 
 ferred to a future period. Fourth: Wliere the gift is limited 
 in such a manner as to take effect, both in interest and pos- 
 session, upon some contingency or event, which may or may 
 not happen till after the testator's death. All these rules of 
 limitations are applied to the individual as well as to the sev- 
 eral classes; and it will be found from the numerous authori- 
 ties they are thus treated, whenever it is necessary to apply 
 the same to individuals or classes. Thus to "Harry as heir 
 of his deceased mother^" characterizing the person by name, 
 makes reference to the same person as Harry Smith. Or if 
 to classes "my children living" or grandchildren, "the heirs 
 my grandchildren living at the time of distribution." A con- 
 tingent remainder and a vested remainder, and the legal appli- 
 cation of such when children and others take are fully dis- 
 cussed in the following cases cited.^^ 
 
 In the following cases it is held, a remainder is contingent 
 when the person to take cannot be ascertained until the termi- 
 nation of the particular estate ; a remainder contingent upon 
 death or re-marriage of a certain person, is not excelerated 
 by conveyance of such person's interest to a third person.^^ 
 
 84— Dee v. Dee, 212 111. 338; rick v. Kirkpatrick, 197 111. 150; 
 
 McCartney v. Osburn, 118 111. 403; Railsback v. Lovejoy, 116 111. '442. 
 Boyd V. Broadwell, 19 III. App. 85 — Brownback v. Keister, 220 
 
 178; Banta v. Boyd, 118 111. 186; 111. 544. In Clark v. Shawen, su- 
 
 Kingman v. Harman, 131 111. 171; pra (84), the word "heirs" or 
 
 Knight V. Pottgieser, 176 111. 374; "heirs-at-law," when used in a 
 
 Harvard College v. Balch, 171 III. will, was held to apply to those 
 
 280; Seager v. Bode, 181 111. 518; who were heirs of the testator at 
 
 Burton v. Gagnon, 180 111. 352; his death; and such is the rule un- 
 
 Lambe v. Drayton, 182 111. 117; less the intention of the testator 
 
 Nevett V. Woodburn, 190 111. 288; to refer to those who shall be his 
 
 Field V. People, 180 111. 381; Lehn- heirs at some subsequent period 
 
 ard V. Specht, 180 111. 213; Grim- is plainly manifested by the will, 
 
 mer v. Friedery, 164 111. 248; Mc- And so in that case it is held, in 
 
 Connell v. Stewart, 169 111. 379; the absence of a contrary inten- 
 
 Clark V. Shawen, 190 111. 55; John- tion, a devise of a life estate, with 
 
 son V. Askey, 190 111. 63; Boatman remainder over to a class of per- 
 
 V. Boatman, 198 111. 419; Kirkpat- sons not named but described, will
 
 138 
 
 THE LAW OF ESTATES. 
 
 197. Joint tenancy — tenancy in common. Section 5, chap- 
 ter 30, entitled "Conveyances," provides: *'No estate in joint 
 tenancy, in any lands, tenements or hereditaments, shall be 
 held or claimed under any grant, devise or conveyance, what- 
 soever, heretofore or hereafter made, other than to executors 
 and trustees, unless the premises therein mentioned shall ex- 
 pressly be thereby declared to pass, not in tenancy in common, 
 but joint tenancy; and every such estate, other than to execu- 
 tors and trustees (unless otherwise expressly declared as afore- 
 said), shall be deemed to be in tenancy in common."®^ 
 
 In the well considered case of Cheney v. Teese,^"^ 
 the court applying the statute quoted, in construing the will 
 before it, say: "Unless expressly created, a devise to grand- 
 children born to the testator's two daughters, who were to 
 have possession of the estate during their natural lives, cre- 
 
 vest the remainder, at the testa- 
 tor's death, in the persons then 
 comprising the class, the right of 
 enjoyment, only, being postponed. 
 The case turns on this clause of 
 the will in question. The testator 
 left his entire estate to his wife 
 for life, with specific bequests out 
 of the remainder at Ker death, and 
 provides "the residue of my estate, 
 if there be any left, be divided, 
 according to the Statute of the 
 State of Illinois, amongst all my 
 heirs, except those above named 
 that I have excluded." Held, the 
 word "heirs" refers to those an- 
 swering the description at the tes- 
 tator's death, and not to those who 
 would be his heirs at the death of 
 the wife. 
 
 In the case of Johnson v. Askey, 
 supra (84), it is said, a technical 
 construction of words and 
 phrases, although prima facie the 
 one which should prevail, will not 
 
 be carried to the extent of defeat- 
 ing the obvious general intention 
 of the testator, particularly where 
 the will is drawn by a person un- 
 acquainted with the precise tech- 
 nical force of the legal formulas 
 employed by him. And it is in 
 that case held, if it clearly ap- 
 pears, from the entire will, that 
 it was the intention of the testator 
 that the remainder should not vest 
 at the time of his death, but at 
 the period of distribution, such 
 intention will be carried out by 
 the courts. See also Chapter 50 
 of this work, "Reversions and Re- 
 mainders." 
 
 86 — Starr & Curtis' Annotated 
 Statutes of Illinois, with Jones & 
 Addington's Supplements thereto. 
 Vol. 1, pp. 916, 917, and cases 
 cited; Vol. 4, p. 254, and cases 
 cited; Vol. 5, p. 116, and cases 
 cited. Kurd's R. S. of 111., 1905. 
 same section and chapter, p. 464. 
 
 87—108 111. 473.
 
 CONSTRUCTION OF WILLS— CONTINUED. 139 
 
 ates a life estate in the two daughters until the death of both, 
 as tenants in common, from the testator's death, without any 
 right of survivorship, and on the death of one of the daugh- 
 ters, the estate devised to her does not terminate, but survives 
 in favor of her grantees, heirs or devisees, whether any parti- 
 tion has been made or not; that upon the death of one of the 
 daughters her interest did not pass to the surviving daughter, 
 but passed to the heirs of the deceased daughter; or in case 
 of a will to her devisees, until the death of the other daughter, 
 in the absence of express words in the will creating in them 
 a joint tenancy." In Mittel v. Karl, and Slater v. 
 Gruger, it is held:^^ That no estate in joint tenancy 
 shall be held or claimed, unless the premises shall expressly be 
 thereby declared to pass, not in tenancy in common, but in 
 joint tenancy. But since the married woman's act, a deed or 
 devise to husband or wife make them tenants in common, and 
 not tenants by the entirety. ^^ In the case of Magnuson v. Mag- 
 nuson, the court citing this section of the statute, say:®^ 
 "Under the statute M and L would have taken by the will as 
 tenants in common and upon M's dying prior to the death of 
 the testator the devise to him would lapse. Being tenants in 
 common, the devises which lapse are not reabsorbed into the 
 residue, but go as intestate property. In case of the failure or 
 revocation of the devise to any of the tenants in common such 
 shares descend to the heir-at-law of the testator, unless the 
 devise be to the objects of a class. "''^ It is said in 
 Vnderliill on Wills, section 336: "Where a lapse takes 
 place in the gift of the residue, either because the 
 sole residuary beneficiary has pre-deceased the testator 
 or because one of the several residuary beneficiaries who 
 take as tenants in common have died before him, the gift which 
 lapses is not reabsorbed into the residue, but goes as intestate 
 property either to the heirs or the next of kin of the testator, 
 according to the nature of the property. This rule does not 
 
 88—133 111. 65; 165 111. 332. 90—197 111. 498. 
 
 89— Cooper v. Cooper, 76 111. 57; 91 — 3 Jarman on Wills, 5th Am. 
 
 Mittel V. Karl. 133 111. 65. ed., p. 17.
 
 140 THE LAW OF ESTATES. 
 
 apply to a residue which is given in language which creates a 
 joint tenancy among the residuary legatees, and a fortiori 
 where the residuary gift is to several who take as members of 
 a class, to be ascertained at the death of the testator." The 
 court citing the following case to sustain the doctrine an- 
 nounced in the decision :^2 ^ j)SLYt of the residue of which the 
 disposition fails will not accrue in argumentation of the remain- 
 ing parts as a residue of a residue, but, instead of resuming the 
 nature of a residue, devolves as undisposed of.'^^ Where a testator 
 devises to three of his children property as tenants in common, 
 and subsequently revokes the devise to one and makes no dis- 
 position whatever of the share revoked, such share will go to 
 the other two, but it will descend as provided in the statute of 
 descent. "94 
 
 Joint tenancies are not favored in Illinois; under section 5, 
 chapter 30, entitled ''Conveyances,"^'^ no estate in joint tenancy 
 passes under any grant, devise or conveyance, other than to 
 executors and trustees, unless the premises shall be expressly 
 declared to pass, not in tenancy in common, but in joint ten- 
 ancy. If a grant or devise imparts the quality of survivorship 
 to the estate, a joint tenancy is created, even though it is not 
 expressly declared that the estate is not a tenancy in common.^'^ 
 
 198. Conditions and conditional Limitations or condition 
 precedent and subsequent. Where a devise is to take effect 
 only upon the performance by the devisee of a precedent con- 
 dition, the condition must be strictly performed; and where 
 
 92 — Skrymsher v. Northcote, 1 supra (96), a devise in the will 
 
 Swanst. 570. was to the testator's daughter and 
 
 93 — Powers v. Godwise, 172 his wife, "jointly," of certain de- 
 Mass. 425 ; 2 Redfield on Wills, 2nd scribed property, "to them and to 
 ed., p. 118, and cases cited. their heirs and assigns forever." 
 
 94 — Minkler v. Simons, 172 111. Held, creates a tenancy in com- 
 
 328. . mon, and not a joint tenancy, not- 
 
 95 — Starr & Curtis' Annotated withstanding the use of the word 
 
 Statutes of Illinois, "Vol. 1, p. 916. "jointly." This opinion being sus- 
 
 96— Mustain v. Gardner, 203 111. tained by Slater v. Gruger, 165 HI. 
 
 284, and cases cited on page 286. 329; Davis v. Smith, 4 Harr. 68; 
 
 Slater v. Gruger, 165 111. 332. In Billingsled v. Baldwin, 23 Md. 115. 
 the case of Mustain v. Gardner,
 
 CONSTRUCTION OF WILLS— CONTINUED. 141 
 
 there is a substantial deviation from the intent of the testator 
 as expressed in his or her will, the title will not vest. A court 
 of chancery will never vest an estate, when, by reason of a con- 
 dition precedent, it will not vest at law. And if the precedent 
 act to be performed consists of several particulars, every par- 
 ticular must be performed before the estate can vest or take 
 effect. The legatary takes nothing till the condition is per- 
 formed, and consequently has no right to demand the legacy, 
 but it is otherwise where the condition is subsequent.®' A testa- 
 tor devised to his three children ''eighty acres of land each, 
 which I may hereafter select for each to have out of my land." 
 Under construction of the will it was held, that the selection of 
 the eighty acres which each child was to take was a condition 
 precedent, on which the remainder was to vest, which condition 
 not being performed the devise of the remainder was inopera- 
 tive.®^ A provision in a will, that "if a certain legatee, or any 
 one claiming under him, should attempt to deprive testator's 
 widow of any right given her by the will, their rights should be 
 forfeited," and should pass to certain collateral heirs named, 
 was a condition subsequent^ and not a condition precedent to the 
 vesting of the estate.®® 
 
 199. In Jennings v. Jennings,''- it is said: The ques- 
 
 97 — Nevins v. Gourley, 95 111. precedent; but if the condition be 
 
 206. subsequent, the condition is held 
 
 98— Goff V. Pensenhafer, 190 111. void, and the gift absolute. 
 
 200. Wright v. Mayer, 47 N. Y. App. 
 
 99— Nevitt v. Woodburn, 190 111. Div. 604. Same v. Same, 62 N. Y. 
 
 283. A condition in restraint of Sup. 610; Witherspoon r. Brokaw, 
 
 marriage annexed to a gift by will 85 Mo. App. 169; Ramsdell v. 
 
 to one who has never been mar- Boston, 172 111. 439; Conrad v. 
 
 ried, is held to be contrary to pub- Long, 33 Mich. 78; HawKe v. En- 
 
 lic policy, and void. The law fa- yart, 30 Neb. 149; Thayer v. 
 
 vors marriage, and therefore does Spear, 58 Vt. 327; Born v. Harts- 
 
 not recognize a condition annexed man, 80 Cal. 452. But see in this 
 
 to a gift against marrying at all, connection a review of cases in 
 
 Maddox v. Maddox, 11 Gratt. (Va.) this regard in matter of Haight, 
 
 804; 80 Am. Dec. 492-494; 38 Am. 51 N. Y. App. Div. 310; C4 N. Y. 
 
 Dec. 156-161; 1 L. R. A. 837, 838. Sup. 1029; also see Rood on Wills, 
 
 A gift made to a wife on condition sees. 212, 611 to 614, inclusive, and 
 
 she shall not live with her husband cases cited indicating conflict in 
 
 is void, where the condition is the opinions. 
 
 1—27 111. 518.
 
 142 THE LAW OP ESTATES. 
 
 tion of whctlier a condition is precedent or subsequent in 
 one clause of the will, can only be determined by ascertaining 
 the intention of the testator, as manifested in the will. In case 
 of doubt, the .rule of construction requires that the entire in- 
 strument, and all of its provisions, shall be considered, to ascer- 
 tain its meaning. That part of the will in question construed, 
 and to which this doctrine was applied being as follows: "A 
 testator gave to his wife all his estate, to be disposed of in any 
 way that could best support her for life, but if his sons, John 
 and Thomas, should take care of their mother, they were to 
 have certain lands; but if they failed to support their mother, 
 then she could sell the land, or any part of it, to support her- 
 self ; but if the sons complied with these conditions, they were 
 to take immediate possession of the land. The court in con- 
 struing this will say: The testator intended to charge his 
 entire estate with the support of his widow ; that the question 
 of support was a condition subsequent, the word ''comply" 
 being used in the sense of "assent," and when John and 
 Thomas assented, the estate passed to them, burdened with 
 the condition of support of the mother ; that the widow of John 
 being his heir, and proffering to support the widow, had a 
 right to inherit and possess the estate, and could compel the 
 grantee of the widow to re-convey to her. In the case 
 of Illinois Land and Loan Co. v. Bonner, - where the will 
 failed to provide for the event that did happen in that case, 
 the court held: The testatrix did not in her will provide for 
 the events that have happened, that is^ of her sister dying 
 over eighteen years of age and her brother under twenty-one 
 years of age. In such case, the court will not provide for the 
 unforeseen events. Where the testator, in the disposition of 
 his property, overlooks a particular event, which, had it oc- 
 curred to him, he would in all probability have provided against, 
 the court will not rectify the omission by implying or asserting 
 the necessary clause. Conceiving it would be much like mak- 
 ing a will for the testator, rather than construing that already 
 inade.3 
 
 2—75 111. 315. 3— Cited in support of tlie doc-
 
 CONSTRUCTION OF WILLS— CONTINUED. 143 
 
 200. Conversion. The doctrine of conversion is the same, 
 whether the conversion be wrought by will or contract. A 
 devise of real estate, which by the provisions of a willj is to 
 be converted into money, and that money distributed among 
 the devisees, must be treated as a devise of money and not of 
 land. • Devisees may elect to take the land itself, instead of 
 the money ; but the character of the devise cannot be changed 
 from money to land without the concurrence of all the dev- 
 isees; when there is no election to take the real estate, it is 
 to be considered as converted from the time of the testator's 
 death.^ Equity has power, in a proper case, to authorize a con- 
 vei^ion of tinist property contrary to the provisions of the will 
 creating the trust.^ 
 
 201. Election allied with doctrine of conversion. Election 
 is founded upon the equitable rule or principle: "He who 
 accepts a benefit under a will must adopt the whole contents 
 of the instrument, conforming to all its provisions and renounc- 
 ing every right inconsistent with it."^ Election may be express 
 
 trine in Illinois Land & Loan Co. not affect the validity of the gift 
 
 V. Bonner, supra, 2 Roper on Leg- to the children of the testator's 
 
 acies, 1464; same, Sec. 619, and son, and the absolute interest in 
 
 marginal notes, with rule "A con- the fund vests in them subject to 
 
 tingency divesting a prior vested their father's life estate and the 
 
 interest must happen literally." provisions of the will respecting 
 
 See also in this connection Chap- the purpose of the trust, and to 
 
 ter 50 of this work, "Reversions the rights of afterborn brothers 
 
 and Remainders." In Nevitt v. or sisters, if any, to be let in. 
 
 Woodburn, supra (99), where the 4 — Baker v. Copenbarger, 15 III. 
 
 testator bequeathed a trust fund 105; Rankin v. Rankin, 36 111. 293; 
 
 to his son for life with remainder Ridgeway v. Underwood, 67 111. 
 
 to his children, and at their death, 419; Estate of Joel Carington, 124 
 
 if childless, to go to collateral 111. 363; Fisher v. Fairbanks, 188 
 
 heirs of the testator. Held, the 111. 191. See Equitable conver- 
 
 limitation over to the collateral sions, doctrine of, sections 310, 
 
 heirs is void, under the rule 311, 312, 379, 57, 70, 71, 75, 610 
 
 against perpetuities, where, at the of this work, as applied to cases 
 
 testator's death, two children of arising under rules of construc- 
 
 his sons were in being but no tion. 
 
 children had been born to them; 5 — Johnson v. Buck, 220 111. 226. 
 
 but it is said, the holding of such 6 — 2 Jarman on Wills, page 443, 
 
 limitation over to be void, does and cases cited; Wooley v. Schra- 
 
 der, 116 111. 37.
 
 144 THE LAW OP ESTATES. 
 
 or implied from the construction or interpretation of the lan- 
 guage used in the will or instrument before the court. The 
 doctrine of elections, as between inconsistent rights, is well 
 established in this state ; its most frequent application has been 
 made to persons taking title under wills; and, as applied to 
 such instruments, a person may not, at the same time take 
 under a will and contrary to it. Equity has established its 
 maxim to fit the case exactly: "He who would accept the 
 bounty of another must do so upon such terms and conditions 
 as the donor may choose to impose." One who takes under a 
 will cannotj therefore, insist that the provisions in his favor 
 shall be executed, while those to his prejudice shall be an- 
 nulled. He must accept the will in its entirety or not at all.'' 
 
 202. Testator presumed to dispose of his whole estate. It 
 is a rule of construction, that a testator, when he makes and 
 publishes his will, intends to dispose of his whole estate, unless 
 the presumption is rebutted by the provisions of his will, or 
 evidence to the contrary.^ In determining the intention of the 
 testator, the presumption of law is, that he intended by his will 
 to dispose of all his projDerty and to leave none as intestate.^ 
 
 203. In Schofield v. Olcott, this rule is laid down from 
 Redfield on Wills.^*' "The idea of any one deliberately purposing 
 to die testate as to a portion of his estate, and intestate as to 
 
 7 — Willbanks v. Willbanks, 18 based on suspicion or speculation. 
 111. 17; Brown v. Pitney, 39 111. In Van Schaak v. Leonard, supra 
 
 468; Gale v. Gale, 48 111. 471 
 Wooley V. Schrader, 116 111. 29 
 Ditch V. Sennott, 117 111. 362 
 Gorham v. Dodge, 122 111. 528 
 
 (7), the doctrine is laid down as 
 completely established, that, "elec- 
 tion rests upon the ground, that 
 one who asserts a claim to prop- 
 
 Carper V. Growl, 149 111. 465; Fry erty under a will must acknowl- 
 
 V. Morrison, 159 111. 244; Van edge the equitable rights of all 
 
 Schaak v. Leonard, 164 111. 602; other parties under the same 
 
 Buchanan v. McLennan, 192 111. will." 
 
 483. In the case of Fisher v. Fair- 8 — Higgins v. Dwen, 100 111. 
 
 banks, supra (4), it is held the 554. 
 
 court may look into state or con- 9 — Boehm v. Baldwin, 221 IlL 
 
 dition of property in ascertaining 59. 
 
 testator's intention. And it is said 10—120 111. 362; 2 Redfield on 
 
 testator's intention cannot be Wills, 235; 2 Jarman on Wills, 2d 
 
 ed., 469.
 
 CONSTRUCTION OF WILLS— CONTINUED. 145 
 
 another portion is so unusual in the history of testamentary dis- 
 positions as to justify almost any construction to avoid it." 
 
 204. In Tautenham v. Dunz,^^ a testator devised to 
 a person named, all his real estate by its proper description, 
 and all his interest in a certain note secured by a deed of 
 trust. Then followed these words in the will: "Also $3,000 
 in money, to be paid to her by my executor; also, all the loose 
 property in, on and around the homestead, consisting of one 
 cow, two hogs, and a lot of wood, and all other property of 
 every kind." The record shows there was in fact in, on and 
 around the homestead, many other articles of property, such 
 as kitchen furniture, ten bushels of potatoes, three boxes of 
 export beer, four and three-quarter barrels of cider, thirty 
 bushels of corn, fifty bushels of oats, a ton of hay, a lot of 
 ice and lumber, and implements and tools of various sorts ; and 
 the testator owned other promissory notes for money he had 
 loaned. The court in giving its opinion in construing this 
 will, cite the rule laid down above, saying: "This will is in- 
 artistically drawn. It is manifest that the scrivener had some 
 knowledge respecting the words employed in making testa- 
 mentary devises and bequests; but it is apparent from an 
 inspection of the will itself, that he had little knowledge of 
 the forms necessary in making testamentary disposition of 
 estates. If it was the intention of the testator to bestow all his 
 estate upon one person, that intention will not be defeated by 
 a partial designation, if the general words, giving to them 
 their natural meaning and operation, are comprehensive 
 enough to embrace the whole estate." After reviewing the 
 cases in point at length, the court holds, the sole devisee took 
 all the property and estate left by the testator; the opinion 
 concluding in the words quoted from 1 Jarman on Wills, 761. 
 "The adjudged cases indicate the disposition of the judges of 
 the present day to adhere to the sound rule which gives to 
 words of a comprehensive import their full extent of operation, 
 unless some very distinct ground can be collected from the 
 context for considering them as used in a special and restricted 
 
 11—125 111. 524. 
 10
 
 146 THE LAW OF ESTATES. 
 
 sense." Especially must this rule be observed when there is 
 no other bequest capable of operating on the general residue 
 of the testator's personal estate, as in this case. 
 
 205. Perpetuities. The definitions given by Bouvier's Law 
 Dictionary and by 2 ^Vashhurn on Real Property, page 652, 
 have been adopted by the courts of Illinois. The first authority 
 says: "A perpetuity is defined to be a limitation taking the 
 subject thereof out of commerce for a longer period of time 
 than a life or lives in being, and twenty-one years beyond, and 
 in case of a posthumous child a few months more, allowing for 
 the time of gestation." Washburn defines a perpetuity to be, 
 "gyants of property wherein the vesting of an estate or inter- 
 est is unlawfully postponed. "^^ \i jg held, where an estate is 
 vested, although liable to be divested by a subsequent event, the 
 postponement of the full enjoyment will not make the gift ob- 
 noxious to the rule of perpetuity. 
 
 206. In Fussey v. White,'^^ it is very manifest the 
 court, when possible, will avoid declaring a perpetuity. It 
 being said: Such a construction of a will should be adopted, 
 if it consistently may be, as will uphold it; and not cause it 
 to be rendered of no effect. A devise will not be construed as 
 attempting to create a perpetual trust, and thus render it 
 inoperative, if the words used may be reasonably construed 
 otherwise. Where a will provided, that real estate devised to the 
 husband of the testatrix, shall after the husband's death, revert 
 to the heirs of the testatrix, ' ' but only after payment by them ' ' 
 to the husband's heirs for improvements on the laud, passes 
 only a life estate to the husband, and not a fee, and such clause 
 in the will did not create a perpetuity, since "heirs of the 
 testatrix" means those living at her death, and payment by 
 them for improvements on land thus devised, must be made 
 in the lifetime of "the heirs of the testatrix."^'* 
 
 12 — Waldo V. Cummings, 45 111. writers as authorities, supported 
 
 421; Lunt v. Lunt, 108 111. 313. by decisions of courts frequently 
 
 13—113 111. 637. cited: 2 Redfield on Wills, p. 225, 
 
 14— Hill V. Gianelli, 221 111. 286. sec. 18; 1 Jarman on Wills, p. 737; 
 
 See the following cases and text Illinois Land and Loan Co. v. Bon-
 
 CONSTRUCTION OF WILLS— CONTINUED. 147 
 
 207. In Hale v. Hale,^^ the court construes a will, a clause 
 of which was interpreted by the court of appeals of New 
 York, that court finding, so far as the will applied to real 
 estate in that state, it worked an unlawful suppression of the 
 powers of alienation ; and was, for that reason void. It was 
 also held by the New York authority, the clause in question 
 was repugnant to the provision of the statute of that state 
 prohibiting accumulations, except for the times and purposes 
 in the statute permitted. The Illinois court in the case cited, 
 taking the position that "no such objection lies to that pro- 
 vision of the will in Illinois." A perpetuity in this state is 
 defined as given by Bouvier, holding as the court does, that the 
 will in question does not contravene any public policy existing 
 in the State of Illinois. 
 
 208. In the case of St. Peter's Roman Catholic Church v. 
 Germain,^^ applying the rule in the construction of the statute 
 of Illinois of 1869 and 1872, limiting churches to ten acres of 
 land in quantity, say: "It is a well settled rule that when 
 a corporation is forbidden to take or receive lands, such pro- 
 hibition goes to its capacity to acquire, and a deed made 
 to it under such circumstances passes no title, and the 
 conveyance will be absolutely void ; and the same rule applies 
 when such corporation has once exhausted its capacity in ac- 
 quiring lands to the limit that is given." There is, however, 
 one exception in Illinois and many other states to this rule 
 against perpetuities, and that applies when gifts are made for 
 charitable uses.^'' 
 
 ner, 75 111. 315; Bland v. Williams, Annotated Statutes of Illinois, 
 
 3 M. & K. 411; Smither v. Wallack, with Jones & Addington's Supple- 
 
 9 Ves. 233; Peyton v. Berry, 2 P. ments thereto. Vol. 1, pp. 1026, 
 
 Wms. 626; Mankin v. Phillipson, 1027, and cases cited; Vol. 4, p. 
 
 3 M. & K. 257 ; Gilman v. Redding- 301, and cases cited. Kurd's R. S. 
 
 ton, 24 N. Y. 1. of 111., 1905, same section and 
 
 15—125 111. 408; ante, 205. chapter, p. 505. 
 
 16—104 111. 440. Starr & Curtis 17— Ingraham v. Ingraham, 169 
 
 III. 432.
 
 148 
 
 THE LAW OF ESTATES. 
 
 209. Charitable gifts and uses. The word charity in its 
 broadest sense, denotes all the good affections which men ought 
 to bear toward each other. It generally embraces all that is 
 usually understood by the words benevolence, philanthropy 
 and good will.^^ 
 
 210. The legal definition given by Justice Gray in the case 
 of Jackson v. Phillips, has been adopted and approved by the 
 Illinois courts, and is quoted in the case of Crerar v. Williams. ^^ 
 
 18— Taylor v. Kelp, 2 111. App. 
 368. 
 
 19—14 Allen, 56; 145 111. 625; 
 Crerar v. Williams. The will of 
 John Crerar was construed, the 
 49th clause authorized the execu- 
 tors and trustees to set apart so 
 much of his estate or invest such 
 a sum of money as in their judg- 
 ment might seem necessary and 
 proper, and to pay from the in- 
 come thereof all costs, charges 
 and expenses, and directed that 
 any surplus income should yearly 
 be paid over and devoted to the 
 purposes set forth in item 50, and 
 when in the judgment of such 
 executors and trustees it was 
 proper, the principal sum provid- 
 ed by item 49 should be paid over, 
 etc. By item 50 a devise was 
 made of all the residue of the tes- 
 tator's estate for a free public li- 
 brary and its endowment. Held, 
 that section 49 of the will was to 
 be construed together with the 
 50th clause, and read as though it 
 were a part of it, or as though it 
 had followed that clause instead 
 of preceding it. Any fund set 
 apart under the 49th clause is to 
 be treated as a part of the estate 
 bequeathed by the 50th clause. The 
 two clauses of the will, 49 and 50, 
 
 taken together, it is held, do not 
 give arbitrary power to the exec- 
 utors and trustees to fix the 
 amount of the principdl fund to 
 be set apart under the 49th clause, 
 or to say when it shall be paid 
 over to the residuum. The exec- 
 utors and trustees being author- 
 ized to set apart a proper amount 
 to raise an income to pay certain 
 charges and expenses, all of which 
 must be reasonable. That clause 
 gives them no greater power tlian 
 they would have had without it. 
 In the Crerar case, the court de- 
 fines a charity, in a legal sense, as 
 a gift to be applied, consistently 
 with existing laws, for the benefit 
 of an indefinite number of per- 
 sons, either by bringing their 
 hearts under the influence of edu- 
 cation or religion, by relieving 
 their bodies from disease, suffer- 
 ing or constraint, by assisting 
 them to establish themselves for 
 life, or by erecting or maintaining 
 public buildings or works, or oth- 
 erwise bearing the burdens of 
 government. It is immaterial 
 whether the purpose is called 
 charitable in the gift, if it is so 
 described as to show that it is 
 charitable in its nature. And so 
 it was held a gift, "for the erec-
 
 CONSTRUCTION OF WILLS— CONTINUED. 149 
 
 ' ' A charity in a legal sense, may be more f uUy defined as a gift, 
 to be applied, consistently with existing laws, for the benefit of 
 an indefinite number of persons, either by bringing their hearts 
 under the influence of education or religion, by relieving their 
 bodies from disease, suffering or constraint, by assisting them to 
 establish themselves for life, or by creating or maintaining public 
 buildings or works or otherwise lessening the burdens of govern- 
 ment. It is immaterial whether the purpose is called charitable 
 in the gift itself, if it is so described as to show that it is charita- 
 ble in its nature." Anj'- tinist coming within this definition for 
 the benefit of an indefinite class of persons sufficiently designated 
 to indicate the intention of the donor, and constituting some 
 portion or class of the public, is a charitable trust. Among 
 such are the support and propagation of religion and the 
 maintenance of religious services.^o To pay the expenses and 
 salary of rectors ;2i or the preaching of an annual sermon in 
 memory of the testator.22 In Hoeffej' v. Clogan, it is said:^^ 
 "The doctrine of superstitious uses arising from the statute of 
 Edward VI., chapter 14, under which devises for procuring 
 masses were held to be void, is of no force in this state and has 
 never obtained in the United States. In this country there is ab- 
 solute religious equality, and no discrimination, in law, is made 
 between different religious creeds or forms of worship. It 
 cannot be denied that bequests for the general advancement of 
 the Roman Catholic religion, the support of its forms of wor- 
 ship or the benefit of its clergy, are charitable, equally with 
 those for the support or propagation of any other form of religi- 
 ous belief or worship. The nature of the mass, like preaching, 
 prayer, the communion, and other forms of worship, is well 
 understood. It is intended as a repetition of the sacrifice on 
 the cross, Christ offering Himself again through the hands of 
 
 tion, creation, maintenance and 21 — Alden v. St. Peter's R. C. 
 
 endowment" of a free public li- Parish, J5S 111. 631. 
 
 brary, in the city of Chicago, falls 22 — Durror v. Motteux, 1 Ves. 
 
 •within the definition of a charity. Sr. 320. 
 
 20— Andrews v. Andrews, 110 111. 23—171 111. 462. 
 223.
 
 150 THE LAW OF ESTATES. 
 
 the priest and asking pardon for sinners as He did on the 
 cross; such is the chief and central act of worship in the 
 Roman Catholic church. The Roman Catholic church believes 
 that Christians who leave this world without having sufficiently 
 expiated their sins, are obliged to suffer a temporary penalty 
 in the other ; and among the special purposes for which masses 
 may be said is the remission of this penalty. A bequest for 
 such special purpose merely adds a particular remembrance to 
 the mass, and does not, in our opinion, change the character 
 of the religious service and render it a mere private benefit-^* 
 It was a fixed maxim in Roman jurisprudence that legacies to 
 pious uses, which included all legacies destined for works of 
 piety or charity, whether they related to spiritual or temporal 
 concerns, were entitled to particular favor and deemed to be 
 privileged testaments. The rule has always been adopted in the 
 State of Illinois, "that conveyances and devises to charitable 
 uses are not subject to operation of the rule against per- 
 petuities, which forbids an estate in land to be tied up for more 
 than a life or lives in being and twenty-one years. "^^ 
 
 24 — See same doctrine laid down even though the annexed trust 
 
 in Hoeffer v. Clogan, and rule ap- may be void, as the latter will be 
 
 plied therein; Schouler, Petitioner, regarded merely as a mode of 
 
 134 Mass. 426; Rhymer's Appeal, managing the trust. The inten- 
 
 93 Pa. St. 142; Seibert's Appeal, tion of the testator in favor of 
 
 18 W. N. Cass, 276. charity will be allowed to prevail 
 
 25 — Andrews v. Andrews, 110 even though his particular inten- 
 111. 223; Hale v. Hale, 125 111. 399; tion as to the manner of manag- 
 Gray's Rules Against Perpetuities, ing the gift fails. The immediate 
 sec. 589; Ingraham v. Ingraham, and unconditional devotion of a 
 169 111. 432. In this case, it is fund to charity, and not the time 
 held: Provisions of a will v/hich or manner of its application or ad- 
 contain charitable bequests will ministration, is the test of the 
 receive a more liberal construction validity of a bequest for charity, 
 than is allowable in case of gifts And so, in determining whether a 
 to individuals. And where a vest- gift is immediate or to be post- 
 ed estate is distinctly given to a poned until the time of payment 
 charity, to which is annexed a or application, the language of the 
 trust for accumulation which vio- testator used throughout the en- 
 lates the rule against perpetuities, tire will, must be liberally con- 
 the vested estate will be valid strued in favor of vesting the
 
 CONSTRUCTION OF WILLS— CONTINUED. 151 
 
 211. Statute of charitable uses — 43 Elizabeth, chapter 4, 
 is the law of Illinois. The principles of pious legacies under 
 the high authority of the civil law, were injected into the 
 common law of England and subsequently the statute 43 Eliza- 
 beth, chapter 4, known as the Statute of Charitable Uses, was 
 enacted and has been and is now the law of England. The 
 state of Illinois adopted in an early day, the common law of 
 England, and thereby the Statute of Charitable Uses became 
 and is the law of this state to-day, except where changed or 
 modified by enactments of the state legislature in conflict with 
 the original statute.^^ Under this Statute of Charitable Uses, the 
 courts are very liberal in the construction of wills and other doc- 
 uments granting gifts or legacies for charitable uses and pur- 
 poses. The courts carry this doctrine to the extent in Illinois 
 at least, that they will not permit to be lost such gifts or 
 legacies, for either the uncertainty or failure of the person or 
 objects for which such gifts or legacies were destined. In the 
 case of Andrews v. Andrews, it is said:^^ "The princi- 
 ple is well established, that if a bequest be for charity, 
 it matters not how uncertain the persons or the objects may 
 be; or whether the persons who are to take are in esse or not; 
 or whether the legatee be a corporation capable, by laAv, of 
 taking, or not ; for in all of these and like cases, the court will 
 
 charitable interest. So where two of such appropriations "to revert" 
 
 constructions of a bequest to char- to the original fund. Held these 
 
 ity are possible, one of which will words create an implied trust, to 
 
 render the bequest void as an ille- provide for the support of desig- 
 
 gal perpetuity and the other will nated relatives of the testator, and 
 
 render it valid and operative, the not a mere discretionary power in 
 
 latter will be adopted. In this the trustees. See also 2 Story's 
 
 case one of the clauses to the will Eq. Jur., sees. 1137, 1139. 
 was a bequest to charity in the 26 — Starr & Curtis Annotated 
 
 form of an accumulating trust, au- Statutes of Illinois, 2d ed.. Vol. 3, 
 
 thorizing the trustees to appropri- p. 4046, sets forth the statute, 43 
 
 ate part of the fund to the sup- Elizabeth, known as the Statutes 
 
 port of certain of the testator's of Charitable Uses. See Scates' 
 
 kindred "in the event" they should Com., 720; Ingraham v. Ingraham, 
 
 come to want, the unused portions 169 111. 432. 
 
 27—110 III. 223.
 
 152 THE LAW OF ESTATES. 
 
 sustain the legacy, and give it effect according to its own prin- 
 ciples; and where a literal execution becomes inexpedient or 
 impracticable, the court will execute it, as nearly as it can, ac- 
 cording to the original purpose, or cy pres.^^ 
 
 212. The chancellor will direct a scheme for the charity. 
 
 Another important rule applying to this class of cases being, 
 that where money is given to a charity generally and indef- 
 initely, without trustee or object selected, under the English 
 law, the King, as trustee, or parens patriae will direct a 
 scheme ; and where trustees are appointed the Chancellor will 
 direct a scheme for the charity, he having jurisdiction over the 
 trust.29 And this when neither the trustee or objects are selected. 
 In the leading case in Illinois, often cited and sustained in later 
 cases, Heuser v. Harris, it is said:^** "Surely the powers of a 
 court of chancery should extend so far as to supply a trustee to 
 manage a testamentary bequest for charity, and if it be admitted 
 one could not be elected under the will, a court of chancery, to 
 carry out the intention of the testator, would by a liberal in- 
 tendment, appoint one. Every reasonable act will be done, and 
 the most liberal construction of the will had, by a court of 
 chancery, to aid the beneficiaries, when the intention is plain 
 and undeniable.31 
 
 213. The doctrine of cy-pres. This doctrine is always ap- 
 plied by courts of chancery ; it is a child of chancery born ages 
 ago; the doctrine is used or applied for the express purpose 
 
 28 — Heuser v. Harris, 42 111. Hlinois the same principles and 
 
 425; Ingraham v. Ingraham, 169 rules have been applied, as laid 
 
 111. 432; Hoeffer v. Clogan, 171 111. down in the Heuser case, and 
 
 462. Hadley v. Hopkins Academy, 
 
 29 — Boyle on Charities, 238, 239. supra. Holden v. Cook County, 87 
 
 30—42 111. 425. 111. 275; Mills v. Newberry, 112 
 
 31— The following authorities 111. 123; Oilman v. Stone, 120 U. 
 
 affirm the doctrine laid down in S. 586; Hunt v. Fowler, 121 111. 
 
 the early case of Heuser v. Har- 269; Morgan v. Grand Prairie 
 
 ris, supra (28); Hadley v. Hop- Seminary, 171 111. 453; Hoeffer v. 
 
 kins Academy, 14 Pick. 240; Vidal Clogan, 171 111. 467; Ingraham v. 
 
 v. Girard, 2 Howe. U. S. 127. In Ingraham, 169 111. 432; Garrison 
 
 V, Little, 75 111. App. 411.
 
 CONSTRUCTION OF WILLS— CONTINUED. 153 
 
 of giving effect to charitable legacies. It is usually applied 
 where charitable gifts are made by will, and where the par- 
 ticular intention of the testator is impractical or illegal; when 
 such appears from the interpretation of the words of the will, 
 the equitable jurisdiction will be applied in this doctrine, for 
 such courts consider charity as the substance of the doctrine ; 
 and, when the mode pointed out by the will fails, the court will 
 provide another mode by which the charity may take effect.^^ 
 214. In Heuser v. Harris, it is said:'"^^ "Another prin- 
 ciple well established iSj that, if the bequest be for charity, it 
 matters not how uncertain the person or the object may be, or 
 whether the persons who are to take are m esse or not, or 
 whether the legatee be a corporation capable by law of taking 
 or not ; or whether the bequest can be carried into exact execu- 
 tion or not; for, in all these and the like cases, the courts will 
 sustain the legacy and give it effect according to its own prin- 
 ciples, and where a literal execution becomes inexpedient or 
 impracticable the court will execute it as nearly as it can ac- 
 cording to the original purpose of cy pres. Charities are 
 administered by the courts on cy pres principles for the very 
 purpose of sustaining and carrying into effect the intention ; 
 but they cannot change the object or place because the fund 
 could be more judiciously and efficiently applied in another 
 place, or to a different object. The doctrine of cy pres has 
 no place in legacies to individuals, but^ in a charity like this, 
 there is reason and good sense in presuming, as held in this 
 case, had the testator known the election of a trustee, in the 
 mode he proposed, his executing bond, and to serve as such 
 gratuitously, he would have adopted another mode, and the 
 court must act as he himself would have done, and this is the 
 foundation of the doctrine of cy pres. An approximation to 
 
 32— Vidal v. Girard, 43 U. S. (2 of Sailor's Harbor, 28 U. S. (3 
 Howe) 127; Ould v. Washington Pet.) 99; Oilman v. Hamilton, 16 
 Hospital, 95 U. S. (5 Otto) 303; 111. 225; Heuser v. Harris, 42 111. 
 Jones V. Habbersham, 107 U. S. 425; 2 Story's Eq. Jur., sections 
 (17 Otto) 174; Inglis v. Trustees 1167, 1169. 
 
 33—42 111. 425.
 
 154 THE LAW OF ESTATES. 
 
 the intention of the testator, as near as possible, is all that is 
 meant by this doctrine. And when the object is so plainly mani- 
 fested, great latitude will be allowed in the selection of a trus- 
 tee, or in a mode by which the intention can be carried into full 
 effect. The counsel for appellants insist, that the bequest to 
 "the poor of Madison County" is so general and vague, that 
 it cannot be carried into effect. We think the principle above 
 stated, and the cases referred to, fully settle this branch of 
 the Case. That the term "the poor of Madison County" is 
 vague, having no definite meaning, is so, in the sense in which 
 appellant's counsel presents it. The poor of a county are, in 
 legal contemplation; understood to be those who are dependent 
 upon public charity; in other words, they are the paupers who 
 are maintained by taxes levied on the people, or by the income 
 from the public property. They are under the care and super- 
 vision, in some counties, of the county courts, and in other coun- 
 ties, of the boards of supervisors of the county, either of which 
 is capable of taking a bequest of this kind as a trustee. 
 
 215. Power of sale under will. This power may be given by 
 express words, or by implication. In the early case of Rankin 
 V. Rankin, the court construing the will in question, 
 fiaid:^* "No question can be, nor indeed is made, as to the 
 
 34 — 36 111. 296; Rankin v. Ran- which that instrument has im- 
 
 kin, supra, one of the early cases pressed upon it. Where, therefore, 
 
 in Illinois, held: That where a land is directed to be sold, and 
 
 testator directs his estate to be its proceeds divided among cer- 
 
 disposed of for certain purposes, tain persons named in the will, 
 
 without declaring by whom the this is to be considered as a be- 
 
 sale shall be made, if, in the ab- quest of money. And in such case, 
 
 sence of such a declaration, the where the testator directed his 
 
 proceeds be distributable by the ex- farm to be disposed of to the 
 
 ecutor, he will have power by very best advantage, either in a 
 
 implication. What ought to be body or divided into lots, and the 
 
 done is considered in equity as proceeds thereof to be divided into 
 
 done. Every person, therefore, five equal parts, and given to cer- 
 
 claiming property under an instru- tain specified persons, but the tes- 
 
 ment directing its conversion, tator did not declare or direct by 
 
 must take it in the character whom the sale should be made, it
 
 CONSTRUCTION OF WILLS— CONTINUED. 155 
 
 intention of the testator that the laud should be sold. But it 
 is urged that the executors had no power to make the sale. 
 The court citing from Williams on Executors, p. 413: "It 
 sometimes happens that a testator directs his estate to be dis- 
 I^osed of for certain purposes, without declaring by whom the 
 sale should be made. In the absence of such a declaration, if 
 the proceeds be distributable by the executors, he shall have 
 the power by implication. Thus a power in a will to sell 
 or mortgage, without naming a donee, will, unless a contrary 
 intention appear, vest in the executor, if the fund is to be 
 distributable by him, either for the payment of debts or leg- 
 acies." The principle is well settled, and is not controverted 
 by the counsel for the defendant in error, but it is contended 
 that the proceeds of the sale were not distributable by the 
 executors. Again citing from Williams on Executors^ page 
 114: "It is an established doctrine in courts of equity, that 
 the thing shall be considered as actually done, which ought 
 to have been done, and it is with reference to this principle that 
 land is under some circumstances regarded as money, and 
 money as land." Nothing is better established than the prin- 
 ciple, that money directed to be employed in the purchase of 
 land, and land directed to be sold and turned into money, are 
 to be considered as that species of property into which they are 
 directed to be converted.^ ^ It follows, therefore, that every per- 
 son, claiming property under an instrument directing its con- 
 version must take it in the character which that instrument has 
 impressed upon it ; and its subsequent devolution and disposition 
 will be governed by the rules applicable to that species of prop- 
 was held: That the bequest was in the later cases is supported by 
 of money, and will be so consid- Toller on Executors, p. 301; 4 Bac. 
 ered, as a fund distributable by Abr., 337, 425; 2 Blackstone's Com. 
 the executors to certain legatees; 512; Fletcher v. Ashburner, 1 Bro. 
 therefore the executors had power C. C. 497; Baker v. Copenbarger, 
 to make the sale without invoking 15 111. 103; January v. Smith, 29 
 the aid of a court of equity. This 111. 116. 
 
 decision which has been followed 35 — Fletcher v. Ashburner, 1 
 
 Bro. C. C. 497.
 
 156 THE LAW OF ESTATES. 
 
 erty. The land was directed to be sold, and its proceeds divided 
 among certain persons named in the will. It was then to be con- 
 sidered as a bequest of money.^^ The power of sale of real estate 
 exists by or under the will only, it is restricted under the well 
 settled rules for interpreting such instruments, to the intention 
 and language of the testator. And where there is a doubt in the 
 mind of an executor or trustee, it is the duty of such to seek 
 the aid and advice of a court of equity before exercising the 
 power of sale that is questionable.^'^ An estate was devised to be 
 managed by devisees indefinitely, unless they desired to surren- 
 der it to the executors for sale, which they could do by written 
 agreement signed by at least two of them. The court in con- 
 struing the will in question, held, that a disagreement among 
 devisees as to such management, and their not conducting the 
 estate as testator desired, did not operate to subject the property 
 to sale, since that could only be done in the manner prescribed 
 in the will.^s And so it is held, a clear power of sale conferred 
 by will can be restricted only by subsequent explicit words. 
 Courts will not interfere with discretionary powers of trustees 
 except for fraud. Beneficiaries cannot disaffirm a sale by trus- 
 tees and retain the purchase money; and the purchaser is not 
 bound to look to the application of the money Avhere the trustees ' 
 power of sale is discretionary.^'' 
 
 36— Rankin v. Rankin, 36 111. 39— Dickson v. N. Y. B. Co., 211 
 
 296. 111. 468, et seq. In Krutz v. Gray- 
 
 37 — Kenny v. Knoble, 51 111. bill, supra (37), under a will au- 
 
 121; White v. Glover, 59 111. 462; thorizing the executors to sell all 
 
 Hughes V. Washington, 72 111. 84;, the real estate for the purpose of 
 
 Werner v. Thornton, 98 111. 156; settling the testator's affairs, and 
 
 Stoff V. McGinn, 178 111. 46; Gam- to turn the proceeds over to the 
 
 mon V. Gammon, 153 111. 44; Hale testator's wife "after paying my 
 
 V. Hale, 125 111. 399; Mulligan v. debts; and for this purpose I au- 
 
 Lamb, 178 111. 130; Bauerle v. thorize my said executors . . . 
 
 Long, 187 111. 475; Poulter v. Poul- to execute all necessary deeds to 
 
 ter, 193 111. 641; Krutz v. Graybill, perfect such sales, and ... to 
 
 192 111. 445. make all such sales on such terms 
 
 38 — McFarland v. McFarland, and conditions as they . . . 
 
 177 111. 208; Illinois Land & Loan may deem proper, . . . except 
 
 Co. v. Bonner, 75 111. 315. the farm on which Hugh Smith
 
 CONSTRUCTION OF WILLS— CONTINUED. 
 
 157 
 
 216. Sale of an heir 's expectancy. Such sale will be upheld 
 where fair and proper; but it is considered a contract to con- 
 vey the interest when it comes in esse. The heir inherits from 
 the first ancestor, and there is no privity between them and 
 their immediate ancestor. If after assignment the heir dies 
 before the ancestor, as there was no interest in the heir's life- 
 time, upon which the contract could operate, the heirs of the 
 heir are not bound by the contract.'*'* An estate in expectancy 
 
 now lives, and as to such farm I 
 desire my executors not to sell the 
 same until they can get $30 per 
 acre." The executors, it was held, 
 were not precluded from selling 
 the farm so excepted until the 
 price of $30 per acre can be had, 
 but they may sell at the best price 
 obtainable after waiting until such 
 sale becomes necessary in order to 
 pay the testator's debts. This case 
 being decided upon the doctrine 
 laid down in the case of Updike 
 V. Thompkins, 100 111. 406, where it 
 is said: "Particular expressions 
 will not control where the whole 
 tenor or purpose of the instrument 
 forbids a literal interpretation of 
 the specific words. Wills, like 
 deeds, contracts and enactments, 
 must be construed according to the 
 intent of the maker, and that must 
 be ascertained from an examina- 
 tion of the instrument and all of 
 its provisions." And in the case 
 of Poulter V. Poulter, supra (37), 
 it was held a power of sale will 
 be implied where it is necessary to 
 enable the executor to carry out 
 the testator's intention. In that 
 case, however, it was held the will 
 did not confer power to sell, and 
 none could be implied from the 
 language thereof. The case is sup- 
 ported by 11 Am. & Eng. Ency. of 
 
 Law, 2d ed., 1043, and cases cited; 
 7 Am. & Eng. Ency. of Law, 2d 
 ed., 466, and cases cited; Hale v. 
 Hale, 125 111. 399; Gammon v. Gam- 
 mon, 153 111. 41; 11 Am. & Eng. 
 Ency. of Law, 2d ed., 1045. The 
 provision of the will construed be- 
 ing: "My land and all of the per- 
 sonal property left," after the 
 widow's death, "be equally divid- 
 ed between all my children, less 
 the following sums which have 
 been paid to the ones named." 
 Held, does not necessarily require 
 a sale by the executor to carry 
 out the terms of the will, since a 
 court of equity has power, upon 
 making partition of the land, 
 when called upon to do so, to ar- 
 range and adjust advancements, 
 so as to carry out the provisions 
 of the will. 
 
 40 — Simpson v. Simpson, 16 111. 
 App. 174; Long v. Long, 19 111. 
 App. 285; Kershaw v. Kershaw, 
 102 111. 307; Crum v. Sawyer, 132 
 111. 443; Gary v. Newton, 201 111. 
 170; Parsons v. Ely, 45 111. 235; 
 Bishop V. Davenport, 58 111. 105; 
 Galbraith v. McLain, 84 111. 379. 
 This case arises on construction 
 of deed, and contract between 
 father and son, in consideration 
 of a conveyance of land by the 
 father to the son, that he will re-
 
 158 THE LAW OF ESTATES. 
 
 may be the subject of a contract of sale, and when fairly made 
 and based upon a valuable consideration will be enforced by a 
 court of equity .^1 
 
 217. Executor's interest. It has been repeatedly held by 
 the Illinois courts that a trustee should never be the subject 
 of criticism on account of the application of such to the chan- 
 cery courts for advice in the discharge of his duty. And where 
 the executor or trustee is in doubt as to what should be done, 
 it is beyond question his duty to apply to a court of equity, 
 that he may proceed with authority, that might be considered 
 doubtful until the court had placed him right. If a person 
 devise his or her lands to his or her executor to be sold, then 
 there is a power coupled with an interest, for the executor 
 takes possession of the land and of the profits. ^^ A testator 
 devised all his property to G in trust; first, to pay 
 his debts; second, to set off and pay to his wife 
 such share of the estate as she was entitled to by the laws of 
 Illinois; third, to hold the remainder in trust for his children. 
 The trustee and executor was empowered to control and man- 
 age the estate, and sell and convey all real and personal prop- 
 erty, with power to execute conveyances therefor ; to invest the 
 proceeds for the benefit of the children, as the trustee should 
 deem best ; to use such portion as was necessary for their sup- 
 port and education, and generally to use the same for the best 
 interest of the children during minority. And, in trust further, 
 that the trustee should convey the property, or the proceeds 
 thereof, to the children when they should attain the age of 
 twenty-one years. The court construing this will, held : That 
 the will conferred ample power to sell and convey real estate, 
 and a conveyance of a portion to the widow in lieu of her 
 
 lease to his brothers and sisters 41 — Hudson v. Hudson, 222 111. 
 
 all claim in expectancy to the res- 527. See Chapter 50 of this work, 
 
 idue of the father's estate. Held, "Reversions and Remainders." 
 
 the transaction was not with- (Post 852.) 
 
 in the Statute of Frauds, nor con- 42 — Berger v. Bennett, 1 Caines 
 
 trary to the provisions of the Stat- Cas. Exr. 15; White v. Glover, 59 
 
 ute of Wills. 111. 459. In this case it is held.
 
 CONSTRUCTION OF WILLS— CONTINUED. 159 
 
 dower and all claim on the estate, was presumed in the absence 
 of fraud, to be for the best interest of the estate, and was 
 within the power conferred by the will.^^ 
 
 218. Under the act of 21 Henry VIII., chapter 4, in forc6 
 in the state of Illinois, providing that the qualified and acting 
 executor may execute the will when the others "do refuse to 
 take upon him or them the administration and charge of the 
 same testament and last will wherein they be so named as 
 executors," does away with the old rule of common law before 
 the act in question, that two or more executors can only act 
 jointly in the exercise of the power. In the early case of Ward- 
 well V. McDowell,*'^ the distinction between a power mandatory 
 and discretionary, was discarded, and the current of the authori- 
 ties sustained that finding, which was again affirmed in the case 
 of White V. Glover.^^ 
 
 219. In Lambert v. Harvey,'^^ where the executor of a will 
 is directed to sell the testator's real estate, and divide the pro- 
 ceeds of sale between certain devisees, it was held: "The ex- 
 ecutor takes only a power of sale, that being all that is necessary 
 to execute the will, and no legal estate in the land." 
 
 220. The application of the statute of Illinois. Where there 
 is no trust duties to be performed under a devise to executors 
 in trust, the will can be executed under section 3, chapter 30, 
 entitled " Conveyances. "*'' 
 
 that a decree of a court of equity Waldon, 3 Hill, 361; McComb v. 
 
 licensing the conveyance made, al- Waldon, 7 Hill, 335; Gregory v. 
 
 though made without having jur- Henderson, 4 Taunt. 772; Oates 
 
 isdiction, would not affect or v. Cooke, 3 Burr, 1684; 2 Jarman 
 
 abridge the power conferred by on Wills, 199 et seq. 
 
 the will. In this case the trustee 43— White v. Glover, 59 111. 459. 
 
 was invested with a power coupled ., o-. tii oca 
 
 with an interest, as he was au- 
 thorized to sell the lands and to ^5— 59 HI. 459. 
 hold and possess them for the pur- ^^ ^^^ I^^- 338. 
 pose of the trust. See Waldon v. 47 — Starr & Curtis Annotated 
 McComb, 1 Hill, 111; Bloome v. Statutes of Illinois, with Jones &
 
 160 THE LAW OF ESTATES. 
 
 Note. The matters in question being naturally connected 
 with testamentary trusts and trustees, their powers and duties, 
 we refer the reader to the subjects suggested in this work for 
 more extended consideration. 
 
 221. Misdescription — surrounding cii'cumstances. It will 
 be found the courts adhere closely to the rule "that extrinsic 
 evidence cannot be heard to alter, detract from or add any- 
 thing to the provisions of a will. ' ' Where the language is clear 
 the construction must be on the face of the will itself; but in 
 certain cases, where a latent ambiguity is found to exist, the 
 court in order to uphold the will, and give effect to the inten- 
 tion of the testator, will look to the surrounding circumstances 
 and admit evidence to assist the interpretation. In the case of 
 Bradley v. Bees, the text is nicely illustrated.'*^ The 
 facts show the testator, at the time of making his will, had 
 seven sons, four of whom were minors living with the testator ; 
 the other three being men married and having families of their 
 own; the will after devising a certain part of testator's land 
 to his infant daughters, contained the clause, "the remaining 
 lands owned by me to be divided between the four boys, ' ' with- 
 out any other designation. It being held in construing the 
 will, that the v/ordSj "the four boys," meant the four minor 
 sons, who were at the time living with the testator as a part 
 of his family; that there was no ambiguity on the face of 
 the will, the inference therefrom being that he had but four 
 
 Addington's Supplements thereto, larger tract. And it was held un- 
 Vol. 3, p. 914, and cases cited; Vol. der rules of construction applied, 
 4, p. 254, and cases cited; also Vol. that proof by parol, that the testa- 
 1, p. 914; See Lawrence v. Law- tor directed the scrivener to draw 
 rence, 181 111. 252; Barclay v. the will so as to give only forty 
 Piatt, 170 111. 388; Ure v. Ure, 185 acres is inadmissible. As a mis- 
 Ill. 228; Kirkland v. Cox, 94 111. take in drafting a will by the 
 400; Witham v. Brooner, 63 111. draftsman cannot be shown and 
 344. corrected upon parol evidence in 
 48 — 113 111. 327; Bradley v. such a case. See Worrell v. Pat- 
 Rees. In that case the will de- ten, 69 111. 254, as to the correc- 
 vised land, which by the words tion of mistakes in wills, 
 used, embraced eighty acres in a
 
 CONSTRUCTION OF WILLS— CONTINUED. IGl 
 
 sons; but on proof that the testator had seven sons, an am- 
 biguity was made apparent, and, being a latent one, was ex- 
 plained by parol evidence. Parol evidence not only of the 
 previous facts known to the testator, and of present circum- 
 stances, under which the will was made, but also his declara- 
 tions, made at the time of making the will, as well before 
 and after, might be resorted to, to remove the ambiguity, if 
 any, and to fix the objects of his bounty. And, in the same 
 case it was held: A devise of the "Southwest quarter of the 
 north half of section 14, town 8, range 2 west, ' ' is not void for 
 uncertainty in the description ; it being the same as the south 
 half of the west half of the north half of the section; and if 
 the section is a mile square, the description embraces eighty 
 acres off the south side of the northwest quarter of the section. 
 The fact that the testator did not own all of a tract of land 
 devised by him by a good description, will not justify the court 
 in holding the devise void. The devisee in such case will take 
 so much of the land described as the testator did own. 
 
 222. In Bowen v. Allen, the subject of a devise was:^® 
 *'My house and lot in the town of Potoka," succeeded 
 by a particular description of a lot on which no house was 
 situated. The court in that case permitted proof to be shown 
 that the testator at the time of making his will had no other 
 house in the addition to the town described; holding, the 
 house identified was the house devised, and that the former de- 
 scription being complete, the latter was a false demonstration 
 only. 
 
 223. In Kurtz v. Hibner, the court held:^^ If the testator 
 had described the property as his own the conclusion would havj 
 been different. 
 
 224. In Kirkland V. Conway, the devise was :^i "My real 
 estate, to-wit," describing property in the northeast instead 
 
 49—113 111. 59. 51—116 111. 439. 
 
 50—55 111. 514. 
 
 11
 
 1G2 THE LAW OF ESTATES. 
 
 of the northwest quarter, where it was in fact; held, that 
 as the testator did not own the land described in the will, 
 there was created a latent ambiguity, and the extrinsic circum- 
 stances that he owned the other land, together with the words 
 "my real estate," enabled the court to reject the quarter sec- 
 tion as false demonstration, and apply the description without 
 adding to the will. But in order to apply the rule of construc- 
 tion, it was held, in the case of Holhrook v. Forsytlie,^- the land 
 must be owned by the testator ; color of title will not suffice. 
 
 225. In Smith v. DennisMi,^^ the testator had established 
 by agreement with a neighbor, a corner of a quarter section dif- 
 ferent from the government corner, and the court considered 
 this circumstance or agreement in construing the will. 
 
 226. In Kaufman v. Breckenridge,^^ a testator devised 
 to his wife all his goods, estate and chattels, real, per- 
 sonal and mixed, 'Ho have, hold and use the same so long as 
 she might remain a widow," said goods, estate, etc., to be dis- 
 posed of and used agreeably to her direction and approval, 
 and in such manner as she "might deem most conducive to 
 the welfare and comfortable subsistence of herself and chil- 
 dren," who were mostly dependent on the testator for sup- 
 port. The opinion in that case holds: Is it unreasonable 
 to suppose that it was only the widow's estate for life or dur- 
 ing widowhood in the goods and chattels, and not the goods 
 and chattels themselves, which the testator intended she 
 should sell for the support of the family. Item fourth, in pro- 
 viding that no sale should be made of the homestead, ^ords 
 some implication that power of sale of the whole property had 
 been given, and that it was deemed necessary to make excep- 
 tion of the homestead. It was objected that all of the extrinsic 
 testimony as to the lands being unimproved and providing 
 no income, and that relating to the testator's family, etc., was 
 improper in the case. The court holding this objection is not 
 
 52—112 111. 310. 54—117 111. 305. 
 
 53—112 111. 372.
 
 CONSTRUCTION OF WILLS— CONTINUED. 163 
 
 well taken, rule 10 of the general rules of construction of wills, 
 laid down by Jarman on Wills, is:'^^ The court will look at 
 the circumstances under which the devisor made his will, as, the 
 state of his property, of his family and the like. "We are of 
 opinion that by this will the widow was clothed with power of 
 disposition of the absolute estate in favor of herself and chil- 
 dren; and, that by the exercise of that power her grantees took 
 the fee, and not her mere life estate in the land." 
 
 227. Survivorship. The general rule in the state of Illinois, 
 after an exhaustive review of English and American authori- 
 ties, is laid down by the supreme court "as referring, not to 
 the termination of the intermediate estate, but to the testator's 
 death, unless a contrary intention is manifest from the will 
 itself." The cases in this state hold to this general rule, and hy 
 so doing have made the distinction between the technical and 
 the literal meaning of the word "survivorship." To illustrate, 
 take the ease of Duryea v. Duryea;^^ the words in the 
 will construed were, "should either of my said children above 
 named, depart this life leaving no issue him or her surviving, 
 the share of the one so dying is to go to and belong to the 
 survivor of them, his or her heirs and assigns forever," the 
 court holding it must be conceded, we think, the words, cannot 
 be construed as a limitation over, by way of an executory 
 devise to the heirs of such devisee as shall predecease, accord- 
 ing to any definition given in an executory devise, unless the 
 word "survivor," as used, has the meaning of the word 
 "other," and was used by the testator in that sense. There 
 is no contention the word "survivor," in the first instance of 
 the twelfth division of this will, is to be understood in its lit- 
 eral sense of survivorship, and should the construction insisted 
 upon be adopted, it would involve the testator in the absurdity 
 of using it in the very next sentence in the sense of "other," 
 which has always been regarded as an unnatural meaning, and 
 one certainly not understood, except by persons familiar with 
 
 55— Vol. 2, p. 841. 56—85 III. 47.
 
 164 THE LAW OF ESTATES. 
 
 the subtle learning to be found in the books on this branch of 
 the law. Unless for the strongest reasons, we ought not to 
 adopt a construction that would involve the use of the same 
 word in such widely different and even contradictory sense in 
 the same paragraph. Text writers lay it down, the word ' ' sur- 
 vivor, " when explained by the context, must be construed in 
 its natural sense ; but when interpreted according to its literal 
 import, the tendency would be to defeat the actual intention 
 of the testator ; courts will readily listen to arguments drawn 
 from the context, for reading the word "survivor," as synon- 
 ymous with "other. "^''' 
 
 228. In Blanchard v. Maynard,^^ the will contained these 
 words: "It is my will that at the expiration of the trust 
 hereinbefore declared, that is to say, at the end of ten 
 years after my decease, all my said estate then remaining, 
 and the income thereof, shall be distributed and vest in my 
 three sons," naming them, and their heirs; "and I do hereby 
 give, devise and bequeath the same to them; but in case that 
 either of my said three sons should die leaving no issue of 
 their bodies, then I give, devise and bequeath my estate to 
 the survivor of them." In giving a construction to this will, 
 the court held : That no title under the will was intended to 
 be vested in either of the testator's sons, until ten years after 
 his death, and that the widow of one of the sons who died 
 before that time, leaving no issue of his body, took no estate 
 as heir of her husband, or dower as his widow, in the testa- 
 tor's real estate. 
 
 229. In Arnold v\ Alden,^^ words of survivorship in a con- 
 text, similar to that in the present will, have acquired a technical 
 
 57 — Jarman on Wills, p. 442; 2 pends upon the testator's inten- 
 Redfield on Wills, p. 372, Sec. 2, tion. The word issue in that case, 
 and cases cited. being construed as synonymous 
 58—103 111. 60. with "children" and the word 
 59 — 173 111. 229; Arnold v. Al- "issue," to include "grandchildren" 
 den. In that case, it is held the must be qualified or otherwise ex- 
 meaning of the word "issue" de- plained in some portion of the
 
 CONSTRUCTION OP WILLS— CONTINUED. 165 
 
 meaning, differing from the sense in which they are otherwise 
 to be taken, referring the survivorship to the testator's own 
 death,^*^ The weight of authority both here and in England, 
 therefore, unquestionably is in favor of applying the term of 
 survivorship upon the devise of a remainder, to the death of the 
 testator, instead of the time of the termination of a particular 
 estate, where it is necessary to give effect to the probable inten- 
 tion of the testator in providing for the issue of the objects of 
 his bounty upon the death of their parents before the time ap- 
 pointed for the remainder to vest in possession ; especially where 
 the devise is to the individual by name, and not to them as a 
 class. Redfield on Wills gives the following ruler^^ "Where 
 the gift is to specific persons, and not to a class, and it is 
 provided, upon the death of one of them without issue, the 
 share of such deceased person or persons shall go to the sur- 
 vivor or survivors, it becomes very apparent that by survivor 
 the testator must have intended to include the issue of such 
 as predeceased those who died without issue. If this were 
 not so, and those who died without issue died last, there would 
 be no mode of giving effect to the gift over. "^^ 
 
 230. Charging legacies and debts on land. The general 
 rule being, "that debts and pecuniary legacies are to be paid 
 from the personal property, and, when there is a deficiency of 
 personal property for that purpose, the legacies must abate, 
 unless the testator charges his real estate with their payment. 
 The charge upon the real estate may be made by express direc- 
 tions to that effect contained in the will, but the intention of 
 the testator to charge the real estate with the payment of the 
 legacies may be implied from the whole will taken together.^^ 
 
 will construed. The definite mean- 61 — Vol. 2, 3d ed., Sec. 15. 
 ing of the word "children" in a 62— See holding to rule in Red- 
 legal sense, denotes immediate field on Wills (nn^e 229) ; Bronson 
 x)ffspring and will not be construed v. Hill, 31 Md. 181'; Austin v. Bris- 
 to mean grandchildren unless a tol, 40 Conn. 120. 
 strong case of intention or neces- 63 — Heslop v. Gratton, 71 III. 
 sary implication requires it. 528; Williams v. Williams, 189 111. 
 60— Moore v. Lyons, 25 Wend. 500. In this case construing the 
 119.
 
 166 THE LAW OF ESTATES. 
 
 231. It is a general rule, well established by both English 
 and American authorities, that where legacies are given gen- 
 erally, and the residue of the real and personal estate is after- 
 wards given in one mass, the legacies are a charge upon the 
 residuary real estate as well as the personal estate.^'* 
 
 232. In Eeid v. Corrigan,^^ the court quoting from Duncan 
 V. Wallace, say: "Where a testator gives legacies, and so dis- 
 poses of all his personal property that it cannot be made availa- 
 ble for the payment of the legacies, the natural presumption is, 
 that he intended to charge the land with the payment of the 
 legacies, since a different rule would attribute to him a purpose 
 to make a gift in appearance and not in reality." In Eeid v. 
 Corrigan, it is held:^^ If the residuary clause in this will had 
 read "all the rest, residue and remainder of my estate or prop- 
 erty," it would scarcely have been questioned, that the testator 
 only intended appellees to have so much of the rest of his real 
 estate, as remained after the payment of the legacy to appellants. 
 Under the law the personal estate vests, upon the death of an in- 
 dividual in his personal representatives, and at once is the nu- 
 cleus to create a fund for the payment of his debts, and in no 
 manner by will can he divest his estate from administration. 
 The personal estate being the primary fund for the payment of 
 debts in Illinois, it is usually exhausted before the real estate is 
 touched for such purpose. 
 
 233. In Bucher v. Bucher:^'^ There was a devise of land 
 and all personal estate not otherwise disposed of, after 
 
 will it is held: Where a testator upon residuary real estate. The 
 bequeaths legacies to his various decision follows the cases of Reid 
 sons and daughters, which aggre- v. Corrigan, 143 111. 402, and Dun- 
 gate more than the amount of his can v. Wallace, 114 Ind. 169. 
 personal property, and devises 64 — 13 Am. & Eng. Ency. of 
 "the rest, residue and remainder Law, 1st ed., p. 117; and cases 
 of my estate . . . to my sons cited in notes, 
 and daughters, to share and share 65 — Reid v. Corrigan, 143 111. 
 alike," such residue is given in 402; 114 Ind. 169. 
 one mass and legacies are a charge 66—143 111. 402. 
 
 67—86 111. 381.
 
 CONSTRUCTION OF WILLS— CONTINUED. 167 
 
 payment of debts, to the widow, who was the executrix under 
 the will; the court in that case applied the general rule "that 
 the executor or administrator has no concern with the real 
 estate; that he is not entitled to receive the rents and profits, 
 for they belong to the heirs or devisees; and that the only 
 power of the executor or administrator with respect to the 
 realty, is, as given by the statute, to petition the court for 
 leave to sell it for payment of the debts of the estate, and to 
 make sale of it for such purpose upon license given." This 
 is no more than the law itself declares. It makes the land 
 of a decedent subject to, and liable for, the payment of debts 
 when necessary. The expressions of the will, we consider, 
 adds nothing to the law in this regard. The power and duties 
 of the executrix, as executrix, in respect to the application 
 of real estate or the rents and profits of it to the payment of 
 debts, were no greater, and none other, than they would have 
 been under the law, without the will. It was our duty to 
 ascertain the object and meaning of the statute, from the act 
 itself and from other acts in pari materia. The interpretation 
 should never lead to an absurdity, nor defeat the object of the 
 law. Ordinarily the personal property of a deceased person 
 is the primary fund for the payment of debts; but, unless in 
 this particular case the provisions of the statute are to be 
 regarded as having modified the rule, then the statute as to 
 nuncupative wills, will often be inoperative, though the de- 
 ceased may leave property sufficient to fulfill his will as well 
 as to satisfj'' his creditors. In the case in question, the testa- 
 tor indicated most unmistakably his intention to exempt his 
 personal estate from the payment of his debts, and this inten- 
 tion should be given effect. In this case the personal estate 
 has been disposed of, subject to the payment of debts, if the 
 real estate prove insufficient. A just and true account may 
 therefore, be rendered of it by the administrator, within the 
 sense and spirit of the statute. We think that the creditors 
 should first exhaust the real estate, and in this way the entire 
 law is maintained, the rights of all the parties preserved, and
 
 168 THE LAW OF ESTATES. 
 
 the disposition of the personalty by the deceased is firmly 
 fixed. 
 
 234. In McCidlom v. Chidester,^^ a nuncupative will, 
 reduced to writing and probated as required by statute^ 
 gave testator's personal property to W. The latter being ap- 
 pointed executrix gave bond with security ; the bond being ap- 
 proved the executrix took possession of the personal property 
 and used it as her own under the terms of the will ; afterwards 
 the original letters were revoked, and an administrator de 
 ionis non was appointed, and suit commenced upon the bond 
 of the executrix. The testator died seized of unincumbered 
 real estate of the value of $2,000 and debts of $241.00 was 
 allowed against the estate. The court construing and giving 
 effect to the will say : It is a universal maxim that the design 
 and intent of the framers of the law shall prevail. It will 
 be noted in this case, the real estate is nearly ten times the 
 value of the debts allowed, and, that such real estate was 
 unincumbered and not chargeable with any legacy; and, of 
 course was liable to be converted into a fund to pay just claims 
 against the estate by following the directions of the statute. 
 The reasoning of the court under such conditions, being, the 
 creditors had no right to resort to the personalty, for in such 
 case, the devisee would be deprived of all benefit under the 
 will, and the intention of the testator not carried out. Con- 
 cluding as the court does in these words: "A rule of law 
 which has no application, by reason of the facts, should not 
 operate such marked injustice, without being necessary for 
 the protection of creditors." 
 
 235. Miscellaneous cases charging debts and legacies. It 
 will be noted in examining the cases cited, where the courts 
 
 68—63 111. 477. McCullom v. 9 Peters, 461; Trimmer v. Rayne, 
 
 Chidester given at some length is 9 Ves. 209; Aldrich v. Cooper, 8 
 
 an important case in support of Ves. 382; Selby v. Selby, 4 Russ. 
 
 the text. The opinion in that case Eng, Ch. 336, which has been ap- 
 
 by Justice Thornton followed the plied in similar cases ever since, 
 
 doctrine of Burtou v. Knowlton, 3 See authorities {ante 227, 228, 229, 
 
 Ves. 107; Fenwick v. Chapman, 230, 232, 233).
 
 CONSTRUCTION OF WILLS— CONTINUED. 169 
 
 are called upon to construe a will, they always endeavor by 
 the modern rules to uphold the will and give it effect; they 
 never set the same aside in whole or in part, where it is pos- 
 sible by the instrument, aided by well established ancient and 
 modern rules to sustain the will. The fundamental rule of 
 interpretation, which controls all others is applied to arrive 
 at the intention of the testator, as gathered from the entire 
 will, and all the words, expressions and phases thereof. And 
 so the miscellaneous cases are cited to indicate the modern 
 mode of construction and the necessity of these modern rules 
 as applied in furtherance of the intention of the testator. 
 
 236. In Johnson v. Johnson,^^ it was held: a charge may be 
 placed upon the life interest of a life tenant, and under the con- 
 struction given the will in that case, the life estate could not be 
 enlarged to a fee. 
 
 237. In Stickel v. Crane,''^ the testator bequeathed to his 
 wife all his personalty and $3,000 to be raised and paid as 
 directed in the will; and to each of his children $50, to be 
 raised in the same manner. The will authorized his ex- 
 ecutrix, his widow, "to sell and convey, or not to sell, at her 
 discretion, any and all the real estate at such time or tiines, 
 and on such terms, as she might deem best for the estate, and 
 out of the proceeds, if sale was made, she was directed to pay 
 legacies, the residue of the proceeds to be safely invested." 
 At the death of his wife the testator directed, that such of 
 
 69 — 98 111. 570. tate is afterwards given in one 
 
 70—189 111. 210. Stickel v. mass, the legacies are considered 
 
 Crane. In that case the general a charge on the residuary real as 
 
 rule is given, viz.: In the absence well as personal property. Lewis 
 
 of an expressed intention to the v. Darling, 16 Howe, 1; Smith v. 
 
 contrary, legacies are payable pri- Fellows, 131 Mass. 20; Wilcox v. 
 
 marily out of the personal estate, Wilcox, 13 Allen, 252; see also 
 
 yet it is a rule of property, both cases cited in 13 Am. & Eng. Ency. 
 
 in England and most of the courts of Law, p. 117; Greeville v. Brown, 
 
 of this country, that if legacies 7 H. L. Cas. 697; Sloan v. Graham, 
 
 are given generally, and the resi- 85 111. 26; Etelmesser v. Ebelmes- 
 
 Que of the real and personal es- ser, 99 111. 541.
 
 170 THE LAW OF ESTATES. 
 
 his real estate as remained undisposed of, and the proceeds 
 of such as had been sold, should descend to his children. Held, 
 that the legacies to his wife and children were vested, and at 
 once became a charge on all his real estate, and so remained 
 until satisfied, though the executrix in that case made no sale 
 to satisfy the legacies. 
 
 238. In McFarland v. McFarland, it was heldr'^i Where 
 legacies are made a charge on the real estate devised, the dev- 
 isees can not complain, that such charges are fixed as a lien, 
 and given preference over other liens. 
 
 239. In Daily v. Wilkie, it was held,'^^ t^g ^yjn in that case, 
 directing the payment of money, creates a charge, and a court of 
 equity will enforce the lien of a legacy so charged, subject to the 
 terms and conditions as limited by the provisions of the wall. 
 
 240. In Irwin v. Walpert,'^^ where the will directed an an- 
 nuity to be paid out of the rents and profits, such devise does 
 not create a charge upon the coipus of the land. But where 
 the will under construction creates a charge upon the realty 
 such is protected as a lien.'^a 
 
 71 — 177 111. 208; McFarland v. implied to confer a fee if the pay- 
 
 McFarland. Under that case the ment of a debt or legacy was 
 
 rules of 3 Washburn on Real charged upon the devisees per- 
 
 Property, 5th ed., 563; and sonally. The McFarland case fol- 
 
 Schouler on Wills, p. 592, are giv- lowing the rules cited, and the 
 
 en and applied. In Washburn "If doctrine in harmony therewith 
 
 the terms of a devise clearly in- laid down in the cases of Funk 
 
 dicate an intention in the devisor v. Eggleston, 92 111. 515; McClel- 
 
 to dispose of his entire estate in land v. Turner, 15 Me. 463; Var- 
 
 the property devised, it will be ner v. Stevens, 22 Me. 331; Harvey 
 
 construed to convey a fee." In v. Olmstead, 1 N. Y. 483; Snyder 
 
 Schouler: "Whenever, expressly v. Nesbeth, 77 Md. 576. And see 
 
 or by implication, the will shows also Illinois Land and Loan Co. v. 
 
 the purpose to give one's property Bonner, 75 111. 315. 
 in fee simple, that purpose shall 72 — 111 111. 383. 
 prevail." At common law, though 73 — 128 111. 527. 
 a devise contained no words of 73a — Bailey v. Bailey, 115 111. 
 
 limitation or inheritance, it was 555.
 
 CONSTRUCTION OF WILLS— CONTINUED. 
 
 171 
 
 241. In Richardson v. Banson, it is held,'^^ a testamentary 
 disposition of real estate, or the rents of the same, is null and 
 void as to the creditors of the testator. 
 
 242. In Richardson v. Eveland, the rule from 1 Pomeroy's 
 Eq. 554, as follows is appliedJ^ "The will remaining ambula- 
 tory, a subsequent gift or advancement by the testator to the leg- 
 atees, with the intention that it should be in lieu and discharge of 
 the legacy, would be an ademption thereof, and in such case the 
 particular legacy adeemed would be removed or taken away by 
 the act of the testator. In the same case, the rule from 1 Roper 
 on Legacies, is applied. "That if there be a grant or devise of 
 the beneficial interest in lands charged with the payment of debts 
 or legacies, and not upon express trust to pay the same, the 
 grantee or devisee is entitled to the surplus remaining after dis- 
 
 74—90 111. App. 258. 
 
 75—126 111. 42; Richardson v. 
 Eveland. In that case the testator 
 owning between four and five hun- 
 dred acres of land, devised to his 
 son one hundred and ninety acres 
 thereof, subject to the payment of 
 the sum of $5,000 to the testator's 
 seven daughters, and then devised 
 the sum so charged, with the resi- 
 due of his estate, real and person- 
 al, to the daughters. Afterwards, 
 the testator conveyed a part of the 
 same and other lands to the son, 
 a part of which was stated in the 
 deed to be subject to the charges 
 and conditions named in the will, 
 and still later, sold to a third par- 
 ty one of the tracts devised to the 
 son for $5,600, and he then gave 
 to each of his daughters $2,500 
 and to the son $10, unaccompanied 
 with any declaration or statement 
 of his intent in so doing. Held, 
 in such case the payment to the 
 daughters was not to be taken 
 as an ademption or satisfaction 
 
 of the legacy of $5,000 to the 
 daughters, and that the son was 
 bound to pay that sum to his sis- 
 ters. (See authorities on which 
 opinion is based in Richardson v. 
 Eveland, supra, page ^4.) It ap- 
 pears the court applied the rule 
 supported by authorities in Wig- 
 ram on Wills (2d Am. ed.) 161, 
 holding: "Where, as here, the gift 
 is unaccompanied by any written 
 instrument, the declarations and 
 conduct of the testator in respect 
 of the subject matter being con- 
 sidered, and in breaking in upon 
 the portions as fixed by his will, 
 from which an inference of his 
 intention in making the gift can 
 be logically and legitimately 
 drawn, are competent to be con- 
 sidered, whether contemporaneous 
 with or prior or subsequent to the 
 gift," citing Richards v. Humph- 
 reys, 15 Pick. 133; Howz v. Mal- 
 let, 4 Jones' Eq., 194; 1 Pomeroy's 
 Eq., 564; 1 Roper on Legacies, 
 Chap. 9, Sec. 1, Chap. 12, Sec. 1.
 
 172 THE LAW OF ESTATES. 
 
 charging the debts and legacies charged ; and if the charge fails, 
 the advantage accruing from such failure will enure to his ben- 
 efit." Thus it will be observed the donee takes the surplus after 
 the charges are satisfied ; but under a gift in trust to pay a cer- 
 tain legacy, the donee does not. 
 
 243. Charges upon gifts election applied. The rule 
 adopted by the Illinois courts, is to the effect, that where the 
 legacy is to a stranger, the intention of the testator to satisfy 
 the legacy by a subsequent gift (unless the legacy and gift 
 be for the same specific purpose), must be expressed; and will 
 arise upon construction of express words of the donor, in the 
 instrument, unaided by any presumption in favor of the sat- 
 isfaction of the prior legacy. Again, if the relation of the 
 donor be that of a parent, the presumption at once arises, that 
 the subsequent gift, if ejusdem generis, w^as intended to be 
 in satisfaction of the prior legacy, based upon the equitable 
 presumption that a parent, or one standing in loco parentis 
 and owing a like natural duty to all of his children, would not, 
 after having voluntarily established the portion each should 
 receive of his estate, take from one to his detriment, for the 
 purpose of benefiting another. The rule being created by 
 courts of equity, on account of their leaning, against double 
 portions, and to facilitate the equitable distribution of estates.'^® 
 The doctrine seems to be settled, that if a legacy be given by a 
 parent or one standing i7i loco parentis, and the testator after- 
 wards makes an advancement or gift, of money, or property 
 ejusdem generis, to the same beneficiary^, the presumption will 
 arise that the gift was intended in satisfaction or substitution 
 for the prior legacy, and imless the presumption be rebutted, an 
 ademption in full, or pro tanto, as the gift is equal to or less than 
 the prior benefit, will take place. But this rule resting upon a 
 presumption of fact, that is, — the intention of the testator or 
 
 76 — Sussie v. Lowther, 2 Hase, 424; 1 Pomeroy's Eq. 554; Roper 
 on Legacies, Chap. 9, Sees. 1 to 12.
 
 CONSTRUCTION OF WILLS— CONTINUED. 173 
 
 clonor, — extrinsic evidence is admissible to aid or rebut tlie 
 presumption.'^^ 
 
 244. Doctrine of election applied to dower and other rights. 
 Chief Justice Marshall, in I/ubert v. Wren, said:^^ "It is a 
 maxim of a court of equity not to permit the same person to 
 hold under and against a will. If it be manifest from the face 
 of the will, that the testator did not intend the provisions it con- 
 tains for his widow to be in addition to her dower, but to be iu 
 lieu of it, if his intentions, discovered in other parts of his will, 
 must be defeated by llie allotment of dower to the widow, she 
 must renounce either her dower or the benefit she claims under 
 the will. ' ' In Birmingham v. Kirwan,'^^ Lord Rosedale said : ' ' The 
 rule of election seems to me to apply to every species of right, 
 and I cannot find the right of dower is more protected than 
 any other; the assertion by the widow of a right of dower in 
 the house and demesne, would be inconsistent vnth. the dispo- 
 sition of the house and demesne contained in the will, and 
 therefore the widow cannot have both." The doctrine was 
 first applied to its full extent by the Supreme Court of Illinois 
 in Williams v. Wilbanks;^^ and, again in the early case of Brown 
 V. Pitney ;^^ in which the court said: "Let us apply these well 
 settled principles to claims of dower in this state, where the hus- 
 band has died leaving a will. In such cases, under our existing 
 statute (1845), which is the law now or since the statute of 
 1872, if the will devise land to the wife, such devise is of itself 
 a bar of dower, unless otherwise expressed in the will; but the 
 
 77 — Cooper v. Cooper, L. H. and charges such with the legacy. 
 
 €han. 813; Wigram on Wills, 2 Langworthy v. Golden, 28 111. App. 
 
 Am. ed. 161. The lull and elabo- 119; Cashman's Estate, 28 111. App. 
 
 rate discussion of rule cited, and 346; Irwin v. Wallpert, 128 111. 
 
 the application of the same will 527; Bailey v. Bailey, 115 111. 555; 
 
 be found in Richardson v. Eve- Decker v. Decker, 121 111. 341; 
 
 land, 126 111. 37 (ante 242). It Caruthers v. McNeil, 97 111. 256. 
 
 is held by the Illinois courts that 78 — 7 Cranch. 370. 
 
 where the personal property is in- 79 — 2 Schoales & Lefroy, 444. 
 
 sufficient to pay a gift or legacy, 80 — 18 111. 17. 
 
 a lien attaches to the real estate 81 — 39 111. 468.
 
 174 
 
 THE LAW OF ESTATES. 
 
 widow may nevertheless renounce the will and claim her dower. 
 On the other hand, a bequest of personalty does not, of itself, 
 like a devise of realty, bar the dower, since the revision of 
 1845. 
 
 245. Election express and implied. Election is said to be 
 of two kinds, express and implied; the implied election is also 
 called equitable election, for the reason that it rests upon the 
 equitable principles stated above; while an express election 
 arises from the terms of the will.^^ j^ Cowdry v. Hichcock, it 
 is held:*^ A gift in lieu of dower and "of all other rights, in- 
 terest and claims" in the estate will put the widow to an elec- 
 tion, even before she can accept the statutory award.** 
 
 82 — Bispham's Principles of 
 Equity, Sec. 296; 2 Roper on Lega- 
 cies, 1583, et seq. 
 
 83—103 111. 262. 
 
 84— Wooley v. Schrader, 116 111. 
 37; Ditch v. Sennott, 117 111. 362; 
 Graham v. Dodge, 122 111. 534. In 
 Ditch V. Sennott, supra, it is held, 
 the doctrine of election does not 
 apply where the testator has but 
 a part interest in an estate which 
 he devises; but even in such a 
 case, if it is apparent from the 
 terms of the will that the testator 
 intended to devise the whole es- 
 tate, including the interest of a 
 third person, then the doctrine 
 will apply as to such third per- 
 son, if a devisee. See rule and 
 authorities cited on page 367 of 
 that opinion. The clause of the 
 will construed in the Ditch v. Sen- 
 nott case, supra, is substantially 
 where the testator owning but an 
 individual interest in certain 
 lands, by his will devised the 
 whole estate as follows: "I give 
 and bequeath to J. S. one hundred 
 and fourteen acres of land (de- 
 
 scribing it), to be set off to him 
 so as to include all the land I own 
 in said claim and survey, except 
 the part of the same already re- 
 served for A. M., and also to in- 
 clude all the lands in said quarter 
 section which I own lying south 
 of the road recently located from 
 T., to East Prairie Union Church." 
 Held, as the words "own" did not 
 refer to the undivided interest of 
 the testator, but to the extent of 
 the entire claim in the survey, as 
 appears from a prior clause de- 
 vising a part of the claim to A. 
 M., that it was evident the testa- 
 tor intended to devise, not the un- 
 divided interest in the claim and 
 survey, merely, but the whole es- 
 tate. In the case of Gorham v. 
 Dodge, supra (84), a testatrix be- 
 queathed to her daughter $700, 
 and devised her homestead to her 
 son, and the daughter accepted the 
 bequest to her, it was held, that 
 the latter was thereby estopped 
 from enforcing the specific per- 
 formance of a parol agreement of 
 the testatrix to give the home-
 
 CONSTRUCTION OF WILLS— CONTINUED. 175 
 
 246. Ademption of legacies. The doctrine is generally ap- 
 plied, when, in the construction of a will, it appears, a subse- 
 quent gift or advancement by the testator to the legatee has 
 been made, with the intention that it should be in lieu and 
 discharge of the legacy. The court in such case, under the 
 fundamental rule of construction, will look to the words, 
 phases and surrounding circumstances, to arrive at the inten- 
 tion of the testator; and when an ademption is established, it 
 may operate to satisfy in whole or in part the legacy to which 
 the doctrine is applied.^^ 
 
 247. In Richardson v. Eveland,^^ it was contended that 
 the gift or advancement of $2,500 to each of the testator's 
 daughters, on the occasion of the family reunion in celebration 
 of the 68th birthday of the testator, was an ademption of the 
 devise of $5,000 to said daughters, jointly, made by his will 
 a charge upon the land devised to the appellant, to be paid 
 by him to said daughters within one year after the testator's 
 death. The court determining whether an ademption has taken 
 place, or the doctrine relating thereto applicable, always ob- 
 serves whether the donor stands in the place of a parent, or 
 as a stranger to the donee ; also, if there are words accompany- 
 ing the subsequent gift, sufficiently expressed to show an in- 
 tention on the part of the donor, so the latter benefit should 
 be in substitution of the former. In case the legacy is to a 
 stranger, the intention of the testator to satisfy the legacy by 
 a subsequent gift (unless the legacy and gift be for the same 
 specific purpose), must be expressed. The question then arises 
 upon construction of the express words of the donor, unaided 
 by any presumption in favor of the satisfaction of the prior 
 legacy. If the relation of the donor be that of parent, the pre- 
 sumption at once arises, that the subsequent gift, if ejusdem 
 generis, was intended to be in satisfaction of the prior legacy. 
 
 stead to the daughter on the death The doctrine of election in that 
 
 of the former. Having elected to case being applied, 
 
 take under the will, the daughter 85 — 1 Pomeroy's Eq. Jur., Sees, 
 
 could not set up a claim which 524-557; 1 Roper on Legacies, 365. 
 
 would defeat the devise to the son. 86 — 126 111. 37.
 
 176 THE LAW OF ESTATES. 
 
 It is said the rule was created by courts of equity on account 
 of their leaning against double portions, and to facilitate the 
 equitable distribution of estates. 
 
 248. The application of the word "money" as used in 
 will. The general rule is, "that a simple bequest of money, 
 in the absence of any thing in the context to show that the 
 word 'money' is used out of its ordinary or popular signifi- 
 cation, will not include personal estate in general, but will be 
 confined to money strictly so called. '"^^ In Decker v. Decker, it 
 is said :^^ * ' On the other hand, it is equally clear that the word 
 'money' or 'moneys' is often employed in making testamentary 
 disposition under circumstances hardly distinguishable, in the 
 general sense of property or personal estate. When the term is 
 thus used, it most generally has reference to the residue of the 
 personal estate after certain charges upon it have been satis- 
 fied; such as the payment of funeral expenses and the like. 
 Moreover, an examination of the cases will show, that gener- 
 ally, where this construction has been adopted, the contrary 
 view would have resulted in leaving a portion of the testator's 
 estate undisposed of by will, — a view which courts are always 
 disinclined to adopt, on the ground that it is contrary to the 
 presumed intention of the testator." After applying the rules, 
 it is held in the Decker case, that the term "money" in the 
 connection used, was intended to express the residuum of the 
 personal estate after the payment of all debts and funeral 
 expenses; this is strongly fortified by the implication arising 
 from the use of the qualifying word "remaining." 
 
 249. Per capita and per stirpes. The rule is established in 
 construing a will, that where a legacy is to the children of 
 several persons, such take per capita. A devise of an estate 
 "to be divided equally among my heirs at law," not naming 
 them, has reference to the statute of descent, and heirs will 
 take per stirpes.^^ The rule established by the Supreme Court 
 
 87 — Williams on Executors, Sec. 89 — 2 Jarman on Wills, 34; 2 
 1190. Story's Eq. Jur., 289, and notes. 
 
 88—121 111. 347.
 
 CONSTRUCTION OP WILLS— CONTINUED. 177 
 
 of Illinois in Richards v. Miller ^^ is to the effect: That when 
 the statute is invoked to ascertain the persons who take a devise 
 or bequest by a general description, its provisions as to the quan- 
 tity each shall take must also be observed. In Kelly v. Vigas,^^ 
 it is said: "Who are heirs of a deceased person are determined 
 and declared by statute, and the quantity each shall take as heirs, 
 is also fixed. Observing these rules of construction, it would 
 seem the residue of the estate of the testator should be divided 
 in accordance with the provision of the statutes of 'descent' as 
 in case of intestacy." In the case of Kirkpatrick v. Kirkpatrick, 
 it is held :^2 ' ' There is nothing in the will to indicate the devise 
 to the 'heirs' of the testator, and whether it was to be taken 
 other than as such an heir would take under the statute. In 
 such state of the case the devisees take per stirpes." 
 
 250. Residuary bequests and legatees. It often occurs, that 
 a testator makes special bequests to some of his heirs, and then 
 bequeaths equally the residue of his estate to all of them. Good 
 reason often exists for such a disposition of an estate. Or it 
 may be the intention of a testator to make more ample provi- 
 sion for one than the other; or the love and affection which 
 prompts the devise may be stronger in one case than another. 
 Some one child may have larger advancements than the others, 
 which often makes it necessary to increase to the one to equal 
 an advancement to the other. The residuary legatee or lega- 
 tees take that which is left after all other legacies and debts 
 have been satisfied, and, in case the personal assets are not 
 sufficient to satisfy the personal bequests, it will be presumed 
 that it was the intention of the testator, where in the residuary 
 clause of the will, real and personal estate are commingled, 
 to charge them on the real estate bequeathed under the resid- 
 uary clause.^2 
 
 90—62 111. 417. 191 111. 296. Also 2 Jarman on 
 
 91—112 111. 242. Wills, 756, and cases cited. 
 
 92—197 111. 144. See also the 93— Richards v. Miller, 62 111. 
 following case: Auger v. Tatham, 417; Dearlove v. Otis, 99 111. App. 
 
 99. 
 
 12
 
 178 THE LAW OF ESTATES. 
 
 251. To whom the residuary estate shall go. This is al- 
 ways a matter to be taken from the will or the language 
 thereof, and the construction such language will receive by the 
 courts.^* If the devise of the residue of the estate is to dev- 
 isees by name, they take the residue as named. ^^ On the other 
 hand, if the devise is to ''my heirs at law" such heirs are de- 
 termined by the statute of descent.^^ In the case of Hale v. 
 Hale,^'^ it was determined the following clause in a foreign 
 will passed real estate in Illinois, viz.: "As to the residue of 
 all my estate, both real and personal, not herein otherwise dis- 
 posed of." The record shows that the testator, domiciled in 
 Massachusetts, owned a large estate in that State, and lands 
 in New York and Illinois. The will in question had been con- 
 strued by the Court of Appeals of New York, which held the 
 22d paragraph thereof, relating to the residue, so far as it ap- 
 plied to real estate in that State, worked an unlawful suppres- 
 sion of the powers of alienation, and was, for that reason, void. 
 And it was also held by that court that such clause was re- 
 pugnant to the provisions of the statute of that State prohibit- 
 ing accumulations, except for the times and purposes therein 
 permitted. The point being, that the will postponed the final 
 division of the estate until the death of the last survivor of 
 the life annuitants. The Illinois court construing the same 
 clause of the will in question, say: Primarily, the words "all my 
 estate," mean all the estate of testator wherever situated; and 
 that meaning will always be given to them, unless something in 
 the context will show a more restricted construction will better 
 comport with the clear intention of the testator. The same 
 words in the will that are held to constitute a devise of land 
 in New York, include also the lands in Illinois. Either the 
 lands in both states are devised, or they must be treated as in- 
 testate property in both states. It is incredible that a testator, 
 say the Illinois court, making a will that by its terms, when 
 
 94— West V. Fitz, 109 111. 438; 96— Kelly v. Vigas, 112 111. 245. 
 
 Kelly V. Vigas, 112 111. 245-246. 97—125 111. 408. 
 
 95— Pitney v. Brown, 44 111. 363.
 
 CONSTRUCTION OF WILLS— CONTINUED. 179 
 
 understood in their primary sense, disposes of all "his estate, 
 both real and personal," omitted therefrom property conceded 
 to be of the value of over $1,200,000. Siieh a proposition is too 
 improbable to be adopted, unless the testator was incapable of 
 comprehending what he was doing. Plainly, the residuary clause 
 of the will is broad euough to include all the property of the tes- 
 tator, no matter where situated, and there is nothing in either of 
 the attendant circumstances or in any other clause of the will, 
 that shows any intention on the part of the testator to omit any 
 property in Illinois, or elsewhere, from its operation. It is also 
 held by the latter court, that a will, postponing the final disposi- 
 tion of a part of an estate until after the death of certain life an- 
 nuitants, which ma.y not occur for forty or even sixty years, 
 is not invalid, as contravening any rule of public policy ex- 
 isting in the State of Illinois. And so it is held, a lapsed legacy 
 goes to the residuary legatee, if one; if none, to the next of 
 kin.98 
 
 A will bequeathed a specific legacy, payable as soon after 
 the testator's death as practicable, and to the same person a 
 further sum "to be paid out of my residuary estate upon final 
 distribution" and a further clause by which the testator de- 
 vises the residuary estate in trust for his two daughters until 
 they become of age, when it is to be divided between them, 
 subject to the charge in favor of the widow and the bequest 
 made by the will. Held: In such ease the payment of the 
 residuary legacy is postponed until the final division of the 
 estate between the two daughters.^^ 
 
 252. Abatement — Suits to collect. Section 16, chapter 3, 
 entitled "Administration of Estates," relating to administra- 
 tors to collect, provides : "Every such collector may commence 
 suits for debts due to the decedent, and release the same on 
 payment thereof; and no such suit shall abate by the revoca- 
 tion of his letters, but the same may be prosecuted to a final 
 
 98— Mills V. Newbury, 112 111. 99— McDevitt v. Hibben, 221 111. 
 123. 234.
 
 180 
 
 THE LAW OF ESTATES. 
 
 decision, in the name of and by the executor or administrator 
 to whom letters testamentary or of administration may be 
 granted.^ 
 
 Administrators de honis non and executors, who have a duty 
 to perform in connection with the property disposed of by will, 
 requiring a construction of the will, and a sale of the property, 
 may file a bill, on which the court may construe the will.^ The 
 rule pertaining to abatement, arises, generally, where it is 
 necessary to construe a will to ascertain whether there is in 
 the language of the will a general legacy or a specific legacy, 
 intended by the testator. In Rexford v. Bacon,^ con- 
 struing the will in question, the court adopted this rule: 
 "Specific legacies do not abate in favor of general legacies 
 (referring to clause 7 of the will), and it should not be held 
 
 1 — Starr & Curtis Annotated 
 Statutes of Illinois, with Jones 
 and Addington's Supplements 
 thereto; Vol. 1, p. 274; Vol. 4, p. 
 31; Kurd's R. S. of 111., 1905. same 
 section and chapter, p. 107. 
 
 2— Stoff V. McGinn, 178 111. 46; 
 Parsons v. Miller, 189 111. 107. In 
 Stoff V. McGinn, supra, page 55, it 
 is said: But if L — as adminis- 
 trator, had a duty to perform in 
 connection with the property 
 which required a construction of 
 the will and which rendered it 
 necessary that a sale should be 
 made, he was fully authorized to 
 file the bill, and the court might 
 properly construe the will on his 
 application and appoint a trustee 
 to sell the land. (Wenner v. 
 Thornton, 98 111. 156; Longworth 
 V. Riggs, id. 258.) Even if it should 
 be held that he was not entitled 
 to bring the suit, it would not 
 show a want of jurisdiction or ren- 
 der the decree a nullity, but it 
 
 would be merely erroneous and 
 must be corrected in a direct pro- 
 ceeding. In Parsons v. Miller, 
 supra, it Is held: The construc- 
 tion of wills being a recognized 
 head of equity jurisdiction, the 
 power of equity to entertain a bill 
 by an executor to construe a will 
 must be questioned in the trial 
 court, where the objection to jur- 
 isdiction is that no trust was in- 
 volved. And where a controversy 
 has arisen between executors as 
 to how the proceeds of personal 
 property in their hands shall be 
 distributed, to determine which a 
 construction of the will is neces- 
 sary, it is proper for the executor 
 to file a bill for the construction 
 of the will in order to protect him- 
 self in the execution of his trust. 
 See Foster v. Adler, 84 111. App. 
 655; Miller v. Kingsbury, 28 111. 
 App. 532. 
 
 3—195 111. 70; 18 Am. & Eng. 
 Ency. of Law, 2d ed., p. 714, and 
 cases cited.
 
 CONSTRUCTION OF Yv'ILLS— CONTINUED. 181 
 
 to abate in the same proportion as such general legacies given 
 under the same clause." The provision in the will construed was: 
 "All moneys and property which I may have heretofore or which 
 I may hereafter during my life advance, loan or give to my 
 sister, are to be hers absolutely." The language used being 
 held a confirmation of all ante mortem gifts and creates a 
 specific legacy, which can only be satisfied by the delivery of 
 the notes and mortgages representing such loans; and, con- 
 sequently, which does not abate proportionately with the gen- 
 eral bequests given by the same clause of the will.* 
 
 253. Presumption of death if party not heard from in 
 seven years. The presumption of life ceases at the end of 
 seven years, from the period when he or she was last heard 
 from. The general rule holds, with respect to persons away 
 from their usual places of resort, and of whom no account can 
 be given. At what particular time a party died, is of no im- 
 portance to a person claiming a right which becomes estab- 
 lished on a death, but it may be very important to one resist- 
 ing that right, and so, it becomes an affirmative fact, which 
 the party alleging must prove; and the party whose interest 
 it is to show, that a person was living within the seven years, 
 is at liberty to show it by such facts and circumstances as will 
 inspire that belief in the mind of a court or jury. Where a 
 person was not heard of from the 21st of March, 1852, to the 
 21st of March, 1859, it was held, that the presumption of law 
 is, that he was dead on the 21st of March, 1859, being seven 
 years from the time he was last heard of.^ The question often 
 arises, and becomes extremely important as a governing fact, 
 where a legacy is given to one, and the heir, a residuary legatee 
 or devisee, questions whether he was not dead at the time of the 
 testator's decease; it often means the passing of an interest and 
 possibly an entire estate, in a manner not intended by the testa- 
 tor. Who should inherit, may make it necessary to fix the exact 
 hour and day of death ; for it is held, "if the legatee died before 
 
 4— Rexford v. Bacon, 195 111. 70. 5— Whiting v. Niccll, 4G 111. 230.
 
 182 THE LAW OF ESTATES. 
 
 the testator, the legacy, unless given to a child or grandchild, 
 would lapse, in the absence of a special provision in the will to 
 meet such a contingency and would go to heirs, residuary legatee 
 or devisee."^ The exact date of death or the legal presumption 
 of death, generally becomes important, when the testator's estate 
 is distributed, and then, as between his heirs and legatees. At 
 the expiration of seven years, the presumption of death arises 
 by law, so that the absentee is to be treated and accounted as 
 dead, just as the common law regarded him or her living until 
 death was proved; and, as a matter of right and of equity, the 
 relation of parties affected by his or her life or death are to be 
 determined by these technical presumptions.'^ 
 
 Lawson in his work on Presumptive Evidence, in stating 
 what circumstances, if proved, will overcome the presumption 
 of the continuance of life lay down the following rule: "That 
 within that time he was in a desperate state of health." {Rule 
 49.) "That his habits, character, domestic relations or neces- 
 sities would have made it certain that if alive within that 
 period he would have returned to or communicated with his 
 residence, home or domicile." {Rule 52.) So it is held, the 
 age, habits of life, habits as to the use of stimulants or drugs, 
 and, indeed, any condition from which a presumption as to the 
 continuance or destruction of life would arise, are proper to 
 be considered. So also, where one has lived an upright life 
 and enjoyed the confidence of his acquaintances, is successful 
 in business, attached to his family, contented, and fond of the 
 associations of home, it is to be fairly presumed that if alive 
 he would speedily return, or at least communicate with the 
 objects of his affection. On the other hand, if his relations 
 with liis family were strained, if he was in straitened circum- 
 stances, unhappy, and discontented with his surroundings and 
 
 6— Whiting v. Nicoll, 46 111. 230. Clark v. Canfield, 15 N. J. Eq. 119; 
 
 7 — Johnson v. Johnson, 114 111. Burr v. Lyon, 14 Wart. 150; Han- 
 
 611; Reedy v. Millizen, 155 111. cock v. Am. Life Ins. Co., 62 Mo. 
 
 636; see also Lawson on Presump- 2G; Dean v. Bittenger, 62 Mo. 101; 
 
 live Evidence, rule 43, p. 202; Whitehead's Appeal, 23 Pa. St. 114.
 
 CONSTRUCTION OF WILLS— CONTINUED. 183 
 
 associations, the likelihood of his return or communication 
 would naturally be much lessened.^ 
 
 254. In Heintz v. Ahlgren, it is held:^ In order 
 to enforce the presumption of the death of a person after an 
 absence of seven years, there must be evidence of diligent 
 inquiry at the person's last place of residence, and among his 
 relatives, and any others who probably would have heard from 
 him, if living. Long absence alone, no matter how long con- 
 tinued, is not sufficient to raise the presumption of death. There 
 must be shown an absence of seven years or more from the 
 established residence of the party, before the presumption of 
 death can be raised. 
 
 8 — Reedy v. Mulligan, 155 111. large, ante 69 ) . Where a lapse is 
 
 636; Webster v. Blrchmore, 13 found to exist, under the statute 
 
 Ves. 362; In re Hall, 1 Will. 85; the estate goes to heirc. Summers 
 
 Tisdale v. Conn. Mut. Ins. Co., 26 v. Highley, 191 111. 193. The courts 
 
 Iowa, 170. of Illinois will vest an estate of 
 
 9 — 170 111. 60. any character where it can legally 
 
 'Note. — Lapsed Legacies: The llth. do so. Dorsey v. Dodson, 104 111. 
 
 section of the statute of descent, App. 589. See also Rood on Wilis, 
 
 was intended to prevent the laps- sees. 668 to 679, chapter 20, entitled 
 
 ing of legacies (see statute at "Lapses and Substitutions."
 
 CHAPTER XI 
 
 CONTEST OF WILLS IN CHANCERY 
 
 Sec. 
 
 255. The statute confers chancery 
 
 jurisdiction. 
 
 256. Jurisdiction is very broad 
 
 in such contest. 
 
 257. The issue of fact for jury. 
 
 258. When judgment admitting 
 
 will to probate is not void 
 for want of jurisdiction. 
 
 259. Interested persons only can 
 
 bring suit, 
 
 260. Stoors v. St. Luke's Hospital. 
 
 261. A jury may be waived. 
 
 262. Where evidence is not suflB- 
 
 cient to support verdict for 
 plaintiff. 
 
 263. The court applies and con- 
 
 strues the law, the jury the 
 facts. 
 
 264. The party affirming the va- 
 
 lidity of the will has the 
 right to open and close the 
 case. 
 
 265. Who are and who are not 
 
 competent witnesses. 
 
 266. What constitutes a prima fa- 
 
 cie case. 
 
 267. The contents of a lost or des- 
 
 troyed will may be proved 
 by a single witness. 
 
 Sec. 
 
 268. Secondary evidence. 
 
 269. Expert witnesses. 
 
 270. Upon a supposed state of 
 
 facts only an expert can tes- 
 tify. 
 
 271. Statements and declarations 
 
 before and after making 
 will. 
 
 272. Testamentary capacity. 
 
 273. Brice v. Hall. 
 
 274. Sound mind and memory. 
 
 275. What is the effect of old age 
 
 upon testamentary capacity. 
 
 276. Fraud and compulsion or im- 
 
 proper conduct. 
 
 277. Undue influence and improp- 
 
 er conduct. 
 
 278. General influence such as ad- 
 
 vice, argument or persua- 
 sion. 
 
 279. Trial by jury how far conclu- 
 
 sive. 
 
 280. The costs in such cases. 
 
 281. Executors generally not lia- 
 
 ble individually, but may be 
 in certain contingencies. 
 
 282. Solicitor's fees allowed in cer- 
 
 tain contingencies. 
 
 Sec. 255. The statute of Illinois confers chancery jurisdic- 
 tion. The jurisdictior. of courts of chancery in Illinois, to en- 
 tertain bills to set aside the probate of wills, is derived exclu- 
 sively from the statute ; and the jurisdiction of such court can 
 only be exercised in the mode and under limitation prescribed 
 
 184
 
 CONTEST OF WILLS IN CHANCERY. 185 
 
 by the statute.^ *^ A bill in chancery to set aside a will or 
 its probate can not be entertained under the general equity 
 powers vesting in courts of chancery independently of the 
 statute which confers the jurisdiction.^^ The jurisdiction is de- 
 termined by the statute law of the State providing for the con- 
 test of wills in chancery in force when such bill is filed ; and this 
 is true, even though the statute law for such purpose may not be 
 the same as when the will was probated. The jurisdiction of 
 chancery can be exercised only in the manner and under the lim- 
 itations prescribed by statute; and the time within which such 
 a bill may be filed by any person interested is fixed by the statute 
 granting the remedy.^ ^ In construing statutes, the courts make 
 a radical distinction between a statute law which gives a remedy 
 and fixes a time within which it may be exercised, and a statute 
 of limitation which fixes a time within which a common law 
 remedy may be resorted to.^^ Before the bar of the statute has 
 fallen, the state may establish, alter, lengthen or shorten the 
 period of limitation.!^ In the case of Ryhiner v. Frank, it is 
 held ^ ^ That where a statute of limitation limiting the time with- 
 in which an act may be done, is modified by changing the time, 
 if such change still gives a reasonable time for the perform- 
 ance of the act, taking away no vested right, it is a valid law. 
 The statute as amended in 1903, and in force July Ij of the 
 same year is as follows: "When any will, testament, or cod- 
 icil shall be exhibited in the County Court for probate thereof 
 as aforesaid, it shall be the duty of the court to receive the 
 
 10— Luther v. Luther, 122 111. 338; O'Brien v. Bonfield, 220 111. 
 
 565, and cases cited by the court. 219. 
 
 Jele V. Lemberger, 163 111. 338. 13 — "The Harrisburgh," 119 U. 
 
 11— Gaines v. Feunter, 92 U. S. S. 199; Spalding v. White, 173 111. 
 
 10; Luther v. Luther, 122 111. 565, 127. 
 
 and cases cited in the opinion; 14 — Terry v. Anderson, 95 U. S. 
 
 Jele V, Lemberger, 163 111. 338. 628; Ryhiner v. Frank, 105 IlL 
 
 12 — Luther v. Luther, 122 111. 326; Am. & Eng. Ency. of Law, R. 
 
 565; Wheeler v. Wheeler, 134 111. ed., 609, under head of "Limita- 
 
 522; Spalding v. White, 173 111. tions" and cases cited. 
 
 127; Jele v. Lemberger, 163 111. 15—105 111. 326; Spalding v. 
 
 White, 173 111. 127.
 
 186 THE LAW OF ESTATES. 
 
 probate of the same without delay and to grant letters testa- 
 mentary thereon to the person or persons entitled, and to do 
 all other needful acts to enable the parties concerned to make 
 settlement of the estate at as early a day as shall be consist- 
 ent with the right of the respective persons interested therein : 
 Provided, however, that if any person interested shall, within 
 one (1) year after the probate of any such will, testament or 
 codicil in the County Court as aforesaid, appear and by his 
 or her bill in chancery contest the validity of the same, an 
 issue at law shall be made up whether the writing produced 
 be the will of the testator or testatrix or not, which shall be 
 tried by a jury in the Circuit Court of the county wherein 
 such will, testament or codicil shall have been proven and 
 recorded as aforesaid, according to the practice of chancery 
 in similar cases ; but if no such person shall appear within the 
 time aforesaid, the probate shall be forever binding and con- 
 clusive on all the parties concerned, saving to infants or non 
 compos mentis the like period after the removal of their re- 
 spective disabilities. And in all such trials by a jury as afore- 
 said the certificate of the oath of the witnesses at the time of 
 the first probate, shall be admitted as evidence and to have 
 such weight as the jury shall think it may deserve. "^^ 
 
 256. Jurisdiction is very broad in such contest. The juris- 
 diction in equity of a bill to contest a will, extends to an in- 
 vestigation of any and every ground on which the validity of 
 the will may be attacked ; but the bill must be consistent in its 
 averments, for the complainant cannot state one case in the 
 
 16 — Starr & Curtis Annotated cases cited; Vol. 5, pp. 576, 577, 
 
 Statutes of Illinois, with Jones sets forth statute passed in 1903, 
 
 and Addington's Supplements and gives cases applicable to text 
 
 thereto, Vol. 3, pp. 4036 to 4039, on pages noted and on page 57S. 
 
 "With cases giving history of the Kurd's R. S. of 111. 1905, Sec. 7, 
 
 common law right to contest will Chapter 148 "Wills," pp. 2051, 2052. 
 
 as extended in the early statutes See also the following cases, Davis 
 
 of Virginia, Kentucky, and Illi- v. Upson, 209 111. 206; Sharp v. 
 
 nois. Vol. 4, pp. 1286 to 1289. and Sharp, 213 111. 332; Davidson v. 
 
 Redden, 214 111. 61.
 
 CONTEST OF WILLS L\ CHANCERY. 187 
 
 bill and prove another.-" The contest must be tried upon the 
 issue made in the pleadings.^i 
 
 257. The issue of facts for jury. The statute quoted in 
 section 255 of this work is similar to the statute of the state 
 in 1845, the material difference being, that under the statute 
 of 1845, five (5) years was allowed, after probate of will, 
 within which an interested party could file a bill to contest. -- 
 The leading case, Riggs v. Wilto }),-■'• was decided in 1851, Chief 
 Justice Treat delivering' the opinion. The excellent exposition 
 of the law as laid dov,]i in that opinion, often cited in late de- 
 cisions touching the same subject matter, we think warrants a 
 liberal reference thereto. It is said in that case, this is a feigned 
 issue out of chancery to determine the question whether a certain 
 
 paper was the last will and testament of C R . The 
 
 plaintiff' alleges that it was not his last will and testament ; the 
 defendant affirms that it was. On the trial, the defendants were 
 allowed to open and conclude the case ; and both of the subscrib- 
 ing witnesses to the will were introduced, and testimony was of- 
 fered tending to show that R was of unsound mind and mem- 
 ory at the time of the execution of his will. The issue was submit- 
 ted to the jury as a new and original question, to be determined 
 exclusively upon the evidence introduced before them. The 
 trial is de novo and without regard to the fact that the instru- 
 ment was admitted to probate. The certificate of the oaths of 
 witnesses at the time of the probate may be offered in evidence 
 by either party; but it is to receive such weight only as the 
 jurj^ may think it deserves in connection with the other proof 
 in the case. We are satisfied that rule of construction is sound 
 and reasonable, and well calculated to carry out the real inten- 
 tion of the legislature. In practice it will best protect the ends 
 
 20 — Swearington v. Inman, 198 67; Ingraham v. Ingraham, 169 111. 
 111. 257; Carmichael v. Reed, 45 461; Smith v. Henline, 174 111. 199. 
 111. 108; Purdy v. Hall, 134 111. 22— Riggs v. Wilton, 13 111. 17; 
 298. Yoe v. McCord, 74 111. 33; Ruther- 
 
 21— Wallace v. Whitman, 201 111. ford v. Morris, 77 111. 397. 
 
 23—13 111. 17.
 
 188 THE LAW OF ESTATES. 
 
 of justice, and protect the rights of parties. The jury are to 
 hear the proofs submitted by the parties, and decide the issue 
 as they would any other question of fact, according to the 
 weight of the evidence. In such case the parties are brought 
 before the court for the express purpose of having all ques- 
 tions respecting the validity of the will forever put at rest. 
 It was clearly the design of the legislature that an issue under 
 the statute should be determined, like every other issue out 
 of chancery, upon the weight and preponderance of the testi- 
 mony adduced by the parties. This may be gathered from the 
 expression in the statute, "that the issue shall be tried by a 
 jury, according to the practice of courts of chancery in sim- 
 ilar eases." And it is further evidenced by the provisions of 
 an Act of the 25th of Februarj^ 1845.-* This act declares, that 
 when probate of a will shall be refused and an appeal shall be 
 prosecuted, the party seeking probate may support the will by 
 any evidence that would be competent on the trial of an issue out 
 of chancery, for the purpose of contesting the validity there- 
 of. "25 
 
 258. When judgment admitting will to probate is not void 
 for want of jurisdiction. Section 14 of the act concerning 
 wills, provides: Appeals may be taken from the order of the 
 county court, allowing or disallowing any will to probate, by any 
 pereon interested in such will, in the same manner as appeals 
 are taken from justices of the peace, except that the appeal bond 
 
 24— See Section 13, Chapter 148, 111. 425; Singloff v. Bruner, 174 
 
 "Wills"; Kurd's R. S. of 111., 1905; 111. 561; Entwistle v. Merkle, 180 
 
 p. 2053; this is the law in that 111. 24; Petefish v. Becker, 176 111. 
 
 regard passed by the legislature 448; Nieman v. Schnitker, 181 111. 
 
 in 1845, but now appearing under 400; Shaw v. Camp, 163 111. 148; 
 
 the act relating to wills. Claussenius v. Claussenius, 179 111. 
 
 25 — See the following cases, af- 545; Smith v. Henline, 174 111. 
 
 firming the principles laid down 184; Stoors v. St. Luke's Hospital, 
 
 in the case of Riggs v. Walton, 180 111. 368; Swearington v. In- 
 
 SKpra (23); Johnson v.' Johnson, man, 198 111. 255; Baker v. Baker, 
 
 187 111. 93; Bardell v. Brady, 172 202 111. 595; O'Brien v. Bonfield, 
 
 220 111. 219.
 
 CONTEST OF WILLS IN CHANCERY. 189 
 
 and security may be approved by the clerk of the county court ; 
 and the trials of such appeals shall be de novo?^ And it is held 
 that if the party appealing from the court's refusal to admit a 
 will to probate is not named in the will as legatee or devisee, 
 and is not an heir of the testator or testatrix, yet if the appeal 
 bond recites that the appellant is " a legatee named in the will, ' ' 
 the circuit court has jurisdiction to hear the appeal, and its 
 judgment admitting the will to probate is res judicata, upon the 
 question of the appellant's interest, in a collateral proceeding, 
 as collateral attacks cannot prevail unless the judgment is void.-^ 
 But it is held, within the meaning of the statute quoted, the 
 party taking the appeal, must be one having a vested as distin- 
 guished from a contingent interest.^s And the appeal must be 
 taken within the time prescribed by the statute in question.^^ 
 
 259. Interested persons only can bring bill. In constru- 
 ing section 7 of the statute of wills, it has been held, the words, 
 "any person interested," as used in the proviso to said section, 
 means those persons who are interested in the settlement of the 
 estate, that is to say, those who will be directly affected by its 
 settlement; that the interest must be a direct pecuniary interest 
 affected by the probate of the will, as the reference to an exist- 
 ing interest, and not to an interest which may be subsequently 
 acquired. A person, not directly and pecuniarily interested in 
 the estate of a deceased person at the time of the probate of the 
 will of such decedent, is not entitled to file a bill in chancery 
 for the purpose of contesting the will.^*^ In McDonald v. White, 
 
 26 — See sections 13 and 14, 27 — White Memorial Home v. 
 
 Chapter 148, "Wills." Starr & Cur- Price, 195 111. 279. 
 
 tis Annotated Statutes of Illinois, 28 — People v. McCormick, 201 
 
 with Jones & Addington's Supple- 111. 313; Same v. Same, 104 111. 
 
 ments thereto. Vol. 3, pp. 4042, App. 650 
 
 4043; Vol. 4, pp. 1289, 1290; Vol. 29— Wright v. Simpson, 200 111. 
 
 5, pp. 578, 579, and cases cited in 61, 
 
 each volume under sections of 30 — McDonald v. White, 130 111. 
 
 statute noted. Hurd's R. S. of III. 493; Jele v. Lemberger, 163 111. 
 
 1905, same sections and chapter, 338; Stoors v. St. Luke's Hospi- 
 
 p. 2053. tal, 180 111. 373. In the latter case.
 
 190 THE LAW OF ESTATES. 
 
 it is said:^^ Appellants were not interested in the probate of 
 this will. They were deprived of nothing by it. Their interest 
 was derived by purchase long subsequent to the probate of the 
 will, and is, therefore, not such as is within the contemplation 
 of the statute. ]\Ioreover, James M. McDonald never had posses- 
 sion of this property. He never had any apparent title to it. At 
 most, all that he had Avas the bare right to establish title by suc- 
 cessfully contesting this will. But such a right is not assignable, 
 and cannot therefore, be the subject of a conveyance.'^^ 
 
 260. In Stoors v. St. Luke's Hospital, the court said:^^ 
 The right to file the bill, which existed in George M. Stoors, 
 did not descend to the appellant, Emory A. Stoors. George 
 M. Stoors had the bare right to establish title by successfully 
 contesting the will. That right was not assignable, as we held 
 in McDonald v. Wliite?'^ If it was not assignable by a convey- 
 ance or written transfer, it could not pass by inheritance or de- 
 scent. The right to dispose of property by will is always con- 
 sidered purely a creature of statute.^ *^ No statute exists in this 
 
 it is held, the law in force when Wis. 183; Gardner v. Adams, 12 
 
 bill to contest a will is filed con- Wend. 297; Marshall v. Means, 12 
 
 trols the jurisdiction, and not the Ga. 61; Daj'ton v. Fargo, 45 Mich, 
 
 law in force when the will is pro- 153; Brush v. Sweet, 38 Mich. 574. 
 
 bated. Courts of equity take juris- The cases cited hold, that the as- 
 
 diction solely from the statute in signment of a bare right to fill a 
 
 such matter, and independently of bill in equity for a fraud com- 
 
 the statute which grant such court mitted on the assignor, will be 
 
 jurisdiction, cannot exercise with- held A'oid as being against public 
 
 in itself jurisdiction under a policy and savoring of mainte- 
 
 bill to contest a will; the mode nance, this doctrine being applied 
 
 and the limitation prescribed by to the facts in the case of Norton 
 
 the statute solely give such courts v. Tuttle, supra, and later Stoors 
 
 power to act. v. St. Luke's Hospital, stipra (30), 
 
 31—130 111. 493. in a bill to contest will. 
 
 32— Norton V. Tuttle, 60 HI. 130; 33— Stoors v. St. Luke's Hospl- 
 
 Illinois Land and Loan Co. v. tal, 180 111. 373. 
 
 Speyer, 138 111. 137. See also 2 34— McDonald v. White, 130 111. 
 
 Story's Eg. Jur., sec. 1040 h; 3 493. 
 
 Pomeroy's Eq. Jur., sec. 1276; 1 3.5 — United States v. Perkins, 
 
 Am. & Eng. Ency. of Law, p. 833; 163 U. S. 625; Kochersperger v. 
 
 M. & M. R. R. V. M. & M. R. R., 20 Drake, 167 111. 122.
 
 CONTEST OF WILLS IN CHANCERY. 191 
 
 State, so far as we are advised, which authorizes the right to file 
 such a bill to pass by descent, or to go to an heir by inheritance. 
 The right of a widow to dower do€S not survive to the administra- 
 tor.2^ An action to recover a statutory penalty does not sur- 
 vive the death of the defendant.^'* 
 
 261. A jury may be waived. In Whipple v. Eddy, it is 
 said:^^ It is next contended that the Circuit Court was without 
 jurisdiction to try the issues formed, without a jury. To the 
 reply that a jury was expressly waived by agreement of the 
 parties, it is said jurisdiction cannot be given by consent. This 
 is a misapplication of the rule invoked. Section 7 of the statute 
 of ''Wills" confers jurisdiction upon courts of chancery to hear 
 bills to contest wills. It was said in Wolf v. Bollinger,^^ that 
 the statute gave a court of chancery authority to adjudge upon 
 the validity of any part of an instrument as well as the whole, 
 and when there was no dispute of fact, and parties proceeded 
 to trial without objection and without asking that an issue at 
 law be made up and tried by a jury, that was a waiver of the 
 making up and trial by the jury of such issue. The provisions 
 as to how the trial shall be had in no way affects the juris- 
 diction of the court. The question raised is more properly 
 whether a jury may be waived by the parties when "an issue 
 of law is made up, as to whether the writing produced 
 be the will of the testator or testatrix." It is true, the 
 language of the statute is, ''which shall be tried by a jury," 
 etc.; but the word "shall," as here used, has no other or 
 greater force than the word "may." If a jury can be waived 
 in such a case, it was clearly done here by stipulation in writ- 
 ing entered of record. Counsel has cited decisions from the 
 Supreme Court of Kentucky, Virginia and other states upon 
 statutes of which ours is a substantial copy, and it is insisted 
 that they decide that the trial must be by jury. These deci- 
 
 36— Hitt V. Scammon, 82 III. 519. 38—161 111. 114. 
 37— Diversey v.' Smith, 103 111. 39—62 111. 368. 
 378.
 
 192 THE LAW OF ESTATES. 
 
 sions go no further than our own, so far as we can discover. 
 All agree that the statute contemplates a trial by jury, and that 
 the court could not dispense with the jury without the consent 
 of all parties interested ; but we do not understand any of the 
 cases cited as holding that a jury may not be waived as in any 
 other civil case, and we think the result of our decisions is 
 that it can. The verdict of a jury in the contest of a will 
 has the same effect, and the power of a court to set it aside 
 and grant a new trial is the same, as in actions of law."**^ The 
 court having the ultimate right to determine whether the issue 
 has been decided in accordance with the evidence, no good rea- 
 son can be shown why the parties may not, with the consent of 
 the court, submit such issue to it in the first place, if they see 
 proper to do so. Of course, the verdict of the jury is only to be 
 set aside when it is manifestly against the weight of the evidence, 
 but the court alone has the power to say when it is so. 
 
 The law will not allow appellant to complain that it was error 
 to permit him to waive his rights.*^ When a party suffers the 
 case to be tried by the court until the issues are found against 
 him, he waives any right he may have had to a jury trial.^^ 
 
 262. Where evidence is not suflBcient to support a verdict 
 for plaintiff. In Thompson v. Bennett, the court said:'*^ It is 
 true, that the statute requires the issue as to the validity of a 
 will to be tried by a jury. Hence, if the court takes a case, in- 
 
 40— Meeker v. Meeker, 75 111. Hock, 118 111. 587. It is held, that 
 
 260; Calvert v. Carpenter, 96 111. where the court had jurisdiction 
 
 63; Shevalier v. Seager, 121 111. of the person and of the subject 
 
 564. matter, and the judgment was 
 
 41 — Heacock v. Hosmer, 109 111. valid, any error or irregularity 
 
 245; Burgwin v. Babcock, 11 111. with the trial of the case without 
 
 28; Phillips v. Hood, 85 111. 450; a jury and where nothing appears 
 
 Heinrichsen v. Mudd, 33 111. 476; in the record to show a jury was 
 
 Proffatt on Jury Trials, sec. 110. waived or not waived, it will be 
 
 42 — Ellithorpe v. Buck, 17 Ohio presumed a jury was waived by 
 
 St. 72; Proffatt on Jury Trials, sec. the parties. 
 112. In the case of Railway Co. v. 43—194 111, 61.
 
 CONTEST OF WILLS IN CHANCERY. 193 
 
 volving such an issue, from the jury and directs a verdict against 
 the contestants, the same rule must be applied that obtains in 
 respect to trials in suits at law.'*^ In Purdy v. Hall, where a 
 bill was filed to set aside the probate of a willj it is held : ' ' The 
 rule in actions at law is, that when the evidence given at the 
 trial, with all the inferences that could justly be drawn from it, 
 is so insufficient to support a verdict for the plaintiff, that such 
 a verdict, if returned, must be set aside, the court is not bound 
 to submit the case to the jury, but may direct a verdict for the 
 defendant. ' ' 
 
 263. The court applies and construes the law, the jury 
 the facts. The question whether the will has been executed 
 with all the proper formalities, is a question of law, and not 
 a question of fact to be considered by the jury.-*^ It is not in 
 the province of the jury to determine whether the will is a just, 
 wise and proper disposition of the testator's property. ^^ In 
 Freeman v. Easly,'^'^ the evidence established at least a partial 
 unsound condition of the mind, and it was held the jury should 
 not for that reason alone, be told, as a matter of law, that would 
 incapacitate him to make a valid will. That would be to state 
 the rule of law on this subject broader than the authorities in 
 this or other States will warrant. It accords with common ob- 
 servation that in contests concerning wills, where the testator has 
 made, or has seemingly made, an unequal or inequitable disposi- 
 tion of his property among those occupying the same relation to 
 him, by consanguinity or otherwise, there is a disposition in most 
 minds to seek for a cause for holding the will invalid. The incli- 
 nation in this direction that is found to exist in the minds of 
 most, if not all, jurors, cannot always be controlled by instruct- 
 ing them ; there is no law requiring a testator, nor is he bound, 
 to devise his property equitably or in equal portions among his 
 
 44—134 III. 298. 46— Carpenter v. Calvert, 83 111. 
 
 45— Roe V. Taylor, 45 111. 485; 62; Neiman v. Schmltka, 181 111. 
 
 Graybeal v. Gardner, 146 111. 343; 407; Freeman v. Easly, 117 111. 
 
 Harp V. Parr, 168 111. 459; John- 317. 
 
 son V. Johnson, 187 111. 93. 47—117 111. 314. 
 13
 
 194 THE LAW OF ESTATES. 
 
 heirs. Of course, the law is he may make such disposition of 
 his property as he sees fit, and he may bestow his bounty where 
 he wishes, either upon his heirs or others. While this is un- 
 doubtedly the law, the common mind is disinclined to recog- 
 nize itj and jurors will too frequently seize upon any pretext 
 for finding a verdict in accordance with what they regard as 
 natural justice. 
 
 264, The party afl&rming validity of the will has the right 
 to open and close the case. The rule in this State is, 
 that the burden of proof is on the party affirming the execu- 
 tion and validity of the will, and consequently such party has 
 the right to open and close the case.^ But where two wills are of- 
 fered and the subject of contention arises, it has been held, 
 each party affirms the execution and validity of the will; and 
 therefore it was in the discretion of the court, to determine 
 which should have the right to open and conclude the case.^ 
 
 265. Who are and who are not competent witnesses. 
 Sections 1 and 2 of the act relating to evidence and deposi- 
 tions, Chapter 51, of the Statute of Illinois," provides: 
 "No party to a civil action, or person directly interested in 
 
 1— Bevelot v. Lestrade, 153 111. Young v. Bank of Cairo, 51 111. 73 
 
 625; Moyer v. Swyggart, 125 111. Stampoliski v. Steefens, 79 111. 303 
 
 262; Tate v. Tate, 89 111. 42; Riggs McFarland v. People, 72 111. 368 
 
 V. Wilton, 13 111. 15. McCoy v. People, 71 111. Ill; Rob- 
 
 2— Bardel v. Bradley, 172 111. erts v. Pierce, 79 111. 381. And 
 
 425. the following cases where the stat- 
 
 3 — Post 650; Kurd's R. S. of 111. ute, section 2, chapter 51, Evidence 
 1905, pp. 1034, 1035; and see the and Depositions was applied: 
 following cases, where this statute Straubher v. Mohler, 80 111. 21; 
 was applied (sec. 1, Evidence & Crane v. Crane, 81 111. 166; Lang- 
 Depositions) : Remann v. Buck- ley v. Dodsworth, 81 111. 87; Muel- 
 master, 85 111. 403; Galbraith ler v. Rebhan, 89 111. 342; Bruner 
 V. McLain, 84 111. 379; Muel- v. Battell, 83 111. 317; Galbraith 
 ler V. Rebhan, 89 111. 342; v. McLain, 84 111. 379; Remann v. 
 Penn v. Oglesby, 89 111. 110; Buckmaster, 85 111. 403; Primmer 
 People V. Starr, 50 111. 52; Free- v. Clabaugh, 78 111. 94; Boynton v. 
 man v. People, 54 111. 153; Graub- Phelps, 52 111. 211; Steel v. Clark, 
 ner v. Jacksonville, etc., 50 111. 87; 77 111. 471; Ruggles v. Gatton, 50 
 I. C. Ry. Co. V. Weldon, 52 111. 290; 111. 412; Kibbe v. Bancroft, 77 111. 
 Leach v. Nichols, 55 111. 273;
 
 CONTEST OF WILLS IN CHANCERY. 195 
 
 the event thereof, shall be allowed to testify therein when 
 any adverse party sues or defends as executor, admin- 
 istrator, heir, legatee or devisee, unless when called as a wit- 
 ness by such adverse parties so suing as defendants, and ex- 
 cept in certain other cases named in the statute, to wit: A 
 party or interested person may testify "to facts occurring 
 after the death of such deceased person, or after the ward, 
 heir, legatee or devisee, shall have attained his or her ma- 
 jority." And any agent of any deceased person, is competent 
 to testify, "to any conversation or transaction between such 
 agent and the opposite party or party in interest; and such 
 opposite party or party in interest may testify concerning the 
 same conversation or transaction." And, "when any such 
 party suing or defending as aforesaid, or any person having a 
 direct interest in the event of such action, suit or proceeding 
 shall testify in behalf of such party so suing or defending, 
 to any conversation or transaction with the opposite party or 
 party in interest, then such opposite party or party in interest 
 shall be permitted to testify as to the same conversation or 
 transaction." And "in any such action, suit or proceeding, 
 any witness, not a party to the record, or not a party in inter- 
 est, or not an agent of such deceased person shall, in behalf 
 of any party to such action, suit or proceeding, testify to any 
 conversation or admission by any adverse party or party in 
 interest occurring before the death and in the absence of such 
 deceased person, such adverse party in interest may also tes- 
 tify as to the same admission or conversation." And, "in any 
 such action, suit or proceeding, the deposition of such deceased 
 person shall be read in evidence at the trial, any adverse party 
 or party in interest may testify as to all matters and things 
 testified to in such deposition by such deceased person, and 
 not excluded for irrelevancy or incompetency." The general 
 rule as laid down in Bardell v. Brady,'*' is: Courts of equity 
 
 18; Wolcott V. Heath, 78 111. 433; byterian Church v. Emerson, C6 
 Long V. Conklin, 75 111. 32; Pres- 111. 269. 
 
 4—172 111. 424.
 
 196 
 
 THE LAW OF ESTATES. 
 
 will disregard mere matters of form and will look to the sub- 
 stance, and see on which side of the controversy the real interest 
 of a party to the suit who is interested therein lies, and deter- 
 mine the competency of the witness from his interest in the case, 
 regardless of the mere question of pleadings, when the question 
 is as to his interest in the case. Were the rule otherwise, the 
 effect and force of the statute could be evaded/'' 
 
 266. What constitutes a prima facie case on bill to con- 
 test. In Johnson v. Johnson, it is said:*^ We have 
 held that, if a will has been probated in the County Court, a 
 certificate of the evidence of the subscribing witnesses will be 
 prima facie proof of the validity of the will in a proceeding 
 in chancery which attacks the probate of the will. Where in 
 addition to the certificate, the testimony of one of the sub- 
 scribing witnesses is also introduced, sustaining the validity of 
 the will, a prima facie case in favor of its validity is unques- 
 
 5— Pyle V. Pyle, 158 111. 289, and 
 see the following cases, as to ex- 
 ceptions under statute clauses one, 
 two, three, four and five. See 
 cases cited generally (note 3) and 
 the following as to "events after 
 the death of decedent, or majority 
 of minor:' In re Steel, 65 111. 322; 
 Stewart v. Kirk, 69 111. 509 ; Pease 
 V. Hunt, 60 111. App. 586; Black v. 
 Miller, 71 111. App. 345; Carr v. 
 Carr, 177 111. 456; "As to transac- 
 tions proved hy Agent of De- 
 ceased" Marshall v. Karl, 60 111. 
 208; Jacquin v. Davidson, 49 HI. 
 82 ; Donlevy v. Montgomery, 66 111. 
 227; Loeb v. Stern, 99 111. App. 
 586. As to transactions proved 
 hy parties entitled to benefit of 
 statute. Penn v. Oglesby, 89 111. 
 110; Plain v. Roth, 107 111. 588; 
 Bruner v. Battell, 83 111. 317; 
 Pease v. Hunt, 60 111. App. 586; 
 Blanchard v. Blanchard, 191 111. 
 
 454. As to conversations or ad- 
 missions during life of deceased 
 adduced by adverse witnesses. 
 Stonecipher v. Hall, 64 111. 121; 
 Richerson v. Sternburg, 65 111. 
 272; Stevens v. Brown, 12 111. App. 
 619; Buckman v. Alvord, 71 HI. 
 155; Maher v. Trust Co., 95 111. 
 App. 375. See also Starr & Curtis 
 Annotated Statutes of Illinois, 
 with Jones & Addington's Supple- 
 ments thereto. Vol. 2, pp. 1822 to 
 1824 inclusive, and cases cited 
 under sections 1 and 2, clauses 1, 
 2, 3, 4 and 5, of section 2, chapter 
 51, entitled "Evidence and Depo- 
 sitions," Vol. 4, pp. 605 to 608 in- 
 clusive, and cases cited under sec- 
 tions and clauses above noted: 
 Vol. 5, pp. 254, 255 and cases cited 
 under said sections. Kurd's R. S. 
 of 111., 1905, same sections and 
 chapter, pp. 1034, 1035. 
 6—187 111. 93.
 
 CONTEST OF WILLS IN CHANCERY. 197 
 
 tionably made out.'^ It is incumbent on the proponents 
 of the will to make out a prima facie case, in the first 
 instance, by proper proof of the due execution of the will by 
 the testator and of his mental capacity, as required by statute. 
 The burden of proof is then upon the contestants to prove the 
 allegations of their bill, by a preponderance of all the evidence, 
 that the testator was mentally incompetent. The law throws 
 the weight of the legal presumption in favor of sanity into the 
 scale in favor of the proponents, from which it necessarily 
 results that upon the whole case the burden of proof rests upon 
 the contestants to prove the insanity of the testator.^ 
 
 267. The contents of a lost or destroyed will may be 
 proved by a single witness. That the contents of a lost or 
 destroyed will may be proved by the testimony of a single wit- 
 ness, is settled, in England, since the decision of Sugden v. Lord 
 St. Leonards.^ And the like ruling has obtained in this coun- 
 try.i^ And in this country the ruling in general is, that a 
 will may be established by one only of the attesting witnesses, 
 if he can testify to a compliance with the statute relating to 
 its execution; and this rule has been adopted in Illinois.^i And 
 the same principle is applied where the will is destroyed or lost, 
 as that makes no difference.12 It has also been held and followed 
 in Illinois, that declarations, written or oral, made by a testator 
 after the execution of his will are, in the event of its loss, ad- 
 
 7 — Hollaway v. Galloway, 51 111. Carpenter v. Calvert, 83 111. 62; 
 
 159; Buchanan v. Lennan, 105 111. Johnson v. Johnson, 187 111. 86; 
 
 56; In re Page Adm'r, 118 111. 576; Huggins v. Drury, 192 111. 528; 
 
 Slingloff V. Bivuner, 174 111. 561; Thompson v. Bennett, 194 111. 57. 
 
 Entwistle v. Meikle, 180 111. 9; 9—17 English (Moak's notes). 
 
 Harp V. Parr, 168 111. 459; Petefish 453. 
 
 V. Baker, 176 111. 452; Graybeal v. 10— Dickey v. Malechi, 6 Mo. 
 
 Gardner, 146 111. 343; Baker v. 177. 
 
 Baker, 202 111. 620; Moore v. 11— Doran v. Mullen, 78 111. 342. 
 
 Moore, 211 111. 271. 12— Dickey v. Malechi, 6 Mo. 
 
 8— Craig v. Southard, 162 111. 177; Dan v. Brown, 4 Cowan, 483; 
 
 209; Craig v. Southard, 148 111. 37 
 Taylor v. Pegram, 151 111. 106 
 Wilber v. Wilber, 129 111. 392 
 
 Sugden v. Lord St. Leonard, 17 
 English (Moak's notes) 453.
 
 198 THE LAW OF ESTATES. 
 
 missible, not only to prove that it has not been cancelled, but 
 also as secondary evidence of its contents.^^ 
 
 268. Secondary evidence. Sometimes it becomes abso- 
 lutely necessary to resort to secondary evidence, and witnesses 
 must be produced, who can legally qualify in such case; they 
 must have a knowledge of the general character of the hand- 
 writing they identify; either by having seen the party write, 
 or by having seen letters or other documents which the wit- 
 ness has in the course of business recognized, or that the ab- 
 sent party admitted to be his own. The witness then examines 
 the writing in question and must declare his belief founded on 
 his previous knowledge concerning its genuineness. However, 
 the court or jury can compare the writing in question with 
 other writings of the party, pertinent to the issue, put in evi- 
 dence. Section 6, of the Act in relation to wills, provides "that 
 such other secondary evidence as is admissible in courts of 
 justice to establish written contracts generally in similar 
 cases," may be used when necessary .^^ This section of the stat- 
 ute also applies to lost wills, and secondary evidence of the con- 
 tents of such lost instrument is admissible.^ ^ 
 
 269. Expert witnesses. In Rutherford v. Morris, ^^ it 
 is said: These doctors were summoned by the contest- 
 ants, as "experts," for the purpose of invalidating a will de- 
 liberately made by a man quite as competent as either of them 
 
 13— 7n re Page, 118 111., 578; Cross v. People, 47 111. 152; Fash 
 
 Slingloff V. Bruner, 174 111. 569. v. Blake, 38 111. 368; Brobston v. 
 
 14— Starr & Curtis Annotated Cahill, 64 111. 357; Newton v. Lus- 
 
 Statutes of Illinois, with Jones & ter, 13 111. 175; In re Bronse, 18 
 
 Addington's Supplements thereto. 111. App. 436. 
 
 Sec. 6, Chapter 148, "Wills." Vol. 15— Jn re Page, 118 111. 576, and 
 
 3, p. 4035, and cases cited under cases cited: In the case of Ander- 
 
 section of statute noted in text, son v. Irwin, 101 111. 413, a lost 
 
 Vol. 5, p. 1286, and cases cited un- will was established in chancery, 
 
 der section of statute noted in where the evidence shows a will 
 
 text. Kurd's R. S. of 111. 1905, deliberately destroyed. And see 
 
 same section and chapter, p. 2051. rule applied in that case. 
 
 Putnam v. Wadley, 40 111. 346; 16—77 III. 404.
 
 CONTEST OF WILLS IN CHANCERY. 199 
 
 to do such an act; they were the contestants' witnesses, and so 
 considered themselves. The testimony of such is worth but 
 little, and should always be received by juries and courts with 
 great caution. It was said by a distinguished judge, in a case 
 before him, if there was any kind of testimony not only of no 
 value, but even worse than that, it was, in his judgment, that 
 of medical experts. They may be able to state the diagnosis 
 of the disease more learnedly, but, upon the question whether 
 it had, at a given time, reached such a stage, that the subject 
 of it was incapable of making a contract, or irresponsible for 
 his acts, the opinion of his neighbors, if men of good, common 
 sense, would be worth more than all the experts in the coun- 
 try. In the case of Carpenter v. Calvert, ^'^ it is said: 
 Physicians may be regarded experts as to the condition of the 
 body, and as to what diseases tend to impair the mind, but it 
 does not follow, from the mere fact that they are physicians, 
 that they are any better judges of the degree of mental capac- 
 ity than other men of good common sense. It has always been 
 held in this state, that the testimony of neighbors of the testa- 
 tor or testatrix, stating in detail what the testator or testatrix, 
 said and done, with their opinion based on such facts, is of more 
 weight upon the question of testamentary capacity than the 
 opinions of experts not based on actual observation.^^ Proof 
 of insanity of collateral blood relations of the testator is per- 
 missible, not further removed than uncles and aunts.^^ 
 
 270. Upon a supposed state of facts only an expert can tes- 
 tify. A witness not an expert cannot testify to an opinion 
 upon a supposed state of facts.20 A witness can not give his 
 opinion of the mental capacity of the testator to dispose of his 
 
 17—83 111. 71. 127 111. 523; Bevelot v. Lestrade, 
 
 18— Reynolds v. Adams, 90 111. 153 111. 625; Amos v. Am. T. & 
 
 134; Pittard v. Foster, 12 111. App. Sav. Bank, 221 111. 100. 
 
 132; Keithley v. Stafford, 126 111. 19— Dillman v. McDaniel, 222 
 
 507. American Bible Society v. 111. 276. 
 
 Price, 115 111. 623; Beverly v. Mc- 20— Prittard v. Foster, 12 111. 
 
 Gough, 115 111. 11; Guild v. Hall, App. 132; Am. Bible Society v. 
 
 Price, 115 111. 623.
 
 200 THE LAW OF ESTATES. 
 
 property by will ; the quantum of intelligence is for the court. 21 
 In Craig v. Southard, it is held:22 All persons who 
 have had the means of observation are permitted to 
 testify concerning the existence and measure of capacity 
 of a testator, so far as it may tend to shed light 
 upon the issue, and may give their opinions touching mental 
 capacity, based upon such observation. The weight or effect 
 of such opinions depends upon the means of knowledge of the 
 witness and the facts on which it is based, possible of delinea- 
 tion, and the capacity of the witness to correctly interpret 
 what he has observed. Therefore, the facts upon which the 
 opinion is predicated may be gone into, either to sustain and 
 give force to the opinion, or to discredit it.^^ In the case of Baker 
 V. Baker, ^* the witnesses (none of whom testified as experts) 
 were asked the questions ' ' whether or not the testator, at the time 
 of making the alleged will, had sufficient mind and memory to 
 understand the will in question ? " * ' whether or not he was able to 
 carry in his mind and memory the nature and extent of his prop- 
 erty?" and "whether or not he was able to understandingly 
 execute a will?" which questions were objected to on the trial 
 and the objections sustained. The court passing upon the 
 record, say: These questions simply called for the conclu- 
 sions of the witnesses as to testamentary capacity. In other 
 words, the attempt was to put the witnesses in the place of the 
 jury, and allow them to determine the very issue which it was 
 sworn to try; the evidence was clearly improper.^^ 
 
 21 — Keithley v. Stafford, 126 111. the actual interest, and not his 
 
 507; Schneider v. Manning, 121 belief, understanding or feeling in 
 
 111. 376. regard to such interest. A woman 
 
 22 — 148 111. 37. who, as heir, would receive in fee 
 
 23 — Baker v. Baker, 202 111. 608; one-third of the property of which 
 
 Amos V. Am. T. & Sav. Bank, 221 her father died seized, while under 
 
 111. 100. his will she would have only a 
 
 24—202 111. 608. contingent life estate in ninety- 
 
 25 — Schneider v. Manning, 121 nine acres of land, subject to for- 
 
 111. 376; Pyle v. Pyle, 158 111. 289. feiture on her attempt to sell or 
 
 In this case it was held the inter- incumber it, has interests adverse 
 
 est that disqualifies a witness is to those who claim under the will.
 
 CONTEST OF WILLS IN CHANCERY. 
 
 201 
 
 271. Statements and declarations — before and after making 
 will. In Kaenders v. Mofitague,^^ where a will is charged to 
 have been executed through undue influence, the declara- 
 tions of the testator made before its execution are admissible 
 by way of rebuttal to show his intention as to the disposi- 
 tion of his property, upon the ground that a will made 
 in conformity with such declarations is more likely to have 
 been executed without undue influence than if its terms are 
 contrary to such declarations.^'^ The rule as above stated, in re- 
 gard to prior declarations which are in harmony with the 
 provisions of a contested will, in no way conflicts with the well 
 settled rule, that statements made by the testator, either before 
 or after the execution of a contested will, which are in conflict 
 with the provisions thereof, do not invalidate or modify such 
 will in any manner. Parties making wills cannot invalidate 
 them by their parol declarations made previously or subse- 
 quently.2^ The declarations and statements of a testator, made 
 
 so as to render her incompetent as 
 a witness against th.em in a suit 
 to set aside the will. So it is held 
 in the same case, the right of a 
 husband to testify in a litigation 
 concerning his wife's separate es- 
 tate, "as other parties may," un- 
 der the provisions of the act on 
 evidence and depositions, does not 
 extend to a suit against executors 
 and devisees to set aside a will 
 in which his wife's interests are 
 adverse to the will. It was also 
 held in the case considered, that 
 it was not error to admit in evi- 
 dence the verdict of the coroner's 
 jury at the inquest held on the 
 body of deceased, for the purpose 
 of showing, prima facie, that he 
 committed suicide. Supported by 
 the case of United States Life Ins. 
 Co. v. Vocke, 129 111. 557. But 
 it was held error in Pyle v. Pyle, 
 supra, where the lower court per- 
 
 mitted to be answered over objec- 
 tions made, to the evidence of an 
 expert witness, a question not em- 
 bodied in a hypothetical statement 
 of the facts, and calls upon such 
 witness to put himself in the place 
 of the jury, and thereby pass upon 
 the whole issue. This ruling find- 
 ing such error being supported by 
 City of Decatur v. Fisher, 63 111. 
 241; Chicago & Alton R. R. Co. v- 
 Springfield & Northwestern R. R, 
 Co., 67 111. 142; Chicago, R. I. & 
 P. R. R. Co. V. Moffatt, 75 111. 524 ; 
 Louisville, New Albany and Chi- 
 cago Ry. Co. V, Shires, 108 111. 
 617; 1 Greenleaf on Evidence, sec. 
 440. 
 
 26—180 111. 307. 
 
 27— Harp v. Parr, 168 111. 459; 
 Goodbar v. Lidikey, 136 Ind. 1. 
 
 28— Taylor v. Pegram, 151 111. 
 106; Dickey v. Carter, 42 111. 376.
 
 202 THE LAW OF ESTATES. 
 
 before or after the execution of his will, may be proved for the 
 purpose of showing his mental condition at the time of the exe- 
 cution of the will.-'* And where the testator has made previous 
 wills, his declarations and statements made about the time of the 
 execution of those former wills, upon the subject of or manner 
 in which he had therein disposed of his property, have been held 
 to be competent evidence.^"^ 
 
 272, Testamentary capacity. In the early case of 
 Lilly V. Wagganer,^^ the rule was stated to be that a want 
 of mental power must be such as to render the testator inca- 
 pable of acting rationally in the ordinary affairs of life, or 
 incapable of understanding the effects and consequences of his 
 act; and further, that legal soundness of mind, until inquest 
 had, is a presumption of law, to be overturned by proof only 
 of incompetency at the time of the act in question. In 
 Trish V. Newell, it is said:^^ That prior incompetency or 
 insanity of the testator, arising from accident or temporary dis- 
 ease, does not presume after incompetency to make a will; 
 it is enough if the testator understood the nature of the busi- 
 ness in which he is engaged; has recollection of the property he 
 intends to devise ; of the persons who are the objects of his 
 bounty, and of the manner in which it is to be distributed 
 among them. The best form of expressing the law as to mental 
 capacity is, was the testator's mind and memory sufficiently 
 sound to enable him to know and understand the business in 
 which he was engaged at the time he executed the 
 will.33 The courts generally apply the rule where per- 
 sons have arrived at full age, that presumption must 
 be indulged, where the party has the requisite capacity to enter 
 
 29— Nieman v. Schnitka, 181 111. 403; Thompson v. Bennett, 194 
 
 403; Craig V. Southard, 148 III. 37; 111, 57; Wombacher v. Barthelme, 
 
 Petefish V. Becker, 176 111. 448; 194 111. 425. 
 
 Hill V. Bahrns, 158 111. 314; Taylor 31—27 111. 395. 
 
 V. Pegram, 151 111. 106. 32—62 111. 196. 
 
 30— Taylor v. Pegram, 151 111. 33— Yoe v. McCord, 74 111. 33; 
 106; Neiman v. Schnitka, 181 111.
 
 CONTEST OF WILLS IN CHANCERY. 203 
 
 into, and bind himself by all lawful engagements, and, amongst 
 others, may dispose of his property by testament ; and to avoid 
 these acts, the presumption must be rebutted by showing a 
 want of sufficient intellectual capacity to make the agreement 
 or the disposition of his property by will. Like all other mat- 
 ters relating to the human mind, it is difficult to fix any precise, 
 undeviating rule by which it can be determined when a person 
 has mind and memory. And further, it is a rule of law, "that 
 a person who is capable of transacting ordinary business, is 
 also capable of making a valid will. It is not required he shall 
 possess a higher capacity for that, than for the transaction of 
 the ordinary affairs of business." "And the usual test is, that 
 the party be capable of acting rationally in the ordinary affairs 
 of life. " In a recent case where a confidential agent had procured 
 a will to be drawn, it was held : Such act does not show undue 
 influence ; or the fact in that connection, that testatrix is unedu- 
 cated, where it appears she is otherwise a woman of strength 
 of mind and intellect and business capacity, even though she 
 is unable to read, does not justify setting aside her will, where 
 she was able to and did sign her name to the instrument. In 
 such case it will be presumed the testatrix knew the contents of 
 her will.^* 
 
 In Craig v. Southard,^^ the court admits there is per- 
 haps some confusion in the books and difficulty has always 
 been found, in formulating tests by which to determine testa- 
 mentary capacity. Opportunity for observation of the mental 
 condition of persons occurs, ordinarily, in the common affairs 
 of life, and as it requires no greater mental capacity to dispose 
 of property by will than to transact ordinary business, such as 
 buying and selling, collecting, loaning, leasing, and the like 
 transactions, it has been generally held that capacity to trans- 
 act such ordinary business would show testamentary capacity .3« 
 
 Meeker v. Meeker, 75 111. 260. 36 — Brown v. Riggin, 94 111. 560; 
 
 34 — Compiler v. Browning, 219 Rutherford v. Morris, 77 111. 397; 
 
 III. 429. Freeman v. Easley, 117 111. 317; 
 
 35 — Craig v. Southard, 148 111. Campbell v. Campbell, 130 111. 481 ; 
 
 45. Myatt v. Walker, 44 111. 485; Trislj
 
 204 THE LAW OF ESTATES. 
 
 Another rule laid down and cited in Craig v. Southard^ was, 
 "The real question submitted to the jury is not whether 
 the party had sufficient mental capacity to comprehend and 
 transact ordinary business, but did he, at the time of making 
 the instrument purporting to be his will, have such mind and 
 memory as enabled him to understand the particular business in 
 which he was then engaged.^^ If he did, if he was able to remem- 
 ber who were the natural objects of his bounty, recall to mind the 
 property, and make disposition of it understandingly, according 
 to some purpose or plan formed in his mind, he was possessed 
 of testamentary capacity and with such capacity, uninfluenced 
 improperly by others, he may make valid testamentary disposi- 
 tion of his estate. 
 
 273. In Brice v. Hall,^^ the facts in the case nicely 
 illustrate the application of the rules : In that case the wit- 
 ness was unwilling to declare on oath he believed the testator 
 was of ''sound mind." The testator had been afflicted with 
 what the witness called "spells," and had so many of them 
 his mind was injured. When asked whether the testator under- 
 stood what he was doing, the witness replied: "I suppose he 
 understood it — that was my supposition. ' ' When under the in- 
 fluence of "spells," the witness says he was not fit for business, 
 but at other times, he says he "couldn't do a great deal of 
 business — of course he done some little. ' ' The witness says the 
 testator was not under a "spell" on the day he signed his will. 
 On being inquired of, if he saw anything on that day that led 
 him to doubt the soundness of the testator's mind, the witness 
 answered: "I didn't see anything, at that time, that was any- 
 
 V. Newell, 62 111. 196; Schneider 38— 1 Redfield on Wills, 123, 124; 
 
 V. Manning, 121 111. 376; Greene v. Campbell v. Campbell, 130 111. 481; 
 
 Greene, 145 111. 264; Compher v. Greene v. Greene, 145 111. 264; 
 
 Browning, 219 111. 429. These Stevens v. Van Cleave, 4 Wash. C. 
 
 authorities follow the general doc- C. 262; Harrison v. Rowan, 3 id. 
 
 trine laid down in Craig v. South- 580. 
 
 ard, supra (35). 39—120 111. 601. 
 
 37— Craig v. Southard, 148 111. 
 45.
 
 CONTEST OF WILLS IN CHANCERY. 205 
 
 thing more than just his ordinary way of living." The testa- 
 tor came out of his house and called the witness, as he was 
 passing on the street, to come in to witness his will. On coming 
 into the house, the testator introduced him to the other sub- 
 scribing witness, and both witnesses then attested the will in 
 the presence of the testator, and at his request, and in the 
 presence of each other. 
 
 Question by the court: "Is it your belief, that at the time he 
 signed this will he was of sound mind and memory?" 
 
 A. "To give my honest belief about it, it is just this way — 
 I want the court to understand what I say — I don 't think Uncle 
 Logan, in his last years, had been perfectly sound. That's what 
 I believe, if you want my belief about it. But that day he 
 was as natural and rational as common to see him. Anybody 
 not knowing anything about him at all, would suppose he was 
 all right. That's my honest belief about it. That's just what 
 I want the court to understand — not that I know anything that 
 day more than that." The court held the condition of the 
 testator's mind shows testamentary capacity. 
 
 In Campbell v. Campbell, in applying the rule it was 
 said:'**' One may have the capacity to comprehend a few simple 
 details, and in consequence have testamentary capacity to 
 make valid disposition of his property, while if he had to re- 
 member many facts, and comprehend many details, the same 
 degree of mental capacity would be wholly insufficient to an 
 intelligent understanding of the business in which he was 
 engaged. The difficulty of stating standards or tests by which 
 to determine the degree of mental capacity of a particular per- 
 son, has been everywhere recognized, and grows out of the 
 inherent impossibility of measuring mental capacity, or its 
 impairment by disease or other causes.^^ 
 
 40 — 130 111. 481. These authorities indicate there is 
 
 41 — Herman v. Vogt, 181 111. no proper rule for the measure- 
 
 400; Ring v. Lawless, 190 111. 520; ment of mental capacity, or its 
 
 Swearingen v. Inman, 198 111. impairment by disease or other 
 
 256; Waters' v. Waters, 222 111. 26. causes. It will be found that each
 
 2U6 THE LAW OP ESTATES. 
 
 274. Sound mind and memory. The Illinois courts, and 
 most of the courts are iu complete harmony to the effect "that 
 the law presumes every man to be sane until the contrary is 
 proven, and the burden of proof rest upon the party contesting 
 a will where unsound mind or insanity is made the issue.^^ 
 
 In Whipple v. Eddy, the court passing upon the question 
 says:'*2 "We have often held that a person who is capable of 
 transacting the ordinary business affairs of life is capable of 
 making a will. "^"^ The fact that a person is affected 
 with insanity, or labors under some delusion, believes 
 in witchcraft, clairvoyance, spiritual influences, presentments 
 of the occurrence of future events, dreams, mind reading, 
 etc., will not affect the validity of his will on the ground of in- 
 sanity,'*^ Manifestly, a man's belief can never be made a test of 
 sanity. When we leave the domain of knowledge and enter 
 upon the field of belief, the range is limitless, extending from 
 the highest degree of rationality to the wildest dream of super- 
 stition, and no standard of mental soundness can be based on 
 one belief rather than another. What to one man is a reason- 
 able belief is to another wholly unreasonable, and while it is 
 true, that belief in what we generally understand to be super- 
 natural things may tend to prove insanity under certain cir- 
 
 case presents its peculiar facts, 42 — Argo v. CoflBn, 142 111." 368; 
 upon which the question of mental Guild v. Hull, 127 HI. 523; Men- 
 capacity may be determined by the kins v. Lightner, 18 111. 282; Craig 
 court or jury. And it is a fact v. Southard, 162 111. 209; Wilber 
 also, that what establishes mental v. Wilber, 129 111. 392; Waters v. 
 capacity in one case may not da Waters, 222 111. 26. 
 
 so in another, owing to circum- ., ..„^ ,.. ^^o 
 
 stances or conditions, in one case, 
 
 that may not be considered in an- 44— Campbell v. Campbell, 130 
 
 other. The law always presumes ^l- 466, and cases cited therein by 
 
 party making a will or deed as ^^^ court. 
 
 sound and sane; the burden of 45 — I Redfield on Wills, 79 note 
 
 proving an unsound condition of 9; Chafee's Will, 32 Wis. 557; In 
 
 mind is always upon the party re Smith, 52 Wis. 543; Brown v. 
 
 contesting the will or deed. See Ward, 53 Md. 423; Campbell v. 
 
 the following authorities sustain- Campbell, 130 111. 466. 
 
 ing the text.
 
 CONTEST OF WILLS IN CHANCERY. 207 
 
 cuinstances, it is a well known fact that many of the clearest 
 and brightest intellects have sincerely and honestly believed 
 in spiritualism, mind reading, etc.^^' 
 
 In Baker v. Baker, it is held:"*^ "The burden of 
 proof (after establishing a prima facie case) is upon the con- 
 testants to prove the allegations of their bill, by a preponder- 
 ance of all the evidence, that the testator was mentally incom- 
 petent. The law throws the weight of the legal presumption 
 in favor of sanity into the scale in favor of the proponents, 
 from which it necessarily results that upon the whole case the 
 burden of proof rests upon the contestants to prove the insanity 
 of the testator. 
 
 In Bing v. Lawless, the court quoting from its opin- 
 ion in Daily v. Daily, say:*^ "Section 1 of chapter 
 148, of the Revised Statutes, entitled 'Wills,' relates to the 
 competency of the testator; and as to his requisite mental ca- 
 pacity the expression of the statute is, such testator shall be 
 'of sound mind and memory.' Long prior to the enactment 
 of the statute the legal meaning of the phrases 'sound mind 
 and memory' and 'sound and disposing mind and memory' and 
 'sound and disposing mind' had become well established. They 
 were convertible terms, and were used interchangeably, to de- 
 note that degree of mental strength and power deemed requisite 
 to testamentary capacity. Absolutely sound and perfect mental 
 faculties were not requisite to such capacity, nor was such the 
 interpretation of the word 'sound' as employed in any such 
 phrases but the phrases were employed as expressive, in their 
 entirety, of the degree of mental power and vigor which a 
 
 46— Campbell v. Campbell, 130 47—202 111. 620. The following 
 
 111. 466. In this case, the court cases support the doctrine of that 
 
 in passing upon the question of case. Craig v. Southard, 162 111. 
 
 the insanity of the testator raised 209; Same v. Same, 148 111. 37 
 
 in that case upon the theory of Carpenter v. Calvert, 83 111. 62 
 
 his peculiar belief, say: What to Huggins v. Drury, 192 111. 528 
 
 one man is a reasonable belief is Thompson v. Bennett, 194 111. 57. 
 
 to another wholly unreasonable. 48—190 111. 530; 183 111. 269.
 
 208 THE LAW OF ESTATES. 
 
 testator should possess in order to be competent to dispose of 
 his estate by will."^^ 
 
 275. What is the effect of old age upon testamentary capac- 
 ity. The case of Rutherford v. Morris,^^ raised the 
 issue, that the testator was old and infirm and suffered chiefly 
 from senile dementia, which incapacitated him from making a 
 valid will. The case was tried by a jury, who found the issue 
 for the contestants. On appeal to the supreme court, the case 
 was reversed. On page 408, the court says: **It is upon the 
 ground of senile dementia, chiefly, this ease rests. As this is 
 wholly disproved as existing at the time of the execution of 
 this will, or at any time previous, the verdict should have been 
 for the proponents of the will. What is the effect of old age 
 upon testamentary capacity, is a subject which has received 
 the attention of all courts, this among them ; and it has never 
 been held, anywhere, that old age alone denotes incompetency. 
 
 In Watson v. Watson,^^ one eighty-six years old, and af- 
 flicted with disease, was held competent to execute a will. So, 
 also, one of eighty years of age, with energies greatly impaired.^^ 
 In Van Arst v. Hunter, Chancellor Kent said, in regard to the 
 will of a person between ninety and one hundred years of age: 
 "A man may freely make his testament, how old soever he may 
 be. It is one of the painful consequences of extreme old age, that 
 it ceases to excite interest, and is apt to be left solitary and neg- 
 lected. The control which the law still gives to a man over 
 the disposal of his property, is one of the most efficient means 
 he has, in protracted life, to command the attention due to his 
 infirmities. The will of such an aged man ought to be regarded 
 
 49 — Sec. 1, Chapt. 148, Wills, in question; Vol. 5, p. 573, et seq.. 
 Starr & Curtis Annotated Statutes under head of "General Notes." 
 of Illinois, with Jones & Adding- Hurd's R. S. of 111. 1905, same sec- 
 ton's Supplements thereto. Vol. 3, tion and chapter, p. 2050. 
 p. 4022, et seq., and cases cited 50—77 111. 397. 
 under section of statute in ques- 51 — 2 B. Monroe 74; 2 B. Monroe 
 tion; Vol. 4, pp. 1283, 1284, and 79. 
 cases cited under section of statute 52 — 5 Johns, Ch. 148.
 
 CONTEST OF WILLS IN CHANCERY. 209 
 
 with great tenderness, when it appears not to have been pro- 
 duced by fraudulent acts, but contains those very dispositions 
 which tiie circumstances of his situation and the course of the 
 natural affections dictated." 
 
 In Entwistle v. Meikle,^^ the record shows the tes- 
 tator was a man of 91 years of age at the time of executing his 
 will, was of robust constitution, with a strong and vigorous 
 mind ; that he transacted his ordinary business both before and 
 for more than a year after the execution of his will, making 
 leases of his farms, buying village lots and in one instance pur- 
 chasing 335 acres of land. The will was contested on the 
 ground of mental incapacity and unsound memory, but the 
 court held the will good. 
 
 276. Fraud ajid compulsion, or improper conduct, are al- 
 ways questions of fact arising and connected with the making 
 and executing of wills. The testator or testatrix under the 
 well settled rules of law, relating to valid willSj must not be 
 imposed upon, unduly influenced, or be compelled to submit to 
 improper conduct, by any person that would tend to impair 
 or affect the free agency of the maker of such an instrument. 
 The law assumes the maker of a will has the utmost confidence 
 in the party putting the will in form; and, the law demands 
 he should be extremely careful, not to misstate its contents to 
 the testator, when such are ill, infirm, old or otherwise lacking 
 in mental force and vigor at the time the will is made. And 
 this is especially so, if the testator or testatrix could not or did 
 not read the will before signing the same. Fraud in respect to 
 the execution of wills, like fraud in other transactions, cannot 
 
 53 — 180 111. 9; In Entwistle v. inquiry to cover the full period up 
 Meikle, it was held, where the pro- to the testator's death. The rec- 
 ponents' witnesses having testified ords of the county court showing 
 as to the testator's mental capacity the appointment of a conservator 
 in business transactions during a for the testator some years after 
 period of several years before and the execution of the will in con- 
 after the execution of the will in test excluded by the lower court 
 question, the contestants can not v.-ere held properly excluded in 
 on cross-examination, extend their this case. 
 14
 
 210 THE LAW OF ESTATES. 
 
 be exactly defined, it is never a presumption of law, and the 
 circumstances in one case is rarely a precedent for another. 
 iWhere it appears from competent evidence, the will procured, 
 is not the will of the testator or testatrix, but that of another 
 substituted, it is simple fraud, and courts will unhesitatingly 
 set aside every such instrument thus procured. And should 
 it appear from competent evidence, that the will in question 
 was procured, by misstating its contents to a testator, who 
 could not or did not read it; or by omitting to read some im- 
 portant provision; or pretending to read provisions into the 
 will, which in fact were not there, leaving the maker of the will 
 to believe, when it was signed and witnessed, that his or her 
 will was written as it was read, or as its contents were stated 
 to him or her; or by wrongly substituting one paper for an- 
 other, and having him or her sign the substituted paper for his 
 or her will, under the belief it was the one he or she intended 
 to sign, is common fraud and will not be tolerated by the 
 courts when called upon to act. What circumstances amount 
 to proof of fraud is not matter of legal definition; the legal test 
 is, the sufficiency of the evidence to satisfy the understanding 
 and the conscience."* Where property is conveyed for the fraud- 
 ulent purpose of defeating the rights of the wife of the grantor, 
 equity in applying the law will leave the parties where they 
 placed themselves.^^ 
 
 277. Undue influence and improper conduct, is often inter- 
 mingled with fraud ; the greatest per cent of contested wills are 
 always based upon fine legal distinctions, whereby the courts, 
 define or attempt to define, undue influence, improper con- 
 duct, or simple fraud. It will be observed, however, that in 
 each case, some line of circumstances, supported by direct or 
 indirect evidence, usually force the term applied to the case in 
 hand. Thus, in the case of Smith v. Hamline,^^ un- 
 
 54— Carter v. Gunnels, 67 111. Jones v. Jones, 213 III. 228; Jolly 
 
 270. V. Graham, 222 111. 550. 
 
 55— Miller v. Markle, 21 111. 152; 56—174 111. 184. 
 Kirkpatrick v. Clark, 132 111. 342;
 
 CONTEST OF WILLS IN CHANCERY. 211 
 
 due influence is defined as "any improper conduct, machina- 
 tion, or urgency of persuasion, whereby the will of a person 
 is overpowered, and he is inclined to do, or forbears, an act 
 which he would not do, or would do, if left to act freely. And 
 such may be inferred from union of circumstances, as, de- 
 parture from terms of previous will, false impressions under 
 which the instrument is made, active agency of beneficiary in 
 procuring it; absence of those who had equal claims upon tes- 
 tator, old age accompanied by feebleness and disease." It was 
 also held in that case, ''While the existence of an illicit relation 
 between the testator and the beneficiary, does not raise a legal 
 presumption of undue influence, it is a circumstance from 
 which such influence may be more fully inferred. And such 
 fact may be shown and considered with proof tending to show 
 constraint and interference by the beneficiary ; with impaired 
 mental capacity, loss of will power, disease and other impair- 
 ments of the testator when the will was made. ' ' 
 
 But the rule is: Undue influence to invalidate a will, must 
 be connected with the execution of the will, and must be such 
 as to deprive the testator or testatrix of free agency.^""^ Upon 
 a charge of want of testamentary capacity, and fraud and 
 undue influence in procuring the execution of a will, evi- 
 dence is admissible of matters occurring in the testator's fam- 
 ily and his relations with the beneficiaries, and his declarations 
 showing his feelings toward them.-^^ 
 
 278. General influence, such as advice, argument or per- 
 suasion, made freely, will not be sufficient to set aside a will; 
 thus, if a wife by her virtues, has gained such an ascendency 
 over her husband, so riveted his affections, that her good 
 
 57— Wilber v. Wilber, 138 111. 134; Cockerman v. Cockerman, 17 
 
 446; Purdy v. Hali, 134 111. 298; III. App. 605; Beaubien v. Cicotte, 
 
 Pooler V. Christman, 145 III. 405; 12 Mich. 486; Dennison's Appeal, 
 
 Taylor v. Pegram, 151 111. 106; 29 Conn. 402; Mooney v. Oleson, 22 
 
 Nicewander v. Nicewander, 151 111. Kan. 69 ; 27 Am. & Eng. Ency. of 
 
 156; Kaenders v. Montague, 180 Law, 505, 506, and cases cited: 
 
 111. 300; Thompson v. Bennett, 194 Schouler on Wills, section 243; 
 
 111- 57. Smith v. Henline, 174 111. 184; In 
 
 58 — Reynolds v. Adams, 90 111. re Shelly's Estate, 28 Colo. 157.
 
 212 THE LAW OF ESTATES. 
 
 pleasure is a law to him, such an influence can never be a 
 reason for impeaching a will made in her favor, even to the 
 exclusion of the residue of the family. ^9 Influence the result 
 of affection merely is not undue influence, within the meaning 
 of the law; inequality or unreasonableness in the distribution 
 of property, is not conclusive of undue influeuce.*^*^ It 
 will be noted, from all the cases, where undue influence, 
 without fraud, has the effect to avoid the will, the evidence and 
 circumstances passed upon by the court, deprived the testator 
 or testatrix of his or her free agency; thus, immoderate per- 
 severing, begging importunities and flattery of a wife, who will 
 take no denial, pressed upon an old and feeble man, which 
 may be better imagined than described ; or any vicious control 
 or dominion from whatever source, resulting in violence, ill- 
 treatment, threats or fear of displeasure, or any misconduct 
 on the part of those who receive the bounty or share the estate 
 of any testator or testatrix, will not be sanctioned or tolerated 
 by the courts.^^ 
 
 279. Trial by jury haw far conclusive. The verdict of a 
 jury in a contested will case in chancery, has the same force 
 and effect, as a verdict at law.^^ And when the verdict is sanc- 
 tioned by the court, where witnesses testify from the stand, it is 
 entitled to great weight.'^^ 
 
 In Egbers v. Eghers,^'^ two trials were had, and the 
 verdicts of both juries were the same. The court in its final 
 opinion says : While it may appear from the record before us 
 that the proponents made out the stronger case upon the facts, 
 
 59— Small v. Small, 4 Greenl. 61—1 Redfield on Wills, 196, 197 
 
 220; Bawnfield v. Bawnfield, 43 111. and case cited in notes. Thomp- 
 
 148; Rutherford v. Morris, 77 111. son v. Bennett, 194 111. 57. 
 397; Burt v. Quisenberry, 132 111. 62 — Long v. Long, 107 111. 210; 
 
 399. Am. Bible Society v. Price, 115 111. 
 
 60 — Nicewander v. Nicewander, 623; Ring v. Lawless, 190 III. 531; 
 
 151 111, 156; Claussenius v. Clans- Whipple v. Eddy, 161 111. 119; 
 
 senius, 179 111. 545; Webster v. Johnson v. Johnson, 187 111. 92. 
 Yorty, 194 111. 408; Francis v. 63— Petefish v. Becker, 176 111. 
 
 Wilkerson, 147 111. 370; Compher 451. 
 V. Browning, 219 111. 429. 64—177 111. 86.
 
 CONTEST OF WILLS IN CHANCERY. 213 
 
 it must be considered, that the jury and court below saw and 
 heard the witnesses and had better means of weighing the 
 testimony than we have. We cannot, upon the record, say the 
 verdict was manifestly wrong or against the evidence, and 
 while we might have been better satisfied, from the evidence 
 in the record, with a different verdict, the rule of this court 
 has long been, not to interfere with the verdict in such cases. 
 And especially should this rule be adhered to where a second 
 trial has produced the same result.^^ In Schmidt v. Schmidt,^^ 
 where the evidence reviewed by the court was against the clear 
 preponderance the verdict of the jury was set aside, the court tak- 
 ing the opportunity to say: ''Jurors are often inclined to disre- 
 gard the evidence and hunt for some excuse outside of the evi- 
 dence upon which to set aside a will if it does not comport with 
 their ideas of right and justice, and it often becomes the duty of 
 the courts, in this class of cases, to interfere and set aside their 
 verdicts for that reason. "^''^ 
 
 280. The costs in such cases. In a contested will ease, the 
 court may, in the exercise of a sound discretion, distribute the 
 costs of the defeated party among them pro rata, according 
 to their interest in the matter in controversy, or as to the court 
 seems just and equitable.®^ 
 
 281. An executor cannot in general be held individually. 
 
 An executor, as a general rule, cannot be held individually 
 liable for costs made in defense to a proceeding to contest the 
 validity of the will, it being his duty to defend.^^ But the rule 
 is not inflexible, the proceeding being in equity, the executor 
 
 65— Hill V. Bahrns, 158 111. 314; 400; Bradley v. Palmer, 193 111. 15, 
 
 Howitt V. Estelle, 92 111. 218; and cases cited in opinion of court. 
 
 Green v. Green, 145 111. 264; Mc- 68 — Otis v. Gardner, 105 111. 436; 
 
 Common v. McCommon, 151 111. Howe v. Hutchinson, 105 111. 501; 
 
 428, and cases cited in opinion. Scliultze v. Houfes, 96 111. 335; 
 
 66—201 111. 201. Field v. Oppenstein, 98 111. 68. 
 
 67 — Rutherford v. Morris, 77 111. 69 — Pingree v. Jones, 80 111. 177; 
 
 397; Freeman v. Easly, 117 111. Shaw v. Camp, 56 HI. App. 23. 
 317; Nieman v. Schnitka, 181 111.
 
 214 
 
 THE LAW OF ESTATES. 
 
 luay be charged if he acts in bad faith, or if he is personally 
 interested, and defends for his own protection, upon principles 
 applicable in other proceedings in equity J" On bill to contest 
 the validity and probate of a will the executor is a proper party, 
 and may be liable for costs which may be adjudged against him 
 in certain contingencies, in the event the probate is set aside and 
 the will declared null and void."^ 
 
 282. Solicitor's fees allowed executor. Where the executor 
 upon contest defends the will in good faith, and out of proper 
 motives, for the purpose of carrying out the wishes of the tes- 
 tator, he is entitled to an allowance for reasonable counsel fees 
 paid therein J 2 
 
 70— Campbell v. Campbell, 130 
 111. 466; Bardell v. Brady, 172 111. 
 423; Shaw v. Camp, 56 111. App. 
 23. 
 
 71— Shaw V. Moderwell, 104 IlL 
 
 64; Moj^er v. Swyggart, 125 111. 
 262; Church v. Eggleston, 3 Colo. 
 Ct. of App. 239. 
 
 72— Shaw V. Camp, 163 111. 148, 
 and cases cited touching the point 
 in the opinion.
 
 CHAPTER XII 
 
 TRUSTS AND TRUSTEES 
 
 Sec. 
 
 283. Testamentary trusts general- 
 
 ly. 
 
 284. Who may be trustees. 
 
 285. Married women may be trus- 
 
 tees. 
 
 286. Married woman's liability. 
 
 287. Who are trustees under the 
 
 law. 
 
 288. Trustees defined. 
 
 289. Trustees de son tort. 
 
 290. Executors, administrat o r s , 
 
 guardians and conservators 
 to whom amenable. 
 
 291. Testamentary trustees are 
 
 not under control of probate 
 or county courts. 
 
 292. Equity never wants for a 
 trustee. 
 
 293. The rule in appointing trus- 
 
 tees. 
 
 294. What property may be the 
 
 subject of the trust. 
 
 295. The same person appointed 
 
 executor and trustee under 
 will. 
 
 296. Voluntary or express trusts 
 
 must be accepted. 
 
 Sec. 
 
 297. Certain trusts must be in 
 
 writing, others created by 
 construction, implication or 
 operation of law may be 
 proved by parol. 
 
 298. Resulting trust. 
 
 299. Constructive trust. 
 
 300. Trusts by implication or op- 
 
 eration of law. 
 
 301. Trusts ex vialeficio. 
 
 302. Spendthrift trust. 
 
 303. Conveyance to uses. Statute 
 
 of Uses. 
 
 304. When the statute takes effect 
 
 and executes the trust. 
 
 305. When the Statute of Uses 
 
 does not execute the trust. 
 
 306. Title of personal property not 
 
 affected by Statute of Uses. 
 
 307. Following trust fund. 
 
 308. Statute of Limitations. 
 
 309. Perpetuity. 
 
 310. Equitable conversion. 
 
 311. Relation of creditors and re- 
 
 mainder-men to trusts. 
 
 312. Trust will not be defeated if 
 
 beneficiary is trustee for 
 himself and others. 
 
 Sec. 283. Testamentary trusts generally. In all cases where 
 trusts are created or originate by will, the same must be in 
 writing, signed and attested according to the statutory require- 
 ments in force where the will is made, or the domicile of the 
 testator or testatrix is claimed or fixed by operation of law. 
 The testator or testatrix having power and capacity to create 
 
 215
 
 21G THE LAV/ OF ESTATES. 
 
 the trust, should always define clearly in the instrument the 
 object and subject of the trust, and keep within the bounds 
 of statutory enactments and the decisions of the courts relating- 
 to devises and bequests. And such will, to be effective upon 
 the death of the testator or testatrix, must be proved and 
 admitted to probate in the proper court of probate or it cannot 
 be used as a declaration and proof of the trusts created thereby. 
 While the rule, generally speaking, is that a will shall be pro- 
 bated in the first instance at the testator's domicile, as re- 
 quired by the statute, such rule is subject to the exception, 
 which is almost as broad as the rule itself, that it may be pro- 
 bated in any county in any state where the testator had and 
 left assets, particularly real estate.^ 
 
 284. Who may be trustees. It may be stated in general 
 terms, that whoever is capable of taking the title or beneficial 
 interest in property may take the same in trust for others.^ 
 Whatever person or persons, association or corporations 
 are capable of having the legal title or beneficial interest 
 cast upon them by gift, grant, bequest, descent, or operation of 
 law, may take the same subject to a trust, and they will become 
 trustees. But it does not follow that whoever is capable of tak- 
 ing in trust, is capable of performing or executing it. The in- 
 quiry, then, is not so much who may take the trust, as it is who 
 may execute and perform a trust. If a trust is cast upon a person 
 incapable of taking or executing it, courts of equity will execute 
 the trust by decree, or they will appoint some person capable of 
 performing the requirements of the trust.^ Thus it is 
 said by Perry (40) the Sovereign may sustain the char- 
 
 1— Sec. 11, Chapt. 148 "Wills." minal Transfer Co. v. Winslow, 
 
 Starr & Curtis Annotated Statutes 216 111. 166. 
 
 of Illinois, Vol. 3, p. 4040, and 2— Hill on Trustees, section 48; 
 
 cases cited: Hurd's R. S. of 111. Perry on Trusts, Vol. 1 (1889), 
 
 1905, same section and chapter, sec. 39. 
 
 p. 2052; 23 Am. & Eng. Ency. of 3 — Lewin on Trusts, 27; 1 Perry 
 
 Law (2nd ed.), 116; In re Story's on Trusts (1889), sees. 39, 40, 41, 
 
 Estate, 120 111. 244; Chicago Ter- 42.
 
 TRUSTS AND TRUSTEES. 217 
 
 acter of trustee. (41) The United States, and each of 
 the separate states, may sustain the character of trustee. 
 (42) Corporations of every description may take and hold 
 estates, as trustees, for purposes not foreign to the purpose of 
 their own existence ; and they may be compelled by courts of 
 equity to carry the trusts into execution. If they misapply the 
 trust funds, or refuse to obey the decrees of the court, they 
 may be enjoined, or removed and new trustees appointed. (43) 
 Corporations are the creatures of the law, and as a general rule 
 they cannot exercise powers not given to them by their char- 
 ters or acts of incorporation. For this reason they cannot act 
 as trustees in a matter in which they have no interest, or in a 
 matter that is inconsistent with, or repugnant to, the purposes 
 for which they were created. The legislature of Illinois, in 1887, 
 passed an act entitled, "Administration of trusts by trust com- 
 panies," which went into effect July 1, 1887. Chapter 32, sec- 
 tions 1-19. Under an amendment of that act in force July 1, 
 1889, it is provided by section 2 (a) : "Whenever application 
 shall be made to any court in this state, for the appointment 
 of any receiver, assignee, guardian, conservator, executor, ad- 
 ministrator or otherwise it shall be lawful for such court to 
 appoint any such corporation as such trustee, receiver, assignee, 
 guardian, conservator, executor or administrator: Provided, 
 any such appointment as guardian or conservator shall apply 
 to the estate only, and not to the person."^ 
 
 285. Married women may be trustees. Under the Roman or 
 civil law, married women could alienate their property and dis- 
 pose of it by will. By the common law of England they were 
 almost entirely incapacitated, and up to 1872 in the state of 
 Illinois, a married woman executed and acknowledged deeds, 
 according to prescribed formalities; and they could in 
 general convey their property to trustees, by deed or will, and 
 
 4— Starr & Curtis Annotated Vol. 1, p. 1040; Vol. 4, p. 318, and 
 Statutes of Illinois, with Jones & cases cited under section of stat- 
 Addington's Supplements thereto, utes in question. Kurd's R. S. of 
 
 111. 1905, p. 538, et seq.
 
 218 THE LAW OF ESTATES. 
 
 make mortgages of their property with power of sale.^ 
 It has been since the enactments of 1872, in this state, 
 that a married woman has been considered in all re- 
 spects as feme sole in regard to her ownership of real and 
 personal property, obtained by descent, gift or purchase; and 
 the issues, income, profits and proceeds of such property ; she 
 also holds as her own, that which she acquires by her trade, 
 business, labor or service carried on or performed on her sep- 
 arate account. She manages, sells and conveys her property to 
 the same extent and in the same manner, that the husband can 
 property belonging to him; either husband or wife may con- 
 stitute each other their agents to transact his or her business 
 and to deal with his or her property by power of attorney or 
 otherwise ; the restriction being placed upon each, that they 
 or either of them, shall not convey or mortgage their respective 
 real estate, except each join in the deed of the other." Direct 
 deed hy wife to husband or vice versa is valid.'^ Married women 
 may become trustees by deed, gift, bequest, appointment or by 
 operation of law.* 
 
 5— Young V. Gra£E, 28 111. 20. In Geison v. Heiderich, 104 111. 537 
 
 that case the rule stated in 2 Maxwell v. Maxwell, 109 111. 588 
 
 Story's Eq. Jur., 1399. "The sepa- Kirkpatrick v. Clark, 132 111. 342 
 
 rate estate of the wife will, in Larson v. Ditto, 90 111. App. 391 
 
 equity, be held liable for all the Smith v. Summers Mfg. Co., 69 
 
 debts, charges, incumbrances, and 111. App. 232; Despain v. Wagner, 
 
 other engagements which she does 163 111. 601. 
 
 expressly or by implication charge 7 — Perry on Trusts, section 48. 
 
 thereon." And so it was held, 8 — See Section 1, Chapter 148, 
 
 where the wife voluntarily con- "Wills." Starr & Curtis Annotated 
 
 veys real estate, which she holds Statutes of Illinois, with Jones & 
 
 in her own right, by a deed of Addington's Supplements thereto, 
 
 trust, to secure a debt due by her Vol. 3, p. 4022; "Vol. 4, pp. 1283, 
 
 husband, equity will hold it liable, 1284, and cases cited under section 
 
 and when necessary decree a sale, of statute noted. See also Walton 
 
 This was the law before the stat- v. Follansbee, 165 111. 486; God- 
 
 ute of 1872, and is the law today schalk v. Fullmer, 176 111. 66; 
 
 in a similar case. Benson v. Dempster, 183 111. 304. 
 
 Kurd's R. S. of 111., 1905, same See Section 9, Chapter 59, "Frauds 
 
 section and chapter, p. 104. and Perjuries," Starr & Curtis An- 
 
 6— McClay v. Smith, 87 111. Ill; notated Statutes of Illinois, with
 
 TRUSTS AND TRUSTEES. 219 
 
 286. Married woman's liability. Under the statutes of Illi- 
 nois if an estate comes to a married woman in any way charged 
 with a trust, her coverture cannot be successfully pleaded. But 
 as the law of this state enables a married woman to enter into 
 contract relating to her sole and separate estate only, the per- 
 plexing question may arise, as to how far she can bind her- 
 self, or her estate, by a bond to execute a trust in property, 
 the beneficial interest in which belongs to another, though her 
 sureties in such case, on her bond, might be liable. By granting 
 these statutory rights to married women they become liable, 
 and their estates as well, where she executes a bond for her 
 husband, or joins her husband or others in executing a bond, 
 promissory note, bill of exchange, lease or other instrument 
 creating a liability ; and though she is not liable under the stat- 
 utes for her husband's debts, may become liable in many ways, 
 particularly for necessary expenses of her family and for the 
 care and education of her children.^ 
 
 287. Who are trustees under the law. A testamentary execu- 
 tor or guardian nominated by will, or appointed by the courts 
 
 Jones & Addington's Supplements See also sections 3, 18, 19, chap- 
 thereto. Vol. 2, p. 2021; Vol. 4, ter 30, "Conveyances," Starr & 
 p. 647; Vol. 5, p. 270, and cases Curtis Statutes of Illinois, with 
 cited under section of statute Jones & Addington's Supplements 
 noted. Kurd's R. S. of 111. 1905, thereto. Vol. 1, pp. 916-926; Vol. 4, 
 same section and chapter, p. 1130. p. 254, and cases cited under sec- 
 See Section 3, Chapter 3, "Admin- tions of statute noted, 
 istration of Estates," Starr & Cur- Kurd's R. S. of 111. 1905, same 
 tis Annotated Statutes of Illinois, section and chapter, pp. 464, 466. 
 with Jones & Addington's Supple- 9 — Section 15, chapter 68, "Kus- 
 ments thereto, Vol. 1, p. 270; band and Wife." Starr & Curtis 
 Section 9. Chapter 68, "Husband Annotated Statutes of Illinois, 
 and Wife," Starr and Curtis Anno- with Jones & Addington's Supple- 
 tated Statutes of Illinois, with ments thereto. Vol. 2, pp. 2133. 
 Jones & Addington's Supplements 2134; Vol. 4, pp. 674, 675, and cases 
 thereto, Vol. 2, pp. 2126 to 2132; cited under section of statute 
 Vol. 4, p. 674; Vol. 5, p. 286, and noted. Kurd's R. S. of 111., 1905, 
 cases cited under section of stat- same section and chapter, p. 1148. 
 ute noted. Kyman v. Karding, 162 III. 360; 
 
 Kurd's R. S. of 111. 1905, same Arnold v. Keil, 81 111. App. 242. 
 section and chapter, p. 1147.
 
 220 THE LAW OF ESTATES. 
 
 as such, after accepting the office, and qualifying under the will 
 and the provisions of the statutes, is to a certain extent a trus- 
 tee; and, will be treated as such during the administration of 
 the estate in which he or she is appointed by all courts in which 
 they may appear until finally discharged from such duties as 
 the office imposes by a proper order of the court that appoints 
 them and directs the distribution of the estate in their hands. 
 An administrator with the will annexed, will also be treated as 
 a trustee, and held to account during the administration of an 
 estate in his hands; and generally in the same manner and to 
 the same extent as an executor appointed and accepting under 
 a will. 
 
 288. Trustees defined. Such are said to be ''persons, asso- 
 ciations or corporations to whom property is legally committed 
 in trust to be applied either for the benefit of specified individ- 
 uals, or public uses. " Another definition being : "A person in 
 whom some estate, interest, or power in or affecting property 
 of any description is vested for the benefit of another. ' ' Again 
 such is defined as: "An obligation upon a person arising out 
 of a confidence reposed in him to apply property faithfully 
 and according to such confidence. " Again: '' A trust is in the 
 nature of a disposition by which a proprietor transfers to 
 another the property of the subject intrusted, not that it should 
 remain with him, but that it should be applied to certain uses 
 for the benefit of a third party, "i*^ 
 
 289. Trustees de son tort. If a person wrongfully interferes 
 with the assets of a deceased person, he may become an admin- 
 istrator or executor de son tort. So, if a person by mistake or 
 otherwise assumes the character of trustee, and acts as such, 
 when the office does not belong to him, he thereby becomes a 
 trustee de son tort, and he may be called to account by the 
 cestui que trust for the assets received under the color of the 
 trust." 
 
 10—1 Perry on Trusts (1889), 11—1 Perry on Trusts (1889) 
 section 2. 265; Penn v. Folger, 182 111. 76;
 
 TRUSTS AND TRUSTEES. 
 
 221 
 
 290. Executors, administrators, guardians and conservators 
 to whom amenable. Under the statutes of Illinois, the execu- 
 tor, administrator, guardian and conservator, are, in the first 
 instance, creatures of the probate courts and to those courts are 
 accountable, until duly discharged.^^ 
 
 291. Testamentary trustees are not under control of county 
 or probate courts. A court of general chancery jurisdiction lias 
 full control of testamentary trusts and trustees. A testamen- 
 tary trustee is not amenable to probate and county courts ; such 
 come under the jurisdiction of a general court of chancery.^ ^ 
 
 Larrnan v. Knight, 140 111. 232; 
 Gurn V. Richardson, 128 111. 178. 
 In Larman v. Knight, supra, a 
 wife after the sale of her real 
 estate under a decree, and the ex- 
 piration of the time of redemption, 
 obtained from the purchaser a con- 
 tract for the sale of the certificate 
 of purchase on the payment of a 
 sum of money by a day named. 
 Laboring under sickness, and in 
 fact upon her death-bed, her hus- 
 band repeatedly urged her to 
 transfer her rights to him, promis- 
 ing that he would make the pay- 
 ment and save the property for 
 her children, and thereby induced 
 her to transfer the title to him. 
 He obtained a loan on the prop- 
 erty and paid the sum required to 
 perfect the title in him, using 
 some of the wife's money to do 
 so. Held, that the law would hold 
 him as trustee of the property, for 
 the use of his wife's children, un- 
 der a bill for accounting by the 
 children. See Hill on Trustees 
 (4th Am. ed.) p. 234; 2 Pomeroy's 
 Eq. Jur., sec. 1055; Perry on 
 Trusts, sec. 171; Williams v. Free- 
 
 land, 29 N. J. 417; Brison v. Pri- 
 son, 75 Cal. 529; Wood v. Rabe, 
 96 N. Y. 426; Davis v. Stromberg, 
 163 111. 557, and cases in that 
 opinion, discussing the doctrine of 
 trusts ex male/icio. See also, 
 Wright V. Gay, 101 111. 241; 2 
 Washburn on Real Property (4th 
 ed.), 482; Allen v. Jackson, 122 111. 
 567; Brophy v. Lawler, 107 111. 
 284; Fischbeck v. Gross, 111 111. 
 208; Henschel v. Mamero, 120 111. 
 662. 
 
 12— Section 112, Chapter 3, "Ad- 
 ministration Act." Starr & Curtis 
 Annotated Statutes of Illinois, 
 with Jones & Addington's Supple- 
 ments thereto. Vol. 1, p. 336; Vol. 
 4, p. 43; Vol. 5, p. 20, and cases 
 cited under section of statute 
 noted. Hurd's R. S. of 111. 1906, 
 same section and chapter, p. 123. 
 See also, Penn v. Folger, 182, 95; 
 People V, Lanham, 189 111. 340; 
 Marshall v. Coleman, 187 111. 569; 
 People V. Kohlsaat, 168 111. 38; 
 Ridgley v. People, 163 111. 115; 
 Solomon v. Holman, 72 111. App. 
 353. 
 
 13— Dlngman v. Beal, 213 111. 
 238.
 
 222 THE LAW OF ESTATES. 
 
 292. Equity never wants for a trustee. It is a rule that 
 admits of no exception, that equity never wants for a trustee.^* 
 Or, in other words, if a trust is once properly created, and 
 it becomes necessary to operate the same, the incompetency, 
 disability, death, or non-appointment of a trustee will 
 not defeat the trust.^^ Thus, if property has been bequeathed in 
 trust, and there is no trustee, or a trustee is nominated and can- 
 not act on account of disabilities preventing the acceptance of 
 the trust, or one who is dead, or refuses to take, is appointed, 
 the chancery court will decree the execution of the trust by 
 the personal representatives, if it is personal property, and by 
 the heirs and devisees, if it is real estate. Property once charged 
 with a valid trust will be followed in equity into whosoever 
 hands it comes, and such will be charged with the execution of 
 the trust, unless he or she is a purchaser for value, and without 
 notice. The holder of the legal title and the absolute interest 
 in property, may convert himself into a trustee b}^ making a 
 valid declaration of trust upon good consideration ; or if he 
 conveyed the property by some conveyance which was inop- 
 erative in law, equity will hold him to be a trustee ; as if a man 
 conveys property directly to his wife, a transaction inoperative 
 in most of the states, equity will uphold the act and decree the 
 husband to be a trustee.i'^ ''Equity will not suffer a wrong to 
 be without remedy." The principle expressed by this maxim 
 is indeed, the foundation of equitable jurisprudence, because 
 equity jurisprudence had its rise in the inability of the common 
 law courts to meet the requirements of justice.^^ Equity takes 
 jurisdiction particularly when the donee has failed to act under 
 a power in trust ;^^ and will reform trusts.^^ Courts of equity 
 will not allow a clear trust to fail for want of a trustee ; nor will 
 
 14 — French v. Northern Trust Equity, 3rd ed., p. 53; 1 Pomeroy's 
 
 Co., 197 111. 30. Eq., sec. 423. 
 
 15— Gillispie v. Smith, 29 111. 473. 18—1 Pomeroy's Eq., 2nd ed., 
 
 io -, T^ r^ X ..r>^,^s ^ecs. 411, 412, post 1221. 
 
 16— 1 Perry on Trusts (1889) 38. -,„ t^. ,, , t. • . , 
 
 19 — Bispham s Principles of 
 
 17— Bispham's Principles of Equity, 2nd ed., 53, 58; Story's Eq. 
 
 641.
 
 TRUSTS AND TRUSTEES. 223 
 
 they alloM' a trust to fail by reason of any act or omission of the 
 trustee.-" A trustee must defend and protect the title he holds ; 
 also he must perform all the duties of a holder of the legal title.^i 
 Trustees cannot delegate their powers and duties; and where 
 it is doubtful what should be done, it is the duty of the trustee 
 to go to court ; it will imply a power or trust and put itself in 
 the place of a trustee, for the party beneficially interested, or 
 the cestui que trust. 22 
 
 293. The rule in appointing trustees. First : The court will 
 have regard to the wishes of the persons by whom the trust has 
 been created, if expressed in the instrument creating the trust 
 or clearly to be collected from it. Second : The court will not 
 appoint a person to be trustee with a view to the interest of some 
 of the persons interested under the trust, in opposition either 
 to the wishes of the testator or testatrix, or to the interests of 
 other of the cestui que trust. Everj^ trustee is in duty bound 
 to look after the interests of all, and not of any particular mem- 
 ber or class of members of his cestui que trust. Third: The 
 court in appointing a trustee, will have regard to the question 
 whether the appointment will promote or impede the execution 
 of the trust ; for the purpose of the appointment is, that the 
 trust may be better carried into execution.-^ 
 
 294. What property may be the subject of the trust. Every 
 kind of valuable property, both real and personal, that can be 
 issigned at law may be the subject-matter of a trust. Every 
 itind of vested right which the law recognizes as a valuable may 
 V)e transferred in trust, as a receipt for medicine, the copyright 
 of a book, a patent right, a trade secret, or growing crops.^-* As 
 a general rule, equity follows the law, and all persons who are 
 
 20—1 Perry on Trusts, 5th ed., sees. 402, 408, 473, 47G; White v. 
 
 ^ecs. 248, 249; Gillispie v. Smith, Sherman, 168 111. 589. 
 
 29 111. 473. 23—1 Perry on Trusts (1889) 
 
 21 — 1 Perry on Trusts, 5th ed., sec. 39. 
 
 sees. 326, 328. 24—1 Perry on Trusts, sees. 67, 
 
 22—2 Perry on Trusts, 5th ed., 68,
 
 224 THE LAW OF ESTATES. 
 
 capable of taking the legal title to property may take the equit- 
 able title as cestui que trust through the medium of a trustee. 
 
 295. The same person appointed executor and trustee under 
 will. The same person is often named executor and trustee 
 under a will in such a manner that he may accept one office and 
 decline the other. As if a person is appointed executor, and 
 as executor is to act as trustee ; in such case the probate of the 
 will, and qualification as executor, will be an acceptance of the 
 trust. But if from the will it appears that the testator or testa- 
 trix intended to give the trustee a distinct and independent 
 character, probate of the will by the executor will not make him 
 trustee, unless he accept the trust and qualify himself according 
 to law. If the trust is given to one named, and the same per- 
 son is afterwards appointed executor, the trust is not annexed 
 to the office of executor. If, by the terms of the will, the execu- 
 tor as executor is to keep the estate, or any portion of it, in 
 his hands, and is to deal with it as a trustee, his bond will be 
 held as security for the faithful performance of his duties, 
 though such duties are much larger and different from those 
 of an ordinary executor. If, however, the will contemplates 
 that the executor, as such, is to perform only the ordinary 
 duties of an executor, and that when the estate is settled by 
 him, another duty is to arise to be performed, either by him or 
 by another, then the bond of the executor is not security for 
 those further duties; but the person who is to perform them 
 must accept the office and give a bond for their per- 
 formance.25 And the same author in the section re- 
 ferred to, says: "In jurisdictions where executors and 
 trustees are required to qualify and give bonds, it has 
 been held, that an executor, who is also a trustee under the will, 
 cannot be considered as holding any part of the assets as trus- 
 tee, until he has settled his account at the probate court as 
 executor, and has been credited with the amount as executor 
 with which he is afterwards to be charged as trustee." In 
 
 25 — 1 Perry on Trusts (1889) sec. 263.
 
 TRUSTS AND TRUSTEES. 225 
 
 other cases it has been held, that the change of property, from 
 the executor to the trustee, where they are the same persons, 
 may be shown by some declaration or authoritative and notorious 
 act on the part of the trustee, showing a change in the manner 
 in which the property is held.^*^ The authorities are quite uniform 
 in holding to the rule, that where the executor thus acts in a 
 double capacity he must account in his capacity as executor, un- 
 til he has transferred his account tovliimself as trustee, and given 
 a bond as trustee. This is the general rule, but if the will is silent 
 on the subject or requires bond to be given, in the absence of a 
 statute granting the probate courts control in the first instance 
 over testamentary trustees, it would seem to be the law in Illi- 
 nois, that the probate courts and county courts having probate 
 jurisdiction, have control of the executor only as such, and his 
 administration and accounting in the particular estate ; but the 
 trustee, even though it be the same person, in case the trust 
 is abused, is amenable to courts of equity, who will restrain 
 and compel a proper application of the trust estate.^^ 
 Where persons act in the dual capacity of executors 
 and trustees, and in law are distinguished as separate 
 persons in their respective capacities, it is their duty as trus- 
 tees to collect and receive what might become due to them as 
 such, without loss or diminution by their neglect; and to that 
 end and purpose they should keep a watchful eye on the sources 
 of the funds, which generally arise during the administration 
 of estates. The personal estate vesting in executors or adminis- 
 trators the trustee can reach such only through such represent- 
 atives when the estate is distributed in the courts of probate. 
 It is also the duty of the executor or administrator to collect 
 the claims and convert the property into money as the probate 
 court may direct for the purpose of paying debts and charges 
 against the particular estate administered. It is further the 
 
 26— Daggatt v. White, 128 Mass. 511; Daly v. Wilkier, 111 111. 383; 
 
 398; Croucher v. Dillon, 133 Mass. Leman v. Sherman, 117 111. 657; 
 
 91; Carruth v. Carruth, 148 Mass. Jones v. Jones, 124 111. 264; Ding- 
 
 431. man v. Beal, 213 111. 238. 
 
 27— Estate of Whitman, 22 111. 
 15
 
 226 THE LAW OF ESTATES. 
 
 duty of such representatives to render a just and true account 
 of their doings to the court of probate as required by law ; such 
 courts having full power and jurisdiction to call the represent- 
 atives of an estate to account, and charge such with all losses 
 accruing through their neglect or raisconduct.^s "While the con- 
 duct of parties as executors or administrators as well as trustees, 
 may be a proper subject of inquiry in determining as to their re- 
 moval, the courts of probate have exclusive jurisdiction of their 
 accounts as executors and administrators, unless in a proper 
 case, that court should be superseded by the circuit court; and 
 then such latter court takes jurisdiction of such matter, under 
 its general chancery powers.^^ 
 
 In Dingman v. Beat, it is held: Where a will devised 
 a distinct part of the real estate to the "executor" in trust, 
 with directions in the will to sell the same and reinvest the pro- 
 ceeds in trust for specific purposes, a sale made by him in pur- 
 suance of the directions in the will, is a sale in his capacity as 
 trustee, and no bond by him is necessary to the validity of the 
 sale, where none is required by the terms of the will.^** 
 Under the statute of Illinois, as it now stands, where a will 
 makes the same person an executor and trustee, the executor's 
 bond cannot be construed for the faithful performance of the 
 duties belonging to the trustee.^^ Where it is required or the 
 will is silent on the subject, a separate bond as trustee must 
 be given/' - 
 
 296. Voluntary or express trusts must be accepted. In vol- 
 untary or express trusts, uo title vests in the proposed trustee, 
 
 28— Waterman v. Alden, 42 111. 32— People v. Hoffman, 182 111. 
 
 App. 294. 405; Hinds v. Hinds, 85 Ind. 312; 
 
 29 — Waterman v. Alden, 144 111. Woerner on American Law of Ad- 
 
 105. ministration, 2nd ed., 260; People 
 
 30 — Gammon v. Gammon, 153 v. Petrie, 191 111. 497; 28 Am. & 
 
 111. 41; 213 111. 238. Eng. Ency. of Law, 2nd ed., 975, 
 
 31 — Sections 7 and 8, chapter 3, and cases cited in notes. Daggatt 
 
 "Administration." Starr & Curtis v. White, 128 Mass. 312; Hale v. 
 
 Annotated Statutes of Illinois, Hale, 146 111. 227; Gavin v. Cur- 
 
 Vol. 1, pp. 271, 272; Hurd's R. S. tiss, 171 111. 640. 
 of 111., 1905, p. 105; Dingman v. 
 Beal, 213 111. 238.
 
 TRUSTS AND TRUSTEES. 227 
 
 by whatever instrument it is attempted to be transferred, 
 unless the person named as trustee expressly or by implication 
 accepts the office, or in some way assumes its duties and lia- 
 bilities.33 Such a refusal to act does not invalidate the deed, 
 will or other instrument ; it only relieves the trustee, and enables 
 the court to appoint others.^* When a trust is created by impli- 
 cation, result, or construction of law from the acts of the par- 
 ties, they will be held by the law to the performance of the trust, 
 whether they are willing or unwilling to accept the situation. 
 This is the universal rule of equity, as the result or construction 
 to be put upon the actions and conduct of the party relating to 
 the property of others in his care, control or management. Gen- 
 erally where trusts are created by will, and vest in the executor 
 accepting and qualifying, he thereby accepts the trust or trusts 
 in the will created and is estopped from denying the grantor's 
 title.^^ Whoever takes property under a will, takes it in the 
 character impressed upon it by the testator.^^ 
 
 297. Certain trusts must be in writing — others created by 
 construction or operation of law, may be established by parol 
 proof. The statute of Illinois provides: "All declarations or 
 creations of trusts or confidences of any lands, tenements or 
 hereditaments, shall be manifested and proved by some writing 
 signed by the party who is by law enabled to declare such 
 trust, or by his last will in writing ; or else they shall be utterly 
 void and of no effect; Provided, that resulting trust or trusts 
 created by construction, implication or operation of law, need 
 not be in writing, and the same may be proved by parol. "^'^ 
 
 33— Cooper v. McClun, IG 111. 181 111. 182; Burbach v. Burbach, 
 
 435. 217 111. 547. 
 
 34— Nicoll V. Miller, 37 111. 387; 37— See section 9, chapter 59, 
 
 Nicol V. Ogden, 29 111. 323. "Frauds and Perjuries." Starr & 
 
 35— Guilfoil V. Arthur, 158 111. Curtis Annotated Statutes of Uli- 
 
 600. nois, with Jones & Addington's 
 
 36 — Rankiu v. Rankin, 36 111. Supplements thereto. Vol. 2, p. 
 
 293; In re Corrington's Estate, 2021; Vol. 4, pp. 647, 648; Vol. 5, 
 
 124 111. 363; Crerar v. Williams, p. 270, and cases cited in each vol- 
 
 145 111. 625; Robinson v. Botkin, ume under section of statute
 
 228 THE LAW OF ESTATES. 
 
 This statute passed in 1833, has remained without change since 
 then. Express trusts must be in writing, but no form of words 
 are necessary.^^ The declaration of trust may be by letter to 
 a third party .^^ Or by a memoranda.^'^ Or by a written promise 
 to declare a trust." Or by answer in chancery.^^ Qj. y^y ^ 
 printed pamphlet.'*^ Or by an affidavit.^* Or it may be by a 
 deposition of the trustee, taken and read in the very cause in 
 which the trust is sought to be proved and established.^^ In 
 the case of Phillips v. Smith Park Commissioners it 
 is held:'**' Under the Statute of Frauds, a conveyance, ab- 
 solute on its face, can not be shown to have been made iu 
 trust for another by parol evidence. That can only be proved 
 by some writing signed by a person authorized to declare a 
 trust. The trust may be manifested by a writing separate from 
 the deed, showing an intention that the conveyance shall be in 
 trust. If the grantee of a husband, while holding the title to 
 the land conveyed, makes a declaration that he holds it in trust 
 for the grantor's wife, by letter, affidavit, answer to a bill in 
 chancery, or even by deposition, it may be binding on him, and 
 be sufficient to show, in writing, a trust in her favor.^" If there 
 be written evidence of the existence of the trust, the danger of 
 
 noted. Kurd's R. S. of 111. 1905, 525; Reid v. Reid, 12 Rich. Eq. 
 
 same section and chapter, p. 1103. 40 S. C. L. Eq. 213; Olcot v. By- 
 
 38—2 Washburn on Real Prop- num, 17 Wall. 44. 
 
 erty, 507; Brown on Statute of 46—119 111. 626. 
 
 Frauds, 99. 47 — And the same doctrine as 
 
 39 — Kingsbury v. Burnside, 58 held in Phillips v. South Park 
 
 111. 310; More v. Pickett, 62 111. Commissioners, supra (46), is held 
 
 158. or approved in the following 
 
 40 — Raybold v. Raybold, 20 Pa. cases: White v. Cannon, 125 111. 
 
 St. 328. 412; Walton v. Fallansbee, 165 III. 
 
 41 — Bellamy v. Burrows, Talb. 486; Godschalk v. Fulmer, 176 111. 
 
 981. 66; Benson v. Demster, 183 III. 
 
 42— McLaurie v. Partlow, 53 111. 304; Dicken v. McKinley, 163 IU. 
 
 240. 326; White v. Ross. IGO 111. 69; 
 
 43— Barren v. Joy, 16 Mass. 221. Kellogg v. Pedicord, 181 111. 30; 
 
 44 — Barkworth v. Young, 4 Keith v. Miller, 174 111. 74; Kings- 
 Drew, 1. bury V. Burnside, 58 111. 310. 
 
 45 — Penney v. Fallows, 15 Vt.
 
 TRUSTS AND TRUSTEES. 229 
 
 parol declarations, against which the statute was directed, is 
 effectually removed.^* That case was decided by the Master 
 of the Rolls in 1798, when construing the seventh section of the 
 English statute respecting trusts, similar to section nine of the 
 Illinois statute quoted above. The master adopted a letter as a 
 clear declaration of trust by which he held there was a clear 
 evidence in writing of a trust. Again in 1800^^ the 
 Lord Chancellor relating to the adoption of a letter as evidence 
 of a declaration of a trust, said: It is not necessary that it 
 should be a declaration, as a writing signed by a party may be 
 evidence of a trust admitted in that writing. The important 
 question under all the decisions, has always been, was there 
 evidence in writing manifesting and proving the existence of a 
 trust, which may be applied to wills or other documents. In the 
 construction of written instruments courts will endeavor, in all 
 eases, to place themselves in the position of the contracting 
 parties in the sense intended by the instrument construed.^^ 
 Where there is an express trust, there cannot be a resulting 
 trust. 5^ 
 
 298. Resulting trust. The doctrine of resulting trusts is 
 stated by Perry on Trusts, as foUows:^^ "Where upon 
 a purchase of property, the conveyance of the legal title 
 is taken in the name of one person, while the consideration is 
 given or paid by another, the parties being strangers to each 
 other, a resulting trust immediately arises from the transac- 
 tion, and the person named in the conveyance will be a trustee 
 for the party from whom the consideration proceeds." This 
 doctrine has been repeatedly applied in Illinois.^^ WJiere a con- 
 fidential agent was employed to examine title to land, with a view 
 of correcting defects therein, and to assist his employer in aequir- 
 
 48 — Lewin on Trusts, 63; Foster 51 — Stevenson v. Crapnell, 114 
 
 V, Hale, 3 Ves. Jr. 308. 111. 19; Kingsbury v. Burnside, 58 
 
 49—5 Ves. 308. 111. 310; Godschalk v. Fulmer, 176 
 
 50— Mosher v. Funk, 194 111. 111. 66. 
 
 354; Kann Moll v. Gardner, 214 52— Sec. 126 (1889 ed.). 
 
 Ill- 248. 53— Vallette v. Tedens, 122 111. 
 
 607.
 
 230 THE LAW OF ESTATES. 
 
 ing title to adjacent lands, and, as such agent, was entrusted with 
 his principal's abstracts of title, and received information to aid 
 him in procuring the title, and, while so acting, acquires the 
 title in his own name, in violation of his duty, he will in equity 
 be held to have acquired such title in trust for his principal. 
 So where property is purchased by a syndicate, and is con- 
 veyed for purposes of convenience to designated party, such 
 will be treated as a trustee for the syndicate.^"* And 
 where a guardian invests money of his ward in the pur- 
 chase of lands and takes title to himself, there is a resulting 
 trust, and in such case the ward may follow the money into 
 the lands and convey it as a trust estate.^^ A resulting trust 
 does not grow out of the contract of parties, but is treated as 
 an implication of law arising where land has been purchased with 
 the money of one and the deed made to another. ^^ In such 
 case, the person whose money pays for the land may follow 
 the title to the land, and treat the holder of the legal title as 
 a trustee, and compel, in equity, a conveyance.^^ It is necessary, 
 however, to a trust of this kind, that the funds be advanced or 
 invested at the time the purchase is made ; as it is not possible 
 to raise a trust by the subsequent application of the money 
 of a third person in satisfaction of the unpaid purchase money.^^ 
 But the rule established in this state is to the effect, that a result- 
 
 54 — Frankenstein v. North, 79 Biggins v. Biggins, 153 111. 211 
 
 111. App. 677; Wallace v. Carpen- Dorman v. Dorman, 187 111. 158 
 
 ter, 85 111. 590. Monson v. Hutchin, 194 111. 434 
 
 55— Rice v. Rice, 108 111. 199. Pool v. Phillips, 167 111. 439 
 
 56— Williams v. Brown, 14 111. Pickler v. Pickler, 180 111. 173 
 
 200. Smith v. Willard, 174 111. 542 
 
 57— Sheldon v. Harding, 44 111. Crone v. Crone, 180 111. 603; Dwy» 
 
 68; McDonald v. Stow, 109 111. 40 
 Scheerer v. Scheerer, 109 111. 11 
 Fischbeck v. Gross, 112 111. 208 
 Harris v. Mclntyre, 118 111. 275 
 Donlin v. Bradley, 119 111. 412 
 Henckel v. Mamero, 120 111. 660 
 Reynolds v. Summer, 126 111. 58 
 
 er V. O'Connor, 200 111. 54; Crouch' 
 er V. Croucher, 203 111. 530. 
 
 58— Reed v. Reed, 135 111. 482; 
 Pickler v. Pickler, 180 111. 173; 
 Pain V. Farson, 179 111. 194; De- 
 vine V. Devine, 180 111. 451; Dick 
 V. Dick, 172 111. 580; Bank v. Bees- 
 ley, 159 111. 125.
 
 TRUSTS AND TRUSTEES. 231 
 
 ing trust will not be enforced after an unreasonable delay in 
 seeking their enforcement, unless there is shown an equitable 
 excuse for the delay. ^^ 
 
 299. Constructive trusts. May be proved and established 
 by parol; such a trust is well defined in Fope v. Dapray,^^ 
 the doctrine is one that arises, where a person clothed 
 with some fiduciary character, by fraud or otherwise gains 
 something for himself.^^ It is further defined and applied, where 
 "a person obtains the legal title to property by virtue of a con- 
 fidential relation and influence, under such circumstances that he 
 ought not, according to the rules of equity and good conscience 
 to hold and enjoy the beneficial interests of the property;" 
 courts of equity, in order to administer complete justice be- 
 tween the parties, will raise a trust, by construction, out of 
 such circumstances or relations, and this trust they will fasten 
 upon the conscience of the offending party and will convert 
 him into a trustee of the legal title, and order him to hold it, 
 or execute the trust in such manner as to protect the rights 
 of the defrauded party and promote the safety and interests 
 of society.^2 This rule has been quoted with approval and ap- 
 plied in the cases of Beach v. Dyer, and Allen v. Jackson.^^ As a 
 general rule one of two elements is necessary on which to 
 base or establish a constructive trust. There must be some 
 element of fraud, either positive or constructive, which existed 
 at the time of the transaction and which influenced the cestui 
 que trust, or there must exist a confidential relation and influ- 
 ence, by virtue of which one has obtained the legal title to 
 property which he ought not, according to the rules of equity 
 and good conscience, to hold and enjoy. The rule is laid down 
 in Perry on Trusts, as follows:^* "Constructive trusts 
 may be divided into three classes, to be determined according 
 
 59 — Harris v. Mclntyre, US 111. 61 — Perry on Trusts, Sec. 27; 
 275; Mayfield v. Forsyth, 164 111. Reed v. Reed, 135 111. 482. 
 36. 62— Perry on Trusts, Sec. 166. 
 
 60—176 111. 478. 63—93 111. 295; 122 111. 567. 
 
 64 — Perry on Trusts, Sec. 168.
 
 232 THE LAW OF ESTATES. 
 
 to the circumstances under which they arise : First, trusts that 
 arise from actual fraud practiced by one man upon another. 
 Second, trusts that arise from constructive fraud. In this, 
 class the conduct may not be actually tainted with moral fraud 
 or evil intention, but it may be contrary to some rule estab- 
 lished by public policy, for the protection of society. Thus, a 
 purchase made by a guardian of his ward, or by a trustee of 
 his cestui que trust, or by an attorney of his client, may be in 
 good faith and as beneficial to all parties as any other trans- 
 action in life, and yet the inconvenience and danger of allow- 
 ing contracts to be entered into by parties holding such rela- 
 tions to each other are so great that courts of equity construe 
 such contracts prima facie to be fraudulent, and they construe 
 a trust to arise from them. Third, trusts that arise from 
 some equitable principle independent of the existence of any 
 fraud, as where an estate has been purchased and the consid- 
 eration money paid but the deed is not taken, equity will raise 
 a trust, by construction, for the purchaser." The rule is also 
 well established, that courts of equity carefully scrutinize con- 
 tracts between parent and children, by which the property of 
 the parent is conveyed to children. The position and influence 
 of a parent over a child are so controlling that the transaction 
 should be carefully examined; and, sales by child to parent 
 must appear to be fair and reasonable. These rules of equity 
 are applied in the cases in note below."^ 
 
 300. Trusts by implication or operation of law. A husband 
 had real estate conveyed to his wife, to be held for his use, in 
 case he should survive her ; but if he should die first, the prop- 
 erty was to belong to his wife ; she at the time of this convey- 
 ance to her executing to her husband a writing, showing she 
 held the property in trust. Shortly before her death the wife 
 
 65— Maynard v. Maynard, 194 232-236; White v. Ross, 160 111. 56; 
 111. 45-48; Thomas v. Whitney, 186 Stahl v. Stahl, 214 111. 131; Fred- 
 Ill. 225; Dowie v. Driscoll, 203 111. rick v. Fredrick, 219 111. 568; 
 480-490; Allen v. Jackson, 122 111. .Johnson v. Buck, 220 111. 226; 
 567; Larmon v. Knight, 140 111. Compton v. McCaffree, 220 111. 137.
 
 TRUSTS AND TRUSTEES. 233 
 
 conveyed the property to a third party in trust for her infant 
 son by a former marriage. Under this statement of facts, it was 
 held, that a court of equity would set aside the deed in violation 
 of the trust, and vest the title in. the husband.c<^ And so, a trust 
 by implication and operation of law will be declared where the 
 facts warrant/''^ Where one obtains a conveyance, by pretend- 
 ing to act as an agent for another, he can hold the legal title 
 only in trust for his principal and as security for the money ad- 
 vanced.^^ So where a son is authorized by his mother to collect 
 and invest her money for her, he to retain as compensation all 
 of the profits in excess of a certain per cent, was regarded as a 
 trustee, and not as a borrower, the facts showing he kept the 
 money together, and invested it from time to time, and spoke of 
 it as his mother's money .♦^^ And where one obtains a conveyance 
 from an insane person wrongfully and by improper means, he 
 may in equity be treated as holding the title as trusteeJ'^ So 
 where a creditor voluntarily assumes what appears to be a friend- 
 ly relation to his debtor, ostensibly to enable the debtor and his 
 wife to save their homestead from other creditors ; and by means 
 of the confidence thus inspired obtains the title, equity will raise 
 a trust and compel the creditor to perform his promise."^ 
 Where by will land is to be sold and the proceeds are to be held 
 as a trust fund, the income to go to the widow for life, and 
 upon her death to a son for life, and upon his death to his 
 children ; if the son buys the land and gives his note, and after- 
 wards sells a part to the widow and she gives her note to the 
 executor who credits it on the son's note, her note is part 
 of the trust fundJ^ And upon settlement of conflicting claims 
 to land, one of the parties upon receiving title is to select and 
 
 66 — Hazeltine v. Fourney, 120 53; Phillips v. Edsall, 127 111. 535. 
 
 Ill- 493. 69— Clapp v. Emery, 98 Ul. 523. 
 
 67 — Krebaum v. Cordell, 63 111. 70 — Long v. Fox, 100 111. 43. 
 
 23; White v. Cannon, 125 111. 412; 71— Gruhn v. Richardson, 128 
 
 Hagan v. Varney, 147 111. 281. 111. 178; Allen v. Jackson, 122 111, 
 
 68— Reigard v. McNeil, 38 111. 567. 
 
 400; Halloran v. Fitzgerald, 71 111. 72— Woodburn v. Woodburn, 123 
 
 111. 608.
 
 234 THE LAW OF ESTATES. 
 
 convey a certain number of acres to the other, in consideration 
 of which the latter is to release his claim to the residue, the 
 former upon receiving title holds that number of acres in trust 
 for the latter. '^3 And where property is obtained by fraudulent 
 practice, it will be held upon a constructive trust for the person 
 defrauded.'^ ^ The rule is therefore well established, and univer- 
 sally enforced to the effect, that where the acquisition of a legal 
 title is tainted with fraud, actual or equitable, or where the trust 
 depends upon some equitable rule independent of fraud, equity, 
 to prevent injustice, will raise a trust for the party who in 
 equity is entitled to the beneficial enjoyment.'^^ And it is held, 
 the word "trust" as used in section 70, chapter 3, of the Admin- 
 istration Act,'^^ making unaccounted for trust funds a claim of 
 the 6th class, is restricted to technical trusts which the law 
 implies as growing out of contracts. 
 
 301. Trusts ex maleficio. Hill on Trustees gives the fol- 
 lowing as the settled doctrine:'''^ "Where a person by means 
 of his promises, or otherwise by his general conduct, pre- 
 vents the execution of a deed or will in favor of a third 
 party with a view to his own benefit, such is clearly within 
 the first head of fraud, as distinguished by Lord Hardwick, 
 viz. : That arising from facts or circumstances of imposi- 
 tion; and the person so acting will be decreed to be a trustee 
 for the injured party, to the extent of the interest of which 
 he has been def rauded. "^^ Where the wife of a copy- 
 holder prevented her husband from vesting the copyr 
 hold in his son after his death, by promising, herself, to 
 
 73— Jackson v. Horton, 126 111. ments thereto. Vol. 1, p. 300; Vol. 
 
 566. 4, p. 36; Vol. 5, p. 18; and cases 
 
 74 — Haynes v. Mclllwain, 53 111. cited under section of statutes in 
 
 652. question in each volume. Hurd's 
 
 75— Chicago Union Nat'l Bank R. S. of 111. 1905, p. 116. Felsen- 
 
 V. Goetz, 138 111. 127. thai v. Kline, 214 111. 121. 
 
 76— Section 70, Chap. 3, "Admin- 77— 4th Am. ed., p. 234. 
 
 istration," clause 6. Starr & Curtis 78— Larman v. Knight. 140 111. 
 
 Annotated Statutes of Illinois, 236; Hill on Trustees, 4th Am. ed. 
 
 with Jones & Addington's Supple- 234.
 
 TRUSTS AND TRUSTEES. 235 
 
 make it over to him if he appointed her his successor instead 
 of his son ; in such case, she was decreed to be a trustee for the 
 son, notwithstanding the statute of frauds, on the ground of 
 fraud. '^^ And so it is held to be within the principle laid down, 
 that where a person, by means of his promises induces a party 
 not to let real estate descend as it otherwise would descend as 
 intended to his heir. In such case the injury to the legatee or 
 grantee, is not considered different or greater than is the injury 
 to the heir, if he is by like means, deprived of what would 
 otherwise have been his inheritance.^" "A second well settled and 
 even common form of trust ex maleficio occurs whenever a person 
 acquires the legal title to land or other property by means of 
 an intentionally false and verbal promise to hold the same for 
 a certain specified purpose — as, for example, a promise to con- 
 vey the land to a designated individual, or reconvey it to the 
 grantor, and the like — and having thus fraudulently obtained 
 the title, he retains, uses and claims the property as absolutely 
 his own, so the whole transaction by means of which the owner- 
 ship is obtained, is in fact a scheme of actual deceit, "^^ A trust 
 ex maleficio was established, and it was therefore held under the 
 facts in the case, that the heirs of the deceased succeeded him as 
 trustee.^ 2 g^j^ in the case of Davis v. Stramnhaugh,^^ the evidence 
 did not establish such a trust, that case turning upon the refusal 
 of the trustee to execute an express trust, and the denial of 
 the existence of the trust by the trustee, the court holding, the 
 record did not constitute such fraud as takes the case out of 
 the statute. In order to take the case out of the statute and 
 establish a trust ex maleficio, the transaction by means of which 
 the ownership of property is obtained must be in fact a scheme 
 of actual deceit — in other words, there must be an element of 
 positive fraud accompanying the promise, and by means of which 
 
 79 — Knight v. Larmon, 140 III. 81 — 2 Pomeroy's Eq. Jur., Sec, 
 236. 1055. 
 
 80— Knight v. Larmon, 140 111. 82— Knight v. Larmon, 140 111. 
 236. 236, 
 
 83—163 111. 557.
 
 236 THE LAW OF ESTATES. 
 
 the acquisition of the legal title is wrongfully consummated, 
 otherwise the Statute of Frauds would be virtually abrogated. 
 So in all such cases, the evidence must be clear to establish 
 such a trust, and the evidence must show directly or indirectly 
 an intentionally false and fraudulent verbal promise to hold 
 the property for a certain specific purpose.^* 
 
 302. Spendthrift trusts. Such trust estates have been recog- 
 nized, generally, by most of the courts of the United States; 
 and their treatment of the subject is recognized as the Ameri- 
 can doctrine in relation to this subject. These trusts are cre- 
 ated for the purpose of providing for the maintenance of a son 
 or a daughter, or a designated relative, to secure such against 
 their own improvidence and incapacity for self-protection. 
 Trust estates of this character have been created and enforced 
 in Illinois, and are now fully recognized and form a part of 
 the well settled doctrine of courts of equity. ^^ In the case of 
 Steib V. Whitehead, it was urged upon the court, that to give 
 effect to such provisions in the will before it, would be simply 
 permitting individuals to abrogate and annul the laws of the 
 state by private contract; to such proposition the court said: 
 "But while this is undoubtedly true, it does not necessarily fol- 
 low that a father may not, by will or otherwise, make such rea- 
 sonable disposition of his property when not required to meet 
 any duty or obligation of his own, as will effectually secure his 
 child a competent support for life, and the most appropriate, 
 if not the only, way of accomplishing such an object is through 
 the medium of a trust. Yet a trust, however carefully guarded 
 otherwise, would in many cases fall far short of the object of 
 its creation, if the father, in such case, has no power to pro- 
 
 84— Allen v. Jackson, 122 111. 85—26 Am. & Eng. Ency. of 
 
 567; Moore v. Horsley, 156 111. 36; Law, 2d ed., 137, et seq., and cases 
 
 Gruhn v. Richardson, 128 111. 178; cited bearing on the subject of 
 
 Reed v. Peterson, 91 111. 288; Big- "spendthrift trusts." Steib v. 
 
 gins V. Biggins, 133 111. 211; Lan- Whitehead. Ill 111. 247; Kaufman 
 
 try V. Lantry, 51 111. 548. v. Breckinridge, 117 111. 305; Ben- 
 nett V. Bennett, 217 111. 440.
 
 TRUSTS AND TRUSTEES. 237 
 
 vide against the schemes of designing persons, as well as the 
 improvidence of the child itself. Whatever the reverses of 
 fortune may be, the child is provided for, and is effectually 
 placed beyond the reach of unprincipled schemers and sharp- 
 ers. The tendency of present legislation is to soften and ameli- 
 orate, as far as practicable, the hardships and privations that 
 follow in the wake of poverty and financial disaster. The 
 courts of the country, in the same liberal spirit, have almost 
 uniformly given full effect to such legislation. The practical 
 result of this tendency, we think, upon the whole, has been 
 beneficial, and we are not inclined to render a decision in this 
 case which may be regarded as a retrograde movement. ' ' 
 
 303. Conveyance to use — statutes of uses. The statute in 
 that regard in Illinois is as follows: "Where any person or 
 persons stand or be seized, or at any time hereafter shall stand 
 or be seized of and in any messuages, lands, tenements, rents, 
 services, reversions, remainders or other hereditaments, to the 
 use, confidence or trust of any other person or persons or of any 
 body politic, by reason of any bargain, sale, feoffment, fine, 
 recovery, covenant, contract agreement, will or otherwise, by 
 any manner of means whatsoever, in every such case all and 
 every such person or persons, and bodies politic, that have or 
 hereafter shall have anj' such use, confidence or trust, in fee 
 simple, for term of life, or for years or otherwise, or any use, 
 confidence or trust in remainder or reversion, shall from thence- 
 forth stand and be seized, deemed and adjudged in lawful 
 seizin, estate and possession of and in the same messuages, 
 lands, tenements, rents, services, reversions, remainders and 
 hereditaments, with their appurtenances, to all intents, con- 
 structions and purposes in law of and in such like estates, as 
 they had or shall have in use, confidence or trust of or in the 
 same; and that the estate, right, title and possession that was 
 or shall be in such person or persons that were or hereafter 
 shall be seized of any lands, tenements or hereditaments, to the 
 use, confidence or trust of any such person or persons, or of 
 any body politic, be from henceforth clearlj-- deemed and ad-
 
 238 THE LAW OF ESTATES. 
 
 judged to be iu Iiiin, her or them tliat have or hereafter shall 
 have such use, confidence or trust, after such quality, manner, 
 form and condition as they had before, in or to the use, con- 
 fidence or trust that was or shall be in them. "^^ 
 
 This act has been in force in Illinois since 1827, and though 
 rewritten in 1845 and 1872, was not changed in the revision of 
 those dates. The statute practically re-enacts the substance of 
 the statute of uses, 27 Henry VIII. Under the operation of 
 this statute, a conveyance in trust, or to the use of any person, 
 which requires no duties, prescribes the execution of no trust, 
 but leaves the trustee only a passive title, carries to the cestui 
 que trust lawful seizin, estate and possession. In such case 
 there is not a mere equitable title, but an actual seizin and 
 possession in fact — not only a right of entry, but an actual 
 estate. The cestui que trust may, consequently, convey the 
 estate by deed without the intervention of his trustee. Livery 
 of seizin is abolished by the first section of the Conveyance 
 Act, and the title is thereby absolutely vested in the donee, 
 grantee, bargainee, etc., independently of the Statute of Uses. 
 Hence, under this statute, a deed in the form of a bargain and 
 sale must be regarded as having the force and effect of a 
 feoffment. Under the Statute of Uses, a feoffment to A, for 
 the use of or in trust for B, would pass the legal title to B. In 
 a deed of purely bargain and sale, independently of the first 
 section of the conveyance act, the rule would be different, and 
 the title would vest in the bargainee. Without the first section, 
 the legal title would be in the trustee. In Witham v. Brooner, 
 it was held,^'^ the ' trust in question was a passive one, 
 and the deed operated as a feoffment would at common law, and 
 vested the title in the cestui que trust, by virtue of the Statute 
 of Uses, that statute executing itself. It conveys the possession 
 
 86 — Section 3, chapter 30, "Con- Vol. 4, p. 254, and cases cited in 
 
 veyances," Starr & Curtis Anno- each volume under section of stat- 
 
 tated Statutes of Illinois, with ute in question. 
 
 Jones & Addington's Supplements 87 — 63 111. 346; Witham v. 
 
 thereto. Vol. 1, p. 914, et seq.; Brooner.
 
 TRUSTS AND TRUSTEES. 239 
 
 to the use, and transfers the use to the possession; and by- 
 force of the statute the cestui que trust had the lawful seizin, 
 estate and possession. Three things must concur to bring an 
 estate in land, within the Statute of Uses: First, there must 
 be a person seized to a use ; second, a cestui que trust ; third, 
 a use in esse. When these things occur, the statute operates 
 instantly.^^ There are also cases in which, it having been the 
 duty of the trustee to convey to the heir at law, it will be pre- 
 sumed, after the lapse of considerable time, that such conveyance 
 has been made.^^ In a bill filed to set aside certain con- 
 ditions in a will, it was sought to make the gift in question, 
 subject to a condition subsequent; upon the theory, that the 
 trust created in the executors by the will, was a mere naked 
 or passive trust, and therefore the condition being void, the 
 title passed immediately to plaintiff in error, under section 3 
 of the Conveyance Act.^*' 
 
 304. When the statute takes effect and executes the trust. 
 In the case of Silverman v. Kristufek,^^ the doctrine 
 and rules are clearly set forth by Chief Justice Magruder, 
 speaking for the court: "In order to bring an estate within 
 the operation of the Statute of Uses, so as to execute the use 
 in respect to the same, there must be a concurrence of three 
 things ; first, a person seized to a use ; second, a cestui que use in 
 esse; and third, a use in esse either in possession, reversion or 
 remainder. "^2 Tj^g third section of our Conveyance Act, which 
 
 88 — Lynch v. Swayne, 83 111. title in fee to the land could not 
 
 336; Kirkland v. Cox, 94 111. 411, vest in the plaintiff in error, as 
 
 et seq.; Witham v. Brooner, 63 111. the condition was precedent to the 
 
 346. vesting of such title, the devise 
 
 89 — 1 Perry on Trusts, Sec. 350; being of realty. See also Perry 
 
 Gibson v. Rees, 50 111. 383; Kirk- on Trusts, 200; Hill on Trustees, 
 
 land V. Cox, 94 111. 411-413. 4th Am. ed. 376. 
 
 90— Randall v. Boston, 172 111. 91—162 111. 229. 
 
 439. In this case it is held, as 92 — 2 Washburn on Real Prop- 
 
 the trust was not a naked or pas- erty, marg. p. 113; Witham v. 
 
 sive one, and if the conditions in Brooner, 63 111. 334; 27 Am. & Eng. 
 
 the will should be held void, the Ency. of Law, p. 911, and cases 
 
 cited under Statute of Uses.
 
 240 THE LAW OF ESTATES. 
 
 is substantially the same as the Statute of Uses of 27 Henry 
 VIII., provides, that, "where any person shall stand seized of 
 and in any lands to the use or trust of any other person or per- 
 sons or of any body politic," etc.^^ The cestui que use must be 
 a person or body politic — a natural person, or an artificial per- 
 son, like a corporation. Where the estate is limited to a person not 
 in esse, or capable of being ascertained, the statute will have no 
 operation, until the cestui que use comes into being, or is ascer- 
 tained. Where there is no determinate person to claim as bene- 
 ficiary there is wanting an essential element of a trust, and 
 where the trustee must hold the legal title until the beneficiaries 
 are determined, the case is not one where the statute transfers 
 the legal estate to the use.^^ 
 
 305. Where the statute of uses does not execute the trust. 
 The doctrine in Illinois is well settled and firmly established, 
 to the effect, that where an instrument of conveyance or will, 
 imposes on the trustees active duties with respect to the trust 
 estate, such as, to sell and convert into money, or to lease the 
 same and collect the rents, pay taxes, and make the necessary 
 repairs, etc., and pay the net proceeds to the beneficiary it 
 creates an active trust which the statute does not of itself 
 execute.^ ^ Where particular things are to be done by the trus- 
 tees, it is necessary that the estate should remain in them so long 
 at least as those particular purposes require it.^^ But an 
 active trust may become passive and trust may become executed, 
 
 93— Starr & Curtis Annotated 95 — Meecham v. Steel, 93 111. 
 
 Statutes of Illinois, with Jones & 146; Kellogg v. Hale, 108 111. 164; 
 
 Addington's Supplements thereto. Silverman v. Kristufek, 162 111. 
 
 Vol. 1, p. 914; Vol. 4, p. 254, and 229; Ure v. Ure, 185 111. 216; 1 
 
 cases cited under section of stat- Perry on Trusts, 3d ed.. Sec. 305; 
 
 nte in question in each volume; 2 Washburn on Real Property, 5th 
 
 Hurd's R. S. of 111. 1905, p. 464. ed., p. 163. 
 
 94—2 Washburn on Real Prop- 96—1 Hill (S. C.) 413; Silver- 
 
 erty, 5th ed., marg. pp. 115, 116, man v. Kristufek, 162 111. 229; 
 
 163; Preachers' Aid Society v. Chicago Terminal Transfer Co. v. 
 
 England, 106 111. 125; Dean v. Winslow, 216 111. 166. 
 Long, 122 111. 447.
 
 TRUSTS AND TRUSTEES. 241 
 
 by the Statute of Uses.^'^ In the ease of Chicago Terminal TranS' 
 fer Co. V. Winslow, it is said:^^ "In construing the Statutes 
 of Uses, three rules are applicable, whereby conveyances are ex- 
 cepted from its operation, viz.: (1) "Where a use is limited upon 
 a use; (2) Where a copyhold or leasehold estate or personal prop- 
 erty was limited to uses; (3) Where such powers or duties were 
 imposed, with the estate, upon a donee to uses that it was nec- 
 essary that he should continue to hold the legal title in order 
 to perform his duty or execute the power.®^ Special or active 
 trusts were never within the purview of the statute, and if any 
 power or duties are imposed upon a donee to uses, or, in other 
 words, a trustee, which makes it necessary that he should 
 continue to hold the legal title in order to perform his duty or 
 execute the power, the trust is such a special or active trust 
 as will remain unexecuted by the statute. Among the uses 
 falling within these rules is that of investing the proceeds or 
 principle of applying the income to the estate.^ Also 
 to raise a certain sum of money for some prescribed purpose 
 from the income of the estate f to exercise control over the 
 estate for the purpose of preserving contingent remainders ;3 or 
 to protect the estate for a given time, or until the death of some 
 person, or until division.^ 
 
 306. Title to personal property not affected by statute of 
 uses. The title to personal property included in a trust devise 
 of both real and personal property is not affected by the Stat- 
 ute of Uses.^ 
 
 97— Meecham v. Steel, 93 111. Ch. 87; Wright v. Purson, 1 Edw. 
 
 146; Kirkland v. Cox, 94 111. 411; Ch. 110. 
 
 Kann Moll v. Gardner, 214 111. 3 — Vanderhayden v. Crandall, 2 
 
 248; O'Melia v. MuUarky, 124 111. Denio. 9. 
 
 506; Roth v. Michalis, 125 111. 325. 4— Williams v. McConico, 36 Ala. 
 
 98—216 111. 166. 22; Nelson v. Davis, 35 Ind. 474; 
 
 99— Hill on Trustees, 230; 1 Per- Morton v. Barnett, 39 Am. Dis. 
 
 ry on Trusts, 2d ed., Sec. 300. 575; Beach on Trusts, Sec. 403; 
 
 1 — Exter V. Odiorne, 1 N. H. Silverman v. Kristufek, 162 111. 
 
 232; Ashurst v. Given, 5 W. & S. 229. 
 
 323. . 5—27 Am. & Eng. Ency. of Law, 
 
 2 — Stanley v. Leonard, 1 Edw. p. Ill, and cases cited in note 1; 
 16
 
 242 THE LAW OF ESTATES. 
 
 307. Following trust fund. A trust in personal property 
 may be created by parol, and the beneficiary of the fund may 
 follow it in all forms of investment it may assume.^ 
 
 308. Statute of limitations. As a general rule the statute 
 does not run where a trust is created and will not be a bar to 
 a recovery against the trustee or of the fund. The statute of 
 limitations never begins to run in any event to bar a recovery 
 of a trust fund until subsequent to the disavowment of the 
 trust by the trustee.'^ 
 
 309. Perpetuity. The general rule, and the most acceptable 
 and often quoted, is defined to be "a limitation, taking the 
 subject thereof out of commerce for more than a life or lives in 
 being and twenty-one years and beyond, with, in case of a post- 
 humous child, the time of gestation added, computed at nine 
 months.^ When trusts created violate rules of perpetu- 
 ity, they are void; unless they come within the rule laid 
 down in Lawrence v. Smith, as applied and adopted from the 
 case of Tilden v. Green, where it is said:^ "The appel- 
 lants invoke the aid of the principle that where several 
 trusts are created by a will which are independent of each 
 other and each complete in itself, some of which are lawful and 
 others unlawful, and which may be separated from each other, 
 the illegal trust may be cut off and the legal ones permitted 
 to stand. This rule is of frequent application in the construc- 
 tion of wills, but it can be applied only in aid and assistance 
 of the manifest intent of the testator, and never where it 
 
 3 Jarman on Wills, p. 51, note 2; drlch, 205 111. 242; Helntz v. Den- 
 Glover V. Condell, 163 111. 566; Ure nis, 216 111. 487. 
 V. Ure, 185 111. 216; Chicago Ter- 7— Albretch v. Wolf, 58 111. 186; 
 minal Transfer Co. v. Winslow, Hancock v. Harper, 8^ 111. 445; 
 216 111. 166. Maher v. Aldrich, 205 111. 255. 
 
 6— Bret v. Yeaton, 101 111. 242; 8— Biglow v. Cady, 171 111. 229; 
 
 Sholty V. Sholty, 140 111. 81; Price Henderson v. Virden Coal Co., 78 
 
 V. Laing, 152 111. 380; White v. 111. App. 437; Schaefer v. Schaefer, 
 
 Sherman, 168 111. 589; Maher v. Al- 141 111. 337. 
 
 9—163 111. 165; 130 N. Y. 29.
 
 TRUSTS AND TRUSTEES 243 
 
 would lead to a result contrary to the will, or work injustice 
 among the beneficiaries, or defeat the testator's scheme for the 
 disposal of his property. The rule, as applied in all reported 
 cases, recognizes the limitation, that when some of the trusts 
 in a will are legal and some illegal, if they are so connected 
 together as to constitute an entire scheme, so that the presumed 
 wishes of the testator would be defeated if one portion was 
 retained and other portions rejected, or if manifest injustice 
 would result from such construction to the beneficiaries, or 
 some of them, then all the trusts must be construed together, 
 and all must be held illegal and must fall. "^^' 
 
 310. Equitable conversion. The universal rule as laid down 
 by text writers, and ado^jted in Illinois by numerous authori- 
 ties, is taken from the leading case of Fletcher v. Ashburner, 
 it is as follows :^i "Nothing is better established than 
 this principle, that money directed to be employed in 
 the purchase of land, and land directed to be sold and turned 
 into money, are to be considered as that species of property 
 into which they are directed to be converted ; and this in what- 
 ever manner the direction is given, whether by will or by way 
 of contract, marriage articles, settlements or otherwise; and 
 whether the money is actually deposited or only covenanted to 
 be paid, whether the land is actually conveyed or only agreed 
 to be conveyed, the owner of the fund or the contracting par- 
 ties may make land money, or money land.^- A total 
 failure of the objects of conversion prevents any conversion 
 from taking place, whether under deed or will.^^ But if there is 
 a partial failure, the heirs usually take, and not the personal 
 representatives of the testator; and in such case the heirs take 
 as money, and the law of the domicile will govern.^'* But 
 
 10— Hale V. Hale, 125 111. 399 
 Schaefer v. Scliaefer, 141 111. 337 
 Post V. Roherbach, 142 111. 600 
 Lawrence v. Smith, 163 111. 164 
 
 111. 103; .Jennings v. Smith, 29 111. 
 120; Ridgeway v. Underwood, 67 
 111. 419; Wright v. Marshall, 72 111. 
 585. 
 
 Pitzel V. Schneidei', 216 111. 87. 13 — Roper on Legacies, 542. 
 
 11—1 Bro. C. C. 497. 14— Richards v. Miller, 62 111. 
 
 12— Baker v. Copenbarger, 15 423.
 
 244 THE LAW OF ESTATES. 
 
 in some cases, under the construction given to wills, in order 
 to arrive at the intention of the testator, the personal repre- 
 sentative takes, and if he does it is in money. The rule is laid 
 down by Jarman on Wills :^ ^ " Every conversion, however ab- 
 solute, will be deemed to be a conversion for the purposes of the 
 will only, unless the testator distinctly indicates a different in- 
 tention. ' ' Therefore whoever takes property under a will, takes 
 it in the character impressed upon it by the testator.^ *^ Where 
 the will directs that the property be converted, land into money 
 or money into land, the conversion is in equity regarded as made, 
 the direction being imperative.^''' But where the will gives a mere 
 option, a mere power to be exercised at discretion, the conver- 
 sion is regarded as made only when it is made in fact.^* So 
 where a mere direction to sell is not acted upon, and no trust 
 is created under the will, it does not amount to a conversion.^^ 
 Equity never requires a useless act.^*^ Land required to be re- 
 duced to money is regarded as personal property.^i Thus, a will 
 giving to testator's wife all his personalty and one-third of his 
 real estate, and giving to aliens the rest ^nd residue of his 
 "estate," making his wife executrix, and giving her full power 
 to take possession of, manage and control his estate, with power 
 to sell and convey, divide, and distribute it, ' ' but the proceeds ta 
 be by her given to my legatees," works an equitable conversion 
 of the two-thirds of the real estate.22 A testator provided by 
 
 15 — 1 Jarman on Wills, Sec. 558. 22 — Greenwood v. Greenwood, 
 
 16 — Strode v. McCormick, 158 178 111. 387. In this case it was 
 
 111. 142; Burback v. Burback, 217 said: In order to understand the 
 
 111. 547. testator's circumstances, the court, 
 
 17 — Davenport v. Kirkpatrick, in construing a clause of a will 
 
 156 111. 169; Ducker v. Burnham, disposing of the residue of the tes- 
 
 146 111. 9. tator's estate to the children of 
 
 18 — Ducker v. Burnham, 146 111. his deceased brother, may receive 
 
 9. evidence as to the character of the 
 
 19 — Gill V. G. T. M. Co., 92 111. testator's property, that the chil- 
 
 254. dren of the deceased brother were 
 
 20 — Higgins v. Lansing, 154 111. non-resident aliens, and that the 
 
 301. testator knew that fact. It will 
 
 21 — Nevitt V. Woodburn, 175 111. be presumed the testator knew the 
 
 376. law of the State disqualifying nc«ii-
 
 TRUSTS AND TRUSTEES. 245 
 
 his will, that one of his children should receive a 
 certain sum as compensation for services rendered tes- 
 tator, and that he might have the privilege of tak- 
 ing a certain tract of testator's land therefor at the 
 appraisement. The remainder of his property he divided 
 among his children equally, providing, however, that any debts 
 owing the estate by any child, should be deducted from such 
 child's share. The will further recited, that it was the desire 
 of the testator, that, if the heirs could agree, they should divide 
 the real estate, but, in case they could not, the executor was 
 authorized to sell the lands. A creditor of one of the heirs, 
 after the testator's death, levied on and sold the interest of the 
 heir in the testator's lands. The heirs never agreed to divide 
 the land. Held, that by the will there was an equitable con- 
 version of real into personal property, and the debtor heir 
 took no interest in the real estate, and hence the execution 
 purchaser acquired no title which would support partition. ^3 
 Therefore it is the established rule in Illinois, where land is 
 converted into money, under the provisions of a will, to be 
 divided among the legatees, it must be treated as a devise of 
 money, and not land.^-* Equity has power, in a proper case, to 
 authorize a conversion of trust property contrary to the provi- 
 sions of the will creating the trust.^s 
 
 311. Relation of creditors and remaindermen to trust. It 
 
 is said in Kami Moll v. Gardner -."^^ It is understood 
 by the law, that when a testator conveys land, by will, to a 
 trustee and imposes active duties upon him, such as the care 
 and management of the property and the paying of the income 
 
 resident aliens from taking real or holding title to land in Illi- 
 
 estate, and that he did not intend nois. 
 
 to die intestate as to a part of 23 — Robins v, Botkin, 181 III. 
 
 the property. The purpose of the 182. 
 
 act disqualifying aliens as dev- 24 — English v. Cooper, 182 III. 
 
 isees was not to inhibit them 203. 
 
 from becoming beneficiaries under 25 — Johnson v. Buck, 220 111. 
 
 wills, but merely from acquiring 226. 
 
 26—214 III. 248.
 
 246 THE LAW OF ESTATES. 
 
 to certain persons, such a will creates an active trust and the 
 legal title to the property vests in the trustee; and, judgment 
 creditors can obtain no lien, as against any of the remainder- 
 men, so long as the legal title remains in the trus- 
 tee.2'^ ^j2(j if the language of the will is such that 
 the trustee at the time of the termination of the trust, is 
 given the power of sale and disposition of the property and is 
 to divide the proceeds among certain persons therein named, 
 such disposition may be made, notwithstanding the fact that 
 there are judgment creditors who have claims against the per- 
 sons named in the will as remaindermen. This is the reason 
 that such remaindermen have no vested title, as the legal title 
 is in the trustee with power to sell.^^ If the bequest is treated 
 as a gift the remainderman can be reached by creditors.^^ 
 
 312. Trust will not be defeated if beneficiary is trustee for 
 himself and others. In Summers v. Higlcy.^^ A will 
 devising to testator's wife all of his estate, "to be used by 
 her for her own support and for the maintenance and education 
 of my children," with directions, as executrix, to bestow sums 
 of money upon the testator's father if he became infirm and 
 dependent. Held, such devise did not pass a fee, but did create 
 a trust. The court saying: "It is clear to our minds that by 
 the first provision of the will, which devises the property to 
 the widow, the testator intended to devise, and did devise the 
 property to her in trust for certain specified uses — that is, for 
 her own support and for the maintenance and education of 
 their children named in the will. The fact that she is a bene- 
 ficiary as well as trustee does not defeat the trust.^i 
 
 27 — King V. King, 168 111. 273. under section of statute in ques- 
 
 28— Binns v. La Forge, 191 111. tion. Kurd's R. S. of III. 1905, p. 
 
 598; section 49, chapter 22, Starr 233; Lawrence v. Lawrence, 181 
 
 & Curtis Annotated Statutes of 111. 248. 
 
 Illinois, with Jones & Addington's 29 — Barita v. Boyd, 118 111. 190; 
 
 Supplements thereto. Vol. 1, p. Railsback v. Lovejoy, 46 111. 446. 
 
 49; Vol. 4, p. 106; Vol. 5, p. 54, 30—191 HI. 193. 
 
 and cases cited in each volume 31 — 1 Perry on Trusts, Sec. 59.
 
 TRUSTS AND TRUSTEES 247 
 
 The property is given to her to be used by her for 
 those purposes. It seems to us, the language is as 
 plain as it would have been had it stated in express terms that 
 the property was given to her in trust, and then had stated 
 the uses to which it was to be devoted.^^ ^^^j where trustees are 
 the "legatees," title to share of residue vests by will in them 
 during period of trust.^^ 
 
 32— Bennett v. Bennett, 217 111. Society v. Mead, 131 111. 338; Craw- 
 440. ford V. Cemetery Association, 218 
 
 33 — Woman's Union Missionary 111. 407.
 
 CHAPTER XIII 
 
 TRUSTS AND TRUSTEES— CONTINUED 
 
 Sec. 
 
 313. Co-trustees are collective 
 
 trustees. 
 
 314. Trustees cannot delegate 
 
 their powers, but may em- 
 ploy attorneys or agents. 
 
 315. Trustee accepting the trust 
 
 cannot renounce the same to 
 free himself from liability. 
 He must seek his discharge 
 by accounting, either to the 
 cestui que trust, to the court 
 appointing him, or take his 
 chance of being called to ac- 
 count by any court of equi- 
 ty having jurisdiction. 
 
 316. Power of trustees coupled 
 
 with an interest. 
 
 317. The trustee's title to land. 
 
 318. Conveyance from trustees or 
 
 their heirs necessary to re- 
 vest title. 
 
 319. Trustee must defend and pro- 
 
 tect his title. 
 
 320. The same rules applied in 
 
 equitable and legal estates. 
 
 321. Trustee cannot create lien on 
 
 assets he holds. 
 
 Sec. 
 
 322. Reasonable care and dili- 
 
 gence exacted of trustee. 
 
 323. The trustee must account for 
 
 all trust property coming to 
 his hands. 
 
 324. Where trustee is guilty of 
 
 fraud or willful default. 
 
 325. Tracing and restoring trust 
 
 fund. 
 
 326. Duty of trustee to collect as- 
 
 sets of trust estate. 
 
 327. Trustee must keep clear and 
 
 accurate accounts. 
 
 328. "Where trustees act in good 
 
 faith. 
 323. Trustee cannot purchase at 
 his own sale. 
 
 330. Trustee cannot make profit 
 
 from trust property. 
 
 331. What investments of the trust 
 
 fund should be made. 
 
 332. What considered improper in- 
 
 vestments of trust funds. 
 
 333. Intermeddlers. 
 
 334. Bonds of trustees. 
 
 335. Compensation of trustees. 
 
 Sec. 313. Co-trustees are collective trustees. In law there 
 is no such person known as an acting trustee apart from his 
 co-trustee; all who accept the office are acting trustees. If 
 any one trustee who has accepted, refuses to join in the pro- 
 posed act, or is incapable, the others cannot proceed without 
 
 248
 
 TRUSTS AND TRUSTEES— CONTINUED. 249 
 
 him, but an application must be made to court.^* In Casey v. 
 Canavan,^^ it is held : Where three trustees are charged with the 
 duty of selling real estate and distributing the proceeds in 
 stated proportions, they have no right to permit one of the 
 trustees to alone receive certain shares and distribute them. In 
 the case of Mannhardt v. Illinois Staats Zeitung Co?^ 
 it is held: Where a stockholder in a corporation created 
 a trust of his stock therein and appointed two persons 
 to act jointly as trustees to vote the same neither of such trus- 
 tees could assume to vote such stock contrary to the direction 
 of the other, either alone or jointly with any stockholder other 
 than his co-trustee. In Waterman v. Alden?'^ Wliere 
 there were co-trustees, it was held: It is not necessary in 
 the transaction of ordinary business that all be present and 
 participate in every act. But in the case of a public trust, cre- 
 ated for a particular charitable purpose, as for school, hos- 
 pital, almshouse, church or other institution, where there are 
 several trustees, the act of a majority is held to be the act of 
 the whole number; but the act of the majority must be strictly 
 within the sphere of their power and duty.^^ And this power 
 of the majority may grow out of the administration of a chari- 
 table trust, where the court appoints the trustees, and they ad- 
 minister the trust with the assistance of the court to carry out 
 the intention of the donor.^^ 
 
 314. Trustees cannot delegate their powers or duties, but 
 may employ attorneys and agents. If a person takes upon 
 himself the management of property, he has no right to im- 
 pose that duty on others, and if he does he will be responsible 
 to the cestui que trust, to whom he owes the duty.^*^ Whoever 
 takes property under a will, takes it in the character impressed 
 
 34 — 1 Perry on Trusts, 5th ed., - 38 — 1 Perry on Trusts, section 
 Sec. 411. 413. 
 
 35—93 111. App. 538. 39—1 Perry on Trusts, Sees. 
 
 36—90 III. App. 315. 731, 733, 734, 735. 
 
 37—42 111. App. 294. 40—1 Perry on Trusts, section 
 
 402.
 
 250 THE LAW OF ESTATES. 
 
 upon it by the testator."* ^ An executor cannot delegate to an- 
 other the execution of a power of sale committed to him by the 
 will in trust and confidence.^^ ^ power of sale given to two 
 executors both of whom qualify and take upon themselves the 
 burden of the execution of the will, cannot be delegated by one 
 to the other ; and an agreement for a sale entered into by one co- 
 executor for himself and the other is not valid, and cannot be 
 specifically enforced.^^ If a trust is of a discretionary nature, the 
 trustee will be responsible for all the mischievous consequences 
 of the delegation, and the exercise of the discretion will be 
 absolutely void in the substitute.^'* The general doctrine, 
 with its limitations, is well stated by Perry in his 
 work on Trusts."*^ That author says: "If an agent is 
 employed by a trustee, and thus comes into possession of the 
 property, he will be accountable to his employer, and will not 
 be responsible as a constructive trustee. But if an agent 
 should act fraudulently or coUusively, he might be made a 
 trustee by construction, and as such accountable to the cestui 
 que trust. "■*° *'If an agent secures any benefit from 
 the breach "of the trust, he will be responsible for the 
 property to the party entitled to the beneficial interest. "**''' 
 "If they mix themselves up with a breach of trust, 
 and by an abuse of their powers as simple agents obtain 
 possession of the trust property, the cestui que trust may pro- 
 ceed against them as trustees de son tort, or constructive trus- 
 tees. ' '48 The rule with its limitations, as stated by these authors, 
 is fully recognized by the court in Davis v. Harhness.^^ "So it is 
 
 41— Burbach v. Burbach, 217 111. 589; Wilson v. Mason, 158 111. 313; 
 
 547. Lehman v. Rothbarth, 111 111. 189- 
 
 42 — 2 Williams on Executors, 195. 
 
 Am. notes, page 133, marg. page 45 — 1 Perry on Trusts, Sec. 246. 
 
 815; 7 Am. & Eng. Ency. of Law, 46—1 Perry on Trusts, Sec. 247. 
 
 pp. 300, 301, and cases cited in 47 — 2 Perry on Trusts, Sees. 813, 
 
 notes. 907. 
 
 43 — Sebastian v. Johnson, 78 111. 48 — Lewin on Trusts, 7th Eng. 
 
 282; Wilson v. Mason, 158 111. 313. ed. 175, 436, 550. 
 
 44— Singleton v. Scctt, 11 Iowa 49—1 Gilm. (111.) 173.
 
 TRUSTS AND TRUSTEES— CONTINUED. 251 
 
 held in a contract between a firm and an attorney, where the lat- 
 ter was made trustee for the prosecution of certain litigation and 
 distribution of proceeds, which directed him first to pay the costs 
 and expenses of the litigation. One who loaned such attorney 
 several sums of money to cover such expenses, on the latter 's 
 express promise to pay the same, with 6 per cent interest from 
 the date of advancement, was held to be entitled to a decree 
 against such attorney conjointly with the members of such 
 firm for the sums advanced with interest from the date of 
 advancement.^*^ It will thus be seen, the trustee acting at times 
 through attorney or agent, and giving instructions to the same 
 how to act, cannot be said to be a delegation of the trust.^^i 
 
 315. A trustee accepting the trust cannot renounce the 
 same to free himself from liability. He must seek his dis- 
 charge by accounting, either to the cestui que trust, to the 
 court appointing him, or take the chance of being called to 
 account by any court of equity having jurisdiction. A trustee 
 may be appointed by will, deed, or other w-ays, without the 
 order of any court and without suit pending, and his powers 
 as a rule, are governed by the instrument creating the trust, 
 and not by a decree of court. Property in his possession as 
 trustee is not in custodia legis, as in the case of receivers or 
 other officers of the law or of the courts. But if the trustee 
 acting under a will or deed or without the order of any court 
 has been derelict in his duty, has failed to keep proper books 
 of account, or has without sufficient warrant depleted the trust 
 fund, he can be required to account, ajid can be removed if 
 necessary by any court of equity- obtaining jurisdiction on the 
 complaint of interested parties.^- A trustee having accepted 
 a trust, can not renounce it, he is bound to discharge its duties, 
 and he cannot free himself from liability by mere renuncia- 
 tion. He must be discharged by a court of equity after he 
 
 50— McGillis V. Hogan, 190 111. 52— Nevitt v. Woodburn, 175 111. 
 176. 376; Same v. Same, 190 111. 289. 
 
 51 — 1 Perry on Trusts, 5th ed., 
 Sec. 409.
 
 252 THE LAW OF ESTATES. 
 
 has accounted for the trust property or the trust funds, or by 
 a special power in the instrument of trust, or by the consent 
 of all parties interested in the estate, if they are in sui juris. 
 If all parties are not sui juris, recourse must be had to a court 
 of equity in the absence of any provisions in the instrument 
 of trust.°2 Even though a trustee give a bond for the due execu- 
 tion of the trust, and in a suit upon the bond is obliged to pay the 
 full amount, he is not discharged from the trust, nor does the 
 trust property properly vest in him beneficially. He is still a trus- 
 tee and must account for the trust property and all the income 
 and profits to the cestui que trust, or to the court from which 
 he received his appointment, or to a court of equity in a 
 proper proceeding in which an accounting with the trustee is 
 sought. ^^ Though a trustee may be discharged by transfer or 
 settlement, such transfer or paper of settlement, may be attacked 
 and impeached on the ground of fraud, accident or mistake.^^ 
 In the latter case it is held : A release by a cestui que trust will 
 not be binding unless he is first made fully acquainted with his 
 rights, and the nature and full extent of the liabilities of the 
 trustee. Any concealment, misrepresentations, or other fraudu- 
 lent conduct, on the part of the trustee, will vitiate such a re- 
 lease.^^ 
 
 316. Power of trustees coupled with interest. Whoever 
 takes property under a will takes it in the character impressed 
 upon it by the testator. Thus, a trustee authorized to sell lands 
 and to hold and possess them for the purposes of the trust has a 
 power coupled with an interest; and where the will gives power 
 to sell and convey, execute deed and invest the proceeds, and to 
 control and manage the estate devised, and use it for the support 
 
 53—1 Perry on Trusts, 5th ed.,- 55—2 Perry on Trusts, Sees. 922, 
 
 Sec. 401; Switzer v. Skiles, 3 Gill' 923; Casey v. Casey, 14 111. 112; 
 
 (111.) 529; Nevitt v. Woodburn, Dennis v. McCagg, 32 111. 429; 
 
 190 111. 289. Uhlich v. Muhlke, 51 111. 499; 
 
 54 — 1 Perry on Trusts, Sees. Ward v. Armstrong, 84 111. 151; 
 
 209, 401; Fisk v. Seeberger, 154 Jones v. Lloyd, 117 111. 597. 
 
 111. 30; White v. Sherman, 168 111. 56— Same v. Same, 117 111. 597. 
 611.
 
 TRUSTS AND TRUSTEES— CONTINUED. 253 
 
 and education of the children of the testator, as the trustee shall 
 deem best ; in such case the trustee may sell, either by public 
 auction or by private contract, as may be most advantageous to 
 the trust estate. He may convey in satisfaction of a debt, or sell 
 for cash and pay the debt. And under a state of facts, consistent 
 with the acts of a trustee, and of the quantity of property belong- 
 ing to an estate, of all of which the trustee had full knowledge, 
 it will be presumed that what was done by the trustee clothed 
 with such power and interest, was for the best interests of the 
 estate, and made the remainder of the estate more valuable.^''' 
 Where trustees were authorized by the will to care for, rent and 
 manage the real estate, they have power under the direction of a 
 court of equity to make a 99 year lease of certain of the real 
 estate, where such course is consented to by all adult parties in 
 interest, and is clearly for the best interests of the estate and the 
 beneficiaries.^^ This case follows Marsh v. Reed, where it was 
 held,^^ a court of equity has jurisdiction of a bill to authorize a 
 trustee under a will to execute a lease of the estate for a longer 
 period than that authorized by the testator. The testator granting 
 the trustee power to lease the property in question "provided, 
 that no lease be for a longer term than 10 years. ' ' Upon the show- 
 ing made by the bill it appeared the trustee could lease the prop- 
 erty for a period of 99 years at $65,000 a year and charges, and 
 that all the adult beneficiaries were desirous that the application 
 to the court for power to make such lease be granted. A decree 
 was therefore entered granting power to trustee to make such 
 lease; the Supreme Court holding, that a decree granting such 
 application was proper. The equitable principle applied in this 
 class of cases arises, where the directions of a donor as to the 
 manner of executing the trust are found to be defective and un- 
 wise, it is held as ill Curtis v. Brown :^^ "Exigencies 
 often arise not contemplated by the party creating the 
 
 57— White v. Glover, 59 111. 459; 58— Denegre v. Walker, 214 111. 
 
 Taylor v. Walson, 177 111. 439; Oil- 113. 
 
 ver V. Oliver, 179 111. 9; Casey v. 59—184 111. 263. 
 Canovan, 93 111. App. 538.
 
 254 THE LAW OF ESTATES. 
 
 trust, and which, had they been anticipated, would undoubt- 
 edly have been provided for. ' ' Where the aid of a court of chan- 
 cery must be invoked to grant relief, imperatively required, the 
 court must, as far as may be, occupy the place of the party cre- 
 ating the trust, and do with the fund what he would have dic- 
 tated had he anticipated the emergency, "^i Equity has 
 power, in a proper case, to authorize a conversion of 
 trust property contrary to the provisions of the will 
 creating the trust. Where a will requests a majority of the 
 testator's children to sign a written request to the trustee to sell 
 land, neither the trustee nor the party to whom the sale was 
 made, though they are both children of the testator, should be 
 counted in determining whether a majority of the children 
 signed. A sale by a trustee in order to be valid and binding 
 must be conducted fair to all beneficiaries.*^^ 
 
 317. The trustee's title to land. Where the purpose of the 
 trust requires the trustee to take a fee, as where he is required 
 to convey a fee, the fee passes.^^ Where several trusts are created 
 in the same instrument some of which will be executed by the 
 Statute of Uses, and others will not, the trustee takes the legal 
 title.*^^ Where property is devised to trustees with powder to pay 
 over the interest and principal to the cestui que trust, his wife 
 and children, or any of them, at the trustee's discretion, so that 
 the family may at all times have a comfortable support, the 
 trustees take the fee in trust during the continuance of the 
 trust.^^ A trustee empowered to convey land to the objects of 
 the settlor's boimty, acquires whatever estate, even to a fee sim- 
 ple, is needed to enable him to accomplish the purpose of 
 the trust. ^"^ Or when he has active duties to perform 
 
 60—29 111. 201-230. English, 106 111. 425; Ebey v. Ad- 
 
 61— Garvin v. Curtis, 171 111. ams, 135 III. 80; McDale v. Shep- 
 
 640; Johns v. Johns, 172 111. 472; ardson, 53 111. App. 513. 
 Johnson v. Buck, 220 111. 226. 64— Silverman v. Kristufek, 162 
 
 62— Fredrick v. Fredrick, 219 111. 222. 
 111. 568; Johnson v. Buck, 220 111. 6.5— King v. King, 168 111. 273. 
 226. 66 — Lawrence v. Lawrence, 181 
 
 63— Preacher's Aid Society v. 111. 248; Kann Moll v. Gardner,
 
 TRUSTS AND TRUSTEES— CONTINUED. 255 
 
 he takes the legal estate. ^'^ If a trustee is required 
 to collect and pay over rents for an indefinite period, 
 he will take the fee; so he takes the fee where he is directed to 
 pay debts or legacies or a specific sum in gross. And it makes 
 no dift'ereuce that upon a final administration the personal estate 
 may prove sufficient to liquidate all demands; it is enough that 
 the requirements of the will are absolute and the executor con- 
 ceivably might have to resort to the land for his own protection. 
 Where there are no restrictive words, a power to sell is to be 
 referred to the trustee's interest or estate in the land, and his 
 estate will be construed as co-extensive with his duty to sell, 
 should it become necessary, which would require a fee. The trus- 
 tee will not take a fee where the exigencies of the trust may be 
 satisfied with a less estate.^^ "If a trustee is required to grant 
 a fee, the fee must be conferred upon him.<^^ Where the trustee 
 is required to convey the title to the beneficiaries on the happen- 
 ing of a certain event, the trust is not a passive or dry trust and 
 the Statute of Uses does not operate to vest the title in the usee."*^ 
 The legal title involved rested in the trustee for certain pur- 
 poses and upon the death of the beneficiary the title did not 
 remain in abeyance.''^^ Courts of equity may be vested with 
 power to appoint a successor to a trustee in whom title to land 
 may rest, but such title cannot descend to and vest in a court 
 of equity. The title held by the trustee in this instance, upon 
 her death passed to her legal heirs, subject to the trust. ^^ Such 
 heirs were necessary parties to any proceeding instituted for 
 the purpose of divesting them of such title."^^ 
 
 214 111. 248; Chicago Terminal Preacher's Aid Society v. England, 
 
 Transfer Co. v. Winslow, 216 111. 106 111. 425. 
 
 166; Burbach v. Burbach, 217 111. 70— Kirkland v. Cox, 94 111. 400; 
 
 547. Preacher's Aid Society v. England, 
 
 67— Hale v. Hale, 146 111. 227. 106 111. 425. 
 
 68— West V. Fitz, 109 111. 425; 71— Preacher's Aid Society v. 
 
 Lawrence v. Lawrence, 181 111. England, 106 111. 425. 
 
 248-251-252. 72—27 Am. & Eng. Ency. of 
 
 69 — Kirkland v. Cox, 94 111. 400; Law, 92, and cases cited in notes. 
 
 73— Sidles V. Switzer, 11 111. 533.
 
 256 THE LAW OF ESTATES. 
 
 318. Conveyance from trustees or their heirs necessary to 
 revest title. Where the legal title is vested in trustees, nothing 
 short of a re-conveyance can revest it in the grantor ; it does not 
 revest by operation of law upon accomplishment of the purpose 
 of the trust. '^^ A trustee holding the title to land may convey 
 to a third person at the request of the cestui que trust, and thus 
 pass title.'^^ 
 
 319. Trustee must defend and protect his title. A trustee 
 must defend and protect the title he holds ; also he must perform 
 all the duties of a legal holder of the legal estate.'^^ Courts will 
 imply a power or trust and put itself in the place of a trustee, 
 for the party beneficially interested, or the cestui que trust.''^''' 
 It is the duty of the trustee to pay taxes. If discretionary 
 under trust instrument, the court will construe it into a duty to 
 be executed; and the income of an estate must as a general rule 
 bear the expense of administering it.'^^ 
 
 320. The same rules applied in equitable and legal estates. 
 It is a fundamental principle that equitable estates are governed 
 by the same rules as legal estates, otherwise inextricable confu- 
 sion would ensue. "^ In the cases cited and those following, the 
 doctrine being, courts of equity will not permit limitations of 
 future eiquitable interests to transcend those of legal interests, 
 which are upheld as executory devises and shifting and spring- 
 ing uses at law.^*^ 
 
 74— Vallett v. Bennett, 69 111. 76—1 Perry on Trusts, Sees. 326, 
 
 632; Kirkland v. Cox, 94 111. 400; 328, 473-476. 
 
 Hardin v. Osborne, 60 111. 93; Har- 77 — 1 Perry on Trusts, Sec. 331; 
 
 ris V. Connell, 80 111. 54; McNabb 2 Perry on Trusts, Sec. 527. 
 
 V. Young, 81 111. 11; Hobble v. 78— Butterbaugh's Appeal, 98 
 
 Ogden, 178 111. 357; Rogers v. Tu- Pa. St. 351. 
 
 ley, 144 111. 652. 79—1 Perry on Trusts, 357, 377, 
 
 75— Rogers v. Tuley, 144 111. 382, 383; Post v. Rohrbach, 142 
 
 652; Taylor v. Walson, 177 111. 111. 600; Hart v. Seymour, 147 111. 
 
 439; Fisher v. Fairbanks, 188 111. 598. 
 
 187. 80— Howe v. Hodge, 152 111. 
 
 252; Biglow v. Cady, 171 111. 229.
 
 TRUSTS AND TRUSTEES— CONTINUED. 257 
 
 321. Trustee cannot create a lien on assets he holds. 
 Where a trustee is called upon to account, he has in general, no 
 implied power to charge or create a lien on assets in his hands.^^ 
 And as a general rule he cannot set off an independent ordinary 
 debt due from the beneficiary, the debt and the trust liability 
 having to do with the trustee in different rights or capacities; 
 there is no mutuality between the trustee and the beneficiary.^^ 
 And imperfect information pertaining to the trust will be re- 
 garded as equivalent to concealment.^" 
 
 322. Reasonable care and diligence exacted of trustee. 
 
 Speaking generally, the law exacts from a trustee, a careful, 
 consistent, legal and honorable administration of the trust and 
 all matters relating and pertaining thereto. The courts seek the 
 highest and best ability in the person or corporation adminis- 
 tering a trust estate. Courts also exact the clearest perception 
 of the duties imposed and the strictest accounting of the trust 
 property and funds. This is particularly true as to executors, 
 administrators, guardians of infants and lunatics and conserva- 
 tors of the insane. Indeed, these fundamental relations, duties 
 and responsibilities, exacted from trustees, are for the safety of 
 personal and property rights and cannot be disregarded with 
 impunity ; they are the foundation upon which jurisprudence in 
 this regard must rest. These general principles thus announced 
 need no citation of authorities to uphold them, but such will ap- 
 pear as the law is applied to the duties pertaining to trusts and 
 trustees. A trustee is bound to discharge the duties of his trust 
 to the best of his skill and ability, with such care and diligence 
 as men fit to be entrusted with matters such as those of the trust 
 may fairly be expected to exercise in their own business of equal 
 importance.^* 
 
 81— Chicago Fire Place Co. v. 83— White v. Sherman, 168 111, 
 
 Tait, 58 111. App. 293. 606; Gibbons v. Hoag, 95 111. 45; 
 
 82 — Knowles v. Goodrich, 60 111. Henry County v. Drainage Co., 52 
 
 App. 506; Nevitt v. Woodburn, 190 111. 454. 
 
 111. 283; Mannhardt v. Illinois 84 — Waterman v. Alden, 144 111. 
 
 Staats Zeitung Co., 90 111. App. 90; Same v. Same, 42 111. App. 
 315. 
 
 17
 
 258 THE LAW OF ESTATES. 
 
 323. The trustee must account for all trust property coming 
 to his hands. This is the general rule whether the trustee is 
 appointed by court, created by operation of law, by voluntary 
 assignments, by deeds of trust or will or other instrument. In 
 all cases the judiciary must account for all the trust property 
 that comes to his hands, whether by purchase or otherwise, and 
 for all profits which may come to him by dealing with such trust 
 property, for all bonuses or gratuities given to him by strangers 
 for contracts made with him in relation to the trust property. 
 But equity goes to the extent of watching over these defined re- 
 lations of parties; it scrutinizes the undefined relations of 
 friendly habits of intercourse, personal reliance, and confidential 
 advice; and if advantage is taken of such relations to obtain an 
 unfair bargain, equity will set it aside or convert the offending 
 party into a trustee. Equity will not tolerate extortion, nor 
 money paid under duress or compulsion ; nor suffer a settlement 
 to stand that is not fair and equitable between the trustee and 
 the cestui que trust.^^ In Spades v. Barrett,^^ it is held: All 
 promises made and contracts entered into, where there is 
 duress of person may be avoided. Liberty and life are justly 
 dear to all men, and so is the exclusive right to possess, dis- 
 pose of and protect from destruction our property. Thus, 
 if a party has in his possession goods or other property, belong- 
 ing to another, and refuses to deliver such property to the other, 
 unless the latter pays him a sum of money which he has no right 
 to receive, and, in order to obtain possession of his property, he 
 pays that sum, the money so paid, is a payment made by com- 
 pulsion and may be recovered back.^'^ So an action will lie to 
 recover money wrongfully exacted by a corporation as a con- 
 dition permitting a transfer of stock.^^ And where there was 
 
 294; Perrin v. Lepper, 72 Mich. 86—57 111. 289. 
 
 454. 87 — Shaw v. Woodcock, 7 B. & 
 
 85—1 Perry on Trusts, Sees. 209, C. 73; Ashley v. Reynolds, 2 
 
 210; Spaids v. Barrett, 57 111. 289; Strange, 916; Harmony v. Bing- 
 
 Lehman v. Rothbarth, 111 III. 185; ham, 12 N. Y. 109-116. 
 
 Same v. Same, 159 111. 270. 88- Cobb v. Charter, 32 Conn. 
 
 364-366.
 
 TRUSTS AND TRUSTEES— CONTINUED. 259 
 
 a settlement between parties and receipt passed in full, the ref- 
 eree found that the plaintiff forced the defendant into the set- 
 tlement against his will and accord by taking advantage of his 
 pecuniary necessities. In Vyne v. Glen,^'-^ the court said: "It 
 Is idle to say that such a settlement was free and voluntary, 
 and that it should be sustained." The rule is laid down by 
 Story in his Equity Jurisprudence, section 523: "But if there 
 has been any mistake, or omission, or accident, or fraud, 
 or undue advantage, by which the account stated is in truth 
 vitiated, and the balance is incorrectly fixed, a court of 
 equity will not suffer it to be conclusive upon the parties, but 
 will allow it to be opened and re-examined. In some cases of 
 gross fraud, or gross mistake, or undue advantage or imposition, 
 made palpable to the court, it will direct the whole account to 
 be opened and taken de novo."^*^ A settlement pressed upon 
 wards, about the time of their becoming of age, by one standing 
 in loco parentis, and claiming to represent their mother and law- 
 ful guardian, from which the latter is forcibly excluded, should 
 not be sustained, except so far as it is just and fair to them. 
 If based chiefly on improper charges against them, they should 
 not be concluded by it.^^ 
 
 324. Where trustee is guilty of fraud or wilful default. 
 An abuse of trust can confer no right on him who abuses it, or 
 any one claiming in privity mth him.^^ In Butler v. Butler^^ 
 the evidence of record shows the trust funds were invested by 
 the trustee, in the opening and operating of a coal mine; with- 
 out authority in the trustee so to do, given by the instrument 
 under which the trust was originally created. The court 
 holding such investment to be a conversion of the trust 
 fund without authority, amounting to an abuse of the trust. On 
 page 179 of the opinion, it is said: "Appellant is chargeable 
 
 89—41 Mich. 112. 111. 185; Same v. Same, 159 111. 
 
 90— Story's Eq. Jur., Sees. 523, 270. 
 848; Spalds v. Barrett, 57 111. 289; 92— Bush v. Blanchard, 19 111. 
 
 Pomeroy's Eq. Jur., Sec. 948. 31; Bret v. Yeaton, 101 111. 242. 
 
 91— Lehman v. Rothbarth, 111 93—164 111. 171.
 
 260 THE LAW OF ESTATES. 
 
 with notice of the trust and of the rights, interest and equities 
 of appellees in the land and mining property, and it is the set- 
 tled doctrine of courts of chancery that cestui que trusts may 
 pursue the proceeds of the trust property and charge with the 
 original trust any property in which they may be invested, as 
 against all who have actual or presumptive notice of the trust; 
 and the cestui que trust may elect to follow the funds into the 
 new investment, or to hold the trustee personally liable.^* 
 
 325. Tracing and restoring trust fund. In Waodhouse v. 
 Crandall, the court cites the following rule from Pomeroy's 
 Equity Jurisprudence.^^ "If the trust fimd can be traced 
 and identified, the cest^(i que trust has a right to it and to the 
 aid of a court of equity to reach it and compel its trans- 
 fer to him. His right will not be affected by any change in 
 the form of the trust property by the trustee, provided that the 
 fund can be identified and is not so mixed up with other moneys 
 or property that it can no longer be specifically separated. ' ' The 
 same author concerning this rule says: "This universal rule 
 forms the protection and safeguard of the rights of the bene- 
 ficiaries in all kinds of trusts. It enables them to follow trust 
 property, — lands, chattels, funds or securities, and even of 
 money, — as long as it can be identified, into the hands of all sub- 
 sequent holders who are not in the position of bona fide pur- 
 chasers for value and without notice. It furnishes all those dis- 
 tinctively equitable remedies which are so much more efficient 
 in securing the beneficiary's rights than the mere pecuniary re- 
 coveries of the law. "^^ And it makes no difference on the 
 question of the identity that the fund was mingled with other 
 
 94 — 1 Perry on Trusts, Sees. 95 — 197 111. 104; Pomeroy's Eq. 
 
 470-471; 2 Story's Eq. Jur., Sec. Jur., Sees. 1048, 1058. 
 
 1262; 11 Am. & Eng. Ency. of 96— Union Nat'l Bk. v. Goetz, 
 
 Law, 837, note 2; Sholty v. Shol- 138 111. 127; Wetherell v. O'Brien, 
 
 ty, 140 111. 81; White v. Sherman, 140 111. 146; see also, where same 
 
 168 111. 603; Leonard v. Specht, rule was applied, School Trustees 
 
 180 111. 208; Reed, Murdock & Co, v. Kirwln, 25 111. 62; Kirby v. 
 
 v. Sheffy, 99 111. App. 189. Wilson, 98 111. 240.
 
 TRUSTS AND TRUSTEES— CONTINUED. 261 
 
 moneys of the bank; and where it was held that the iden- 
 tity of the fund is not destroyed and lost merely by being 
 mingled with other moneys of the trustee. In Woodliouse v. 
 Crandall,^'^ it is said: Equity lays a charge, in such a case, on 
 the funds into which the trust money is traced, and not on the 
 general estate of the trustee. The only question here is what 
 is a sufficient identification and the rule is, that if it can be 
 shown the money is in a specified place, equity will take out of 
 that place enough money to satisfy the trust. In this case, 
 we think the trust fund was traced and identified by legitimate 
 evidence and rules of law for ascertaining its identity. 
 
 326. Duty of trustee to collect assets of trust estate. Exec- 
 utors and trustees must promptly collect, especially when the 
 debt is on personal liability only, though the debtor is reputed 
 wealthy, it is no excuse for delay ; and mere solicitation without 
 suit for payment is insufficient.^^ Trustees in this regard are 
 held to the same diligence they should exercise as to their own 
 affairs.^^ In the case of Waterman v. Alden,^ it was estab- 
 lished by the evidence that the trustees prior to the bill filed 
 against them for accounting, were guilty of some negligence, 
 in and about the management of the trust property. First, they 
 wholly failed to keep proper account of the trust funds and 
 their dealings with the same. Second, one of the trustees gave 
 little or no attention to the business, being much of the time ab- 
 sent from the state. Third, general negligence was shown in 
 failing to promptly collect or secure claims due the estate. Among 
 the assets of the estate were certain notes, and a failure to use 
 proper diligence to collect these notes or the whole amount 
 thereof, is the basis upon which a lack of diligence on the part 
 
 97—197 111. 104— page 116. v. Norcott, 13 Beav. 336; Whitney 
 
 98 — Lawson v. Copeland, 2 B. v. Peddicord, 63 111. 250; Water- 
 
 C. C. 156; Bailey v. Gould, 4 Y. & man v. Alden, 144 111. 90. 
 
 C. 221; Lewin on Trusts, 290; 99— Lewin on Trusts, 294, 307; 
 
 Schouler on Executors, 267; Byrne Perry on Trusts, 266. 
 
 1—144 111. 90.
 
 262 THE LAW OP ESTATES. 
 
 of the trustees was claimed. The court held in that case : When 
 trustees to whom a testator devises his property in trust, con- 
 sisting of notes, among other things, neglects to take proper steps 
 to collect or secure the same, which might have been collected or 
 secured by proper care and diligence, whereby the debt evidenced 
 by said notes is lost, the trustees will be chargeable with the 
 amount of the loss from their neglect of duty. The fact that the 
 relation existing between the testator or payee of the notes and 
 their maker may have been such, that the former would if liv- 
 ing, rather lose the debt than press its connection, will furnish 
 no excuse for the trustees to neglect or fail to use all reasonable 
 diligence in the matter. The executors and the trustees being 
 the same persons, it is impossible that there should be an act 
 of fraud, or breach of duty by the executors, which is not con- 
 sented to and acquiesced in by the trustees. Suppose that other 
 persons had been the executors, and they had been guilty of the 
 conduct charged in this bill, causing the loss here complained of, 
 and these trustees, with full knowledge of that misconduct, had 
 not only consented, but themselves contributed thereto, would 
 there have been any doubt as to the power of a court of chancery 
 to charge the trustees, regardless of the liability of the execu- 
 tors, in the settlement of the estate in the County Court? Noth- 
 ing which may hereafter be done in the settlement of the estate 
 in the County Court can affect this question, and we are unable 
 to see why these complainants should be sent to that court for 
 the settlement of their rights. 
 
 327. Trustee must keep clear and accurate accaunts. A 
 
 trustee or executor is bound to keep clear, distinct and accurate 
 accounts. If he does not, all presumptions are against him, and 
 all obscurities and doubts are to be taken adversely to him. If 
 he enters these accounts in his private books, he is bound to pro- 
 duce the books, although such books contain his private accounts ; 
 and even if he enters the accounts of the trust in the books of the 
 firm of which he is a partner, the books must be produced. The 
 cestui que trust may enforce these rights against all persons act- 
 ing for, or claiming by, through, or under the trustee with no-
 
 TRUSTS AND TRUSTEES— CONTINUED. 263 
 
 tiee, or taking without value.^" The obligation of the trustee to 
 account is in no way affected by his disposition of the money; 
 the obligation results from the receipt of the trust funds.^** It 
 is a permanent dutj^ of trustees to have their accounts ready 
 and open for inspection. Courts will not tolerate an omission on 
 their part to keep accounts.^ The right to accounting is inci- 
 dental to the trust relation.^ The burden of accounting for the 
 assets of a trust estate is also upon the trustee.^ A settlement 
 of account means a general settlement of every pending trans- 
 action ; a settlement of a portion af an account is not in this sense 
 a settled account.^ 
 
 328. Where trustee acts in good faith. As has been stated 
 a trustee is bound to discharge the duties of his trust to the best 
 of his skill and ability, and with such care and diligence as men 
 fit to be intrusted with matters such as those of the trust, may 
 fairly be expected to exercise in their own business of equal im- 
 portance.^ And where the trustee has acted in good faith, he 
 will be held to account in equity only for what he has actually 
 received, not for what he might have received."^ Courts of equity 
 having power to do equity, generally allow the trustee, the actual 
 money paid out in good faith for the preservation of the trust 
 estate.* 
 
 329. Trustee cannot purchase at his own sale. If trustee 
 conveys property to himself, any one or more of the cestui que 
 
 la — 2 Perry on Trusts, 5th ed., 123; Diversey v. Jolmson, 93 111. 
 
 821; Chicago Mutual Indemnity 563. 
 Association v. Hunt, 127 111. 257. 5— Brula v. Setz, 5 111. App. 116; 
 
 lb — National Park Bank v. Diversey v. Johnson, 93 111. 563. 
 Halle, 41 111. App. 19. 6— Waterman v. Alden, 144 111. 
 
 2— Uhlin on Trusts, 277; Tif- 90; Lewin on Trusts, 294, 307; 
 
 fany & Bullard on Trusts, 704, Perry on Trusts, 266. 
 705, 706; Perry on Trusts, 911. 7— Van Buskirk v. Van Buskirk, 
 
 3 — Cochran v. Adams, 50 Mich. 148 111. 9; 2 Pomeroy's Eq. Jur. 
 
 16; Clark v. Pierce, 52 Mich. 157; 1058, and notes; Hill on Trustees, 
 
 Darrah v. Boyce, 62 Mich. 480; marg. p. 523. 
 Morrison v. Mayer, 63 Mich. 238. 8 — Baker v. Baker, 14 Wis. 131; 
 
 4 — Lehman v. Rothbarth, 159 111. Cook v. Gilmore, 133 111. 189. 
 270; Brula v. Setz, 5 111. App. 116,
 
 264 THE LAW OF ESTATES. 
 
 trust, may avoid the deed. The general rule being, "that the 
 trustee shall not take beneficially by gift or purchase from the 
 cestui que trust ; even though the supposed trustee and purchaser 
 is a mere intermeddler, and not a regularly recognized trustee. 
 The question is not whether there is fraud, in fact, the law 
 stamps the purchase by the trustee as fraudulent per se; and 
 to remove all temptation to collusion and prevent the necessity 
 of intricate inquiries, in which evil would often escape detection, 
 and the cost of which would be great, the law looks only to the 
 fact of the relation and purchase.^ In equity a trustee cannot 
 himself become the purchaser, either directly or indirectly, of 
 property intrusted to him to sell; if he attempts to purchase, 
 the sale, however fair or however covered, cannot stand.^° Nor 
 can a company of which the trustee is a member purchase ;^^ 
 and it makes no difference in equity whether the purchase is 
 in the name of the trustee or in the name of another for his 
 use.i2 Nor whether the sale is made with or without a decree of 
 court.13 ]s[or whether any fraud is in fact intended. But at 
 law, to invalidate a sale made by a person acting in a fiduciary 
 capacity on the ground that he became a purchaser, it must 
 appear that the sale was fraudulent.^^ There are exceptional 
 cases where a trustee might be permitted to use the trust funds 
 and take title from an outstanding holder of title, such as a 
 tax title creating a cloud on the title held by the trustee, but in 
 
 9 — 1 Perry on Trusts, 5th ed., Mutual Union Loan Association, 
 
 Sec. 195. 146 111. 283; Butler Paper Co. v. 
 
 10— Robbins v. Butler, 24 111. Robbins, 151 111. 588; White v. 
 
 387; Lockwood v. Mills, 39 111. Sherman, 168 111. 589; Penn v. 
 
 602; Kruse v. Steffens, 47 111. 112; Folger, 182 111. 76. 
 
 Phares v. Barbour, 49 111. 370; 11— Robbins v. Butler, 24 111. 
 
 Ogden V. Larrabee, 57 111. 389; 387. 
 
 Nelson v. Hayner, 66 111. 487; 12— Kruse v. Steffens, 47 111. 
 
 Harts V. Brown, 77 111. 226; Hig- 112. 
 
 gins V. Curtiss, 82 111. 28; Borders 13 — Ogden v. Larrabee, 57 111. 
 
 V. Murphy, 125 111. 577; Russell v. 577; Borders v. Murphy, 125 111. 
 
 Peyton, 4 111. App. 473; Tyler v. 577. 
 
 Sanborn, 128 111. 136; Ligger v. 14— Lockwood v. Mills, 39 III. 
 
 602.
 
 TRUSTS AND TRUSTEES— CONTINUED. 265 
 
 such case his purchase and every thing relating to the purchase 
 should be disclosed to the cestni que trust.^^ Or he might pur- 
 chase at a foreclosure sale where he holds the mortgage; but in 
 such case would be trustee of property purchased.^ ^ 
 
 330. Trustee cannot malie profit from trust property. 
 Whatever use the trustee may make of trust property, if profit 
 is derived, the law presumes such profit is for the benefit of the 
 cestui que trust; and will require the trustee to render account 
 thereof. He must account to estate for commissions received. 
 And it is not essential, that the estate has suffered a loss from 
 what he has done ; it is sufficient that the trustee has gained a 
 profit.i^ The profits to a trustee from insurance money col- 
 lected on his principal's property, for which he refused to ac- 
 count will be charged to him in accounting by the court.^^ 
 
 331. What investments of the trust funds should be made. 
 
 The law does not give to trustees the same fi-eedom of choice in 
 investments which may be exercised by prudent business men in 
 their own affairs. It is the settled rule in equity, in the absence 
 of express directions in the instrument creating the trust, or of 
 statutory permission, that trustees can not invest trust property 
 upon any mere personal security, nor upon the stocks, bonds, 
 or other securities of private business corporations. In England, 
 the rule of equity is, that the trustee should invest trust funds, 
 in real estate or public governmental British securities and 
 can only escape risk and liability by investing in real estate 
 securities, or in the public governmental securities of the British 
 government. In the United States, while the rules are certainly 
 not so stringent and invariable as in England, and while different 
 
 15 — ^Ward v. Armstrong, 84 111. 309; 27 Am. & Eng. Ency. of Law, 
 
 151, and cases cited in opinion. 187, 194, 196, and cases cited in 
 
 16 — Ogden v. Larrabee, 57 111. notes; 1 Perry on Trusts, Sec. 209; 
 
 577; Allen v. Jackson, 122 111. 2 Pomeroy's Eq. Jur., Sec, 1075; 
 
 567. Sholty v. Sholty, 140 111. 81; Glov- 
 
 17— White V. Sherman, 168 111. er v. Cayton, 145 111. 92; Hurd v. 
 
 611; Fish v. Seeberger, 154 111. Goodrich, 59 111. 450; Asay v. 
 
 30. Allen, 124 111. 391. 
 
 18— Hoyt V. Shepherd, 70 111.
 
 266 
 
 THE LAW OF ESTATES. 
 
 regulations may prevail to some extent in different states, based 
 partly upon statutory legislation, and partly upon the policy of 
 encouraging local enterprises, the same fundamental principle of 
 requiring permanent investments in real estate or government 
 securities is generally recognized by the courts ; at least all specu- 
 lative risks are forbidden.^^ Thus, the investment in speculative 
 railroad stocks are not within the limit of the correct rule of 
 equity.2'^ A trustee has no right to convert money into land, 
 
 19 — Pomeroy's Eq. Jur., Sec. 
 1070, et seq., and notes; Perry on 
 Trusts, Sees. 452, 454, 456, 459, 
 and cases cited in notes; Adair 
 V. Bremner, 74 N. Y. 539; King v. 
 Talbot, 40 N. Y. 76; Simmons v. 
 Oliver, 74 Wis. 633; Story's Eq. 
 Jur., Sees. 1273, 1278, and cases 
 cited in notes; Sholty v. Sholty, 
 140 111. 81; Butler v. Butler, 164 
 111. 171; White v. Sherman, 168 
 111. 589; Penn v. Folger, 182 111. 
 103. 
 
 20— White v. Sherman, 168 111. 
 603, the court gives in its opinion 
 the following well settled rules: 
 (1) When a trustee has in fact 
 converted trust funds to his own 
 use or without authority has in- 
 vested the trust funds in any 
 other property into which such 
 trust funds can be distinctly 
 traced, the cestui que trust has an 
 election either to follow the same 
 into the new investment, or to 
 hold the trustee personally liable 
 for the breach of trust. Support- 
 ing this doctrine: 2 Story's Eq. 
 Jur., Sees. 1262, 1263; Bret v. Yea- 
 ton. 101 111. 242. (2) And where 
 the trustee invests money in his 
 individual name, he commits a 
 breach of trust, which subjects 
 him to the same liability as if 
 there had been a wilful conver- 
 
 sion to his own use. Morris v. 
 Wallace, 3 Pa. St. 319; Stanley's 
 Appeal, 8 id. 431; McAlister v. 
 Commonweath, 30 id. 536; 2 
 Pomeroy's Eq. Jur., Sec. 1079, and 
 cases cited in notes; Gilbert v. 
 Welsch, 75 Ind. 557; Naltner v. 
 Dolan, 108 id. 500; De Jarnette v. 
 De Jarnette, 41 Ala. 708; 27 Am. 
 & Eng. Ency. of Law, 193, 196, and 
 cases cited. (3) The trustee may 
 not deposit trust funds in his own 
 name, for if he do so, he will be 
 held to a strict accountability for 
 the conversion. In such case a 
 strict accounting will be exacted 
 from the trustee. 27 Am. & Eng. 
 Ency. of Law, pp. 160, 163, and 
 case cited in notes; McDonnell v. 
 Harding, 7 Sim. 177; Williams v. 
 Williams, 55 Wis. 300; Massey v. 
 Banner, 1 Jacob & W. 241; Jen- 
 kins V. Walters, 8 G. & J. 218; 
 Brown v. Dunham, 11 Gray 42; 
 Summers v. Reynolds, 95 N. C. 
 404; Syme v. Badger, 92 id. 706. 
 (4) A trustee must act with dis- 
 cretion — speculative risks by him 
 being prohibited. He cannot in- 
 vest in stocks or bonds of private 
 corporations; the proper method 
 is for the trustee to seek direc- 
 tions of court as to investment of 
 trust funds, so that he may be 
 protected by the order of the
 
 TRUSTS AND TRUSTEES— CONTINUED. 267 
 
 or land into money at his pleasure, when not authorized ex- 
 pressly or impliedly so to do, in the instrument creating the 
 trust.2^ And in the absence of express authority by statute, or 
 the instrument creating the trust, he cannot invest the trust 
 funds in stocks, bonds or other securities of private corpora- 
 tions.22 A trustee appointed by court must select such securi- 
 ties for the investment of the funds of his trust as the court ap- 
 pointing him will approve.23 That the investment of the trust 
 funds in the individual name of the trustee is a breach of the 
 trust, which subjects the trustee to the same liability as a wilful 
 conversion.24 In Penn v. Folger, it is held,^^ the trustee can 
 not, without being guilty of conversion of funds invest in pri- 
 vate banking business. And it is held, even when the trustee 
 has unlimited discretion in the investment of trust funds he can- 
 not invest in securities not sanctioned by a court of equity.^^ 
 
 332. What considered improper investment of trust funds. 
 
 Trustees in the absence of power and authority in the will or 
 other instrument creating the trust must not invest the trust 
 funds in private bank stock; or in any private corporation; nor 
 employ trust funds in a private business or copartnership or in 
 
 court. White v. Sherman, 168 111. al bank. In the absence of spe- 
 
 589, and cases cited in that opln- cific directions by the settlor a 
 
 ion. trustee should invest trust funds 
 
 21 — Sholty V. Sholty, 140 111. in real estate or government se- 
 
 81. curities, or, if acting under the 
 
 22 — White v. Sherman, 168 111. direction of the court, in such se- 
 
 589. curities as it may approve, other- 
 
 28 — White v. Sherman, 168 111. M'ise he will not be protected 
 
 589. against loss. See also Hall v. Ir- 
 
 24— White v. Sherman, 168 111. v/in, 2 Gill (111.) 176; Nicoll v. 
 
 589; Penn v. Folger, 182 111. 103. Scott, 99 111. 529; Conklin v. Ed- 
 
 In this case it is held, an admin- gerton's Adm'r, 21 Wend. 430; 
 
 istrator with the will annexed who Perry on Trusts, 3d ed., Sec. 245; 
 
 holds national ban"R stock in trust Morris v. Joseph, 1 W. Va. 256; 
 
 is without authority, upon the sur- Piper v. Hoard, 107 N. Y. 73. 
 render of the charter of the bank, 25 — 182 111. 103. 
 to invest the trust funds in a 26 — Matlocks v. Modlton, 84 Me. 
 
 banking partnership which con- 545; Simmons v. Oliver, 74 Wis. 
 
 tinues the business of such nation- 633; Penn v, Folger, 182 111. 103.
 
 268 THE LAW OP ESTATES. 
 
 the payment of private or partnership debts.^' And where the 
 other partners have knowledge of the nature of the funds at the 
 time of such misappropriation, they are implicated in the breach 
 of trust, and become themselves, at the election of the cestui 
 que trust, his debtors; or even trustees of the fund, as having 
 connived at the violation. -^ And where the trustee invests trust 
 money in his individual name, he commits a breach of trust.^^ 
 Or if he deposits the trust funds in his own name, he is regarded 
 in equity as converting the trust funds to his own use.^o And 
 in case of gross delinquency a court of equity has power to 
 compound interest annually or at shorter periods, according to 
 the delinquency of a trustee.^^ 
 
 333. Intermeddlers. A person may become a trustee by 
 intermeddling with, or assuming the management of trust prop- 
 erty without authority. Such persons are treated as and called 
 trustees de son tort?'^ Sometimes administrators, with the will 
 annexed, appointed by the court to succeed an executor with pow- 
 ers defined by will, through mistake or otherwise, mix themselves 
 up with trust property and undertake to perform acts that do not 
 belong to the office of such administrator. When such do so, or 
 intermeddle with trust property they are treated as trustees de 
 son tort.^^ The doctrine laid down in Hall v. Irwin,^'^ has become 
 firmly fixed and settled in this state. ''That executors may act 
 in a double capacity: as executors, by virtue of their office, and 
 as agents or trustees under a warrant of attorney, — in which lat- 
 ter capacity, as in the case of a power given to sell land, if they 
 act, the trust imposed upon them is of a special and confidential 
 
 27— Penn v. Polger, 182 111. 76. 31— Matthewson v. Davis, 191 
 
 28— Emmerson v. Durand, 54 111. 399; Hurd v. Goodrich, 59 111. 
 
 Wis. Ill; Diirant v. Rogers, 87 450; Asay v. Allen, 124 111. 391. 
 
 111. 508; Renfrow v. Pearce. 68 111. 32_perry on Trusts, Sees. 245. 
 
 125; Penn v. Folger, 182 111. 76. 265, and cases cited. 
 29— Dennis v. McCagg, 32 111. 
 
 49, 33— Hall v. Irwin, 2 Gilm. (111.) 
 
 30— White v. Sherman, 168 111. 176; Nicoll v. Scott, 99 111. 529; 
 589; Hauk v. Van Ingen, 196 111. Penn v. Folger, 182 111. 76. 
 200. 34—2 Gilm. 176.
 
 TRUSTS AND TRUSTEES— CONTINUED. 269 
 
 character and cannot be delegated, and that it is only the powers 
 and duties of the executor, as such, resulting from the nature of 
 his office, which devolves upon an administrator with the will an- 
 nexed ; and not authority as trustee, — with a power to sell land, — 
 which is a personal trust or confidence reposed in the executor 
 by the testator. Thus an administrator with the will annexed, 
 would have no power to take upon himself the execution of a 
 trust in the will, such as the sale and conveyance of land, for if 
 he does so act, those acts relating to the trust duty will be de- 
 clared invalid." It has always been questionable, whether a 
 court of chancery has power by its decree to operate a trust 
 vested in a person in confidence solely by the terms of a will. That 
 is to say, whether a court of chancery, by its decree can grant a 
 power legally correct to an administrator with the will annexed 
 to carry out and perform a power wholly vested in another. The 
 case of Penn v. Folger,^^ does not indicate the chancery court 
 entering the decree passed upon, had such power; and it 
 is fair to assume from that authority at least such court had not. 
 That decision treats the person acting under the decree as a trus- 
 tee de son tort. They say in substance, that such constructive 
 trustees are subject to the same rules and remedies as other trus- 
 tees. They cannot avoid liability, and must account for trust 
 property with which they become mixed the same as though they 
 were in fact trustees.^ "^ A trustee having disposed of real estate, 
 in violation of the trust, and in pursuance of a conspiracy to 
 defeat the remaindermen, the latter are entitled to have the 
 fraudulent conveyance set aside in equity, and the real estate so 
 conveyed by trustees partitioned.^'^ It is held, the trustee occu- 
 pied the position of a trustee de son to^-t and equity will compel 
 an accounting and set aside the fraudulent conveyancers 
 
 35—182 111. 76, and cases cited 37— Leonard v. Specht, 180 111. 
 
 in opinion. 208. 
 
 36 — Larmon v. Knight, 140 111. 38 — Henderson v. Blackburn, 
 
 232; Gurn v. Richardson, 128 111. 104 111. 227; Griffin v. Griffin, 141 
 
 178; Davis v. Stambaugh, 163 111. 111. 373; Reed, Murdock & Co. v. 
 
 557. Sheffy, 99 111. App. 189.
 
 270' THE LAW OF ESTATES. 
 
 334. Bonds of trustees. As a general rule a trustee ap- 
 pointed by the court must give bond with sureties approved by 
 the court and for an amount fixed by law or the order of the court 
 appointing the trustee; and such bonds are usually given and 
 approved when the office is accepted under the appointment. But 
 when the sureties on the official bond of such officer are waived 
 by the instrument under which he acts and no law interferes with 
 the waiving of security in the instrument under which the trus- 
 tee acts, his individual bond without sureties is usually filed un- 
 der the order of court reciting the facts. If the trustee ap- 
 pointed by the court be a corporation authorized by law to ad- 
 minister estates, it gives bond in the manner required by the 
 statute under which such corporation is created. 
 
 Under the Statute of Illinois, bond is not required to be given 
 by a corporation of this state when it is appointed and acts as 
 trustee, etc.^^ Such corporation under the statute makes and 
 keeps on deposit with the Auditor of the State, money, bonds, 
 mortgages, etc., in the way of securities to meet its obligations.^^ 
 The statute in question for the administration of trusts by trust 
 companies is substantially as follows: Section 1 provides the 
 manner of giving and the acknowledging of the bond. Sec- 
 tion 15 provides, "That whenever any surety on the bond of 
 any guardian, conservator of any idiot or insane person, or 
 the trustee of any fund or property, appointed by any court, 
 
 39 — Pennsylvania Co. v. Bauerle, cited in each volume under sec- 
 
 143 111. 459. lions of statute noted; Kurd's R. 
 
 40 — See an Act to provide for S. of 111. 1905, p. 539, same sec- 
 and regulate the administration tions and chapter. See also, Sec- 
 of trusts by trust companies, ap- tions 1, 15, 16, and 17, Chapter 
 proved June 15th, 1887; in force 103, entitled "Official Bonds." 
 July 1st, 1887. The act being Starr & Curtis Annotated Stat- 
 amended in part and approved utes of Illinois, with Jones & Ad- 
 June 1st, 1889, in force July 1st, dington's Supplements thereto. 
 1889, as Sections 3 and 6, Chapter Vol. 2, pp. 2831, 2837, 2838; Vol. 
 32, entitled "Corporations." Starr 4, p. 907, and cases cited in each 
 & Curtis Annotated Statutes of volume under sections of statute 
 Illinois, with Jones & Addington's noted; Kurd's R. S. of 111. 1905, 
 Supplements thereto. Vol. 1, p. same sections and chapter, pp. 
 1041; Vol. 4, p. 318, and cases 1417, 1419, 1420.
 
 TRUSTS AND TRUSTEES— CONTINUED. 271 
 
 or the heir, executor or administrator of such surety, desires 
 to be released from further liability upon any such bond, he 
 may petition the court in which said bond is filed for that pur- 
 pose, and upon notice being given to such guardian, conservator 
 or trustee, in such manner as the court may direct, the court shall 
 compel such guardian, conservator or trustee, within a reasonable 
 time, to be fixed by the court, to appear and settle his accounts, 
 and to file in such court a new bond, with such penalty and se- 
 curity as may be approved by the court, which being done, the 
 surety may be discharged from all liability on such bond. ' ' Sec- 
 tion 16: "If such guardian, conservator or trustee shall fail to 
 comply with such order within the time required, the court shall 
 order such person to be removed from his office or position, and 
 appoint some other fit person guardian, conservator or trustee, 
 in his stead, who is required to give bond as required by law." 
 This section further provides, that the person thus appointed 
 shall, in case his predecessor shall fail to settle and pay over to 
 him the moneys and other property and effects in his hands, bring 
 suit on his predecessor's bond, and when collected the sureties 
 on such bond shall be discharged. Section 17 provides: "This 
 act shall apply to all such bonds now in existence as well as to 
 those heretofore entered into, but nothing herein contained shall 
 be construed to release or in any way impair the liability of any 
 surety on such bond until a new bond is filed. "^^ 
 
 335. Compensation of trustees. Under an act of the legis- 
 lature in force July 1, 1891, Kurd's Statutes, 1905, Chapter 3, 
 entitled ' ' Administration of Estates, ' ' section 1, p. 127, it is pro- 
 vided: "That when a trustee or trustees shall hereafter act un- 
 der any power or appointment given or created by any will, tes- 
 tament or codicil, and in such will, testament or codicil, except 
 in case of trusts for charitable, religious or educational purposes, 
 shall be contained no provision respecting the compensation to 
 
 41 — See also case of Potter v. judicate under this statute the 
 Peoples, 92 111. 430, where it is trustee must be appointed by a 
 held, to give jurisdiction to ad- court of competent jurisdiction.
 
 272 THE LAW OF ESTATES. 
 
 be allowed or paid such trustee or trustees, a reasonable compen- 
 sation may be charged and allowed, demanded and collected 
 therefor." Before this enactment, the services of a trustee in 
 this State in the absence of a provision for compensation, in the 
 instrument creating the trust, were to be performed gratuitously 
 and without regard to the advantages that might result from the 
 superior care, skill and diligence in the management of the trust 
 estate.'^^ In the case of Arnold v. Alden,^^ this statute was 
 construed, and the court held, that the act of 1891, which 
 gives compensation to trustees who "shall hereafter act" under 
 any power of appointment by will extends to trustees who 
 continue to act under trusts thus previously created. This, not- 
 witlistanding the constitutional inhibition of the impairment of 
 contract; there is no such obligation in the trust relation. The 
 court also hold in this case, where it appears the trustee has re- 
 ceived compensation as executor or administrator, does not neces- 
 sarily deprive him of his right to compensation for services ren- 
 dered as trustee provided the duties are separate. But this act 
 of the legislature has not altered or changed the fundamental 
 principles under which a trustee recovers fees or commissions for 
 his services. The well settled and invariable rule being, "he 
 must faithfully discharge his duties toward his principal or cestui 
 que trust." Thus it is said in Lehman v. Eothharth:'^'^ "It 
 is well settled that a trustee or agent can recover no fees or 
 commissions for his services unless he has faithfully discharged 
 his duties toward his principal or cestui que trust. "^^ "If 
 he has neglected his duties, exercised bad faith in the conduct 
 of his trust, or committed a breach of his obligation in any way, 
 he forfeits his right to compensation. "^^ 
 
 42— Cook V. Gilmore, 133 111. 45— Hoyt v. Shepherd, 70 111. 
 
 139; Buckingham v. Morrison, 136 309; Brannon v. Strauss, 75 111. 
 
 111. 437. ■ 234. 
 
 43—173 111. 229. 46—27 Am. & Eng. Ency. of 
 
 44—159 111. 282. - Law, 187, and cases cited in note 
 
 3.
 
 CHAPTER XIV 
 
 GIFTS CAUSA MORTIS AND INTER VIVOS 
 
 Sec. 
 
 336. Gifts causa mortis. 
 
 337. Three principal requisites 
 
 necessary to constitute. 
 
 338. Who may make gifts causa 
 
 mortis. 
 
 339. Such a gift may be made to 
 
 one in trust. 
 
 340. All the elements must center 
 
 in the gift to be valid. 
 
 Sec. 
 
 341. The effect of such a gift when 
 
 established. 
 
 342. A gift inter vivos. 
 
 343. Sufficiency of delivery to con- 
 
 stitute a valid gift, j 
 
 344. Right of dower, homestead 
 
 and awards not affected. 
 
 Sec. 336. Gifts causa mortis. Such a gift is defined "a gift 
 of personal property, by a person who is in peril of death, upon 
 condition that it shall presently belong to the donee, in case the 
 owner shall die, but not otherwise. "^ Under the Roman law, 
 such a gift was invalidated unless proved by five witnesses pres- 
 ent at the time, every one of whom was required to be a Roman 
 citizen, of full age, of good character, and not related to either 
 donor or donee.^ The principles of the Roman law were incor- 
 porated in the common law of England, and owing to the 
 adoption or application of the common law by America, these 
 principles of the old Roman law have been transplanted as a part 
 of the laws of the different states of the United States. Courts 
 frequently express themselves very forcibly against this method 
 of giving; Justice Walton, in Drew v. Hagerty,^ says: "Gifts 
 causa mortis ought not to be encouraged. They were often sus- 
 tained by fraud and perjury that led finally to the enactment 
 of statutes for the prevention of fraud and perjury." And the 
 
 1 — 1 Story's Equity Jur.. Sec. 
 606, and cases cited in notes. 
 
 2— Headley v. Kirby, 18 Pa. St. 
 326-328. 
 
 3—81 Me. 231. 243. 
 
 18 
 
 273
 
 274 THE LAW OF ESTATES. 
 
 same justice, in Hatch v. Atkinson:'^ "Courts regret that this 
 species of gift has not been swept away by the Statute of 
 Frauds." Such gifts, however, are well recognized and are a 
 part of the established jurisprudence of the State of Illinois. 
 It is said, or implied in the following cases, there is no limit to 
 the extent of such a gift, provided, there is other property of 
 the donor sufficient to satisfy his creditors.^ The application 
 of the law concerning such gifts, often arises in the adminis- 
 tration of estates; and generally leads to serious trouble and 
 contest, owing to the complex questions of law, that must of 
 necessity be applied where such gift is claimed. 
 
 337. Three principal requisites necessary to constitute a 
 donatio causa mortis. First: The gift must be with a view 
 of the donor's death. Second: It must have been made to take 
 effect only in the event of the donor's death by existing disorder. 
 Third: There must be an actual delivery of the subject of the 
 donation.^ A delivery to a third person with direction to de- 
 liver to the donee is sufficient, although the deliver}^ by the third 
 person be not made until after the donor's death. The circum- 
 stances should, however, show a full relinquishment of dominion 
 over the property to the trustee for the purpose of the trust." 
 It is essential to such gift, that the donor make it in his last 
 illness, or in contemplation and expectation of death. The ap- 
 prehension of death may arise from infirmity or old age, or 
 from external and anticipated danger.^ The gift to be good in 
 law must be made to take effect only in the event of the donor's 
 
 4—56 Me. 326. Roberts v. Draper, 18 111. App. 
 
 5— Roberts v. Draper, 18 111. 167; Barnes v. People, 25 111. App. 
 
 App. 167; Woodburn v. Woodburn, 136; Ridden v. Thrall, 125 N. Y. 
 
 23 111. App. 289; Barnes v. People, 572. 
 
 25 111. App. 137; Seavey v. Seavey, 7— Telford v. Patton, 144 111. 
 
 30 111. App. 625; Telford v. Pat- 625; Williams v. Chamberlain, 
 
 I. ton, 144 111. 621, 623; Martin v. 165 111. 210; Neville v. Jennings, 
 
 Martin, 170 111. 29. 75 111. App. 503; Martin v. Martin, 
 
 6—1 Story's Equity Jur., 607a; 170 111. 18; 3 Redfield on Wills, 
 
 Kenniston v. Sceva, 54 N. H. 24; Sec. 42. 
 
 8—2 Kent's Com. 1313, 1314.
 
 GIFTS CAUSA MORTIS AND INTER VIVOS. 275 
 
 death, by the existing disorder; for a gift to take effect imme- 
 diately, is not such a gift.** A gift causa mortis, may be made 
 to one in trust for the use and benefit of another ;i'^ and its 
 validity is not affected by the fact that the donee takes it upon 
 a trust, the terms and limitations of which are prescribed by 
 the donor, and may vary according to subsequent events.^ ^ 
 Money and bank notes of private individuals and drafts pay- 
 able to the donor, also bonds and mortgages, are ail proper 
 subjects of gifts of this kind, and need not be endorsed or as- 
 signed.^ ^ But the promissory note or other contract of the do- 
 nor, by which he or she undertakes to pay money, either during 
 his life or out of his estate after donor's decease will not do, 
 for such will not be considered a gift causa mortis; neither will 
 his draft or check unaccepted.^^ A person making such a gift 
 may remit a debt due to him, by surrender of the securities, 
 with a verbal declaration of intention to that effect.^ ^ 
 
 338. Who may make gifts causa mortis. Any person pos- 
 sessing the capacity to make a will may give his property mortis 
 causa}^ Married women may in this state dispose of their 
 separate property in this way, under the act of the legislature 
 pertaining to husband and wife.^^ 
 
 9—3 Redfield on Wills, Sec. 42; on Wills, Sec. 42, and cases cited 
 
 Marsh v. Prentiss, 40 111. App. 74; in notes; Shaw v. Camp, 160 111. 
 
 Telford v. Patton, 144 111. 611; 425. 
 
 Barnuni v. Reed, 136 111. 388; Illi- 14—3 Redfield on Wills, Sec. 42, 
 
 nois Christian Missionary Conven- and cases cited in notes. 
 
 lion V. Hall, 48 111. App. 546. 15— Champney v. Blanchard, 39 
 
 10—123 Ind. 321. N. Y. Ill, 113; Martin v. Martin, 
 
 11— Clough V. Clough, 117 Mass. 170 111. 28-30; Section 1, Chapter 
 
 83, 85; Telford v. Patton, 144 111. 148, "Wills." Starr & Curtis An- 
 
 611. notated Statutes of Illinois, with 
 
 12 — Martin v. Martin, 170 111. Jones (z Addington's Supplements 
 
 23-25; 3 Redfield on Wills, Sec. thereto. Vol. 3, p. 4021; Vol. 4, 
 
 42, and cases cited in notes. pp. 1283, 1284, and cases cited in 
 
 13 — Illinois Christian Mission- each volume under section noted-; 
 
 ary Convention v. Hall, 48 111. Kurd's R. S. of 111. 1905, same sec- 
 
 App. 536; Ridgeway v. McCartney, tion and chapter, p. 2050. 
 
 160 111. 129; Chamberlain v. Wil- 16— Section 9, Chapter 68, "Hus- 
 
 liams, 62 111. App. 423; 3 Redfield band and Wife." Starr & Curtis
 
 276 THE LAW OF ESTATES. 
 
 339. Such a gift may be made to one in trust, for the use 
 
 and benefit of another/^ but possession must be in the donee 
 or his trustee.i^ ^^ such a gift is an executed contract, delivery 
 of the subject matter of the gift is of the essence of the title.^^ 
 The delivery may be constructive, as of a key, or of a part for 
 the whole.20 It has been held in some cases, where there has 
 been a delivery to a trustee for the benefit of the donee, with- 
 out the knowledge of the latter, acceptance by the donee is 
 presumed, the gift being beneficial to him,2i and this applica- 
 tion of the law by arguendo at least is sustained in Telford v. 
 Patton.^2 
 
 340. All the elements must center in the gift to be valid. 
 
 As has been said, all such gifts depend upon contingency of 
 death, to take effect only in that event, coupled with the actual 
 delivery of the subject of donation to the donee or some one for 
 him in trust. Depending upon the contingency of death such 
 gifts may be revoked, where the person does not meet with ex- 
 pected death, all circumstances must combine so as to show that 
 the donor intended the gift to take effect if he should die shortly 
 after making such gift. If he or she should recover from his or 
 her peril or anticipated death, the thing or subject of the gift 
 should be restored to the donor. 23 The donee in this class of 
 gifts derives his title directly from the donor and not in any 
 sense from the personal representative of the donor.^* To 
 
 Annotated Statutes of Illinois, 261; Telford v. Patton, 144 111. 
 
 with Jones & Addington's Supple- 611. 
 
 ments thereto. Vol. 2, p. 2126; 20 — 1 Parsons on Contracts, 
 
 Vol. 4, p. 674; Vol. 5, p. 286, and page 234; Telford v. Patton, 144 
 
 cases cited in each volume under 111. 611; Martin v. Martin, 170 111. 
 
 section noted; Kurd's R. S. of III 18. 
 
 1905, same section and chapter, p. 21 — Blasdel v. Locke, 52 N. H. 
 
 1147. 238; Darland v. Taylor, 52 Iowa 
 
 17— Deval v. Dye, 123 Ind. 321. 503; Deval v. Dye, 123 Ind. 321. 
 . 18— Barnes v. People, 25 111. 22—144 111. 611. 
 App. 137; Telford v. Patton, 144 23—2 Kent's Com. 1313, 1314; 
 
 111. 611; Martin v, Martin, 170 111. Nichols v. Adams, 2 Whart. 17; 
 
 18. Barnum v. Reed, 136 111. 588. 
 
 19 — Grover v. Grover, 24 Pick. 24 — Gaunt v. Tucker, 18 Ala. 27;
 
 GIFTS CAUSA MORTIS AND INTER VIVOS. 277 
 
 sustain such a gift all the elements of the law applicable to 
 the subject must center in the transaction, the proof must be 
 positively clear in relation to the donor's intention to make an 
 absolute gift in contemplation of death ; and the burden of proof 
 is of necessity cast upon the donee or the one claiming such 
 gift; the court will look upon the whole transaction seriously, 
 and with great caution examine all the facts and circumstances 
 in relation to the gift with jealous care.^^ 
 
 341. The effect of such gift when established. With refer- 
 ence to the effect of such gift after death of donor, it is good 
 notwithstanding a previous will.^s A court of equity, in a 
 proper case will enforce and ratify a gift causa mortis; par- 
 ticularly when all the elements of the law have been complied 
 with, and all the circumstances indicate or establish such a 
 gift is valid.^'^ 
 
 342. A gift inter vivos, is chiefly distinguished from a gift 
 causa mortis by the facts, that the former is not made in view of 
 expected or impending death, and that it is not revocable in its 
 nature. 28 It is essential to a donation inter vivos, that the gift 
 be absolute and irrevocable, that the giver part with all present 
 and future dominion over the property given, that the gift go 
 into effect at once and not at some future time, that there be a 
 delivery of the thing given to the donee, and there be ''such a 
 change of possession as to put it out of the power of the giver 
 to repossess himself of the thing given. ' '^^ To constitute a valid 
 gift inter vivos, possession and title must pass to and vest in the 
 
 Taylor v. Harrison, 79 111. App. 111. App. 453; Same v. Same, 160 
 
 380; Hagemann v. Hagemann, 90 111. 129; Telford v. Patton, 144 111. 
 
 111. App. 251. 620; Martin v. Martin, 170 111. 27. 
 
 25— Chase v. Redding, 13 Gray 28—3 Pomeroy's Eq. Jur. 1146- 
 
 418; Mitchell v. Pease, 7 Cush. 1150, and cases cited in notes to 
 
 350; Headley v. Kirby, 18 Pa. St. sections; 8 Am. & Eng. Ency. of 
 
 326. Law, pp. 1313-1330, and cases cited 
 
 26 — 2 Kent's Com. 1313, 1314; under gifts inter vivos. 
 
 Hambrooke v. Simmons, 4 Russ. 29 — 1 Parsons on Contracts, 
 
 25. marg page 234; Telford v. Patton, 
 
 27— Ridgeway v. McCartney, 57 144 111. 620.
 
 278 THE LAW OF ESTATES. 
 
 donee, or in a trustee for the donee. If anything remains to 
 be done to complete the gift, what so remains to be done cannot 
 be enforced, as it is based upon no consideration ; and when the 
 gift is thus incomplete, there is a locus poenitentiae, and the 
 gift may be revoked.^" 
 
 343. Sufficiency of delivery to constitute a valid gift inter 
 vivos. The deposit of securities, transferable by delivery, by 
 the o'W'ner in a safe deposit box rented by his niece, who carried 
 the key and to whom he w^as under great obligations for serv- 
 ices, accompanied by oral declarations and written memoranda 
 that ' ' everything in the box ' ' Avas to be hers, that he ' ' had no fur- 
 ther claim" thereto and that he wanted his executors "to keep 
 their hands off," constitutes a valid gift to the niece, although 
 the uncle afterward took out and collected part of the securities 
 and replaced them with others, and although, as to part of them, 
 he had entered in his diary that his niece's ownership should be 
 simultaneous with his death.^i 
 
 344. If such gift was made affecting the rights of dower, 
 homestead and widows' or children's awards. The question 
 has not yet been decided in Illinois, whether a gift causa mortis 
 or intei' vivos can be made that will interfere with the rights 
 of dower, homestead, widow's or children's award. These rights 
 are conceded to have been created by enactments in the inter- 
 est of public policy; and, it would seem very questionable 
 Avhether a man of substance, can be allowed to dispose of any 
 part of his estate by such gifts, unless he holds sufficient to pay 
 his just debts, and the claims of dower, homestead and awards; 
 and in fact contravenes no fixed and established duty he is com- 
 pelled to observe under the law. 
 
 30— McCartney v. Ridgeway, 160 31— Martin v. Martin, 170 111. 
 111. 453. 19.
 
 CHAPTER XV 
 
 INHERITANCE TAX LAW OF ILLINOIS 
 
 Sec. Sec. 
 
 345. Inheritance tax law, when 360. 
 
 passed, statute. 
 
 346. Rate oL' tax statute. 361, 
 
 347. Lineal descendants, life estate 
 
 or for term or for years, 362. 
 rule as to taxation, bond, 
 statute. 363. 
 
 348. What institutions exempt 364. 
 
 from such tax statute. 
 
 349. Taxes, when payable, penalty, 365, 
 
 statute. 
 
 350. Inheritance tax, when, how, 
 
 and by whom paid, statute, 
 
 351. Powers of executors and ad- 
 
 ministrators, statute. 
 
 352. Tax to be paid to treasurer, 
 
 sealed receipt, statute. 
 
 353. When real estate liable to 
 
 tax; duty of executor, in- 
 formation in writing to the 
 treasurer, statute. 
 
 354. When portion of tax repaid 
 
 to legatee, who has to re- 
 fund, a portion of the lega- 
 cy, statute. 
 
 355. Foreign executors or admin- 
 
 istrators, property in the 
 State, statute. 
 
 356. When tax paid erroneously, 
 
 statute. 
 
 357. How value of property is 
 
 fixed, statute. 
 
 358. Clerks' fees, statute. 
 
 359. Appraisers taking fee on 
 
 award, penalty, statute. 
 
 279 
 
 366. 
 
 267. 
 
 368. 
 369, 
 
 370. 
 
 371. 
 372. 
 
 373, 
 
 374. 
 
 Jurisdiction of county court, 
 statute. 
 
 Proceedings when tax has not 
 been paid, statute. 
 
 Duty of officers when tax has 
 not been paid, statute. 
 
 Statement in writing, statute. 
 
 Expenses of proceedings, stat- 
 ute. 
 
 Books to be kept in the of- 
 fice of the county judge, 
 statute. 
 
 Treasurer to pay the State 
 Treasurer all taxes, statute. 
 
 Treasurer's commission or 
 salary, statute. 
 
 Receipt, statute. 
 
 Proceedings to test whether 
 property is liable to tax, 
 statute. 
 
 Lien of the collateral inher- 
 itance, statute. 
 
 Repeal, statute. 
 
 The act declared constitu- 
 tional. 
 
 Laws governing descent and 
 devise of property in Illi- 
 nois are wholly statutory, 
 and may be changed at dis- 
 cretion. 
 
 Domicile, within the meaning 
 of the inheritance act; what 
 constitutes legal residence 
 thereunder.
 
 280 THE LAW OF ESTATES. 
 
 Sec. Sec. 
 
 375. Time when tax accrues and 
 
 becomes payable. 
 
 376. Jurisdiction and powers con- 
 
 ferred upon county court 
 and judge thereof under In- 
 heritance Tax act. 
 
 377. Fair market value "casli 
 
 value" appraisement. 
 
 378. Property and interest thereia 
 
 liable to tax. 
 
 379. Exemptions. 
 
 Sec. 345. Inheritance tax. The legislature of the State of 
 Illinois, by an act entitled "An act to tax gifts, legacies and 
 inheritances in certain cases and to provide for the collection of 
 the same," approved June 15th, 1895, and amended and 
 added to in part May 10, 1901, passed an act substantially as 
 follows :^ 
 
 346. Rate of tax. Section (1) : ''All property, real, per- 
 sonal and mixed, which shall pass by will or by the intestate laws, 
 of this state from any person who may die seized or possessed of 
 the same while a resident of this state, or, if decedent was not a 
 resident of this state at the time of his death, which property or 
 any part thereof shall be within this state or any interest therein 
 or income therefrom, which shall be transferred by deed, grant, 
 sale or gift made in contemplation of the death of the grantor 
 or bargainor or intended to take effect, in possession or enjoy- 
 ment after such death, to any person or persons or to any body 
 politic or corporate in trust or otherwise, or by reason whereof 
 any person or body politic or corporate shall become beneficially 
 entitled in possession or expectation to any property or income 
 thereof, shall be and is subject to a tax at the rate hereinafter 
 specified to be paid to the treasurer of the proper county, for the 
 use of the state; and all heirs, legatees and devisees, administra- 
 tors, executors and trustees shall be liable for any and all such 
 taxes until the same shall have been paid as hereinafter directed. 
 
 1— Sections 1 to 23 inclusive, 3528, et seq.; Vol. 4, p. 1103, et 
 Chapter 120, "Revenue" Act. Starr seq.; Vol. 5, p. 490, and cases cited 
 & Curtis Annotated Statutes of in each volume under sections of 
 Illinois, with Jones & Addington's the act noted; Kurd's R. S. of 111. 
 Supplements thereto. Vol. 3, p. 1905, same sections and chapter, 
 
 p. 1711, et seq.
 
 INHERITANCE TAX LAW OF ILLINOIS. 281 
 
 "When the beneficial interests to any property or income therefrom 
 shall pass to or for the use of any father, mother, husband, wife, 
 child, brother, sister, wife or widow of the son or the husband of 
 the daughter or any child or children adopted as such in conform- 
 ity with the laws of the State of Illinois or to any person to whom 
 the deceased, for not less than ten years prior to death, stood in 
 the acknowledged relation of a parent, or to any lineal descend- 
 ant born in lawful wedlock; in every such case the rate of tax 
 shall be one dollar on every hundred dollars of the clear market 
 value of such property received by each person and at and after 
 the same rate for every less amount, provided that any estate 
 which may be valued at a less sum than twenty thousand dollars 
 shall not be subject to any such duty or taxes ; and the tax is to 
 be levied in above cases only upon the excess of twenty thousand 
 dollars received by each person. When the beneficial interests 
 to any property or income therefrom shall pass to or for the use 
 of any uncle, aunt, niece, nephew, or any lineal descendant of 
 the same, in every such case the rate of such tax shall be two 
 dollars on every one hundred dollars of the clear market value of 
 such property received by each person on the excess of two 
 thousand dollars so received by each person. In all other cases 
 the rate shall be as follows : On each and every hundred dollars 
 of the clear market value of all property and at the same rate 
 for any less amount; on all estates of ten thousand dollars or 
 less, three dollars; on all estates of over ten thousand dollars 
 and not exceeding twenty thousand dollars, four dollars, and on 
 all estates over twenty thousand dollars and not exceeding fifty 
 thousand dollars, five dollars; and on all estates over fifty thou- 
 sand dollars, six dollars : Provided, that an estate in the above 
 case which may be valued at a less sum than five hundred dollars 
 shall not be subject to any duty or tax."^ 
 
 347. Lineal descendant — life estate or for term of years — 
 rule as to taxation — bond. Section (2) : "When any person 
 shall bequeath or devise any property or interest therein or in- 
 
 2 — See statute cited ante 346.
 
 282 THE LAW OF ESTATES. 
 
 come therefrom to mother, father, husband, wife, brother and 
 sister, the widow of the son or a lineal descendant during the 
 life or for a term of years or remainder to the collateral heir of 
 the decedent, or to the stranger in blood or to the body politic 
 or corporate at their decease, or on the expiration of such term, 
 the said life estate or estates for a term of years shall not be sub- 
 ject to any tax and the property so passing shall be appraised 
 immediately after the death at what was the fair market value 
 thereof at the time of the death of the decedent in the manner 
 hereinafter provided, and after deducting therefrom the value of 
 said life estate, or term of years, the tax transcribed by this act 
 on the remainder shall be immediately due and payable to the 
 treasurer of the proper county, and, together with the interests 
 thereon, shall be and remain a lien on said property until the same 
 is paid : Provided, that the person or persons or body politic or 
 corporate beneficially interested in the property chargeable with 
 said tax elect not to pay the same until they shall come in the 
 actual possession or enjoyment of such property, or, in that case 
 said person or persons or body politic or corporate shall give a 
 bond to the people of the State of Illinois in the penalty three 
 times the amount of the tax arising upon such estate with such 
 sureties as the county judge may approve, conditioned for the 
 payment of the said tax and interest thereon at such time or 
 period as they or their representatives may come into the actual 
 possession or enjoyment of said property; which bond shall be 
 filed in the office of the county clerk of the proper county : Pro- 
 vided further, that such person shall make a full, verified return 
 of said property to said county judge, and file the same in his 
 office within one year from the death of the decedent, and within 
 that period enter into such securities and renew the same for 
 five years. "2 
 
 348. What institutions exempt from such tax. Section 
 (2i^a) : "When the beneficial interests of any property or in- 
 come therefrom shall pass to or for the use of any hospital, re- 
 
 2— Ante 345, note (1). Also ante 346, 347.
 
 INHERITANCE TAX LAW OF ILLINOIS. 283 
 
 ligious, educational, bible, missionary, tract, scientific, benevolent 
 or charitable purpose, or to any trustee, bishop or minister of any 
 church or religious denomination, held and used exclusively for 
 the religious, educational or charitable uses and purposes of such 
 church or religious denomination, institution or corporation, by 
 grant, gift, bequest or otherwise, the same shall not be subject 
 to any such duty or tax, but this provision shall not apply to any 
 corporation which has the right to make dividends or distribute 
 profits or assets among its members.* 
 
 349. Taxes — when payable — penalty. Section (3) : *'A11 
 taxes imposed by this act, unless otherwise herein provided for, 
 shall be due and payable at the death of the decedent and inter- 
 est at the rate of six per cent per annum shall be charged and 
 collected thereon for such time as said taxes is not paid: Pro- 
 vided, that if said tax is paid within six months from the accru- 
 ing thereof, interest shall not be charged or collected thereon, 
 but a discount of five per cent shall be allowed and deducted from 
 said tax, and in all cases where the executors, administrators or 
 trustees do not pay such tax within one year from the death of 
 the decedent, they shall be required to give a bond in the form 
 and to the effect prescribed in section 2 of this act for the pay- 
 ment of said tax, together with interest."^ 
 
 350. Inheritance tax — ^when, how and by whom paid. Sec- 
 tion (4) : "Any administrator, executor or trustee having any 
 
 . charge or trust in legacies or property for distribution subject to 
 the said tax shall deduct the tax therefrom, or if the legacy or 
 property be not money he shall collect a tax thereon upon the 
 appraised value thereof from the legatee or person entitled to 
 such property, and he shall not deliver or be compelled to deliver 
 any specific legacy or property subject to tax to any person until 
 he shall have collected the tax thereon; and whenever any such 
 legacy shall be charged upon or payable out of real estate the 
 
 4 — Statute cited ante 345, note July 1, 1901. Laws of 1901, p. 
 (1); Sec. (2y2a): Added by act 268. 
 approved May 10, 1901. In force 5 — Ante 345, note (1).
 
 284 THE LAW OF ESTATES. 
 
 heir or devisee before paying the same shall deduct said tax there- 
 from, and pay the same to the executor, administrator or trustee, 
 and the same shall remain a charge on such real estate until paid, 
 and the payment thereof shall be enforced by the executor, ad- 
 ministrator or trustee in the same manner that the said payment 
 of said legacies might be enforced, if, however, such legacy be 
 given in money to any person for a limited period, he shall retain 
 the tax upon the whole amount, but if it be not money he shall 
 make application to the court having jurisdiction of his accounts, 
 to make an apportionment if the case requires it of the sum to be 
 paid into his hands by such legatees, and for such further order 
 relative thereof as the case may require."^ 
 
 351. Powers of executors and administrators. Section (5) : 
 "All executors, administrators and trustees shall have full power 
 to sell so much of the property of the decedent as will enable 
 them to pay said tax, in the same manner as they may be enabled ' 
 to do by law for the payment of duties of their testators and in- 
 testates, and the amount of said tax shall be paid as hereinafter 
 directed. ' ''^ 
 
 352. Tax to be paid to treasurer — sealed receipt. Section 
 (6) : ''Every sum of money retained by any executor, adminis- 
 trator or trustee, or paid into his hands for any tax on any 
 property, shall be paid by him within thirty days thereafter to 
 the treasurer of the proper county, and the said treasurer or 
 treasurers shall give, and every executor, administrator or trus- 
 tee shall take, duplicate receipts from him of said payments, one 
 of which receipts he shall immediately send to the State Treas- 
 urer, whose duty it shall be to charge the treasurer so receiving 
 the tax with the amount thereof, and shall seal said receipt with 
 the seal of his office and countersign the same and return it to 
 the executor, administrator or trustee, whereupon it shall be a 
 proper voucher in the settlement of his accounts ; but the execu- 
 tor, administrator or trustee shall not be entitled to credit in his 
 accounts or be discharged from liability for such tax unless he 
 
 6— Ante 345, note (1). 7— Ante 345, note (1).
 
 INHERITANCE TAX LAW OF ILLINOIS. 285 
 
 shall purchase a receipt so sealed and countersigned by the 
 treasurer and a copy thereof certified by him."^ 
 
 353. When real estate liable to tax — duty of executor — 
 information in writing to the treasurer. Section (7) : "When- 
 ever any of the real estate of which any decedent may die seized 
 shall pass to any body politic or corporate, or to any person or 
 persons, or in trust for them, or some of them, it shall be the 
 duty of the executor, administrator or trustee of such decedent 
 to give information thereof in v^riting to the treasurer of the 
 county where said real estate is situated, within six months after 
 they undertake the execution of their expected duties, or if the 
 fact be not known to them within that period, then within one 
 month after the same shall have come to their knowledge."^ 
 
 354. When portion of tax repaid to legatee — who has to 
 refund a portion of the legacy. Section (8) : "Whenever 
 debts shall be proved against the estate of the decedent after 
 distribution of the legacies from which the inheritant (inheri- 
 tance) tax has been deducted in compliance with this act, and 
 the legatee is required to refund any portion of the legacy, a pro- 
 portion of the said tax shall be repaid to him by the executor or 
 administrator if the said tax has not been paid into the state or 
 county treasury, or by the county treasurer if it has been so 
 paid. "10 
 
 355. Foreign executor or administrator — property in the 
 state. Section (9) : "Whenever any foreign executor or ad- 
 ministrator shall assign or transfer any stocks or loans in this 
 state standing in the name of decedent, or in trust for a decedent, 
 which shall be liable to the said tax, such tax shall be paid to the 
 treasury or treasurer of the proper county on the transfer thereof, 
 otherwise the corporation forming such transfer shall become 
 liable to pay such taxes, provided that such corporation has 
 knowledge before such transfer that said stocks or loans are liable 
 to such taxes. "^^ 
 
 8— Ante 345, note (1). 10— Ante 345, note (1). 
 
 9— Ante 345, note (1). 11— Ante 345, note (1).
 
 2«6 THE LAW OF ESTATES. 
 
 356. When tax paid erroneously. Section (10): "When 
 any amount of said tax shall have been paid erroneously to the 
 State Treasurer, it shall be lavvful for him on satisfactory proof 
 rendered to him by said county treasurer of said erroneous pay- 
 ments to refund and pay to the executor, administrator or trus- 
 tee, person or persons who have paid any such tax in error the 
 amount of such tax so paid, provided that all applications for 
 the payment of said tax shall be made within two years from the 
 date of said payment. "12 
 
 357. How value of property fixed. Section (11) : ''In order 
 to fix the value of property of persons whose estate shall be 
 subject to the payment of said tax, the county judge, on applica- 
 tion of any interested party, or upon his own motion, shall ap- 
 point some competent person as appraiser as often as or when- 
 ever occasion may require, whose duty it shall be forthwith to 
 give such notice by mail, to all persons known to have or claim 
 an interest in such property, and to such persons as the county 
 judge may, by order direct, of the time and place he will ap- 
 praise such property, and at such time and place to appraise the 
 same at a fair market value, and for that purpose the appraiser 
 is authorized, by leave of the county judge, to use subpoenas for 
 and to compel the attendance of witnesses before him, and to 
 take the evidence of such witnesses under oath concerning such 
 property and the value thereof, and he shall make a report 
 thereof and of such value in writing to said county judge, with 
 the depositions of the witnesses examined and such other facts 
 in relation thereto and to said matters as said county judge may, 
 by order, require to be filed in the office of the clerk of said 
 county court, and from this report the said county judge shall 
 forthwith assess and fix the then cash value of all estates, an- 
 nuities and life estates or terms of years growing out of said 
 estate, and the tax to which the same is liable, and shall imme- 
 diately give notice by mail to all parties known to be interested 
 therein. Any person or persons dissatisfied with the appraise- 
 
 12— Ante 345, note (1). •
 
 INHERITANCE TAX LAW OF ILLINOIS. 287 
 
 ment or assessment may appeal therefrom to the county court 
 of the proper county within sixty days after the making and 
 filing of such appraisement or assessment on paying or giving 
 security satisfactory to the county judge to pay all costs, to- 
 gether with whatever taxes shall be fixed by said court. The 
 said appraiser shall be paid by the county treasurer out of 
 any funds he may have in his hands on account of the inheri- 
 tance tax, as by law provided, on the certificate of the county 
 judge, such compensation as such judge may deem just for said 
 appraiser's services as sucli appraiser, not to exceed ten dollars 
 per day for each day actually and necessarily employed in said 
 appraisement, together with his actual and necessary traveling 
 expenses and disbursements, including such witness fees paid by 
 him. "13 
 
 358. Clerk's fees. Section (lli/o) : ''The fees of the clerk 
 of the eoimty court in inheritance tax matters in the respective 
 counties of this state, as classified in the act concerning fees 
 and salaries, shall be as follows: In counties of the first and 
 second class, for services in all proceedings in each estate before 
 the county judge, the clerk shall receive a fee of five dollars. 
 In all such proceedings in counties of the third class, the cierk 
 shall receive a fee of ten dollars. Such fees shall be paid by the 
 county treasurer, on the certificate of the county judge, out 
 of any money. in his hands, on account of said tax. In counties 
 of the third class, the Attorney General of (the) state may 
 appoint an attorney, who shall be known as the "inheritance tax 
 attorney," and whose salary shall be not to exceed three thou- 
 sand dollars per year, payable monthly out of the state treas- 
 ury upon warrants drawn by the auditor of public accounts, on 
 vouchers approved by the Attorney General. In counties of the 
 third class, the clerk of the county court may appoint a clerk 
 in the ofiice of the clerk of said court, to be known as the "in- 
 heritance tax clerk," Avhose compensation shall be fixed by the 
 
 13 — As amended by act approved 1901. Laws of 1901, p. 269. See 
 May 10, 1901. In force July 1, statute cited ante 345, note (1).
 
 288 THE LAW OF ESTATES. 
 
 county judge, not to exceed fifteen hundred dollars per year, 
 and not to exceed the fee earned in said office in inheritance tax 
 matters, the surplus of such fees over said compensation so 
 fixed to be turned into the county treasury. In addition to the 
 above, the clerk of the county court shall be entitled, in all suits 
 brought for the collection of delinquent inheritance tax, and all 
 contested inheritance tax cases appealed from the county judge 
 to the county court, and in all appeals from the county court to 
 the supreme court, the same fees as are now, or which may 
 hereafter be, allowed by law in suits at law, or in the matter of 
 appeals at law, to or from the county court, which fees shall be 
 taxed as costs and paid as in other cases at law; and in all cases 
 arising under this act, including certified copies of documents or 
 records in his office, for which no specified fees are provided, the 
 clerk of the county court shall charge against and collect, from 
 the person applying for, or entitled to such service, or certified 
 copies, the same fees as are now, or which may hereafter be, al- 
 lowed for similar services or certified copies in other cases in 
 said court, and for recording inheritance tax receipts required to 
 be recorded in his office, he shall receive the same fees which now 
 are, or hereafter may be, allowed by law to the recorder of deeds 
 for recording similar instruments."^* 
 
 359. Appraisers taking fee or reward — penalty. Section 
 (12) : "Any appraiser appointed by this act who shall take 
 any fee or reward from any executor, administrator, trustee, 
 legatee, next of kin or heir of any decedent, or from any other 
 person liable to pay said tax or any portion thereof, shall be 
 guilty of a misdemeanor, and upon conviction in any court hav- 
 ing jurisdiction of misdemeanors he shall be fined not less than 
 two hundred and fifty dollars nor more than five hundred dollars 
 and imprisoned not exceeding ninety days; and in addition 
 thereto the county judge shall dismiss him from such service. "^^ 
 
 14 — Sec. (11%) added to act, ap- See statute cited ante 345, note 
 proved May 10, 1901. In force (1). 
 July 1, 1901. Laws of 1901, p. 270. 15— Ante 345, note (1).
 
 INHERITANCE TAX LAW OF ILLINOIS. 289 
 
 360. Jurisdiction of County Court. Section (13) : "The 
 county court in the county in which the real property is situated 
 of the decedent who was not a resident of the state or in the 
 county of which the deceased was a resident at the time of his 
 death, shall have jurisdiction to hear and determine all questions 
 in relation to the tax arising under the provisions of this act, 
 and the county court first acquiring jurisdiction hereunder shall 
 retain the same to the exclusion of every other. "^^ 
 
 361. Proceedings when tax has not been paid. Section (14) : 
 If it shall appear to the county court that any tax accruing 
 under this act has not been paid according to law, it shall issue 
 a summons summoning the persons interested in the property 
 liable to the tax to appear before the court on a day certain not 
 more than three months after the date of such summons, to show 
 cause why said tax should not be paid. The process, practice 
 and pleadings, and the hearing and determination thereof, and 
 the judgment in said court in such cases shall be the same aa 
 those now provided, or which may hereafter be provided in pro- 
 bate cases in the county courts in this state, and the fees and 
 costs in such cases shall be the same as in probate cases in the 
 county courts of this state. "^'^ 
 
 362. Duty of officers when tax not paid. Section (15) : 
 "Whenever the treasurer of any county shall have reason to 
 believe that any tax is due and unpaid under this act, after the 
 refusal or neglect of the person interested in the property liable 
 to pay said tax to pay the same, he shall notify the state's attor- 
 ney of the proper county, in writing, of such refusal to pay said 
 tax and the state's attorney so notified if he has proper cause to 
 believe a tax is due and unpaid shall prosecute the proceedings 
 in the county court in the proper county as provided in section 
 14 of this act for the enforcement and collection of such tax, and 
 in such case said court shall allow as costs in the said case such 
 fees to said attorney as he may deem reasonable. "^^ 
 
 16— Ante 345, note (1). 18— Ante 345, note (1), 
 
 11-- Ante 345, note (1). 
 19
 
 290 THE LAW OF ESTATES. 
 
 363. Statement in writing. Section (16) : "The county- 
 judge and county clerk of each county shall every three months 
 make a statement in writing to the county treasurer of the 
 county of the property from wliieh or the party from whom he 
 has reason to believe a tax under this act is due and unpaid. "^^ 
 
 364. Expenses of proceedings. Section (17): "Whenever 
 the county judge of any county shall certify that there was 
 probable cause for issuing a summons and taking the proceedings 
 specified in section fourteen of this act the State Treasurer shall 
 pay or allow to the treasury of any county all expenses incurred 
 for service of summons and his other lawful disbursements that 
 has not otherwise been paid. "2*^ 
 
 365. Book to be kept in the office of the county judge. Sec- 
 tion (18): "The treasurer of the state shall furnish to each 
 county judge a book in which he shall enter the returns made by 
 appraisers, the cash value of annuities, life estates and terms of 
 years and other property fixed by him, and the tax assessed 
 thereon and the amounts of any receipts for payments thereof 
 filed with him, which books shall be kept in the office of the 
 county judge as a public record."-^ 
 
 366. Treasurer to pay the state treasurer all taxes. Section 
 (19) : "The treasurer of each county shall collect and pay the 
 State Treasurer all taxes that may be due and payable under this 
 act, who shall give him a receipt therefor, of which collection 
 and payment he shall make a report under oath to the Auditor 
 of Public Accounts on the first Monday in March and Septem- 
 ber of each year, stating for what estate paid and in such form 
 and containing such particulars as the Auditor may prescribe; 
 and for all said taxes collected by him and not paid to the State 
 Treasurer by the first Monday of October and April of each year, 
 he shall pay interest at the rate of ten per cent per annum. "22 
 
 367. Treasurer's commission or salary. Section (20) : "The 
 treasurer of each county shall be allowed to retain two per cent 
 
 IQ—Ante 345, note (1). 21— Ante 345, note (1). 
 
 20— Ante 345, note.(l). 22— A7ite 345, note (1).
 
 INHERITANCE TAX LAW OF ILLINOIS. 291 
 
 on all taxes paid and accounted for by him under this act in 
 full for his services in collecting and paying the same in addi- 
 tion to his salaiy or fees now allowed by law. "23 
 
 368. Receipt. Section (21) : "Any person or body politic 
 or corporate shall, upon the payment of the sum of fifty cents, 
 be entitled to a receipt from the county treasurer of any county 
 or the copy of the receipt at his option that may have been 
 given by said treasurer for the pajnnent of any tax under this 
 act to be sealed with the seal of his office, which receipt shall 
 designate on what real property, if any, of which any deceased 
 may have died seized, said tax has been paid and by whom paid, 
 and whether or not it is in full of said tax and said receipt may 
 be recorded in the clerk 's office of said county in which the prop- 
 erty may be situated in the book to be kept by said clerk for 
 such purpose. "24 
 
 369. Proceedings to test whether property is liable to the 
 tax. Section (2I14) : "When any person interested in any 
 property in this state, which shall pass by will or the intestate 
 laws of this state, shall deem the same not subject to any tax un- 
 der this act, he may file his petition in the county court of the 
 proper county to determine whether said property is subject to 
 the tax herein provided, in which petition the county treasurer 
 and all persons known to have or claim any interest in said 
 property shall be made parties. The county court may hear the 
 said cause upon the relation of the parties and the testimony of 
 witnesses, and evidence produced in open court, and, if the court 
 shall find said property is not subject to any tax, as herein pro- 
 vided, the court shall, by order, so determine; but if it shall 
 appear that said property, or any part thereof, is subject to any 
 such tax, the same shall be appraised and taxed as in other 
 cases. An adjudication by the county court, as herein provided, 
 shall be conclusive as to the lien of the tax herein provided upon 
 said property, subject to appeal to the supreme court of the 
 state by the county treasurer, or Attorney General of the state, 
 
 23— Ante 345, note (1). 2i—Ante 345, note (1).
 
 292 THE LAW OF ESTATES. 
 
 in behalf of the people, or by any party having an interest in 
 said property. The fees and costs in all eases arising under this 
 section shall be the same as are now, or may hereafter be, allowed 
 by law in cases at law in the county court. ' '^s 
 
 370. Lien of the collateral inheritance tax. Section (22) : 
 "The lien of the collateral inheritance tax shall continue until 
 the said tax is settled and satisfied: Provided, that said lien 
 shall be limited to the property chargeable therewith; and, pro- 
 vided further, that all inheritance taxes shall be sued for within 
 five years after they are due and legally demandable, otherwise 
 they shall be presumed to be paid and cease to be a lien as 
 against any purchasers of real estate. "^^ 
 
 371. Repeal. Section (23) : "All laAvs or parts of laws 
 inconsistent herewith be and the same are hereby repealed. "^7 
 
 372. The act declared constitutional. In the case of Koch- 
 ersperger v. Drake,^^ the court holds the inheritance act to be 
 consistent with the constitution of the State of lUinois.^^ It 
 is said in the opinion of the court : Laws of this character have 
 been sustained in Pennsylvania, New York, Maryland, Virginia, 
 North Carolina and other states. They have been held invalid 
 in New Hampshire and Ohio and some other states. We are not 
 disposed to enter into an analysis of these cases and a considera- 
 tion of the principles on which they have been decided. The 
 broad principle presented is, that the legislature may create new 
 classes of property with reference to estates, under which they 
 may regulate the right to inherit or devise and take under de- 
 vise, and such right existing, such classes may be created, and 
 as created may be uniform, and the assessment by valuation, 
 
 25 — Sec. (211/2) added by act ap- Article 9, Sections 1 and 2; Starr 
 
 proved May 10, 1901. In force & Curtis Annotated Statutes of 
 
 July 1, 1901. Laws of 1901, p. 271. Illinois, with Jones & Addington's 
 
 See ante 345, note (1). Supplements thereto. Vol. 1, p. 
 
 26 — Ante 345, note (1). 165; Vol. 4, p. 15, and authorities 
 
 27 — Ante 345, note (1). cited under sections noted. Hurd'a 
 
 28—167 111. 122. R. S. of 111. 1905, pp. 68, 69. 
 
 29— Constitution of Illinois 1870,
 
 INHERITANCE TAX LAW OF ILLINOIS. 293 
 
 when declared to operate equally on the right of succession to 
 such classes, is not a violation of the provisions of the sections of 
 Article 9 of the constitution of the State of Illinois. 
 
 373. Laws governing descent and devise of property in Illi- 
 nois are wholly statutory and may be changed by the legisla- 
 ture at discretion. The reasoning of the court in the case of 
 Eochersperger v. Drake,^^ affords a good illustration of the 
 right of any state where the constitution permits, to pass laws 
 taxing gifts, legacies and inheritances. "The laws of descent 
 and the right to devise and take under a will within the 
 State of Illinois owe their existence to the statute law of the 
 state. The right to inherit and the right to devise being depend- 
 ent on legislative acts, there is nothing in the constitution of 
 this state which prohibits a change of the law with reference to 
 those subjects at the discretion of the law-making power. The 
 laws of descent and devise being the creation of the statute law, 
 the power which creates may regulate and may impose condi- 
 tions or burdens on a right of succession to the ownership of 
 property to which there has ceased to be an owner because of 
 death, and the ownership of which the state then provides for 
 by the law of descent or devise. The imposition of such a con- 
 dition or burden is not a tax upon the property itself, but on 
 the right of succession thereto. To deny the right of the state 
 to impose such burden, is to deny its authority to regulate the 
 administration of decedent's estate. 
 
 374. Domicile — when party is a resident within the mean- 
 ing of the inheritance tax act — what constitutes legal residence 
 under the act. The "residence" in Illinois contemplated by 
 the Inheritance Tax act is synonymous with "domicile" or 
 "abode." To bring about a change of residence there must 
 not only be an intention to make the change, but the same must 
 be actually effected by abandoning the old residence and per- 
 manently locating in a new one. One who has decided to move 
 
 30—167 111. 122; Ayers v. Chica- go Title and Trust Co., 187 111. 42.
 
 294 THE LAW OP ESTATES. 
 
 from Illinois to the home of his daughter in another state as 
 soon as his business is settled, but in the meantime is taken ill 
 and is taken by his daughter to her home for medical treatment 
 and care, where he dies within a short time, will be deemed a 
 resident of Illinois at the time of his death, within the mean- 
 ing of the Inheritance Tax act, where it appears such change 
 was not expected to be permanent, everything being left undis- 
 turbed at the old home.^i 
 
 375. Time when tax accrues and becomes payable. Gen- 
 erally speaking an appraisal of an estate under the Inheritance 
 Tax act is to be made as of the date of the testator's death. As 
 to estates in remainder not contingent, the appraisal is to be 
 made as of the date of the testator's death, and not at the death 
 of the life tenant. Ayers v. Chicago Title and Trust Co.^^ 
 This case holds that the statute imposing a tax on property 
 passing by will or descent, and providing that taxes on estates 
 in remainder, shall be immediately due and payable after ap- 
 praisal; unless the remaindermen "elect not to pay the same 
 until they shall come into actual possession; and where remain- 
 dermen do not or cannot make an election, the tax on the re- 
 mainder becomes immediately due and payable. And in that 
 case, the tax was held to take effect though the remaindermen 
 could not be individually identified until the termination of the 
 life estate, which upon the death of the life tenant was to go 
 to trustees, to be divided according to the inheritance laws. 
 But where remote and contingent interests are incapable of 
 
 31— People V. Moir, 207 111. 180; People, 189 111. 472; Magoun v. 
 
 10 Am. & Eng. Ency. of Law, 2d 111. Trust and Savings Bank, 170 
 
 ed., p. 9; Cooley on Taxation, 2d U. S. 283; Peoria Gaslight Co. v. 
 
 ed., p. 369; Thorndyke v. City of Peoria Terminal Ry. Co., 146 111. 
 
 Boston, 1 Mete. 242; Hayes v. 372-377. The rule was adopted 
 
 Hayes, 74 111. 312; Du Puy v. where the appraiser based his ap- 
 
 Wurtz, 53 N. Y. 556; People v. praisal upon public sales of securi- 
 
 Moir, 207 111. App. 188-189. ties at the Stock Exchange. In re 
 
 32—187 111. 42; see also the fol- Gould Estate, 46 N. Y. Sup. Ct. 
 
 lowing cases: Walker v. The 506; People v. Coleman, 107 N. 
 
 People, 192 111. 106; Billings v. Y. 544.
 
 INHERITANCE TAX LAW OF ILLINOIS. 295 
 
 valuation, and as to which the rate and the exemption cannot 
 be determined, the denial of the state to impose such a burden 
 or condition is to deny the right of the state to regulate the 
 administration of a decedent's estate." 
 
 376. The jurisdiction and powers conferred upon the County 
 Court and the judge thereof under the inheritance tax act have 
 been upheld. The power conferred by the legislature upon 
 the county court and judge thereof, to make the appraisement 
 and assessment under the inheritance tax law, also the power 
 conferred upon said court and judge thereof, to ascertain and 
 determine the character of any hospital, religious, educational, 
 bible, missionary, tract, scientific, benevolent or charitable in- 
 stitution, etc., made the beneficiary under any will, and to find 
 the fact whether such institutions are making dividends or 
 distributing profits or assets among its members, has been up- 
 held in the ease of Provident Hospital mid Training School v. 
 The People?^ And it is held in the case cited, the tax may 
 be enforced even though the will was not probated before the 
 amendatory act of 1901, took effect. The testator died June 7, 
 1901, making the hospital named his residuary legatee. The 
 will was probated July 10, 1901, and proceedings for the 
 appraisement of the property according to section 11 was taken 
 on November 4th, 1901. The act section 367a (2I/2), post, ap- 
 proved May 10, 1901, in force July 1, 1901, exempting certain 
 institutions from such tax, except "those which have the right 
 to make dividends or distribute profits or assets among its 
 members." The court holding, a tax under the inheritance tax 
 law becomes due and payable at the death of the testator; and 
 hence if the testator died before the amendatory act of 1901, 
 exempting legacies to hospitals, took effect, the county court has 
 power to make the appraisement and assessment upon a legacy 
 to a hospital, given by the will, and the tax may be enforced 
 
 33— Provident Hospital and 198 111. 495; Sherrell v. Christ's 
 Training School v. The People, Church of Poughkeepsie, 121 N. Y. 
 
 70L
 
 296 THE LAW OF ESTATES. 
 
 even though the will was not probated before the act took 
 effeet.34 
 
 377. Fair market value, cash value — appraisement. In Wal- 
 ker V. People,^^ it is said: "The Inheritance Tax law provides 
 the method and machinery for the valuation of property coming 
 within the operation of the law. Section (1) atite 346 of the 
 statute uses the expression "clear market value of such prop- 
 erty received by each person." Section (11) ante 357 uses the 
 phrases "value," "fair market value," and "cash value." 
 In arriving at the fair value of property, the appraiser, under 
 the act, has to be guided by the fair market value thereof, 
 and in ascertaining the same is authorized to call witnesses for 
 that purpose. Under the act, the appraiser and the county 
 judge and the county court are not limited in the valuation of 
 property to the market quotations of the same, but, for the 
 purpose of finding the fair cash value of the same, they may use 
 the quotations of the same on the public exchanges, private sales 
 of such property, testimony as to the actual value of the same, and 
 their own knowledge of the subject matter. "Fair market value" 
 has never been construed to mean the selling price of property at 
 a forced or involuntary sale.^^ The fair market value of shares 
 of stock in corporations, under the inheritance tax law, is not 
 
 34 — Provident Hospital and nois which would authorize the 
 
 Training School v. The People, 198 imposition of an inheritance tax, 
 
 111. 495. In the case of Connell v. is one of "practical and actual 
 
 Crosby, 210 111. 380, and cases ownership — the possession of a ti- 
 
 cited in the opinion, it is held, tie to something that can be con- 
 
 the section of the act in question, veyed." The court repeating the 
 
 exempting educational bequests language of Mr. Justice Finch, In 
 
 from such tax, is not retroactive, re Hoffman's Estate, 143 N. Y. 
 
 In Billings v. The People, 189 111. 327: "The state will get its tax 
 
 472, it is held, that an assessment when the legatees get their prop- 
 
 of the tax should be postponed erty." 
 until the interest passing is capa- 35 — 192 HI., page 110. 
 ble of valuation. In the case of 36 — Peoria Gaslight Co. v. Peo- 
 
 The People v. McCormick, 208 111. ria Terminal Railway Co., 146 111. 
 
 443-444, it is held, the condition 372. In re Gould's Estate, 46 N. Y. 
 
 contemplated by the statute of Illi- Sup. Ct. 506; People v. Coleman, 
 
 107 N. Y. 544.
 
 INHERITANCE TAX LAW OF ILLINOIS. 297 
 
 wliat they would bring at a forced sale if all should be put on 
 the market at once, but what they would bring at a sale at or 
 about the time of the testator's death, after due notice, under 
 fair conditions and in the ordinary course of business.^ '^ In 
 the case of Ayers v. Chicago Title and Trust Co.,^^ it is said: 
 It is the duty of the court to fix the cash value of all estates, 
 annuities, life estates or for a term of years, and the tax to 
 which they are liable; and hence the appraisement should show 
 the value of the estate received by each residuary legatee under 
 the will, after deducting the value of all gifts and legacies 
 preceding the residuary clause. 
 
 378. Property and interest therein liable to tax. Under the 
 inheritance tax act, all property passing by will or descent is 
 liable to be taxed. Thus an estate for life, or remainder, whether 
 vested or contingent, is liable for such tax.^^ As between the 
 widow and the state, the law will tax the dower interest whether 
 the widow accepts a devise for her benefit, or elects to take 
 dower in lieu thereof. ^° Section 2, providing "that when any 
 person shall devise any property to mother, father, husband, 
 wife, brother and sister, the widow of the son, or a lineal 
 descendant, during the life or for a term of years," or "re- 
 mainder to the collateral heir of the decedent, or to a stranger 
 in blood, or to the body politic or corporate, at their decease 
 or on the expiration of such term, the life estate or estates for 
 a term of years shall not be subject to any tax," exempts only 
 life estates with remainder to collaterals, strangers in blood, or 
 to a body politic or corporate from the tax imposed by section 1, 
 and not all life estates, since the word "or" in section 2 means 
 "and" or "with." And it is also held the term "intestate 
 laws" used in Inheritance Tax Law, as used in section 1 pro- 
 viding for such tax on all property which shall pass "by will 
 or by the intestate laws of this state," means those laws of the 
 
 37— Walker v. People, 192 111. 39— Ayers v. Chicago Title and 
 110. Trust Co., 187 111. 42. 
 
 38—187 III. 42. 40— Billings v. The People, 189 
 
 111. 472.
 
 298 THE LAW OF ESTATES. 
 
 state Avhieli govern the devolution of estates of persons dying 
 intestate, and includes all applicable rules of the common law 
 in force in this state. ^^ In Connell v. Crosby, '^^ it is said: 
 Section 2 of the Inheritance Tax act, exempting from the tax 
 a life estate devised or bequeathed to the wife, has no applica- 
 tion where the wife renounces the will and elects to take other 
 interests in the testator's property than the life estate devised 
 or bequeathed to her. In People v. McCormick,'^^ the term "ex- 
 pectation," used in section 1 of the Inheritance Tax act, where 
 a person shall become beneficially entitled, in possession or ex- 
 pectation, to any property or income thereof, means a condition 
 where the title is vested and indefeasible, the right to immediate 
 enjoyment being postponed. The condition under the act which 
 authorizes the imposition of the tax is one of actual ownership — 
 the possession of a title to something which can be conveyed. A 
 contingent estate cannot be taxed until it becomes vested, nor 
 can an estate which is vested subject to defeasance be taxed 
 until it becomes indefeasible."^'* "The right to tax is based 
 upon the right to succeed. The amount of the tax is fixed by 
 the amount of the property which, as the result of the right 
 to succeed, passes to the beneficiary. The tax is levied on the 
 succession, and not on the property as such. The rate must be 
 determined by the right of succession where the beneficiary is a 
 stranger, and the exemption, if any, must be determined by the 
 identity of the person who succeeds. When the bases of the 
 tax, the rate, and the exemption, if any, cannot be fixed, the tax 
 itself cannot be fixed. No other course is left open, in the 
 practical administration of the statute, than to postpone the 
 assessing and collecting of the tax upon such remote and con- 
 tingent interests as are incapable of valuation and as to wliieh 
 the rate and the exemptions cannot be determined. "^^ "The 
 
 41— Billings v. The People, 189 45— People v. McCormick, 208 
 
 111. 472. III. 437; Billings v. The People. 
 
 42—210 111. 380. 189 111. 472; In re Hoffman's 
 
 43—208 111. 437. Estate, 143 N. Y. 327; In re Roose- 
 
 44— Ayers v. Chicago Title and velt's Estate, 143 N. Y. 120; In re 
 
 Trust Co.. 187 111. 42. Stewart's Estate, 131 N. Y. 274;
 
 INHERITANCE TAX LAW OF ILLINOIS. 299 
 
 state will get its tax when the legatees get their property. "^^ 
 If the actual intention of the parties to a deed is that the pos- 
 session and enjoyment of the lands are postponed until the 
 grantor's death, the Inheritance Tax act is applicable, notwith- 
 standing such intention is not evidenced in writing. Where 
 deed to lands are executed simultaneously with a partnership 
 agreement between the grantor and the grantees, his sons, and 
 the income from the lands is thereafter carried into the partner- 
 ship account, one-half going to the grantor and the remainder 
 to the grantees, the one-half of the land as to which possession 
 is thereby postponed is subject to the Inheritance Tax act.^''' 
 An interest transferred by deed, grant, sale or gift is taxable, 
 under section 1 of the Inheritance Tax act if made in expecta- 
 tion of death or having death in view, whether there was a 
 fraudulent intent thereby to evade the law or not.'*^ Gifts 
 causa mortis would be within the statute.^^ 
 
 In Merrifield v. People,^^ the subject matter of the trans- 
 fer was both real and personal property, and the transfers 
 were absolute, and not upon the condition that they should be 
 revocable in case of the recovery of the donor. They were, how- 
 ever, made in contemplation of his death. They fell, therefore, 
 within the description of gifts ititer vivos, made in contempla- 
 tion of death, rather than within the designation gifts causa 
 mortis. Under this statement of the facts it was held : "As pro- 
 vided by section 1 of the Inheritance Tax act, all property, real, 
 personal and mixed, or any interest therein or income therefrom, 
 which shall be transferred by 'deed, grant, sale or gift, made 
 in contemplation of the death of the grantor or bargainor, or 
 intended to take effect in possession or enjoyment after the 
 
 7n re Curtis Estate, 142 N. Y. 219 ; 207 HI. 180; Reish v. Common- 
 
 In re Seaman's Estate, 147 N. Y. wealth, IOC Pa. St. 521; Appeal of 
 
 C9; In re Dow's Estate, 167 N. Y. Seibert, 110 Pa. St. 329. 
 
 233; In re Sloan's Estate, 154 N. 48— Rosenthal v. The People, 
 
 Y. 109. 211 111. 306. 
 
 46—143 N. Y. 327. 49— Telford v. Patton, 144 111. 
 
 47— People v. Estate of Moir, 611. 
 
 50—212 111. 400.
 
 300 THE LAW OF ESTATES, 
 
 death of the grantor or bargainor or shall be subject to a tax," 
 etc. The property in question shown by the record was con- 
 veyed without consideration, and for the purpose of placing 
 the title in the grantees prior to the death of the decedent. 
 It being said: "It is therefore clear the transfers were gifts, 
 made in conteraplation of death. The statute provides in case 
 of gifts, an inheritance tax shall be collected if (1) the gift 
 Avas made in contemplation of the death of the donor, or (2) 
 was intended to take effect in possession or enjoyment after 
 the death of the donor. It will be observed, however, the stat- 
 ute does not provide the donee of property shall be liable for an 
 inheritance tax, but only provides he shall be liable for an inher- 
 itance tax when the transfer is made in contemplation of the 
 death of the donor." 
 
 379. Exemptions. Lands situate in states other than Illinois, 
 and belonging to one who was a resident of Illinois at the time 
 of his death, are not subject to our Inheritance Tax law.^i 
 In the case of Connell v. Crosby,^" the will in question directed 
 the conversion of the real estate into money for the purpose 
 of creating a fund to be devoted to the establishment of the 
 "William and Vashti College," and it was argued, page 390, 
 that under the doctrine of equity the land is to be regarded 
 as converted into personalty, and therefore urged, that the 
 bequest of the proceeds of the sale of the real estate is subject 
 to the inheritance tax, as being personalty. Held: "The doc- 
 trine of equitable conversion is recognized in equity only, and 
 is not given effect in courts of law." It cannot be applied in 
 proceedings for the collection of inheritance or succession 
 taxes. ' '^3 Life estates or for a term of years, which are specifi- 
 cally enumerated in section (2) ante 347, of the Inheritance 
 Tax law, are the only estates not subject to tax; and this 
 exemption is dependent upon the further requirement that the 
 
 51— Connell v. Crosby, 210 111. 52—210 111. 380-390; 7 Am. & 
 
 380-388-390; Wunderle v. Wunderle, Eng. Ency. of Law, 2d ed., 465. 
 
 144 111. 40; Smith v. Smith, 174 53— /n re Swift's Estate, 32 N. 
 
 111. 52; Button v. Board of Review, E. Rep. 1096. 
 188 111. 386.
 
 INHERITANCE TAX LAW OF ILLINOIS. 301 
 
 I 
 remainder shall be to the collateral heirs of the decedent, or to a 
 stranger in blood or to a body politic or corporate.^^ And 
 under section 2l^ of the Inheritance Act, ante 348, exempt- 
 ing from the inheritance tax, gifts to any hospital, religious 
 or charitable society, the statute is not self-executing, since such 
 section provides, that such exemption shall not extend to any 
 corporation or association, which has the right to make divi- 
 dends or distribute profits among its members; therefore, the 
 county clerk must determine the character of the beneficiary.^^ 
 The amendatory act of 1901 (section 2i/o, Inheritance Tax act, 
 ante 348) was adopted for the purpose of relieving certain be- 
 quests, devises or gifts from the operation of the original act of 
 1895, The act does not apply to foreign corporations, but only 
 to corporations created under the authority of the state which 
 has over such, the power of visitation and control; unless, the 
 intent, that the act shall apply to other than domestic corpora- 
 tions is plainly expressed in the terms of the act.^"^ It is further 
 said. In re Estate of Speed, page 29 : It has frequently 
 been declared to be a well established principle of con- 
 stitutional law, that a corporation is not a ' ' citizen, ' ' within the 
 meaning of the first clause of section 2 of article 4 of the con- 
 stitution of the United States, which declares the citizens of 
 such state shall be entitled to all privileges and immunities of 
 citizens of the several states.^ '^ Foreign corporations are not 
 'within the jurisdiction' of a state other than that which created 
 them, within the meaning of those words as employed in section 
 one of the fourteenth amendment, until they have fulfilled the 
 conditions authorizing their admission into such state.^^ ^ 
 
 54 — Ayers v. Chicago Title and phrey v. State, 70 N. E. Rep. 957. 
 
 Trust Co., 187 III. 42. 57— /» re Estate of Speed, 216 
 
 55 — Provident Hospital and III. 23-29; Ducat v. City of Chi- 
 
 Training School v. The People, 198 cago, 48 111. 172 ; Same v. Same, 
 
 111. 495. 10 Wall. (U. S.) 410; Tatem v. 
 
 56 — In re Estate of Speed, 216 Wright, 23 N. J. L. 429; Pembia 
 
 111. 23; Dos Passos on Inheritance Consl'd Silver Mining Co. v. Penn- 
 
 Tax Law (2d ed.), section 36; sylvania, 125 U. S. 181. 
 
 People V. Western Seaman's 58 — Blake v. McClurg, 172 U. S. 
 
 Friend Society, 87 111. 246; Bailie's 239; In re Estate of Speed, 216 
 
 Estate, 39 N. E. Rep. 1007; Hum- III. 23-30.
 
 302 • THE LAW OF ESTATES. 
 
 foreign corporation is not, as to any other state, than that where 
 it was created, a 'person within its jurisdiction,' within the 
 meaning of the fourteenth amendment, until it has complied 
 with the laws of such state authorizing it to do business there. 
 The act of 1901, exempting from inheritance tax, property de- 
 vised to the use of religious, educational or charitable corpora- 
 tions, does not violate the constitutional rule of uniformity of 
 taxation by reason of its failure to extend the immunity to 
 foreign corporations.^^ In the case of People v. Kelley,^^ the 
 important fact shown by the record in that case, being, that a 
 trust deed was made by decedent as a provision for the grantor 's 
 two sons. The deed was held from record by mutual agree- 
 ment between the parties, but was fully delivered to the trustee 
 and possession of the premises turned over to the trustee at the 
 time of the delivery of the deed in trust. The court held, page 
 515 : ' ' We have examined this record with care, and have been 
 unable to discover any evidence which tends even remotely to 
 show that David Kelley thought he was about to die at the time 
 he executed said trust deed, or that he made said trust deed in 
 contemplation of his death. It is not the object of the statute 
 to prevent a parent from giving the whole or any portion of 
 his property to his children during his lifetime, if he so desires. 
 The only effect of the statute as a revenue measure is to sub- 
 ject property to an inheritance tax if the gift is made in con- 
 templation of the death of the donor." Attention is called in 
 this opinion and distinction is made between the case at bar and 
 that of Bosenthal v. People and Merrifield v. People.^^ "Where 
 the evidence clearly shows both Rosenthal and Merrifield were 
 about to die at the time they made transfers of the bulk of 
 their estates, in contemplation of death, which they knew was 
 likely to follow almost immediately. The case of People v. 
 
 59 — Blake v. McClurg, 172 U. S. distinction is made between these 
 239; In re Estate of Speed, 216 111. cases and that of People v. Kelley, 
 23-30. 218 111. 515. The latter case it is 
 
 60—218 111. 509-515. said by the court applies the doc- 
 
 61—211 111. 306; 212 111. 400; a trine laid down in the case of Peo- 
 ple V. Moir, 207 111. 180.
 
 INHERITANCE TAX LAW OF ILLINOIS. 303 
 
 Kelley, supra, applies the doctrine laid down in People v. Moir, 
 to the effect : That where a trust deed, not made in contempla- 
 tion of death, takes effect on delivery, for the sole benefit of the 
 cestuis que trust (the three sons of Moir), the county court 
 and judge thereof under the powers conferred by the Inheri- 
 tance Tax act, may separate the portion to take effect in presenti 
 and in futuro, and apply the inheritance tax to so much of the 
 estate as was necessary to create an annual income subjected to 
 such tax.^2 
 
 62— People v. Moir. 207 111. 180. 110 Pa. St. 329, 24 Am. and Eng. 
 See also Reish v. Commonwealth, Ency. of Law, p. 464, which gives 
 106 Pa. St. 521; Appeal of Seibert, the doctrine applied in the case of 
 
 People V. Moir.
 
 CHAPTER XVI 
 
 LAND TITLES-" TORRENS LAW" 
 
 Sec. 
 
 380. Land titles "Torrens law." 
 
 381. The applicant must prove ti- 
 
 tle as against all the world. 
 
 382. The relation of the examiner 
 
 under the act, that of mas- 
 ter. 
 
 383. The act extends to executors, 
 
 Sec. 
 
 administrators and trustees, 
 unless excused by probate 
 court. 
 
 384. Application to be referred to 
 
 examiners, proceedings of. 
 
 385. Submission of question as to 
 
 adoption of act. 
 
 Sec. 380. Land titles — "Torrens Law." In 1897, the legis- 
 lature of Illinois passed an act, which went into force May 1, 
 1897, entitled "An Act Concerning Land Titles," commonly 
 known as the "Torrens Law." The act comprises 62 sections, 
 1 to 61a, chapter 30, entitled " Conveyances. "^ The first case 
 under this act was in the nature of quo warranto proceedings, 
 intended to test its constitutionality.- The supreme court by a 
 very elaborate and learned opinion passes upon the many points 
 raised against the act, upholding the constitutionality of the 
 same, with the exception of those sections in the act, which relate 
 to descent of lands on the death of a registered owner; and also 
 to those sections of the act relating to the sale and mortgage of 
 real estate belonging to minors and others under disability. The 
 court holding those sections involve a construction that may only 
 be satisfactorily determined when cases shall arise involving 
 their validity, and which would not go to the validity of the 
 whole law. On pages 176, 177, the opinion states: "The true 
 theory of this act, as we understand it, is, that all holders of 
 
 1— Starr & Curtis Annotated Kurd's R. S. of 111. 1905, pp. 472 
 
 Statutes of Illinois, with Jones & to 490, inclusive. Sections 1 to 
 
 Addington's Supplements thereto, 61a, Chapter 30, entitled "Con- 
 
 Vol. 4, pp. 259 to 282, inclusive; veyances." 
 Vol. 5, pp. 120 to 122, inclusive; 2— People v. Simon, 176 111. 165. 
 
 304
 
 LAND TITLES— "TORRENS LAW." 305 
 
 vested tights shall be subjected to an adjudication in a court of 
 competent jurisdiction, upon due notice, in order that the true 
 state of the title may be ascertained and declared, and that 
 thereafter, the tenure of the owner, the right of transfer and 
 incumbrance, and all rights subsequently accruing, shall be de- 
 termined in accordance with the rules now prescribed. A state 
 may, by statute, prescribe the remedies to be pursued in her 
 courts, and may regulate the disposition of the property of her 
 citizens by descent, devise or alienation.^ The right of owner- 
 ship which an individual may acquire must therefore, in theory 
 at least, be held to be derived from the state, and the state has 
 the right and power to stipulate the conditions and terms upon 
 which the land may be held by individuals."^ "The power of 
 the state to regulate the tenure of real property within her 
 limits, and the modes of its acquisition and transfer, and the 
 rules of its descent, and the extent to which a testamentary 
 disposition of it may be exercised by its owners, is undoubted. ' '^ 
 "The power of the legislature in this respect (as to changing 
 the rules of evidence as to the burden of proof), whether affect- 
 ing proof of existing rights or as applicable to rights subse- 
 quently acquired or to future litigation, so long as the rules of 
 evidence sought to be established are impartial and uniform in 
 their application, is practically unrestricted."^ 
 
 381. The applicant must prove title as against all the world. 
 
 The applicant proceeds under the act as in chancery, and the 
 rules of such courts are always applicable.'''^ The applicant for 
 registration must establish, that the true title in fee is in him 
 before he can have relief or require those whom he has brought 
 before the court as defendants to bring their titles for adjudica- 
 tion. If the applicant does not prove such title as is entitled to 
 
 3—3 Washburn on Real Prop- 5— Arndt v. Griggs, 134 U. S. 
 
 erty, 4th ed.. p. 187, and authori- 316-321 and authorities cited, 
 
 ties cited in notes. 6— Gage v. Caraher, 125 111. 447- 
 
 4 — Tiedman on Real Property, 455. 
 
 2nd ed., sec. 19, and case cited. 7— Gage v. Consumers' Electric 
 
 Light Co., 194 111. 34; 
 20
 
 306 THE LAW OF ESTATES. 
 
 be registered as a title in fee he cannot have relief, either in the 
 way of registration of his own title or a declaration finding that 
 the adverse claimants have no title, or that the claims of the 
 adverse claimants are clouds on such prima facie title as the 
 applicant may be able to show in bills to remove clouds from 
 title.^ It was not the design of the act that a mere prima facie 
 title should be registered as an absolute title in fee simple. The 
 applicant for initial registration of title in fee simple asserts 
 that he is the owner of such title as against all the world and 
 undertakes to establish it.'^ But in the case of Glos v. Mickow^^ 
 proof of possession of land under claim and color of title made 
 in good faith, coupled "with payment of taxes upon the property 
 for a period of seven successive years, held, sufficient in the 
 absence of any other evidence to authorize registration of title. 
 Failure to make the husband and heirs of a deceased sister of 
 the applicant parties to an application to register title, does 
 not defeat the right to registration; where the interest of the 
 deceased sister was barred before her death by the 20 year stat- 
 ute of limitations. A defendant to an application for registra- 
 tion of title cannot complain that the decree was entered without 
 sufficient service by publication as to certain persons made de- 
 fendants, when the latter were defaulted and do not complain 
 of the decree.i^ But a party relying upon adverse title to defeat 
 initial title applied for must establish it. And under certain 
 circumstances the applicant must show title from the govern- 
 ment.^ - 
 
 382. The relation of the examiner under the act, that of 
 master to the court. The relation of the examiner to the court 
 as created by the act, is that of a master in chancery as in other 
 
 8 — Glos V. Kingman & Co., 207 of Chicago v. Middlebrooke, 143 
 
 111. 26. 111. 265. 
 
 9— Glos V. Cessna, 207 111. 69; 11— McLaughlin v. Covel, 222 
 
 Glos V. Kingman & Co., 207 111. 26; III. 162. 
 
 Glos V. Holberg, 220 111. 167. 12— Glos v. Halberg, 220 111. 167. 
 
 10 — 211 111. 117; see also, City 13 — Gage v. Consumers' Electric 
 
 Light Co., 194 111. 34.
 
 LAND TITLES— "TORRENS' LAW." 307 
 
 proceedings, and if no objections are made to the sufficiency of 
 the applicant's evidence by exceptions to the examiner's report, 
 such objection is waived.^^ An objection to the report of an 
 examiner of titles is in the nature of a special demurrer, and 
 such must point out the grounds of the objection with clearness 
 and certainty.^^ The rule in chancery proceedings, such as the 
 court has declared the application for initial registration of title 
 to be, applies alike to examiners of title and masters of court. 
 The rule in equity requires the party who may desire to have 
 the court revise the rulings of the master as to the admission or 
 rejection of evidence, to file objections to the master's report 
 before it is returned into court; pointing out the grounds with 
 reasonable certainty; then, if the master still adheres to his 
 ruling and report, and returns it into court, the party object- 
 ing may then file his exceptions to the report, corresponding 
 with the objections made before the master, upon the hearing 
 of which the whole, or such part of the evidence as may be 
 material, will be brought forward and be subject to review by 
 the court.15 On the hearing before the examiner, under this 
 act, the introduction in evidence of an abstract of title show- 
 ing the records of conveyances, which were indispensable links 
 in petitioner's chain of title, without requiring any preliminary 
 proof which might render the abstract admissible as secondary 
 evidence was error. In such ease proof should be made that 
 the original deeds had been lost or destroyed by fire or other- 
 wise, and that the abstract of title had been made in the ordinary 
 course of business, so that proof so made be brought within sec- 
 tions (1) 23 or 24 of chapter 116, entitled "Records Destroyed" 
 or within the provisions of (2) section 36, chapter 30, entitled 
 "Conveyances."^'^ 
 
 14— Glos V. Hoban, 212 111. 222. Vol. 3, pp. 335S, 3359; Vol. 4, p. 
 
 15 — Hurd V. Goodrich, 59 111. 1073, and cases cited under sec- 
 
 450; Glos v. Hallowell, 190 111. 65. tions 23 and 24, chapter 116, en- 
 
 16 — Glos V. Hallowell, 190 111.65; titled "Records Destroyed"; Kurd's 
 
 (1) Starr & Curtis Annotated R. S. of 111., 1905, same sections 
 
 Statutes of Illinois, with Jones & and chapter, p. 1626. (2) Starr & 
 
 Addington's Supplements thereto, Curtis Annotated Statutes of Illi-
 
 308 THE LAW OP ESTATES. 
 
 As it has been held, that sections 7 and 18 of the Torrens Land 
 Title Law, has never been legally adopted in Cook County, it is 
 essential to make preliminary proof in proceedings to register 
 title, under the provisions of section 24 of the Records Act.^'^ 
 
 383. Application for registration of lands — executors, admin- 
 istrators and trustees required to make application unless ex- 
 cused by the Probate Court in case of hardship. An act to 
 
 amend sections seven (7) and eighteen (18) of an act entitled, 
 *'An act concerning land title," approved and in force May 1, 
 1897, approved May 18, 1903. In force July 1, 1903, as follows : 
 "Sec. 7. The owner of any estate or interest in land, whether 
 legal or equitable, may apply, as hereinafter mentioned, to have 
 his title regist-ered. He may apply in person or by an attorney 
 in fact authorized so to do; a corporation may apply by its 
 authorized agent; an infant by his natural or legal guardian; 
 any other person, under disability, by his legal guardian. Ex- 
 cept in applications by executors and administrators the person 
 in whose behalf the application is made shall be named as ap- 
 plicant. It shall be the duty of all executors and administrators, 
 appointed after the adoption of this act and trustees holding 
 ^itle or power of sale under wills admitted to probate after that 
 date to apply within six months after their appointment, to 
 have registered the titles to all non-registered estates and inter- 
 
 nois, with Jones & Addington's Starr & Curtis Annotated Statutes 
 
 Supplements thereto, Vol. 1, pp. of Illinois, with Jones & Adding- 
 
 955, 956; Vol. 4, p. 258; Vol. 5, p. ton's Supplements thereto. Vol. 3, 
 
 119, and cases cited under section p. 3361; Vol. 4, p. 1073, and cases 
 
 36, chapter 30. entitled "Convey- cited under sections of statute; 
 
 ances"; Kurd's R. S. of 111., 1905, Kurd's R. S. of 111. 1905, pp. 473, 
 
 same section and chapter, p. 470; see also. Messenger v. Messenger, 
 
 see also, Glos v. Cessna, 207 111. 223 111. 282; sections 7 and 18 Tor- 
 
 69; Glos V. Talcott, 213 111. 81. reus Land Title Act, Chapter 30. 
 
 17 — Post 384; sec. 7, 18, Chapter "Conveyances." Starr & Curtis 
 
 30, entitled "Conveyance," an act Statutes etc., Vol. 4, pp. 260, 263; 
 
 concerning land titles; sec. 24, Kurd's R. S. of 111. 1905, pp. 473, 
 
 chapter 116, "Records Destroyed"; 475; Karvey v. County of Cook, 
 
 221 111. 76.
 
 LAND TITLES— "TORRENS LAW." 309 
 
 ests in land (situated in any county in which this act at the time 
 is in force), which the several decedents they represent might 
 have registered in their lifetime in their own right. Such appli- 
 cation shall set forth the names and addresses of the persons 
 entitled to the estate or interest sought to be registered, and any 
 such person not joining in the application shall be made a de- 
 fendant. The court, in its final decree, in addition to what is 
 provided in the subsequent sections of this act, shall determine 
 the several titles and interests of the persons claiming under 
 the decedent, and declare the same, and decree in whom regis- 
 tration shall be made. Land so registered shall be subject to 
 be sold for the debts of the estate of the decedent, as now pro- 
 vided by law. Provided that the court of probate jurisdiction, 
 of the county in which the land is situated, in cases where regis- 
 tration may appear to be a hardship, may, by an order entered 
 of record, excuse such application for registration as to the 
 whole or any part of the land. 
 
 384, Application to be referred to examiner — proceedings of. 
 
 Sec. 18. Immediately upon the filing of the application, an 
 order may be entered referring the same to one of the examiners 
 of title appointed by the registrar, who shall proceed to examine 
 into the title and into the truth of the matter set forth in the ap- 
 plication, and particularly whether the land is occupied, the 
 nature of the occupation, if occupied, and by what right, and 
 make report in writing to the court, the substance of the proof 
 and his conclusions therefrom. He shall have power to admin- 
 ister oaths and examine witnesses, and may at any time apply 
 to the court for directions in any matter concerning his inves- 
 tigation. The examiner may receive in evidence any abstract 
 of title or certified copy thereof, made in the ordinary course 
 of business by makers of abstracts ; but the same shall not be 
 held as more than prima facie evidence of title, and any part or 
 parts thereof may be controverted by other competent proof;<. 
 He shall not be required to report to the court the evidence 
 submitted to him except upon the request of some party to the 
 proceeding, or by the direction of the court. No report shall
 
 310 THE LAW OF ESTATES. 
 
 be made upon such application until after the expiration of the 
 time specified in the notice hereinafter provided for the appear- 
 ance of the defendants, and in ease of such appearance, until 
 opportunity is given to such defendant to contest the rights of 
 the applicant in such manner as shall be allowed by the court.^^ 
 385. Submission of question as to adoption of act. Section 
 2. The provisions of this act shall not apply to land in any 
 county, where the act of which this act is an amendment has 
 been adopted, until this act shall have been adopted by a vote 
 of the people of the county at an election to be held on the Tues- 
 day next after the first ]\Ionday in November, or any election 
 for the election of judges of the year in which the question is 
 submitted. The question may be submitted in the following 
 manner:- In any county of the first or second class, as the same 
 are classified in the act concerning- fees and salaries, on the 
 petition of not less than one-half of the legal voters, to be ascer- 
 tained by the vote cast at the last preceding election for county 
 officers, or in any county of the third class upon petition of not 
 less than twenty-five hundred (2,500) legal voters praying the 
 submission of the question of the adoption of this act, the clerk 
 shall give notice that such question will be submitted at such 
 election and shall cause to be printed at the top of the ballots 
 to be used for said election : 
 
 I For extension of the Torrens land title system 
 
 Against extension of the Torrens land title svstem 
 
 The votes cast upon that question shall be counted, canvassed 
 and returned as in the case of the election of county officers. 
 If the majority of the votes cast on that subject shall be for 
 extension of the Torrens land title system, this act shall there- 
 after be in force and appty to lands in that county. If the ma- 
 jority of the first submission is not in favor of such extension, 
 the question shall not be again submitted before the second year 
 thereafter. 
 
 18— See Ante 382.
 
 LAND TITLES— "TORRENS LAW." 311 
 
 Note. — Since the passage of this amended act, and at the 
 spring election of 1904, the Torrens system was submitted for 
 vote of the people of Cook County, Illinois. The vote was 
 largely for the extension of the Torrens system, but for defects 
 in the submission, the vote of the people at such election, failed 
 legally to express the intention of the law. No steps up to this 
 time have therefore been taken by the court of probate to put 
 the act in operation in any estate pending in that court.^^ 
 
 19— Harvey v. County of Cook, 221 111. 76.
 
 CHAPTER XVII 
 
 ADMINISTRATION 
 
 Sec. 
 
 386. Necessity of administration. 
 
 387. Different administrators de- 
 
 fined. 
 
 388. Domiciliary and ancillary ad- 
 
 ministrators. 
 
 389. Administrator pro tern. 
 
 Sec. 
 
 390. Administrator de bonis non 
 
 or with will annexed. 
 
 391. Administrators to collect. 
 
 392. Administrators de son tort. 
 
 393. Public administrators. 
 
 Sec. 386, Necessity of administration. It is undoubtedly the 
 best and safest practice, that estates of deceased persons be 
 settled by proper administration. This is not always done, for 
 the law does not make it indispensable that every estate shall 
 be administered, merely for the sake of administration. In 
 some instances the distributees have made settlements of estates 
 between themselves, and such settlements have been sanctioned 
 and ratified by the courts. Where a wife died without children 
 or descendants, leaving her surviving a husband, who took pos- 
 session of a part of his deceased wife's property and allowed his 
 wife's mother to have the remainder of it, there being no debts 
 of any kind to be paid. It was held, that in such case administra- 
 tion would not be granted to the husband solely to enforce his bare 
 legal title to that part of his wife's estate which her mother had 
 taken; she being in equity entitled to it by virtue of a settle- 
 ment made between herself and said surviving husband.^ Where 
 the husband, the sole heir of his deceased wife as to her per- 
 sonal estate, has paid all her debts and liabilities, and as such 
 heir, having possession of all her personal estate, makes a vol- 
 
 1— Abbott V. People, 10 111. App. 
 62; and see also in support of the 
 doctrine in this case the following: 
 Harrington v. Lawman, 47 N. Y. 
 
 Sup. Ct. 868; Elliott v. Lewis, 3 
 Edw. Ch. 40; Bogert v. Furman, 
 10 Paige 496; Estate of Wagner, 
 119 N. Y. 28. 
 
 312
 
 ADMINISTRATION. 313 
 
 untary disposition of promissory notes payable to his wife, no 
 administration is necessary to collect the notes; and, if ap- 
 pointed the administrator will not be entitled, as a matter of 
 right, to have the husband's equitable assignee surrender such 
 notes to him merely to collect them and charge his commissions 
 on the amount when collected.^ No administration is necessary 
 to vest decedent's title in next of kin, where the decedent died 
 in infancy incapable of contracting debts.^ The Statute of 
 Illinois providing that title to property vests in the heirs of an 
 intestate after payment of just debts, does not dispense with the 
 necessity of administration, so as to allow the heirs of such 
 intestate to sue directly in their own names for the recovery of 
 the assets.^ 
 
 It is as proper to appoint an administrator for the collection 
 of debts, as for the sale of lands. ^ It is also necessary where 
 a creditor charges insolvency and fraudulent conveyance by a 
 deceased in his bill in equity asking for a receiver to take out 
 administration; equity will not entertain a bill by such creditor 
 where no administration has been had on the estate of a deceased 
 person.® So where the plaintiff died pending an action by 
 him to recover coal mined and removed from his land by the 
 defendant company, who converted the same to its own use, 
 it was held: The widow of decedent, as his sole devisee and 
 legatee under his will, could not on her own suggestion be sub- 
 
 2— McKee v. Abbott, 105 111. 592- 4— Leamon v. McCubbin, 82 111. 
 593; Dixon v. Buell, 21 111. 203; 263; sections 42-43, chapter 3, en- 
 Lewis V. Lyons, 13 111. 117; Dor- titled "Administration of Estates," 
 man v. Tost, 13 111. 27; Fitzgerald Starr & Curtis Annotated Statutes 
 V. Clancy, 49 111. 465; Leamon v. of Illinois, with Jones & Adding- 
 McCubbin, 82 111. 263; Cross v. ton's Supplements thereto. Vol. 1, 
 Carey, 25 111. 562. The latter case pp. 286, 287, and case cited under 
 holding, if there are no debts, the sections of statute noted; Kurd's 
 sole heir may sell personal prop- R. S. of III. 1905, same sections 
 erty without taking out adminis- and chapter, p. 112. 
 tration. 5— Walker v. Walker, 55 111. 
 
 3— Lynch v. Rotan, 39 111. 14; App. 118. 
 
 Von Giessen v. Bridgford, 83 N. Y. 6— Goodman v. Koppert, 1G9 111. 
 
 348. 136.
 
 314 THE LAW OF ESTATES. 
 
 stituted as a party plaintiff in such action, without first obtain- 
 ing letters of administration on the estate of her deceased hus- 
 band.^ Courts of Probate alone have power to appoint adminis- 
 trator.s 
 
 387. Different administrators defined. Foreign representa- 
 tives of deceased persons' estates are usually termed non-resi- 
 dent executors and administrators. Suits by such are subject 
 to the same rules of pleading as those by domestic representa- 
 tives. Such may appear in the courts of Illinois and defend the 
 interests of their estates. They may under section 42 of Chapter 
 3, entitled ''Administration of Estates," appear in any court 
 in any way in which it becomes necessary for them to properly 
 prosecute or enforce any claim of estates testate or intestate.^ 
 The letters of such may be proved under the Act of Congress as 
 provided by the Statute of Illinois.^^ Under sections 42 and 43 
 of the Administration act {ante, 336) there may be an executor 
 in a foreign state and an administrator with the will annexed 
 in this State.^^ Administration is properly granted on the 
 estate of a non-resident owner of lands in the county of this 
 State where the lands or some part thereof are situated.^^ 
 
 388. Domiciliary and ancillary administrators defined. 
 Where a decedent at the time of his death was a resident of the 
 State of Illinois, and administration was granted in this State, 
 
 7— McLean County Coal Co. v. Union R. & T. Co. v. Shacklett, 119 
 
 Long, 91 111. 617. 111. 232; Hickox v. Frank, 102 111. 
 
 8— Leddicoat T. Treglorm, 6 660. 
 
 Colo. 47. - 11— Sec. 42 and 43, chapter 3, 
 
 9 — Collins V, Ayers, 13 111. 358; "Administration of Estates," Starr 
 
 Decker v. Patton, 20 111. App. 210; & Curtis Annotated Statutes of 111., 
 
 sec. 42, chapter 3, "Administration Vol. 1, pp. 286, 287; Kurd's R. S. 
 
 of Estates," Starr & Curtis An- of 111. 1905, p. 112; Branch v. Ran- 
 
 notated Statutes of Illinois, Vol, 1, kin, 108 111. 444. 
 
 p. 286, and cases cited under sec- 12 — Bowles v. Rouse, 3 Gilm. 
 
 tion of statutes noted; Kurd's R. (111.) 409; section 18, chapter 3, 
 
 S. of 111. 1905, p. 112. See also "Administration of Estates," as 
 
 (ante 386 of this work). amended May 12, 1905. In force 
 
 10— Collins V. Ayers, 13 111. 358; July 1, 1905. Kurd's Statutes of 
 
 111., 1905, p. 107.
 
 ADMINISTRATION. 315 
 
 such administration will be considered and treated as the prin- 
 cipal administration; and that granted to the same adminis- 
 trator in another State the ancillary administration.^^ When a 
 person dies testate in another state, it is, where the proceeding 
 is regular, proper to appoint an administrator in this state 
 with the will annexed for the purpose of local administration.^'* 
 
 389. Administrator pro tem. An administrator pro tern 
 should be appointed to sue vrhcre the administrator inventories 
 debts from himself to the estate, but denies his 1 lability.^ •'^ And 
 see the following cases treating the subject of such administra- 
 tion when and how granted. The time of holding such office 
 and the rights, duties and liabilities of such.^^ 
 
 390. Administrator de bonis non or with will annexed. 
 
 Where it appears that a person, at the time of his death, ovv^ned 
 land which was not inventoried or accounted for by his admin- 
 istratrix, letters of administration de bonis non will be granted 
 on the petition of a creditor made after the discharge of the ad- 
 ministratrix.i '^ Administrators with the will annexed are 
 usually appointed and authorized to perform any act in the 
 execution of the will and left unperformed by the executor. 
 But it is very essential that such administrator, have the aid 
 and assistance of the court in the performance of the duties un- 
 finished by the executor formerly acting under the powers in 
 the will solely bestowed on him as such. The words used in 
 section 37, Chapter 3, of the Administration act.^^ *'If there is 
 any thing remaining to be performed in the execution of the 
 
 13— Ramsey v. Ramsey, 196 III. Matter of Eddy, 26 Weekly Dig. 
 
 179. 141; Matthews v. American Cen- 
 
 14— Walker v. Walker, 55 111. tral Ins. Co., 41 N. Y. Sup. Ct. 304. 
 
 App. 118. 17— Tillson v. Ward, 46 App. 179; 
 
 15 — May v. Lighty, 26 111. App. Casoni v. Jerome, 58 N. Y. 315. 
 
 17. 18— Section 37, chapter 3, "Ad- 
 
 16 — Saw Mill Co. v. Dock, 3 ministration of Estates." Starr & 
 
 Dem. Surr. 55; Estate of Dock, 7 Curtis Annotated Statutes of Illi- 
 
 Civ. Proc. (Browne) 237; West v. nois, Vol. 1, p. 284, and cases cited 
 
 Maples, 14 Weekly Dig. 92; Weed under section. Kurd's R. S. of 111., 
 
 V. Waterbury, 5 Redf. Surr. 114; 1905, p. 111.
 
 316 
 
 THE LAW OF ESTATES. 
 
 will," does not authorize such administrator to execute a power 
 of sale in the will ; these words mean something to be performed 
 as executor, and do not extend to anything to be done as agent 
 or trustee under a power to sell land.^^ 
 
 19— Nicoll V. Scott, 99 111, 536; 
 Hall V. Irwin, 2 Gilm. (111.) 176; 
 see the following cases, where acts 
 have been performed by adminis- 
 trators, and have been sanctioned 
 by the courts, as within the gen- 
 eral powers of such. Newhall v. 
 Turney, 14 111. 338, it is held: 
 The powers of an administrator 
 de bonis non, extend only to the 
 recovery of such goods and chat- 
 tels of the intestate as remains un- 
 administered in specie, and to 
 debts due the intestate which re- 
 main unpaid. But his authority 
 does not extend to assets already 
 administered. Such cannot call 
 upon a former administrator, nor 
 upon his personal representatives, 
 to account for any part of the 
 estates sold, converted, or wasted 
 by him. But the creditors or the 
 distributees may. Rowan v. Kirk- 
 patrick, 14 111. 1, holds in harmony 
 with former case cited: But it is 
 held the distributees or creditors 
 of the first intestate should prose- 
 cute the representatives of the first 
 administrator, for any waste or 
 misapplication of assets. DuflBn 
 V. Abbott, 48 111. 17. In this case 
 the former decisions are overruled 
 so far as in conflict with this deci- 
 sion rendered after statute sec. 39, 
 chapt. 3, "Administration of 
 Estates" was passed in 1845, and 
 see also sec. 13, chapter 103, "Of- 
 ficial Bonds," (1) Kurd's R. S. of 
 111., p. Ill; (2) p. 1419: In the 
 Duffin case, it was held under the 
 
 statute, then in force and now for 
 that matter, an administrator de 
 bonis non, has the authority to 
 call upon a former administrator, 
 whose letters have been revoked, 
 to account fully for his adminis- 
 tration of the estate. In Bostwick 
 v. Skinner, 80 111. 147, it is held: 
 When a petition is filed in the 
 county court, for leave to sell real 
 estate, one of the questions pre- 
 sented for adjudication by the 
 court is, whether the petitioner is 
 administrator, and if the court de- 
 crees in accordance with the prayer 
 of the petition, the presumption 
 is that the proof was sufficient. 
 In Hanifan v. Needles it is held to 
 be a rule of the common law that 
 the powers and the duties of an 
 administrator de bonis non are 
 limited to the administration of 
 such property belonging to the 
 decedent's estate as has not al- 
 ready been administered upon by 
 the former executor or adminis- 
 trator. And when such is appoint- 
 ed to fill a vacancy caused by the 
 removal of an executor or admin- 
 istrator, he may maintain any ap- 
 propriate action or proceeding 
 against such removed executor or 
 administrator, for any waste, mis- 
 management or breach of 
 duty in respect to the estate 
 during the administration of 
 the latter, but not so where 
 the vacancy was caused by death. 
 In such case, the heirs, dev- 
 isees or creditors alone can main- 
 tain the action. In the case of
 
 ADMINISTRATION. 
 
 317 
 
 391. Administrators to collect. In a contest of a will, the 
 court of probate may, on the application of the widow stating 
 that her award had not been set out to her, and that the assets 
 of the estate are in danger of being lost pending the appeal of 
 such contest, appoint administrator to collect.^o 
 
 Administrator to collect has no power to make disburse- 
 ments. ^^ And cannot make investments for he has no such 
 power.-2 And such administrator cannot receive before ma- 
 turity the payment of notes.^s 
 
 392. Administrators de son tort. Where one not the execu- 
 tor or administrator of a deceased person, assumes to act as 
 such, or appropriates the goods or property of the deceased to 
 his o^n use, he renders himself liable as executor or adminis- 
 trator de son tort.^* 
 
 Keplinger v. Keplinger, 172 111. 
 449, the rule that the administra- 
 tor of a deceased executor does 
 not succeed to the estate of the 
 deceased executor is universally 
 settled. And the common law rule, 
 that a sole executor may transmit 
 to his executor the administration 
 of the estate of his testator, has 
 no application in a case where the 
 original testator designated in his 
 will, a person to succeed as execu- 
 tor in case of the death of the 
 person named to execute the will. 
 See also, Woerner's Am. Law of 
 Administration, p. 394; 2 Black- 
 stone's Com. 506; Roanoke Navi- 
 gation Co. V. Green, 3 Dev. L. 434; 
 see also the following cases in 
 point of matter in text: Neiniger 
 V. Fietsam, 29 111. App. 648; Huff- 
 man V. People, 78 111. App. 355; 
 Holden v. Piper, 5 Colo. Ct. of App. 
 71. The following cases hold, in 
 the particular proceeding had, and 
 
 the facts governing the cases, that 
 it is improper to appoint such ad- 
 ministrator, for the purpose 
 sought: Grafferwreid v. Kundert, 
 34 111. App. 483; Matter of Curtis, 
 37 N. Y. Sup. Ct. 586. 
 
 20— Schenck v. Schenck, 80 HI. 
 App. 613; sections 11 to 17, chapt, 
 3, "Administration of Estates," 
 Starr & Curtis Annotated Statutes 
 of Illinois, Vol. 1, pp. 272, 273, 274; 
 Kurd's R. S. of 111., 1905, pp. 106, 
 107. 
 
 21 — In re Estate of Wincox, 186 
 111. 454. 
 
 22— People v. Solomon, 184 111. 
 499. 
 
 23— 7n re Estate of Wincox, 186 
 111. 454. 
 
 24— Trutt V. Cummons, 6 III. 
 App. 73; Camp. v. Elliott. 38 111. 
 App. 337; Bradford v. Bennett, 48 
 111. App. 145; Rohn v. Rohn. 204 
 111. 184; Same v. Same, 98 111. App. 
 509; Truesdell v. Burke, 145 N. Y. 
 612.
 
 318 THE LAW OF ESTATES. 
 
 393. Public administrators. Are created by statute and ap- 
 pointed by the Governor of the State of Illinois. Chapter III 
 of this work, ** Public Administrators." When given the ad- 
 ministration of an estate by the courts of probate, they are held 
 to the same powers and duties as other administrators. Their 
 appointment is made where special conditions and circum- 
 stances specified by the statute of the state arise when they seek 
 the administration of an estate.^^ 
 
 25— Sections 18, 44 to 50, chap- 107, 112, 113; Brand v. Rankin, 
 
 ter 3, "Administration of Estates," 108 111. 444; Heirs of Langworthy 
 
 Starr & Curtis Annotated Statutes v. Baker, 23 HI. 484. 
 of Illinois, with Jones & Adding- Note. — As the several kinds of 
 
 ton's Supplements thereto. Vol. 1, administrators, their powers and 
 
 pp. 287, 288, 289; Vol. 4, p. 32; Vol. duties, come in natural order 
 
 5, p. 16, and cases cited under sec- throughout this work, we shall in 
 
 tions of statute noted in each vol- the order of procedure consider 
 
 ume; Kurd's R. S. of 111. 1905, pp. such, with their legal powers and 
 
 duties.
 
 CHAPTER XVIII 
 
 ADMINISTRATION-CONTINUED 
 
 Sec. 
 
 394. Preliminary remarks. 
 
 395. Granting letters testamentary 
 
 or of administration. 
 
 396. Executor's duty and custodi- 
 
 an's duty to present will. 
 
 397. Age and qualification of ex- 
 
 ecutors. 
 
 398. Executor's power and liability 
 
 before probate of will. 
 
 399. Death, failure of part of ex- 
 
 ecutors to qualify. 
 
 Sec. 
 
 400. Oath of executor or adminis- 
 
 trator. 
 
 401. Bond of executor or adminis- 
 
 trator with the will an- 
 nexed. 
 
 402. When security not required. 
 
 403. Removal of executors or ad- 
 
 ministrators to different, 
 county. 
 
 404. The form of letters testa- 
 
 mentary. 
 
 Sec. 394. Preliminary remarks. The owner of real, per- 
 sonal and mixed property, may, by last will and testament 
 nominate and empower some person or corporation, such as a 
 trust company, qualified by law, to administer his or her estate 
 after death. As a general rule whatever the testator clearly di- 
 rects to be done with his property and the proceeds thereof, 
 when not in conflict with the well established rules of law, will 
 be carried out by the executors authorized by the will or by the 
 administrator with the will annexed, by aid and assistance of 
 the courts of probate, or other courts of law and equity, to 
 whom it may be necessary to apply for a full and complete ad- 
 ministration of an estate, or to carry out the imposed conditions 
 of a testator's will. The duties imposed by any testator or tes- 
 tatrix upon those authorized to act for them after death, are 
 always subject to lawful duties imposed by statiTte law and con- 
 nected with the office of executor or administrator when ac- 
 cepted. Such officers are required to collect all available assets 
 of the estate they administer; account for all property coming 
 to their hands, or within their knowledge belonging to the estate 
 
 319
 
 320 THE LAW OF ESTATES. 
 
 in their charge. They must pay all debts sanctioned by law or 
 allowed by the court administering the estate, out of the pro- 
 ceeds of such estate, with the costs of administration; or, such 
 portion of the proper debts as the assets of an estate will per- 
 mit. Such officers must settle their accounts with the estate, as 
 often as called upon by times fixed by statute and as much oft- 
 ener as the court administering the estate may require ; and 
 such account or accounts must be approved by the court as the 
 statute directs. And such officere must perform other numerous 
 duties required by the statute law, of necessity arising during 
 the administration of an estate. The duty of the administrator 
 is similar to that of an executor, though the executor has powers 
 under the will which in many cases cannot be delegated to an 
 administrator even with the will annexed. 
 
 395. Granting letters testamentaiy or of administration. 
 
 Section 1 of Chapter 3, entitled, "Administration of Estates," 
 provides : ' ' That when a will has been duly proved and allowed, 
 the County Court shall issue letters testamentary thereon to the 
 executor named in such will, if he is legally competent and ac- 
 cepts the trust, and gives bond to discharge the same ; and when 
 there is no executor named in such will, or the executor named 
 therein dies, refuses to act, or is otherwise disqualified, the court 
 shall commit the administration of the estate unto the widow, 
 surviving husband, next of kin, or creditor, the same as if the 
 testate had died intestate. In all cases copies of the will shall 
 go out with the letters. "^ 
 
 The courts of probate are always open for the purpose of 
 granting letters testamentary or of administration.^ 
 
 In vacation the clerk of the County Court (or Probate Court), 
 may grant letters testamentary or of administration, subject 
 
 1 — Starr & Curtis Annotated bate Court Act, part of chapter 
 Statutes of Illinois, Vol. 1, p. 269; noted. Starr & Curtis Annotated 
 Kurd's R. S. of 111., 1905, p. 104. Statutes of Illinois, Vol. 1, pp. 
 
 2— Sections 6, chapter 37, 1178, 1196; Kurd's R. S. of 111., 
 "Courts," County Court Act, Pro- 1905, same section and chapter, 
 
 pp. 618. 627.
 
 ADMINISTRATION— CONTINUED. 321 
 
 always to the approval or disapproval of such court at its next 
 regular term.* 
 
 "A creditor cannot be appointed until sixty days after re- 
 fusal by widow and next of iiin to serve. Other persons cannot 
 be appointed until after fifteen days from expiration of such 
 sixty days.^ A judgment creditor holding foreign judgment 
 against decedent at his death, must in the absence of other 
 administration, take out administration within time allowed by 
 general statute of limitations for action on his claim, or his claim 
 will be totally barred.^ A creditor living in this state, will be 
 preferred to public administrator, in the matter of appointing 
 of administrator of the estate of an intestate who died without 
 the state.^ And in a case where letters of administration were 
 issued more than seven years after intestate 's death, it was held : 
 Such should be issued only upon proof of facts preventing 
 earlier application.''^ The grant of letters by a clerk is a minis- 
 terial act, which may be reviewed in a collateral proceeding.^ 
 But the regularity of the appointment of an administrator can- 
 not be questioned generally in a collateral proceeding.^ And so 
 if the court shall erroneously appoint other persons, than 
 widow, next of kin or creditor, such appointment cannot be 
 attacked in a collateral proceeding.^*' 
 
 396. Executor's duty and custodian's duty to present will. 
 
 Section 2, Chapter 3, entitled, ''Administration of Estates," 
 provides : "It shall be the duty of any person, knowing that he 
 is named or is appointed as the executor of the last will and tes- 
 
 3— Section 23, chapter 25, 7— Fitzgerald v. Clancy, 49 III. 
 
 "Clerks of Courts." Starr & Curtis 465. 
 
 Annotated Statutes of Illinois, Vol. 8 — Illinois Central Ry. Co. v. 
 
 1, p. 893; Kurd's R. S. of 111., 1905, Cragin, 71 111. 177. 
 
 same section and chapter, p. 457. 9 — Hobson v. Ewen, 62 111. 146; 
 
 4— Schnell v. Chicago, 38 111. Duffin v. Abbott, 48 111. 17; Wright 
 
 382. V. Wallbaum, 39 111. 554; Schnell 
 
 5 — Baker v. Brown, 18 111. 91. v. Chicago, 38 111. 382. 
 
 6 — Rosenthal v. Prussing, 108 10 — Schnell v. Chicago. 38 111. 
 
 111. 128. 382; Unknown Heirs of Lang- 
 
 worthy V. Baker, 23 111. 484. 
 
 21
 
 322 THE LAW OF ESTATES. 
 
 tament of any person deceased, within thirty days next after the 
 decease of the testator, to cause such will to be proved and re- 
 corded in the proper county; or to present the will and declare 
 his refusal to accept of the executorship, "^i 
 
 "Any person or persons who may have in his or her posses- 
 sion any last will or testament of another, for safe keeping or 
 otherwise, shall, immediately upon the death of the testator or 
 testatrix, deliver up said will to the County Court of the proper 
 county; and upon a failure or refusal so to do, the County 
 Court may issue attachment, and compel the production of the 
 same," etc.^^ 
 
 397. Age and qualification of executors. Section 3 of the 
 Administration Act provides as follows: "Persons of the age 
 of seventeen years, of sound mind and memory, may be ap- 
 pointed executors; but when a person appointed executor is, 
 at the time of proving the will, under the age of twenty-one 
 years, or of unsound mind, or convicted of any crime rendering 
 him infamous, administration with the will annexed may be 
 granted during his minority or other disability, unless there is 
 another executor who accepts the trust, in which case the estate 
 shall be administered by such other executor until the minor 
 arrives at full age or the other disability is removed, when, upon 
 giving bond as in other cases, he may be admitted as joint execu- 
 tor with the former. When a married woman is executrix, her 
 husband may give bond with her for her faithful performance 
 of the trust as in other cases. "^^ 
 
 398. Executor's power and liability before probate of will. 
 
 Section 4 of the Administration act, is as follows : ' ' The power 
 
 11— Starr & Curtis Annotated Kurd's R. S. of 111., 1905, same 
 
 Statutes of Illinois, Vol. 1, pp. 269, section and chapter, p. 2052. 
 
 270; Kurd's R. S. of 111., 1905, p. 13— Section 3, chapter 3, "Ad- 
 
 104. Kesterberg v. Clark, 166. 245. ministration of Estates." Starr & 
 
 12 — Sectirn 12, chapter 148, Curtis Annotated Statutes of Illi- 
 
 "Wills." Starr & Curtis Annotated nois, Vol. 1, p. 270; Kurd's R. S. 
 
 Statutes of Illinois, Vol. 3, p. 4041; of III., 1905, p. 104.
 
 ADMINISTRATION— CONTINUED. 323 
 
 of the executor over the testator's estate, before probate of the 
 will and obtaining letters testamentary, shall extend to the 
 burial of the deceased, the payment of the necessary funeral 
 charges, and the taking care of the estate; but in all such cases 
 if the will is rejected when presented for probate, and such ex- 
 ecutor thereby never qualifies, he shall not be liable as an execu- 
 tor of his own wrong, unless upon refusal to deliver up the 
 estate to the person authorized to receive the same. Provided, 
 that this section shall not be construed to exempt any person, 
 claiming to be executor as aforesaid, for any waste or misappli- 
 cation of such estate."^* 
 
 Under the statute law of Indiana, similar to that of Illinois, 
 it was held : That a person named as executor in a will, who had 
 never taken out letters testamentary, had no power as executor 
 under such appointment by will to release a mortgage of real 
 estate, ^^ And where a testator died leaving a large estate ; and 
 under his will, the personal estate, after the payment of debts, 
 etc., was bequeathed to his children. The widow of the testator 
 received and took one United States government six per cent 
 bond of the denomination of $1,000, belonging to the estate and 
 never accounted for the same. By bill in equity, the com- 
 plainant, a son of the testator, sought to recover the amount of 
 said bond. It appeared from the evidence, that the complainant 
 had, by assignments, acquired the interests of the other legatees 
 in and to the personal estate, and that the executor had settled 
 the estate, and this bond taken by the widow was not needed 
 to pay debts. The defendant set up the defense, that the bond 
 had been applied by the defendant in part payment of a 
 promissory note for $1,500 which had been given by the testator 
 in his lifetime, to one M, The widow being named as executrix 
 had never qualified as such, and therefore she stood as to her 
 acts, an executrix de son tort. Held: That under the well 
 
 14— Section 4, chapter 3, "Ad- nois, Vol. 1, p, 270; Kurd's R. S, 
 ministration of Estates." Starr & of III., 1905, p. 104. 
 Curtis Annotated Statutes of Illi- 15— Wall v. Bissell, 125 U. S, 
 
 382.
 
 324 THE LAW OF ESTATES. 
 
 settled doctrine, an executor de son tort of a solvent estate 
 may discharge himself, even against the demand of the rightful 
 executor, by proving debts paid to the amount of the goods 
 received which had belonged to the deceased.^^ In a proceed- 
 ing against an executor dc son tort, the declaration should 
 charge him as executor generally. But if such executor de son 
 tort subsequent to the act charged, has been granted letters 
 of administration, he is thereby relieved of tortious liability.^ '^ 
 But the executor binds himself personally, unless he obtains 
 agreements with the persons with whom he deals or makes con- 
 tracts to look to the funds of the estate which he represents ; and 
 this, notwithstanding the power of the executor to make agree- 
 ments that will hold the estate liable.^ ^ 
 
 399. Death — failure of part of executors to qualify. Section 
 5 of the Administration act is as follows : ' ' Where two or more 
 executors are appointed in and by the same will, and one or more 
 of them dies, refuses to take upon himself the executorship, or 
 is otherwise disqualified, letters testamentary shall be granted 
 thereon to the other person or persons so named, not renouncing 
 as aforesaid, and not disqualified. "^^ 
 
 400. Oath of executor or administrator. As to form and 
 detail is set forth by section 6 of the Administration act as fol- 
 lows: "Every executor or administrator with the will annexed, 
 shall, at the time of proving the will and granting letters testa- 
 mentary, or of administration, take and subscribe the following 
 oath, to-wit: (at large set forth). Which said oath shall be ad- 
 
 16 — McConnell v. McConnell, 94 tion 25, 97 chapter 3, "Admiuistra- 
 
 111. 295; Weeks v. Gibbs, 9 Mass. tion of Estates." Starr & Curtis 
 
 72; Beagon v. Long, 21 Ind. 264; Annotated Statutes of Illinois, 
 
 Tobey v. Miller, 54 Me., 480; Wil- Vol 1, pp. 270, 280, 320; Kurd's 
 
 liams on Executors, 267. R. S. of 111. 1905, pp. 104, 109, 121; 
 
 17— Moore v. Wright, 4 111. App. Clinefelter v. Clinefelter, 16 111. 
 
 443. 329; Wisdom V. Becker, 52 111. 342; 
 
 18— Miller v. Didisheim, 95 111. Stoff v. McGinn, 178 111. 55; Ward- 
 
 App. 322, and cases cited. well v. McDowell, 31 111. 364. 
 
 19— R. S. 1845, p. 541; see sec-
 
 ADMINISTRATION— CONTINUED. 325 
 
 ministered by the clerk of the County Court, and be attached 
 to and form a part of the probate of said will.''^** 
 
 401. Bond of executor and administrators with the will an- 
 nexed. Section 7 of the administration act is as follows: "All 
 executors hereafter appointed, imless the testator shall other- 
 wise direct in the will, and all administrators with the will an- 
 nexed, shall, before entering upon their duties, enter into bond, 
 with good and sufficient security, to be approved by the Coimty 
 Court, and in counties having a Probate Court, by the Probate 
 Court, in a sum double the value of the personal estate, and pay- 
 able to the People of the State of Illinois, for the use of the 
 parties interested, in the following form, to- wit: (form set 
 forth). Which said bond shall be signed and sealed by the 
 said executor (or administrator), and his securities, and filed 
 in the office of the clerk of the County Court, or office of the 
 clerk of the Probate Court in counties having a Probate Court, 
 and spread upon the records; and that where it becomes neces- 
 sary to sell the real estate of any intestate, for the payment of 
 debts against his estate, under the provisions of this act, or in 
 case real estate is to be sold under any provisions of a will, the 
 court shall require the executor (or administrator), to give 
 further and additional bond, with good and sufficient security, 
 to be approved by the court, in a sum double the value of the 
 real estate of the decedent sought to be sold, and payable to the 
 People of the State of Illinois, for the use of the parties inter- 
 ested, in the form above prescribed. 21 
 
 In a suit on bond, the People may sue for use of several plain- 
 tiffs, for all damages sustained without reference to use to be 
 
 20— R. S. 1845, p. 541; sec. 6 1881. Laws of 1881, p. 1. See also 
 
 chapter 3, "Administration, of section 1, chapter 103, "Official 
 
 Estates." Starr & Curtis Anno- Bonds." Section 25, chapter 3, 
 
 tated Statutes of Illinois, Vol. 1, p. 'Administration of Estates." Starr 
 
 271; Kurd's R. S. of 111., 1905, p. & Curtis Annotated Statutes of 
 
 105. Illinois, Vol. 1, pp. 271, 280; Vol. 
 
 21 — As amended by act approved 2, p. 2831; Kurd's R. S. of 111., 
 
 May 30, 1881. In force July 1, 1905, pp. 105, 109, 1417.
 
 326 THE LAW OF ESTATES. 
 
 made of moneys recovered. ^^ Several actions are maintainable 
 on executor's bond.^^ The judgment on bond may be for dam- 
 ages sustained and not for penalty of bond.^* A debt may be 
 maintained on bond by creditors holding judgment against ad- 
 ministrator though claim never had been allowed by or pre- 
 sented to Probate Court.^s The bond required to be given to 
 secure the proceeds of the sale of land by an executor, which is 
 authorized to be sold by the terms of the will or by the decree of 
 the court, must be given as a separate and independent bond to 
 secure such fund, regardless of the fact whether the land lies 
 within or outside the State of Illinois. "^^ There appears to be 
 much conflict in authorities over the question, whether the sale 
 of real estate under the provisions of a will or under a decree 
 of court, without first giving a bond as provided by the last 
 clause of section 7 of the Administration act, would be null 
 and void. In the case of Elting v. First National Barik,^'^ 
 the facts of the record show, page 381-382: A decree was en- 
 tered by the County Court for the sale of real estate by the 
 executrix to pay debts; as such she gave no further and addi- 
 tional bond as required by section 7 above; after the sale the 
 executrix made no report thereof to the court as required by 
 section 109 of the same act ; but report was made and confirmed 
 before the next term of court; the sale being made Avithout giv- 
 ing the full notice required by said section 109. The executrix 
 also, though apparently selling the real estate in question to her 
 brother, really sold to herself. The court in that case reviewing 
 the facts, finds gross mismanagement of the estate and sets the 
 sale aside, saying, page 384: "Where the circumstances are 
 such as appear in this record, creditors, who have reduced their 
 claims to judgment, can file a bill in the proper court to have 
 such a sale set aside." But it is also held, that a general bonds- 
 
 22— People v. Stacey, 6 111. App. 25— People v. Allen, 8 111. App. 
 
 521. 17. 
 
 23— People v. Randolph, 24 111. 26— People v. Hoffman, 182 111. 
 
 324. 1190, 409. 
 
 24— People v. Summers, 16 111. 27—173 111. 368. 
 173.
 
 ADMINISTRATION— CONTINUED. 327 
 
 man is not liable where executor, administrator or guardian is 
 required to discharge special official duties, and for the faithful 
 performance of which they are required to give a special bond, 
 in the absence of any declaration in or provision of a statute, 
 that the general bondsman shall be liable for the faithful dis- 
 charge of the special duty.^s In the case of Frothingham v. 
 Petty, ^^ the question was raised that the sale was void and 
 should be set aside because the bond required by section 7 of 
 the administration act was not given nor required by the order 
 of the county court, the court in its opinion on page 431 say: 
 "We do not fefel w^arranted in holding that the failure of the 
 administrator de bonis non to give such bond would render the 
 sale to Calhoun void.^° "The oversight of the court to require 
 the administrator de bonis non to give a bond was but a mere 
 irregularity and should not defeat the title of appellants, who 
 were not parties to the record and who obtained this land by 
 mesne conveyances from the purchaser at such sale, and who 
 have been in the quiet and peaceful possession of the same 
 for a number of years and expended considerable sums in 
 improvements. ' ' It also appears by the record of that case that 
 the administrator de bonis non faithfully performed the entire 
 duties of his office and applied all the proceeds of the sale of 
 real estate upon the debts of his intestate and fully accounted 
 for the same to the probate court. 
 
 or administrator to act in all matters concerning the estate. 
 They are the key of authority recognized by banks and all others, 
 
 28— People V. Hoffman, 182 111. 123; State v. Johnson, 55 Mo. 80; 
 
 390; Board of Supervisors of Mil- United States v. Cheeseman, 3 
 
 waukee Co. V. Chilers, 45 Wis. 281; Sawyer, 424; State v. Young, 23 
 
 Grumpier v. Governor, 1 Dev. 52; Minn. 551; Henderson v. Coover, 
 
 Governor v. Barr id. 65; Governor 4 Nev. 429; Lyman v. Conkey, 1 
 
 V. Matlock, id. 214; Waters v. Mete, 317; Williams v. Morton, 
 
 State, 1 Gilm. (111.) 302; Common- 38 Me. 52. 
 
 wealth v. Toms, 45 Pa. St. 408; 29—197 111. 418. 
 
 State V. Corey, 16 Ohio St. 17; 30— Drake v. Kinsell, 38 Mich. 
 
 People V. Moon, 3, Scam. (111.) 232,
 
 328 THE LAW OF ESTATES. 
 
 402. When security not required. Section 8 of the admin- 
 istration act is as follows: "When any testator leaves visible 
 estate more than sufficient to pay all his debts, and by will shall 
 direct that his executors shall not be obliged to give security, in 
 that case no security shall be required, unless the county court 
 shall see cause, from its own knowledge, or the suggestions of 
 creditors and legatees, to suspect the executors of fraud, or that 
 the personal estate will not be sufficient to discharge all the 
 debts, in which case such a court may require security, and 
 the same shall be given before or after letters testamentary are 
 granted, notwithstanding any directions to the contrary in the 
 will. "31 
 
 403. Removal of executors or administrators to different 
 county. Section 9 of the Administration Act provides; 
 "Whenever, by the division of any county, or the removal of 
 the executor or administrator to whom letters have been granted, 
 he is by such removal or division beyond the limits of the county 
 in which said letters were granted, and in some other county of 
 this state, the county court of the county in which the letters 
 were or are granted shall proceed and settle the estate in the 
 same manner as if no removal or division had occurred. "^^ 
 
 404. The form of letters testamentary, as given in section 10 
 of the Administration Act, should be strictly and fully complied 
 with. These forms are a part of the procedure in a court of 
 probate and cannot be disregarded. They are important in the 
 administration of an estate, being directly prescribed by statute. 
 Such are not only the certificate of office and evidence of qual- 
 ification, but it is upon the strength of such letters, assets of the 
 decedent's estate are collected, or give authority to the executor 
 
 31— R. S. of 111. 1845, p. 542; 32— R. S. 1845, p. 542, sections 
 section 8, chapter 3, "Administra- 5 and 30. Chapter 3, "Administra- 
 tion of Estates." Starr & Curtis tion of Estates." Starr & Curtis 
 Annotated Statutes of Illinois, Annotated Statutes of Illinois, 
 Vol. 1, p. 272. sec. 28, p. 282. Same Vol. 1, pp. 272, 282; Kurd's R. S. 
 chapter; Kurd's R. S. of 111. 1905, of 111., 1905, same sections and 
 pp. 105, 109. chapter, pp. 105, 109.
 
 ADMINISTRATION— CONTINUED. 
 
 329 
 
 upon which money of a decedent is paid to an executor or admin- 
 istrator.33 
 
 33 — Section 10, chapter 3, "Ad- 
 ministration of Estates." Starr 
 & Curtis Annotated Statutes of 
 Illinois, Vol. 1, p. 272; Kurd's R. 
 S. of 111., 1905, same section and 
 chapter, p. 105. 
 
 Note. — The various forms pre- 
 
 scribed by the Statute of Illinois 
 will be found in Vol. 2, giving pre- 
 scribed forms. No reference is 
 necessary to such here, as the foot 
 notes to such forms refer to the 
 section of the statute to which 
 such apply throughout this work.
 
 CHAPTER XIX 
 
 ADMINISTRATORS TO COLLECT 
 
 Sec. 
 
 405. Administrators to collect 
 
 when appointed. 
 
 406. Oath powers as to perishable 
 
 Sec. 
 
 goods, right to bring suit, 
 termination of powers of 
 such. 
 
 Sec. 405. Administrators to collect when appointed. Sec-/^ 
 tion 11 of the administration act is as follows: "During any 
 contest in relation to the probate of any will, testament or codi- 
 cil, before the same is recorded, or until a will which may have 
 once existed, but is destroyed or concealed, is established, and 
 the substance thereof committed to record, with proof there- 
 upon taken, or during any contest in regard to the right of 
 executorship, or to administer the estate of any person dying 
 either testate or intestate, or whenever any other contingency 
 happens which is productive of great delay before letters testa- 
 mentary or of administration can be issued upon the estate of 
 such testator or intestate, to the person or persons having legal 
 preference to the same, the county court may appoint any per- 
 son or persons as administrators, to collect and preserve the 
 estate of any such decedent, until probate of his will, or until 
 administration of his estate is granted, taking bond and secu- 
 rity for the collection of the estate, making an inventory thereof, 
 and safe keeping and delivering up the same when thereunto 
 required by the court, to the proper executor or administrator, 
 whenever they shall be admitted and qualified as such. "^^ 
 
 An administrator to collect has no authority, independently 
 
 34 — Sections 11 and 25, chapter ton's Supplements thereto. Vol. 
 
 3. "Administration of Estates." 1; pp. 272, 273, 284; Vol. 4, p. 34; 
 
 Starr & Curtis Annotated Statutes Kurd's R. S. of 111. same sections 
 
 of Illinois, with Jones & Adding- and chapter, pp. 106, 110. 
 
 330
 
 ADMINISTRATORS TO COLLECT. 331 
 
 of his order of appointment, to pay out any money of the estate 
 for any purpose. Such officer has no authority to pay widow's 
 award or claims; he has only power "to collect and preserve 
 the estate of any such decedent, until probate of his will or 
 until administration of his estate is granted." The statutory 
 letters issued to such administrator are to the same effect and 
 confer no other power. (1) The bond required of such is con- 
 ditioned that he shall "deliver to the person or persons author- 
 ized by the court, as executor or administrator to receive the 
 same, all goods, etc.," which shall come to his posses- 
 sion (Section 13 of administration act) ; (2) Section 17 of the 
 same act (3) provides that "on the granting of letters testa- 
 mentary or of administration, the power of such collector so 
 appointed shall cease, and it shall be his duty to deliver, on 
 demand, all property and money of the deceased which shall 
 have come to his hands or possession," etc., to the person or per- 
 sons obtaining such letters; and in case any such collector shall 
 refuse or neglect to deliver over such property or money to his 
 successor when legal demand is made therefor, such person so 
 neglecting or refusing, etc., "shall forfeit all claim to any com- 
 mission for collecting and preserving the estate. "^^ 
 
 In re Estate of Wincox,^^ page 454 of the opinion, it is 
 held: He is an administrator to collect, and only that. 
 When he assumed the right to pay out any money belonging 
 to said estate he did so at his peril," and on same page: "The 
 claim of appellant to be allowed $1,750 for attorney fees is for 
 that sum alleged to have been paid to Moses Solomon. We 
 notice in this record that when the $20,000 note described in 
 appellant's inventory was paid, $2,000, part of the proceeds, 
 was applied in part payment of a personal debt due from said 
 attorney to H. H. Walker, page 455: Said note of $20,000 
 
 35— Section 12, (1), 13, (2), 17, 32, and cases cited in each volume 
 
 (3), chapter 3, "Administration of under sections of statute in ques- 
 
 Estates." Starr & Curtis Annotat- tion; Kurd's R. S. of 111. 1905, 
 
 ed Statutes of Illinois, with Jones same sections and chapter, pp. 
 
 & Addington's Supplements there- 106, 107. 
 
 to. Vol. 1, pp. 273, 274; Vol. 4, p. 36—186, 111. 445.
 
 332 THE LAW OF ESTATES. 
 
 had not matured. Said attorney negotiated for the payment 
 thereof and received all the proceeds. Appellant had no right 
 or authority whatever to sell said note or accept payment 
 thereof prior to maturity." He has no power to make invest- 
 ments with the money due the estate.^®* The appointment of an 
 administrator to collect is authorized where an appeal has 
 been taken from order admitting will to probate, and where 
 widow's award has not been set off and assets of estate are in 
 danger of being lost pending determination of appeal.^ "^ 
 
 406. Oath — powers as to perishable goods — the right to 
 bring suit, and the termination of powers of administrators to 
 collect. As given by statute are set forth in sections 14, 15, 
 16 and 17 of the Administration Act, and to which reference 
 is made.^s 
 
 In bringing suit by an administrator to collect, he should 
 aver his appointment and should profert his letters of adminis- 
 tration.3^ An administrator to collect must account upon legal 
 demand to pay over.^^ And he forfeits his right to commis- 
 sions if he neglects to account and deliver up property of es- 
 tate.^^ And a failure to pay over amount admittedly in his 
 hands, is not excused by his dispute of liability as to further 
 sums likewise ordered to be paid over to administrator succeed- 
 ing him.^2 i^ jg aigQ held, if the court has jurisdiction of the 
 subject matter and of the person it appoints as administrator 
 its act is not void, however erroneous it may be ; and the legality 
 
 36a — People v. Solomon, 184 111. ute noted in each volume; Kurd's 
 
 490, 499, 500. R. S. of 111., 1905, same sections 
 
 37— Schenk v. Schenk, 80 111. and chapter, pp. 106, 107; Miller 
 
 App. 613. V. Kingsbury, 28 111. App. 532. 
 
 38— Sections 14, 15, 16 and 17, 39— Foster v. Adler, 81 111. App. 
 
 chapter 3, "Administration of Es- 655. 
 
 tates." Starr & Curtis Annotated 40 — Solomon v. Holden, 72 111. 
 
 Statutes of Illinois, with Jones & App. 353. 
 
 Addington's Supplements thereto. 41 — In re Estate of Wincox 186 
 
 Vol. 1, p. 274; Vol. 4, p. 32, and 111. 456. 
 
 cases cited under sections of stat- 42 — Solomon v. People, 191 111. 
 
 292.
 
 ADMINISTRATORS TO COLLECT. 
 
 333 
 
 of such appointment cannot be questioned in a suit on the bond 
 of a former administrator for failure to turn over the funds 
 to the administrator appointed as his suecessor.'*^ 
 
 43— Solomon v. People, 191 111. 
 292. In that case the court held, 
 that the sureties on the bond of 
 the administrator were not liable 
 for the penalty of twenty per cent 
 prescribed by section 17 of the 
 
 Administration Act, which was 
 included in the judgment of the 
 circuit court, a remittitur being 
 allowed of such penalty. See also 
 Solomon v. People, 89 111. App. 
 374.
 
 CHAPTER XX 
 
 PUBLIC ADMINISTRATORS 
 
 Sec. 
 
 407. Public administrator, Gover- 
 
 nor appoints, term of oflBce, 
 duty. 
 
 408. Wlien they shall administer. 
 
 409. Who to be appointed admin- 
 
 istrator. 
 
 410. Bond, neglect, removal addi- 
 
 tional security. 
 
 Sec. 
 
 411. Where there is a widow, etc., 
 
 letters revoked. 
 
 412. Disposition of unclaimed es- 
 
 tate. 
 
 413. When public administrator to 
 
 protect the estate. 
 
 Sec. 407. Public administrator, governor to appoint — term 
 of ofl5ce — duties. In 1881, the legislature revised the act per- 
 taining to public administrators passed in 1845 ; the act as re- 
 written went into force July 1, 1881 ; the statute is as follows, 
 sections 44 to 50 inclusive, chapter 3, entitled "Administration 
 of Estates" (Sec. 44): "The governor of this state, by and 
 with the advice and consent of the senate, shall, before the first 
 Monday in December, 1881, and every four years thereafter, 
 appoint in each county in this state, and as often as any vacancy 
 may occur, a suitable person to be known as public administra- 
 tor of such county, who shall hold his office for the term of 
 four 3'^ears from the first Monday of December, 1881, or until 
 his successor is appointed and qualified; and the public admin- 
 istrators in office at the time of the first appointment under the 
 provisions of this section shall, immediately upon the qualifica- 
 tion of the persons appointed under the provisions hereof, turn 
 over all moneys, books and papers appertaining to their offices, 
 respectively, to the persons so appointed; and such public ad- 
 
 334
 
 PUBLIC ADMINISTRATORS. 335 
 
 mkiistrators so appointed shall proceed to settle up all unset- 
 tled estate in accordance with law."^^ 
 
 ** Every person appointed as a public administrator shall, be- 
 fore entering upon the duties of his office, take and subscribe 
 and file in the office of the clerk of the county court, the fol- 
 lowing oath, to-wit, prescribed by statute.^^ 
 
 408. When they shall administer. Section (46) : "When- 
 ever any person dies seized or possessed of any real estate within 
 this state, or, having any right or interest therein, has no rela- 
 tive or creditor within this state who will administer upon such 
 deceased person's estate, it shall be the duty of the county 
 court, upon application of any person interested therein, to 
 commit the administration of such estate to the public admin- 
 istrator of the proper county. ' '^^ 
 
 In Langworthy v. Baker^"^ it was held, to give the 
 county court jurisdiction to commit an estate to a public ad- 
 ministrator, it should affirmatively appear to be preserved of 
 record, that there was not any relative or creditor of the de- 
 ceased within the state, to whom administration might be 
 granted; and that the application was made by a party inter- 
 ested in the estate; and if the record fails to show the jurisdic- 
 tional facts necessary to authorize the grant of letters, the whole 
 proceedings will be defeated, and a sale made thereunder will 
 be declared void on a writ of error. In Branch v. Banking 
 this section of the statute was construed and it was held 
 its language, ''any person interested," means, the words are 
 
 44 — See sections 44 to 50 inclu- 4G — Section 4G, chapter 3, "Ad- 
 
 sive, chapter 3, "Administration ministration of Estates." Starr & 
 
 of Estates." Starr & Curtis An- Curtis Annotated Statutes of Illi- 
 
 notated Statutes of Illinois, Vol. nois. Vol. 1, p. 288; Kurd's R. S. 
 
 1, pp. 287, 288, 289; Kurd's R. S. of 111., 1905, p. 112. 
 
 of 111., 1905, same sections and 47—23 III. 430; see also the fol- 
 
 chapter, pp. 112, 113. lowing cases, modifying Lang- 
 
 45 — Section 45, chapter 3, "Ad- worthy v. Baker, supra. Schnell v. 
 
 ministration of Estates." Starr & Chicago, 38 111. 383; Wright v. 
 
 Curtis Annotated Statutes of Illi- Wallbaum, 39 111. 554; Hobson v. 
 
 nois. Vol. 1, p. 288; Kurd's R. Ewan, 62 111. 146. 
 S. of 111., 1905, p. 112.
 
 336 THE LAW OF ESTATES. 
 
 general, with no limitation in respect to the person applying 
 for letters, as there is nothing in our statute indicating an in- 
 tention to confine this right to citizens of this state.*^ That un- 
 der the above section of the statute, administration may be 
 granted to public administrator with will aunexed.^^ But in this 
 connection we call attention to the act of the legislature of this 
 state, passed in 1905 and in force July 1, 1905, which confers 
 additional powers upon public administrators or greatly en- 
 larges those theretofore existing. The act is as follows : An act 
 entitled "An act to amend section 18 of an act entitled 'An act 
 in regard to the administration of estates,' " approved April 1, 
 1872, in force July 1, 1872, approved May 12, 1905, in force 
 July 1, 1905.50 
 
 409. Who to be appointed administrator — death to be proved. 
 
 "Administration of the estate of all persons dying intestate 
 shall be granted to some one or more of the persons hereinafter 
 mentioned and they are respectively entitled to preference 
 thereto in the following order: 
 
 1st. To the surviving husband or wife or any competent 
 person nominated by him or heiV 
 
 2d. To the children or any competent person nominated by 
 them. 
 
 3d. To the father or any competent person nominated by 
 him. 
 
 4th. To the mother or any competent person nominated by 
 her. 
 
 5th. To the brothers or any competent person nominated by 
 them. 
 
 6th. To the sisters or any competent person nominated by 
 them. 
 
 7th. To the grandchildren or any competent person nomi- 
 nated by them. 
 
 48—108 111. 444. Rosenthal 50— Section 18, chapter 3, "Ad- 
 
 Admr. v. Renick, 44 111. 207. ministration of Estates" as amend- 
 
 49— Branch v. Rankin, 108 111. ed in 1905. See Kurd's R. S. of 
 
 444. 111., 1905. p. 107.
 
 PUBLIC ADMINISTRATORS. 337 
 
 8th. To the next of kin or any competent person nominated 
 by them. 
 
 9th. To the public administrator or to any creditor who shall 
 apply for the same. Provided, that only such persons as are en- 
 titled to administer under this act shall have the right to nom- 
 inate. 
 
 When several are claiming and are equally entitled to admin- 
 istration, the court may grant letters to one or more of them, 
 preferring relatives of the whole to those of half blood. Pref- 
 erence and the right to nominate under this act must be exer- 
 cised within sixty days from the death of the intCotate, at the 
 expiration of which time administration shall be granted to the 
 public administrator. In all cases where the intestate is a non- 
 resident, and in all cases where there is no widow, husband or 
 next of kin entitled to a distributive share in the estate of such 
 intestate, who at the time of the death of said decedent is a bona 
 fide resident of this state, administration shall be granted to the 
 public administrator; and in all cases where any contest shall 
 arise between the widow, heirs at law or next of kin of the 
 decedent in relation to the grant of letters, and it shall appear 
 to the court that the estate of said decedent is liable to waste, 
 loss or embezzlement administration to collect shall be granted 
 to the public administrator of the proper county to administer 
 such estate until said contest is determined. No administration 
 shall in any case be granted until satisfactory proof shall be 
 made to the county court to whom application for that purpose 
 is made that the person in whose estate letters of administra- 
 tion are requested is dead and died intestate. Provided, that 
 when the heirs are residents of this state and the estate is solvent 
 and without minor heirs and it is desired by the parties in inter- 
 est to settle the estate without administration this law shall not 
 apply. And, further, provided, that no non-resident of this 
 state shall be appointed or act as administrator or executor, "^i 
 
 410. Bond — neglect — ^removal — additional security. "Sec. 
 47. It shall be the duty of the county court to require of a 
 
 51— Kurd's R. S. of 111.. 1905, p. 107. 
 23
 
 338 THE LAW OF ESTATES. 
 
 public administrator, before entering upon the duties of his 
 office, to enter into a bond, payable to the people of the State 
 of Illinois, in a sum of not less than five thousand dollars, with 
 two or more securities, approved by the court, and conditioned 
 that he will faithfully discharge all of the duties of his office, 
 and the court may, from time to time, as occasion shall require, 
 demand additional security of such administrator and may re- 
 quire him to give the usual bond required of administrators in 
 other cases, touching any particular estate in his charge ; and in 
 default of giving such bond within sixty days after receiving 
 his commission, or in default of giving additional security 
 within sixty days after being duly ordered by said court so to 
 do, his office shall be deemed vacant, and, upon certificate of 
 the county judge of such fact, the governor shall fill the vacancy 
 aforesaid. ' '^^ 
 
 411. Where there is a widow, etc. — ^letters revoked. Section 
 48: "Whenever administration is granted to any public ad- 
 ministrator, and it shall afterwards appear that there is a widow 
 or next of kin, or creditor of the deceased, entitled to the pref- 
 erence of administration by this act, it shall be the duty of the 
 county court to revoke the letters granted to such public admin- 
 istrator, and to grant the same to such widow, next of kin or 
 creditor, as is entitled thereto. Provided, application is made 
 by such person, within six months after letters were granted to 
 the public administrator; saving to such administrator, in all' 
 
 52— Section 47, chapter 3, "Ad- R. S. of 111., 1905, pp. 1417, 1418, 
 
 ministration of Estates." Starr & 1419. 
 
 Curtis Annotated Statutes of Illi- Under the statute of 1845 and 
 
 nois, Vol. 1, p. 288; Kurd's R. S. 1872, an administrator was re- 
 
 of 111., 1905, pp. 112, 113. See al- quired to take out letters and give 
 
 so sections 1, 4, 13, chapter 103, bond in each estate when ap- 
 
 "Official Bonds." Starr & Curtis pointment was made. This statute 
 
 Annotated Statutes of Illinois now in force passed in 1881, as 
 
 with Jones & Addington's Supple- applied to public administrators, 
 
 ments thereto, Vol. 2, pp. 2831- requires a permanent bond from 
 
 2835; Vol 4, p. 907; Vol. 5, p. 406, such official, and such bond is 
 
 and cases cited under sections in given as required under the of- 
 
 question in each volume; Kurd's ficial bond act cited above.
 
 PUBLIC ADMINISTRATORS. 339 
 
 eases, all such sums of money on account of commissions or ex- 
 penses as are due to, or incurred by him, in the management of 
 said estate. "^3 
 
 412. Disposition of unclaimed estate. Section 49: *'If any 
 balance of any such estate as may, at any time, be committed 
 to any public administrator, shall remain in the hands of such 
 administrator, after all just debts and charges against such 
 estate, which have come to the knowledge of such public admin- 
 istrator within two years after the administration of such estate 
 was committed to him, are fully paid such administrator shall 
 cause the amount thereof, with the name of the intestate, the 
 time and place of his decease, to be published in some news- 
 paper published in his county, or if no newspaper is published 
 in his county, then in the nearest newspaper published in this 
 state, for eight weeks successively, notifying all persons having 
 claims or demands against such estate to exhibit the same, to- 
 gether with the evidence in support thereof, before the countj^ 
 court of the proper county, within six months after the date of 
 such notice, or that the same will be forever barred; and if no 
 such claim is presented for payment or distribution within the 
 said time of six months, such balance shall be paid into the 
 treasury of said county; and the county shall be answerable 
 for the same, without interest, to such persons as shall there- 
 after appear to be legally entitled, on order of the county court, 
 to the same, if any such shall appear. "^^ 
 
 413. When public administrator to protect the estate. Sec- 
 tion 50: "Upon the death of any person intestate, not leaving 
 a widow, or next of kin, or creditor, within this state, the pub- 
 lic administrator of the county wherein such person may have 
 died, or when the decedent is a non-resident, the public admin- 
 
 53 — Section 48, chapter 3, "Ad- 54 — Section 49, chapter 3, "Ad- 
 ministration of EJstates." Starr & ministration of Estates." Starr & 
 Curtis Annotated Statutes of Illi- Curtis Annotated Statutes of Illi- 
 nois, Vol. 1, p. 288; Kurd's R. S. nois, Vol. 1, p. 289; Kurd's R. S. 
 of 111., 1905, p. 113. of 111., 1905, p. 113.
 
 340 THE LAW OF ESTATES. 
 
 istrator of the county wherein the goods and chattels, rights 
 and credits of such decedent shall be, may take such measures 
 as he may deem proper to protect and secure the effects of such 
 intestate from waste or embezzlement, until administration 
 thereon is granted to the person entitled thereto, the expenses 
 whereof shall be paid to such public administrator, upon the 
 allowance of the county court, in preference to all other demands 
 against such estate, funeral expenses excepted. "^^ 
 
 This section is substantially the same as the statute of 1874, 
 then a part of the chapter of "Wills," sections 55, 57 of that 
 statute being construed in Rosenthal v. Prussing,^^ it is held 
 that, ' ' upon the death of a non-resident intestate leaving real or 
 personal property in this state, a creditor of the estate living 
 in this state is entitled to a preference over the public adminis- 
 trator in the grant of letters of administration upon such es- 
 tate." The grant of letters of administration with the will an- 
 nexed, to the public administrator, upon the estate of a deceased 
 non-resident debtor, on the application of a non-resident 
 creditor whose claim had been allowed in the state of the 
 decedent's domicile, will not necessarily give such creditor an 
 undue advantage over other foreign creditors. They may have 
 their claims also allowed here, and share in the assets.^' 
 
 55— Section 50, chapter 3, "Ad- 56—108 111. 128. 
 ministration of Estates." Starr & 57 — Branch v. Rankin, 108 111. 
 Curtis Annotated Statutes of lUi- 445. 
 nois, Vol. 1, p. 289; Kurd's R. S. 
 of 111., 1905, p. 113.
 
 CHAPTER XXI 
 
 GRANTING LETTERS OF ADMINISTRATION- 
 APPOINTMENT 
 
 Sec. 
 
 il4. Granting of letters of admin- 
 istration, who appointed. 
 
 il5. Miscellaneous application of 
 statute. 
 
 416. Administrator's powers. 
 
 417. Administrator or executor 
 
 not authorized by will can- 
 not loan funds of estate. 
 
 418. Executors or administrators 
 
 have no power to mortgage 
 lands. 
 
 419. When letters may be granted 
 
 to other than husband. 
 
 420. Affidavit of death. 
 
 421. Form of letters of adminis- 
 
 tration. 
 
 422. Administrator's oath. 
 
 423. Bond of administrator. 
 
 424. Failure to file additional 
 
 bond, effect, dual officer. 
 
 425. Joint or several bonds. 
 
 426. Suit on bond. 
 
 427. Miscellaneous rights and rem- 
 
 edies under suit on bond. 
 
 428. The rule of construction 
 
 placed upon bonds. 
 
 429. Defense of surety on bond. 
 
 Sec. 
 
 430. Revoking letters, removing 
 
 executor or administrator. 
 
 431. For false pretense. 
 
 432. Revoked when will produced, 
 
 and when set aside. 
 
 433. Revoked for lunacy, disabil- 
 
 ity, mismanagement, etc. 
 
 434. Removal of representative 
 
 from state. 
 
 435. Further security, failure to 
 
 give. 
 
 436. Counter or other security. 
 
 437. New bond form. 
 
 438. Surety desiring release dur- 
 
 ing administration, 
 
 439. Failure of executor or admin- 
 
 istrator to comply, removed. 
 
 440. Death of sole administrator 
 
 or executor. 
 
 441. Revocation or death of part. 
 
 442. Liability after revocation. 
 
 443. Resignation of executor or 
 
 administrator, settlement. 
 
 444. Costs. 
 
 445. Foreign executors or admin- 
 
 istrators, power to sue. 
 
 446. Exception when letters grant- 
 
 ed here. 
 
 Sec. 414, Granting letters of administration — who to be ap- 
 pointed administrator— death to be proved. "Administration 
 of the estate of all persons dying intestate shall be granted to 
 some one or more of the persons hereinafter mentioned and they 
 are respectively entitled to preference thereto in the following 
 
 341
 
 342 THE LAW OF ESTATES. 
 
 orders: 1st, To the surviving husband or wife or any comptJ- 
 tent person nominated by him or her. 2nd. To the children 
 or any competent person nominated by them. 3rd. To the 
 father or any competent person nominated by him. 4th. To 
 the mother or any competent person nominated by her. 5th. 
 To the brothers or any competent person nominated by them. 
 6th. To the sisters or any competent person nominated by them. 
 7th. To the grandchildren or any competent person nominated 
 by them. 8th. To the next of kin or any competent person 
 nominated by them. 9th. To the public administrator oi- to 
 any creditor who shall apply for the same. Provided, that only 
 such persons as are entitled to administer under this act shall 
 have the right to nominate. When several are claiming and arei 
 equally entitled to administration, the court may grant letters/ 
 to one or more of them, preferring relatives of the whole to 
 those of half blood. Preference and the right to nominate under 
 this act must be exercised within sixty days from the death of 
 the intestate, at the expiration of which time administration 
 shall be granted to the public administrator. In all cases where 
 the intestate is a non-resident, and in all cases where there is 
 no widow, husband or next of kin entitled to a distributive share 
 in the estate of such intestate, who at the time of the death of 
 said decedent is a bona fide resident of this State, administra- 
 tion shall be granted to the public administrator; and in all 
 cases where any contest shall arise between the widow, heirs at 
 law or next of kin, of the decedent in relation to the grant of 
 letters, and it shall appear to the court that the estate of said 
 decedent is liable to waste, loss or embezzlement administration 
 to collect shall be granted to the public administrator of the 
 proper county to administer such estate until said contest is 
 determined. No administration shall in any case be granted 
 until satisfactory proof shall be made to the county court to 
 whom application for that purpose is made that the person in 
 whose estate letters of administration are requested is dead and 
 died intestate. Provided, that when the heirs are residents of 
 this State and the .estate is solvent and without minor heirs
 
 GRANTING LETTERS OF ADMINISTRATION. 343 
 
 and it is desired by the parties in interest to settle the estate 
 without administration this law shall not apply. And, further, 
 provided, that no non-resident of this State shall be appointed 
 or act as administrator or executor. "^ 
 
 415. Miscellaneous applications of statute and powers of 
 administrator. The word "or" in sentence of statute, begin- 
 ning: "In all cases where the intestate is a non-resident or 
 without a widow," means "and."^ Illegitimate child has no 
 right to administer on estate of father.^ Powers of administra- 
 tor under valid appointment relate back to date of decedent's 
 death.^ Proper place for principal administration of estate of 
 deceased person is his domicile at time of death; but adminis- 
 tration may be taken out in any place in which decedent leaves 
 personal property.^ Administration may be granted in Illinois, 
 upon property of deceased non-resident which was within such 
 State at date of decedent's death. And a husband residing in 
 Illinois, has a right to administer on property of deceased wife 
 which was within Illinois at date of her death ; and, this, though 
 such wife died domiciled in another State.^ A probate court 
 may, in its discretion, grant administration limited to a single 
 object.'^ "Within meaning of the statute cited, a "creditor" is 
 one to whom a sum is due to be paid out of the estate of a de- 
 cedent after allowance of all just credits.^ The chief object of 
 ancillary administration, is to protect local creditors.^ No suc- 
 
 1 — As amended by an act en- v. Gerisch, 163 111. 625, 631; Make- 
 titled an act to amend section 18 peace v. Moore, 5 Gilm. (111.) 474; 
 of an act entitled "An act in re- Wells v. Miller, 45 111. 382; 7 Am. 
 gard to the administration of es- & Eng. Ency. of Law, 194, and 
 tates." Approved April 1, 1872. cases cited in note 1. 
 In force July 1, 1872, amended 5— Wilkins v. Ellett, 108 U. S. 
 and approved May 12, 1905. In 256. 
 
 force July 1, 1905. Kurd's R. S. 6— N. E. Ins. Co. v. Woodworth, 
 
 of 111., 1905, p. 107. Ill U. S. 138. 
 
 2 — Rosenthal v. Trussing, 108 7— McArthur v. Scott, 113 U. S. 
 
 111. 128. 399. 
 
 3— Myatt v. Myatt, 44 111. 473. 8— Estate of John Wilson, 80 
 
 4— McClune v. People. 19 111. 111. App. 218. 
 
 App. 105; Globe Accident Ins. Co. 9 — Ramsey v. Ramsey, 97 111. 
 
 App. 277.
 
 344 THE LAW OF ESTATES. 
 
 eessful collateral attack can be made upon the order of the 
 probate court appointing an administrator; such collateral at- 
 tack can be made only when it goes to the jurisdiction of the 
 court direct.^*' 
 
 416. Administrator's powers. He may prosecute and defend 
 suits, and may enforce judgments and decrees.^ ^ And such 
 administrator has discretionary power, and in certain cases it 
 may amount to a duty, to redeem realty from mortgage debt 
 under sale or other judgment liens.^^ Personal property de- 
 scends to heirs, but must pass through due administration under 
 the directions of the proper court.^^ Administrator has no right 
 over decedent's realty except to sell it to pay debts, and then 
 only under the proper order of court.^* 
 
 417. An administrator or executor not authorized by will 
 cannot loan funds of estate. In Wadsworth v. Connell the facts 
 of record are substantially as follows : The testator 's estate con- 
 sisting principally of real estate, the executor was required by 
 the will, to sell it at such time, and on such terms, as might be 
 advantageous. He was directed to invest one-third of the pro- 
 ceeds of sale for the benefit of the widow during her natural life, 
 "with as little delay as possible, on safe securities." The execu- 
 
 10 — Solomon v. People, 191 111. same section and chapter, p. 1258. 
 295; Frothingham v. Petty, 197 12 — Section 18, chapter 77, 
 
 111. 429. "Judgments and Decrees;" Starr 
 
 11 — Section 10, chapter 1, en- & Curtis Annotated Statutes of 
 
 titled "Abatement." Starr & Illinois, with Jones & Addington's 
 
 Curtis Annotated Statutes of Illi- Supplements thereto, Vol. 2, pp. 
 
 nois, with Jones & Addington's 2353 to 2358, and cases cited; Vol. 
 
 Supplements thereto. Vol. 1, pp. 4, p. 753, and cases cited; Vol. 5, 
 
 254, 255, and cases cited; Vol. 4, p. 333, and cases cited; Kurd's R. 
 
 p. 27, and cases cited; Kurd's R. S. of 111., 1905, same section and 
 
 S. of 111., 1905, same section and chapter, p. 1255. See also Mc- 
 
 chapter, p. 89. See also section Creedy v. Mier, 64 111. 495. 
 37, chapter 77, entitled "Decrees 13 — Leamon v. McCubbin, 82 111. 
 
 and Judgments." Starr & Curtis 263. 
 
 Annotated Statutes of Illinois, 14— Stone v. Wood, 16 111. 177; 
 
 2nd ed., Vol. 2, p. 2370, and cases Walbridge v. Day, 31 111. 379. 
 cited; Kurd's R. S. of 111., 1905,
 
 GRANTING LETTERS OF ADMINISTRATION. 345 
 
 tor was also named in the will as guardian but never qualified as 
 such, but did qualify as executor. He took charge of, and sold, 
 the property, and made report annually to the probate court; 
 kept the money invested at the highest rate of interest, and lost 
 but two loans of $500 each. Divers sums of money were paid to 
 him as executor as appears in the account rendered to which 
 exceptions were filed and under which is shown the investments 
 made upon which the court passes. It is said, page 376 : " it was 
 as executor, and not as guardian, that he received the money, 
 and he so holds it, as it was never paid over to a guardian, and 
 he never became such. The statute has not conferred on execu- 
 tors or administrators power to loan the funds of the estate, nor 
 was there any such power conferred by the will. It then fol- 
 lows, that appellant made these loans without legal authority, 
 and of his own wrong. "^^ In the case of Gilbert v. Guptill,^^ 
 it was held; where a guardian failing to conform his acts to the 
 statute, and loaning money contrary to the requirements of the 
 statute, does so at his own risk, and in case of loss he is liable 
 to make it good; and the same principle applies to all persons 
 intrusted by the statute with the custody of the money of others. 
 Their safety consists in an adherence to legal requirements. 
 
 15 — Wadsworth v. McConnell, merely directory. The court fur- 
 
 104 111. 369. ther holding under the facts in 
 
 16 — 34 111. 112. See also Mc- that case, the adding of another 
 Intyre v. People, 103 111. 142. name as security in the body of 
 Where a guardian loaned his the guardian's bond, and the sign- 
 ward's money: The court holding ing and sealing of such bond by 
 in that case, the statute requires, the new surety, under an order of 
 the county court must approve the cou,rt requiring additional secu- 
 security; and in such case where rity, even if lawful, will not affect 
 the loan was made without the ap- the security of the ward in the 
 proval of the court it was held, the bond as originally made, or de- 
 ward might treat such loan made, feat a recovery thereon; and if 
 as an appropriation of the money lawfully made, the ward may 
 to the guardian's own use. The treat the bond as that of all the 
 statutory requirement "that the se- sureties named in it after its al- 
 curity shall be approved by the teration, and may sue any one of 
 court" being mandatory and not such sureties separately.
 
 346 THE LAW OF ESTATES. 
 
 The administrator is not authorized to loan funds of the estate; 
 and if he does in case of loss he is liable therefor.*'^ 
 
 418. Executors and administrators have no power to mort- 
 gage lands of the estate. In the case of Johnson v. Davidson,^^ 
 quoting from page 235 : ' ' The argument on behalf of appellants 
 seems to proceed upon the supposition that an administrator 
 may bind the heirs by his mortgage of real estate for the purpose 
 of raising money with which to pay the debts of the ancestor, 
 and that a court of equity will sustain the mortgage, or a title 
 derived under it, if it be shown that the borrowed money was 
 honestly applied to the payment of debts. No authority is cited 
 in support of this position, and none, we believe, can be found. ' ' 
 
 419. When letters may be granted to other than husband, 
 etc. "Letters of administration upon the goods and chattels, 
 rights and credits of a person dying intestate, shall not be 
 granted to any person not entitled to the same, as husband, 
 widow, next of kin, creditor or public administrator, within 
 seventy-five days after the death of the intestate, without satis- 
 factory evidence that the persons having the preference have 
 relinquished their prior right thereto; but if application is 
 made after the expiration of seventy-five days, the county court 
 may proceed to grant letters to the applicant or any other per- 
 son, as he may think fit. "^^ 
 
 17 — Caruthers v. Caruthers, 99 nois, Vol. 1, p. 278; Kurd's R. S. 
 
 111. App. 404. of 111., 1905, same section and 
 
 18—162 111. 232. In the case of chapter, p. 108. 
 Johnson v. Davidson, it was also Owing to an act amending sec- 
 held: A court of equity will not tion IS, chapter 3, "Administra- 
 sustain a title derived under a tion of Estates" (ante 409) the 
 mortgage made by an administra- time is now limited to 60 days in- 
 tor to raise money to pay debts of stead of 75 after death in which 
 the estate, even though the money the right of the public adminis- 
 borrowed is honestly applied to trator or creditor to take out let- 
 the payment of such debts. ters of administration may be ex- 
 
 19 — Section 19, chapter 3, "Ad- ercised. Therefore the amenda- 
 
 ministration of Estates." Starr & tory act as noted passed May 12, 
 
 Curtis Annotated Statutes of Illi- 1905, by implication repeals sec-
 
 GRANTING LETTERS OF ADMINISTRATION. 347 
 
 420. AflSdavit of death. Section 20 of the administration act 
 is as follows: ''Before letters of administration shall hereafter 
 be issued, the person applying for the same, or some other 
 credible person, shall make and file an affidavit with the proper 
 clerk, setting forth, as near as may be, the date of the death of 
 the deceased, the probable amount or value of the personal 
 estate, and the names of the heirs and widow, or surviving hus- 
 band, if known. "20 
 
 421. Form of letters of administration. Section 21 of the 
 administration act prescribes the form of letters and concludes 
 after giving such form as follows: "And in all cases where 
 letters of administration with the will annexed, letters of admin- 
 istration de bonis non, or letters of administration to any public 
 administrator are issued, the same shall be in conformity with 
 the foregoing form, as nearly as may be, taking care to make 
 the necessarj^ variations, additions or omissions to suit each 
 particular case."2i 
 
 422. Administrator's oath. Section 22 of the administration 
 act is as follows: "The county court shall, in all cases, upon 
 granting administration of the goods and chattels, rights and 
 credits of any person having died intestate, require the ad- 
 ministrator (public administrators excepted) to take and sub- 
 scribe and file with the clerk of the court an oath, in substance 
 (given by statute). -^ 
 
 tion 19, of the same chapter, in so nois. Vol. 1, pp. 278, 279; Kurd's 
 
 far as that act is in conflict with R. S. of 111., 1905, same section 
 
 section 18 noted. and chapter, p. 108. See also N. 
 
 20— Laws of 1859, p. 95, sec. 9: E. Ins. Co. v. Woodworth, 111 U. 
 
 Section 20, chapter 3, "Adminis- S. 138. In that case it is held, that 
 
 tration of Estates." Starr & Cur- a person disputing the validity of 
 
 tis Annotated Statutes of Illinois, letters regular on their face, has 
 
 Vol. 1, p. 278; Kurd's R. S. of 111., the burden of proof in showing 
 
 1905, same section and chapter, p. the invalidity thereof. 
 
 108. 22— R. S. of 1845, p. 550; sec. 
 
 21— R. S. of 1845, p. 550, sec. 67; Section 22, chapter 3, "Admin- 
 
 €6; section 21, chapter 3, "Admin- istration of Estates." Starr & 
 
 istration of Estates." Starr & Curtis Annotated Statutes of Illi- 
 
 Curtis Annotated Statutes of Illi- nois. Vol. 1, p. 279; Kurd's R. S.
 
 348 THE LAW OF ESTATES. 
 
 423. Bond of administrator. Section 23 of the administra- 
 tion act as amended May 13, 1903, is as follows: "Every 
 administrator, except as is hereinbefore in section eight (8) 
 provided, shall, before entering upon the duties of his office, 
 enter into a bond, with good and sufficient security, to be 
 approved by the county court, and in counties having a pro- 
 bate court, by the probate court, in a sum double the value of 
 the personal estate, and payable to the People of the State of 
 Illinois, for the use of parties interested, substantially in the 
 following form (form given). Which said bond shall be signed 
 and sealed by the said administrator and his securities, attested 
 by the clerk of the county court, or probate court, or any per- 
 son in the county authorized to administer oaths, and filed in 
 said clerk's office, and that where it becomes necessary to sell 
 the real estate of any intestate for the payment of debts against 
 his estate under the provisions of this act, the court shall re- 
 quire the administrator to give further and additional bond, 
 with good and sufficient security, to be approved by the court, 
 in a sum double the value of the real estate of the decedent, 
 sought to be sold, and payable to the People of the State of 
 Illinois for the use of the parties interested in the form above 
 prescribed; and in all cases where bonds shall be taken from 
 any administrator de bonis non or in any other case where a 
 form shall not be prescribed in this act, the same shall be 
 made as nearly as may be, in conformity with the form above 
 prescribed, with corresponding variations to suit each particu- 
 lar case. "23 
 
 424. Failure to file additional bond — effect — de facto oflScer 
 taking bond — dual officer — administrator and guardian of sole 
 distributee. The failure of the court to require by its order, 
 
 of 111., 1905, same section and ton's Supplements thereto, Vol. 1, 
 chapter, p. 108. pp. 279, 280; Vol. 5, pp. 16, 17, and 
 23 — Laws of 1903, p. 1. In force cases cited under section of stat- 
 July 1, 1903: Section 23, chapter ute in question in each volume; 
 3, "Administration of Estates." Kurd's R. S. of 111., 1905, same sec- 
 Starr & Curtis Annotated Statutes tion and chapter, pp. 108, 109. 
 of Illinois, with Jones & Adding-
 
 GRANTING LETTERS OF ADMINISTRATION. 349 
 
 and also, the failure of the administrator de bonis non to give 
 additional bond required by statute where real estate is sold, 
 does not affect the validity of the sale. The rights of purchas- 
 ers in such proceeding will be protected in a collateral proceed- 
 ing, against mere errors which may have intervened. Particu- 
 larly is this the settled doctrine of the courts of Illinois, where 
 the proceeds of an estate have all been accounted for, and 
 where the property sold at administrator's sale has vested in 
 good faith in persons not parties to the record, and who obtain 
 land so sold by mesne conveyances from the purchaser at 
 administrator's sale; and who for a number of years have been 
 in quiet and peaceable possession and expended considerable 
 sums in improvement of the property.^^ A bond taken by an 
 officer de facto is valid.-^ In the case of Bell v. People the 
 facts of record are substantially: The same person was ad- 
 ministrator and guardian of the sole heir of the. estate of which 
 he was administrator. No report was made by such dual officer 
 of his acts and doings either as administrator or as guardian 
 of the heir. He was in fact and therefore sustained the dual 
 
 24 — Frothingham v. Petty, 197 refunding bond, and therefore, 
 
 111. 431. after the death of such adminis- 
 
 25 — 94 111. 230. And see also trator and executor, the sureties 
 supporting the opinion in Bell v. on his bond as administrator, will 
 People, supra, Karr v. Karr, 6 not be liable for such money so re- 
 Dana, 4; Watkins v. Shaw, 2 G. ceived by him as executor. And 
 & J. (Md.) 220; Carroll v. Bos- it is also held, that after the death 
 ley, 6 Yeager, 220; Taylor v. De- of such administrator and execu- 
 blois, 4 Mason, 131; Pratt v. tor, and the appointment of an 
 Northam, 5 Mason, 95; Weir v. administrator de bonis non of the 
 The People, 78 111. 192. In the estate of which he was executor, 
 latter case, where the administra- it is not in the power of the ad- 
 tor of an estate also qualified as ministrator de bonis non, by set- 
 executor of the will of the sole tling with the sureties on the ex- 
 heir and distributee of his intes- ecutor's bond, to affect the rights 
 tate estate, it was held the re- of the surety on the bond of the 
 ceipt of money by him as admin- same person, as administrator, and 
 istrator, after the debts of the in- thereby charge the liability that 
 testate are paid, will be regarded rested upon the sureties in the 
 as paid to himself, as executor, bond of the deceased party as ex- 
 wlthout any order of court for ecutor, to the surety on his bond 
 that purpose, or the giving of any as administrator.
 
 350 THE LAW OF ESTATES. 
 
 relation or trust of administrator and guardian of the sole dis- 
 tributee. In the ease cited suit was brought against the sure- 
 ties on both official bonds, and the lower court entered judg- 
 ment against sureties on the administrator's and guardian's 
 bonds. It appeared also by the record that all debts against 
 the estate were fully paid, and the personalty reduced to the 
 possession of the dual officer. While matters regarding the 
 estate were in that shape the officer holding as such adminis- 
 trator and guardian died, having on hand funds aggregating 
 nearly $6,000 belonging to said estate, and held for the benefit 
 of his ward and sole distributee. The court under the state of 
 facts shown in that case, held: That it will be presumed after 
 a reasonable time for settling the estate had elapsed, and es- 
 pecially after the administration of the estate has been com- 
 pleted, and that he held such funds as guardian, his sureties 
 as guardian alone will be liable for the same. That an order 
 of the county court transferring the funds in his hands as 
 administrator is not indispensable in such case to charge his 
 sureties as guardian. 
 
 425. Joint or several bonds. Section 24 of the Administra- 
 tion act is as follows: "When two or more persons are ap- 
 pointed executors or administrators of the same estate, the court 
 may take a separate bond, with sureties, from each, or a joint 
 bond, with sureties, from all. "^^ 
 
 2G— Section 24, chapter 3, "Ad- tion 1, Chapter 131, entitled "Con- 
 ministration of Estates." Starr & struction of Statutes" where it is 
 Curtis Annotated Statutes of Illi- provided, that the signature of any 
 nois, Vol. 1, p. 280; Kurd's R. S. person to a public bond must be 
 of 111., 1905, same section and in the proper hand writing of the 
 chapter, p. 109. See also sections person signing, or, if he is unable 
 1, 4, chapter 103, entitled "Official to write, his proper mark. Vol. 3, 
 Bonds" Starr & Curtis Annotated Starr & Curtis Annotated Statutes 
 Statutes of Illinois, Vol. 2, pp. of Illinois, page 3836; Kurd's R. 
 2831, 2832; Kurd's R. S. of 111., S. of 111., 1905, p. 1947; see People 
 1905, same section and chapter, v. Robinson, 89 111. 103; Boice v. 
 pp. 1417, 1418. See clause 15, sec- Gilbert, 29 111. 527; Stern v. Peo- 
 ple, 102 111. 540.
 
 GRANTING LETTERS OF ADMINISTRATION. 351 
 
 426. Suit on bond. Section 25 of Administration Act is as 
 follows: "All bonds which may at any time be given by any 
 executor or administrator, either with or without the will 
 annexed, or de bonis non, to collect, or public administrator, 
 may be put in suit and prosecuted against all or any one or 
 more of the obligors named therein, in the name of the People 
 of the State of Illinois, for the use of any person who may have 
 been injured by reason of the neglect or improper conduct of 
 any such executor or administrator, and such bonds shall not 
 become void on the first recovery thereon, but may be sued 
 upon, from time to time, until the whole penalty shall be re- 
 covered: Provided, that the person for whose use the same is 
 prosecuted, shall be liable for all costs which may accrue in 
 the prosecution of the same, in case the plaintiffs fail in their 
 suit; and certified copies of all such bonds, under the seal of 
 the clerk of the county court, shall be received as evidence to 
 authorize such recovery in any court of law or equity of com- 
 petent jurisdiction, "2" This statute construed in People v. 
 Lott,^^ is held to refer to actions at law, and not to authorize 
 bill in equity. In suits on bonds the People as plaintiffs may 
 sue for use of several plaintiffs for all damages sustained.^*^ A 
 
 27— Section 23, Chapter 3, "Ad- 28—27 111. 215. 
 
 ministration of Estates." Starr & 29 — People v. Stacey, 6 III. App. 
 
 Curtis Annotated Statutes of 111- 521'; People v. Hunter, 89 111. 392; 
 
 inois, with Jones & Addington's Ralston v. Wood, 15 III. 159; Peo- 
 
 Supplements thereto. Vol. 1, p. pie v. Randolph, 24 111. 324; Peo- 
 
 280, and cases cited; Vol. 4, p. 33, pie v. Summers, 16 111. 173; People 
 
 and cases cited; Vol. 5, p. 17, and v. Lane, 36 111. App. 649; Nevitt 
 
 cases cited; Kurd's R. S. of 111., v. Woodburn, 160 711. 214; People 
 
 1905, same section and chapter, p. v. Solomon, 89 111. App. 386; 
 
 109. See also sections 125, 128, Same v. Same, 191 III. 290. In the 
 
 "Administration Act" Starr & case of Nevitt v. Woodburn, 
 
 Curtis Statutes, Vol. 1, p. 347; supra, p. 209, this general rule is 
 
 Kurd's R. S. of 1905, p. 126. See stated and applied. "Sureties on 
 
 also sections 4, 13, chapter 103, official bonds are not concluded by 
 
 "Official Bonds," Starr & Curtis a decree or judgment against their 
 
 Annotated Statutes of Illinois, principal, unless they have had 
 
 Vol. 2, pp. 2832, 2835; Kurd's R. their day in court or an oppor- 
 
 S. of 111. 1905, pp. 1417, 1419; R. S. tunity to be heard in their de- 
 
 of 111., 1845, p. 551, sec. 59. fense; but administration bonds
 
 352 THE LAW OF ESTATES. 
 
 debt may be maintained on bond by creditor holding judg- 
 ment against administrator, although such judgment was never 
 presented or allowed by the probate court.^*^ 
 
 427. Miscellaneous rights and remedies arising under suit 
 on bond or mal-administration. Administrator 's failure to com- 
 ply with order of court is cause for action on bond.^^ But 
 an erroneous order of the probate court for sale of realty not 
 in conformity to statute, will not make sureties on administra- 
 tor's bond liable for moneys coming to the hands of adminis- 
 trator under such sale.^^ The measure of liability is fixed by 
 the bond.^3 Inventory does not bind surety as to what prop- 
 erty constitutes assets of estate.^^ The fact that one of the 
 principals to the bond died pending the appeal, and that ap- 
 pellee was compelled to pursue his remedy against his debtors 
 separately, one in person and the other through the Probate 
 court, does not, upon proper construction of the bond, release 
 the sureties.^^ Equity will relieve against mal-administration 
 
 seem to form an exception to this 159; Housh v. People, 66 111. 178; 
 
 general rule, and the sureties a petition filed in the county court 
 
 thereon, in respect of their lia- was the basis of the action in 
 
 bility for the default of the prin- the latter case; City of Chicago 
 
 cipal, seem to be classed with such v. Gage, 95 111. 593; Storall v. 
 
 as covenant that their principal Banks, 10 Wall. 583. See for the 
 
 shall do a particular act." The form of declaration in suit on 
 
 following cases holding under this bonds, Curry v. People, 54 111. 263; 
 
 rule, the liability of the surety People v. Miller, 1 Scam. (111.) 83. 
 
 upon an administration bond is 30 — People v. Allen, 6 111. App. 
 
 fixed by the judgment against his 17. 
 
 principal; and this is so by rea- 31 — Ralston v. Wood, 15 111. 
 
 son of the terms of his obligation, 159; Nevitt v. Woodburn, 16u 111. 
 
 which are substantially those of 203-214; Solomon v. People, 191 
 
 the bond, resulting from the na- 111. 96; People r. Lane, 36 111. 
 
 ture of the obligation entered into App. 649. 
 
 by the surety on an administra- 32 — Young v. People, 35 111. App. 
 
 tor's or executor's bond cited in 363. 
 
 support of this doctrine, 1, Woer- 33 — Solomon v. People, 89 111. 
 
 ner's Am. Law of Administration, App. 386; Same v. Same, 191 111. 
 
 sec. 255; 2, Black on Judgments, 290. 
 
 section 589; Irwin v. Backus, 25 34— People v. Petrle, 191 111.497. 
 
 Cal. 214; Ralston v. Wood, 15 111. 35— Sanger v. Nadlehoffer, 34 
 
 111. App. 252.
 
 GRANTING LETTERS OF ADMINISTRATION. 353 
 
 of estate by administrator, complainants will not be driven to 
 suit on bond.^^ An administrator de bonis non can bring and 
 maintain a suit against former executor and his sureties for 
 indebtedness of that executor to the estate; this right is based 
 upon assets recovered or collected by such former executor and 
 converted to his own use/''^ A usee, without suing upon the 
 bond, may have claim allowed against deceased surety's estate 
 in the probate court, which has equitable jurisdiction in such 
 case to adjudicate and allow such claim to the extent of the 
 surety's liability .^^ 
 
 428. The rule of construction placed upon bonds. In the 
 
 case of Beloni v. FreehornP it is said: "In construing the 
 obligations of sureties, the same rules are applicable as in the 
 construction of other instruments. While the obligation can 
 not be extended by construction or implication beyond its 
 precise terms, the meaning is to be ascertained in the same 
 manner as in other instruments, and when this is ascei^tained, 
 effect is to be given to it." A fair reasonably strict construc- 
 tion of securities obligations is all that the law requires.^'^ 
 
 429. Defense of surety under bond. Where an administra- 
 tor of an estate dies, and his surety on his bond succeeds him, 
 and he is sued as such surety on the bond, he will be liable 
 only for the acts of the deceased administrator, and not for 
 
 36 — McCreedy v. Meir, 64 111. dence showing a breach of the 
 
 495. conditions of the bond by the prin- 
 
 37 — Nevitt v. Woodburn, 160 cipal because he has not been 
 
 111. 214. served with process, or is not 
 
 38 — Thompson v. Block, 200 111. within the jurisdiction of the 
 
 465. court, or because his defalcation 
 
 39 — 63 N. Y. 217. Doctrine or has not been established by a 
 
 rule laid down in that case was judgment against him. The obli- 
 
 adopted and applied in Sanger v. gation of a surety on such bond 
 
 Nadlehoffer, 34 111. App. 252. is not collateral, but a direct one. 
 
 40 — Cassady v. Trustees of See also the following cases: Mas- 
 Schools, 105 111. 560. In this case, sie v. Eelford, 68 111. 290; Walker 
 it is held, the sureties on a school v. Kimball, 22 111. 539; McCarty 
 treasurer's bond, in an action v. Hall, 24 111. 343. 
 thereon, can not object to evi- 
 23
 
 354 THE LAW OF ESTATES. 
 
 moneys that came into his hands as successor,^* The fact, that 
 the inventory mentioned the fund, as being a part of the prop- 
 erty of the estate, has been held not to create a liability against 
 the sureties upon the executor's bond.^^ t^q sureties of an 
 executor cannot be made liable for funds, which the executor 
 received as agent or trustee for a legatee, though he has 
 charged himself with them in his executorial accounts."*^ The 
 sureties of administrator could not be held liable for funds re- 
 ceived, not as administrator, but as agent of the w^dow and 
 heirs, though he charged himself with such funds as adminis- 
 trator.-*"* Sureties are not liable for the proceeds of an intes- 
 tate's real estate, though charged in the account of an adminis- 
 trator. This applies to a general bond only, and not where 
 additional bond is required in the sale of real estate.^^ The 
 sureties upon the bond of an administrator who has collected 
 moneys, neither assets of the estate nor subject to distribution 
 by him, and to which, as the legal representative of the dece- 
 dent, he was not entitled, are not liable for any appropriation 
 or use of the same by the administrator for his personal bene- 
 fit.'*^ The fact, therefore, that the executors here saw fit to 
 charge themselves in their general account with the balance 
 remaining after payment of debts, legacies and charges, does 
 not conclude the sureties under the general bond.^' The liabil- 
 ity of a surety is strictissimi juris. ^^ The report of an execu- 
 tor, showing a certain balance in his hands as of the date of 
 
 41— People V, Allen, 86 111. 166. 308. In this case, the court held 
 
 42 — People v. Petrie, 191 111. the liability on the bond could not 
 
 497, 513. be extended by construction be- 
 
 43 — Clay v. Hart, 7 Dana, (Ky.) yond the precise term of a county 
 
 1. clerk, which fixed the terms of the 
 
 44 — Shields v. Smith, 8 Bush, contract or liability of the surety. 
 
 601. The surety on the bond being only 
 
 45 — Commonwealth v. Gilson, 8 liable for the faithful perform- 
 
 Watt. 214. ance of the duties of the clerk for 
 
 46 — Pace v. Pace, 19 Fla. 454. whom he was surety, during the 
 
 47 — Robinson v. Millard, 133 definite term of such clerk's office 
 Mass. 236; People v. Hoffman, 182 as fixed by law. The statute fix- 
 Ill. 390. ing the term of such clerk, which. 
 
 48 — People v. Toomey, 122 111. was taken as a part of the con- 
 tract.
 
 GRANTING LETTERS OF ADMINISTRATION. 355 
 
 his report, is not conclusive on his sureties in an action to 
 enforce their liability on the bond, when the report wa^ not 
 approved by an adjudication of the court.'*'* That sureties on 
 the bond of executor, who collect and misappropriate the pro- 
 ceeds of a benefit certificate "where they are bequeathed to a 
 person named by will in trust for my legal heirs" does not 
 create a liability against the sureties on the executor's bond, if 
 they are not otherwise liable under the law.^** A claim against 
 the estate of a surety upon an executor's bond for the amount 
 adjudged to be due may be allowed in the name of the usee, 
 instead of in the name of the People for his use.*"'^ The statute 
 provides that all bonds given by any executor may be put in 
 suit and prosecuted in the name of the People of the State of 
 Illinois, for the use of the person injured by reason of the 
 neglect or improper conduct of the executor, and in an action 
 at law they must be put in suit in that manner. The right of 
 action at law is vested solely in the person having the legal 
 interest. But the probate court can grant equitable relief, and 
 can secure to parties the right allowed to them by law, for the 
 purpose of arriving at an adjustment of the claim. And so 
 the usee was permitted and allowed a claim against the estate 
 in question for the amount due on the bond where the deceased 
 was the surety.'^- 
 
 430. Revoking letters — ^removing executor or administrator 
 from office. The statute of Illinois provides that executors or 
 administrators may be removed and letters testamentary or of 
 administration may be revoked for the following causes, viz. : 
 For false and fraudulent pretense under which letters have 
 been granted. Where will, testament or codicil is produced 
 after letters have been granted; or where will, testament or 
 codicil is set aside by due course of law. Where executor or 
 
 49 — People v. Hoffman, 182 51 — Thomson v. Black, 200 III. 
 
 111. 390; People v. Petrie, 191 111. 465. 
 
 497. 52— Thomson v. Black, 200 111. 
 
 50— People v. Petrie, 191 111. 465, 467. 
 497.
 
 356 THE LAW OF ESTATES. 
 
 administrator shall become insane, lunatic or of unsound mind, 
 habitual drunkard or convicted of infamous crime, or shall 
 waste or mismanage the estate, or by their conduct endanger 
 their co-executors, co-administrators or securities; or, where 
 executor or administrator is about to remove, or has removed 
 beyond the limits of the State, the county court or probate 
 court may under the strict provisions of the statute remove 
 such from office and revoke letters testamentary or of adminis- 
 tration theretofore granted to such.^^ 
 
 431. For false pretense. Section 26, "County courts shall 
 revoke letters of administration in all cases where the sajne 
 were granted to any person upon the false and fraudulent pre- 
 tense of being a creditor of the estate upon which administra- 
 tion is granted, or upon any other false pretense whatsoever." 
 Section 27: "When it appears that such letters are fraudu- 
 lently obtained by such administrator, the court revoking the 
 same shall give judgment against the administrator for all costs 
 of suit."^* The facts of record in Marston v. Wilcox^^ show: 
 The administrator had obtained the letters of administration 
 by fraudulently representing that he was a creditor of the 
 intestate, when in truth he was not. It being held courts of 
 probate have power to revoke letters of administration ob- 
 tained through fraud. The right to inquire whether a fraud 
 has been practiced, is a necessary incident to the power given 
 by statute "to hear and determine the right of administra- 
 tion." In the case of Wernse v. Hall, Adm.^^ the record shows the 
 plaintiff in error applied to the probate court of Ralls county, 
 Missouri, to have his claim allowed; that court rejected the 
 same and the plaintiff came to Illinois and on a void judgment 
 
 53 — See sections 26 to 33, inclu- R. S. of 111., 1905, same sections 
 
 sive, also sections 36 and 114. and chapter, pp. 109, 110, 124. 
 
 Chapter 3, "Administration of Es- 54 — Section 27, chapter 3, "Ad- 
 
 tates," Starr & Curtis Annotated ministration of Estates," statutes 
 
 Statutes of Illinois, vol. 1, pp. 281 cited in note 53, with same page 
 
 to 284 inclusive; page 339 of same reference. 
 
 volume and cases cited under sec- 55 — 1 Scam. (111.) 60. 
 
 tions of statute noted; Kurd's 56—101 111 423.
 
 GRANTING LETTERS OF ADMINISTRATION. 357 
 
 of the Circuit Court of St. Louis county, Missouri, made rep- 
 resentation to the probate court in this State, that he was a 
 creditor of the deceased and procured letters of administration 
 from the county court of Madison county, this State on such 
 representation. Held: When it was made apparent upon the 
 trial that plaintiff in error was not a creditor, it was proper 
 to not only disallow the claim, but also to enter an order re- 
 voking the letters of administration, as was done by the Illi- 
 nois court. 
 
 432. Revoked when will produced — and when will set aside. 
 
 Section 28, of the administration act, provides: "If, at any 
 time after letters of administration have been granted, a will 
 of the deceased shall be produced, and probate thereof granted 
 according to law, such letters of administration shall be re- 
 voked. ' ' Section 29 : "In all cases where a will, testament or 
 codicil shall have been proved and letters granted thereon, as 
 aforesaid, and such will shall thereafter be set aside by due 
 course of law, the letters granted thereon shall be revoked."^''' 
 In the case of Shephard v. RJiode^^ the record shows: A per- 
 son died in the State of Pennsylvania, leaving a will, and 
 having property and creditors in the State of Illinois; letters 
 of administration were granted by the county court of Cook 
 county, without it being known that there was a will; but on 
 its discovery it was probated and recorded in Pennsylvania, 
 and in Illinois, the letters of administration first issued were 
 revoked, and letters with the will annexed were granted. Held, 
 that the grant of the first letters was not void, but voidable, 
 and the acts performed by the first administrator are binding 
 in a collateral proceeding. Under our Statute of Wills (Stat- 
 utes of 1845), sections 71, 72, then in force, substantially the 
 same as statutes cited under administration act, it was held, 
 that upon the revocation of letters of administration on the 
 discovery and probate of a will, the various acts done and per- 
 
 57 — Section 28, chapter 3, "Ad- Illinois, vol. 1, p. 281; Kurd's R. 
 ministration of Estates." Starr S. of 111., 1905, p. 109. 
 & Curtis Annotated Statutes of 58—60 111. 301.
 
 358 THE LAW OF ESTATES. 
 
 formed under the first grant of letters are binding until set 
 aside in a direct proceeding/''^ Even if it were the rule of the 
 common law that letters of administration were void where a 
 will was in existence we do not think, in view of our statute, 
 that such rule obtains in this State. The county court had 
 cognizance of the subject matter; the proper application was 
 made, and the judgment of the court was properly exercised. 
 The grant of administration was, then, made by a court of 
 competent jurisdiction."" In the case of Meek v. Allison,^^ 
 where the will of a deceased person, offered for probate was 
 rejected, and there being no appeal taken, the county court, 
 upon a proper application, granted letters of administration 
 upon the estate, under which the administrator paid off claims 
 and made a partial distribution of the estate to the heirs; 
 after this was done the will which was first rejected, was again, 
 fifteen months after, presented for probate after protracted 
 litigation in the circuit court of Peoria county, and was by 
 the county court admitted to probate. The court say: "The 
 statute clearly never intended that creditors and distributees 
 should be compelled to wait an indefinite time for the executor 
 or legatees to prove the will. Such a construction of the statute 
 would postpone for twenty years any administration upon an 
 estate, if a will existed, under the severe penalty resulting from 
 a misapplication of the assets and a maladministration. " 
 Held, the letters of administration were not void, but only 
 voidable, and not being void, they were a protection to the 
 administrator for all lawful acts done by him under them 
 before their revocation. 
 
 433. Revoked for lunacy, disability, mismanagement, etc. 
 
 Section 30 of the administration act provides: "The county 
 court may revoke all letters, testamentary or of administration, 
 granted to persons who become insane, lunatic or of unsound 
 mind, habitual drunkards, are convicted of infamous crimes, 
 
 59— Shephard v. Rhodes, 111 111. 60— Shephard v. Rhodes. Ill 
 301; 2, Kent's Com. 413; Wright 111. 301. 
 V. Walbaum, 39 111. 554. 61—67 111. 46.
 
 GRANTING LETTERS OF ADMINISTRATION. 359 
 
 waste or mismanage the estate, or who conduct themselves in 
 such manner as to endanger their co-executors, co-administra- 
 tors or securities, in all which cases the court shall summon 
 the person charged to be in default or disqualified, as afore- 
 said, to show cause why such revocation should not be made. 
 When revocation is made, the reason therefor shall be stated 
 at large upon the record."*'- Under the statute quoted and 
 others hereafter referred to, the removal of administrators, 
 and the revocation of letters to such by legislative enactment, 
 was placed in the county and probate courts of this State. It 
 is a special power or jurisdiction conferred upon such court 
 when they act strictly within the power conferred. It is there- 
 fore to be noted, that in all cases under section 30 the court 
 shall summons the person charged to be in default or dis- 
 qualified, to show cause why such revocation should not be 
 made; and when revocation is made, the reason therefor shall 
 be stated at large upon the record of the court in such proceed- 
 ing. In Hanifan v. Needles^^ it is held: "It is a funda- 
 mental principle that underlies our whole judicial fabric, that 
 in all proceedings in courts of justice wherein it is sought to 
 deprive the citizen of his property, or any right or privilege 
 recognized by law, the party to be affected by them is entitled 
 to reasonable notice of the time and place of hearing, and of 
 the general nature or object of such proceedings. In con- 
 formity to this general principle the county court has no power 
 or jurisdiction to revoke the letters of an executor or adminis- 
 trator, under the above section, until he is first cited to appear 
 and show cause why his letters should not be revoked." In 
 Munroe v. The People^'^ the same doctrine is announced but 
 
 62 — Section 30, chapter 3, "Ad- day of the next term of the county- 
 ministration of Estates." Starr & court, "and present his account of 
 Curtis Annotated Statutes of Illi- said estate for settlement," in 
 nois, Vol. 1, p. 281; Kurd's R. S. which there is no intimation that 
 of 111., 1905, p. 109. he is charged with waste or mis- 
 
 C3 — 108 111. 403. In the case of management, etc., the county 
 
 Hanifan v. Needles, it is held, on court has no jurisdiction to re- 
 
 a citation to an executor, requir- voke his letters testamentary, 
 
 ing him to appear on the first 64 — In the case of Munroe v.
 
 360 THE LAW OF ESTATES. 
 
 put in different form; it being there held: The county court, 
 in the absence of statutory authority, has no power to remove 
 an administrator, or to revoke letters of administration, after 
 the administrator has accepted and qualified, and entered upon 
 his duties. And until some one of the causes mentioned in the 
 statute is placed before the court for action, the court has no 
 power to act at all, or, in other words, has no jurisdiction. 
 
 434. Removal of representative from State. Section 31 of 
 the administration act provides: "When it shall come to the 
 knowledge of the county court, by affidavit or otherwise, that 
 any executor or administrator of an estate is about to remove 
 or has removed beyond the limits of this State, it shall be the 
 duty of such court to cause a notice to be published in some 
 newspaper in the county where letters testamentary or of 
 administration were granted, for four weeks successively, and 
 if no newspaper is published in said county, then by posting 
 up a notice at the court house door, notifying the said executor 
 or administrator to appear before him within thirty days after 
 such notice, and make a settlement of his accounts, as re- 
 quired by law. If the executor or administrator neglects or re- 
 fuses to make such settlement, it shall be the duty of said county 
 court to remove him from office.^^ Until some one of the 
 causes mentioned in the statute is placed before the court for 
 action, the court has no power to act at all in this regard — it 
 has no jurisdiction to act.^^ Where the records show facts 
 which confer jurisdiction, such proceeding will be upheld.^''^ 
 
 The People, 102 111. 406, it petition filed in the county court 
 
 is held: Until a valid revocation in that case stated in the opinion, 
 
 of letters of administration al- 65 — Laws of 1847, p. 63, rewrit- 
 
 ready granted on an estate is ten in present statute; section 31, 
 
 made, the county court has no chapter 3, "Administration of Es- 
 
 power or jurisdiction to appoint tates," Starr & Curtis Annotated 
 
 another as administrator de bonis Statutes of Illinois, Vol. 1, p. 282; 
 
 non of the same estate, and an Kurd's R. S. of 111., 1905, p. 110.. 
 
 order for such appointment under 66 — Munroe v. People, 102 lU. 
 
 such circumstances is absolutely 410. 
 
 void. See also facts stated in the 67 — Frothingham v. Petty, 197 
 
 111. 426.
 
 GRANTING LETTERS OF ADMINISTRATION. 361 
 
 Where an executor removes from the State of appointment and 
 under a bill in equity, is beyond the reach of the process of 
 the county court, and the payment of money in executrix's 
 hands, belonging to the estate, could not be enforced by at- 
 tachment for contempt, a receiver may be appointed at the 
 instance of the cestui que trust.^^ 
 
 435. Further security — failure to give. ''When any 
 court grants letters, testamentary or of administration, of 
 the estate of any person deceased, without taking good security 
 as aforesaid, or when any security heretofore or hereafter taken 
 becomes insufficient, the court may, on the application of any 
 person entitled to distribution, or otherwise interested in such 
 estate, require such executor or administrator to give other 
 and sufficient security; and in default thereof the letters, tes- 
 tamentary or of administration, shall be revoked and adminis- 
 tration de bonis nan granted; but all acts done according to 
 law by the executor or administrator so removed prior to such 
 revocation, shall be valid. "^^ A new or additional bond, given 
 by an administrator under above statute, formerly section 79 
 of the statute of "Wills," can not operate to discharge his 
 sureties in the original bond.'^^ Where a second or additional 
 bond was given, and before then, the administrator had ap- 
 propriated the funds of the estate to his own use; the sureties 
 on the original bond were held liable to the guardian of the 
 heirs for such portion of the money as he was entitled to in 
 that capacity. But a creditor, or other person interested in the 
 estate, has his election to sue, if the maladministration for 
 which the suit is brought, would be a breach of both the 
 bonds. '^1 
 
 68 — Etling V. First National R. S. of 111., 1905, same section 
 
 Bank, 173 111. 381. and chapter, p. Ill; Munroe v. 
 
 69— R. S. of 1845, p. 553, section People, 102 111. 406. See citations 
 
 78, rewritten; section 32, chapter {Ante 430) as to "Official Bonds." 
 
 3, "Administration of Estates," 70 — People v. Curry, 59 III. 35. 
 
 Starr & Curtis Annotated Statutes 71 — Pinkstaff v. People, 59 111. 
 
 of Illinois, Vol. 1, p. 283; Kurd's 148.
 
 362 THE LAW OF ESTATES. 
 
 436. Counter or other security. Section 33 of the adminis- 
 tration act provides: "When a surety for an executor or ad- 
 ministrator, or his representatives, may conceive himself or 
 themselves in danger of suffering- by the mismanagement of 
 such executor or administrator, and shall petition the county 
 court for relief, in writing, setting forth the cause of such appre- 
 hension, the said court shall examine such petition, and if the 
 court shall deem the causes therein set forth sufficient to entitle 
 such petitioner or petitioners to relief, if true, he shall summon 
 such executor or administrator to show cause against such peti- 
 tion, and may dismiss the same, or direct such executor or 
 administrator either to give good counter security to save such 
 petitioner or petitioners harmless, or to give a new bond in the 
 like penalty as the first; and upon refusal or neglect to give 
 such counter security or new bond, the letters granted to such 
 executor or administrator may be revoked.'^^ The sureties upon 
 an administrator's bond, applied to the probate court under 
 this section of the statute, to have the administrator give a 
 new bond. The court took two new bonds from the adminis- 
 trator the penalties of which being added together, equalled in 
 amount the penalty in the old bond. This was held to be a 
 substantial compliance with the statute, which requires that 
 new bonds shall be in the like penalty as the first. Where a 
 new bond is given by an administrator or executor under the 
 statute, the sureties upon the first bond are released from all 
 liability for past as well as for subsequent acts. If, instead of 
 a new bond being given, the letters should be revoked, the 
 sureties would only be released from future liabilities.'''^ 
 
 72— R. S. of 1845, p. 79, rewrit- Munroe v. People, 102 111. 215. 
 
 ten; section 33, chapter 3, "Ad- This case will indicate the method 
 
 ministration of Estates," Starr & of proper procedure wh«n peti- 
 
 Curtis Annotated Statutes of Illi- tioning the court for an order re- 
 
 nois. Vol. 1, p. 283; Hurd's R. S. yoking letters under statute. See 
 
 of 111., 1905, same section and also as such guide Solomon v. 
 
 chapter, p. 110; see also citations People, 191 111. 290. 
 
 (Ante 430) as to "Official Bonds"; 73— People v. Lott, 27 111. 215.
 
 GRANTING LETTERS OF ADMINISTRATION. 363 
 
 437. New bond — form. Section 34 of the administration 
 act provides: "Whenever a new bond is required to be given 
 by an executor or administrator under either of the two pre- 
 ceding sections the formal part of the bond shall be as hereto- 
 fore prescribed, with a condition thereto, substantially in the 
 following form, to-wit: (form given). Which bond shall be 
 signed, sealed, approved, attested and filed in the same manner 
 as other executor's or administrator's bonds, and shall have 
 relation back to the time of granting letters testamentary or 
 of administration.*^^ 
 
 438. Surety desiring release during administration. Section 
 35 of the administration act provides: "Whenever any surety 
 on the bond of any executor or administrator desires to be re- 
 leased from further liability upon any such bond, he may 
 petition the court in which said bond is filed for that pur- 
 pose, and upon notice being given to the executor or adminis- 
 trator, as the court may direct, the court shall compel such 
 executor or administrator, within a reasonable time, to be fixed 
 by the court, to settle and adjust his accounts, and pay over 
 whatever balance may be found in his hands, and file in such 
 court a new bond, in such penalty and security as may be 
 approved by the court — which being done the surety may be 
 discharged from all liability on such bond. ""^ In Clark v. 
 American Surety Co.,'^^ the record shows the surety did not 
 file any petition nor even ask a release. The petition filed in the 
 probate court was that of the administrator and it did not 
 suggest that the surety desired to be released, but did ask the 
 court to have the surety discharged so that the administrator 
 could make an investment of money of the estate to which the 
 surety would not consent, and therefore, he wanted to get rid 
 
 74 — R. S. 1845, p. 553, section 3; section 35, chapter 3, "Admin- 
 
 80, rewritten: Section 34, chapter istration of Estates," Starr & Cur- 
 
 3, "Administration of Estates," tis Annotated Statutes of Illinois, 
 
 Vol. 1, pp. 283, 284; Kurd's R. S. Vol. 1, p. 284; Kurd's R. S. of 111., 
 
 of III., 1905, same section and 1905, same section and chapter, p. 
 
 chapter, p. 110. 110. 
 
 75— Laws of 1853, p. 164, section 76—171 111., p. 235.
 
 364 THE LAW OF ESTATES. 
 
 of the surety. The surety did not appear in court, but its 
 assistant secretary wrote upon the draft of an order a consent 
 to the entry of that order releasing it from all liability. That 
 draft of order was found defective and insufficient, and was 
 not entered, but another order discharging the surety was en- 
 tered. The order entered did not find the surety was in court 
 or had petitioned for its release, but recited this motion was 
 made by the administrator, and also contained the statement 
 "that appellee was one of the sureties on his bond and that 
 the other surety had been notified of the application," when, 
 in fact, appellee was the only surety on the bond. The court 
 in this opinion construes sections 33 and 35 of the administra- 
 tion act, and holds: The power of the county court to release 
 the surety on an executor's or administrator's bond, is derived 
 wholly from the statute; the provisions of the statute must be 
 strictly complied with. The county court cannot release a 
 surety on such bond, without first requiring the executor or 
 administrator to adjust his accounts and pay over the balance 
 in his hands, and file a new bond in such penalty and with 
 such sureties as the court may approve. Notice of the applica- 
 tion of a surety on such bond for his release need he given 
 only to the executor or administrator, as the statute makes no 
 provision for notice to heirs, creditors, or other interested par- 
 ties. The petition for release must be filed by the surety, and 
 the court has no power to release such surety upon the peti- 
 tion of the administrator. The draft of an order for the re- 
 lease of a surety on such bond, bearing the written consent of 
 the surety to the entry of the order filed by the administrator 
 with his petition, asking for the release of the surety, does not 
 give the court jurisdiction to enter an order of release.'^^ 
 
 439. Failure of executor or administrator to comply — ^re- 
 moved — successor. Section 36 of the administration act pro- 
 vides: "If such executor or administrator shall fail to comply 
 with such order within the time fixed by the court, the court 
 
 77— People v. Lott, 27 111. 215. See also Clark v. Am. Surety Co., 
 
 171 111. 235.
 
 GRANTING LETTERS OF ADMINISTRATION. 365 
 
 shall order that such executor or administrator be removed 
 from his office, and shall appoint some other fit person as 
 administrator, with the will annexed, or de bonis non, who 
 shall give a bond as required by law. And in case of the 
 failure of the former executor or administrator to settle his 
 accounts and to pay over to the person so appointed all 
 moneys, effects or choses in action in his hands by reason of 
 his said office, then such successor shall proceed to collect the 
 same by suit against such executor or administrator, or by suit 
 upon his bond; and upon collection thereof such surety shall 
 be discharged. "^s In the case of Branch v. Rankin,'^^ "it is 
 contended that there is no power given to appoint an adminis- 
 trator with the will annexed, except in the cases enumerated in 
 sections 36, 37 and 38 of the administration act; namely, the 
 removal of an executor for misconduct, or where the person 
 named executor by the will refuses to qualify, and where there 
 is a vacancy in the office of executor, occasioned by death or 
 resignation. There is the difference mentioned, that in the 
 Rosenthal case,^^ the executor had deceased, and there had 
 been an appointment by the court in Ohio of an administrator 
 with the awill annexed. But this is but a difference in circum- 
 stances between the cases, making no distinction in principle, 
 as we regard, which should cause any variance of decision. 
 The sections of the administration act referred to have refer- 
 ence to the ordinary case of principal administration in this 
 
 78 — Laws of 1853, p. 164, sec. Pleas in Pickaway county, Ohio, 
 
 5; section 36, chapter 3, "Admin- against the executor of the de- 
 
 istration of Estates," Starr & Cur- ceased. It was held, the allow- 
 
 tis Annotated Statutes of Illinois, ance of such claim in the county 
 
 Vol. 1, p. 284; Hurd's R. S. of 111,, court of Cook county, Illinois, 
 
 1905, pp. 110, 111, made it only prima facie evidence 
 
 79 — 108 111. 444, 448. against the heirs in a proceeding 
 
 80 — See Rosenthal v. Renick, 44 for leave to sell real estate. The 
 
 111. 207. In this case the claim Rosenthal case, being supported 
 
 allowed by the county court of by Stone v. Wood, 16 111. 177; 
 
 Cook county, Illinois, was found- Hopkins v. McCann, 19 111. 113; 
 
 ed on a judgment rendered in Moline Co. v. Webster, 26 111. 234; 
 
 1860, in the Court of Common Branch v. Rankin, 108 111. 444.
 
 366 THE LAW OF ESTATES. 
 
 State, and do not apply in the ease of an ancillary adminis- 
 tration in which the appointment was made. Sections 42 
 and 43 of that act, taken together, seem to contemplate that 
 there may be the case where there is an executor in a foreign 
 State, and an administrator with the will annexed in this 
 State.*^ Administrator de bonis non is not liable for property 
 wrongfuUy converted by deceased executor or administrator. 
 An administrator de bonis non derives his title from the de- 
 ceased person whose estate he administers upon, and not from 
 the former executor or administrator; and it is the residuary 
 legatees under the will who are the parties in interest, and 
 they are the persons who have the right to prosecute the per- 
 sonal representatives of the deceased executor for any waste 
 or misapplication of assets.^^ 
 
 440. Death of sole executor or administrator. Section 37 of 
 the administration act provides: "When a sole or surviving 
 executor or administrator dies without having fully adminis- 
 tered the estate, if there is personal property not administered, 
 or are debts due from the estate, or is anything remaining to 
 be performed in the execution of the will, the county court 
 shall grant letters of administration with the will annexed, or 
 otherwise, as the case may require, to some suitable person, to 
 administer the estate of the deceased not already administered, 
 and the securities on the bond of such deceased administrator 
 shall be liable on the same to such subsequent administrator 
 or to any other person aggrieved for any mismanagement of 
 the estate committed to his care, and such subsequent adminis- 
 trator may have and maintain all necessary and proper actions 
 against the securities of such former executor or administrator 
 for all such goods, chattels, debts and credits as shall have 
 come to his possession and are withheld or may have been 
 wasted, embezzled or misapplied and no satisfaction made for 
 
 81 — Branch v. Rankin, 108 111. Kirkpatrick, 14 111. 1; Marsh v. 
 
 444. People, 15 111. 284; Duffin v. Ab- 
 
 82— Bliss V. Seaman, 165 111. bott, 48 111. 17; United States v. 
 
 422, 428, 429. See also Rowan v. Walker, 109 U. S. 258.
 
 GRANTING LETTERS OF ADMINISTRATION. 367 
 
 the same. Provided, that where there is still a surviving exec- 
 utor or administrator he may proceed to administer the estate 
 unless otherwise provided. "^^ 
 
 441. Revocation or death of part. Section 38 of the admin- 
 istration act provides: "Where the letters of one of several exe- 
 cutors or administrators are revoked, or one or more of the 
 executors or administrators die or become disqualified after the 
 execution of any will, but before the probate thereof, or one or 
 more of the executors or administrators die or become dis- 
 qualilied after their appointment by the court, the court shall, 
 on petition of the surviving husband, or wife or next of kin 
 of the testator, or if there are none such, then upon the peti- 
 tion of any of the beneficiaries named in such will, appoint 
 others in their place, and require additional bonds from the 
 new administrator, or administrators; or the survivor or sur- 
 vivors, or such as shall not have their powers revoked, shall 
 proceed to manage the estate. When the letters of all of them 
 are revoked, or all of such executors or administrators die 
 before final settlement and distribution of the estate, adminis- 
 tration, with the Avill annexed, or de bonis non, shall be granted 
 to the person next entitled thereto. Provided, that in making 
 any appointment under this section, the court shall give prefer- 
 ence to the surviving husband, or wife, or next of kin of the 
 deceased, or beneficiaries named in the will, in the order 
 named.s* An administrator de bonis non or with the will 
 
 83 — Section 37, chapter 3, "Ad- of property of deceased person, see 
 ministration of Estates." As Newhall v. Turner, 14 111. 33S; 
 amended by act approved April 1, Marsh v. People, 15 111. 284; Duf- 
 1887, Laws of 1887, p. 1, Starr & fin v. Abbott, 48 111. 17; Hanifan 
 Curtis Annotated Statutes of lUi- v. Needles, 108 111. 403; Branch v. 
 nois, with Jones & Addington's Rankin, 108 111. 444; Bliss v. Sea- 
 Supplements thereto. Vol. 1, p. man, 165 111. 422. See also section 
 284; Vol. 4, p. 34, and cases cited 100, chapter 3, "Administration of 
 under section of statute in each Estates," Starr & Curtis Annotat- 
 volume; Kurd's R. S. of 111., 1905, ed Statutes of 111., Vol. 1, p. 327. 
 same section and chapter, p. 111. 84 — As amended by lav/s of 
 As to powers of an administrator 1901, p. 2; section 38, chapter 3, 
 de honis non, and title he takes "Administration of Estates," Starr
 
 368 THE LAW OF ESTATES. 
 
 annexed succeeds to the duties and powers of the executor 
 which result from the nature of his office as executor, but not 
 to those in the nature of a personal trust or confidence.^^ 
 The general rule is, that the duties and powers of an executor, 
 which result from the nature of his office as executor, devolve 
 upon the administrator with the will annexed. But the duties 
 and powers, which are imposed upon an executor as a trustee, 
 are in the nature of a personal trust or confidence reposed in 
 him by the testator, and do not devolve upon the administra- 
 tor with the will annexed, inasmuch as they cannot be dele- 
 gated.^*^ 
 
 442. Liability after revocation. Section 39 of administra- 
 tion act provides: "In all cases where any such executor or 
 administrator shall have his letters revoked, he shall be liable 
 on his bond to such subsequent administrator, or to any other 
 person aggrieved, for any mismanagement of the estate com- 
 mitted to his care; and the subsequent administrator may 
 have and maintain actions against such former executor or 
 administrator for all such goods, chattels, debts and credits as 
 shall have come to his possession, and which are withheld or 
 have been wasted, embezzled or misapplied, and no satisfac- 
 tion made for the same."^'^ 
 
 443. Resignation of executor or administrator — settlement. 
 
 Section 40 of the administration act, provides: "An executor 
 or administrator may, upon his petition and upon giving such 
 
 & Curtis Annotated Statutes of 75; section 39, chapter 3, "Admin- 
 Illinois, with Jones & Addington's istration of Estates," Starr & Cur- 
 Supplements thereto. Vol. 1, p. tis Annotated Statutes of Illinois, 
 285; Vol. 4, p. 34; Kurd's R. S. with Jones & Addington's Supple- 
 of 111., 1905, same section and ments thereto. Vol. 1, p. 285; Vol. 
 chapter, p. 111. 4, p. 35, and cases cited under sec- 
 
 85 — Penn v. Folger, 182 111. 76. tion of statute in each volume; 
 
 86— Hall V. Irwin, 2 Gilm. (111.) Kurd's R. S. of Illinois, 1905, p. 
 
 176; Nicoll v. Scott, 99 111. 529; 111; see Ante 426, citing section 
 
 see also Munroe v. People, 102 111. 13, chapter 103, "Official Bond 
 
 406. Act." Nevitt v. Woodburn, 160 
 
 87— R. S. 1845, p. 552, section 111. 214.
 
 GRANTING LETTERS OF ADMINISTRATION. 369 
 
 notice to the legatees, devisees or distributees, as the court shall 
 direct, be allowed to resign his trust when it appears to the 
 county court to be proper; and upon such resignation the 
 court shall grant letters of administration, with the will an- 
 nexed, or de bonis non, to some suitable person, to administer 
 the goods and estate not already administered. But no admin- 
 istrator or executor shall be discharged till he shall have made 
 full settlement with the court and complied with its orders, 
 and shall deliver to his successor all money, chattels and effects 
 of the estate in his hands not paid over according to the orders 
 of the court. "*^ Under this statute the county court has juris- 
 diction, and may accept the resignation of executor, and the 
 co-executor consenting thereto, is bound by the order of such 
 court.^^ In the case of Smith v. Smith,^'^ the following facts 
 appear in the record. The executor resigned from office and 
 the sole devisee consented thereto. The county court appointed 
 no successor, but directed by its order, that the executor make 
 settlement of his executorship, and deliver over the effects to 
 his successor. Afterwards, a bill was filed for the purpose of 
 contesting the will in the circuit court, and there the executor 
 who resigned being a party to such bill, upon motion and 
 presenting to the court the order of the county court accept- 
 ing such resignation was dismissed from said proceedings. In 
 the opinion of the court page 494, section 40 of the adminis- 
 tration act was construed; it being held, the county court has 
 power to allow an executor to resign his trust, when it appears 
 to the court to be proper. It is to be presumed the county 
 court did its duty and acted upon proper consideration when 
 it accepted such resignation; especially, as the sole devisee 
 
 88 — Laws of 1849, p. 100, section under section in each volume; 
 
 1; Laws of 1853, p. 163, sec. 1; Kurd's R. S. of III., 1905, p. Ill; 
 
 section 40, chapter 3, "Adminis- see also Marsh v. People, 15 111. 
 
 tration of Estates," Starr & Curtis 284; Ante, sec. 29. Administration 
 
 Annotated Statutes of Illinois, Act. 
 
 with Jones & Addington's Supple- 89 — Davenport v. Reynolds, 6 
 
 ments thereto. Vol. 1, pp. 285, 111. App. 532. 
 
 286; Vol. 4, p. 35, and cases cited 90—168 111. 488. 
 24
 
 370 THE LAW OF ESTATES. 
 
 under the will consented thereto. The matter of the subse- 
 quent accounting of the executor resigned, was a matter to 
 be disposed of by the county court. 
 
 444. Costs. Section 41 of the administration act, provides: 
 **The applicant for discharge shall pay all costs incurred 
 thereby, and the court shall render a judgment against him 
 for all such costs, which may be collected by execution, as in 
 case of other judgments. "®i 
 
 445. Foreign executors and administrators — powers to sue. 
 Section 42 of the administration act provides: "When any 
 person has proved or may prove the last will and testament of 
 any deceased person, and taken on him the execution of said 
 will, or has obtained or may obtain administration of the 
 estate of an intestate in any State in the United States, or in 
 any Territory thereof, such person shall be enabled to prose- 
 cute suits to enforce claims of the estate of the deceased, or 
 to sell lands to pay debts, in any court in this State, in the 
 same manner as if letters testamentary or of administration 
 had been granted to him under the provisions of the laws of 
 this State: Provided, that such person shall produce a copy 
 of the letters testamentary or of administration, authenticated 
 in the manner prescribed by the laws of Congress of the 
 United States for authenticating the records of judicial acts in 
 any one State, in order to give them validity in other States; 
 and, provided, that said executor or administrator shall give a 
 bond for costs, as in case of other non-residents."^- Suits by 
 foreign executors or administrators are subject to same rules 
 of pleading as those by domestic representatives.^^ Prior to 
 
 91 — Law of 1858, p. 165, sec. 5, ministration of Estates," Starr & 
 
 rewritten; section 41, chapter 3, Curtis Annotated Statutes of Illi- 
 
 "Administration of Estates," Starr nois. Vol. 1, p. 286. and cases 
 
 & Curtis Annotated Statutes of cited; Kurd's R. S. of Illinois, 
 
 Illinois, Vol. 1, p. 286; Kurd's R. 1905, p. 112. 
 
 S. of ni., 1905, p. 112. 93— Collins v. Ayers, 13 111. 
 
 92— Section 42, chapter 3, "Ad- 358; U. R. & T. Co. v. Shacklet, 
 
 119 111. 232, 239.
 
 GRANTING LETTERS OF ADMINISTRATION. 371 
 
 statute cited such could not sue in this State.^^ Power is con- 
 ferred by statute upon foreign administrator to take out 
 execution on judgment obtained by his intestate during his 
 lifetime.^5 Foreign administrator may collect debts due his 
 intestate in this State, if administration is not granted to 
 another in this State.'-^^ Such administrator from a foreign 
 State may sue for injuries to the intestate by railroad com- 
 pany or otherwise.^ ■^ He may appear in court in any way in 
 which it becomes necessary for him to prosecute or defend any 
 claim in relation to the estate he represents.^* In chancery a 
 foreign administrator's final settlement of account in proper 
 court of foreign State, is conclusive in his favor where a suit 
 is brought in this State, unless such settlement shall be im- 
 peached for fraud.^^ Letters of foreign administrator may be 
 proved under Act of Congress,^ or may be proved by examined 
 copy of the record of appointment, satisfactorily proved by 
 oral testimony to be true.2 
 
 446. Exception when letters granted here. Section 43 of 
 the administration act provides: "Nothing contained in the 
 preceding section shall be so construed as to apply to cases 
 where administration is obtained upon the estate of any in- 
 testate nor where letters testamentary are granted in this 
 State; and when, after any suit is commenced by any admin- 
 istrator or executor under the provisions of the preceding 
 section, and before final judgment thereon, administration is 
 had, or execution undertaken within this State, under the laws 
 of the same, upon the estate of any decedent, upon suggestion 
 
 94 — People v. Peck, 3 Scam. 99 — Fryrear v. Lawrence, 5 
 
 (III.) 118; Judy v. Kelly, 1 111. Gilm. (111.) 325. 
 
 211; Collins v. Ayers, 13 111. 358. i_oollins v. Ayers. 13 111. 358. 
 
 95— Keefer v. Mason, 36 111. 
 
 406. 2— U. R. and T. Co. v. Shacklett, 
 
 96— Hickox v. Frank, 102 111. 119 111. 232, 240. See also 1 Green- 
 
 660. leaf on Evidence, 501; Freeman 
 
 97_Wabash R. R. Co. v. Shack- on Judgments, sec. 408; 1 Wharton 
 
 lett, 10 111. App. 404. on Evidence, sees. 94, 98; Abbott 
 
 9g — Decker v. Patton, 20 111. on Trial Evidence, pp. 25, 536. 
 App. 210.
 
 372 THE LAW OF ESTATES. 
 
 of such fact, entered of record, the said resident, administra- 
 tor or executor shall, upon motion, be substituted as party to 
 such suit; and thereupon the court shall proceed to hear and 
 determine the same, as if it had been originally instituted in 
 the name of the said resident, executor or administrator, and 
 the benefits of the judgment, order or decree shall enure to 
 him, and be assets in his hands. "^ 
 
 3 — Laws of 1845, p. 597, sec. Starr & Curtis Annotated Statutes 
 3, rewritten; section 43, chapter of Illinois, Vol. 1, p. 287; Kurd's 
 3, "Administration of Estates," R. S. of 111., 1905, p. 112.
 
 CHAPTER XXII 
 
 B^VENTORIES AND APPRAISEMENTS 
 
 Sec. 
 
 447. Inventories and appraise- 
 
 ments. 
 
 448. The title of the administra- 
 
 tor. 
 
 449. Each case arising makes the 
 
 rule, no unbending rule. 
 
 450. Life insurance and certifi- 
 
 cates of benefit. 
 
 451. What are personal assets. 
 
 452. Growing crops. 
 
 453. Concerning the species of 
 
 property. 
 
 Sec. 
 
 454. Supplemental inventory. 
 
 455. Warrant of appraisal. 
 
 456. Oath, appraisal. 
 
 457. Return of appraisal. 
 
 458. Inventory, etc., evidence. 
 
 459. Further appraisal. 
 
 460. Liabilities of executors and 
 
 administrators. 
 
 461. Compensation. 
 
 462. When assets do not exceed 
 
 widow's allowance, new as- 
 sets. 
 
 447. Inventories and appraisements. "Whenever letters tes- 
 tamentary, of administration, or of collection are granted, the 
 executor or administrator shall make out a full and perfect 
 inventory of all such real and personal estate, or the proceeds 
 thereof, as are committed to his superintendence and manage- 
 ment, and as shall come to his hands, possession or knowledge, 
 describing the quantity, situation and title of the real estate, 
 and (Particularly specifying the nature and amount of all 
 annuities, rents, goods, chattels, rights and credits and money 
 on hand, and whether the credits are good, doubtful or desper- 
 ate; which said inventory shall be returned to the office of the 
 clerk of the county court, within three months from the date 
 of the letters testamentary or of administration."^ Under this 
 and other sections of the statute cited,^ it is very important 
 
 1 — R. S. 1845, p. 554, sec. 81; & Addington's Supplements there- 
 sections 51 and 122, chapter 3, to, Vol. 1, pp. 289, 290, and cases 
 "Administration of Estates." cited; Vol. 4, p. 35, and cases 
 
 2— (1.) Starr & Curtis Annotat- cited; Kurd's R. S. of 111., 1905, 
 
 ed Statutes of Illinois, with Jones same section and chapter, p. 113. 
 
 373
 
 374 THE LAW OF ESTATES. 
 
 that a full and perfect inventory be presented and filed. The 
 inventory required by the statute should include specifically 
 the entire assets of the estate as far as discovered coming to 
 the knowledge of, or in hands of executor or administrator or 
 under their management or control. This instrument should 
 enable the court to trace the assets with which the legal rep- 
 resentative of the estate is chargeable; or, might be so after 
 proper diligence. Particularly should such instrument specify 
 all real and personal estate, the proceeds thereof, the nature 
 and amount of all annuities, rents, goods, chattels, rights and 
 credits, money on hand, and whether the credits are good, 
 doubtful or desperate? 
 
 448. The title of the administrator. He takes no title to 
 realty, but a naked power to subject the real estate for sale 
 to pay debts in case of an insufficiency of personalty.* The 
 title to the lands of the deceased vests eo instanti in the heirs 
 on the ancestor's death.-^ Rents of real estate accruing after 
 death pass to heirs and devisees and not to administrator.^ 
 The executor or administrator by virtue of his office takes 
 the absolute title to the personal estate, and is the sole repre- 
 sentative thereof, and after the payment of debts must with 
 the aid of court distribute the same.''' 
 
 449. Each case arising makes the rule — there is no unbend- 
 ing rule. It will be found on an examination of the cases, that 
 
 (2.) Starr & Curtis Annotated 3 — Maynard v. Maynard, 96 111. 
 
 Statutes of Illinois, with Jones & App. 478. 
 
 Addington's Supplements thereto, 4— Noe v. Montray, 170 111. 169; 
 
 Vol. 1, pp. 314, 315, and cases Burr v. Bloemer, 174 111. 638. 
 
 cited; Vol. 4, pp. 39, 40, and cases ^ „ , ■„ , .„„ .„ 
 
 •^ A TT A> x> o r.f Tin ^ic 5— People V. Brooks, 123 111. 
 
 cited; Hurds R. S. of Illinois, ^r-, ^ t^ 
 
 251; Rupp V. Rupp, 11 Colo, Ct. of 
 App. 36. 
 
 1905, p. 118. 
 
 (3.) Starr & Curtis Annotated 
 
 Statutes of Illinois, with Jones & 6— Richardson v. Richardson, 87 
 
 Addington's Supplements thereto, ^l- App. 358; Hoagland v. Crum, 
 
 Vol. 1, pp. 336, 337, 338, and cases ^^^ J^"- '^'^^• 
 
 cited; Vol 4, pp. 43, 44, and cases 7 — Gold v. Bailey, 44 111. 429; 
 cited; Vol. 5, p. 112, and cases Wells v. Miller, 45 111. 383; Rail- 
 cited; Kurd's R. S. of 111., 1905, road Co. v. Woodward, 4 Colo. 1. 
 p. 123.
 
 INVENTORIES AND APPRAISEMENTS. 375 
 
 the executor or administrator is lei't to depend largely upon 
 what may; be required for the attainment of justice in each 
 case as it arises to determine whether property is real, personal 
 or mixed, and what steps must be taken by such representa- 
 tives to bring the property of the decedent under their super- 
 vision and management. Thus money due upon a contract 
 from sale of lands, although no deed has been executed is 
 assets that may go to the administrator.^ And it is held, that 
 if the administrator improperly collects rents from lands, and 
 the heirs choose to treat such rents collected as assets for the 
 payment of debts, the administrator cannot complain of being 
 charged with the rents, particularly so where such money has 
 been used in paying debts of the estate.^ The administrator 
 takes the property, in the condition he finds it, or as it is left 
 by the decedent; and if such property is subjected to a lien,, 
 such follows the property in the hands of the administrator.^" 
 If the administrator buys a leasehold with his own funds and 
 takes title in his own name, accounting for such as assets of 
 the estate he represents, he may be permitted to retain the 
 amount paid for the leasehold under the circumstances from 
 the rent that came to his hands; but he will be estopped 
 from denying that the leasehold is an asset of the estate.^ ^ In 
 the interesting case of Wells v. Miller, administrator,^^ an 
 action of trover was commenced for the tortious taking of a 
 quantity of lumber. The record shows that the decedent and 
 the defendants were residents of the State of Illinois; that 
 decedent was personally in charge of the cargo of lumber in 
 question, transporting the same from Illinois to the State of 
 Tennessee; that while in transitu, and on the Missouri shore, 
 the decedent died, leaving no assets or creditors residing else- 
 where than in Illinois, and that no administration had been 
 
 8 — Skinner v. Newberry, 51 111. 251; First National Bank v. Gage, 
 203. 93 111. 175; Henry v. Eddy, 34 111. 
 
 9 — Goeppner v. Leitzelman, 98 508. 
 111. 414, 11— Willenborg v. Murphy, 36 
 
 10— People V. Brooks, 123 111. 111. 345. 
 
 12—45 111. 382.
 
 376 THE LAW OF ESTATES. 
 
 taken out in either of the States, Missouri or Tennessee, to 
 which latter State the property was taken by defendants and 
 sold, the proceeds of the sale being brought to Illinois. The 
 court in passing upon this state of facts, hold: That if the 
 property of the decedent after his death in Missouri, was at 
 any time, while in transitu within the limits of the State of 
 Illinois, it became assets in this State, and the title of the 
 administrator here attached by relation, the moment letters 
 were issued. The law applied being, that property coming 
 from a foreign jurisdiction into that of the domicile imme- 
 diately vests in the administrator there, if letters have not been 
 taken out in such foreign jurisdiction.^^ "According to the 
 common course of commercial business, ships and cargoes, and 
 the proceeds thereof, locally situate in a foreign country at the 
 time of the death of the owner always proceed on their voy- 
 ages and return to the home port, without any suspicion that 
 all the parties concerned are not legally entitled to act; and 
 they are taken possession of and administered by the adminis- 
 trator of the forum domicilii, with the constant persuasion 
 that he may not only rightfully do so, but that he is bound to 
 administer them as part of the funds appropriately in his 
 hands. A different course of administration would be at- 
 tended with almost inextricable difficulties, and would involve 
 this extraordinary result, that all the personal property of the 
 deceased must be deemed to have a fixed situs where it was 
 at the moment of his death, and if removed from it must be 
 returned thither for the purpose of due administration. "^ * 
 There is no unbending rule in regard to property having no 
 fixed situs, the jurisdiction of the administrator is left to de- 
 pend largely upon what may be required for the attainment of 
 justice in each case as it arises.^ ^ In the case of Abbott v. The 
 People, ^^ the record shows appellants were appointed adminis- 
 
 13 — Story's Conflict of Laws, Laws, sec. 520, and cases cited in 
 section 520. notes. 
 
 14 — The rule as formulated by 15 — Wells v. Miller, Adm., 45 
 Story in his work, Conflict of 111., p. 388. 
 
 16—10 111. App. 62.
 
 INVENTORIES AND APPRAISEMENTS. 
 
 377 
 
 trators of D's estate in Fulton County, Illinois. Subsequently 
 appellee was appointed administrator of L's estate in Knox 
 County, Illinois, and demanded of appellants possession of 
 certain property, promissory notes, as belonging to the estate 
 of his intestate. Held, that as the property belonged to the 
 estate of L the county court of Knox county had jurisdiction, 
 and appellants were in fault in reporting such property as 
 assets of the estate of D. To realize on an estate, the executor 
 or administrator should inventory every possible species of 
 property belonging thereto, and in which deceased had any 
 interest.^' 
 
 450. Life insurance and certificates of benefit. Life insur- 
 ance made payable to the ''legal representatives" of the in- 
 sured, goes to the administrator, who takes the money to be 
 
 17 — Auburn State Bank v. 
 Brown, 172 111. 284; McCollister 
 V. Green County Bank, 171 111. 
 608; Waughup v. Bartlett, 165 111. 
 124; Dinsmoor v. Bressler, 164 
 111. 211; Maynard v. Maynard, 96 
 111. App. 478. In the case of Mc- 
 Collister V. Green County Bank, 
 supra, the county court entered an 
 order requiring the administrator 
 of the estate in question to inven- 
 tory certain tracts of land, as the 
 property of the decedent at the 
 time of his death and to file a pe- 
 tition, under the statute, for a 
 decree and order of sale of ranch 
 land required to be inventoried, 
 and from this order an appeal was 
 taken. In passing on this case 
 the court holds: The administra- 
 tor had no such interest as was 
 necessary to enable him to prose- 
 cute the appeal. The sole reason 
 urged by the administrator why 
 the judgment appealed from 
 should be reversed was that the 
 decedent, though vested with the 
 
 possession of the lands in contro- 
 versy during his lifetime and at 
 the time of his death, had but a 
 life estate therein. Held, in that 
 case the administrator had no 
 such interest as would entitle him 
 to an appeal from an order direct- 
 ing him as administrator, to take 
 necessary steps, under the statute, 
 to bring the contention before the 
 county court for determination, 
 and such an order is not a griev- 
 ance of which he may be heard to 
 complain. It is a rule well estab- 
 lished, that the right to relief by 
 appeal exists only in favor of a 
 party whose rights have been 
 prejudiced by the judgment ap- 
 pealed from. And see the follow- 
 ing cases in point: Combs v. Jef- 
 ferson Pond Draining Co., 3 Mete. 
 (Ky.) 72; Stewart v. Codd, 58 
 Me. 86; Elliott on Appellate Proc, 
 sees. 135, 292; Woerner on Am. 
 Law of Administration, sec. 545; 
 Am. & Eng. Ency. of Law, p. 619, 
 and cases cited in notes.
 
 378 THE LAW OF ESTATES. 
 
 paid out in due course of administration.^^ "Legal repre- 
 sentatives" mean executors or administrators.^^ A benefit 
 certificate provided for the payment of one assessment, not ex- 
 ceeding $5,000 on the death of the certificate holder, "to his 
 devisees, as provided in last will and testament, or, in the 
 event of their prior death, to the legal heirs of the certificate 
 holder"; and the certificate holder by his will gave the pro- 
 ceeds of the certificate to a trustee in trust for his legal heirs, 
 after first keeping the fund at interest till his wife died and 
 his youngest child became 20 years of age, and paying such 
 interest to his wife. The same person who was appointed trus- 
 tee was also made executor of the will. Held, that the fund 
 was not assets of the estate, and the executor, as such, was not 
 entitled to it. He would however in the capacity of trustee 
 take under the trust created.^^ 
 
 451. What are personal assets. Usually such are easily 
 determined without difficulty. But the exception occasionally 
 arises, as -shoAvn in the preceding and the following section. 
 Where the question is raised, it is made necessary to determine 
 the same by legal construction. As before stated, there is no 
 unbending rule in regard to property having no fixed situs. 
 Yet it will be found that many well established rules for the 
 attainment of justice are applied for that end and purpose. 
 The general rule is to the effect, that all personal estate, for 
 the purpose of administration must be treated as assets. There 
 are, however, exceptions to this rule for the statute law of Illi- 
 nois, declare that damages for wrongfully causing the death of 
 a party, are not assets, and creditors have no interest in such 
 damages when recovered. Actions for damages to the person 
 or property of the deceased are brought by the legal repre- 
 sentatives of the deceased under the statute, and are exclus- 
 ively for the "benefit of the widow and next of kin of such 
 
 18— Johnson v. Van Epp, 110 111. 19— People v. Phelps, 78 111. 149. 
 553; Murray v, Strang, 28 111. App. 20— People v. Petrie, 191 111. 
 612. 497; Same v. Same. 94 111. App. 
 
 652.
 
 INVENTORIES AND APPRAISEMENTS. 379 
 
 deceased person. "^^ These actions by statutory enactment sur- 
 vive in addition to those which survive by common law. Re- 
 plevin, damages for injury to the person (except slander and 
 libel), damages for an injuiy to real or personal property, or 
 for the detention or conversion of personal property, and 
 actions against officers for malfeasance or non-feasance of 
 themselves or their deputies, and all actions for fraud or de- 
 ceit.22 
 
 452. Growing crops. As between executor or administrator 
 and heir, statute makes growing crops personal property .^^ 
 
 21 — See sections 1 to 5, chapter able, viz.: Robinson v. Weeks, 6 
 70, "Injuries." See section 122, How. Pr. 161; Hall v. Cincinnati 
 chapter 3, "Administration of Es- Railroad Co., 1 Disney 58; More v. 
 tates." Starr & Curtis Annotated Massini, 32 Cal. 590; National Ex- 
 Statutes of Illinois, with Jones & change Bank v. McLoon, 73 Me. 
 Addington's Supplements thereto, 498; Weire v. Davenport, 11 Iowa 
 Vol. 2, pp. 2155 to 2161, and cases 49; Fried v. N. Y. Cent. R. R. Co., 
 cited; Vol. 4, pp. 679, 680, and 43 N. Y. Sup. Ct. 1; Vimont v. Chi- 
 cases cited; Vol. 5, p. 294, and cago & Northwestern Ry. Co., 64 
 cases under general notes, p. 312, Iowa 513; Gray v. McAllen, 4 Iowa 
 and cases cited under section 2 of 497; Zagbaum v. Parker, 66 Barb, 
 statute; Hurd's R. S. of 111., 1905, 341; Brady v. Whitney, 24 Mich, 
 same sections and chapter, pp. 154; Grant v. Ellis, 26 Mich. 201; 
 1152, 1153. See also section 123, Final v. Backus, 18 Mich. 218; 
 chapter 3, entitled "Administra- Brackett v. Griswold, 103 N. Y. 
 tion." Starr & Curtis Annotated 425; Stewart v. Houston and Tex- 
 Statute, etc.. Vol. 1, pp. 344, 345, as Central Ry. Co., 62 Tex. 246; 
 and cases cited; Hurd's R. S. of Railroad Co. v. Freeman, 57 Tex. 
 111., 1905, p. 125. 156; Choteau v. Boughton, 100 Mo. 
 
 22— Bunker v. Green, 48 111. 406; Schneider v. Wabash, St. 
 
 243; Holton v. Daly, 106 111. 131; Louis and Pacific R. R. Co., 86 
 
 Wehr v. Brooks, 21 111. App. 115; Mo. 613; Chicago and Eastern Illi- 
 
 Garvey v. Coughlin. 92 111. App. nois R. R. Co. v. Beaver, Adm., 
 
 582; C. & B. I. R. R. Co. v. O'Con- 199 111., 34, 38; Mattoon Gaslight 
 
 nor, 19 111. App. 591; Same v. and Coke Co. v. Dolan, 105 111. 
 
 Same, 119 111. 586; Northern Trust App. 3. 
 
 Co. V. Palmer, 171 111. 387; Forest 23— Powell v. Rich, 41 111. 466; 
 
 City Ins. Co. v. Hardesty, Admr. Creel v. Kirkham, 47 111. 345; see 
 
 182 111. 39; North Chicago Street section 94, chapter 3, "Adminis- 
 
 R. R. Co. V. Ackley, 171 111. 100, tration of Estates," Starr & Cur- 
 
 and authorities cited on page 106; trs Annotated Statutes of Illinois, 
 
 showing cause of action is assign- Vol. 1, p. 321; Hurd's R. S. of 111., 
 
 1905, p. 120.
 
 380 THE LAW OF ESTATES. 
 
 Where rent or its equivalent is to be paid out of the crops 
 raised, there is a letting for the raising of the crop, a par- 
 ticipation in the profits of the land yield. Such does not 
 amount to a lease, but is held to be a contract between the 
 owner and the occupier who are treated as tenants in com- 
 mon of the crop.24 
 
 453. Concerning the species of property. It will be found 
 by an examination of the cases, that decisions as to kinds and 
 species of property are generally fixed to fit the particular case 
 under consideration. Such cases involve questions of law and 
 facts, the controlling facts influencing the legal finding. It is 
 unnecessary to enumerate articles that have been held fixtures, 
 for the courts decide such questions as they arise from the 
 evidence given by scientific witnesses and others taken from the 
 arts, trade, manufacturing and other business capable of aid- 
 ing the court in such matters. The nature of the improve- 
 ment if it be a building, the conditions of the country, the 
 intention and agreement of the parties, the relation of the build- 
 ing to the land upon which it stands, as to whether the con- 
 struction of the building indicates it was intended for mov- 
 ing or not; all such facts and others impress the court and 
 somewhat direct it fimdings. So the fact may be established 
 the land belongs to one person and the building to another, 
 and these parties by some agreement arranged for the moving 
 upon stipulated notice or at the end of a certain term. Fix- 
 tures attached to building permanently as a general rule are 
 considered a part of the realty. But where such are found to 
 be personalty, the established facts and the law applied set- 
 tle the question. These cases relating to fixtures often arise be- 
 tween vendor and mortgagor and vendee and mortgagee, and 
 may or may not be under the supervision and management of 
 an administrator or executor. But where they are a part of 
 a decedent's estate they must like all other property, be regu- 
 
 24 — Alwood V. Buckman, 21 111. Cheney v. Roodhouse, 32 111. App. 
 200; Creel v. Klrkham, 47 111. 345; 49.
 
 INVENTORIES AND APPRAISEMENTS. 381 
 
 larly inventoried and accounted for as cither real or personal 
 property of the deceased.^s 
 
 454. Supplemental inventory. Section 52 of the Adminis- 
 tration act provides: "If, after making the first inventory, 
 any real or personal estate of the deceased comes to his pos- 
 session or knowledge, he shall file a similar additional inven- 
 tory thereof, "^e 
 
 455. Warrant of appraisal. Section 53 of the Administra- 
 tion act provides: "On granting letters testamentary, or of 
 administration, a warrant shall issue, under the seal of the 
 county court, authorizing three persons of discretion, not re- 
 lated to the deceased nor interested in the administration of 
 the estate, to appraise the goods, chattels and personal estate 
 of the deceased, known to them or to be shown by the execu- 
 tor or administrator; which warrant shall be in the following 
 form, to wit:" (form given) "And on the death, refusal to 
 act, or neglect of any such appraiser, another may be ap- 
 pointed in his place."-" The court cannot make an appraise- 
 ment, that power is conferred upon the statutory appraisers 
 appointed by the court. But the court may set the appraise- 
 ment aside and order a new one.^s 
 
 456. Oath — appraisal. Section 54 of the administration act 
 provides: "The appraisers before they proceed to the ap- 
 
 25 — Clark v. Burnside, 15 111. rewritten; section 52, ctiapter 3, 
 
 62; Goff V. O'Connor, 16 111. 423; "Administration of Estates," Starr 
 
 Palmer v. Forbes, 23 111. 301; & Curtis Annotated Statutes of 
 
 Moore v. Smith, 24 111., 513; Smith Illinois, Vol. 1, p. 290; Kurd's R. 
 
 V. Moore, 26 111., 393; Dooley v. S. of 111., 1905, p. 114. 
 Crist, 25 111., 551; Ogden v. Stock, 27— Section 53, chapter 3, "Ad- 
 
 34 111., 522; Kelley v. Austin, 46 ministration of Estates," Starr & 
 
 111., 159; Matson v. Griffin, 78 111. Curtis Annotated Statutes of lUi- 
 
 479; Arnold v. Crowder, 81 111. nois, with Jones & Addington's 
 
 58; Chapman v. U. L. I. Co., 4 111. Supplements thereto. Vol. 1, p. 
 
 App. 35; Chitty on Contracts, 316; 291; Vol. 4, p. 35, and cases cited 
 
 Taylor's Landlord and Tenant, sec. under section of statute in each 
 
 544, and cases cited. volume: Kurd's R. S. of 111., 1905, 
 
 26— R. S. 1845, p. 555, sec. 86, p. 114. 
 
 28— Miller v. Miller, 82 111. 463.
 
 382 THE LAW OF ESTATES. 
 
 praisement of the estate, shall take and subscribe the follow- 
 ing oath, (or affirmation), to be annexed or endorsed on the 
 said warrant, before any person authorized to administer an 
 oath, viz: (oath set forth). After which, the said appraisers 
 shall proceed, as soon as conveniently may be, to the discharge 
 of their duty, and shall set down each article, with the value 
 thereof in dollars and cents, as aforesaid. All the valuations 
 shall be set down on the right hand side of the paper, in one 
 or more columns, in figures, opposite to the respective arti- 
 cles of property, and the contents of each column shall be 
 cast up and set at the foot of the respective columns."-^ 
 
 457. Return of appraisal. Section 55 of the Administration 
 act provides: "When the bill of appraisement is completed, 
 the appraisers shall certify the same under their hands and 
 seals, and shall deliver the same into the hands of the executor 
 or administrator, to be by him returned into the office of the 
 clerk of the county court, within three months from the date 
 of his lettei's."3o 
 
 458. Inventories, etc., evidence. Section 56 of the Admin- 
 istration act provides: "Inventories and bills of appraise- 
 ment and authenticated copies thereof, may be given in evi- 
 dence in any suit by or against the executor or administrator, 
 but shall not be conclusive for or against him, if any other 
 testimony be given that the estate was really worth, or was 
 bona fide sold for more or less than the appraised value 
 thereof. "31 
 
 459. Further appraisal. Section 57 of the Administration 
 act provides: "Whenever personal property of any kind, or 
 
 29— R. S. 1845, p. 554, sec. 83; tated Statutes of Illinois, Vol. 1, 
 
 sec. 54, chapter 3, "Administration p. 291; Kurd's R. S. of Illinois, 
 
 of Estates," Starr & Curtis Anno- 1905, p. 114. 
 
 tated Statutes of Illinois, Vol. 1, 31— R. S. 1845, p. 555, sec. 85; 
 
 p. 291; Kurd's R. S. of 111., 1905, sec. 56, chapter 3, "Administration 
 
 p. 114. of Estates," Starr & Curtis Anno- 
 
 30— R. S. 1845, p. 554, sec. 84; tated Statutes of Illinois, Vol. 1, 
 
 sec. 55, chapter 3, "Administration p. 291; Kurd's R. S. of 111., 1905, p. 
 
 of Estates," Starr & Curtis Anno- 114.
 
 INVENTORIES AND APPRAISEMENTS. 383 
 
 assets, shall come to the possession or knowledge of any exe- 
 cutor or administrator, which are not included in the first 
 bill of appraisement as aforesaid, the same shall be appraised, 
 and return thereof made to the oflSce of the clerk of the county 
 court in like manner within three months after discovery of 
 the same. "32 
 
 460. Liabilities of executors and administrators, etc. Sec- 
 tion 58 of the Administration act provides: "Executors and 
 administrators shall be chargeable with so much of the estate 
 of the decedent, personal or real, as they, after due and proper 
 diligence, might or shall receive. "^^ 
 
 461. Compensation. Section 59 of the Administration act 
 provides: - "Every appraiser appointed under this act shall 
 be entitled to the sum of $2 per day for each day's neces- 
 sary attendance in making all such appraisements, to be al- 
 lowed by the county court, and paid upon its order by the 
 executor or administrator. "^'^ Executore and administrators 
 are liable for lack of ordinary care in collection of debts due 
 estate.35 And they are liable to stranger for fraudulent act 
 of their agents.^^ They must account for all profits where 
 funds of estate are used.^'^ 
 
 462. When assets do not exceed widow's allowance — ^new 
 assets. This section is intended to be a part of Section 59 of 
 
 32— R. S. 1845, p. 555, sec, 86; tated Statutes of Illinois, with 
 
 sec. 57, chapter 3, "Administration Jones & Addington's Supplements 
 
 of Estates," Starr & Curtis Anno- thereto. Vol. 1, p. 292; Vol. 4, p. 
 
 tated Statutes of Illinois, Vol. 1, 39, Hurd's R. S. of 111., 1905, pp. 
 
 p. 292; Hurd's R. S. of 111., 1905, 114, 115. 
 
 P- ^^^- 35— Whitney v. Peddicord, 63 
 
 33-R. S. 1845, p. 556, sec. 92; jj, 249. Borders v. People, 31 111. 
 
 sec. 58, chapter 3, "Administra- . .„„ 
 tion of Estates," Starr & Curtis 
 
 Annotated Statutes of Illinois, 36— Mungate v. Reynolds, 72 111. 
 
 292, and cases cited; Hurd's R. S. 
 
 425. 
 
 of III., 1905, p. 114. 37— Wingate v. Pool, 25 111. 118; 
 
 34— R. S. 1845, p. 555, sec. 87; Whitney v. Peddicord, 63 111. 249; 
 
 sec. 59, chapter 3, "Administration Goeppner v. Leitzelman, 98 111. 
 
 of Estates," Starr & Curtis Anno- 409; the latter case, being where
 
 384 THE LAW OF ESTATES. 
 
 the administration act and is as follows: "If the adminis- 
 trator or executor of an estate discovei-s, at any time after 
 an inventory and appraisement of the property is made, that 
 the personal property and assets of the estate do not exceed 
 the amount of the widow's allowance, after deducting the 
 necessary expenses incurred, such administrator or executor 
 shall report the facts to the court, and if the court finds the 
 report to be true, he shall order said property and assets to 
 be delivered to the widow by the administrator or executor, 
 and discharge the executor or administrator from further 
 duty; but such executor or administrator shall first pay out 
 of the property and assets the cost and expense of adminis- 
 tration. After the court orders the delivery of such property 
 and assets to the widow, the clerk of said court shall make 
 and deliver to her a certified copy of the order, under seal, 
 which shall vest her with complete title to said property and 
 assets, and enable her to sue for and recover the same in her 
 own name and for her own use. Such widow shall not be 
 liable for any of decedent's debts or liabilities, excepting the 
 funeral expenses of the deceased. If, upon affidavit being filed 
 with the clerk of said court, that such administrator or execu- 
 tor fails or refuses to report in any case provided for in this 
 section, the court may order a citation and attachment to is- 
 sue as in other eases of a failure of administrators to report. 
 And on a discovery of new assets, administration may be 
 granted as in other cases, and charged to the account of the 
 estate. "38 
 
 the administrator collected rents, tration of Estates," Starr & Cur- 
 and was charged with the same. tis Annotated Statutes of Illinois, 
 38 — This section, though sepa- with Jones & Addington's Supple- 
 rated from is undoubtedly a part ments thereto. Vol. 1, pp. 310, 
 of section 59, chapter 3, "Admin- 312; Vol. i, pp. 38, 39; Vol. 5, p. 
 istration of Estates," Starr & Cur- 19, and cases cited under sections 
 tis Annotated Statutes of Illinois, of statute in each volume; Hiird's 
 Vol. 1, pp. 292, 293 and ca.ses cited R. S. of 111., 1905, p. 117; Wood v. 
 under section. Kurd's R. S. of 111., Johnson, 13 111. App. 548; Little 
 1905, pp. 114, 115. See also sec- v. Williams, 7 111. App. 67; Brown 
 tions 74, 75, chapter 3, "Adminis- v. Morgan, 84 111. App. 233.
 
 CHAPTER XXIII 
 
 CLAIMS AGAINST ESTATES 
 
 Sec 
 
 
 Sec. 
 
 463. 
 
 Claims against estates, no- 
 
 477. 
 
 
 tice, adjustment. 
 
 478. 
 
 464. 
 
 The filing of claims, time, ef- 
 
 
 
 fect. 
 
 479. 
 
 465. 
 
 Written pleadings not re- 
 
 480. 
 
 
 quired in probate court or 
 
 481. 
 
 
 on appeal to circuit court. 
 
 
 466. 
 
 Probate and County courts, 
 in such matters have equit- 
 able powers. 
 
 482. 
 
 467. 
 
 Admissions by an executor or 
 administrator cannot bind 
 estate. 
 
 483. 
 
 468. 
 
 Allowance of claim effect. 
 
 
 469. 
 
 Heirs' right to contest claim. 
 
 484. 
 
 470. 
 
 Judgment recovered in an- 
 other State, effect of. 
 
 
 471. 
 
 Execution should not be or- 
 dered against executor or 
 
 485. 
 
 
 administrator. 
 
 486. 
 
 472. 
 
 A citizen of another State 
 may proceed to establish 
 
 487. 
 
 
 debt against an estate In 
 
 488. 
 
 
 the Federal court. 
 
 
 473. 
 
 Claims afterwards presented, 
 process. 
 
 489. 
 
 474. 
 
 Service, continuance. 
 
 
 475. 
 
 Trial costs. 
 
 
 476. 
 
 Oath of claimant may be re- 
 
 
 
 quired. 
 
 490. 
 
 Evidence. 
 
 Demands against claimant — 
 set off. 
 
 Claims not due. 
 
 Appeals. 
 
 When judge interested or a 
 witness. 
 
 Demands classified, as to 
 classes or claims, limita- 
 tions. 
 
 Adjudication and judgment, 
 effect of as between claim- 
 ant and representative as to 
 personal estate. 
 
 Reason why allowance of 
 claim is conclusive against 
 personal estate. 
 
 Where the deceased has re- 
 ceived money in trust. 
 
 Priority of payment. 
 
 Demands or claims of execu- 
 tor or administrator. 
 
 Entries, classing, payment be- 
 fore allowance, effect. 
 
 Expense incurred by execu- 
 tor or administrator in 
 erecting head stone at grave 
 of deceased, considered 
 proper. 
 
 Partnership claim. 
 
 Sec. 463. Claims ag-ainst estates, notice — adjustment. "Every 
 administrator or executor shall fix upon a term of the 
 court within six months from the time of his being: quali- 
 fied as such administrator or executor, for the adjustment of 
 25 385
 
 386 THE LAW OF ESTATES. 
 
 all claims against such decedent, and shall publish a notice 
 thereof for three successive weeks in some public newspaper 
 published in the county, or if no newspaper is published in the 
 county, then in the nearest newspaper in this state, and also by 
 putting up a written or printed notice on the door of the court 
 house, and in five of the most public places in the county, notify- 
 ing and requesting all persons having claims against such estate, 
 to attend at said term of court for the purpose of having the 
 same adjusted (the first publication of said notice to be given 
 at least six weeks previous to said term) when and where 
 such claimant shall produce his claim in writing; and if no 
 objection is made to said claim, by the executor, administra- 
 tor, widow, heirs, or others interested in said estate, and the 
 claimant swears, that such claim is just and unpaid, after al- 
 lowing all just credits, the court may allow such claim with- 
 out further evidence, but if objection is made to such claim 
 the same shall not be allowed without other sufficient evidence. 
 The court may allow either party further time to produce evi- 
 dence in his favor, and the case shall be tried and determined 
 as other suits at law. Either party may demand a jury of 
 either six or twelve men to try the issue, and it shall be the 
 duty of the county clerk, when a jury is demanded, to issue a 
 venire to the sheriff of the county to summon a jury, to be com- 
 posed of the number demanded. "^ 
 
 1— Section 60, Chapter 3, "Ad- - (2) See also sections 36, 37, 39, 
 
 ministration of Estates," as chapter 77, entitled "Judgments 
 
 amended by act of May 21, 1887. and Decrees." Vol. 2, pp. 2370, 
 
 In force July 1, 1887. See R. S. 2371, and cases cited; Vol. 4, p. 
 
 of 1845, p. 556, sec. 95; Laws of 754, and cases cited; Vol. 5, p. 
 
 1859, p. 95. sec. 12; Laws 1887, p. 334; Kurd's R. S. of 111., 1905, p. 
 
 1, sec. 60; Starr & Curtis Anno- 1258. (3) See also sections 10 to 
 
 tated Statutes of Illinois, with 13, chapter 1, "Abatement," Starr 
 
 Jones & Addington's Supplements & Curtis Annotated Statutes, etc., 
 
 thereto. Vol. 1, p. 293, and cases Vol. 1, pp. 247 to 254 and cases 
 
 cited under section of statute; cited; Vol. 4, pp. 25, 26, 27, and 
 
 Vol. 4, pp. 35, 40 and cases cited; cases cited; Kurd's R. S. of 111., 
 
 Vol. 5, p. 17 and cases cited; 1905, pp. 97, 98. Smith v. Mc- 
 
 Hurd's R. S. of 111., 1905, p. 115. Laughlin, 77 111. 596.
 
 CLAIMS AGAINST ESTATES. 387 
 
 464. The filing of claims — time — effect. Claims against 
 estates under statute must be presented in the manner pointed 
 out by the statute.^ Delay in presenting claim will always be 
 considered by the court. The delay in presenting the claim 
 was regarded as so important a circumstance for the considera- 
 tion of the juiy in determining whether the claim ought to be 
 paid, that a modification by the court below of an instruction 
 asked on behalf of the estate, which would be likely to exclude 
 the consideration by the jury of that circumstance, was held 
 to be ground for reversal of the judgment allowing the claim.^ 
 Where a claim was presented after the lapse of two years from 
 the time of publication of notice to present claims and of the 
 granting of letters of administration, by the express terms of 
 the statute, claims not filed against an estate and exhibited to 
 the court within two years (the statute being now one year) 
 were barred as to any dividend, except as to subsequently dis- 
 covered assets not inventoried or accounted for.* Section 60 of 
 the administration act and that of section 2 of the assignment 
 act, relating to voluntary assignments was construed as similar 
 in intent and meaning, it is held that claims against an estate 
 which have been assigned for the benefit of creditors, whether 
 due or to become due, must be presented within three months 
 of the time of publication of notice, as provided for in that act, 
 or the same cannot participate in dividends until after the pay- 
 ment of all claims presented within that time and allowed by 
 the court.^ If a different rule should be applied, then in con- 
 tingent claims like this, where years might elapse before the 
 amount of the claim was determined as against the creditor, to 
 allow petition to stay dividends would render the settlement of 
 insolvent estates the work of years, instead of being determined 
 
 2— Windslow v. Leland, 128 111. Land and Cattle Co., 154 111. 220. 
 
 304. 4— O'Connor v. O'Connor, 52 111. 
 
 3— O'Connor v. O'Connor, 52 111. 316. 
 
 316; and see the following cases 5 — Rassieur v. Jenkins, 170 111. 
 
 aflBrming the law in O'Connor 503. See note 1 (Ante 463), sec. 
 
 case: Stone v. Clark's Admrs., 2, chap. 10, "Assignment Act," 
 
 40 111. 411; Snydacker v. Swan Kurd's R. S. of 111. 1905, p. 172.
 
 388 THE LAW OF ESTATES. 
 
 with dispatcK, as was the evident intent of the act. Claimant's 
 recovery is limited to amount of claim filed; the order of pro- 
 bate or county court allowing a claim is a judgment of that 
 court bearing interest at legal statutory rate.® A claim once 
 filed and dropped from docket, without order disposing of it, 
 may be re-docketed on notice to executor or administrator.'^ 
 However large the claim may be the probate or county court 
 has jurisdiction to adjudicate it.^ In Colorado, where claim 
 was presented after the statutory period of two years, it was 
 held error, to permit such claim to be amended.^ 
 
 465. Written pleadings not required in Probate Court or 
 on appeal to Circuit Court. The pleadings of a claimant in a 
 proceeding in the probate court for a judgment against an 
 estate is the claim prepared in accordance with the provisions 
 of section 60 of Chapter 3, entitled " Administration. "^^ Plead- 
 ing is a statement, in the legal form, of the facts which consti- 
 tute the plaintiff's cause of action or the defendant's ground of 
 defense.^ 1 The amount set forth as the alleged indebtedness in 
 a claim filed against an estate should be given like effect as an 
 ad damnum in a declaration, and that the amount of recovery 
 should be limited accordingly. Affidavit of amount due is essen- 
 tial to a proper or valid presentation of claim under statute.^ ^ 
 But the general rule applicable to the probate and county 
 courts, and on appeals therefrom to the circuit court in the 
 matter of the trial of claims, is to the effect, that written plead- 
 ings are improper or are not required; the rules of practice of 
 such courts and the decisions so hold.^^ It is held to be the 
 
 6— Russell V. Hubbard, 59 111. 10— Hall v. Hale, 202 111. 328; 
 325; Mitchell v. Mayo, 16 111. 83; see Statute citation 1, ante 463. 
 Wheeler v. Dawson, 63 111, 54. 11—22, Am. & Eng. Ency. of 
 
 7-McCall V. Lee, 120 111. 261. ^^^' ^^ ^^' ^^^' ^""^ ""^^^^ ""'^^^ 
 
 in notes. 
 
 8— Manna v. Yocum, 17 111. 387; 12— Russell v. Hubbard, 59 HI. 
 Tewalt V. Irwin, 164 111. 596. 335; smith v. Goodrich, 167 111.51. 
 
 9— Dickey v. Dickey, 8 Colo. Ct. 13— Thorp v. Goewery, 85 111. 
 of App. 141. 611; Thompson v. Black, 200 111. 
 
 469.
 
 CLAIMS AGAINST ESTATES. 389 
 
 duty of the legal representatives of an estate, on the trial of 
 claims against estate, to interpose the statutes of limitation 
 against any claim or demand where such is a defense. But if 
 the executor or administrator fail so to do, the heirs, devisees, 
 purchasers or those interested may interpose the limitation act.^* 
 
 466. Probate and County Courts in such matters have 
 equitable powers. In the matter of hearing and adjudication 
 of claims the probate and county courts have equitable jurisdic- 
 tion and such power is specially conferred upon such courts in 
 the matter of adjudicating claims against estates, it is conferred 
 so that such courts may do full justice between the parties and 
 adopt when necessary, chancery procedure.^ ^ 
 
 467. Admissions by an administrator or executor cannot 
 bind estate. Such legal representatives of an estate cannot 
 bind an estate by their admissions of a claim.^^ Nor can they 
 submit claim to arbitration and bind estate.^'^ A court of 
 chancery in a proper proceeding will set aside a claim obtained 
 by fraudulent collusion between claimant and executor or 
 administrator.^^ 
 
 468. Allowance of claim effect of. The allowance of a claim 
 as against the personal estate is conclusive until reversed by 
 a superior tribunal, or unless impeached for fraud, accident or 
 mistake.i^ But so far as real estate is concerned, the allow- 
 ance of a claim is merely pritna facie evidence of the debt due 
 by the estate.-^ And it must be remembered that the probate 
 
 14— McCoy v. Morrow, 18 111. 17— Retzell v. Miller, 25 111. 67; 
 
 519. Clark v. Mogle, 52 111. 427. 
 
 15— In re Estate of Steel, 65 III. 18— Elting v. Bank, 173 111. 391; 
 322; People v. Harrison, 82 111. Strauss v. Phillips, 189 111. 578. 
 84; People v. Phelps, 78 111. 147; 19— Cook v. Wood, 24 111. 295; 
 Miller v. Simons, 71 111. App. 379; Stone v. Wood, 16 111. 177; Gould 
 Ingram v. Ingram, 172 111. v. Bailey, 44 111. 491; Wheeler v. 
 292; Henry v. Caruthers, 196 111. Dawson, 63 111. 54; Ward v. Dun- 
 131; Marshall v. Marshall, 11 ham, 134 111. 195; Schlink v. Max- 
 Colo. Ct. of App. 505. ton, 153 111. 447; Sherman v. 
 
 16— Marshall v. Adams, 11 111. Whiteside, 190 111. 576. 
 
 37. 20— Noe v. Moutry, 170 111. 169;
 
 390 THE LAW OF ESTATES. 
 
 courts have such equitable jurisdiction in the administration of 
 estates, that they may, in a proper case, on motion, and at a 
 subsequent term, set aside an order allowing a claim where 
 fraud or mistake has intervened.21 
 
 469. Heir's right to contest claim. Allowance of claim in 
 probate court is not conclusive upon heir, where real estate is 
 sought to be sold; such may contest when he is sought to be 
 charged, and generally the administrator is bound to protect 
 his interest; and if such does not in a proper proceeding a 
 court of chancery will.^- An infant's right to maintain a 
 bill in chancery to impeach a decree will arise when his rights 
 are prejudiced by the decree entered.^^ And it is held where 
 an offer is made to indemnify a minor against loss, after re- 
 sale of real estate is ordered, it comes too late, even if it could 
 have any force whatever, 2^ Heir cannot bring suit upon debt 
 due his ancestor.^s 
 
 470. Judgment recovered in another state effect of. A judg- 
 ment recovered in another state against administrator appointed 
 in this state, cannot be enforced against the estate here; and 
 such judgment is no evidence of indebtedness against another 
 administrator in another state.^^ 
 
 471. Execution should not be ordered against executor or 
 administrator. A judgment of the Probate Court against an 
 estate should be ordered paid in due course of administration; 
 no execution should be issued against representatives of estate 
 arising on judgment for claim allowed.^®* A creditor whose 
 
 Ford V, First National Bank, 201 23— Johnson v. Buck, 220 111. 
 
 Ill, 128, 129, and cases cited. 226. 
 
 21— Sherman v. Whiteside, 190 24— Compton v. McCaffree, 220 
 
 111. 576; Elting v. Bank, 173 111. 111. 137; Jolly v. Graham, 222 111, 
 
 388; Strauss v. Phillips, 189 111. 550. 
 
 578, 25— Hall v. Cowle's Estate, 15 
 
 22— Motsinger v. Coleman, 16 111. Colo. 343. 
 
 71; Moline Water & Power Co. v. 26— Judy v. Kelley, 11 111. 211; 
 
 Webster, 26 111. 233; Gould v. Rosenthal v. Renich, 44 111. 202; 
 
 Bailey, 44 111. 491; Goeppner v. Elting v. Bank, 173 111. 388. 
 
 Leitzelman, 98 111. 409; Marshall 26a— Bull v. Harris, 31 111. 487; 
 
 V. Coleman, 187 111. 569. Welch v. Wallace, 8 111. (3 Gilm.)
 
 CLAIMS AGAINST ESTATES. 391 
 
 claim is reduced to judgment acquires no lien on lands of 
 deceased.27 But a mortgage debt which is a lien upon land 
 of deceased, and for which estate of deceased is liable, may be 
 proved and allowed against such estate the same as any other 
 debt or claim.^s A grantee of land who assumes a mortgage 
 thereon as part of the consideration is personally liable for the 
 mortgage debt, including any deficiency upon foreclosure. A 
 voluntary conveyance of land by a father to his son vrill not 
 relieve the father or his estate after his death, from payment 
 of a mortgage upon the land, which, as grantee in a previous 
 conveyance by the son to the father, the latter had assumed. 
 The son may after father's death, on the executor's refusal to 
 pay the mortgage debt, pay the debt and charge the estate, and 
 such claim may be proved and allowed against the estate, with- 
 out such claimant formally paying the debt.^^ 
 
 472. A citizen of another state may proceed to establish a 
 debt against an estate in the Federal Court. In this work 
 Chapter 2, section 47, authorities are cited sustaining this 
 right and where the requisite diversity of citizenship exists the 
 Federal court's jurisdiction is indisputable. We particularly 
 call attention to the case of Byers v. McAuley,^^ where the 
 established rule of procedure in such matter is at large set 
 forth, A very able and elaborate exposition of the law re- 
 lating to the jurisdiction of Federal courts over estates of 
 deceased persons, including suits by creditors of such, and suits 
 by and against representatives of estates, legatees, devisees, 
 heirs and beneficiaries of a trust to enforce their rights, wiU 
 
 490; People v. Allen, 8 111. App. Daub v. Englebach, 109 111. 267;' 
 
 17; Bay v. Cook, 31 111. 336; Rus- Bay v. Williams, 112 111. 91; 
 
 sell V. Hubbard, 59 111. 335; Noe Schmidt v. Glade, 126 111. 485; 
 
 V. Moutray, 170 111. 176. Fish v. Glover, 154 111. 86. 
 
 27 — Stillman v. Young, 16 111. 29— Ingram v. Ingram, 172 111. 
 
 318; Winslow v. Leland, 128 111. 287, 291, 292. 
 
 S04; Noe v. Moutray, 170 111. 176. 30—149 U. S. 608. 
 
 28— Dean V. Walker, 107 111. 540;
 
 392 THE LAW OF ESTATES. 
 
 be found in Volume 29, Central Law Journal, pages 145, 166^ 
 et seq., by Russell H. Curtis. 
 
 473. Claims afterwards presented — process. "Whoever has 
 a claim against an estate, and fails to present the same for 
 adjustment at the term of court selected by the executor or 
 administrator, may file a copy thereof with the clerk of the 
 court; whereupon, unless the executor or administrator will 
 waive the issuing of process, the clerk shall issue a summons, 
 directed to the sheriff of the county, requiring such executor or 
 administrator to appear and defend such claim at a term of 
 the court therein specified, which summons, when served, shall 
 be sufficient notice to the executor or administrator of the pres- 
 entation of such claim. "31 Under this section of the statute 
 jurisdiction is acquired by the county or probate court, when 
 summons is served on the administrator, or his appearance is 
 entered.32 Xnd. in order to obtain a valid claim, the process 
 must issue, or the administrator or executor must enter his 
 appearance and waive the process.^s 
 
 474. Service — continuance. Section 62 of the Administra- 
 tion act provides: "If the summons is not served ten days 
 before the first day of the term to which it is returnable, the 
 cause shall be continued until the next term of the court, 
 unless the parties shall, by consent, proceed to trial at the 
 return term, "^ 4 
 
 475. Trial — costs. Section 63 of the Administration act 
 provides: "Upon the trial of such cause, the same proceedings 
 may be had as if the claim had been presented at the time fixed 
 
 31— Section 61, Chapter 3, "Ad- 33— Smith v. Goodrich, 167 111. 
 
 ministration of Estates." Starr & 51; Viskniskii v. Bleakiey, 88 111. 
 
 Curtis Annotated Statutes of Illi- App. 613. 
 
 nois, with Jones and Addington's 34 — Laws, 1859, p. 93, sec. 3; Sec- 
 Supplements thereto. Vol. 1, p. 298, tion 62, Sec. 128; Chapter 3, "Ad- 
 and cases cited; Vol. 4, p. 36, and ministration of Estates." Starr & 
 cases cited; Kurd's R. S. of 111. Curtis Annotated Statutes of II- 
 1905, p. 115. linois, Vol. 1, pp. 298, 347; Kurd's 
 
 32— Hale v. Holland, 92 111. 494. R. S. of 111. 1905, pp. 115, 126.
 
 CLAIMS AGAINST ESTATES. 393 
 
 for the adjustment of claims against the estate, but the estate 
 shall not be answerable for the costs of such proceedings: Pro- 
 vided, that when defense is made the court may, if it shall 
 deem just, order the whole or some part of the costs occasioned 
 by such defense, to be paid out of the estate."*'' The whole 
 question of costs in courts of law is regulated and governed 
 by statute. But since costs were given by statute, the form of 
 the pleadings has remained the same as at common law; courts 
 treat costs as incident to the judgment in the case, and have 
 given them, when authorized by the statute, without reference 
 to the form of pleadings. To recover costs in an action against 
 an executor or administrator, there should be proof of a com- 
 pliance with the requisitions of the statute in that regard. If 
 an administrator is sued, he can plead and rely upon the 
 statute.36 
 
 476. Oath of claimant may be required. Section 64 of the 
 Administration act provides: "The court may, in its discretion 
 in any case, before giving judgment against any executor or 
 administrator, require the claimant to make oath that such 
 claim is just and unpaid: Provided, that the amount of such 
 judgment shall not in such case be increased upon the testimony 
 of the claimant.*'' 
 
 477. Evidence. Section 65 of the Administration act pro- 
 vides : "A judgment regularly obtained, or a copy thereof duly 
 certified and filed with the court, shall be taken as duly proven ; 
 and all instruments in writing, signed by the testator or intes- 
 tate, if the handwriting is proven and nothing is shown to the 
 
 35— Section 63, Chapter 3, "Ad- 101 111. 370; Welch v. Wallace, 8 
 
 ministration of Estates." Starr & 111. (3 Gilm.) 490. 
 
 Curtis Annotated Statutes of Illi- 37— R. S. 1845, p. 561, sec. 119; 
 
 nois, Vol 1, pp. 298, 299, and cases Section 64, Chapter 3, "Adminis- 
 
 cited; Kurd's R. S. of 111., 1905, p. tration of Estates." Starr & Cur- 
 
 115. tis Annotated Statutes of Illinois, 
 
 36— Granjang v. Merkle. 22 111. Vol 1, p. 299; Kurd's R. S. of 111. 
 
 250. See also Russell v. Hubbard, 1905, p. 115. 
 59 111. 335; Darling v. McDonald,
 
 394 THE LAW OF ESTATES. 
 
 contrary, shall be deemed duly proved. "^^ This section of the 
 statute is declared a rule of evidence in regard to judgments 
 already obtained against estates.^'' That the county court 
 should be advised of the existence, and in some way have before 
 it evidence of the nature and amount of all the judgments 
 against the executor or administrator which bind the estate, 
 otherwise it could never know whether the estate was settled or 
 not, and could not intelligently pass upon the accounts of the 
 executor or administrator. This section has nothing to do with 
 allowing claims or taking judgments against estates.'*^ Authen- 
 ticated copies of a foreign record under this statute, should be 
 presented as required by act of Congress, to be admissible as 
 proof.^i See also effect of judgment against administrator in 
 another state of the same decedent. "^^ Judgment revived by 
 
 scire-facias should direct payment in due cause of administra- 
 tion. ^^ 
 
 478. Demand against claimant — set-off. Section 66 of the 
 Administration act provides: "When a claim is filed, or suit 
 brought, against an executor or administrator, and it appears 
 on trial that such claimant or plaintiff is indebted to such 
 executor or administrator, the court may give judgment there- 
 for, and execution may issue thereon in favor of the executor 
 or administrator.""** In a proceeding or suit at law by an 
 executor or administrator, on demand accruing to such repre- 
 sentative after his decedent's death, the defendant cannot off- 
 set a debt due from decedent when alive.^^ But in a proceed- 
 
 38— Section 65, Chapter 3, "Ad- 42— Rosenthal v. Renick, 44 111, 
 
 ministration of Estates." Starr & 202. 
 
 Curtis Annotated Statutes of Illi- 43 — Kirkpatrick v. Haley, 14 
 
 nois. Vol. 1, p. 299, and cases Colo. Ct of App. 399. 
 
 cited; Kurd's R. S. of 111. 1905, p. 44— Section 66. Chapter 3, "Ad- 
 
 115. ministration of Estates." Starr & 
 
 39 — Darling v. McDonald, 101 Curtis Annotated Statutes of lUi- 
 
 111. 370, 380. nois. Vol. 1, pp. 299, 300, and cases 
 
 40— Darling v. McDonald, 101 cited; Kurd's R. S. of 111. 116. 
 
 111. 370-381. 45— Harding v. Shepard, 107 111. 
 
 41— Baker v. Brown, 18 111. 91. 264; Newhall v. Turney, 14 m. 
 
 338.
 
 CLAIMS AGAINST ESTATES. 395 
 
 ing in chancery, where a purchaser of land gave his notes for 
 a portion of the purchase money, and simultaneously therewith, 
 as a part of the same transaction, the grantor executed to the 
 purchaser a bond to indemnify and save him harmless, as 
 against certain outstanding notes given bj'' him upon a prior 
 purchase of the same premises from a third party who had 
 bought from the same grantor, but had forfeited his contract 
 and after the death of the grantor, the party thus sought to be 
 indemnified was compelled to pay those outstanding notes. It 
 was held, that in equity, the party so damnified could set off 
 the sum paid by him, against his notes due to the estate of his 
 grantor, it appearing the estate was solvent and the interest 
 of other creditors would not be affected thereby. And such was 
 held notwithstanding the breach of such indemnifying bond did 
 not occur until after the vendor's death.^*^ The same doctrine 
 is applied where the case originated in the county court and 
 went on appeal to the circuit and supreme courts.^ '^ Where 
 administrator sells goods of an estate and warrants the same, 
 the breach of warranty may be shown as defense to notes given 
 the administrator for goods sold and warranted."*^ But sur- 
 viving partner was not allowed to have his individual claim 
 set off against a claim for firm assets in his hands.^^ 
 
 479. Claims not due. Section 67 of the Administration act 
 provides : ' ' Any creditor, whose debt or claim against the estate 
 is not due, may, nevertheless, present the same for allowance 
 and settlement, and shall, thereupon, be considered as a creditor 
 under this act, and shall receive a dividend of the said dece- 
 dent's estate after deducting a rebate of interest for what he 
 shall receive on such debt, to be computed from the time of 
 the allowance thereof to the time such debt would have become 
 due, according to the tenor and effect of the contract. ' '^^ Under 
 
 46— Stone v. Fargo, 55 111. 71. 49— Berry v. Powell, 18 111. 98; 
 
 47 — Mack v. Woodruff, 87 111. and see Maloney v. Scanlon, 53 111. 
 
 570. This case applies the doc- 122; Peacock v. Haven, 22 111. 23. 
 
 trine in Stone v. Fargo, supra. 50 — R. S. 1845, p. 558, sec. 100; 
 
 48— Welch V. Hoyt, 24 111. 117. Section 67, chapter 3, "Adminis-
 
 396 THE LAW OF ESTATES. 
 
 this section of the statute the endorsee of notes not yet due, 
 where the liability of the endorser was absolute and not de- 
 pendent upon any conditions, it was held, the claimant the 
 endorsee may have the amount of the notes allowed as a claim 
 against the estate of the endorser, after allowing the estate the 
 proper rebate of interest; the endorsee being in that case 
 deemed and considered a creditor of the estate within the mean- 
 ing of the statute.^^ And. where the claim filed against an 
 estate is absolute, though not due, and founded upon note or 
 other document or evidence of indebtedness, or whether joint 
 or several in its nature, and there is no contingent conditions 
 the statute applies.^^ 
 
 480. Appeals. Section 68 of the Administration act pro- 
 vides: "In all cases of the allowance or rejection of claims by 
 the county court, as provided in this act, either party may 
 take an appeal from the decision rendered to the circuit court 
 of the same county, in the same time and manner appeals are 
 now taken from justices of the peace to the circuit courts, by 
 appellant giving good and sufficient bond, with security, to be 
 approved by the county judge ; and such appeals shall be tried 
 de novo in the circuit court. "^^ Under section 68 of the admin- 
 istration act, providing for appeals from orders of the county 
 court rejecting or allowing claims against estates to the circuit 
 court, the section applies and refers to appeals only, and does 
 not authorize the circuit court to issue a writ of certiorari to the 
 county court in such case.^* 
 
 tration of Estates." Starr & Cur- 70. See Section 10, Chapter 72, 
 tis Annotated Statutes of Illinois, "Insolvent Debtors" act. Starr & 
 with Jones & Addington's Supple- Curtis Annotated Statutes of Illi- 
 ments thereto, Vol. 1, p. 300, and nois, Vol. 2, p. 2168. 
 cases cited; Vol. 4, p. 36, and cases 53 — Section 68, Chapter 3, "Ad- 
 cited; Vol. 5, p. 18, and cases ministration of Estates." Starr 
 cited; Kurd's R. S. of 111. 1905, p. & Curtis Annotated Statutes of li- 
 ne, linois, with Jones & Addington's 
 
 51 — Dunningan v. Stevens, 122 Supplements thereto, Vol. 1, p. 
 
 111. 396. 300; Vol. 4, p. 36, and cases cited; 
 
 52— Hall V. Moxey, 84 111. 616; Kurd's R. S. of 111. 1905, p. 116. 
 
 Wolverton v. Taylor, 30 111. App. 54 — Schaeffer v. Burnett, 221 III. 
 
 315.
 
 CLAIMS AGAINST ESTATES. 397 
 
 481. When judge interested or a witness. Section 69 of the 
 Administration act provides : "In all cases or matters, pending 
 in the county court, where the judge of the court shall be inter- 
 ested in the same, or is a material or necessary witness, the case 
 shall be transmitted to the circuit court of the proper county, 
 and there determined as in the county court; and the papers, 
 with the order of judgment of the circuit court thereon, shall 
 be duly certified and filed in the county court, and have the 
 same effect as if determined in the county court. "^•'^ This sec- 
 tion of the statute and also the statute section 204 of the act 
 relating to courts cited are both in force, and that the act of 
 May 31, 1879, which provides for the interchange of county 
 judges, does not repeal this section.^® 
 
 482. Demands classified, as to classes of claims — limitations. 
 
 Section 70 of the Administration act, as amended, is as follows: 
 *'A11 demands against the estate of any testator or intestate 
 shall be divided into classes in manner following, to-wit : First. 
 Funeral expenses and necessary cost of administration. Sec- 
 ond. The widow's award, if there be a widow; or children, if 
 there are children and no widow. Third. Expenses attending 
 last illness, not including physician's bill, and demands due 
 common laborers or household servants of deceased for labor. 
 Fourth. Debts due the common school fund or township. Fifth. 
 The physician's bill in the la.st illness of the deceased. Sixth. 
 Where the deceased has received money in trust for any pur- 
 pose, his executor or administrator shall pay out of his estate 
 the amount thus received and not accounted for. Seventh. All 
 of other debts and demands of whatever kind without regard to 
 quality or dignity which shall be exhibited to the court within 
 one year from granting of letters as aforesaid, and all demands 
 
 55 — Section 69, Chapter 3, "Ad- tion 204, chapter 37, pntitled 
 
 ministration of Estates." Starr & "Courts." Kurd's R. S. of 111. 1905, 
 
 Curtis Annotated Statutes of Illi- p. 623. 
 
 nois, Vol. 1, p. 301; Kurd's R. S. 56— Graham v. People, 111 111. 
 
 of 111. 1905, p. 116. See also sec- 253.
 
 398 THE LAW OF ESTATES. 
 
 not exhibited within one year as aforesaid shall be forever 
 barred unless the creditors shall find other estate of the de- 
 ceased not inventoried or accounted for by the executor or ad- 
 ministrator, in which case their claims shall be paid pro rata 
 out of such subsequently discovered estate, saving however, to 
 infants, persons of unsound mind, persons without the United 
 States, in the employment of the United States or of this State, 
 the term of one year after their respective disabilities are re- 
 moved to exhibit their claims. "^^ 
 
 483. Adjudication and judgment — effect of as between 
 claimant and representative as to personal estate. This section 
 of the Administration act, re-written and passed in 1903,^^ 
 made various changes in the law as it stood in this respect prior 
 thereto. The classification of claims are changed somev/hat, 
 and that part of the section in question fixing the period for 
 exhibiting and presenting claims is shortened from two to oiie 
 year from the time of granting letters of administration. This 
 present statute permits the settlement and distribution of es- 
 tates in one-half the time prescribed by former statutes. The 
 allowance of a claim against an estate by the probate or county 
 court is a judgment binding between the claimant and the 
 executor or administrator as to the personal estate. The classifi- 
 cation of the claim being fixed by the statute, the adjudication 
 and judgment by the court indicate to what class the claim 
 belongs.^^ 
 
 57 — As amended by act approved cases cited; Kurd's R S. of IlL 
 
 June 5, 1889. In force July 1, 1905, p. 116. 
 
 1889. Amended again by act ap- 58 — Ante, 482. 
 
 proved May 15, 1903. In force 59— McCall v. Lee, 120 111. 261; 
 
 July 1, 1903. Section 70, chapter Bradwell v. Wilson, 158 111. 346; 
 
 3, "Administration of Estates." Darling v. McDonald, 101 111. 370; 
 
 Starr & Curtis Annotated Statutes Sherman v. Whiteside, 190 111. 
 
 of Illinois, with Jones & Adding- 576; Ford v. First National Bank, 
 
 ton's Supplements thereto, Vol. 1, 201 111. 120; the latter case hold- 
 
 p. 301, and cases cited under sec- ing the classification is as much a 
 
 tion of statute; Vol. 4, pp. 37, 38, part of the judgment as that of 
 
 and cases cited; Vol. 5, p. 18, and allowing the claim.
 
 CLAIMS AGAINST ESTATES. 399 
 
 484. Reason why allowance of claim is conclusive against 
 the personal estate. "Where the executor or administrator com- 
 plies strictly with the statute, he legally brings before the court 
 all creditors of the estate. Thus the creditor and the repre- 
 sentatives of the estate being in court are parties to the proceed- 
 ings of the court for the adjustment of claims.®'^ The court 
 having properly acquired jurisdiction, Avill hear and determine 
 the claims of creditors; and in such proceeding pass upon the 
 legal and equitable rights of all parties. The creditor having 
 presented and proved his claim, the adjudication of the probate 
 court is final and conclusive upon him.^^ The allowance of a 
 claim against an estate is conclusive against the personal estate, 
 because the executor or administrator is before the court and a 
 party to its proceedings.^- It being the duty of the executor 
 or administrator to represent and guard the interest of the 
 creditors of the estate, and when a claim is presented for allow- 
 ance the law will hold each and every creditor of the estate, 
 by reason of privity of relation, to be represented by the execu- 
 tor or administrator.^^ <'i^ would be an intolerable burden on 
 those who have claims against an estate in the hands of an 
 executor to require the claimant to make each of the creditors 
 a party. An allowance of a claim against an estate is a judg- 
 ment conclusive upon the creditors and all other parties, so far 
 as the personal estate is concerned. It is not the purpose of the 
 law that a claimant shall litigate his claim first with the execu- 
 tor and then with each and every other claimant of the estate. It 
 was contended by an appellee that the probate court is clothed 
 with a broad jurisdiction over all probate matters, and may look 
 into and correct the allowance of claims after the term at which 
 
 60— Mitchell v. Mayo, 16 111. 83; 63—15 Ency. of Pleading and 
 
 Ward V. Dunham, 134 111. 195; Practice, 641; Dandridge v. Wash- 
 
 Noe V. Moutray, 170 111. 169. ington's Exr's, 2 Peters, 370; 
 
 61— Mitchell v. Mayo, 16 111. 83; Stone v. Wood, 16 111. 177; Ward 
 
 Noe V. Moutray, 170 111. 169. v. Durham, 134 111. 195; Ford v. 
 
 62— Ward v. Durham, 134 111. First National Bank, 201 111. 120. 
 195.
 
 400 THE LAW OF ESTATES. 
 
 they are allowed.^* This is true as between the creditor and 
 the heirs-at-law upon a petition filed for the sale of real estate 
 to pay debts; but a distinction is to be made of the effect of the 
 allowance of a claim as to an heir and as to a creditor or 
 legatee.^'^ So far as real estate is concerned, the allowance of 
 a claim against an estate is merely prima facie evidence of the 
 debt due by the estate.*'^^ But as against the personal estate an 
 allowance of a claim is conclusive until reversed by a superior 
 tribunal, unless impeached for fraud, accident or mistake.^'^ 
 
 485. Where the deceased has received money in trust. It 
 
 was undoubtedly the intention of the legislature, when it en- 
 acted and passed the statutes relating to claims against estates, 
 to confer special law and chancery jurisdiction relating to such 
 matters upon the probate and county courts, for the purpose of 
 enabling such courts to do full and complete justice between all 
 claimants and parties in interest relating to the estate of de- 
 ceased persons during the administration thereof. Every con- 
 ceivable claim is susceptible of proof in such court with the 
 possible exception of claims growing out of testamentary trusts 
 and estates in the hands of trustees. Such are still firmly held 
 and controlled by courts of general chancery jurisdiction in this 
 State. It is unnecessary to enumerate the various and different 
 kinds or nature of claims that are susceptible of being fully con- 
 sidered in the first instance by probate and county courts. We 
 however show the jurisdiction of such courts and the law re- 
 lating to such claims as arise, where the deceased has received 
 money in trust for any purpose as noted or defined by class 
 six of the 70 section of the Administration act.^^ The words 
 used in this section of the statute, relating to claims of the sixth 
 
 64— Ford v. First National Stone v. Wood. 16 111. 177; Gould 
 
 Bank, 201 III. 120. v. Bailey, 44 111. 491; Wheeler v. 
 
 65— Ward v. Durham, 134 111. Dawson, 63 111. 54; Ward v. Dur- 
 
 195. ham, 134 111. 195; Schlink v. Max- 
 
 66— Noe V. Moutray, 170 111. ton, 153 111. 447; Sherman v. 
 
 169. Whiteside, 190 111. 576. 
 
 67— Cook V. Wood, 24 111. 295; 6S— Statute cited ante 482.
 
 CLAIMS AGAINST ESTATES. 401 
 
 class, "where the deceased has received money in trust for any 
 purpose, his executor or administrator shall pay out of his estate 
 the amount thus received and not accounted for," has been sub- 
 stantially the law of this State since 1872. Previous to that 
 date, the law was: When an executor, administrator or guard- 
 ian has received money as such, his executor or administrator 
 shall pay out of his estate the amount so received and not 
 accounted for, which shall comprise the third class. The sub- 
 sequent enactments struck out the words "where the executor, 
 administrator or guardian has received money as such" and 
 inserted the words shown in the present act.^^ The legislature, 
 by the phrase "in trust for any purpose," intended to extend 
 the class of preferred claims, but how far, admits of question. 
 "The court holds in that case, that the statute does not neces- 
 sarily extend to and embrace every kind of trust; that it does 
 not embrace trusts implied by law. The record of the case 
 considered shows three distinct claims presented and urged as 
 coming within the sixth class. One claim is based upon the 
 purchase of cattle under an agreement to pasture and feed the 
 same, and pay the balance when sold after deducting expense 
 and commissions of sale. Under one claim considered, the facts 
 show a portion of the cattle were sold and the proceeds received 
 by the deceased, one of the parties to the transaction, but the 
 money therefrom could not be identified ; it being held as to that 
 claim, that such money was not trust money, within the meaning 
 of the statute in question, and therefore the owner of the cat- 
 tle was not entitled to have that claim allowed in the sixth 
 class. But as to another lot, sold just before the death of the 
 party intrusted with the cattle, where the proceeds of the sale 
 could be identified, and which came to the hands of the executor 
 of the deceased, the owner was held to be entitled to have his 
 claim allowed as of the sixth class for his share of the proceeds. 
 Another portion of the cattle remaining undisposed of at the 
 death of the party who under contract, was to feed and pasture 
 
 69— Wilson V. Kirby, 88 111. 566-569. 
 36
 
 402 THE LAW OF ESTATES. 
 
 them and at the time of the death of the party so contracting, 
 were on the pasture of a third person, who held a lien on the 
 cattle for his rent, and who sold the same under stipulation of 
 all parties interested, that the proceeds of the sale should be 
 deposited, to await the settlement of the rights of the parties, 
 it was held: Should there remain any surplus of these pro- 
 ceeds, after satisfying claim for rent, there should be a like 
 allowance in the sixth class to the extent of such surplus. "^<* 
 The word "trust" as used in the 70 section of the Administra- 
 tion act, is used in a restricted sense, and refers only to special 
 or technical trusts.'^^ The county court may allow under this 
 section a claim to a fund held in express trust. '^^ it is also held, 
 a claim should be allowed as of the sixth class, for money 
 received by decedent as executor.'^^ Claims of heirs against 
 administrator's estate are of this class.'^* Money or property 
 of wards in hands of guardian at time of decease are in this 
 class. '^^ The State has right of classification, so have sureties 
 on bond of State Treasurer, who have made good his defalca- 
 tions. Such being held a technical trust that may be recov- 
 ered by the sureties against the estate of such principal as a 
 claim of the sixth class."^ The proceedings in the presenta- 
 tion and allowance of claims is not according to the common 
 law practice, and there is no mode of preserving the evidence 
 or exceptions or of making them a part of the record as in a 
 suit at law.'^^ Such a proceeding in the probate or county court 
 
 70— Wilson V. Kirby, 88 111. 569. 71— Delterman v. Ruppel, 200 
 
 In this case the clause of the stat- 111. 199. 
 
 ute relating to the classification 72 — ^Deiterman v. Ruppel, 200 
 
 of claims against estates of de- 111. 199. 
 
 ceased persons, and which gives a 73 — Wilson v. Kirby, 88 111. 566; 
 
 preference in cases where the de- Fitzsimmons v. Cassell, 98 111. 
 
 ceased has "received money in 332. 
 
 trust for any purpose," held: does 74 — Tracy v. Hadden, 78 111. 
 
 not necessarily extend to and em- 30. 
 
 brace every kind of trust, as it 75 — Cruse v. Cruse, 21 111. 46. 
 does not embrace trusts implied 76 — Whitbeck v. Estate of Ram- 
 by law. (See ante 482, and stat- sey, 74 III. App. 543; Estate of 
 utory citations.) Ramsey v. People, 197 111. 572. 
 
 77— Blair v. Sennott, 134 111. 78.
 
 CLAIMS AGAINST ESTATES. • 403 
 
 or on appeal from such court in such proceedinprs is not gov- 
 erned by technical rules which apply to a formal suit at law.'^^ 
 In allowance of claims against estates the probate court dis- 
 regards mere matters of form and looks to the substanceJ^ In 
 a matter where equitable relief is required the court will adopt 
 forms of equitable procedure, and in other cases will secure to 
 parties the rights allowed to them by law, for the purpose of 
 arriving at an adjustment of the claim. A claim against an 
 estate of a surety on an executor's bond was allowed in the name 
 of the usee, instead of in the name of the People for his use.*^ 
 
 486. Priority of payment. Section 71 of the Administra- 
 tion act provides : ' ' All claims against estates, when allowed by 
 the county court, shall be classed and paid by the executor or 
 administrator, in the manner provided in this act, commencing 
 with the first class; and when the estate is sufficient to pay the 
 whole of the demands, the demands in any one class shall be 
 paid, pro rata, whether the same are due by judgment, writing 
 obligatory, or otherwise, except as otherwise provided.^^ Under 
 the law there can be no preference of claims allowed in the 
 same class, they are under the well settled rules to be paid as of 
 the class allowed.^^ jf assets are insufficient to pay debts in 
 full, they should be distributed pro rata among claims of the 
 same class.*^ Where a claimant receives dividends from an- 
 cillary estate, even though showing great diligence in procur- 
 ing administration in a sister state, such dividends so received 
 
 78— Scheel v. Eidman, 68 111. linois, with Jones & Addington's 
 
 193; Thomson v. Black, 200 111. Supplements thereto, Vol. 1, p. 308, 
 
 465. and cases cited; Vol. 4, p. 38, and 
 
 79— Wolf V. Beaird, 123 111. 585. cases cited; Vol. 5, pp. 18, 19, and 
 
 80— Thomson v. Black, 200 111. cases cited; Kurd's R. S. of 111., 
 
 465. As to trusts and trustees 1905, p. 116. 
 
 and limitations of actions as 82— People v. Phelps, 78 111. 149 ; 
 
 applied to such, see chapters xii- Dodge v. Mack, 22 111. 93. 
 
 xiii of this work. 83— Armstrong v. Ck)oper, 11 111. 
 
 81— R. S. 1845, p. 561, sec. 120, 560; Dunlap v. McGee, 98 111. 287; 
 
 rewritten; section 71, chapter 3, Mack v. Woodruff, 87 111. 570; 
 
 "Administration of Estates." Starr Colton v. Field, 28 111. App. 354; 
 
 & Curtis Annotated Statutes of II- Pinneo v. Goodspeed, 22 111. App. 
 
 50.
 
 404 THE liAW OF ESTATES. 
 
 should be deducted from amount to be paid by domiciliary ad- 
 ministrator ; this being the rule where the estate is insolvent.^* 
 The probate or county court may require a creditor to account 
 for moneys received from an ancillary administrator, where he 
 comes to such court having the principal administration and 
 seeks to receive money from such estate. And where the estate 
 is insolvent, all property not set aside for the widow or minor 
 children are assets for the payment pro rata of all creditors 
 according to classification; the place for distributing the assets 
 for payment of debts, held, to be the domicile of the deceased.*^ 
 
 487. Demands or claims of executor or administrator. Sec- 
 tion 72 of the Administration act provides: "When an execu- 
 tor or administrator has a demand against his testator or intes- 
 tate's estate, he shall file his demand as other persons; and the 
 court shall appoint some discreet person to appear and defend 
 for the estate, and, upon the hearing, the court or jury shall 
 allow such demand, or such part thereof as is legally established, 
 or reject the same, as shall appear just. Should any executor 
 or administrator appeal in such case, the court shall appoint 
 some person to defend as aforesaid.^^ Under this statute it 
 is held: A guardian of minor children, who is also adminis- 
 trator of the parent's estate, cannot retain ward's funds to 
 meet his own claim against the estate for which he is adminis- 
 trator; particularly where such claim of guardian was barred 
 by the statute of limitation.^^ Where a bill was filed in 
 chancery to set aside an administrator's sale of land for the 
 payment of debts, under decree of county court of Mason 
 county, Illinois. The record in the case shows the land was 
 sold for the debt allowed to the administrator solely. It further 
 appears there was only the form of sale to a third party, who 
 
 84 — ^Ramsey v. Ramsey, 97 111. tated Statutes of Illinois, with 
 
 App. 275; Same v. Same, 196 111. Jones & Addington's Supplements 
 
 188. thereto. Vol. 1, p. 309, and cases 
 
 85 — Ramsey v. Ramsey, 196 111. cited; Vol. 4, p. 38, and cases 
 
 188. cited; Kurd's R. S. of 111., 1905, p. 
 
 86— R. S. 1845, p. 561, sec. 121; 116. 
 
 sec. 72, chapter 3, "Administration 87 — In re Estate of Steel, 65 111. 
 
 of EJstates." Starr & Curtis Anno- 322.
 
 CLAIMS AGAINST ESTATES. -105 
 
 paid no money at such sale, but the pretended purchaser held 
 the title for the administrator. The claim of the administrator 
 who failed to proceed as the statute directs was not allowed, 
 the court holding, the land was still liable to be sold for the 
 payment of just debts in the manner pointed out by the stat- 
 ute. But had the purchaser paid money to the administrator 
 at such sale, the rule would have been otherwise.*^ Where 
 claimants' attorney by pre-arranged plans with claimants pro- 
 cured their attorney's appointment as administrator, who forged 
 notes forming the bases of claims allowed, without notice to 
 heirs, and without defense as contemplated by the statute being 
 made, the court holding the proceeding to be a fraud upon the 
 heirs directed under the facts above stated that the unpaid 
 purchase money be paid to the heirs, whose property had been 
 wrongfully sold.^^ The liability of an administrator to an 
 estate, denied by him, is analogous to a claim by administrator 
 against estate, amd requires the appointment of some discreet 
 person to appear and defend for the estate; but it is said the 
 better practice is to appoint an administrator pro tem.^^ Exe- 
 cutor's claim for taxes he paid during the lifetime of his testa- 
 tor should be presented as provided in this section of the stat- 
 ute.^i Appointment to defend under the statute should be 
 made, where the principal administrator is disqualified to axjt.^^ 
 But such need not be appointed, where the demand of the 
 administrator is partial payment upon a debt fully aeknowl- 
 edged,^3 The party appointed to defend must act in good 
 faith and with reasonable prudence.^^ And where executor's 
 interest does not appear of record, this section of the statute 
 does not apply .^^ 
 
 88— Coat V. Coat, 63 111. 73. 92— Stone v. Haskins, 97 111. 
 
 89 — Whitlock v. McCluskey, 91 App. 5; Vandervier v, Fetta, 20 
 
 111. 582. Colo. 368. 
 
 90 — May V. Leighty, 3G 111. App. 93 — Emerick v. Hileman, 177 111. 
 
 17; Whitlock v. McClusky, 91 371. 
 
 111. 582. 94— Switzer v. Kee, 69 111. App. 
 
 91 — Corrington v. Corrington, 15 500. 
 
 111. App. 360; Mackay v. Pulford, 95 — Elting v. First National 
 
 36 111. App. 593. Bank, 173 111. 390. In this case
 
 406 THE LAW OF ESTATES. 
 
 488. Entries — classing — payment before allowance. Section 
 73 of the Administration act provides: "The county court shall 
 make an entry of all demands against estates, classifying the 
 same as above provided, and file and preserve the papers belong- 
 ing to the same. If an executor or administrator pays a claim 
 before the same is allowed as aforesaid, said court shall require 
 such executor or administrator to establish the validity of such 
 claim by the like evidence as is required in other cases, before 
 the same is classed, and be (he) credited therewith. "^^ The, 
 paying of a claim before it is allowed, puts the executor or 
 administrator in peril, by paying in this manner he assumes the 
 risk of proving the claim under this section of the statute.^ '^ 
 Executors or administrators must pay the percentage on the 
 claims determined by the court upon the amount of the assets 
 in their hands belonging to the estate, and such percentage 
 must be paid although some creditors have been paid in full.^* 
 But it appears claims paid by the executor or administrator 
 within the time allowed by statute, in certain cases have stood 
 as a credit to such when reported to the court before final settle- 
 ment of his accounts and distribution.^^ The classification of 
 the claims must be made, it is a part of the claim allowed.^ 
 
 489. Expense incurred by executor or administrator in 
 erecting head stone at the grave of deceased considered proper. 
 
 the court of chancery took juris- tis Annotated Statutes of Illinois, 
 diction on the ground of gross with Jones & Addington's Supple- 
 mismanagement of the estate and ments thereto, Vol. 1, pp. 309, 310, 
 breach of trust by the executrix, and cases cited; Vol. 5, p. 19, and 
 There it is held creditors may case cited; Kurd's R. S. of 111., 
 maintain such a bill and set aside 1905, p. 117. 
 
 a sale made to executrix on the 97 — Lynch v. Hickey, 13 111. 
 
 ground of a collusive judgment App. 139; Wallace v. Monroe, 22 
 
 rendered by the county court, and 111. App. 602. 
 
 that foreign courts have no juris- 98 — Foskett v. Wolf, 19 111. App. 
 
 diction over an executor acting in 33. 
 
 Illinois alone. 99 — Harris v. Millard, 17 111. 
 
 96— R. S. 1845, p. 562. sec. 122; App. 512. 
 
 section 73, chapter 3, "Adminis- 1 — Ford v. First National Bank, 
 
 tration of Estates." Starr & Cur- 201 111. 128.
 
 CLAIMS AGAINST ESTATES. 407 
 
 The erection of a suitable head stone at the grave of a deceased 
 person may properly be considered a part of the executor's per- 
 sonal expense, when the rights of creditors are not defeated or 
 jeopardized; the sum expended not being extravagant, but rea- 
 sonable in view of the station in life of the deceased, and the 
 value of the estate left by him. And such amount so expended 
 should be allowed as a credit on settlement of the administra- 
 tor.2 ii jg advisable, however, that the representatives of the 
 estate consult the court of probate or the distributees of the 
 estate, or both as to the amount, if any, to be thus spent. In 
 Colorado such a claim has been held improper.^ 
 
 490. Partnership claim. A partnership debt is joint and 
 several, and the creditor has the right to elect whether he will 
 proceed against the assets in the hands of the surviving partner 
 or against the estate of the deceased partner.^ The creditor may 
 proceed against the estate at any time before the statute of 
 limitation has run; and the failure to pursue the partnership 
 assets cannot be relied upon as a defense, when suit is brought 
 against the estate.^ 
 
 2 — Spire v. Lovell, 17 111. App. rule is put in force to the effect 
 
 559. The opinion in that case is where there are individual and 
 supported by the following author- partnership creditors having de- 
 ities: Wood V. Vanderberg, 6 mands against an estate, the in- 
 Paige, 277; McGlinsey's Appeal, 14 dividual creditors will have prior- 
 Serg & Rawley, 64; Porter's Es- ity as to the individual assets, and 
 tate, 77 Pa. St. 43; Fairman's partnership creditors a prior claim 
 Appeal, 30 Conn. 205. against firm assets; and the in- 
 
 3 — Lusk V. Patterson, 2 Colo. Ct. dividual creditor will have the 
 
 of App. 306. right to insist that no part of tha 
 
 4 — Silverman v. Chase, Ex'r, 90 separate assets shall be taken and 
 
 111. 41; Mason v. Tiffany, 45 111. applied in payment of firm debts 
 
 392; Doggett, Ex'r, v. Dill, 108 until all separate debts are paid 
 
 111. 560; Eads v. Mason, 16 111. in full. Lindley on Partnership, 
 
 App. 545. 1053; and see authorities cited on 
 
 5 — Doggett, Ex'r, v. Dill, 108 111. page 567 of the opinion in Dog- 
 
 560. In this case the well-settled gett v. Dill, supra.
 
 CHAPTER XXIV 
 
 AWARDS TO WIDOWS AND CHILDREN 
 
 Sec. 
 
 491. The widow's allowance. 
 
 492. Allowance to children. 
 
 493. Appraisers make and certify 
 
 awards. 
 
 494. Appraisers to consider condi- 
 
 tions and mode of living 
 widow was accustomed to at 
 time of husband's death. 
 
 495. Property awarded vests abso- 
 
 lutely in the widow. 
 
 496. Right to award not affected 
 
 by renunciation. 
 
 497. Administrator's duties in re- 
 
 lation to award. 
 
 498. When the widow's award is a 
 
 lien upon the real estate. 
 
 499. When widow's award is not a 
 
 lien upon real estate. 
 
 Sec. 
 
 500. Widow may release her award 
 
 in various ways. 
 
 501. But if there are infant chil- 
 
 dren widow cannot release. 
 
 502. Ante-nuptial agreement, may 
 
 or may not be bar to wid- 
 ow's award. 
 
 503. Weaver v. Weaver. 
 
 504. McMahill v. McMahill. 
 
 505. Spencer v. Boardman. 
 
 506. Christy v. Marmon. 
 
 507. Where the widow is not 
 
 bound by such agreement. 
 
 508. Phelps V. Phelps. 
 
 509. Zachmann v. Zachmann, Mur- 
 
 dock V. Murdock. 
 
 510. Miscellaneous. 
 
 Sec. 491. The widow's allowance. Under the Statute of 
 Illinois, the widow has a special right to certain articles of per- 
 sonal property, and she takes in exclusion of debts, claims, 
 charges, legacies and bequests, except funeral expenses, and 
 holds the same as her sole and exclusive property. The widow, 
 residing in this State, of a deceased husband whose estate is 
 administered in this State, whether her husband died testate or 
 intestate, shall, in all cases, in exclusion of debts, claims^ 
 charges, legacies and bequests, except funeral expenses, be 
 allowed, as her sole and exclusive property forever, the fol- 
 lowing, to-wit: 
 
 First — The family pictures and the wearing apparel, jewels 
 and ornaments of herself and her minor children. 
 
 408
 
 AWARDS TO WIDOWS AND CHILDREN. 409 
 
 Second — School books and family library of the value of 
 $100. 
 
 Third — One sewing machine. 
 
 Fourth — Necessary beds, bedsteads and bedding for herself 
 and family. 
 
 Fifth — The stoves and pipe used in the family, with the neces- 
 sary cooking utensils; or, in case they have none, $50, in money. 
 
 Sixth — Household and kitchen furniture to the value of $100. 
 
 Seventh — One milch cow and calf for every four members of 
 her family. 
 
 Eighth — Two sheep for each member of her family, and the 
 fleeces taken from the same, and one horse, saddle and bridle. 
 
 Ninth — Provisions for herself and family for one year. 
 
 Tenth — Food for the stock above specified, for six months. 
 
 Eleventh — Fuel for herself and family for three months. 
 
 Twelfth — $100 worth of other property suited to her condi- 
 tion in life, to be selected by the widow. 
 
 Which shall be known as the widow's award; or the widow 
 may, if she elect, take and receive, in lieu of the foregoing, the 
 same personal property, or money in place thereof, as is or 
 may be exempt from execution or attachment against the head 
 of a family residing with the same.^ 
 
 This special right is not given to the surviving husband; for 
 the debts may consume the whole of his personal estate as he 
 has no special right to an award; but the widow if she survive 
 has her award, without regard to the debts and legacies, whether 
 the husband dies leaving a will or not; nothing in the form of 
 a claim being chargeable to the widow except funeral expenses. 
 The intention of the legislature and the policy of the law in 
 this respect being to give the widow under all circumstances 
 support during the administration of her husband's estate.'^ 
 
 6— Law of 1847, p. 168, sec. 1; 4, p. 38; Vol. 5, p. 19; and cases 
 
 section 74, chapter 3, "Adminis- cited under section of statute in 
 
 tration of Estates." Starr & Cur- each volume; Kurd's R. S. of 111., 
 
 lis Annotated Statutes of Illinois, 1905, p. 117. 
 
 with Jones & Addington's supple- 7 — Strawn v. Strawn, 53 111. 
 
 ments thereto. Vol. 1, p. 310; Vol. 263; Boyer v. Boyer, 21 111. App.
 
 410 THE LAW OF ESTATES. 
 
 492. Allowance of award to children. "When the person 
 dying is at the time of his death a housekeeper, the head of a 
 family, and leaves no widow, there shall be allowed to the chil- 
 dren of the deceased, residing with him at the time of his death, 
 (including all males under eighteen years of age, and all 
 females), the same amount of property as is allowed to the 
 widow by this act. "^ In the early case of Lesher v. Worth,^ 
 Mr. Justice Caton, speaking for the court, gave the first clear 
 construction of this section of the statute, and that construction, 
 broad and liberal, has ever since been closely followed. It is 
 said, the question here is, whether the children, where the intes- 
 tate was a widow, who was at the time of her death a house- 
 keeper, and the head of a family, shall take under the provi- 
 sions of this section the same as if the intestate had been a 
 widower. To me it seems exceedingly clear, that the children 
 are entitled to take the property left by the mother the same as 
 if left by a father. It cannot be denied that the mischief de- 
 signed to be remedied exists in the one case as much as in the 
 other. Ingenuity will seek in vain for a reason why the orphans 
 should be left entirely destitute, where the familj'- has been 
 broken up by the death of a mother, any more than if that 
 calamity had happened by the death of the father. They are 
 at least equally entitled to the humane consideration of the 
 legislature. The creditors of the mother have no more just 
 claim to take the last crumb from the mouths of the orphans, 
 and turn them utterly destitute upon the world, than have the 
 creditors of the father. A man dies, leaving a family of chil- 
 dren to whom certain property is set apart for their support. 
 
 534; McMahill v. McMahill, 113 tion of Estates," Starr & Curtis 
 111. 461; In re Scovill's Estate, 20 Annotated Statutes of Illinois, 
 111. App. 426; Phelps v. Phelps, 72 with Jones & Addington's Supple- 
 Ill. 545; Miller v. Miller, 82 111. ments thereto. Vol. 1, p. 313; Vol. 
 4r5; Sutherland v. Harrison, 86 4, p. 39; and cases cited under sec- 
 Ill. 374. See section 13, chapter tion of statute in each volume; 
 52, "Exemptions," Starr & Curtis. Hurd's R. S, of 111.. 1905, p. 118. 
 8— Laws of 1845, p. 598, sec. 4; 9— Lesher v. Worth, 14 111. 40. 
 section 77, chapter 3, "Administra-
 
 AWARDS TO WIDOWS AND CHILDREN. 411 
 
 At the next door, a woman dies, leaving also a family of chil- 
 dren, who are turned into the street entirely destitute. Is this 
 the equality of our laws, and the equal justice of our legisla- 
 ture? Why should the children of a deceased father be pro- 
 vided for more than those of the mother? We seek in vain for 
 the object of such a discriminating policy, nor was it ever 
 designed by the legislature. Again in the early case of Strawn 
 V. Strawn,^^ it is held: The word "family," as used in this 
 section of the statute, d«^s not include alone the widow and , 
 the minor children of the deceased, but includes such persons 
 as constituted the family of the deceased at the time of his 
 death, whether servants, or children who had attained their 
 majority. In this, is not to be included boarders, but only the 
 persons constituting the private household of the deceased.^ ^ 
 Decedent's real estate may be sold to pay allowance to chil- 
 dren of statutory award.^^ The settled policy of the State of* 
 Illinois, as to awards, is clearly to protect the widow from her \ 
 husband's creditors to the extent of her award; and further j 
 to protect the children from their deceased parent's creditors | 
 to the extent of the statutory award to them, where such are*' 
 in fact children of either.^^ But in any case where an award 
 is allowed a marriage relation must have existed, this is the 
 theory under which the award is allowed, and of course the 
 policy of the law.^* Dependency upon deceased is not essential 
 to allowance of award to child.^^ 
 
 493. Appraisers make and certify awards. The apprais- 
 ers shall make out and certify, to the probate court or county 
 court having probate jurisdiction, an estimate of the value of 
 each of the several items of property allowed to the widow; 
 and it shall be lawful for the widow to elect whether she will 
 
 10—53 III. 263. Lessley y. Lessley, 44 111. 527; 
 
 11— McMahill v. McMahill, 113 Strawn v. Strawn, 53 111. 263. 
 111. 461. 14— Hooper v. McCaffery, 83 111. 
 
 12— Lynch v. Hickey, 13 111. App. 341. 
 App. 139. 15— Walford v. Deemer, 89 111. 
 
 13— Lesher v. Worth, 14 111. 40; App. 526.
 
 412 THE LAW OF ESTATES. 
 
 take the specific articles set apart to her, or take the amount 
 thereof out of other personal property at the appraised value 
 thereof, or whether she will take the amount thereof in money, 
 or she may take a part in money and a part in property, as 
 she may prefer; and in all cases it shall be the duty of the 
 executor or administrator to notify the widow as soon as such 
 appraisement shall be made, and to set apart to her such arti- 
 cles of property, not exceeding the amount to which she may 
 be entitled, and as she may prefer or select, within thirty days 
 after written application shall be made for that purpose by 
 such widow. And if any such executor or administrator shall 
 neglect or refuse to comply with the above requisition, when 
 application shall be made for that purpose, he shall forfeit and 
 pay for the use of such widow, the sum of twenty dollars for 
 each month's delay to set apart said property so selected, after 
 the said term of thirty days shall have elapsed, to be recovered 
 in the name of the People of the State of Illinois, for the use 
 of such widow, in any court having jurisdiction of the same. 
 When there is not property of the estate, of the kinds men- 
 tioned in the preceding section, the appraisers may award the 
 widow a grc^s sum in lieu thereof, except for family pictures, 
 jewels and ornaments, and in case such v/idow is insane or 
 under other disabilities then the conservator or guardian of 
 such widow may make such selection; and in case such widow 
 die before such award is made or before such selection is made 
 then the administrator or executor of such widow may cause 
 such award to be made and may make such selection for the 
 benefit of the estate of such deceased -widow.* ^ 
 
 494. Appraisers may consider conditions and mode of living 
 widow was accustomed to at time of husband's death. In the 
 
 case of Strawn v. Strawn,^"^ it was urged that no distinction 
 
 16 — Section 75, chapter 3, "Ad- Supplements thereto, Vol. 1, pp. 
 ministration of Estates." Starr & 312, 313, and cases cited; Vol. 4, 
 Curtis Annotated Statutes of Illi- pp. 38, 39, and cases cited; Kurd's 
 nois, with Jones & Addington's R. S. of 111., 1905, p. 117. 
 
 17—53 111. 263.
 
 AWARDS TO WIDOWS AND CHILDREN. 413 
 
 should be made in the amount and character of the allowance 
 between the widow of a man of large fortune, left with an 
 ample and well furnished homestead upon her hands, and 
 obliged either to abandon it, or to employ servants for its proper 
 care, and a widow who is left in possession of a small house, 
 which she has been accustomed to care for by the labor of her 
 own hands. Meeting this proposition the court held in that 
 case, that the legislature designed the appraisers, in fixing the 
 amount of the widow's award, should take into view the condi- 
 tion and mode of life in which the widow was left by the death 
 of her husband, and to regard as necessary that furniture which 
 is the ordinary and appropriate furniture of such homesteads. 
 The award, however, fixed by the appraisers and certified to 
 the court, is always subject to the approval of the court; which 
 has power and may for cause, set aside the appraisement made 
 and order a new appraisement; but the court has no power or 
 authority to modify an award made by appraisers, nor can it 
 substitute the court's judgment for that of appraisers.^^ 
 
 495. Property awarded vests absolutely in the widow. The 
 
 articles of personal property awarded and set apart to the 
 widow, vests absolutely in her, and her award takes priority 
 in payment of all debts and charges except funeral expenses.*^ 
 
 496. Right to award not affected by renunciation. "The 
 right of a widow to her award shall in no case be affected by 
 her renouncing or failing to renounce the benefit of the provi- 
 sions made for her in the will of her husband, or otherwise. "20 
 
 18— In re Scovill's Estate, 20 111. Miller v. Miller, 82 111. 470; Sum- 
 
 App. 426, and cases cited in opin- ner v. McKee, 89 111. 133; Little v. 
 
 ion; Miller v. Miller, 82 111.. 463; Williams, 7 111. App. 67; Ross v. 
 
 Marshall v. Rose, 86 111. 374; Rut- Smith, 47 111. App. 197; McMahill 
 
 ledge V. Rutledge, 21 111. App. 357; v. McMahill, 113 111. 461; York v. 
 
 Boyer v. Boyer, 21 111. App. 534; York, 38 111. 522; Furlong v. Riley, 
 
 Lane v. Thorn, 103 111. App. 217; 103 111. 628. 
 Lipe V. Fox, 21 Colo. 140. 20— R. S. 1845, p. 546, sec. 50; 
 
 19 — Strawn v. Strawn, 53 III. section 76, chapter 3, "Adminis- 
 
 263; Telford v. Boggs, 63 111. 498; tration of Estates." Starr & Cur-
 
 414 THE LAW OF ESTATES. 
 
 497. Administrator's duties in relation to award. The court 
 holds in Illinois, under statute law, that if the administrator 
 fails to assign such articles to the widow, she or her adminis- 
 trators, if she died subsequently to her husband's death, may 
 proceed against the administrator of the husband's estate for 
 their value.^i It is also held, a widow is entitled to interest 
 on the balance due of her award, when she has made election 
 to take it in money.22 
 
 498. When the widow 's award is a lien upon the real estate. 
 
 The widow's allowance, in case it is not paid from the pereonal 
 estate or by relinquishment and selection, is a lien upon the 
 real estate of the deceased, to the extent of the award. But if 
 a portion of the real estate has been devised to the widow, 
 together with the value of the residue of the real estate, it is 
 to be taken into consideration, and a proportionate part only 
 becomes a charge against such residue.^^ And upon a deficiency 
 of personal assets, the real estate of the deceased may be sold 
 to pay the widow's award.^* 
 
 499. When widow's award is affected by prior lien on real 
 estate. A judgment creditor filed his bill in chancery to reach 
 the debtor's interest in a co-partnership, or such sum as might 
 
 tis Annotated Statutes of Illinois, homestead, but not to the exclu- 
 with Jones & Addington's Supple- sion of his children, until she 
 ments thereto, Vol. 1, p. 313, and shall marry again, and the widow 
 cases cited; Kurd's R. S. of 111., fails to renounce the will, she will 
 1905, p. 117; Cruce v. Cruce, 21 take no dower or estate of home- 
 Ill. 46; Miller v. Miller, 82 111. stead under the statute. What- 
 467; Sutherland v. Harrison, 86 ever rights the widow may take 
 111. 367; Administrators of Gullett in her husband's real estate she 
 V. Farley, 164 HI. 566. will derive under the will. The 
 
 21 — York V. York, 38 111. 522; general rule being applied, that if 
 
 Furlong v. Riley, 103 111. 628. a widow takes under a will, she 
 
 22 — Stunz V. Stunz, 131 111. 210. will be bound by its provisions. 
 
 23 — Dettzer v. Schuester, 37 111. It was therefore held, in that case, 
 
 301. In Stunz v. Stunz, supra, it the wife took only the right to 
 
 was held: Where a will gives a enjoy the homestead in common 
 
 widow one-third of the net income with the children during her wid- 
 
 of the testator's real estate for owhood. 
 
 life, and the right to live on his 24— Lynch v. Hickey, 13 111. 139.
 
 AWARDS TO WIDOWS AND CHILDREN. 415 
 
 on settlement of the partnership matters, be found coming to 
 him. The debtor died, and his widow was appointed adminis- 
 tratrix of his estate. The award allowed the widow was more 
 than the decedent's interest in the partnership, and she claimed 
 the right to have the interest in the co-partnership applied on 
 her award: Held, that the creditor's lien was not divested by 
 the death of the debtor, and that in such case the widow would 
 take only so much as was left after satisfying the lien ; the 
 claim of the widow's award is against the estate of her de- 
 ceased husband ; and if there is no estate, she will have nothing 
 to rely on for its payment. If the estate is incumbered by a 
 valid lien, the award will not set aside the lien.^s And it has 
 been also held, where a widow elected to take under the will 
 of her husband, and as executrix thereof, completely adminis- 
 tered the estate without claiming her award, and after a period 
 of more than ten years from the grant of letters to her, she 
 attempted to sell the real estate of her deceased husband to 
 pay an award to her, appraised at such late date ; the court in 
 such case applied the doctrine of laches, because there was no 
 reasonable excuse for such delay, holding as the court does, 
 that it was the duty of the appraisers to at once fix the widow's 
 award, and if they fail to do so, the widow having herself 
 become executrix, might have in that capacity, under the statute, 
 compelled the appraisers to discharge such duty.-** And if she 
 desires her award this should be done in a reasonable time.-" 
 The widow administered the estate of her husband, waived her 
 award and took all the property under her deceased husband's 
 will for life. And so in such case, the waiving of the widow's 
 award was harmless, for she took the whole property for life 
 without claiming her award, and in such case the award would 
 constitute no lien upon the property even if not waived.-^ 
 
 25 — King, Administrator, v. istrator, v. Goodwin, 130 III. 102. 
 Goodwin, 130- 111. 102. 27— Furlong, Administrator, v. 
 
 26— Furlong, Administrator, v. Riley, 103 111. 626. 
 Riley, 103 111. 626; King, Admin- 28— Brack v. Boyd, 202 111. 
 
 440.
 
 416 THE LAW OF ESTATES. 
 
 500. Widow may release her award in various ways. In 
 general, she has a year to take under the will or under the law 
 by statute; but a widow may release her award by accepting 
 another provision in lieu of it, or by a direct release for any 
 purpose where she is fully informed of all the benefits in so 
 doing, if any, or the truth relating to the fact of the release 
 given by her. Her award being by express provision of the 
 statute her sole and exclusive property, she may act with the 
 same in its release and collection like any other claimant, under 
 such limitations as the law imposes.^^ 
 
 501. But if there are infant children, widow cannot release. 
 
 The special allowance made by the statute for the widow of a 
 deceased person is as much for the advantage of the children 
 of the deceased as for the widow, and where there are such chil- 
 dren residing with the widow, she has no power to release such 
 award, and it cannot in such case be affected by an ante-nuptial 
 contract, or otherwise, as the policy of the law is to provide a 
 home for the family, that the domestic rights may remain un- 
 broken during the period for which provision is made for them, 
 notwithstanding the death of her husband.^^ But it is held 
 arguendo, that a widow takes her award as her absolute prop- 
 erty, not as trustee for children or members of family .^i 
 
 502. Ante -nuptial agreement, may or may not be a bar to 
 widow's award. The following cases establish the doctrine, 
 that where an ante-nuptial agreement has in good faith been 
 fully performed by the husband's legal representatives, the 
 
 29 — McMahill v. McMahill, 113 award," have once accrued to her 
 
 111. 461; In re Scoville's Estate, 20 by the death of her husband, she 
 
 111. App. 426; Maynard v. May- may exchange the specific articles 
 
 nard, 194 111. 48. of property awarded to her by the 
 
 30 — Phelps V. Phelps, 72 111. 545. statute, or she may release her 
 
 31 — Weaver v. Weaver, 109 111. right to them altogether, or dls- 
 
 225. In this case it is held: After pose of her award, the same as 
 
 a widow's rights in respect to any other property of which she 
 
 what is termed the "Widow's is the absolute owner.
 
 AWARDS TO WIDOWS AND CHILDREN. 417 
 
 widow will be concluded by it, whether there be any children 
 or not.32 
 
 503. In Weaver v. Weaver,^'-^ there were no children 
 of the deceased husband and his widow, but a son of the 
 husband by a former marriage, and the daughter of the wife 
 by a former marriage lived in the family of the deceased hus- 
 band as members of his family. The ante-nuptial agreement 
 provided for the payment of $12,000 to his wife, and the same 
 had been fully paid by the legal representatives of the deceased 
 husband and accepted by the widow. It being held, the widow 
 was concluded by the ante-nuptial agreement. 
 
 504. In McMahill v. McMahill,^'*^ the widow accepted the sum 
 of money specified in the ante-nuptial contract to be paid to her, 
 and it was held, that her right to a widow's award was barred. 
 
 505. In Spencer v. Boardman,^^ there were no children born 
 of the marriage to which the ante-nuptial contract related, and 
 no child or children of the husband by his former marriage 
 resided in his family at the time of his death; it being held 
 in that case, where there are no children of the marriage, re- 
 lating to the ante-nuptial agreement, the widow's award may 
 be barred. 
 
 506. In Christy v. Marmon,^^ the husband died intestate, 
 leaving no child or children or descendants of any child; and it 
 was held, the ante-nuptial agreement was in the nature of an 
 
 32 — Weaver v. Weaver, 109 111. In Christy v. Marmon, supra 
 
 225; McMahill v. McMahill, 113 (32), the provision in the ante 
 
 111. 461 ; Spencer v. Boardman, IIS nuptial contract in question was 
 
 111., 553; Christy v. Marmon, 163 to the effect that the wife shall, 
 
 111. 225; Zachmann v. Zachmann, after the husband's death, "have 
 
 201 111. 387; Murdock v. Murdock, full control and use" of certain 
 
 219 111. 123; Kroell v. Kroell, 219 described property during life and 
 
 111. 105. widowhood, and that she "is to re- 
 
 33 — 109 111. 225. ceive as dower from the estate" of 
 
 34—113 111. 461. the husband "the sum of $500 an- 
 
 35 — 118 111. 553. nually," was held bars the dower 
 
 36—163 111. 225. of the wife in the husband's es- 
 
 26
 
 418 THE LAW OF ESTATES. 
 
 equitable jointure, and barred the widow's right of dower in 
 the real estate of the deceased, and also the widow's award, 
 though it was no bar to her right of homestead. 
 
 507. Where the widow is not bound by such agreement. 
 
 The courts apply the doctrine, "that so long as the ante-nuptial 
 agreement remains executory she may repudiate it." Also, 
 where the facts of record are found to be, that the widow's 
 family consisted, in part of a child or children of the deceased 
 husband, and that the agreement was unexecuted by the legal 
 representatives of the decea.sed husband, the widow was not 
 bound thereby, nor barred of her right to the award which 
 section 74 of Chapter 3 of the "Administration Act" provides, 
 shall be set apart for widows of deceased husbands whose es- 
 tates are being administered in this State.^'^ 
 
 508. In Phelps v. Phelps,^^ it was held: That the 
 allowance of a widow's award was provided out of motives of 
 public concern, and there are grave reasons why a law enacted 
 from public considerations should not be abrogated by mere 
 private agreement, and that it would be in contravention of the 
 policy of the law to permit a man, by an ante-nuptial agree- 
 ment, to relieve his estate from the operation of the statute 
 providing that an allowance should be made for the mainte- 
 nance of the widow and minor children for a limited period; 
 and, upon this reasoning it was held, that an ante-nuptial 
 agreement was inoperative as to the widow's award. In that 
 case one child, born of the marriage, was living with the widow 
 at the time of the application for an award. 
 
 tate, but does not bar her inherit- of the husband, was chargeable 
 
 ance as heir under section 1 of upon the whole estate, real and 
 
 the Statute of Descent, or her personal, and not exclusively upon 
 
 right of homestead, as there was the portion inherited by heirs 
 
 no purpose to bar her of these other than the wife, 
 
 rights expressed in the will. It 37 — See note 6, statute citation, 
 
 was also held the annuity provid- section 74, chapt. 3, "Administra- 
 
 ed for under the ante nuptial con- tion of Estates," Ante 491. 
 
 tract "as dower from the estate" 38 — 72 111. 546.
 
 AWARDS TO WIDOWS AND CHILDREN. 419 
 
 509. In Zachmann v. Zaclimann,^'^ the court held: The 
 deceased husband left him surviving a minor daughter and the 
 appellant, his widow. The ante-nuptial contract remained ex- 
 ecutoiy, — a bare agreement, — and it was therefore within the 
 power of the appellant to decline to be bound by the provi- 
 sions of the contract as to her right to the widow's award. A 
 petition for appointment of appraisers to set off a widow's 
 award is not a proceeding in the nature of an action ex cmi- 
 tractu. The right to a widow's award under the statute, de- 
 pends upon the marriage, the continuance of the marriage re- 
 lation until death, and the survivorship of the wife. A con- 
 tract executed jointly between the husband and wife, whereby 
 each party releases, quit claims and conveys to the other, both 
 real and personal property, renouncing forever all claims, in 
 law and equity, of curtsy, dower, homestead, survivorship or 
 otherwise, releases the right to the widow's award, and bars 
 the same, if there are no minor children of the decedent liv- 
 ing with the widow. Marriage of the parties to an ante nuptial 
 contract, coupled with the mutual covenants of the parties 
 waiving and releasing the right of each in the property of the 
 other, is sufficient consideration for the contract; and such 
 contracts are not against public policy.^*^ But if the provi- 
 sions for the intended wife in an ante nuptial contract is dis- 
 proportionate to the means of the intended husband, the hus- 
 band and those claiming under him have the burden of proving 
 that the intended wife, at the time she executed the contract, 
 had full knowledge, or reasonable means of knoMdedge, of the 
 nature, character and value of the intended husband's prop- 
 erty; and this knowledge must be brought directly to the in- 
 tended wife in order to bind her under such contract.^^ 
 
 39—201 111. 387. 638. In Zachmann v. Zachmann, 
 
 40— Kroell v. Kroell, 219 111. supra (40), it was held: If an 
 
 105; Zachmann v. Zachmann, 201 ante nuptial contract providing for 
 
 111. 387. the payment of a gross sum for 
 
 41 — Murdock v. Murdock, 219 the release of the widow's award, 
 
 111. 123; Yarde v. Yarde, 187 111. dower and homestead lights is
 
 420 
 
 THE LAW OF ESTATES. 
 
 510. Miscellaneous points applicable to subject. Children 
 of deceased widow are entitled to statutory award out of her 
 property.42 Delay of nine years unexplained in enforcing 
 right to award is conclusive of such right.^^ And it appears 
 that a family allowance made in a foreign state, if enforcible 
 in this State must be presented to the probate court like any 
 other claim."*** Marriage relation must have existed or award 
 cannot be allowed.**^ 
 
 declared inoperative as to the pro- 
 vision for waiver of homestead 
 and widow's award, it is inoper- 
 ative in toto and does not affect 
 dower. This is declared to be the 
 law, as statute granting benefit 
 of homestead and award were en- 
 acted out of concern for the pub- 
 lic welfare as well as for the bene- 
 fit of those directly affected by 
 such law, in so far as tney confer 
 privileges and exemptions upon 
 persons, not only for their own 
 benefit but also for the benefit of 
 others dependent upon them, and 
 such law cannot be abrogated by 
 personal agreements. See Recht 
 V. Kelly, 82 111. 147; 12 Am. & 
 Eng. Ency. of Law, 2d ed. 192, and 
 cases cited; Powell v. Daily, 163 
 111. 646. 
 
 42— Lesher v. Wirth, 14 111. 
 39. 
 
 43— Tarrant v. Kelly, 81 111. 
 App. 121. 
 
 44— Smith v. Smith, 174 111. 61. 
 
 45— Hooper v. McCaffery, 83 111. 
 App. 341. In Smith v. Smith 
 supra (44), it is held: The rule 
 that it is the duty of an ancillary 
 administrator to turn over the 
 balance in his hands, after pay- 
 ing all claims in his jurisdiction, 
 to the principal administrator to 
 satisfy unpaid claims in his juris- 
 diction, applies only to personal 
 property or the proceeds of the 
 sale thereof. And so where a pro- 
 bate court in a foreign state al- 
 lows a claim against the decedent's 
 estate within that jurisdiction for 
 a "widow's allowance," the fact 
 the heirs opposed the claim in that 
 state does not preclude them 
 from contesting the widow's right 
 to collect such judgment out of 
 tbe decedent's estate in Illinois.
 
 CHAPTER XXV 
 
 COLLECTION AND DISPOSITION OF ASSETS 
 
 Sec. 
 
 511. Collection of assets, concealed 
 
 effects, discovery. 
 
 512. Refusal to answer — commit- 
 
 ment. 
 
 Sec. 
 
 513. The title to personal proper- 
 
 ty involved. 
 
 514. Possession of chattel is prima 
 
 facie evidence of ownership. 
 
 Sec. 511. Collection of assets — concealed effects — dis- 
 covery. Section 81 of the Administration Act, provides: 
 *'If any executor or administrator, or other person interested 
 in any estate, shall state upon oath to any county court, that 
 he believes that any person has in his possession, or has con- 
 cealed or embezzled, any goods, chattels, moneys or effects, 
 books of account, papers or any evidence of debt whatever, or 
 titles to lands belonging to any deceased person, or that he 
 believes that any person has any knowledge or information of 
 or concerning any indebtedness or evidence of indebtedness, 
 or property, titles or effects, belonging to any deceased person, 
 which knowledge or information is necessary to the recovery 
 of the same, by suit or otherwise, by the executor or adminis- 
 trator, of which the executor or administrator is ignorant, and 
 that such person refuses to give to the executor or administra- 
 tor such knowledge or information, the court shall require 
 such person to appear before it by citation, and may examine 
 him, on oath, and hear the testimony of such executor or ad- 
 ministrator, and other evidence offered by either party, and 
 make such order in the premises as the ease may require. "^ 
 
 1— In lieu of R. S. 1845, p. 556, force March 19, 1873, Laws of 
 
 sec. 90; Section 81, chapter 3, 1873, p. 1, sec. 1. The amendment 
 
 "Administration of Estates," as inserting provision to compel dis- 
 
 amended by act approved and in covery. See Starr & Curtis Annotat- 
 
 421
 
 422 THE LAW OF ESTATES. 
 
 512. Refusal to answer — commitment. Section 82 of the 
 Administration Act, provides: ''If such person refuses to 
 answer such proper interrogatories as may be propounded to 
 him, or refuses to deliver up such property or effects, or in case 
 the same have been converted, the proceeds or vahie thereof, 
 upon a requisition being made for that purpose by an order of 
 the said court, such court may commit such person to jail until 
 he shall comply with the order of the court therein.^ Jurisdic- 
 tion is expressly conferred upon courts of probate, under the 
 two sections of the statute cited, which are often applied to- 
 gether, upon the application of an executor or administrator, or 
 other person interested in any estate, to inquire and determine 
 whether another person has in his possession property belong- 
 ing to an estate being administered.^ The court of probate 
 however, in such matter is invested with a discretionary power, 
 and it is not compelled, as a matter of arbitrary law, to make 
 any specific order. The discretion is not unlimited, but should 
 be exercised so as to best preserve the estate, and promote its 
 honest, complete and prompt administration. Such court should 
 look beyond the mere legal right, and protect the equitable 
 right of possession. Hence, the court should not require the 
 equitable owner of promissory notes, made payable to a de- 
 ed Statutes of Illinois, with Jones p. 20; Kurd's R. S. of 111., 1905, 
 & Addington's Supplements there- same sections and chapter, pp. 118, 
 to. Vol. 1, pp. 314, 315; Vol. 4, 124. 
 
 pp. 39, 40, and cases cited under 3 — Johnson v. Von Kettler, 66 
 section of statute in question in 111. 63; Steinman v. Steinman, 
 each volume; Kurd's R. S. of 111., 105 111. 348; Connor v. Akin, 29 
 1905, same section and chapter. III. App. 584; Seavey v. Seavey, 30 
 p. 118. 111. App. 625; Borders v. People, 
 
 2— R. S. of 1845, p. 556, sec. 90; 31 111. App. 483; U. R. & T. Co. v. 
 section 82, chapter 3, "Administra- Shacklet, 119 111. 235. In this 
 tion of Estates." Starr & Curtis case it is held as a general prop- 
 Annotated Statutes of Illinois, osition of law, that where a stat- 
 with Jones & Addington's Supple- ute gives a new right, without pro- 
 ments thereto. Vol. 1, p. 316; see viding a special remedy for its en- 
 also section 114, chapter 3, Admin- forcement, it may be enforced by 
 Istration Act. Starr & Curtis, etc., any appropriate common law ac- 
 vol. 1, p. 339; Vol. 4, p. 44; Vol. 5, tion.
 
 COLLECTION AND DISPOSITION OF ASSETS. 423 
 
 ceased person, to deliver them to the administrator of the estate, 
 when not required for the payment of debts of the estate or 
 for the purpose of distribution.* The affidavit required by the 
 statute is jurisdictional and must be made to give the court 
 the power to act.^ The court has full discretion as to examin- 
 ing parties, and is not confined to the examination of the de- 
 fendant, it may examine others to determine the facts and fix 
 its order in such proceeding.^^ This section of the statute does 
 not apply, where an attorney acting for an administrator, col- 
 lects and refuses to turn over money belonging to an estateJ 
 The court may permit party cited to testify to facts occurring 
 prior to death of deceased, and may believe and act upon the 
 uncontradicted statements of such witness.^ Proceedings au- 
 thorized by section of the statute cited is in the nature of a 
 bill in chancery for discoveiy and equitable relief.^ And the 
 facts appearing in proceedings under this statute are subject 
 to review in Supreme Court after affirmance by appellate 
 court." In the latter case it was held appellant was not en- 
 titled to a jury trial. A party entitled to share in 
 the estate applied to the probate court to compel the ex- 
 ecutors to inventory personalty which one of them claimed 
 to own. It was held in such case. The probate court tries 
 questions relating to the inventories and accounts of executors, 
 
 4 — People V. McKee, 105 111. 588; not govern any case which is to 
 
 Wade V. Pritchard, 69 111. 279; be tried by the court without a 
 
 Connor v. Akin, 29 111. App. 584; jury and without requiring the 
 
 Seavey v. Seavey, 30 111. App. consent of the parties. See also 
 
 625; Borders v. People, 31 III. App. Hermann v. Pardridge, 79 111. 471. 
 
 483; Martin v. Martin, 170 111. 28; 5— Dinsmoor v. Bressler, 164 111. 
 
 Mahoney v. People, 98 111. 244. 223. 
 
 In the case of Martin v. Martin 6 — Wade v. Pritchard, 69 111. 
 
 supra, it is held, section 41 of the 279. 
 
 Practice Act (Kurd's R. S, of 111., 7 — Dinsmoor v. Bressler, 164 111. 
 
 1905, chapt. 110, p. 1536): Con- 222. 
 
 cerning propositions of law, applies 8 — Estate of Phillip Kraher v. 
 
 only to cases where the parties are Launtz, 90 111. App. 499. 
 
 entitled to a jury trial but waive 9 — Adams v. Adams, 181 111. 
 
 the jury and submit the case to 210. 
 
 the court by agreement, and does 10 — Martin v. Martin, 170 111. 
 
 28; Coffey v. Coffey, 179 111. 290.
 
 424 THE LAW OF ESTATES. 
 
 administrators and guardians in a summary manner and with- 
 out a jury .11 
 
 513. The title to personal property is involved by 
 proceedings under sections 81 and 82 of the Administration 
 Act, cited. In the case of Williams v. Cliamberlmn,^^ a pro- 
 ceeding was commenced in the probate court of Cook county, 
 upon the separate petitions of appellants, two sisters of the 
 deceased person. These petitions were consolidated and tried 
 together, one petitioner claiming a policy of insurance on the 
 life of the deceased for $10,000, the other claiming a life in- 
 surance policy on the life of deceased of $5,000. The sisters 
 claiming the policies as gifts from their deceased brother, whose 
 estate was being administered in that court; the title to each 
 policy being under a purported assignment of the same to the 
 sisters of the deceased as given on page 213 of the opinion of 
 the court. No question was made by the Insurance Company 
 as to its liability to pay; but by agreement of the parties in- 
 terested, and under the order of the probate court, the policies 
 were delivered to the American Trust and Savings Bank for 
 collection; that bank, to hold the proceeds thereof in trust for 
 the party who should finally be found entitled thereto. On 
 the one hand the administrator claimed the policies and pro- 
 ceeds of these policies as a part of the estate being adminis- 
 tered. On the other, the petitioning sisters claimed the policies 
 and proceeds thereof, as gifts inter vivos or causa mortis from 
 the deceased. The court in passing upon the facts of record, 
 
 concede it was the intention of W that his sisters should 
 
 have this insurance, but if, from mistake of law, he failed to 
 do those things which the law requires to carry the intention 
 
 11 — Maynard v. Richards, 166 certain personal property claimed 
 111. 466; Martin v. Martin, 170 111.^ by the executor, is an equitable 
 28; Coffey v. Coffey, 179 111. 290. one invoking the summary juris- 
 In this case it is held: A pro- diction of the court and the com- 
 ceeding begun in the probate court plaining party cannot insist on 
 by one interested in an estate, to a jury trial on appeal to the cir- 
 compel an executor to inventory cuit court. 
 
 12—165 111. 210.
 
 COLLECTION AND DISPOSITION OF ASSETS. 425 
 
 into effect, mere proof of his intention, however positive and 
 convincing, cannot change the title to the property. Page 218 ; 
 There are three requisites necessary to constitute a donatio causa 
 mortis: (1) The gift must be with a view to the donor's death; 
 (2) It must have been made to take effect only in the event of 
 the donor's death by his existing disorder; (3) There must 
 be an actual delivery of the subject of the donation. 
 It is essential to a donation inter vivos that the gift be absolute 
 and irrevocable ; that the giver part with all present and future 
 dominion over the property given; that the gift go into effect 
 at once and not at some future time; that there be a delivery 
 of the thing given to the donee ; that there be such a change of 
 possession as to put it out of the power of the giver to repossess 
 himself of the thing given. Page 221: The evidence does not 
 
 show, that W created a trust, or created himself the 
 
 trustee of the petitioners, and so held possession of the policies 
 for them. It is sufficient that he did not do so, and we find 
 no evidence in the record that he made the attempt. Held: 
 from a mere imperfect gift a trust cannot be deduced. It 
 cannot be determined from the evidence, whether W re- 
 tained the policies and assignments in his possession, and re- 
 frained from all acts showing an intent to deliver them and to 
 thus complete the gifts, in order that he might, if he thought 
 advisable, change his mind and act as future exigencies might 
 require, or whether he was mistaken in the law and supposed 
 that he had done all that was required to make the gift com- 
 plete. But in either case the petitioners are without remedy. 
 It is also held in that case, though the intention to make a gift 
 is clear, yet in the absence of actual delivery, his acts to be 
 equivalent thereto, if of a testamentary character, must be iu 
 compliance with the statute of wills.^^ 
 
 13 — Comer v. Comer, 120 111. Richardson v. Richardson, 148 111 
 
 420. The following cases sustain 563; Taylor v. Harrison, 179 111 
 
 Williams v. Chamberlain, supra- 140; Yokem v. Hicks, 93 111. App 
 
 (12): Telford v. Patton, 144 111. 670; Coffey v. Coffey, 179 111. 283 
 
 611; Barnum v. Reed, 136 111. 388; Jennings v. Neville, 180 111. 277;
 
 426 THE LAW OF ESTATES. 
 
 514, Possession of chattel is prima facie evidence of 
 ownership. The holder of a certificate of stock on which is a 
 printed assignment and power of attorney to make the transfer, 
 signed by the owner, is presumed to be rightfully in possession 
 thereof, and such is prima facie authorized to fill in the blank 
 assignment and cause a transfer to be made to himself on the 
 books of the corporation.^* Proof that the consideration for un- 
 indorsed notes, held by a niece of the payee under claim of 
 ownership, was money loaned by the payee to the respective 
 makers, that the notes were delivered to the payee during his 
 life-time, and, although payable to himself or order, were not 
 endorsed by him before his death, does not overcome presump- 
 tion of ownership arising from possession. Declarations 
 by the holder of unindorsed notes, during her pos- 
 session thereof, to the effect, that they had been given 
 her by the payee before his death, are admissible in her 
 favor, as tending to show her claim of ownership.!^ The 
 possession of a note endorsed by a deceased party is 
 prima facie evidence of ownership.^^ But a note payable to 
 the order of a deceased party, is presumed to be a part of the 
 estate of such, and will require proof to overcome this pre- 
 sumption.i'^ But it is held, where a son received from his 
 mother during her life-time, certain sums of money which he 
 loaned and invested, taking notes and mortgages in his own 
 name, and who after his mother's death claimed to be the 
 owner thereof by his mere possession, the prima facie presump- 
 tion of ownership was overcome by the proof offered showing 
 the facts recited. And so it is held under proceedings had pur- 
 suant to sections 81 and 82 of the administration act, that pos- 
 session of property, belonging to a deceased person, was not as 
 
 McCartney v. Ridgeway, 160 111. 15 — Martin v. Martin, 174 111. 
 
 156. See also chapter xiv. of this 371. 
 
 work, "Gifts causa mortis and in- 16 — Wellman v. Highland, 87 111. 
 
 ter vivos." App. 407. 
 
 14— Coffey v. Coffey, 179 111. 17— Shea v. Doyle, 65 111. App. 
 
 283, 474.
 
 COLLECTION AND DISPOSITION OF ASSETS. 427 
 
 owner of the property, but as agent for the owner, m the absence 
 of any proof or claim by such person, under a sale, gift or loan 
 of the property. The rule being title to pei-sonal property is 
 presumed to be in the administrator or executor or other rep- 
 resentative of an estate, unless the party holding the same show 
 title in themselves, by sale gift or otherwise.i^ And where a 
 hearing and judgment is entered in a court of probate, an ap- 
 peal taken and judgment entered in the circuit under appeal, 
 the court of probate has jurisdiction to complete administration 
 and compel payment of such judgment.^ ^ 
 
 18 — Adams v. Adams, 181 111. 461; Kraher's Estate v. Luntz, 90 
 
 210; Same v. Same, 81 111. App. 111. App. 496; Mahoney v. People, 
 
 644; Shea v. Doyle, 65 111. App. 98 111. App. 241. 
 
 474; Mulville V. White, 89 111. App. 19— Hughes v. People, 5 Colo. 
 
 91; Kinney v. Keplinger, 172 111. 448.
 
 CHAPTER XXVI 
 
 PARTNERSHIP ESTATES 
 
 Sec. 
 
 515. General remarks, partnership, 
 
 partners, dormant partner. 
 
 516. Duty of surviving partner, in- 
 
 ventory. 
 
 517. Return of such inventory. 
 
 518. Surviving partner should nev- 
 
 er be appointed administra- 
 tor. 
 
 519. Rights of surviving partner, 
 account. 
 
 520. Liability of surviving partner, 
 
 — confusing individual and 
 partnership liabilities; — vex- 
 atious or unreasonable delay 
 in rendering account. 
 
 Sec. 
 
 521. Waste, citation, security, 
 
 costs. 
 
 522. The right of the surviving 
 
 partner to purchase of the 
 executor. 
 
 523. The relation of the assets to 
 
 the individual and partner- 
 ship debts. 
 
 524. The executor or administra- 
 
 tor of a deceased partner 
 entitled to share of profits 
 when surviving partner con- 
 tinues business and uses the 
 deceased partner's capital. 
 
 525. Compensation of surviving 
 
 partner for services. 
 
 Sec. 515. General remarks, partnership, partners, dor- 
 mant partner. ''A partnership is a voluntary unincorporated 
 association of individuals standing to one another in the rela- 
 tion of principals for carrying out a joint operation or under- 
 taking for the purpose of a joint profit.^ As defined by Story 
 on Partnership:^ ''Partnership, often called co-partnership, 
 is usually defined to be a volimtary contract between two or 
 more competent persons to place their money, effects, labor, and 
 skill, or some of them, in lawful commerce or business, with the 
 understanding that there should be a communion of the profits 
 thereof between them." It sometimes happens that two or 
 more persons associated together in a business enterprise, though 
 not intending to form a co-partnership, become, in legal effect 
 
 1 — Dixon's Law of Partnership, 
 sec. 1. 
 
 2 — Story on Partnership, sec. 2. 
 
 428
 
 PARTNERSHIP ESTATES. 429 
 
 partners, that courts hold liable for debts contracted during 
 such association,^ A dormant partner is one whose name is 
 not known or does not appear as a partner, but who is a silent 
 partner and partakes of the profits.'* The administrator of a 
 deceased partner in the first instance, has nothing to do with 
 either the partnership assets or the partnership debts. The 
 surviving partner takes the exclusive legal title to the assets 
 for the payment of the partnership debts, and for such he is 
 held a trustee and accountable as such.^ The surviving partner 
 has the right to use the 'firm name by which to transact his 
 business.® Under the well settled rules, it is the duty of the 
 surviving partner to proceed to settle the business of the part- 
 nership without delay, and the duty of the administrator of 
 the deceased partner, to see that the surviving partner does 
 so. And where surviving partner fails to act, or unreasonably 
 delays a settlement, the county or probate court may by proper 
 proceeding coerce such settlement, or a court of chancery upon 
 application may remove the surviving partner from the trust 
 and appoint a receiver of the court that will settle the partner- 
 ship business.'^ It is the duty of the surviving partner to set- 
 
 3 — Pettis V. Atkins, 60 111. 454; during the life of the depositor, or 
 
 Flagg V. Stone, 85 111. 164; Hodg- after his death. And so under the 
 
 son V. Baldwin, 65 111. 532. facts stated in that case, a check 
 
 4 — Podrasnik v. Martin Co., 25 drawn by the surviving partner, 
 
 111. App. 300. on the bank in question, either in 
 
 5 — Talcott V. Dudley, 5 111. (4 the firm name or in his own name 
 
 Scam.) 427; People v. White, 11 as surviving partner, when paid 
 
 111. 350; Miller v. Jones, 39 111. will protect the bank. See Ford 
 
 54; Johnson v. Berlizheimer, 84 v. Thornton, 3 Leigh 659; Knocht 
 
 111. 54. V. United States Savings Inst, 2 
 
 6 — Commercial National Bank Mo. App. 563; Bank v. Armstrong, 
 
 V. Proctor, 98 111. 558. In this 4 Dev. L. 519; Matter of Franklin 
 
 case, it was held the surviving Bank, 19 Am, Decis. 422; Munn v. 
 
 partner had the right to change a Birch, 25 111. 35; Peters v. Davis, 
 
 deposit in the name of one part- 7 Mass. 256; Bopp v. Fox, 63 111. 
 
 ner to the credit of the firm. But 540. 
 
 If the sum so deposited was the 7 — Nelson v, Hayner, 66 111. 487; 
 private means of the partner so McKean v. Vick, 108 111. 373; Mil- 
 depositing, the other will have no ler v, Kingsbury, 128 111. 47. 
 power to control it or check it out
 
 430 THE LAW OF ESTATES. 
 
 tie all the obligations of the firm and to collect all the debts 
 due the firm. And this must be done in the name of the sur- 
 viving partner at the expense of the firm.^ The death of a 
 partner terminates the partnership, but a community of in- 
 terest in the winding up of the partnership matters continues 
 to exist between the surviving partners and the representatives 
 of the deceased, and the partnership continues to have a lim- 
 ited existence for that purpose.^ The winding up or settling 
 of the partnership affairs, after the death of one of the part- 
 ners, may be said to consist, as a general rule, in selling the 
 propertj^, receiving moneys due the firm, paying the firm debts 
 and the advances of the partners, returning the capital con- 
 tributed by each partner, and dividing the profits.^'' Partners 
 may contract with each other that there shall be no good will 
 to be considered as property or as an asset of the co-partnership, 
 and such a contract may be expressly made, or it may be im- 
 plied from other contracts and the acts and conduct of the 
 parties in interest.^^ But a judgment recovered by a surviving 
 partner for damages for loss of profits resulting from a breach 
 of contract which occurred during the life of the other partner, 
 is a partnership asset, although the action upon which the 
 judgment was based was not begun until after such partner's 
 death.i2 
 
 516. Duty of surviving partner — inventory. Section 87 
 of Chapter 3 entitled "Administration of Estates," provides: 
 
 8 — Clay V. Freeman, 118 U. S. of his intestate's capital, in con- 
 
 97; Maynard v. Richards, 166 111. tinning the business, which such 
 
 466. capital bears to the entire capital 
 
 9 — Maynard v. Richards, 166 111. of the firm, or, at his option, to 
 
 466. have such share of the capital re- 
 
 10 — Maynard v. Richards, 166 turned, with interest, and this is 
 
 111. 466. true although by the partnership 
 
 11 — Douthart v. Logan, 190 111. articles the deceased partner was 
 
 243. In this case it is held: The receiving a greater share of profits 
 
 executor of a deceased partner is than his portion would be if based 
 
 entitled to that portion of the on his capital, 
 profits earned by the wrongful use 12 — Maynard v. Richards, 106 
 
 111. 466.
 
 PARTNERSHIP ESTATES. 431 
 
 In case of the death of one partner, the surviving partner or 
 partners shall proceed to make a full, true and complete inven- 
 tory of the estate of the co-partnership within his knowledge, 
 and shall also make a full, true and complete list of all the 
 liabilities thereof at the time of the death of the deceased part- 
 ner. He or they shall cause the said estate to be appraised in 
 like manner as the individual property of a deceased person.^^ 
 
 517. Return of such inventory. Section 88 of the Ad- 
 ministration act provides: "He or they shall return, under 
 oath, such inventory, list of liabilities and appraisement, within 
 sixty days after the death of the co-partner, to the county court 
 of the county of Avhich the deceased was a resident or carried 
 on the partnership business at the time of his death; if the 
 deceased shall have been a non-resident, then such return shall 
 be made to the county court gTanting administration upon the 
 effects of the deceased. Upon neglect or refusal to make such 
 return, he shall, after citation, be liable to attachment."^* 
 
 518. Surviving partner should never be appointed ad- 
 ministrator. A surviving partner should never be appointed 
 administrator on the estate of his deceased partner, because, 
 as such survivor, he becomes accountable to the estate, and could 
 not well account to himself as its representative.^ ^ **As this 
 judgment is reversed, we take occasion to say, in a case of this 
 kind, the probate court should, on the trial of it, proceed as 
 though a bill in chancery had been filed, hear the evidence, 
 and investigate the account without the intervention of a jury, 
 
 13— Laws of 1869, p. 300, sec. 1: Statutes, etc., Vol. 2, pp. 2646, 
 
 Section 87, chapter 3, "Adrainis- 2649, and cases cited; Kurd's R. 
 
 tration of Estates." Starr & Cur- S. of 1905, pp. 1335, 1337. 
 
 tis Annotated Statutes of Illinois, 14 — In lieu of Law of 1869, p. 
 
 with Jones & Addington's Supple- 301, sec. 2. Section 88, chapter 3, 
 
 ments thereto. Vol. 1, p. 317, and "Administration of Estates." 
 
 cases cited; Vol. 4, p. 40, and cases Starr & Curtis Annotated Statutes 
 
 cited; Kurd's R. S. of 111., 1905, of Illinois, Vol. 1, p. 318; Kurd's 
 
 p. 119. See also sections 4, 13, 14, R. S. of 111., 1905, p. 119. 
 
 chapter 84, "Limited Partner- 15 — Keward v. Slagel, 52 111. 
 
 ships." Starr & Curtis Annotated 336.
 
 432 THE LAW OF ESTATES. 
 
 unless it should appear to be necessary to impanel a jury to try 
 some issue of fact that may be made up, as in ordinary chan- 
 cery cases. "1^ A surviving partner cannot set off and have 
 allowed his individual account against deceased partner's 
 estate, from firm assets in his hands.^^ 
 
 519. Rights of surviving partner — account. Section 89 
 of the Administration act, provides: "Such surviving part- 
 ner or partners shall have the right to continue in possession of 
 the effects of the partnership, pay its debts out of the same, 
 and settle its business, but shall proceed thereto without delay, 
 and shall account with the executor or administrator, and pay 
 over such balances as may, from time to time, be payable to him 
 in the right of his testator or intestate. Upon the application 
 of the executor or administrator, the county court may, when- 
 ever it may appear necessary, order such surviving partner to 
 render an account to said county court, and in case of neglect 
 or refusal may, after citation, compel the rendition of such 
 account by attachment.^ ^ Upon the dissolution of a partner- 
 ship by the death of one of the firm, the property is common, 
 to be divided according to the shares of the partners, after the 
 payment of the debts. This property is, first, the stock in trade 
 as originally contributed, with all the additions made to it; 
 second, real estate owned by the company; and third, in cer- 
 tain cases, the "good will" of the concern, Remick v. Emig}^^ 
 And in the following case it is held to be a good defense 
 to a claim filed against an estate of a deceased person, that 
 its items grew out of a partnership between the claimant 
 and the intestate, which is stiU unsettled. The general rule 
 
 16 — Heward v. Slagel, 52 111. tis Annotated Statutes of Illinois, 
 
 336-340. See also. Miller v. Jones, with Jones & Addington's supple- 
 
 39 111. 54; Breckenridge v. Os- ments thereto, Vol. 1, pp. 318, 319, 
 
 trom, 79 111. 71. and cases cited; Vol. 4, p. 41, and 
 
 17 — Berry v. Powell, 18 111. 98. cases cited; Vol. 5, p. 19, and cases 
 
 18— Laws of 1869, p. 301, sec. 3. cited; Kurd's R. S. of 111., 1905, 
 
 Section 89, chapter 3, "Adminis- p. 119. 
 tration of Estates." Starr & Cur- 18a— 42 111. 342.
 
 PARTNERSHIP ESTATES. 433 
 
 was applied in this case, to the effect: That where the affairs 
 of a partnership firm have not been settled and a balance struck 
 between its members, no action at law can be maintained by 
 one member of the firm against another. The remedy in such 
 ease is in equity, to obtain a settlement of the accounts of the 
 firm.i^ Personal service upon non-resident partner in a suit 
 for accounting" of partnership property is not essential to the 
 jurisdiction of the court.^^ 
 
 520. Liability of surviving partner who confuses indi- 
 vidual and partnership liabilities, or is vexatious or un- 
 reasonable in rendering account. If surviving partner, after 
 the death of his partner still buys goods in the firm name of 
 another firm of which he was a partner, and had or allowed 
 the same to be charged to the old firm, the same as before the 
 death of his partner, thereby so confusing that which was a 
 liability of the firm, with his as surviving partner, as to ren- 
 der it impossible to separate the two, the consequences of the 
 confusion must fall upon the surviving partner, unless he can 
 show the parts of goods so purchased chargeable to each. Di- 
 vcrsey v. Johnson.^^^ This rule is laid down: '*If a party, 
 having charge of the property of another so confounds it with 
 his own that the line of distinction cannot be traced, all the in- 
 convenience of the confusion is thrown upon the party who 
 produces it, and it is for him to distinguish his own property 
 or lose it" and this principle holds in matters of account.^^ It 
 is also held, where a surviving partner is unreasonable and vex- 
 atious in rendering account and turning over balance due the 
 deceased partner's estate to his representatives, the surviving 
 partner will be chargeable with interest.^- 
 
 19— Bowzer v. Stoughton, 119 20a— 93 111. 569. 
 
 111. 47. 21—1 Story's Eq. Jur. 466. 
 
 20— Williams v. Williams. 221 22— Bauer Grocer Co. v. McKee 
 
 111. 544. See also Hamilton v. Shoe Co., 87 111, App. 436. 
 Wills, 182 111. 144. 
 99.
 
 434 THE LAW OF ESTATES. 
 
 521. Waste — citation — security — costs. Section 90 of the 
 Administration act, provides: "Upon the committal of waste 
 by the surviving partner or partners, the court may, upon 
 proper application, under oath, setting forth specifically the 
 facts and circumstances relied on, protect the estate of the 
 deceased partner, by citing forthwith the surviving partner or 
 partners to give security for the faithful settlement of the af- 
 fairs of the co-partnership and for his accounting for and pay- 
 ing over to the executor or administrator of the deceased what- 
 ever shall be found to be due, after paying partnership debts 
 and costs of settlement, within such time as shall be fixed by 
 the court. The giving of such security may be enforced by at- 
 tachment, or, upon refusal to give such security, the court may 
 appoint a receiver of the partnership property and effects, with 
 like powers and duties of receivers in courts of chancery; the 
 costs of proceedings under this section to be paid by the ex- 
 ecutor or administrator, out of the estate of the deceased, or by 
 the surviving partner, or partly by each, as the court may 
 order.23 While this section of the statute, provides some reme- 
 dies which may be regarded as cumulative, it does not change 
 the nature of the relation between the surviving partners and 
 the representatives of the deceased partner, and does not affect 
 the right of the latter to have the joint property applied to the 
 payment of the joint debts, and a due distribution of the sur- 
 plus.^'* The death of a partner is, ipso facto, from the time 
 of the death, a dissolution of the partnership, however numer- 
 ous the association may be. But a community of interest still 
 
 23 — Laws of 1869, p. 301, sec. 4. of chancery will grant an injunc- 
 
 Section 90, chapter 3, "Administra- tion to restrain him from acting, 
 
 tion of Estates." Starr & Curtis and appoint a receiver and direct 
 
 Annotated Statutes of Illinois, Vol. the account to be taken. In equity 
 
 1, p. 319, and cases cited; Kurd's the surviving partner is treated as 
 
 R. S. of 111., 1905, p. 120. a trustee, with fiduciary relation 
 
 24 — Nelson v. Hayner, 66 111. existing between him and the 
 
 487. In this case it is held: If legal representative of the de- 
 
 the surviving partner does not ac- ceased partner, of trustee to the 
 
 count in a reasonable time, a court cestuis que trust.
 
 PARTNERSHIP ESTATES. 435 
 
 exists between the survivors and the representatives of the de- 
 ceased partner, and the latter have the right to insist on the 
 application of the joint property to the payment of the joint 
 debts, and a due distribution of the surplus. So long as these 
 objects remain to be accomplished, the partnership may be con- 
 sidered as having a limited continuance.-^ 
 
 522. The right of the surviving partner to purchase of 
 the executor. The surviving partner may purchase from the 
 executor of the deceased partner, all the interest of the de- 
 ceased partner in the assets of the firm, after partnership debts 
 are paid, and such purchase may include profits realized since 
 his partner's death. But a power of sale in such case must rest 
 in the executor or administrator, for in the absence of such he 
 could not buy the partnership effects himself, for under the 
 law in the absence of an executor or administrator he would 
 occupy the position of vendor and purchaser, and as such pro- 
 hibited from purchasing at his own sale.'-*^ 
 
 523. The relation of the assets to the individual and 
 partnership debts. The rule is established in Illinois "that 
 
 25 — Nelson v. Hayner, 66 111. 487. for about ten months before the 
 26 — Kimball v. Lincoln, 99 111. purchase. Neither can such re- 
 578. And supporting the case cover against the estate of the de- 
 cited, see Chambers v. Howell, 11 ceased partner, on the theory that 
 Beav. 6; Ray, Exr., v. Vilas, 18 the books were not correctly kept 
 Wis. 169; Hamilton v. Wells, 182 by him, when he attempts to as- 
 Ill. 144. In the latter case it is sert a claim which, if valid, would 
 held: A surviving partner who, exist in favor of former partners, 
 upon purchase of the interest of and where it is shown by evidence 
 the deceased partner, assumes the he was familiar with the business 
 debts shown by the books and and had possession of the partner- 
 papers of the firm, cannot enforce ship books before purchasing the 
 against the deceased partner's es- interest of the deceased partner, 
 tate a subsequently discovered lia- See also, Norman v. Hudleston, 64 
 bility of the firm not shown by the 111. 11; Over v. Herrington, 66 
 journal and daily balance book, Ind. 365; Thompson v. Love, 111 
 but which appears from a register Ind. 272; Clark v. Carr, 45 111. 
 and other papers of the partner- App. 469; Baldwin v. Ball, 48 
 ship, and which were in his hands N. Y. 673.
 
 436 THE LAW OF ESTATES. 
 
 partnership property must first be applied to the payment of 
 partnership debts, and that the true and actual interest of each 
 partner in the partnership stock is the balance found due to 
 him after the payment of all partnei-ship debts, and the ad- 
 justment of the partnership account between himself and his 
 co-partners; and in equity real estate forms no exception, but 
 stands on the same footing in this respect with personal prop- 
 erty, no matter in whom the legal title may be vested.^^ Where 
 partnership real estate is required to pay debts, it is in equity 
 considered and treated as personalty.^^ The individual cred- 
 itors of a deceased partner have a prior right to individual as- 
 sets.29 The rule laid down by Washburn on Real Estate,^^ 
 is to the effect, "In this country, — and generally in Eng- 
 land, — the doctrine of survivorship is limited by the ex- 
 tent to which equity stamps the character of personalty upon 
 such estates, and that is, so far as, and no further than, they 
 are required to pay partnership debts." And the same author: 
 "And, as would naturally be inferred from the premises above 
 stated, whatever remains of such partnership real estate after 
 the debts of the company shall have been discharged, is held 
 in common, and is at once subject to dower or curtsy, and 
 goes to the heirs or devisees accordingly, "^i A sale by one 
 partner of his interest in the firm to his co-partner, upon the 
 latter 's assuming and agreeing to pay the debts of the firm, is 
 a personal obligation to pay, and the right to sell and dispose 
 of the assets is vested by the sale in the co^partner, free from 
 any lien on the assets for the payment of the firm indebted- 
 ness.32 But it will be otherwise, if on the dissolution of a part- 
 nership, an amount of the stock of goods equal to the firm in- 
 
 27— Bropp V. Fox, 63 111. 540; Eads v. Mason, 16 111. App. 548. 
 Trowbridge v. Cross. 117 111. 113; 30— Vol. 1, pp. 422, 423. 
 
 Strong V. Lord, 107 111. 25; Breen 31 — Washburn on Real Property, 
 
 T. Richardson, 6 Colo. 605; Charles Vol. 1, p. 423; Lynch v. Lynch, 86 
 
 V. Eshleman, 5 Colo. 107. 111. 286. 
 
 28— Strong v. Lord, 107 111. 25. 32— Hapgood v. Cornwell, 48 111. 
 
 29— Doggett V. Dill, 108 111. 568; 65; Rainey v. Nance. 54 111. 29; 
 
 Silverman v. Chase, 90 111. 37; Groembel v. Arnett, 100 111. 34.
 
 PARTNERSHIP ESTATES. 437 
 
 debtedness is left with one who continues the business, to be 
 converted into money, with which he is to pay the partnership 
 indebtedness; for in such case he can not be held a purchaser, 
 so as to subject such goods to the payment of his individual 
 debts as against the equities of the retiring partner. He 
 will be treated as a trustee, and the trust may be enforced 
 in equity by the retiring partner for the benefit of the part- 
 nersliip creditors, as against subsequent purchasers or ex- 
 ecution creditors with notice of the equities of the retiring 
 partner.33 
 
 524. The executor or administrator of a deceased pajrt- 
 ner entitled to share of profits when surviving partner con- 
 tinues business and uses the deceased partner's capital. 
 ' * The rule which the authorities seem to have laid down in such 
 eases and which appears to be the equitable one, is, that the 
 representative of the estate of the deceased partner is entitled 
 to that proportion of the profits earned by the wrongful use of 
 the deceased partner's capital in continuing the business by 
 the surviving partners which such capital bore to the entire 
 capital of the co-partnership," — or at his option, to have such 
 share of the capital returned, with interest, and this is true, 
 although by the partnership articles the deceased partner was 
 receiving a greater share of profits than his portion would be 
 if based on his capital. "^^ 
 
 525. Compensation of surviving partner for services. It 
 
 is well settled that one partner cannot charge the firm, or his 
 co-partners, for his services in attending to the partnership 
 business, unless there is a special agreement among the partners 
 entitling him to do so. In the absence of such agreement, the 
 
 33 — Parker v. Merritt, 105 111. ship — Ewell's ed. 976; Robinson v. 
 293; Williamson v. Adams, 16 111. Robinson, 146 Mass. 167; Freeman 
 App. 567. V. Freeman, 142 Mass. 98; Durbin 
 
 34 — Douthart v. Logan, 190 111. v. Barney, 14 Ohio, 311; Burnie v. 
 243. See also Lindley on Partner- Vandever, 16 Ark. 616; Gates v. 
 
 Finn, L. R. Ch. Div. 839.
 
 438 THE LAW OF ESTATES. 
 
 law will not imply one "from the greater industry or greater 
 ability of any one partner. "^^ The reason for the rule is, that 
 each partner is under obligations to devote his skill and efforts 
 to the promotion of the common benefit of the firm.^*^ And the 
 same rule applies to the services of a surviving partner as be- 
 tween himself and the representatives of the deceased partner.'^''' 
 Where, however, the surviving partner renders services in ex- 
 cess of the mere winding up of the partnership affairs, he will, 
 under certain circumstances, be entitled to compensation for 
 such excess."*^ Where the surviving partner is allowed com- 
 pensation, it will appear he successfully continued the business 
 of the firm, or successfully completed an enterprise in which 
 the firm has been engaged, so that a substantial benefit is re- 
 ceived from his efforts. The amount of compensation will vary 
 according to the state of the accounts, the nature of the busi- 
 ness, the difficulty and results of the undertaking, and its 
 necessity or desirability.^^ While it is true, that compensation 
 will ordinarily be denied to a surviving partner in the absence 
 of an agreement therefor, yet an agreement will sometimes be 
 implied where the services are extraordinary and unusual, and 
 such as could not reasonably have been contemplated.*** 
 
 35— Brownell v. Steere, 128 111. 38—17 Am. & Eng. Ency. of 
 
 209; Parsons on Partnership, sec." Law, pp. 1154, 1183; 2 Lindley on 
 
 155; Maynard v. Richards, 166 111. Partnership, sec. 346; Bates on 
 
 480. Partnership, sec. 773. Maynard v. 
 
 36— Lewis v. Moffatt, 11 111. 392; Richards, 166 111. 481. 
 Maynard v. Richards, 166 111. 480. 
 
 37-17 Am. & Eng. Ency. of ^9-2 Bates on Partnership, sec. 
 
 Law, p. 1183; Bates on Partner- ^^=^= ^J ^^- ^ ^°S- ^^^^^ "^ ^^^' 
 
 ■ship, sees. 771, 772; Colier on P- ^^^''• 
 
 Partnership, sec. 199; Parsons on 40 — 2 Bates on Partnership, sec. 
 
 Partnership, sees. 346, 155 and 777, and authorities cited from 
 
 note C; Maynard v. Richards, 166. many States by the other in notes. 
 111. 480.
 
 CHAPTER XXVII 
 
 SALE OF PERSONAL PROPERTY 
 
 Sec. 
 
 526. Title vests in executor or ad- 
 
 ministrator by virtue of of- 
 fice. 
 
 527. Sale of personal property — 
 
 Private and public sale. 
 
 528. What title passes. 
 
 529. Neglect to take security. 
 
 530. Miscellaneous. 
 
 531. Distribution in kind, under 
 
 will. 
 
 532. Distribution in kind, prop- 
 
 erty preserved. 
 
 533. Growing crops. 
 
 534. Growing crops personal prop- 
 
 erty between executor and 
 heir. 
 
 Sec. 
 
 535. Clerks may be employed, also 
 
 crier or auctioneer, fees. 
 
 536. Bill of sale to purchaser, re- 
 
 turn by administrator. 
 
 537. Compounding and sale of des- 
 
 perate and doubtful claims. 
 
 538. Administrator has power to 
 
 settle claim in favor of es- 
 tate. 
 
 539. Avails of desperate claims 
 
 compounded or sold. 
 
 540. Sale of claims not due. 
 
 541. Power of executor or admin- 
 
 istrator under this section. 
 
 542. Conveyance to executrix for 
 
 debts to testator. 
 
 Sec. 526. Title of personal property vests in executor or 
 administrator by virtue of their office. Executors and ad- 
 ministrators so long as they retain their respective offices, are 
 the sole representatives of the personal estate of the deceased.* 
 Property of a decedent coming from a foreign jurisdiction into 
 that of the domicile, immediately vests in the administrator 
 there, if administration has not been taken out in such foreign 
 jurisdiction.^ Where personal property of a decedent came 
 within the state of Illinois in transitu, it was held, an adminis- 
 trator could maintain trover and treat the property as assets 
 of the estate.^ The following rule laid down by Story 's Conflict 
 
 1— Gold V. Bailey, 44 111. 491; National Bank v. Gage, 93 111. 172; 
 
 York v, York, 38 111. 523; Make- People v. Brooks, 123 111. 246. 
 peace v. Moore, 5 Gillm. (111.) 474; 2— Wells v. Miller, 45 111. 382. 
 Wells V. Miller, 45 111. 382; First 3— Wells v. Miller, 45 111. 382. 
 
 439
 
 440 THE LAW OP ESTATES. 
 
 of Laws gives the doctrine as settled in most of the states of 
 the Union. "Indeed, as the author says, according to the com- 
 mon course of commercial business, ships and cargoes, and the 
 proceeds thereof, locally situate in a foreign country at the 
 time of the death of the owner, always proceed on their voyages 
 and return to the home port, without any suspicion that all 
 the parties concerned are not legally entitled so to act; and 
 they are taken possession of and administered by the adminis- 
 trator of the forum domicilii, with the constant persuasion that 
 he may not only rightfully do so, but that he is bound to ad- 
 minister them as a part of the funds appropriately in his hands. 
 A different course of administration would be attended with, 
 almost inextricable difficulties, and would involve this extraor- 
 dinary result, that all the personal property of the deceased 
 must be deemed to have a fixed situs where it was at the moment 
 of his death, and if removed from it must be returned thither 
 for the purpose of a due administration."^ It will be found 
 on an examination of the cases, that the rule is quite general 
 and the courts hold, there is no unbending rule in regard to 
 property having a fixed situs; the jurisdiction during admin- 
 istration of an estate is left to depend largely upon what may 
 be required for the attainment of justice in each case as it 
 arises. It is held, the lien a judgment creditor gets by virtue 
 of the commencement of an equitable suit, survives the death 
 of the debtor, and that his property then passes 1» his personal 
 legal representatives charged with the lien; the debts of the 
 decedent to be paid out of the assets, after the lien, like any 
 other legal lien, has been first satisfied,^ Our statute of de- 
 scent, being substantially as it is now, since the organization 
 of the State government, has never been thought to prevent 
 administrators taking title in trust to the personal property; 
 the language of the statute does not contemplate that personal 
 property shall descend to, or be distributed to, the heirs-at- 
 
 4 — Story's Conflict of Laws, 5 — First National Bank v. Gage, 
 sec. 520. 93 111. 172.
 
 SALE OF PERSONAL PROPERTY. 441 
 
 law, until after all just claims and debts are paid.^ An ad- 
 ministrator has the legal title to the personal estate, as trus- 
 tee, for the payment of debts ; but when the debts are paid the 
 residue belongs to the heirs-at-lawJ 
 
 527. Sale of personal property — public sale — private sale. 
 
 "When it is necessary for the proper administration of the 
 estate, the executor or administrator shall, as soon as conve- 
 nient, after making the inventor}^ and appraisement, sell at 
 public sale all the personal property, goods and chattels of the 
 decedent, when ordered to do so by the county court (not re- 
 served to the widow, or included in specific legacies and be- 
 quests, when the sale of such legacies and bequests is not neces- 
 sary to pay debts), upon giving three weeks' notice of the time 
 and place of such sale, by at least four advertisements, set up 
 in the most public places in the county where the sale is to be 
 made, or by inserting an advertisement in some newspaper pub- 
 lished in the county where the sale is to be made, at least four 
 weeks successively, previous thereto. The sale may be upon 
 a credit of not less than six nor more than twelve months 
 time, by taking note with good security of the purchasers at 
 such sale. The sale may be for all cash, or part cash and part 
 on time: Provided, that any part or all of such personal prop- 
 erty may, where so directed by the court, be sold at private 
 sale. "8 It is absolutely necessary when proceeding under this 
 section of the statute, that it be followed closely; it confers the 
 
 6— People V. Brooks, 123 111. 246. ary 9, 1874. Section 91, chapter 3. 
 
 7 — Thornton v. Mehrig, 117 111. "Administration of Estates." Starr 
 55. See also section 1, chapter 39, & Curtis Annotated Statutes of II- 
 "Descent." Starr & Curtis Anno- linois, with Jones & Addington's 
 tated Statutes of Illinois, with Supplements thereto, Vol. 1, p. 
 Jones & Addington's Supplements 319; Vol. 4, p. 41, and cases cited 
 thereto, Vol. 2, pp. 1426, 1427; Vol. under section of statute in each 
 4, p. 437; and cases cited under volume; Kurd's R. S. of 111., 1905, 
 section of statute in question in p. 120. See also section 44, chap- 
 each volume; Kurd's R. S. of 111. ter 41. "Dower." Starr & Curtis 
 1905, p. 763. Statutes, etc.. Vol. 2, p. 1479, and 
 
 8 — As amended by act of Febru- cases cited under section; Kurd's 
 
 R. S. 1905, p. 772.
 
 442 THE LAW OF ESTATES. 
 
 power, and it directs how that power shall be exercised, there 
 being no room for discretion.^ The statute regarding private 
 sales is an extraordinary provision in derogation of the com- 
 mon law, and should be strictly construed. The general rule 
 of construction applied to statutes like the one in question, 
 where it appears, two clauses of the statute are parts of the 
 same section, inseparably connected with and necessarily de- 
 pendent on each other, is, they should be construed one part 
 by the other.^*^ This rule was applied in Bawen v. Shay,^^ 
 when the same section of the statute was construed: Mr. 
 Justice Craig, speaking for the court, said: "The statute re- 
 quires an administrator to sell the personal property belonging 
 to the estate at public sale in all cases, unless otherwise ordered 
 by the court, — in other words, the statute confers power on the 
 probate court, for good cause shown, to order a portion or all 
 of the personal property sold at private sale./ But the statute 
 does not confer power on the probate court to direct in the 
 order that the property may be sold on credit, without security. 
 The power conferred on the probate court is merely to order or 
 decree a private sale in the place of a public sale, — in all other 
 respects the law regulating a public sale of property by an ad- 
 ministrator remains in full force and effect, applicable to all 
 sales, private as well as public. The probate court has no 
 more supervision over a private sale than it has over a public 
 sale, and hence the same responsibility rests on the adminis- 
 trator to get as good security in the one case as it does in the 
 other. The words ''provided, that any part or all of such per- 
 sonal property may, where so directed by the court, be sold 
 at private sale," were added to the section as an amendment, 
 by the legislature, in 1874, and as the amendment contains no 
 expression which would lead to the conclusion that a private 
 sale upon credit was authorized without security, we think it 
 
 9— Hall V. Irwin, 2 Gill (111.) 10— Moore v. Hamilton, 2 Gill 
 184; Moore v. Hamilton, 2 Gill (111.) 429. 
 (111.) 429. 11— Bowen v. Shay, 105 111. 137.
 
 SALE OF PERSONAL PROPERTY. 443 
 
 plain that the legislature intended that these sales, when or- 
 dered, should be made with security precisely as public sales 
 are made. The same reason that i^equires security in the one 
 case demands it in the other. 
 
 528. What title passes. The general principle is fully es- 
 tablished that upon all judicial sales the rule of caveat emptor 
 applies.^- The same rule applies in equity as in law.^^ Also 
 upon sales by executors and administrators.^* But if an ad- 
 ministrator takes upon himself to warrant personal property 
 sold by him, the maker of a note given for such property may 
 show failure of consideration under the warranty.^^ But it 
 appears that no direct remedy lies against the administrator in 
 equity. The purchaser's remedy, if any, is at law, for a fail- 
 ure of consideration, when sued on his notes for the purchase 
 money.i^ 
 
 529. Neglect to take security. In the case of Bowen v. 
 Shayy^ the record shows the order of the probate court pre- 
 scribed no conditions whatever in regard to the sale, nor did 
 it impose any restrictions. The order merely authorized a pri- 
 vate sale, leaving the administrator to be governed by the stat- 
 ute in making the sale. A loss to the estate of $7,019.58 was 
 sustained chargeable to the failure of the administrator under 
 the order noted for private sale to take security, the court hold- 
 ing: Had the administrator followed the statute, and in malt- 
 ing the sale required good security, he could have been charge- 
 able with no loss; but as he has neglected a plain requirement 
 of the statute, and the estate has sustained a serious loss through 
 his negligence it is but right that the loss should fall upon the 
 one who has been to blame. Where an administrator was sued 
 
 12— McManus v. Keith, 49 111. 14— Bond v. Ramsey, 89 111. 29; 
 388; Bassett v. Lockwood, 60 111. Tilley v. Bridges, 105 111. 336. 
 
 164; Bishop V. O'Connor. 69 111. i5_welch v. Hoyt. 24 111. 118. 
 431; Tilley v. Bridges, 105 111. 336; 
 
 Brandon v. Brown, 106 111. 519. 16— Wing v. Dodge, 80 111. 564. 
 
 13— Holmes v. Shaver, 78 111. 17—105 111. 132. 
 
 578.
 
 444 THE LAW OF ESTATES. 
 
 upon his ofQcial bond, it was held: On the sale of property 
 belonging to the estate, where the administrator received the 
 notes of the purchasei-s with security, and it resulted that the 
 principals and sui'eties were insolvent, this will show prima 
 facie, that the administrator had neglected his duty, and was 
 guilty of a dcvastavit.^^ 
 
 530. Miscellaneous. A bill was filed in the United States 
 Circuit court, seeking the disposition and control of certain 
 stock claimed to be a specific legacy; the will bequeathing the 
 legacy being admitted to probate, and the estate of the deceased 
 at the time the bill was filed, was as a matter of fact, being 
 administered in the county court: In the case cited and upon 
 the showing made, the federal court dismissed the bill for want 
 of equity, holding, the probate court administering the estate, 
 has ample power to protect all interests in due course; and 
 that that court was the proper court in which to seek the liti- 
 gation sought by the bill filed.^^ It appears an executor paid 
 or attempted to pay a specific legacy made by the testator in his 
 will, by the transfer to the legatee of a certificate of deposit 
 belonging to the estate, which was accepted by the legatee and 
 his receipt given therefor; soon after the assignment of the 
 certificate, and on presentation thereof for payment, the maker 
 thereof became insolvent and defaulted. Held: the transac- 
 tion was unauthorized and void, and such receipt was also void. 
 That recovery in such case could be had against the administra- 
 tor personally on his bond.20 Where the administrator is found 
 guilty of a devastavit, the right to sue on bond follows at once.^^ 
 The record shows the surviving partner, under the law binding 
 him to make settlement of the firm affairs, to ascertain the in- 
 terest of the deceased partner, purchased from the administra- 
 trix, the interest of the deceased partner and assumed the debts 
 
 18— Curry v. People, 54 111. 263. 20— Graff enried v. Kundert, 34 
 19— Wanneker v. Hichcock, 38 111. App. 483. 
 Fed. Reptr. 383. 21— Curry v. People, 54 111. 263; 
 
 Haslet V. Haslet, 8 111. App. 22.
 
 SALE OF PERSONAL PROPERTY. 445 
 
 shown by the books and papers of the firm. After this settle- 
 ment and purchase the surviving partner, brought forth and 
 filed a claim against the deceased partner's estate, which he 
 claimed to have discovered subsequent to the settlement and 
 purchase by him of the deceased partner's interest in the firm, 
 and which appeared on the books of the firm. Held : The sale by 
 the administratrix of the interest of the deceased partner in the 
 firm, transferred such interest as the estate had in the firm, 
 which could only be ascertained by the settlement of the partner- 
 ship accounts, and when such sale was made and the valuation 
 determined as to the interest of the estate, the presumption is, 
 that there was an adjustment of the accounts of the deceased 
 member at the time, and that all accounts were taken into con- 
 sideration.22 
 
 531. Distribution in kind under will. "If any testator 
 directs that his estate shall not be sold, the same shall be pre- 
 served in kind, and distributed accordingly, unless such sale 
 becomes absolutely necessary for the payment of debts and 
 charges against the estate of such testator."'^ 
 
 532. Distribution in kind by order of court. '*If the sale 
 of the personal property is not necessary for the payment of 
 debts or legacies, or the proper distribution of the effects of the 
 estate, the court may order that the property be preserved and 
 distributed in kind. "^^ In Waterman v. Alden,^^ this section of 
 
 22 — Hamilton v. Wells, adm'r. Supplements thereto. Vol. 1, p. 
 
 182 111. 144. And see the follow- 320; Vol. 4, p. 41, and cases cited 
 
 Ing cases in supporting the doc- under section of statute in each 
 
 trine of that case: Norman v. volume; Kurd's R. S. of 111., 1905, 
 
 ;Hudleston, 64 111. 11; Over v. same section and chapter, p. 120; 
 
 Harrington, 66 Ind. 365; Thomp- see also Starett v. Keating, 61 111. 
 
 son V. Love, 111 Ind. 272; Clark App. 196. 
 
 V. Carr, 45 111. App. 469; Bald- 24— Section 93, chapter 3, "Ad- 
 win V. Ball, 48 N. Y. 673. ministration of Estates." Starr & 
 
 23 — Section 92, chapter 3, "Ad- Curtis Annotated Statutes of lUi- 
 
 ministration of Estates." Starr & nois. Vol. 1, p. 320, and cases cited 
 
 Curtis Annotated Statutes of Illi- under section of statute; Kurd's 
 
 nois, with Jones & Addington's R. S. of III., 1905, p. 120. 
 
 25—115 111. 86.
 
 446 THE LAW OF ESTATES. 
 
 the statute was construed, it being held, that which the court 
 may order to be "preserved and distributed in kind" is "per- 
 sonal property" the "sale of which is not necessary" for the 
 settlement of the estate, or the payment of debts or legacies. The 
 statute has made no provision for selling notes or accounts, ex- 
 cept such as may be "doubtful" or "desperate." No provision 
 is made for selling credits that are readily collectible, and no 
 such practice has ever obtained, for the simple reason no neces- 
 sity for so doing ever existed. Of course, notes and other evi- 
 dence of indebtedness may be classed as "personal property," 
 but they are evidently not that kind of "personal property" the 
 statute contemplates may be sold for the payment of debts or 
 legacies, or the proper distribution of the effects of the estate 
 and which the court may order to be preserved and distributed 
 in kind. If the estate consisted of stocks which are not collect- 
 ible, and which can only be realized upon by a sale, or of govern- 
 ment securities that would not come due in many years, or notes 
 or bonds amply secured on real estate, and which are of equal 
 value, the sale of which is not necessary for the administration 
 of the estate, the court, no doubt, in the exercise of a sound dis- 
 cretion, with which it is clothed by the statute in such matters, 
 might order such stocks or securities to be preserved and dis- 
 tributed in kind. And it seems to be settled in the case cited, 
 that parties in interest may agree upon a division of the as- 
 sets, such as choses in action, some of which are "good," some 
 "doubtful," and others "desperate," when such are not re- 
 quired to pay debts. But they cannot ask the court to make 
 such division, for the court cannot compel a division of such, for 
 the reason, it cannot determine what is good and what is not, 
 so as to enable the court to make equal and just division. Any 
 attempt to do so, it is held, would involve the estate in inex- 
 tricable difficulties. 
 
 533. Growing crops. Section 94 of the "Administration 
 
 Act" provides: "If any executor or administrator is of opin- 
 ion that it would be of advantage to the estate of the decedent
 
 SALE OF PERSONAL PROPERTY. 447 
 
 to dispose of the crop growing, and not devised at the time of 
 his decease, the same shall be inventoried, appraised and sold, 
 in like manner as other personal property; but the executor or 
 administrator may, if he believes it would be of more advan- 
 tage to the estate, cultivate such crop to maturity, and the pro- 
 ceeds of such crop, after deducting all necessary expenses for 
 cultivating, gathering and making sale of the same, shall be 
 assets in his hands, and subject to the payment of debts and 
 legacies, and to distribution as aforesaid.^^ 
 
 534. Growing crops personal property between executor 
 and heir, etc. As between landlord and tenant, between 
 debtor and creditor, and under our statute, as between the 
 executor and heir, growing crops are personal property. But 
 between a trespasser and the owner of the soil, and a vendor 
 and vendee, they are real estate. And it has been uniformly 
 held, that, by a conveyance of land, without a reservation in. 
 a deed, the crops and all thing's depending upon the soil for 
 sustenance, belong to and pass with the land.^' After the crops 
 have been matured, however, it is otherwise, but until they 
 are matured, they constitute such an interest in real estate, 
 as to bring them within the statute of frauds. And to pass by 
 a sale by the owner of the soil, it must be evidenced by a writ- 
 ten agreement; or if reserved from the operation of a convey- 
 ance, it must also be in writing.^^ Under section 94, the ad- 
 ministrator is expressly authorized to do what he did in this 
 case, viz.: as administrator of his father's estate he sold the 
 growing crops as other personal property, and applied the pro- 
 ceeds toward the payment of the decedent's indebtedness.^^ 
 
 26— Section 94, chapter 3, "Ad- 27— Powell v. Rich, 41 111. 466. 
 
 ministration of Estates." Starr & 28-Smith v. Price, 39 111. 28; 
 
 Curtis Annotated Statutes of Illi- j^.^^^ ^ Nichols, 39 111. 372. 
 nois, Vol. 1, p. 321, and cases 
 
 cited under this section; Kurd's 29 — Cheeney v. Roodhouse, 32 
 
 R. S. of 111., 1905, same section 111. App. 49. 
 and chapter, p. 120.
 
 448 THE LAW OF ESTATES. 
 
 535. Clerk may be employed — also crier or auctioneer — 
 fees of same. "In all public sales of such property the ex- 
 ecutor or administrator may employ necessary clerks, who shall 
 receive such compensation as the court may deem reasonable 
 for their services, not exceeding five dollars per day, and also 
 a crier or auctioneer who shall receive such compensation as the 
 court may deem reasonable, not exceeding ten doUai's per day, 
 to be paid by such executor or administrator and charged to the 
 estate. "30 
 
 536. Bill of sale to purchaser — ^return of sale by 
 administrator. "All executors and administrators shall, im- 
 mediately after making such sales, make, or cause to be made, 
 a bill of the sales of said estate, under oath, describing par- 
 ticularly each article of property sold, to whom sold, and at 
 what price; which sale bill, when thus made and certified by 
 the clerk of such sale and the crier thereof, if any such was 
 employed, as true and correct, shall be returned into the office 
 of the clerk of the county court in the like time as is required 
 in cases of inventories and appraisements."^^ 
 
 537. Compounding and sale of desperate and doubtful 
 claims. "Upon suggestion made by an executor or administra- 
 tor to the county court, that any claim, debt or demand what- 
 ever belonging to the estate in his hands to be administered, 
 and accruing in the life-time of the decedent, is desperate on 
 account of the insolvency or doubtful solvency of the person or 
 persons owing the same, or on account of the debtor having 
 availed himself of the bankrupt law of the United States, or 
 on account of some legal or equitable defense which such per- 
 
 30— As amended by act ap- 31— R. S. 1845, p. 557, sec. 99; 
 
 proved June 18, 1891. In force section 96, chapter 3, "Adminis- 
 
 July 1, 1891. Section 95, chapter tration of Estates." Starr & Cur- 
 
 3, "Administration of Estates." tis Annotated Statutes of Illinois, 
 
 Starr & Curtis Annotated Statutes Vol 1. p. 321; Kurd's R. S. of 111., 
 
 of Illinois, Vol. 1, p. 321; Kurd's 1905, p. 120. 
 R. S. of 111., 1905, p. 120.
 
 SALE OF PERSONAL PROPERTY, 449 
 
 son or persons may allege against the same, or for the cause 
 that the smallness of such claim, debt or demand, and the diffi- 
 culty of finding the debtors, owing to the remoteness of their 
 residence, or such executor's or administrator's ignorance of 
 the same, the said court may order such claim, debt or demand 
 to be compounded or sold, or to be filed in the said court, for 
 the benefit of such of the heirs, devisees or creditors of such 
 decedent as will sue for and recover the same, giving the cred- 
 itors the preference, if they or any of them apply for the same 
 before the final settlement of such estate; Provided, that no 
 order for the sale or compounding of any such debts, claims or 
 demands, or any of them, shall be made until two weeks' public 
 notice shall have been given, to all whom it may concern, of the 
 time and place when the said order will be applied for — which 
 notice shall be given by the administrator or executor, in a 
 newspaper published in the county where such application is 
 to be made, or if no such newspaper is published in such county, 
 then by posting up such notices in not less than three public 
 places in the county, of which one shall be at the office of the 
 clerk of the county court — which notice shall be so posted at 
 least two weeks previous to the time of said application. The 
 executor or administrator shall report to the said county court, 
 for its approval, the terms upon which he has settled or dis- 
 posed of any such claim, debt or demand.^^ 
 
 538. Administrator has power to settle claim in favcr 
 
 of estate. An administrator has full power and competent 
 authority to settle a claim in favor of the estate he represents, 
 and if done in good faith, his action cannot be called in ques- 
 tion by a subsequent administrator.^^ And it is also held that 
 under section 83 of the statute {ante 537), an administrator 
 has the power to compromise a suit against a railroad company 
 
 32 — ^R. S. 1845, p. 595, sec. 1. Vol. 1, p. 316, and cases cited un- 
 
 Section 83, chapter 3, "Adminis- der this section; Kurd's R. S. of 
 
 tration of Estates." Starr & Cur- 111., 1905, p. 118. 
 
 tis Annotated Statutes of Illinois, 33 — Short v. Johnson, 25 111. 405. 
 29
 
 450 THE LAW OF ESTATES. 
 
 for the wrongful death of intestate, without the order of the 
 probate court.^* A suit upon a promissory note, in which the 
 limitation acts of 1849 and 1872 were construed, it is held, 
 under the general rule of construction, that "rights or lia- 
 bilities" in futuro only are not to be construed to affect 
 past transactions.^^ It appears from the record that the 
 executor instead of collecting the note in question in a 
 compromise or settlement exchanged it for other property, 
 and it was held: In the absence of any direction by will, 
 an executor's duty is to collect notes given to- the testator, in 
 money. He has no authority to exchange the same for other 
 property. The defendant executor pleaded the note was given 
 for $500 of money loaned by the payee to a Masonic lodge, and 
 that said lodge paid divers sums of money on the note, and 
 after the death of the payee, the plaintiff (the executor of the 
 deceased payee), received from said lodge, in payment of the 
 note, other property of the value of $1,400: Held, the plea 
 was palpably bad, and presented no defense.^^ 
 
 539. Avails of desperate claims compounded or sold. ''And 
 if such claim is compounded or sold, such executor or 
 administrator shall be chargeable with the avails of such com- 
 pounding, and if the same is taken by any of the creditors, 
 heirs or devisees, he or they may maintain an action for the 
 recovery thereof, in the name of such executor or administra- 
 tor, for the use hereinafter mentioned; and upon recovering 
 the same, or any part thereof, he or they shall be chargeable 
 therewith, after deducting his claim or distributive share, with 
 reasonable compensation for collecting the same; and upon 
 such suits the executor or administrator shall not be liable for 
 costs."" 
 
 34 — Washington v. Land and N. 37 — Laws of 1845, p. 505, sec. 2. 
 
 R. Co., 34 111. App. 658. Section 84, chapter 3, "Adminis- 
 
 35 — Means v. Harrison, 114 111. tration of Estates." Starr & Cur- 
 
 248. tis Annotated Statutes of Illinois, 
 
 36— Means v. Harrison, 114 111. Vol. 1, p. 316; Kurd's R. S. of 111., 
 
 248. 1905, p. 119.
 
 SALE OF PERSONAL PROPERTY. 451 
 
 540. Sale of claims not due. "The county court may 
 order claims, debts and demands, due at so remote a period as 
 to prevent their collection within the time required for the 
 final settlement of estates, and the collection or disposition of 
 which is necessary to the payment of the debts against the 
 estate, to be compounded or sold in the same manner and upon 
 like conditions as though such claims, debts or demands were 
 desperate or doubtful ; Provided, that no such claim, debt or 
 demand shall be sold or compounded for less than ten per cent 
 below the value thereof. "^^ 
 
 541. Power of executor or administrator under this 
 section. An administrator may legally sell and transfer, at 
 a discount, negotiable paper, taken for the estate, before it 
 falls due; and allowance to the assignee of such paper and 
 payment thereof, within a year of taking out letters, is good, 
 provided all the transaction was in good faith.^^ Executors 
 and administrator may assign notes made to the testator or 
 intestate, as well as those made to themselves.^*^ So where the 
 deceased had agreed to transfer a note, his executors or admin- 
 istrators may be compelled to endorse it, though without per- 
 sonal liability on their part.*^ 
 
 542. Conveyance to executrix for debts to testator. It 
 
 is held from the facts in the case, that a conveyance to a per- 
 son who is an executrix, passes to her the fee, and she may sell 
 and dispose of the land, although received in satisfaction of a 
 debt due her testator. And, having exchanged the land thus 
 received with one of the heirs of testator for land of equal 
 value, which he had inherited from his father, and she having 
 conveyed these lands received from the heir to the other heirs, 
 
 38— Laws of 1851, p. 556, sec. 39— Walker v. Craig, 18 III. 116. 
 
 94. Section 85, chapter 3, "Ad- 40 — Story on Promissory Notes, 
 
 ministration of Estates." Starr & p. 139, sec. 123; Makepeace v. 
 
 Curtis Annotated Statutes of lUi- Moore, 5 Gill (111.) 476; Walter 
 
 nois. Vol. 1, p. 317; Kurd's R. S. v. Kirk, 14 111. 56; Dwight v. New- 
 
 of 111., 1905, p. 119. ell, 15 111. 335. 
 
 41— Walker v. Craig, IS 111. 116.
 
 452 
 
 THE LAW OF ESTATES. 
 
 she must be held to have accounted for the proceeds of the 
 original debt, and the lands conveyed by her in exchange for 
 the others cannot be regarded as being held in trust for the 
 benefit of the heirs."* 2 
 
 42— Greer v. Walker, 42 111. 401. 
 la this case there are no author- 
 ities cited, the case being decided 
 on the facts of record establishing 
 the law of the case announced. It 
 appears the executrix had reported 
 a large amount of assets with 
 which she was charged, and had 
 
 accounted for a greater sum, and 
 it was held, in such case, a pre- 
 sumption will be indulged, in the 
 absence of proof, that the debts 
 for which the property conveyed 
 to her was received of the debtor 
 was reported and accounted for in 
 her settlement with the probate 
 court.
 
 CHAPTER XXVITI 
 
 EXECUTOR'S SALE OF REAL ESTATE UNDER WILL 
 
 Sec. 
 
 543. Powers of executors in the 
 
 sale of land. Such charge- 
 able with all real and per- 
 sonal estate coming to their 
 hands. 
 
 544. Sale of real estate under will 
 
 surviving executor. 
 
 545. Executor must qualify in or- 
 
 der to exercise power of 
 sale. 
 
 546. Administrator with the will 
 
 Sec. 
 
 annexed must apply to 
 chancery to sell land in will. 
 
 547. Death of sole executor, power 
 
 conferred on administrator 
 appointed. 
 
 548. Revocation of letters — death 
 
 or disqualification of execu- 
 tor or administrator, etc. 
 
 549. Bond of former executor, etc., 
 
 liability. 
 
 550. Resignation of executor or ad- 
 
 ministrator — settlement. 
 
 Sec. 543. Powers of executors and administrators in 
 the sale of land. The executor acts under the power con- 
 ferred by will, if any there be; such officer also obtains powers 
 under the statute law of the state, and when such law controls 
 his acts he must follow the law faithfully. The administrator 
 is purely a creature of the statute of the state in which he 
 acts; therefore, all his powers of necessity come from that law. 
 In Illinois and many other states the common law is in force, 
 where such is not changed or modified by statutory enactments. 
 If an executor nominated by will, accept the office as such, 
 and has in reality no power conferred by the will, the law 
 designates him a naked executor, and as such he is as much a 
 creature of the law as an administrator; and he has no more 
 or greater power than an administrator. The legal distinction 
 being, the executor administers an estate under the testator's 
 will, the administrator, an estate of a person dying without a 
 will, and as the law which creates him directs. On the other 
 hand, if the will confers power upon the executor to sell, mort* 
 
 453
 
 454 THE LAW OP ESTATES. 
 
 gage, rent and manage the estate of the testator, such have 
 powers conferred upon them by the will of a deceased person, 
 far superior to that of administrators; as a general rule courts 
 seldom interfere with the executor exercising the power con- 
 ferred by will, unless the abuse of such power becomes apparent. 
 This power conferred by will upon an executor when it conforms 
 to and is recognized by law cannot be transferred to an adminis- 
 trator with the will annexed.^ The title to real estate, where 
 the will so provides vests in the executor or trustee, while the 
 title to real estate of an intestate or one dying without will, 
 vests eo instanter, in the heirs-at-law, and no other person is 
 seized thereof for any purpose, or authorized to exercise any 
 act of ownership over it, save in the case of a guardian over the 
 estate of his ward.^ The statute of IlUinois gives tke executor 
 and administrator the right to redeem real estate from sales 
 under judgments and decrees, but they are also given much 
 latitude in the exercise of a reasonable discretion in such mat- 
 ters; their duty to redeem depending largely upon the circum- 
 stances of each particular case as it may arise; such, however, 
 are expected to exercise the power, when the best interest of the 
 estate demands they should redeem the real estate from any 
 judgment or decree. On the other hand, where it is apparent 
 the exercise of such power would be detrimental to the best 
 interest of the estate in their hands, they may refuse to redeem.^ 
 The statute directs that executors and administrators shall make 
 out a full and perfect inventory of all such real and personal 
 estate, and the proceeds thereof, as are committed to his super- 
 intendence and management, and as shall come to his hands, 
 possession or knowledge, discribing the quantity, situation and 
 
 1 — Stoff V. McGinn, 178 111. 55. Jones & Addington's Supplements 
 
 2— Stone v. Wood, 16 111. 177; thereto. Vol. 2, pp. 2353, 2358, 
 
 Hopkins V. McCann, 19 111. 113; 2363; Vol. 4, p. 753; Vol. 5, p. 333, 
 
 People V. Brooks, 123 111. 146. and cases cited under sections of 
 
 3 — See sections 18, 19, 20, 21, statutes noted in each volume; 
 
 chapter 77, entitled "Judgments Hurd's R. S. of 111., 1905, same 
 
 and Decrees." Starr & Curtis An- sections and chapter, pp. 1255, 
 
 notated Statutes of Illinois, with 1258.
 
 EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 455 
 
 title of the real estate, etc. The act also provides for addi- 
 tional inventory if after the making of the first inventory, any 
 real or personal estate of deceased come to their possession or 
 knowledge.^ Executors and administrators are chargeable with 
 so much of the estate of the decedent, personal or real, as they, 
 after due and proper diligence, might or shall receive. Thus 
 under the statute of Illinois, w^here the personal estate is not 
 sufficient to pay the just debts proved and allowed real estate 
 will be sold for that purpose when the personalty has been 
 exhausted.^ 
 
 544. Sale of real estate under will — surviving executor. ' ' In 
 
 all cases, where power is given in any will to sell and dispose of 
 any real estate, or interest therein, and the same is sold and 
 disposed of in the manner and by the persons appointed in such 
 will, the sale shall be good and valid; and where one or more 
 executors shall fail or refuse to qualify or depart this life before 
 such sales are made, the survivor or survivors shall have the 
 same power and their sales shall be as good and valid as if they 
 all joined in such sales. "^ 
 
 545. Executors must qualify in order to exercise power of 
 sale. Executors who fail or refuse to qualify and take out let- 
 ters testamentary cannot exercise a power given them by the will 
 to sell real estate of the testator, and thereby bind the heirs or 
 devisees."^ Section 97 of the Administration act has been con- 
 strued and given effect. It is held, this provision of the statute 
 is substantially the same as section 93 of chapter 109 of the 
 
 4 — Sections 51, 52, chapter 3, 6 — Section 97, chapter 3, "Ad- 
 
 "Administration of Estates." Starr ministration of Estates." Starr & 
 
 & Curtis Annotated Statutes of II- Curtis Annotated Statutes of Illi- 
 
 linois. Vol, 1, pp. 289, 290, and nois, with Jones & Addington's 
 
 cases cited. Supplement thereto. Vol. 1, pp. 321, 
 
 5 — Section 58, chapter 3, "Ad- 322; Vol. 4, p. 41, and cases cited 
 
 ministration of Estates." Starr & under section of statute in each 
 
 Curtis Annotated Statutes of Illi- volume; Kurd's R. S. of 111., 1905, 
 
 nois. Vol. 1, p. 292, and authorities p. 121. 
 
 cited under section of statute; 7— Chappell v. McKnight, 108 
 
 Kurd's R. S. of 111., 1905, p. 114. 111. 570.
 
 456 THE LAW OF ESTATES. 
 
 statutes of 1845, except that the latter did not contain the words 
 ''shall fail or refuse to qualify." But at that time the statute 
 21 Henry VIII, chapter 4, was in force in this State, which pro- 
 vided, that, if any or either of the persons, named as executors 
 in the will, shall refuse to act, the right and power should 
 devolve upon those who should qualify, to execute the will, in 
 the same manner, as all could have done.^ It seems to be the 
 settled rule in Illinois that, where power is given, in a will, to 
 several executors to sell real estate, a sale by the executor, who 
 accepts and qualifies is valid, whether the power, conferred by 
 the will, be a mere naked power, or a power coupled with a 
 trust, or whether the power be of a discretionary or mandatory 
 character.^ Where a testator gave all his estate to his widow 
 for her life, and directed that at her death it be disposed of, 
 one-third to the testator's son, one-third to his daughter, A^ 
 for her life, the income to be applied, by her and her husband, 
 to her support, and to the support and education of her four 
 children, and at her death her portion to be divided among her 
 said children as they should, respectively, become of age, and 
 the other third to his daughter, B, for her life, the income to be 
 applied in the same manner as with the other daughter. Testa- 
 tor appointed C, D and E, his executors, and authorized them 
 to sell such portions of his real estate as they might think 
 advantageous, and make proper conveyances. E declined to 
 accept and qualify. C and D qualified, and the widow and D 
 died without any sale of the real estate having been made : 
 Held, that C, the sole surviving executor, had full power to sell 
 and convey any of the lands of the testator in the State of 
 Illinois.io 
 
 8 — Ely V. Dix, 118 111. 477. been created has been accom- 
 
 9 — Clienfelter v. Ayers, 16 111. plished, or has become impossible, 
 
 329; Phalman, ex'r, v. Smith, 23 or unattainable, the power itself 
 
 111. 448; Wardwell v. McDowell, 31 will cease to exist. See Taylor v. 
 
 111. 364. Smith, 21 111. 296. In the Ely 
 
 10 — Ely V. Dix, 118 111. 477. In v. Dix case, a distinction is made 
 
 this case, it was held that when between the doctrine applied in 
 
 the object for which a power has the Taylor v. Smith case, the doc-
 
 EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 457 
 
 546, Administrator with will annexed must apply to chan- 
 cery to sell land in will. An administrator with the will an- 
 nexed is not authorized to make a sale of land by virtue of the 
 will ; such a power in the will is held to be a personal trust and 
 confidence reposed by the testator in the executor, and so it is 
 held, without the aid of a court of chance ly an administrator 
 de bonis nan or with the will annexed, cannot sell the lands de- 
 vised to such executor.ii But in line with his duty as such 
 administrator, he may properly apply to a court of chancery 
 to appoint trustees to sell land directed to be sold in a will.^^ 
 
 547. Death of sole executor — power conferred on adminis- 
 trator appointed. "When a sole or surviving executor or ad- 
 ministrator dies without having fully administered the estate, if 
 there is personal property not administered, or are debts due 
 from the estate, or is anything remaining to be performed in 
 the execution of the will, the county court shall grant letters of 
 administration with the will annexed, or otherwise, as the case 
 may require, to some suitable person, to administer the estate 
 of the deceased not already administered, and the securities on 
 the bond of such deceased administrator shall be liable on the 
 same to such subsequent administrator or to any other person 
 aggrieved for any mismanagement of the estate committed to his 
 care, and such subsequent administrator may have and maintain 
 all necessary and proper actions against the securities of such 
 formeo* executor or administrator for all such goods, chattels, 
 
 trine of that case not applying, such purpose lands may be sold, 
 
 where under construction of the and the money derived from such 
 
 will, it directs or implies by the sale invested to create an income 
 
 language used, that he intends a that will give effect to the inteu- 
 
 fund to be created for the sup- tion of the testator, 
 port and education of his chil- 11 — Hall v. Irwin, 2 Gilm. (111.) 
 
 dren, grand-children or others; 176; Nicoll v. Scott, 99 111. 528; 
 
 and that such object be accom- Stoff v. McGinn, 178 111. 46. 
 plished after his death. It there- 12 — Wenner v. Thornton, 98 111. 
 
 fore follows that to accomplish 156; Longwirth v. Riggs, 123 111. 
 
 such object an income must be 258; Stoff v. McGinn, 178 111. 55. 
 realized from his estate, and for
 
 458 THE LAW OF ESTATES. 
 
 debts and credits as shall have come to his possession and are 
 withheld or may have been wasted, embezzled or misapplied and 
 no satisfaction made for the same. Provided, that where there 
 is still a surviving executor or administrator he may proceed to 
 administer the estate unless otherwise provided.^ ^ A will nomi- 
 nated the testator's wife executrix, and as such she qualified and 
 acted. The provision of the will being that upon the death of 
 the testator's wife, K should succeed his wife as executor, and 
 should "dispose of my real and personal property to the best 
 advantage, as he sees fit, and make distribution according to the 
 provisions of the will and testament after the death of my wife, 
 Sarah, as soon as possible." Held, the plan and purpose of the 
 testator was that some one should act as executor after the death 
 of his wife, Sarah. The rules laid down by eminent text writer 
 cited in the notes are given, which in substance are to the effect. 
 "Where a testator appoints an executor, and provides that in 
 ease of his death another should be substituted, then on the death 
 of the original executor, although he has proved the will, the ex- 
 ecutor so substituted may be admitted to the office, if it appear to 
 have been the testator's intention that the substitution should 
 take place on the death of the original executor, whether happen- 
 ing in the testator's lifetime or afterwards." Executors may be 
 appointed with separate functions, or to succeed each other in 
 the event that those first named shall die, become incapacitated 
 or unwilling longer to serve, or two persons may be appointed to 
 act for a definite period or during the minority, or during the 
 absence from the country of one appointed executor. It was 
 under the will in question held: The only purpose that could 
 have moved the testator to designate any one to succeed his wife 
 in the office of executor was, "that such successor should take 
 
 13 — As amended by act approved Statutes of Illinois, with Jones & 
 April 1, 1887. In force July 1, Addington's Supplements thereto, 
 1887. Law, 1887, p. 1. Section 37, Vol. 1, p. 284; Vol. 4, p. 34, and 
 chapter 3, "Administration of Es- cases cited under section of stat- 
 tates." Starr & Curtis Annotated ute in each volume; Kurd's R. S. 
 
 of 111., 1905, p. 111.
 
 EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 459 
 
 the property and effects of his estate remaining^ in the hands 
 of his wife as executrix and life tenant, and, as his executor, 
 devote it to the accomplishment of the purpose to which he 
 designated and indicated in his will it should be devoted. "** 
 The duties and powers of an administrator de bonis non, prior 
 to the amendment of section 37 of the Administration Act cited 
 above, were restricted to the administration of the estate of a 
 deceased person not already administered.^^ 
 
 548. Revocation of letters — death or disqualification of ex- 
 ecutor or administrator, etc. "Where the letters of one of sev- 
 eral executors or administrators are revoked, or one or more of 
 the executors or administrators die or become disqualified, after 
 the execution of any will, but before the probate thereof, or 
 one or more of the executors or administrators die or become 
 disqualified after their appointment by the court, the court 
 shall, on petition of the surviving husband, or wife, or next 
 of kin of the testator, or if there are none such, then upon the 
 petition of any of the beneficiaries named in such will, appoint 
 others in their place, and require additional bonds from the 
 new administrator, or administrators; or the survivor, or sur- 
 vivors, or such as shall not have their powers revoked, shall 
 proceed to manage the estate. When the letters of all of them 
 are revoked, or all of such executors or administrators die 
 before final settlement and distribution of the estate, adminis- 
 
 14— Kinney v. Keplinger, 172 III. D.) 458; Despard v. Churchill, 53 
 449. See in support of rules N. Y. 192; Woerner's Am. Law of 
 quoted in that case, Williams on Administration, p. 394. 
 Executors, Vol. 1, pp. 288, 289; 15— Rowan v. Kirkpatrick, 14 
 Lomax on Executors, Vol. 1, p. 111. 1; Kinney v. Keplinger, 172 
 172; Redfield on Wills, Vol. 3, p. 111., pp. 459, 460. It has always 
 72; also the following cases in been the rule that the adminis- 
 support of the rule: Hartnett v. trator of a deceased executor does 
 Wandell, 60 N. Y. 346; Carte v. not succeed to the estate of the 
 Carte, 3 Atk. 174; Pemberton v. deceased executor's testator. Woer- 
 Cooney, Cr. Eliz. 164; the goods of ner's Am. Law of Administration, 
 Wilmot, 2 Roberts 579; In re p. 394; and see also, 2 Black- 
 goods of Langford, L. R. (I. P. & stone's Com. 506; Roanoke Navi- 
 gation Co. V. Green, 3 Dev. L. 434.
 
 460 THE LAW OF ESTATES. 
 
 tration, with the will annexed, or de honis non, shall be granted 
 to the person next entitled thereto: Provided, that in making 
 any appointment under this section, the court shall give prefer- 
 ence to the surviving husband, or wife, or next of kin of the 
 deceased, or beneficiaries named in the will, in the order 
 named. "16 (As amended by act approved and in force March 30, 
 1901; L. 1901, p. 2.) In Penn v. Folgery^ will be found a 
 discussion of the question, whether an administrator cum testa- 
 ment o annexo has power to execute and carry out the provisions 
 of a will in regard to powers and directions therein contained. 
 The court holding : ' ' Executors are often required by the terms 
 of the will, appointing them, to act in a double capacity; first, 
 as executors by virtue of their office; and, second, as agents or 
 trustees under a warrant of attorney." An executor is often 
 charged, not only with the duties and liabilities appertaining to 
 that office, but also with certain duties in the execution of a 
 trust, which is imposed upon him by the will. The general rule 
 is, that the duties and powers of an executor, devolve upon the 
 administrator with the will annexed. But the duties and pow- 
 ers, which are imposed upon an executor as a trustee, are in 
 the nature of a personal trust or confidence reposed in him by 
 the testator, and do not devolve upon the administrator with 
 the will annexed, inasmuch as they cannot be delegated.^^ 
 
 549. Bond of former executor, etc. — liability. ''In all cases 
 where any such executor or administrator shall have his letters 
 revoked, he shall be liable on his bond to such subsequent admin- 
 istrator, or to any other person aggrieved, for any mismanage- 
 ment of the estate committed to his care ; and the subsequent 
 administrator may have and maintain actions against such for- 
 
 16 — As amended by act approved Supplements thereto, Vol. 1, p. 
 
 and in force March 30, 1901. Laws 285; Vol. 4, p. 34, and cases cited 
 
 1901, p. 2. Section 38, chapter 3. under section of statute; Kurd's 
 
 "Administration of Estates." Starr R. S. of 111., 1905, p. 111. 
 
 & Curtis Annotated Statutes of Illi- 17—182 111. 76. 
 
 nois, with Jones & Addington's 18— Hall v. Irwin, 2 Gilm. (111.) 
 
 176; Nicoll v. Scott, 99 111. 529.
 
 EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 461 
 
 mer executor or administrator for all such goods, chattels, debts 
 and credits as shall have come to his possession, and which are 
 withheld or have been wasted, embezzled or misapplied, and no 
 satisfaction made for the same."!*^ Under this section of the 
 statute, the administrator de bonis non is entitled to maintain a 
 suit against the former executor and the sureties on his bond, 
 for the indebtedness of such former executor to the estate on 
 a<ccount of assets received by him and converted to his own use. 
 And in such proceeding averment and proof of demand is not 
 necessary.20 It is a rule of the common law that the powers 
 and the duties of an administrator de bonis non are limited to 
 the administration of such property belonging to the decedent's 
 estate as has not already been administered upon by the former 
 executor or administrator. The conversion of the property of 
 an estate into money by the executor or the administrator, is an 
 administering upon such property, within the meaning of the 
 foregcfing rule. An administrator de boiis non, appointed to fill 
 a vacancy caused by the removal of an executor or administra- 
 tor, may maintain any appropriate action or proceeding against 
 such removed executor or administrator for any waste, mis- 
 management or breach of duty in respect to the estate during 
 the administration of the latter, but not so where the vacancy 
 was caused by death. In such case the heirs, devisees or credi- 
 tors alone can maintain the action.21 
 
 550. Resignation of executor or administrator — settlement. 
 "An executor or administrator may, upon his petition and upon 
 giving such notice to the legatees, devisees or distributees, as the 
 court shall direct, be allowed to resign his trust when it appears 
 
 19— R. S. 1845, p. 552, sec. 75. 20— Nevitt v. Woodburn, 160 111. 
 
 Section 39, chapter 3, "Adminis- 214, 
 
 tration of Estates." Starr & Cur- 21 — Hanifan v. Needles, 108 111. 
 
 tis Annotated Statutes of Illinois, 403; Marsh v. People, 15 111. 284; 
 
 with Jones & Addington's Supple- Duflfin v. Abbott, 48 111. 17; Short 
 
 ments thereto, Vol. 1, p. 285; Vol. v. Johnson, 25 111. 489; Rowan v. 
 
 4, p. 35; Kurd's R. S. of 111., 1905, Kirkpatrick, 14 111. 1; Newhall v. 
 
 p. 111. Turner, 14 111. 338.
 
 462 THE LAW OF ESTATES. 
 
 to the county court to be proper ; and upon such resignation the 
 court shall grant letters of administration, with the will annexed, 
 or de bonis non, to some suitable person, to administer the goods 
 and estate not already administered. But no administrator or 
 executor shall be discharged till he shall have made full settle- 
 ment with the court and complied with its orders, and shall 
 deliver over to his successor all money, chattels and effects of 
 the estate in his hands not paid over according to the orders of 
 the court."-- In Smith v. Smith,^^ this section being under con- 
 sideration, it was held : Gives the county court the power to 
 allow an executor to resign his trust, when it appears to that 
 court to be proper. It is to be presumed that the county court 
 did its duty, and acted upon proper considerations when it 
 accepted such resignation; especially as the sole devisee under 
 the will, consented to such resignation. The matter of the sub- 
 sequent accounting was a matter to be disposed of by the coiinty 
 court. 
 
 22— Laws of 1849, p. 100, sec. 1; cited; Vol. 4, p. 35, and cases 
 
 1853, p. 163, sec. 1. Section 40, cited; Kurd's R. S. of 111., 1905, p. 
 
 chapter 3, "Administration of Es- 111. 
 
 tates." Starr & Curtis Annotated 23—168 111. 494; see also Short 
 
 Statutes of Illinois, with Jones & v. Johnson, 25 111. 489; Marsh v. 
 
 Addington's Supplements thereto, People, 15 111. 284; Davenport v. 
 
 Vol. 1, pp. 285, 286, and cases Reynolds, 6 111. App. 532.
 
 CHAPTER XXIX 
 
 SALE OF REAL ESTATE TO PAY DEBTS 
 
 Sec. Sec. 
 
 551. Sale of real estate to pay 572. 
 
 debts, statute. 
 
 552. Sale of realty coerced, statute. 
 
 553. Mode of commencing proceed- 
 
 ings, petition, parties, stat- 
 ute. 
 
 554. Form of petition, what should 
 
 be set forth, statute. 
 
 555. Practice, the same as in 
 
 chancery cases, statute. 
 
 556. Summons, when returnable, 
 
 statute. 
 
 557. Service of summons, statute. 
 
 558. Notice by publication and 
 
 mail, statute. 
 
 559. Publishing of notice default, 
 
 statute. 
 
 560. Of persons under disability, 
 
 statute. 
 
 561. Hearing, decree of sale, stat- 
 
 ute. 
 
 562. Conveyance, statute. 
 
 563. Sale, time of, notice, penalty, 
 
 terms, return, confirmation, 
 statute. 
 
 564. Proceeds of sale, statute. 
 
 565. Sale of land not fully paid for, 
 
 completing purchase, stat- 
 ute. 
 
 566. Miscellaneous provisions, mis- 
 
 takes, etc., statute. 
 
 567. Contracts of decedent, statute. 
 
 568. Books of account, statute. 
 
 569. Insolvent estate, statute. 
 
 570. Power of court, statute. 
 
 571. Sheriff's duties, fees, statute. 
 
 463 
 
 573. 
 574. 
 
 575. 
 
 576. 
 
 577. 
 
 578. 
 
 579. 
 580. 
 
 581. 
 
 582. 
 
 583. 
 
 584. 
 585. 
 
 Compensation of executors, 
 etc., statute. 
 
 The act construed, statute. 
 
 The early statutes relating to 
 administrators' sales of real 
 estate. 
 
 Lands partly paid for by de- 
 cedent, sale or completion 
 of purchase. 
 
 Relation of administrator to 
 the real estate, rights of 
 heirs. 
 
 Jurisdiction and powers of 
 probate court relating to 
 sale of real estate to pay 
 debts, before act of 1887. 
 
 Jurisdiction and powers of 
 probate courts in such mat- 
 ter since the amendatory act 
 of 1887. 
 
 To give jurisdiction to sell, 
 probate court must find de- 
 ficiency of personal assets. 
 
 Jurisdiction of person and 
 subject matter of suit in 
 such matters. 
 
 Hearing and decree, overplus. 
 
 The homestead and dower 
 rights. 
 
 Service, summons and notice 
 by publication. 
 
 Notice, time and terms of 
 
 sale. 
 The court must confirm the 
 
 sale. The report of sale.
 
 464 THE LAW OF ESTATES. 
 
 Sec. 551. Sale of real estate to pay debts. The Administra- 
 tion Act provides: "When the executor or administrator has 
 made a just and true account of the personal estate and debts 
 to the county court, and it is aycertained that the personal estate 
 of a decedent is insufficient to pay the just claims against his 
 estate, and there is real estate to which such decedent had claim 
 or title, such real estate, or such portion as may be necessary 
 to satisfy the indebtedness of such decedent, and the expenses 
 of administration, may be sold in the manner herein provided. ' ' 
 
 552. Sale of realty coerced. Section 130 of the same chap- 
 ter is as follows: ''Whenever real estate is required to be sold 
 for the payment of debts, the court may make all necessary 
 orders to coerce the executor or administrator to make imme- 
 diate application for an order to sell such real estate, "^ 
 
 553. Mode of commencing proceedings, petition, parties. 
 *'The mode of commencing the proceedings for the sale of real 
 estate in such cases shall be by the filing of a petition by the 
 executor or administrator in the circuit court or the county 
 court of the county where letters testamentary or of adminis- 
 tration were issued. The widow, heirs and devisees of the testa- 
 tor or intestate, and the guardians of any such as are minors, 
 and the conservator of such as have conservators, and all per- 
 sons holding liens, against the real estate described in the peti- 
 tion, or any part thereof, or having or claiming any interest 
 therein in possession or otherwise shall be made parties. If there 
 are persons interested in the premises whose names are not 
 known, then they shall be made parties by the name of unknown 
 owners. ' '^ 
 
 1— Section 98, chapter 3, "Ad- cited; Kurd's R. S. of 111., 1905, 
 
 ministration of Estates." Starr & p. 121. 
 
 Curtis Annotated Statutes of Illi- 2 — As amended by act approved 
 
 nois, with Jones & Addington's June 15, 1887. In force July 1, 
 
 Supplements thereto. Vol. 1, pp. 1887. Laws of 1887, page 3. Sec- 
 
 322, 374, and cases cited under sec- tion 99, chapter 3, "Administration 
 
 tions of statute; Vol. 4, p. 41, and of Estates." Starr & Curtis An- 
 
 cases cited; Vol. 5, p. 19, and cases notated Statutes of Illinois, with
 
 SALE OF REAL ESTATE TO PAY DEBTS. 465 
 
 554. Form of petition — what should be set forth. ''The 
 
 petition shall set forth the facts and circumstances on which the 
 petition is founded, in which shall be stated the amount of claims 
 allowed, with an estimate of the amount of just claims to be pre- 
 sented, and it shall also contain a statement of the amount of 
 personal estate which has come to the hands of the petitioner, 
 and the manner in which he has disposed of the same, with a 
 statement of the amount of claims paid, a particular description 
 of the real estate sought to be sold, and the nature and extent of 
 all liens upon said real estate so far as the same may be known 
 to the petitioner. The petition shall be signed by the executor 
 or administrator and verified by his affidavit, and shall be filed 
 at least ten days before the commencement of the term of court 
 at which the application shall be made.^ 
 
 555. Practice, the same as in chancery cases. "Such ap- 
 plication shall be docketed as other causes, and the petition may 
 be amended, heard or continued for notice or other cause, and 
 the practice in such cases shall be the same as in cases in 
 chancery. The court may direct the sale of such real estate, 
 disincumbered of all mortgage, judgment or other money liens 
 that are due, and may provide for the satisfaction of such liens 
 out of the proceeds of sale, and may also settle and adjust all 
 equities and all questions of priority between all parties inter- 
 ested therein, and may also investigate and determine all ques- 
 tions of conflicting or controverted titles arising between any 
 of the parties to such proceeding, and may remove clouds from 
 the title to any real estate sought to be sold, and invest pur- 
 chasers with a good and indefeasible title to the premises sold. 
 
 Jones & Addington's Supplements tion 100, chapter 3, "Administra- 
 
 thereto, Vol. 1, p. 325, and cases tlon of Estates." Starr & Curtis 
 
 cited under section of statute; Vol. Annotated Statutes of Illinois, 
 
 4, p. 41, and cases cited; Kurd's with Jones & Addington's Supple- 
 
 R. S. of 111., 1905, p. 121. ments thereto, Vol. 1, p. 327, and 
 
 3 — As amended by act approved cases cited ; Vol. 4, p. 42, and cases 
 
 June 15, 1887. In force July 1, cited; Kurd's R. S. of 111., 1905, 
 
 1887. Laws of 1887, page 3. Sec- p. 121. 
 30
 
 466 THE LAW OF ESTATES. 
 
 The court may, with the assent of auy mortgagee of the whole 
 or any part of such real estate, whose debt is not due, sell such 
 real estate disincumbered of such mortgage, and provide for the 
 payment of such mortgage out of the proceeds of such sale; 
 and may also, with the assent of the person entitled to an estate 
 in dower or by curtsy, or for life or for years or of home- 
 stead to the whole or in part of the premises, who is a party to 
 the suit, sell such real estate with the rest. But such assent shall 
 be in writing and signed by such person and filed in the court 
 wherein the said proceedings are pending. When any such es- 
 tate is sold, the value thereof shall be ascertained and paid over 
 in gross, or the proper portion of the funds invested, and the 
 income paid over to the party entitled thereto during the con- 
 tinuance of the estate."* 
 
 556. Summons — ^when returnable. "Upon the filing of the 
 petition, the clerk of the court where the same may be filed shall 
 issue a summons, directed to the sheriff of the county in which 
 the defendant resides, if the defendant is a resident of this State, 
 requiring him to appear and answer the petition on the return 
 day of the summons; and where there are several defendants, 
 residing in different counties, a separate summons shall be issued 
 to each county, including all the defendants residing therein. 
 Every summons shall be made returnable to the first tenn of the 
 county court after the date thereof, unless the petition is filed 
 within ten days immediately preceding any term, in which case 
 the summons shall be returnable to the next term thereafter.^ 
 
 4 — As amended by act approved cited; Kurd's R. S. of 111., 1905, 
 
 June 15, 1887. In force July 1, p. 121. 
 
 1887. Laws of 1887, p. 3. Sec- 5 — Section 101, chapter 3, "Ad- 
 
 tion 101, chapter 3, "Administra- ministration of Estates." Starr & 
 
 tion of Estates." Starr & Curtis Curtis Annotated Statutes of Illi- 
 
 Annotated Statutes of Illinois, nois, with Jones & Addington's 
 
 with Jones & Addington's Supple- Supplements thereto, Vol. 1, p. 329, 
 
 ments thereto, Vol. 1, p. 327, and and cases cited; Vol. 4, p. 42, and 
 
 cases cited; Vol. 4, p. 42, and cases cases cited; Hurd's R. S. of 111., 
 
 1905, p. 12L
 
 SALE OF REAL ESTATE TO PAY DEBTS. '467 
 
 557. Service of summons. "The service of summons shall 
 be made by reading thereof to the defendant, or leaving a copy 
 thereof at the usual place of abode, with some member of the 
 family of the age of ten years and upwards, and informing such 
 person of the contents thereof, which service shall be at least 
 ten days before the return of such summons."* 
 
 558. Notice by publication and mail. ' ' Whenever any peti- 
 tioner or his attorney shall file, in the office of the clerk of the 
 court in which his petition is pending, an affidavit showing that 
 any defendant resides ov hath gone out of this State, or on due 
 inquiry cannot be found, or is concealed within this State, so 
 that process cannot be served upon him, and stating the place 
 of residence of such defendant, if known, or that, upon diligent 
 inquiry, his place of residence cannot be ascertained, the clerk 
 shall cause publication to be made in some newspaper printed 
 in his coimty, and if there is no newspaper published in his 
 county, then in the nearest newspaper published in this State, 
 containing notice of the filing of the petition, the names of the 
 parties thereto, the title of the court, and the time and place of 
 the return of summons in the case, and a description of the 
 premises described in the petition ; and he shall also, within ten 
 days of the first publication of such notice, send a copy thereof 
 by mail, addressed to such defendant whose place of residence is 
 stated in such affidavit. The certificate of the clerk that he has 
 sent such notice in pursuance of this section, shall be evidence. ' ''^ 
 
 559. Publishing of notice — default. "The notice required 
 in the preceding section may be given at any time after the 
 filing of the petition, and shall be published at least once in 
 each week for four successive weeks, and no default or pro- 
 
 6— Section 102, chapter 3, "Ad- 7 — Section 104, chapter 3, "Ad- 
 ministration of Estates." Starr ministration of Estates." Starr & 
 & Curtis Annotated Statutes of II- Curtis Annotated Statutes of Illi- 
 linois, Vol. 1, p. 329, and cases nois. Vol. 1, p. 329, and cases cited ; 
 cited; Kurd's R. S. of 111., 1905, p. Kurd's R. S. of 111., 1905, p. 122. 
 122; Ottenger v. Specht, 162 111. 
 182.
 
 468 THE LAW OF ESTATES. 
 
 ceeding shall be taken against any defendant not served with 
 summons, and not appearing unless forty days shall in- 
 tervene between the first publication, as aforesaid, and the first 
 day of the term at which such default or proceeding is proposed 
 to be taken. "^ 
 
 560. Of persons under disability. "When it appears that 
 any of the persons required to be made parties defendant, who 
 have been served with summons or notified as aforesaid, are 
 minors, under the age of twenty-one years if males, or eighteen 
 years if females, without a guardian resident in this State, or 
 are persons having conservators, or where such guardian, if any, 
 or conservator, shall not be personally served with summons or 
 shall not appear, the court shall appoint a guardian ad litem, 
 who shall appear and defend in behalf of such minors, and be 
 allowed such compensation as may be fixed by the court. ^ 
 
 ' 561. Hearing — decree of sale — overplus. "Upon hearing 
 the cause upon the issues formed or taken, the court shall hear 
 and examine the allegations and proofs of the parties and of all 
 other persons interested in the estate who may appear and 
 become parties; and if, upon due examination, the court shall 
 find that the executor or administrator has made a just and 
 true account of the condition of the estate, and that the personal 
 estate of the decedent is not sufficient to pay the debts against 
 such estate, the court shall ascertain, as nearly as can be, the 
 amount of deficiency, and how much of the real estate described 
 in the petition it is necessary to sell to pay such deficiency, 
 with the expenses of administration then due or to accrue and 
 make a decree for the sale thereof: Provided, that where any 
 
 8 — Laws of 1857, p. 138, sec. 5. sec. 9, chapter 100, entitled "No- 
 Section 105, chapter 3, "Adminis- tices;" Kurd's R. S. of 111., p. 1413. 
 tration of Estates." Starr & Cur- 9 — Laws of 1857, p. 139, sec. 6. 
 tis Annotated Statutes of Illinois, Section 106, chapter 3, "Adminis- 
 with Jones & Addington's Supple- tration of Estates." Starr & Cur- 
 ments thereto, Vol. 1, p. 330; Vol. tis Annotated Statutes of Illinois, 
 
 4, p. 42, and cases cited; Kurd's R. Vol. 1, p. 330, and cases cited; 
 
 5. of 111., 1905. p. 122. See also Kurd's R. S. of 111., 1905, p. 122.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 469 
 
 houses and lots, or other real estate, are so situated that a part 
 thereof cannot be sold without manifest prejudice to the heirs, 
 devisees or owner, the court may order the sale of the whole 
 or such part as it may deem best, and the overplus arising from 
 such sale shall be distributed among the heirs and devisees, own- 
 ers, or such other persons as may be entitled thereto."^** 
 
 562. Conveyances. "All such sales of real estate shall be 
 made and conveyances executed for the same, by the executor or 
 administrator applying for such order, and shall be valid and 
 effectual against the heirs and devisees of such decedent, and 
 all others claiming by, through, or under him or them. In case 
 of the death of the executor or administrator applying for an 
 order of sale before conveyance is made, the administrator de 
 bonis non shall proceed in the premises and make conveyances 
 in the same manner as if he had originally applied for such 
 order — which conveyance shall be good and valid."** 
 
 563. Sale — time of — notice — penalty — terms — ^return — con- 
 firmation. "No lands or tenements shall be sold by virtue of 
 any such order of the county court, unless such sale is at pub- 
 lic vendue, and between the hours of ten o'clock in the fore- 
 noon and five o'clock of the afternoon of the same day, nor 
 unless the time, place and terms of holding such sale were previ- 
 ously published for the space of four weeks, by putting up 
 notices thereof in at least four of the most public places in the 
 county where such real estate shall be sold, and also by causing 
 a similar notice thereof to be published four successive weeks 
 
 10— Laws of 1857, p. 139, sec. 8. 11— Laws of 1857, p. 139, sec. 9. 
 Section 107, chapter 3, "Adminis- Rev. Stat. 1845, p. 559, sec. 105. 
 tration of Estates." Starr & Cur- Section 108, chapter 3, "Adminis- 
 tis Annotated Statutes of Illinois, tration of Estates." Starr & Cur- 
 with Jones & Addington's Supple- tis Annotated Statutes of Illinois, 
 ments thereto. Vol. 1, p. 331, and with Jones & Addington's Supple- 
 cases cited; Vol. 4, p. 42, and cases ments thereto. Vol. 1, p. 108, and 
 cited; Vol. 5, pp. 19, 20, and cases cases cited; Vol. 4, p. 42, and cases 
 cited; Kurd's R. S. of 111., 1905, cited; Vol. 5, p. 20, and cases cited; 
 p. 122. Kurd's R. S. of 111., 1905, p. 122.
 
 470 THE LAW OF ESTATES. 
 
 prior to the sale, in some newspaper published in such county, 
 or if there be no such newspaper then in such other newspaper 
 in this State as the court shall direct, nor unless such real estate 
 shall be described with common certainty in such notices. And 
 if any executor or administrator, so ordered to make sale of 
 any real estate, shall sell the same contrary to the provisions of 
 this act, he shall forfeit and pay the sum of five hundred dol- 
 lars, to be recovered by an action of debt, in the name of the 
 People of the State of Illinois, for the use of any person inter- 
 ested, W'ho may prosecute for the same : Provided, that no such 
 offense shall affect the validity of such sale: And provided 
 further, that such executor or administrator may sell the same 
 on a credit of not less than six, nor more than twelve months, 
 by taking notes, with good personal security and a mortgage, or 
 sale mortgage, or the premises sold, to secure the payment of 
 the purchase money. It shall be the duty of the executor or 
 administrator making such sale, on or before the firet day of 
 the next term of the court thereafter, to file in the office of 
 the clerk of said court a complete report of said sale, giving 
 a description of the premises sold, to whom, w'here, and upon 
 what terms sold, and a general statement of the manner in which 
 the terms of the decree were executed. Any person interested 
 in the premises sold, and any creditor of the estate, may file 
 exceptions to such report, and upon the hearing thereof the 
 court may approve such report and confirm the sale, or dis- 
 approve the same and order the premises to be re-sold. "^^ 
 
 564. Proceeds of sale. ''When real estate is sold, the 
 moneys arising from such sale shall be received by the executor 
 
 12 — As amended by act approved 4, pp. 42, 43, and cases cited under 
 
 April 7, 1875. In force July 1, section of statute in each volume; 
 
 1875. R. S. 1845, p. 559. sec. 106. Kurd's R. S. of 111., 1905, p. 123. 
 
 Laws of 1875, page 1, sec. 1. Sec- See also sec. 48, chapt. 22, "Chan- 
 
 tion 109, chapter 3, "Administra- eery," Starr & Curtis, etc.. Vol. 1, 
 
 tion of Estates." Starr & Curtis p. 592; Vol. 4, p. 105, and cases 
 
 Annotated Statutes of Illinois, cited under section of statute in 
 
 with Jones & Addington's Supple- each volume; Kurd's R. S. of 111., 
 
 ments thereto, Vol. 1, p. 333; Vol. 1905, p. 233.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 471 
 
 or administrator applying for the order to sell, and shall be 
 assets in his hands for the payment of debts, and shall be applied 
 in the same manner as assets arising from the sale of personal 
 property. "13 
 
 565. Sale of land not fully paid for — completing purchase. 
 
 "In all cases where a decedent is seized of a legal or equitable 
 title to real estate, the payment whereof has not been completed, 
 and the estate of such decedent is unable to make complete 
 payment therefor, with advantage to such estate, the adminis- 
 trator or executor may sell or dispose of such real estate upon 
 the order of the county court, and the money arising from 
 such sales shall be assets in the hands of such executor or ad- 
 ministrator, as in other eases. But in all cases where the estate 
 of any such decedent shall be solvent, and such lands as afore- 
 said may be paid for without prejudice to the creditors, heirs 
 and devisees of the estate, the executor or administrator shall 
 complete the payment for the same out of the proceeds of the 
 personal property, in the name of the heirs or legal representa- 
 tives of the decedent entitled thereto; and he shall be allowed 
 a credit for the amount of such payments, and all reasonable 
 expenses incurred in making the same, upon final settlement of 
 such estate: Provided, that the provisions of this section shall, 
 in nowise, interfere with the provisions of any last will or testa- 
 ment. "^^ Where the decedent is seized of the legal or equit- 
 able title to land, payment for which has not been completed, 
 and cannot be made by the estate to its advantage, the probate 
 court, under section 111 of the Administration Act, may ordor 
 
 13— Section 110, chapter 3, "Ad- lands (R. S. of 1845, p. 559, sec. 
 
 ministration of Estates." Starr & 111, p. 560, sec. 112, relating to 
 
 Curtis Annotated Statutes of II- complete purchase of public 
 
 linois. Vol. 1, p. 336, and cases lands). See Starr & Curtis Anno- 
 
 cited; Kurd's R. S. of 111., 1905, tated Statutes of Illinois, with 
 
 p. 123. Jones & Addington's Supplements 
 
 14 — Section 111, chapter 3, "Ad- thereto. Vol. 1, p. 336, and cases 
 
 ministration of Estates." This cited; Vol. 4, p. 43, and cases 
 
 section, rewritten and extended to cited; Kurd's R. S. of 111., 1905, 
 
 all cases of complete purchase of p. 123.
 
 472 THE LAW OF ESTATES. 
 
 a sale of the land; but the purchaser at the sale merely takes 
 the place of the decedent and his heirs, the purchaser being 
 entitled to a conveyance upon payment of the balance due on 
 the purchase priee.^^ 
 
 566. Miscellaneous provisions, sections of the same chapter 
 — mistake, etc. *'No executor or administrator, or his security, 
 shall be chargeable beyond the assets of the testator or intestate, 
 by reason of any omission or mistake in pleading, or by false 
 pleading of such executor or administrator. "^^ 
 
 567. Contracts of decedent. "All contracts made by the 
 decedent may be performed by the executor or administrator 
 when so directed by the county court. "^'^ 
 
 568. Books of account. "The books of account of any 
 deceased person shall be subject to the inspection of all persons 
 interested therein, "^^ 
 
 569. Insolvent estate. "If, after the expiration of two years 
 from the time administration is granted on an estate, such estate 
 is found to he insolvent, it shall be so entered of record by the 
 county court, and such order (being) made, no action shall be 
 maintained against the executor or administrator of such estate, 
 except at the costs of the party suing; but persons entitled 
 thereto shall receive their proportions of such estate as herein 
 provided. "1^ 
 
 15— Fitzgerald v. Turner, 223 111. cited; Kurd's R. S. of 111., 1905, 
 
 322. p. 126; Wheeler v. Wheeler, 105 
 
 16— Section 126, chapter 3, "Ad- 111. App. 51. 
 
 ministration of Estates." Starr 18 — Section 128, chapter 3, "Ad* 
 
 & Curtis Annotated Statutes of II- ministration of Estates." Starr & 
 
 linois. Vol. 1, p. 347, and cases Curtis Annotated Statutes of Illi- 
 
 cited; Kurd's R. S. of 111., 1905, nois, Vol. 1, p. 347, and cases cited; 
 
 p. 126. Kurd's R. S. of 111., 1905, p. 126. 
 
 17— Section 127, chapter 3, "Ad- 19— Section 129, chapter 3, "Ad- 
 ministration of Estates." Starr & ministration of Estates." Starr & 
 Curtis Annotated Statutes of lUi- Curtis Annotated Statutes of Illi- 
 nois, Vol. 1, p. 347, and cases nois. Vol. 1, p. 347; Kurd's R. S. 
 
 of 111., 1905, p. 126,
 
 SALE OF REAL ESTATE TO PAY DEBTS. 473 
 
 570. Power of court. "County courts shall have power to 
 enforce the observance of all orders, decisions, judgments and 
 decrees made by them in discharge of their duties under this 
 act; and they may issue attachments for contempt offered such 
 court or its process, by any executor, administrator, witness or 
 other person; and may fine and Imprison, or either, all such 
 offenders, in like manner as the circuit courts may do in similar 
 cases. ' '20 
 
 571. Sheriff's duties— fees. "The sheriff shall, when re- 
 quired by the court, attend all sessions of said court, either by 
 himself or deputy, and shall preserve good order in the court, 
 and execute all writs of attachments, sununonses, subpoenas, 
 citations, notices and other processes which may, at any time, 
 be legally issued by such court, and make return thereof. And 
 such sheriff' shall be entitled to the same fees as he is allowed 
 for similar services in the circuit court. "^^ 
 
 572. Compensation of executors, etc. ''Executors and ad- 
 ministrators shall be allowed as compensation for their services 
 a sum not exceeding six per centum on the amount of personal 
 estate, and not exceeding three per centum on the money arising 
 from the sale of real estate, with such additional allowances for 
 costs and charges in collecting and defending the claims of the 
 estate and disposing of the same, as shall be reasonable. "^2 
 
 573. The act construed. *'A11 the provisions in this act 
 relative to an executor or administraitor shall apply and ex-tend. 
 
 20 — Section 131, chapter 3, "Ad- sec. 19, chapter 125, "Sheriffs"; 
 
 ministration of Estates." Starr & Kurd's R. S. of 111., 1905, pp. 628, 
 
 Curtis Annotated Statutes of lUi- 1878. 
 
 nois, Vol. 1, p. 348, and cases cited; 22 — Section 133, chapter 3, "Ad- 
 
 Hurd's R. S. of 111., p. 126. ministration of Estates." Starr & 
 
 21 — Section 132, chapter 3, "Ad- Curtis Annotated Statutes of Illi- 
 
 ministration of Estates." Starr & nois, with Jones & Addington's 
 
 Curtis Annotated Statutes of Illi- Supplements thereto, "Vol. 1, p. 348, 
 
 nois, Vol. 1, p. 348; Kurd's R. S. and cases cited; Vol. 4, p. 45, and 
 
 of 111., 1905, p. 126. See also sec- cases cited; Kurd's R. S. of 111,, 
 
 tion 9, chapter 37, "Courts"; also 1905, p. 126.
 
 474 THE LAW OF ESTATES. 
 
 to an executrix or administratrix, or executors or administrators, 
 and vice versa, unless otherwise expressly provided for; and 
 whenever the singular number or the masculine gender is men- 
 tioned, the provisions shall apply to two or more, and to the 
 feminine gender, as the case may require; and this act shall 
 be liberally construed so that its true intent and meaning may 
 be fully carried out.''^^ 
 
 574. The early statutes relating to administrators' sales of 
 real estate. Prior to the amendments of the administration 
 Act in 1887, there was much conflict growing out of adminis- 
 trator's sales of real estate. The early statutes were narrow and 
 insufficient and did not confer upon county courts sufficient 
 power to enable such courts to furnish by their decrees and 
 proceeding in this respect a popular and satisfactory title. 
 In fact under the early statutes, one was constantly in doubt 
 when purchasing at administrator's sales, whether or not in 
 reality he purchased lands or a law suit. But in the year 1887 
 and since, the legislature of this State by its combined wisdom 
 enacted laws, conferring upon coimty and probate courts in 
 such matters sufficient power to make titles derived from admin- 
 istrator's sales absolutely safe and good. The decrees of the 
 county courts having probate jurisdiction and probate courts, 
 carry with them restored confidence and a generally safe, sure 
 and merchantable title follows such sales into the purchaser; 
 particularly is this so, if the existing statutes be strictly fol- 
 lowed in such proceedings. And ^till better the Supreme Court 
 of this State in its decisions since the new enactments have 
 generally upheld the powers, decrees and proceedings of such 
 courts and thereby aided much to make such titles good. In 
 previous sections we have given the statute complete, in aid of 
 such proceedings for sale of lands to pay debts. The statutes are 
 
 23— Section 134, chapter 3, "Ad- of 111., 1905, p. 126; see also sec- 
 ministration of Estates." Starr & tion 1, chapter 131, "Construction 
 Curtis Annotated Statutes of Illi- of Statutes"; Kurd's R. S. of 111., 
 nois. Vol. 1, p. 349; Kurd's R. S. 1905. p. 1946.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 475 
 
 the greatest guide. Yet the details that enter into every case 
 must be worked out with the decisions of court, and com- 
 pletely for safety, covered by each decree entered in such matter. 
 
 575. Lands partly paid for by decedent — sale or completion 
 of purchase. "Section 67 of chapter 3 entitled 'Administra- 
 tion of Estates,' providing for the probating of claims not due, 
 must be considered in connection with section 111 of the same 
 chapter and the two must be construed together. Accordingly, 
 a claim by a vendor of land, under contract for the unpaid pur- 
 chase money cannot bo proved up against the estate of the pur- 
 chaser unless the estate is solvent; and the payment may be 
 made without prejudice to the creditors, heirs and devisees of 
 the estate. And whether payment of such claim against the 
 estate for unpaid purchase money of land can be made, with 
 advantage to the estate, must be determined by the county court, 
 and not by the administrator. If, under the last clause of sec- 
 tion 111, the probate court determines that the estate is solvent, 
 and the land may be paid for without prejudice to the creditors, 
 heirs and devisees, the claim may be allowed, and the adminis- 
 trator may complete the payment out of the assets of the estate 
 in his hands for the payment of debts, in due course of adminis- 
 tration. When the two sections of the statute are construed, 
 this is a fair and reasonable construction to be placed upon 
 them — a construction which will do no injustice to the vendor of 
 land under a contract where the payments are not due ; and at 
 the same time afford protection to small estates. Where the 
 vendor cannot have his claim allowed against the estate, he 
 holds the land as security for his debt and is thus protected 
 from loss, and at the same time a small estate, which might be 
 consumed in paying for land purchased, if the land claim 
 should be allowed, will be preserved for the payment of ordi- 
 nary debts and for distribution among the widow and heirs of 
 the deceased.^^ 
 
 24 — Miskimen v. Culbertson, 162 notated Statutes of Illinois, with 
 111. 236. See Starr & Curtis An- Jones & Addington's Supplements
 
 476 THE LAW OF ESTATES. 
 
 576. Relation of administrator to the real estate — ^rights of 
 
 heirs. The judgment of the county court allowing the debts 
 of a creditor against an estate, is, as between the creditor and 
 the administrator, conclusive until reversed or impeached for 
 fraud. ^ As stated heretofore, an administrator does not take 
 title to real estate, that vests in heirs-at-law of deceased. The 
 administrator takes a power of sale he may use in certain con- 
 tingency, that is when it becomes necessary to sell lands to pay 
 debts.26 And when the administrator applies for leave to sell 
 the real estate for the purpose of paying creditors of the estate 
 whose claims have been reduced to judgment, such judgment is 
 not conclusive as against an heir at law.-'^ The administrator 
 only represents and controls personal property. The heir and 
 administrator are not in privity; the admissions of an adminis- 
 trator do not bind the heir, and the heir may contest an applica- 
 tion for sale of real estate.^s Jt^ji^ in a recent case the doctrine 
 of these early cases is restated as follows: "Though the judg- 
 ment held by appellant may be binding on the personal assets 
 of the estate, it is of no avail against the heir in proceedings to 
 sell the land for the payment of debts. The heir, may notwith- 
 standing the judgment, urge any infirmity in the original in- 
 debtedness.29 
 
 577. Jurisdiction and powers of probate court relating- to 
 sale of real estate to pay debts, before the act of 1887. Prior 
 to the amendments of sections 99, 100 and 101, in 1887,^0 and 
 
 thereto, Vol. 1, pp. 300, 336; Vol, Fitzgerald v. Turner, 223 111. 322. 
 
 4, pp. 36, 43; Vol. 5, p. 18, and See also Ante 565. 
 cases cited under section of stat- 25 — Wood v. Stone, 16 111. 177; 
 
 utes 67 and 111, chapter 3, "Ad- Hopkins v. McCann, 19 111. 112. 
 ministration of Estates" in each 26 — Burr v. Bloomer, 174 111. 
 
 volume cited; Hurd's R. S. of 111., 638. 
 
 1905, pp. 116, 123. Under section 27— Wood v. Stone, 16 111. 177. 
 Ill of the Administration Act, the 28 — Hopkins v. McCann, 19 111. 
 
 probate court may order a sale of 112; Gibson v. Gibson, 82 111. 61; 
 
 the land not fully paid for, and in Marshall v. Rose, 86 111. 374. 
 such case the purchaser takes the 29 — Aden v. Bear, 97 111. App. 
 
 place of decedent and his heirs. 347. 
 
 30 — Ante, 553, 554, and notes.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 477 
 
 Tinder the act of 1857, construed in Harding v. LeMoyne,^^ it 
 was held : The administrator had but a mere power to sell for 
 the payment of debts; and this right could only be enforced 
 through the instrumentality of some court specially authorized 
 to act ; and whether the power is conferred on a circuit, probate 
 or county court, makes no difference; as the power and juris- 
 diction to enforce and give effect to the right are the same in 
 either case. As such right could only be enforced through the 
 instrumentality of some court clothed with special authority for 
 that purpose the act must be construed so as to give full 
 force and effect to the right. Whatever, therefore, was necessary 
 to effectuate the sale of the 'Hitle or claim" which the deceased 
 had to the land sought to be sold, the court could lawfully do, 
 but it did act on the title or claim as it found it. The right of 
 the administrator under the act did not extend to the removing 
 of clouds upon or obstructions standing in the way of the title, 
 and without such right the court could not apply a remedy, for 
 every remedy which the law affords must necessarily be respon- 
 sive to some legal right. Under that act the court found the 
 amount of the indebtedness, ordered the sale, fixed its terms, 
 and prescribed the manner of conducting it in so far as such 
 was not done by the statute itself; the court could either ap- 
 prove the sale or set it aside. And as a necessary incident to 
 the power to make the sale, the court determined whatever 
 questions arose in respect to the payment of the purchase 
 money, or the sufficiency of the conveyance and, in short, all 
 questions relating to the sale or transfer of the land. In re- 
 spect to the land itself, the court was required to find a sin- 
 gle simple fact, namely, that the deceased had title or a claim 
 to it. That others might have claims to the same land, whether 
 before the court or not, was a matter of no consequence, for the 
 court was not authorized to investigate or pass upon them. The 
 lien of the creditors upon the land for the payment of their 
 claims after the personal assets had been exhausted, was coex- 
 
 31—114 111. 65.
 
 478 THE LAW OF ESTATES. 
 
 tensive with the title or claim of the deceased, whether it was 
 good or bad, and the heirs and devisees took subject to the lien. 
 It followed that a valid sale by the administrator or executor 
 cut off whatever title or claim the heirs or devisees had, but 
 a claim founded upon an independent source of title would 
 not be affected by such sale. Under the old statute, 
 widows, heirs, devisees and guardians of minors were neces- 
 sary parties defendants, not to settle conflicting titles, but to 
 prevent injustice. Prior to the amendatory act of June 
 15, 1887, conflicting claims of title could not be litigated in the 
 county court, yet it was necessary to set them up to advise the 
 purchaser of the nature and character of title."- 
 
 578. Jurisdiction and power of probate courts relating to 
 sale of real estate to pay debts since the amendatory act of 
 1887. Under the act of June 15th, 1887, amending sections 
 99, 100 and 101, of the act in relation to the administration of 
 estates,^^ the powers of county courts and probate courts in pro- 
 ceedings to sell lands for the payment of debts are greatly en- 
 larged as compared to former act in this regard. The act of 
 1887, provides, that all persons holding liens against the 
 real estate or any part thereof, described in the petition of 
 the executor or administrator and all persons having or claim- 
 ing any interest in such real estate or any part thereof, in pos- 
 session or otherwise, shall be made parties to such proceeding; 
 that the practice in such cases shall be the same as in cases in 
 chancery, and that the court may settle and adjust all equities, 
 and all questions of priority, between all parties interested, 
 therein, and may also investigate and determine all questions of 
 conflicting or controverted titles arising between any of the 
 parties to such proceeding, and may remove clouds from the 
 title to any real estate sought to be sold, and invest the pur- 
 chasers with a good and indefeasible title to the premises sold.^* 
 
 32— Bowers v. Block, 129 111. 33— See Ante 553, 554, 555 for 
 424; Kenley v. Bryan, 110 111. 652; statute citations. 
 Harding v. Le Moyne, 114 111. 65. 34— Laws of 1887, p. 3, for act 
 
 of 1887.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 479 
 
 In Newell v. Montgomery, ^^ the constitutionality of the araenda- 
 torj^ act of 1887, conferring these additional powers upon county 
 and probate courts was upheld; the court saying: "It will be 
 seen that the constitution in conferring upon probate courts 
 jurisdiction in cases of sales of real estate of deceased persons 
 for the payment of their debts, in no way attempted to define 
 or limit the procedure in cases of that character. That is left 
 entirely to legislative discretion. It was therefore competent 
 for the General Assembly to prescribe any procedure which in 
 its judgment was appropriate. There was then no constitu- 
 tional objection to assimilating it to that which obtains in courts 
 of chancery. Such procedure is certainly as appropriate for 
 the purpose as any which the laws of the State provide or rec- 
 ognize. Nor is there any constitutional objection to a provision 
 requiring all parties interested in the land to be brought before 
 the court and have their rights litigated and ascertained prior 
 to a sale. In case of most judicial sales such provision has 
 always existed. The theory is that the estate in the laud which 
 it is proposed to sell can be sold more advantageously and with 
 the expectation of realizing a better price, after the interests 
 of all parties have been determined, so that the purchaser may 
 know precisely the nature and extent of the estate for which 
 he is bidding. A procedure which requires an adjudication 
 of the rights of all parties in interest before a sale is certainly 
 not inappropriate to eases of sales of the lands of deceased 
 persons for the payment of debts, its advantages being just 
 as manifest there as in cases of other judicial sales. That it 
 has not prevailed in pTObate courts heretofore is not because 
 it was expressly or impliedly prohibited by the constitution, but 
 because it was not provided for by the statute, "^s Under sec- 
 tion 101,3''^ as amended in 1887, the probate court has power, 
 
 35—129 111. 58. utes of Illinois, Vol. 1, pp. 153, 
 
 36 — See section 18, article 6, 154, and cases cited under sections 
 Constitution of Illinois, 1870; see noted. 
 
 also section 20 of same article. 37 — Ante, 555. for statute, sec- 
 Starr & Curtis Annotated Stat- tion 101, chapt. 3, "Administration 
 
 of Estates."
 
 480 THE LAW OF ESTATES. 
 
 when an application is made by an administrator to sell real 
 estate of a deceased for payment of debts to ascertain the 
 amount due on mortgage liens; to direct the sale of such lands 
 discharged of such liens; and if such liens are not due direct 
 the sale subject thereto; and the court by its decree may pro- 
 vide for the payment and satisfaction of such mortgage liens 
 that are due and payable out of the proceeds arising from such 
 sale. The court may settle and adjust all equities between the 
 parties as well as all questions of priority in the lands or in the 
 proceeds from the sale thereof; and with the assent in writing 
 of the widow, direct that the lands be sold, free and discharged 
 from homestead estate and right of dower; and, after such sale, 
 the court may ascertain the value of such homestead estate and 
 right of dower, and order the same paid out of the proceeds.^^ 
 In the absence of a bill of exceptions or certificate of evidence, 
 it will be presumed the findings of fact recited in an order for 
 sale of real estate to pay debts are correct. Also, that the 
 court by its order did not impose more upon a particular tract 
 than its proper portion. And it is also held, if real estate and 
 bank stock are both specifically given by a will both should 
 abate ratably for the payment of debts, unless the debts are 
 expressly or impliedly charged upon the real estate.^^ 
 
 579. To give jurisdiction to sell real estate probate court 
 must find a deficiency of personal assets. It is a well estab- 
 lished fundamental rule, the personal estate of a deceased is 
 primarily liable for the payment of his debts. And it is equally 
 well established, no resort can be had to the real estate of de- 
 ceased until the personal estate is exhausted or shown to be in- 
 sufficient to pay the just debts and claims against such estate.**^ 
 Where it appears that the administrator omitted to make a just 
 and true account, required by section 98 of the "administration 
 
 38— Virgin v. Virgin, 91 111. App. 134; Sutherland v. Harrison, 86 
 
 204; Cutler v. Cutler, 188 111. 285; 111. 363; Diversey v. Johnson, 93 
 
 Hayack v. Will, 169 111. 145. 111. 547; Harding v. LeMoyne, 114 
 
 39— Danel v. Arnold, 201 111.570. 111. 65; Danel v. Arnold. 201 111. 
 
 40— McLean v. McBean, 74 111. 579.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 481 
 
 act" such omission is cured by the finding of the probate court 
 in the usual form that the amount of assets, and the amount of 
 claims allowed against the estate, show a deficiency of personal 
 assets.*^ ''Where it is ascertained that the personal estate of 
 a deceased person is insufficient to pay the just claims against 
 his estate, and there are lands to which he had title, it is the 
 duty of the administrator under section 99 of chapter 3 enti- 
 tled "Administration of Estates" to proceed to sell the same 
 for the payment of debts. And it is held, intestate's lands 
 should not be sold merely to pay expenses of administration.^ 2 
 It is erroneous to order sale of land when no claims against 
 estate have been allowed by the court to which application is 
 made, although such claims have been allowed by a probate 
 court of another State. A judgment against an administrator 
 in one State is no evidence of indebtedness against another ad- 
 ministrator of the same decedent in another State, for the pur- 
 Piose of affecting assets received by the latter under his ad- 
 ministration. ^^ The administrators are not regarded as in 
 privity vath each other.^* But where an executor's sale was 
 made under a decree of the circuit court of Cook county to pay 
 debts of his testator, and no question arises on the record as to 
 the regularity, in form of the sale, it was held: The sale can- 
 not be impeached or set aside because sold to pay debts not pre- 
 sented and formally probated in the county court. It was 
 sufficient the executor had been notified of the existence of the 
 claims, and demand made to pay them ; and, whether they were 
 secured or not, being bana fide indebtedness due from the es- 
 tate, the obligation rested upon the executor to raise funds, so 
 far as this could be done from the estate to meet them.^^ A 
 citizen of another State, in which administration has been 
 
 41 — ^Madden v. Cooper, 47 111. 43 — Hobson v. Payne, 45 III. 158. 
 
 359. 44— Rosenthal v. Renich, 44 111. 
 
 42 — Ante 553, for statute in 207; Story's Conflict of Laws, sec. 
 
 question; Virgin v. Virgin, 91 111. 522. 
 
 App. 204; Fitzgerald v. Glancy, 49 45 — Williams v. Rogers, 81 111. 
 
 111. 465; Walker v. Diehl, 79 111. 571. 
 473. 
 
 31
 
 482 THE LAW OF ESTATES. 
 
 granted upon an estate, may come to this State and cause ad- 
 ministration to be taken out liere, have a claim allowed, and 
 real estate sold for its payment; and, in such case, it is not 
 necessary to show that the personal estate in the other State 
 has been exliausted.'^^ But a judgment rendered in a foreign 
 State against an executor appointed and acting in Illinois alone, 
 is of no force in Illinois; and courts of this State cannot allow 
 such judgment as a claim against the estate upon the filing of 
 a transcript; as such a judgment is not even prima facie evi- 
 dence of indebtedness.^''' It is to be inferred from the holding 
 in Elting v. First National Bank,"^^ that proof should be made 
 of such claim in the way pointed out by the statute law of this 
 State when filing the transcript of a judgment of any other 
 State. 
 
 580. Jurisdiction of persons and subject matter of suit re- 
 lating to sales of real estate to pay debts. Jurisdiction of the 
 person is acquired by service or voluntary appearance."*^ Juris- 
 diction of the subject matter is acquired, by the filing of a 
 petition to sell the real estate, by the executor or administrator, 
 containing the necessary allegations, which, under the statute 
 law, requires the court to act, i. e., "that there are debts against 
 the estate and that there is no personal property, or there being 
 such, that it is insufficient for the payment of debts.^*^ And 
 where the record in such proceeding to sell to pay debts, shows 
 a finding by the court of the necessary facts to give jurisdic- 
 tion, the burden of proof rests upon the party assailing the 
 title thus acquired to show the court did not acquire jurisdic- 
 
 46— Rosenthal v. Renick, 44 111. Oettinger v. Specht, 162 111. 182; 
 
 207. Cassell v. Joseph, 184 111. 378; 
 
 47 — Elting V. First National Krieger v. Krieger, 221 III. 479. 
 Bank, 173 111. 368, p. 389; Heden- 50— Bree v. Bree, 51 111. 367; 
 
 berg V. Hedenberg, 46 Conn. 30. Moffitt v. Moffitt, 69 111. 641; Di- 
 
 48—173 111. 368. versey v. Johnson, 93 111. 547; 
 
 49— Botsford v. O'Connor, 57 111. Harding v. LeMoyne, 114 111. 65; 
 
 72; Clark v. Thompson, 47 111. 25; Virgin v. Virgin, 91 111. App. 204. 
 Reedy v. Canfield, 159 111. 254;
 
 SALE OF REAL ESTATE TO PAY DEBTS. 483 
 
 tion, by clear and satisfactory evidence.^^ Justice Magruder 
 speaking for the court in Cassel v. Joseph, said: In this State 
 the county court, although a court of limited jurisdiction, is 
 not, strictly speaking, a court of inferior jurisdiction. It is a 
 court of record, and has a general jurisdiction of unlimited ex- 
 tent over certain classes of subjects. When acting within that 
 sphere, its jurisdiction is as general as that of the circuit court. 
 When the county court acts within the limits of its jurisdiction, 
 liberal intendments will be indulged in favor of its judgments 
 and decrees, the same as they are indulged in favor of the judg- 
 ments and decrees of the circuit court.^^ The principle, that 
 presumptions will be entertained in favor of the jurisdiction 
 of courts of general jurisdiction, has been applied to cases where 
 the decree is silent as to the service of process upon the de- 
 fendants.'^ 2 Where the record of a judgment or decree is relied 
 on collaterally, jurisdiction must be presumed in favor of a 
 court of general jurisdiction, although it is not alleged or fails 
 to appear in the record.'^* Where a decree is called in question 
 collaterally, it is regarded as a general rule, in all courts of 
 general jurisdiction that nothing is presumed to be out of 
 their jurisdiction but what specially appears to be so; but, on 
 the contrary, nothing shall be intended to be within the jurisdic- 
 tion of an inferior court but that which is expressly alleged. "^^ 
 Where the decree is silent as to the jurisdiction of the court 
 over the defendants, and there is no evidence showing that 
 jurisdiction was not acquired, it will be presumed that the 
 court had jurisdiction.^^ The rule, that nothing shall be intended 
 to be out of the jurisdiction of a superior court except that which 
 
 51 — Kilgour V. Gockley, 83 111. 54— Wenner v. Thornton, 98 III. 
 
 109; Cassel v. Joseph, 184 111. 383. 156. 
 
 52— Barnett v. Wolf, 70 111. 76; 55— Benefield v. Albert, 132 111. 
 
 Propst V. Meadows, 13 111. 157; 665-671; Bradley v. Drone, 187 111. 
 
 Von Kettler v. Johnson, 57 111. 175; Swearington v. Gulick, 67 111. 
 
 109; Matthews v. Hoff, 113 111. 90. 208. 
 
 53— Swearington v. Gulick, 67 56— Reedy v. Canfield, 159 111. 
 
 111. 208-212. 254.
 
 484 THE LAW OF ESTATES. 
 
 expressly appears to be so, is applicable where there is a col- 
 lateral attack upon the record of the court, which is silent as 
 to service upon the parties. The presumption of jurisdiction 
 in such case embraces not only jurisdiction of the subject mat- 
 ter, but also of the parties.^^ Should the record disclose noth- 
 ing, jurisdiction over the person as well as the subject matter 
 will always be presumed when the validity of the judgment 
 is questioned collaterally.^^ It will be presumed that the 
 coimty court had jurisdiction to enter a decree for a sale by an 
 administrator to pay debts, though the record does not affirma- 
 tively show that defendants in the proceedings were served 
 with process; and where no objection was made to the validity 
 of the decree for thirty years, and no evidence is offered in the 
 collateral proceedings attacking it, to show want of jurisdiction 
 it will be presumed that court had jurisdiction.^^ In a parti- 
 tion suit, in which a decree was entered before the great Clii- 
 cago fire of 1871, which destroyed the records of the court, it is 
 held : Service on defendants will be presumed after the expira- 
 tion of twenty years from a decree of a tribunal acting within its 
 jurisdiction.^"^ Mere irregularities in the proceedings of the 
 county court with reference to an administrator's sale do not 
 afford a basis for collateral attack.*^^ Under the Colorado deci- 
 sions it is held, that in a proceeding to sell real estate, the ad- 
 ministrator must comply strictly with the statute, in order to 
 bind and conclude interested parties.^^ 
 
 581. Hearing and decree — overplus. Section 107, chapter 
 3 entitled "Administration of Estates," gives the probate court 
 power in a proceeding to sell lands of a deceased person to pay 
 debts by executors, and administrators to enter an order caus- 
 
 57— Nickrans v. Wilk, 161 111. 60— Nickrans v. Wilk, 161 111. 
 
 76-83. 76. 
 
 58— Cassell v. Joseph, 184 111. 01- Bradley v. Drone, 187 111. 
 
 383. 175. 
 
 59— Nickrans v. Wilk, 161 111. 62— Fillmore v. Keithman, 6 
 
 76; Cassell v. Joseph, 184 111. 383. Colo. 130.
 
 SALE OF REAL ESTATE TO PAT DEBTS. 485 
 
 ing the lands of such persons to be surveyed and platted.®^ In 
 a proper proceeding probate courts and county courts having 
 probate jurisdiction, may by their decrees direct sale of every 
 kind of real estate which deceased owned when he died; and 
 also determine by such decrees the interest of all parties to the 
 proceeding, where such courts have acquired jurisdiction of the 
 person and subject matter of the suit.®^ And the probate court, 
 when material to the proceedings to sell real estate to pay debts, 
 may by its decree find the interest of a trustee in a deed of 
 trust ; particularly, where the property described in such deed of 
 trust relates to, or inciunbers the property sought to be sold by 
 such proceedings. And such court may by its decree ascertain 
 the amount due if any, under such deed of trust, and such 
 other matters and facts as may appear to the court essential or 
 material in such proceedings to sell the decedent's real estate.^^ 
 A decree in such proceedings is for sale of decedent's interest 
 in the real estate, and the court acts on decedent's title as it 
 finds it.^® 
 
 582. The homestead and dower rights. The adjustment of 
 the homestead and dower rights must of necessity, and do fre- 
 quently enter into proceedings to sell real estate to pay debts; 
 the adjustment of these rights may arise in various ways.^'^ 
 Among othei' things, the probate court, under the statute may, 
 with the assent of the persons entitled to an estate in dower, or 
 by the curtsy, or for life or for years, or of homestead to the 
 whole or in part of the premises, who is a party to the suit ad- 
 
 63 — See statute, cited in text, 129 111. 58; Virgin v. Virgin, 91 111. 
 
 Ante 563. Section 11, chapter 109, App. 204; Cutler v. Cutler, 188 111. 
 
 entitled "Plats." Starr & Curtis 285; Hayack v. Will, 169 111. 145. 
 
 Annotated Statutes of Illinois, Vol. 65 — Kittridge v. Nicholes, 162 
 
 3, p. 2973; Kurd's R. S. of 111., 111. 410. 
 
 1905, p. 1529. 66— Harding v. LeMoyne, 114 111. 
 
 64— See sections 99, 100, 101, 65; Wenninger v. Fietsam, 29 111. 
 
 chapter 3, "Administration of Es- App. 648. 
 
 tates," quoted in full. Ante 553, 67 — Section 101, chapter 3, "Ad- 
 
 554, 555; Kenley v. Bryan, 110 ministration of Estates," for etat- 
 
 111. 652; Newell v. Montgomery, ute see Ante 555.
 
 486 THE LAW OF ESTATES. 
 
 just all such rights; but such assent shall be in writing and 
 signed by such persons, and filed in the court wherein the said 
 proceedings are pending. When any such estate is sold the 
 value thereof shall be ascertained and paid over in gross, or 
 the proper proportion of the funds invested and the income paid 
 over to the party entitled thereto, during the continuance of the 
 estate.^^ "That every householder, having a family, shall be 
 entitled to an estate of homestead, to the extent in value of 
 $1,000, in the farm or lot of land and buildings thereon, etc." 
 "Such exemption shall continue after the death of such house- 
 holder, for the benefit of the husband or wife surviving, so 
 long as he or she continues to occupy such homestead, and of 
 the children until the youngest child, becomes twenty-one years 
 of age, etc." "No release, waiver or conveyance of the estate 
 so exempted shall be valid, unless the same is in writing, sub- 
 scribed by said householder and his or her wife or husband, if 
 he or she have one, and acknowledged in the same manner as 
 conveyances of real estate are required to be acknowledged, or 
 possession is abandoned or given pursuant to the conveyance; 
 or, if the exemption is continued to a child or children, without 
 the order of a court of competent jurisdiction directing a re- 
 lease. "^^ "In construing these several sections and different 
 statutes they are to be construed in pari materia. The husband 
 entitled to a homestead dying and leaving a widow and chil- 
 dren, the homestead becomes vested in the widow, who may 
 sell, encumber or abandon the same. In case of a sale or in- 
 cumbrance by such widow, with proper acknowledgment, the 
 conveyance or lien is complete against the children. They are 
 not vested with a right equal to that of the widow, but their 
 right is subordinate to hers. She dying, they become vested with 
 the estate of homestead if under twenty-one years of age; and 
 
 68— Ante 554, 555. thereto. Vol. 2, pp. 1865, 1871, 1874, 
 
 69 — See section 1, chapter 52, and cases cited under sections of 
 
 "Exemptions." Sections 2, 4 of statute; Vol. 4, pp. 614, 615, 616, 
 
 same chapter. Starr & Curtis An- and cases cited; Vol. 5, pp. 257, 
 
 notated Statutes of Illinois, with 258, and cases cited; Kurd's R. S. 
 
 Jones & Addington's Supplements of 111., 1905, pp. 1043, 1044.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 487 
 
 the last clause of section 4 of chapter 52 applies to them; or 
 if there be no vridow, but children of required age, that clause 
 also applies. By the provisions of the Probate Court act.'^ 
 Under these various provisions of the statutes of this State, 
 the probate court of any county where such court is established 
 by law, has power to enter a decree to sell land to pay debts, 
 and, with the assent of persons entitled to an estate in dower, 
 or for life, or for years, or of homestead in the whole or part 
 of the premises, who is a party to the suit, may include such 
 particular estate to be sold with the rest, where the assent is 
 in writing, signed, and etc. The widow surviving, with chil- 
 dren also surviving, is vested with the estate of homestead, and 
 her assent would be conclusive on the children and would bar 
 their right to a homestead therein. An exception to this rule 
 exists in a case where the householder leaves minor children 
 by a former marriage, and the surviving husband or wife is 
 only step-parent to such children. In such case, if the step- 
 parent does not stand in loco parentis he owes no duty of sup- 
 port to such children, and cannot convey, release, abandon or 
 dispose of the homestead so as to extinguish their interest. '^'^ 
 Where the sale of a homestead is held in such case, the pro- 
 ceeds thereof should be distributed to the surviving householder 
 and the step-children in proportion to their respective inter- 
 ests.'- A widow has no right to consent to a sale of her home- 
 stead that would defeat the right of the heirs thereto; thus a 
 widow in delicate health, with an infant child dependent upon 
 her for support, whose homestead is a small farm which she 
 could not till or occupy or rent, would be practically deprived 
 of the benefit of such homestead. In such case it is held, that 
 
 70 — Hayack v. Will, 169 111. 145, county courts under the "Adminis- 
 
 pp. 148, 149. See Probate Court tration Act." 
 
 Act, Ante, chapt. 1, sec. 2. Probate 71 — See note (69) citing stat- 
 
 courts in counties having a popu- utes. Hayack v. Will, 169 111. 145, 
 
 lation of more than 70,000 are construing and giving effect to 
 
 vested with the same powers and same. 
 
 jurisdiction with reference to the 72 — Capek v. Kropik, 129 111. 
 
 sale of land to pay debts, as are 509.
 
 488 THE LAW OF ESTATES. 
 
 the widow may consent to a sale of the homestead, and thereby 
 bar the right of her children to a homestead in the land.'^^ Chil- 
 dren residing with their father, who has a homestead estate in 
 the residence property owned by his divorced wife, are not 
 necessary parties to bill by her to have such homestead set off.'^* 
 The law is well settled to this effect; that where the homestead 
 premises do not exceed $1,000 in value, they cannot be sold 
 to pay debts by the administrator of a deceased householder 
 until after the termination of the exemption in favor of the 
 widow and children.'^^ And the holders of unsatisfied claims 
 may wait until the homestead estate is extinguished before ap- 
 plying for a sale of the property, even though more than twenty 
 years have elapsed since such claims were alio wed J ^ But when 
 a married woman joins with her husband in the execution of a 
 mortgage upon his lands, she waives her homestead estate and 
 right of dower in the lands. ^'^ And under section 4 of the Dower 
 Act, where the wife fails to join in a purchase money mortgage 
 she is not entitled to dower as against the mortgagee or those 
 claiming under him, but is entitled to dower as against all other 
 persons.'^^ A widow is entitled to be endowered of one-third of 
 the proceeds of a sale of real estate to pay debts remaining after 
 payment of mortgage liens and after deducting $1,000 for the 
 homestead interest, if such exists. A husband's homestead and 
 dower rights in the lands of his wife are determined by the law 
 in force at the death of his wife; and under the law in force 
 in this State since 1874, a wife has no power to devise her home- 
 stead to another, and thus deprive her husband of that estate J» 
 These rights created by statute law, may be enlarged, dimin- 
 ished or abolished as the legislature may direct, at any time 
 
 73— Capek v. Kropik, 129 111. 76— People v. Langham, 189 111. 
 
 509. 326. 
 
 74— Cutler v. Cutler, 188 111. 285. 77— Selb v. Montague, 102 111. 
 
 75— Hartman v. Schultz, 101 111. 446. 
 
 437; Oettinger v. Specht, 162 111. 78— Frederick v. Emig, 186 111. 
 
 179; Mueller v. Conrad, 178 111. 319. 
 
 276; Hannah v. Palmer, 194 111. 79— Henson v. Moore, 104 111. 
 
 41. 403.
 
 SALE OF REAL ESTATE TO PAY DEBTS. 489 
 
 before they become vested estates by the death of the person 
 from whom they are derived. Any change, however, in the law 
 after that will have no bearing on the parties' rights.^*^ And 
 it is held, the heirs, by paying off the mortgage debt upon lands, 
 may require the husband or wife who are endowed to con- 
 tribute his or her proportionate part of the debt.^^ 
 
 583. Service summons and notice by publication. The serv- 
 ice of summons must be had by reading.*^ j^ guardian has no 
 power to admit service for ward.^^ And so as to persons under 
 legal disability.^* Period of notice by publication is fixed by 
 law approved June 11, 1897, in force July 1, 1897.^^ A sum- 
 mons issued and made returnable to a term, when less than 
 ten days intervene, is void, and confers no jurisdiction.^^ 
 
 584. Notice time and terms of sale. Section 109, chapter 3, 
 entitled "Administration of Estates" directs "the time and 
 terms of sale that are a part of the decree or order of the court 
 for sale. And in such case, the power of the executor or ad- 
 
 80 — Henson v. Moore, 104 111. 84 — Section 25, chapter 86, 
 
 403. "Lunatics, etc." (1) Starr & Curtis 
 
 81— Montague v. Selb, 106 111. 49; Annotated Statutes of Illinois, Vol. 
 
 McNeer v. McNeer, 142 111. 388; 1, p. 2090, and cases cited; Hurd's 
 
 Kusch V. Kusch, 143 111. 353. See R. S. of 111., 1905, p. 1133. (2) 
 
 also sections 1 to 6, chapter 41, Starr & Curtis Annotated Statutes 
 
 "Dower." Starr & Curtis Anno- of Illinois, Vol. 1, p. 2668; Hurd's 
 
 tated Statutes of Illinois, with R. S. of 111., 1905, p. 1348; Wing v. 
 
 Jones & Addington's supplements Dodge, 80 111. 564. 
 thereto. Vol. 2, pp. 1456, 1462, 85— Section 9, chapter 100, "Act 
 
 1463; Vol. 4, p. 446; Vol. 5, p. 180, to regulate service by publication 
 
 and cases cited under sections of in courts of record and to repeal 
 
 statute in each volume; Hurd's R. acts in conflict therewith." Starr 
 
 S. of 111., 1905, pp. 768, 769. & Curtis Annotated Statutes of II- 
 
 82 — Section 104, chapter 3, "Ad- linois, with Jones & Addington's 
 
 ministration of Estates." Ante Supplements thereto. Vol. 4, pp. 
 
 558; Oettinger v. Specht, 162 111. 904, 905; Hurd's R. S. of 111., 1905, 
 
 182. p. 1413. See also Loeb v. Stern, 
 
 83— Clark v. Thompson, 47 111. 198 111. 383. 
 25; Chambers v. Jones, 72 111. 276; 86— Matthews v. Hoff, 113 111. 
 
 section 30, chapter 64, "Guardian 90; Sloan v. Graham, 85 111. 26. 
 and Ward."
 
 490 THE LAW OF ESTATES. 
 
 ministrator is derived from the decree and he must sell ac- 
 cording to its terms,^^ This section of the statute indicates the 
 administrator or executor must be present at the sale, and the 
 authorities so hold.^s Objections to sale that power was dele- 
 gated must be urged with reasonable diligence.^^ But what is 
 reasonable diligence in one ease may not be considered so in 
 another; the circumstances, facts and conditions of each case 
 seem to move the court to action, when it concludes a remedy 
 should be applied to right a grievous wrong.^*^ When the terms 
 of the sale by the decree of the court, require the same to be 
 for cash, and where such a decree is for debts allowed the execu- 
 tor or administrator has a right to demand that a bidder shall 
 make a cash deposit as a guarantee that he will consummate the 
 purchase if the court approves the sale ; and when such demand 
 is made by the administrator or executor it will constitute no 
 sufficient grounds for setting aside a sale.''^ The bidder at a 
 judicial sale bids for title conferred by the decree of sale, and 
 if he refuses to comply with his bid, he cannot after sale of 
 property to another for less sum than he bid, be compelled to 
 pay difference between amount bid by him and the amount for 
 which the property was finally sold, unless he was cited before 
 the court which rendered decree for sale, and in such court be 
 given an opportunity to show cause for refusing to complete 
 purchase.92 j>^ bidder at a judicial sale, if he discovers before 
 complying with his bid that the decree or judgment is inade- 
 quate to transfer such title as the deoree pretends to confer, he 
 may decline to complete his purchase.^^ The rule of caveat 
 emptor applies to all judicial sales, and has been in the following 
 cases applied to administrators' sales.^* If fraud or mistake 
 
 87 — See statute cited in text, Bank, 173 111. 381, and cases cited. 
 
 Ante 563; Reynolds v. Williams, 15 91— Allen v. Shepard, 87 111. 314; 
 
 111. 394. Mueller v. Conrad, 178 111. 281. 
 
 88— Sebastian v. Johnson, 72 111. 92— Tilton v. Pearson, 67 111. 
 
 282; Kellogg v. Wilson, 89 111. 357. App. 373. 
 
 89— Kellogg V. Wilson, 89 111. 93— Tilton v. Pearson, 67 111. 
 
 357. App. 373. 
 
 90— Elting V. First National 94— Shup v. Calvert, 174 111. 502;
 
 SALE OF REAL ESTATE TO PAY DEBTS. 491 
 
 enter into transaction, collusion or other serious irregularities 
 the sale will be held invalid.^^ And it is held: The adminis- 
 trator may withdraw realty from sale after decree and before 
 completion of sale, where the heirs come forward and advance 
 money sufficient to pay debts of estate; or if new assets of a 
 personal character are discovered that may be used to pay 
 debts, the administrator may withdraw realty from sale."^ It 
 is a well settled doctrine that an administrator cannot either 
 directly or indirectly purchase at his own sale, and, if he does, 
 creditors injured may in proper proceedings set the sale aside.^^ 
 
 585. The court must confirm the sale — the report of sale. 
 
 After the sale, under section 109 of the statute cited,"^ the ex- 
 ecutor or administrator must make report of sale, and by such 
 instrument fully inform the court what was in fact done at 
 such sale. The approval or disapproval of such report will 
 then follow. Until the sale is confirmed it is not a sale in the 
 legal sense.^^ ' ' Until the sale is confirmed, ' ' says Borer on Judi- 
 cial Sales,^ "it is only a sale in the popular sense, and not a 
 legal or judicial sale. The chancellor has a broad discretion 
 in the approval or disapproval of such sale. The accepted bid- 
 der acquires, by the mere acceptance of his bid, no independent 
 right .... to have the purchase completed, but is merely 
 a preferred proposer until confirmation of the sale by the court, 
 
 as agreed to by its ministerial agent Confirmation 
 
 is final consent, and the court, being in fact the vendor, may 
 consent or not, in its discretion." A county court may, before 
 confirmation, disapprove a conservator's sale made subject to its 
 approval. Where, though the sale is regularly and fairly made, 
 if it clearly appears to the court that a re-sale will be advan- 
 tageous to the estate of the party under disability, whose inter- 
 Sexton V. Sikking, 90 111. App. 97 — Elting v. First National 
 669. Bank, 173 111. 381. 
 
 95— Lockwood v. Mills, 39 111. 98— Anfe 563. 
 602; Tilley v. Bridges, 105 111. 336. 99— Hart v. Burch, 130 III. 426. 
 
 96 — Bozza v. Rowe, 30 111. 198. 1 — Rorer on Judicial Sales, sec. 
 
 124 et seq. and cases cited in notes.
 
 492 THE LAW OP ESTATES. 
 
 ests the court is bound to watch over and protect, and the court 
 may in its discretion in such case order a re-sale.2 The cases 
 which seem to make a distinction, between a sale by a master in 
 chancery and one by an administrator or conservator, in fact, 
 all of the cases, where judicial sales have been upheld, arose 
 upon a state of facts distinguishable from those of Jennings v. 
 Dunphy,^ where the sale was disapproved. There the purchase 
 money had been paid, a deed delivered to the purchaser, and, in 
 some instances, the property had been conveyed to third par- 
 ties. In all, a considerable length of time, ranging from six 
 months to nineteen years, was allowed to elapse between the 
 sale and the proceedings to set it aside ; and in many cases where 
 the purchaser had made lasting and valuable improvements. 
 Minors have a right to maintain a bill in chancery to impeach 
 a decree, when their rights are prejudiced by the decree en- 
 tered.^ And it is also held that an offer to indemnify minors 
 against loss, made after re-sale is ordered, comes too late, even 
 if it could have any .force whatever.^ 
 
 2 — Jennings v. Dunphy, 174 111. that case from others on the facts. 
 
 86. 4 — Johnson v. Buck, 220 111. 226. 
 
 3—174 111. 86, p. 91, and cases 5 — Compton v. McCafEree, 220 111. 
 
 cited on that page, distinguishing 137.
 
 CHAPTER XXX 
 
 SETTLEMENT OF EXECUTORS AND ADMINISTRATORS 
 — DISTRIBLTTION 
 
 Sec. 
 
 586. Annual and final settlements 
 
 of executors and administra- 
 tors. Notice to heirs. 
 
 587. How annual and final ac- 
 
 counts are treated. 
 
 588. Notice required by statute 
 
 must be given heirs before 
 final account is approved. 
 
 589. The remedy by appeal and 
 
 what will be considered in 
 such case. 
 
 590. Closed estates, final order ef- 
 
 fect of. 
 
 591. Miscellaneous provisions ap- 
 
 plicable in accounting. 
 
 592. Distribution to creditors. 
 
 593. Settlement enforced, con- 
 
 tempt, interest on assets. 
 
 Sec. 
 
 594. Failure to pay over devastO' 
 
 vit. 
 
 595. Liability of representatives 
 
 for interest. 
 
 596. Removal of representatives 
 
 of estate by probate courts. 
 
 597. Demand, arrest, commitment 
 
 and imprisonment of repre- 
 sentative. 
 
 598. Failure to pay over, devasta- 
 
 vit, liability of sureties. 
 
 599. Order for payment of legacies. 
 
 600. Bond from distributees to re- 
 
 fund. 
 
 601. Refunding by distributees. 
 
 602. Suits between associate rep- 
 
 resentatives. 
 
 Sec. 586. Annual and final settlements of executors and ad- 
 ministrators — notice to heirs. "All executors and administrators 
 shall exhibit accounts of their administration for settlement, to 
 the county court from which the lettere testamentary or of ad- 
 ministration was obtained, at the first term thereof after the ex- 
 piration of one year after the date of their. letters and in like 
 manner every twelve months thereafter or sooner, if required, 
 until the duties of their administration are fully completed: 
 Provided, that no final settlement shall be made and approved 
 by the court, unless the heirs of the decedent have been notified 
 
 493
 
 494 THE LAW OF ESTATES. 
 
 thereof, in such manner as the court may direct."^ Under the 
 well settled law of this State, and ever since the leading case of 
 Lewis V. Lyons,^ it has been continually held, the administrator 
 takes the absolute title to the personal estate as trustee for the 
 heir or heirs or distributees, such being entitled to the surplus 
 after payment of the costs of administration and the just debts 
 against the estate in the administrator's hands. The administra- 
 tor, therefore must discharge the duties of a trustee imposed by 
 the statute upon him.^ Under this statute the court of probate is 
 required to enforce the settlement of the accounts of executors 
 and administrators; and such court may act in such matter on 
 its own motion or on that of interested parties.* Thus an ex- 
 ecutor who is also a legatee under a will occupying a dual re- 
 lation to the administration of an estate, has official acts to per- 
 form, that are under the control of the court of probate; and 
 this control of such court over the executor as such, will continue 
 until the estate is administered and the residue turned over 
 to the acting executor as legatee under the order of court.^ 
 
 1 — R. S. 1845, p. 56, section 123. in the county court challenging 
 
 Section 112, chapter 3, "Adminis- the correctness of the annual re- 
 
 tration of Estates." Starr & Cur- ports filed by a deceased executor 
 
 tis Annotated Statutes of Illinois, is in substance a chancery proceed- 
 
 with Jones & Addington's supple- ing, wherein the Supreme Court 
 
 ments thereto. Vol. 1, pp. 336, 337, will review the facts on appeal 
 
 and cases cited; "Vol. 4, p. 43, and from the Appellate Court. In the 
 
 cases cited; Vol. 5, p. 20, and cases same case it is also held: The ac- 
 
 cited; Kurd's R. S. of 111., 1905, p. ceptance by residuary legatees of 
 
 123. amounts admitted to be due by the 
 
 2 — 13 111. 121. executor and ordered by the court 
 
 3 — Lewis V. Lyons, 13 111. 121; to be paid Ihem as their distrib- 
 
 Penn v. Folger, 182 111. 76. utive shares, will not estop such, 
 
 4 — Rowan v. Kirkpatrick, 14 111. before final settlement, from chal- 
 
 1; Marsh v. The People, 15 111. lenging the correctness of the ex- 
 
 284; Duffin v. Abbott, 48 111. 17; ecutor's report on which the dis- 
 
 Tracey v. Hadden, 78 111. 30; tribution is based. 
 Cawes V. Whitman, 10 Conn. 121; 5— Ridgeley v. The People, 163 
 
 United States v. Walker, 109 U. S. 111. 112. In this case it is held: 
 
 258; Williams on Executors, 375, That one who is, by the terms of 
 
 2057; Bliss v. Seaman, 165 111. 429. a will, bound to close the admin- 
 
 In the latter case it is held: That istration of an estate upon the 
 
 a claim filed by residuary legatees death of the executrix, has such
 
 SETTLEMENT OF EXECUTORS, ETC. 
 
 495 
 
 587. How annual and final accounts are treated. A partial 
 or annual account of an executor or administrator is usually 
 an ex parte proceeding, and is only a judgment de bene esse and 
 only considered prima facie correct, and although not excepted 
 to or appealed from, is open to subsequent correction or chal- 
 lenge.^ But upon a final accounting, the court may hear testi- 
 mony for the purpose of correcting former accounts and re- 
 ports.'^ And the presumption of law is that such court heard 
 only competent evidence relating to such matter.^ In the ad- 
 justment of final accounts of the representatives of estates the 
 court of probate has equitable jurisdiction and may correct er- 
 roneous charge of executor against himself.^ But payment by 
 mistake without an order of court cannot effect the settlement 
 
 an interest in the matter of set- 
 tlement as will enable him to com- 
 pel the executrix to file a report, 
 as executrix, with the county or 
 probate court. 
 
 6 — 7 Am. & Eng. Ency. of Law, 
 442, and cases cited; Bond v. Lock- 
 wood, 33 111. 212; Long v. Thomp- 
 son, 60 111. 27; Bennett v. Hanifen, 
 87 111. 31; Bliss v. Seaman, 165 
 111. 428; Marshall v. Coleman, 187 
 111. 569. 
 
 7 — Ford V. First National Bank, 
 100 111. App. 73; Same v. Same, 201 
 111. 120. In this case it is held to 
 be the duty of an executor or ad- 
 ministrator to guard the interests 
 of creditors of the estate, and 
 when a claim is presented for al- 
 lowance the law will hold every 
 creditor to be represented by such 
 executor or administrator. In that 
 case, the question arose as to how 
 far the probate court could look 
 into and correct the allowance of 
 claims after the term at which 
 they are allowed. The court hold- 
 ing, as between the creditors and 
 the heirs-at-law, such may be done. 
 
 upon a petition filed for the sale 
 of real estate to pay debts, but a 
 distinction is to be made of the 
 effect of the allowance of a claim 
 as to an heir and as to a creditor 
 or legatee. Ward v. Durham, 134 
 111. 195. So far as real estate is 
 concerned, the allowance of a claim 
 is merely prima facie evidence of 
 the debt due by the estate. Noe v. 
 Moutray, 170 111. 169. But as 
 against the personal estate an al- 
 lowance of a claim is concFusive 
 until reversed by a superior tri- 
 bunal, unless impeached for fraud, 
 accident or mistake, citing: Cook 
 V. Wood, 24 111. 295; Stone v. 
 Wood, 16 111. 177; Gould v. Bailey, 
 44 111. 491; Wheeler v. Dawson, 
 63 111. 54; Ward v. Durham, supra; 
 Schlink v. Maxton, 153 111. 447; 
 Sherman v. Whiteside, 190 111. 576. 
 
 8 — Emerick v. Hileman, 71 111. 
 App. 521. 
 
 9— Millard v. Harris, 119 111. 
 185; Harris v. Millard, 17 111. App. 
 512; He ward v. Slagle, 52 111. 336; 
 Pinneo v. Goodspeed, 120 111. 524.
 
 496 THE LAW OF ESTATES. 
 
 of the estate; and in such case no action can be maintained to 
 recover back such payment.i*^ It is held where there is gross 
 negligence that might have been avoided by an executor or ad- 
 ministrator, the court may charge against the representative of 
 the estate such sum of money as might have been realized by 
 such representative by the exercise of reasonable care and dili- 
 gence.ii The payment of claims by an executor, without re- 
 quiring their probate, casts the burden upon the executor of 
 showing their validity,^ ^ 
 
 588. Notice required by statute must be given the heirs 
 before final account is approved. A final settlement without 
 notice as required by statute is void.^^ The principle is very 
 general, subject to few exceptions, that all persons whose rights 
 are to be affected by an order or judgment of a court, must have 
 notice, actual or constructive, of the pendency of the proceed- 
 ing against them. Parties in interest must be parties in a suit 
 or proceeding which may affect their interests. The case cited 
 is a good illustration of the propriety of this rule; for, had the 
 distributees, or their guardians, been notified that an order of 
 distribution was to be entered, they could have resisted that 
 portion of the order which allowed appellant, as widow one- 
 third of the surplus, the legality of which is not pretended by 
 her counsel. Were this a bill in chancery for distribution, it 
 will not be denied all the distributees would be made parties.^* 
 The principle that notice to parties must be given, to conclude 
 them, pervades the entire realm of jurisprudence.^^ The notice 
 required by the statute is presumed to have been given, where 
 
 10— Foskett V. Wolf, 19 111. App. 13— Long v. Thompson, 60 111, 
 
 33; Lochenmeyer v. Fogarty, 112 27; Mitford's Ch. 39; Story's Eq. 
 
 111. 572. PI. 185. 
 
 11 — In re Corrington's Estate, 14 — Morris v. Hogle, 37 111. 150; 
 
 124 111. 363. Long v. Thompson, 60 111. 27. 
 
 12 — Emerick v. Hileman, 177 111. 15 — Hopkins v. McCann, 19 111. 
 
 368; Litch v. Clinch, 136 111. 410; 116; Collins v. Kinnare, 89 111. 
 
 Holeton v. Thayer, 89 111. App. App. 241; Cagney v. O'Brien, 83 
 
 187. 111. 72; Dickson v. Hitt, 98 111. 
 
 300.
 
 SETTLEMENT OF EXECUTORS, ETC. 497 
 
 the court acts upon final report of administrator; but such 
 presumption may be overcome by evidence showing there was 
 in fact no notice.^*' But the final settlement may be impeached 
 for fraud by proper proceedings in a general court of ehan- 
 cery.i''^ It is held, that a' notice to widow and heirs of a mo- 
 tion to set aside order approving executor's report is unneces- 
 sary.18 In the case in question it was found the court had juris- 
 diction to entertain a motion to set aside the order approving 
 a report for an omission therein, as the result of fraud or mis- 
 take and make provision for fees. It being held, that in the 
 absence of an express waiver by an executor of his right to fees, 
 it is the duty of the court of probate to determine the amount 
 to be allowed him, and the fact that the executor makes no entry 
 for fees in his final report, is not a waiver, since he has no right 
 to fix his own fee. 
 
 589. The remedy by appeal and what will be considered in 
 such. case. It has been repeatedly held that each item in an 
 administrator's account is a separate claim depending alone 
 upon its own merits, having no connection with the other items ; 
 and that an appeal by the administrator from an order or judg- 
 ment, rejecting one of his claims against the estate, only brings 
 up for review the propriety of the ruling in respect to such 
 rejected claim.^^ In a recent case it is again held, that an 
 appeal from an order disallowing part of claim does not bring 
 up for review other parts of such claim allowed in the court 
 below.2o 
 
 590. Closed estate — final order — effect of. Final settlement 
 approved by the court is conclusive between distributee and 
 
 16— Eagan v. Clark, 87 111. App. 185; Curtis v. Brooks, 71 111. 125 
 
 248. Morgan v. Morgan, 83 111. 196 
 
 17 — Anderson v. Anderson, 178 Marshall v, Coleman, 187 111. 585 
 
 111. 164. People v. Kohlsaat, 168 111. 39. 
 
 18— Griswold v. Smith, 221 111. 20— Peterman v. U. S. Rubber 
 
 341. Co., 221 111, 581. 
 
 19— Millard v. Harris, 119 111. 
 31
 
 498 THE LAW OF ESTATES. 
 
 executor, administrator or ^lardian and their sureties.21 No 
 collateral attack can be made upon an order of the court of 
 probate approving representative's final account and report.22 
 Where an administrator completes the settlement of an estate, 
 and an order of final settlement is signed by judge, but not 
 entered of record, the court of probate may enter it nunc pro 
 tunc?^ And it is held an estate is closed, notwithstanding 
 no final order of discharge is entered, if it appears the executor 
 has filed his final account by which he shows a complete admin- 
 istration of the estate, and which account has been eonsidared 
 and approved by the court of probate.^* 
 
 591. Miscellaneous provisions applicable in accounting. A 
 
 payment to heirs may be ordered at the time of presenting first 
 account, without waiting for expiration of year from grant 
 of letters, particularly is this so, where no creditor or other 
 interested party are affected by such order.^^ If an estate is 
 declared insolvent and closed under section 59 of the Adminis- 
 tration Act,26 the administrator in that case, is not required 
 to give notice of final settlement.^'^ A discharge of an adminis- 
 trator before all debts are paid is void as to unpaid creditors, 
 who by a proper proceeding may pursue the sureties on the 
 bond of administrator. 28 Omission to make a final report may 
 make administrator liable.-^ But one who receives from an 
 executor more money than he is entitled to, cannot complain 
 of erroneous credits in the executor's account, particularly, 
 where there is no fraud chargeable to the executor.^" The bal- 
 
 21— People V. Lease, 71 111. 394. 27— Wood v. Johnson, 13 111. 
 22— People v. Kohlsaat, 168 111. App. 548. 
 3g_ 28 — Diversey v. Johnson, 93 111. 
 
 23-Frame v. Frame, 16 111. 125. ^^'^' Blanchard v. Williams. 70 111. 
 
 647. 
 24-People v. Kohlsaat, 66 111. 29-Rucker v. Redmon, 67 111. 
 App. 507; Same v. Same, 168 111. jg^ g^^ ^j^^ ^^^^^^^^ 
 
 chapter 3, "Administration of Es- 
 25— Reynolds v. People, 55 111. tates." {Post 593.) 
 328. 30— Williams v. Rhodes, 81 111. 
 
 26— Ante 425. 571.
 
 SETTLEMENT OF EXECUTORS, ETC. 499 
 
 ance from an ancillary administration should be returned to the 
 principal administration.^^ 
 
 592. Distribution to creditors. "Upon every such settlement 
 of the accounts of the executor or administrator, the court shall 
 ascertain the whole amount of moneys and assets belonging to 
 the estate of the deceased, which have come into the hands of 
 such executor or administrator, and the whole amount of debts 
 established against such estate; and if there is not sufficient to 
 pay the whole of the debts, the moneys aforesaid, shall be ap- 
 portioned among the several creditors pro rata, according to 
 their several rights, as established by this Act; and thereupon 
 the court shall order such executor or administrator to pay the 
 claims which have been allowed by the court, according to such 
 apportionments. And the court, upon every settlement, shall 
 proceed in like manner until all the debts are paid, or the as- 
 sets exhausted. "32 Where an administrator acting under an 
 honest belief that the estate he represented was solvent, paid a 
 creditor more than his pro rata distributive share of such estate ; 
 and afterwards brought suit at law against such creditor for 
 money had and received for the use of the estate; held action 
 was rightly brought under the circumstances.*^^ An interlocu- 
 tory order of distribution made by the probate court was by 
 that court corrected at a term subsequent to the term at which 
 such order was entered; it being held, the probate court had 
 power to correct its records at a subsequent term.-^^ 
 
 593. Settlement enforced — contempt — interest on assets. 
 
 ' ' The county courts of this State shall enforce the settlements of 
 
 31 — Young V. Wittenmyre, 123 124; see also the following cases 
 
 111. 303. supporting the statute, and in ad- 
 
 32 — R. S. 1845, p. 562, sec. 124. dition thereto see Ante 463; Am- 
 
 Section 113, chapter 3, "Adminis- mons v. People, 11 111. 6; Arm- 
 
 tration of Estates." Starr & Curtis strong v. Cooper, 11 111. 560; 
 
 Annotated Statutes of Illinois, Phelps v. People, 78 111. 149; Dun- 
 
 with Jones & Addington's Supple- lop v. McGee, 98 111. 287; Mack v. 
 
 ments thereto. Vol. 1, p. 338, and Woodruff, 87 111. 570. 
 
 cases cited; Vol. 4, p. 44, and cases 33— Wolf v. Beaird, 123 111. 585. 
 
 cited; Hurd's R. S. of 111., 1905, p. 34— Kinne v. Schumacher, 65 111. 
 
 App. 344.
 
 500 THE LAW OF ESTATES. 
 
 estates within the time prescribed by law, and upon the failure 
 of an executor or administrator to make settlement at the next 
 term of the court after the expiration of said time, the court 
 shall order a citation to issue to the sheriff of the county where 
 the executor or administrator resides, or may be found, requir- 
 ing said executor or administrator to appear at the next term 
 of the court and make settlement of the estate, or show cause 
 why the same is not done; and if the executor or administrator 
 fails to appear at the time required by such citation, the court 
 shall order an attachment requiring the sheriff of the county 
 where the executor or administrator resides, or may be found, 
 to bring the body of said executor or administrator before the 
 court ; and upon failure of an executor or administrator to make 
 settlement under the order of the court after having been so 
 attached, he may be dealt with as for contempt, and shall be 
 forthwith removed by the court, and some discreet person ap- 
 pointed in his stead ; the costs of such citation or attachment to 
 be paid by the delinquent executor or administrator, and the 
 court shall enter a judgment therefor, and a fee bill may issue 
 thereon. All moneys, bonds, notes and credits which any ad- 
 ministrator or executor may have in his possession or control 
 as property or assets of the estate, at a period of two years and 
 six months from the date of his letters testamentary or of ad- 
 ministration, shall bear interest, and the executor or adminis- 
 trator shall be charged interest thereon from said period at the 
 rate of ten per cent, or after two years and six months from 
 any subsequent time that he may have discovered and received 
 the same, unless good cause is shown to the court why such 
 should not be taxed. "^'^ 
 
 35 — Laws of 1859, p. 95, section cited; Kurd's R. S. of 111., 1905, p. 
 
 10. Section 114, chapter 3, "Ad- 124; see also section 70 Adminis- 
 
 ministration of Estates." Starr & tration Act as amended in 1903 
 
 Curtis Annotated Statutes of Illi- (ante 482), by which the time for 
 
 nois, with Jones & Addington's Sup- settlement and distribution of es- 
 
 plements thereto, vol. 1, p. 339, tates was reduced from two to one 
 
 and ca.ses cited; vol. 4, p. 44, and year. See also section 7, chapter 
 
 ^ases cited; vol. 5, p. 20, and cases 148, entitled "Wills" (chapter vii.
 
 SETTLEMENT OF EXECUTORS, ETC. 501 
 
 594. Failure to pay over— devastavit. "If any executor or 
 administrator shall fail or refuse to pay over any moneys or 
 dividend to any person entitled thereto, in pureuance to the 
 order of the county court, lawfully made, within thirty days 
 after demand made for such moneys or dividend, the court, 
 upon application, may attach such delinquent executor or ad- 
 ministrator, and may cause him to be imprisoned until he shall 
 comply with the order aforesaid, or until such delinquent is dis- 
 charged by due course of law; and moreover, such failure or 
 refusal on the part of such executor or administrator shall be 
 deemed and taken in law to amount to a devastavit, and an ac- 
 tion upon such executor's or administrator's bond, and against 
 his securities, may be forthwith instituted and maintained; and 
 the failure aforesaid to pay such moneys or dividend, shall be 
 a sufficient breach to authorize a recovery thereon. "^^ 
 
 595. Liability of representatives for interest. Section 114 
 of the Administration Act,^"^ requires that the administrator be 
 charged with interest at the rate of ten per cent per annum on 
 balance in his hands as administrator from the period of two 
 years and six months after the issuance to him of the letters of 
 administration, unless good cause is shown why he should not be 
 so charged. And the burden of showing an excuse for not mak- 
 ing a distribution within the legal time is cast upon the admin- 
 istrator.38 After the time for presenting claims has expired 
 and the administrator has filed a report showing a cash balance 
 in his hands belonging to the heirs of decedent, he should ap- 
 
 ante 125), reducing time for con- 1905, p. 124. See also section 13, 
 
 test of will from two to one year, et seq., chapter 103, entitled "Of- 
 
 36— R. S. 1845; p. 562, sec. 126. ficial Bonds" Starr & Curtis, etc.. 
 
 Section 115, chapter 3, "Adminis- "Vol. 2, p. 2835, and cases cited; Vol. 
 
 tration of Estates." Starr & Curtis 4, p. 907, and cases cited; Kurd's 
 
 Annotated Statutes of Illinois, R. S. of 111., 1905, p. 1419. See 
 
 with Jones & Addington's Supple- McDonald v. People, 222 111. 325; 
 
 ments thereto, vol. 1, pp. 340, 341, also (post 597). 
 and cases cited; vol. 4, p. 44, and 37 — Ante 593, statute quoted, 
 cases cited; Kurd's R. S. of 111., 38 — Haskins v. Martin, 103 111. 
 
 App. 115.
 
 502 THE LAW OF ESTATES. 
 
 ply for an order of distribution. It is part of his duty to do 
 so,^^ And if he fails to do so after two years and six months 
 from the date of letters of administration he is chargeable with 
 ten per cent annual interest on moneys, notes, bonds and credits 
 in his possession and control as assets of the estate.^^ And he 
 may be liable for interest before that time, if it appears he re- 
 ceives interest on the funds of the estate in his hands.*^ The 
 term "settlement" as used in section 114, refers to an account- 
 ing to ascertain the condition of the estate, that the order for 
 distribution may follow.*^ 
 
 596. Removal of representatives of estate by probate courts. 
 Power is conferred on such courts by the statutes of Illinois, 
 to remove representatives of estates for many causes, therein 
 set forth.'*^ It will be found from an examination of the au- 
 thorities in point, that the established doctrine of this State, is, 
 that courts of probate, must consistently and strictly follow 
 the statute when proceeding to remove any representative of an 
 estate from office. And it is well settled in this State, that where 
 such courts assume incidental power and remove a representa- 
 tive under such assumed power, disregarding the statute in the 
 exercise of such power, their orders in that regard will not be 
 sustained; particularly is this true, where such court assumes 
 jurisdiction under special statutory laws in cases where a pen- 
 alty attaches, or an offense is committed criminal in its na- 
 ture.*^ In the case of Ra/nifan v. Needles,'^^ where section 114 
 of the Administration Act formed the basis of the proceeding for 
 
 39— /TO re Estate of Schofield, 99 iZ—Ante 593, sec. 114, chapt. 3, 
 
 111. 513; Randolph v. Trustees of "Administration of Estates." 
 
 Schools, 26 111. App. 241; Haskins 44— See sections 26, 30, 31, 32, 
 
 V. Martin, 103 111. App. 115. 114, 115, chapter 3, "Administra- 
 
 40 — Marshall v. Coleman, 1S7 tion of Estates." Ante 430, 431, 
 
 111. 556. 433, 435, 593, 594, where sections 
 
 41 — In re Estate of Schofield, 99 of statute in question are set forth 
 
 111. 513; Hough v. Harvey, 71 III. at large; see also cases cited under 
 
 72. sections of this work noted. 
 
 42— Randolph v. Trustees of 45—108 111. 403. 
 Schools. 26 111. App. 241.
 
 SETTLEMENT OF EXECUTORS, ETC. 503 
 
 issuing a citation against an executor, directing him to appear 
 before the county court at a day fixed ''and present his accounl 
 of said estate for settlement as said executor," the county court 
 assuming power under such citation to remove, did remove such 
 executor from his office. It is held in that case, page 411 : ' ' The 
 coimty court has no power, in any case, to remove an executor 
 or administrator upon a mere citation to appear and settle his 
 accounts. The power of removal is not an incident to the pro- 
 ceeding under such a citation, and hence any attempted removal 
 was unauthorized. The only legal consequences which attach 
 to one's failure to appear and make settlement of his accounts, 
 is, that he subjects himself to an attachment, as in case of a con- 
 tempt, and in such case it is made the duty of the court to order 
 an attachment for his arrest, and when brought before the court, 
 if he still neglects or refuses to make settlement of his accounts, 
 the court is then required to deal with him as for a contempt, 
 and to forthwith remove him. The removal is required not only 
 in the interest of the estate, but it is doubtless also intended 
 as a punishment for contempt. To remove one before he is at- 
 tached and brought into court, would be in effect to punish him 
 for an alleged offense he has had no opportunity of answering, 
 which is inconsistent with the genius and spirit of our free in- 
 stitutions, as well as violative of the organic law of the State.'*^ 
 
 597. Demand — arrest — commitment and imprisonment of 
 representative. In the case of Haines v. The People,*'' citing 
 from page 177, it is held: Before the probate court is war- 
 ranted in making a commitment in any case under section 114 
 of the Administration Act, it must appear, among other things, 
 that the administrator has failed or refused to pay over the 
 moneys in his hands, to the pei-son or persons entitled thereto, 
 in pursuance of the order of the court, within thirty days after 
 demand made for such moneys. A demand upon the adminis- 
 
 46 — Holding the same, as Hani- ler v. Hider, 9 Colo. Ct. of App. 
 fan V. Needles, the following: 56. 
 Monroe v. People, 102 111. 406; Mil 47—97 111. 161.
 
 504 THE LAW OF ESTATES. 
 
 trator for the moneys is clearly one of the necessary elements 
 that enter into the offence which authorizes such commitment." 
 Page 178 : "On principle, the fact of a demand as a constituent 
 part of the offense contemplated by the statute, could no more 
 be dispensed with by mere agreement than the element of mal- 
 ice in murder, or felonious intent in larceny. As well might 
 it be contended that a thing may exist as a whole without all 
 of its constituent parts. It is impossible in the very nature of 
 things. And it is equally impossible by mere private agreement 
 to dispense with any of the elements that enter into a criminal 
 offence; the power to do that is vested in the legislature alone. 
 It may be urged that having waived the demand, the adminis- 
 trator is just as culpable for failing to pay over the money as 
 
 if the demand had been made The conclusive answer 
 
 to this is, that the offence consists in failing to pay over after 
 demand made, and not after demand waived, and there is no 
 power outside of the legislature to substitute one for the other. ' ' 
 It is also held in the same case, that a writ of error from the 
 Supreme court lies to review the order of the probate court 
 committing for contempt. And it is held, where an order of the 
 court of probate granted time for payment, demand must be 
 made after expiration of such order. Demand made prior to 
 the entry of such an order is a nullity.'*^ The court can im- 
 prison only upon state of facts mentioned in statute; and be- 
 fore committing administrator the court should find the amount 
 of money, property or choses in action in the hands of the ad- 
 ministrator or that should be in hand belonging to the estate. 
 For if it should appear, the administrator had no money of the 
 estate in his hands to pay a claim, the court could not commit 
 or imprison.*^ There must be evidence of a demand for the 
 payment of money due the petitioner under the order of the 
 court.^" Where an administrator committed by the order of 
 
 48— Johnson v. Von Kettler, 66 291; Von Kettler v. Johnson, 57 
 
 111. 63; Wright v. People, 61 111. 111. 109. 
 
 382. 50— Blake v. People, 161 111. 74. 
 
 49 — Gorton v. Frizzell, 20 111. In this case, the executor was com-
 
 SETTLEMENT OF EXECUTORS, ETC. 505 
 
 the county court, for a failure to pay a petitioning claimant, 
 sets up as a defense, that he, the administrator was surety on 
 a certain note given by the petitioning claimant, and as such 
 administrator, advanced and paid from the funds of the estate 
 the said note, with the agreement, between himself and the 
 claimant, that the amount so advanced, should be deducted from 
 any money due the petitioning claimant under the final order 
 of court in the estate he represented, was held to be a good de- 
 fense to the action of the county court committing for con- 
 tempt.^i And it also appears that a set-off will be allowed as 
 a matter of common justice, where the administrator committed 
 or sought to be committed, is properly entitled to such against 
 a claimant in the county court in such matter.^ 2 n ig j^eid that 
 section 115 of the Administration Act, providing for the im- 
 prisonment of an executor or administrator refusing to pay over 
 money "within thirty days after demand," does not postpone 
 the bringing of a civil action against his bondsman until the 
 expiration of that period. A judgment finding amount due from 
 an administrator and approving his report by the probate court 
 is binding in a suit on his official bond, and cannot be reviewed 
 or set aside in a suit upon the administrator's bond, unless it be 
 impeached for fraud.^^ 
 
 598. Failure to pay over — devastavit — liability of sureties. 
 A devastavit is a mismanagement and waste by the personal 
 representative of the estate and the proceeds arising therefrom 
 entrusted to executor, administrator, guardian, etc., by which 
 
 mitted to jail for contempt of evidence no order of commitment 
 
 court, in failing to pay over a sum was authorized. 
 
 of money ordered to be paid by the 51 — Blake v. People, 161 111. 74. 
 
 county court. There was no evi- 52 — Walker v. Chovin, 16 111. 
 
 dence at the hearing of the peti- 489; Heckenkemper v. Dingwehrs^ 
 
 tion of any demand upon the de- 32 111. 538; Blake v. People, 161 
 
 fendant for the money due the peti- III. 74. 
 
 tioner under the order as required 53 — See section 115, chapter 3, 
 
 by section 115, chapter 3, "Admin- "Administration of Estates." Ante 
 
 istration of Estates," and it was 594, statute set forth at large; 
 
 held that because of such lack of McDonald v. Peopis, 222 111. 325.
 
 506 THE LAW OF ESTATES. 
 
 a loss occurs to the estate they represent. It will take place, 
 when a direct abuse of the estate results from the action of such 
 representative as, where he sells, embezzles and converts to his 
 own use the estate entrusted to him ; or by mal-administration, in 
 the payment of claims which are not owing, or by failing to 
 pay others which should be paid, or paying claims out of the 
 order or class in which they should be paid; or by paying lega- 
 cies before all the debts have been satisfied; or by the neglect 
 of the representative to sell goods in a reasonable time, if per- 
 ishable, before wasted.-^'' Where an administrator, on the sale 
 of property belonging to the estate, received the notes of the 
 purchasers with security, and it resulted that the principals and 
 sureties were insolvent; held, this will show prima facie, that 
 the administrator had neglected his duty, and was gTiilty of a 
 devastavit.^^ The unauthorized loaning of estate money by the 
 executor is a devastavit.^^ Acts of negligence in respect of the 
 control or disposition of the estate, whereby the rights of cred- 
 itors or legatees, or parties entitled in distribution, are defeated, 
 amount to a devastavit.^' Before the enactment of the legisla- 
 ture of this State, providing for the bringing of suits on bonds 
 of any public officer, and any and all their sureties, or against 
 one or more of them jointly or severally, and the extending the 
 enactments to executors, administrators, etc., it was necessary 
 to prove a devastavit in order to recover. But ever since the 
 statute went into effect, it is only necessary by pleadings in suit 
 on bond, to recite and aver with sufficient certainty the breach 
 of the bond and the matter complained of for which the sure- 
 ties are liable.^^ The statute enters into and forms a part of an 
 official bond.^^ And where the bond is conditional for the faith- 
 ful performance of the duties of the office, the sureties are liable 
 
 54 — Bouvier Law Dictionary, 57 — In re Corrington Estate, 124 
 
 "Devastavit." 111. 363; Dusing v. Nelson, 7 Colo. 
 
 55— Curry v. People, 54 111. 263. 184; Howe v. People, 7 Colo. Ct. 
 
 56 — Johnson v. Maples, 49 111. of App. 535. 
 
 101; Graffenreid v. Kundert, 34 111. 58— Tupker v. People, 87 111. 76. 
 
 App. 483. 59 — In re Estate of Ramsey v. 
 
 People, 197 111. 586.
 
 SETTLEMENT OF EXECUTORS, ETC. 5Q7 
 
 for all duties imposed upon the principal, which come within 
 the scope of his office ; whether required by laws enacted before 
 or after the execution of the bond.^o g^^ while the general 
 and well settled rule is to the effect, that the final account and 
 report of an executor or administrator presented to the court 
 of probate, and by it heard and approved is conclusive by the 
 adjudication in that proceeding, it is also well settled, that judg- 
 ment orders of that character arc not to be extended by mere 
 intendment, to matters not necessarily involved in the determi- 
 nation.6' Until a final settlement, if it appears there be omis- 
 sions or mistaJves in the reports theretofore made, the probate 
 court may correct such mistakes, as may also any court to which 
 an appeal be taken.62 And so it is held a report of the executor 
 thus presented, upon which there has been no adjudication by 
 the court of probate, cannot be considered conclusive on the 
 sureties.^^ 
 
 599. Order for payment of legacies. "Whenever it shall 
 appear that there are sufficient assets to satisfy all demands 
 against the estate, the court shall order the payment of all lega- 
 cies mentioned in the will of the testator, the specific legacies 
 being the first to be satisfied."''* 
 
 600. Bond from distributees to refund. "Executors and 
 administrators shall not be compelled to pay legatees or dis- 
 tributees until bond and security is given by such legatees or 
 
 60 — Frendenstein v. McNier, 81 408-409. See sections 1, 13, chap- 
 Ill., 208; Ramsey v. People, 197 111. ter 103, "Official Bonds." Starr & 
 586; Longan v. Taylor, 130 111. Curtis Annotated Statutes, Vol. 2, 
 412; Mecham's Public Offices and pp. 2831 to 2835, and cases cited; 
 Officers, sections 295, 296. Kurd's R. S. of 111., 1905, pp. 1417, 
 
 61 — Jessup V. Jessup, 102 111. 1419. 
 480; People v. Hoffman, 182 111. 64— R. S. 1845, p. 563, sec. 127, 
 
 408. Section 116, chapter 3, "Adminis- 
 
 62 — Bruce v. Doolittle, 81 111. tration of Estates." Starr & Cur- 
 
 103; Bennett v. Hanifin, 87 111. tis Annotated Statutes of Illinois, 
 
 31. Vcl. 1, pp. 341, 342, and cases cited 
 
 63 — People v. Hoffman, 182 111. under section of statute; Hurd's 
 
 R. S. of 111., 1905, p. 124.
 
 508 THE LAW OF ESTATES. 
 
 distributees to refund the due proportion of an}- debt which may 
 afterwards appear against the estate, and the costs attending the 
 recovery thereof; such bond shall be made payable to such ex- 
 ecutor or administrator, and shall be for his indemnity and 
 filed in court. "^^ A creditor who has recovered a judgment 
 on his claim against an estate in the county court, is not a 
 "distributee" within the meaning of sections 116 and 117 of the 
 Administration Act. These sections must be construed together 
 with section 1, Chapter 39, entitled "Descent" as the several 
 sections are in pari materia.^^ "Distributee." Section 117 is 
 mandatory.^'^ Where a legatee has accepted from the executor 
 a certificate of deposit belonging to the assets of the estate, and 
 paid a balance thereon, and the bank upon which certificate is 
 drawn fails before the maturity of the certificate, he cannot 
 sustain a claim against the estate on a guarantee by the ex- 
 ecutor.^8 And it appears to be held, that where a claim against 
 an estate is pending for adjudication, it is improper to order 
 money paid out to the legatee.^^ As the recent statute fixes the 
 time for exhibiting claims against an estate at one year from 
 the date of issuing letters testamentary or of administration, it 
 would seem a proper construction of section 117 is, to apply the 
 rule or doctrine, that the statute requiring a refunding bond 
 from a distributee or legatee, applies solely to a case, where the 
 statutory period for exhibiting claims has not run. That after 
 such time no bond can be exacted. The intention of the statute 
 is to indemnify and keep harmless the administrator or executor 
 against claims properly chargeable to heirs, devisees or legatees 
 
 65— R. S, 1845, p. 563, sec. 129. 559; People v. Admire, 39 111. 251; 
 
 Section 117, chapter 3, "Adminis- Windom v. Becker, 52 111. 342; 
 
 tration of Estates." Starr & Cur- Bouvier's Law Dictionary, "Dis- 
 
 tis Annotated Statutes of Illinois, tributee." 
 
 with Jones & Addington's Supple- 67— Graffenreid v. Kundert, 34 
 
 ments thereto. Vol. 1, p. 342, and 111. App. 483. 
 
 cases cited; Vol. 5, p. 20, and cases 68— Graffenreid v. Kundert, 34 
 
 cited; Kurd's R. S. of 111., 1905, p. 111. App. 483. 
 
 124. 69— Sherman v. Saylor, 36 IlL 
 
 66— Wolf V. Griffin, 13 111. App. App. 356.
 
 SETTLEMENT OF EXECUTORS, ETC. 509 
 
 to whom partial distribution may have been madeJ'' If an ad- 
 ministrator becomes an executor or distributee, he is not re- 
 quired to execute a refunding bond.'^^ 
 
 601. Refunding by distributees. "When, at any time after 
 the payment of legacies or distributive shares, it shall be neces- 
 sary that the same or any part be refunded for the payment of 
 debts, the county court, on application made, shall apportion 
 the same among the several legatees or distributees according to 
 the amount received by them, except the specific legacies, which 
 shall not be required to be refunded, unless the residue is in- 
 sufficient to satisfy such debts; and if any distributee or lega- 
 tee refuses to refund according to the order of the court, within 
 sixty days thereafter, and upon demand made, such refusal shall 
 be deemed a breach of his bond given to the executor or admin- 
 istrator aforesaid, and an action may be instituted thereon for 
 the use of the party entitled thereto; and in all cases where 
 there is no bond, an action of debt may be maintained against 
 such distributee or legatee, and the order of the court shall be 
 evidence of the amount due."^^ Where an administrator, after 
 the settlement of an estate and the payment of the balance in 
 his hands to the heirs, is compelled to pay a new claim unknown 
 to him within the two years after the grant of his letters, he or 
 his executors may maintain a bill in equity against such heirs, 
 to reimburse him or his estate for the sum so paid, although no 
 refunding bond was taken. And in that case a decree against 
 heirs requiring each to pay pro rata is proper. '^^ The liability 
 of heirs for a debt of their ancestor, both in law and in equity, 
 is to the extent of the full amount which came to them by de- 
 
 70 — Klicka v. Klicka, 105 111. tis Annotated Statutes of Illinois, 
 
 App. 372; People v. Admire, 39 III. with Jones & Addington's Supple- 
 
 251. ments thereto. Vol. 1, pp. 242, 243, 
 
 71 — Weir v. People, 78 111. 192. and cases cited; Vol. 4, p. 44, and 
 
 72— R. S. 1845, p. 563, sec. 130. cases cited; Kurd's R. S. of 111., 
 
 Section 118, chapter 3, "Adminis- 1905, pp. 124, 125. 
 
 tration of Estates." Starr & Cur- 73— Outright v. Stanford, 81 III. 
 
 240.
 
 510 THE LAW OF ESTATES. 
 
 scent.'^* But it is held, where an executor without an order of 
 court, paid a claimant more than he was entitled to receive, 
 no action on behalf of the estate can be maintained to recover 
 the excess so paid."^ The legatee or distributee can only be re- 
 quired to refund a due proportion of any debt which may af- 
 terwards appear against the estate when payment is demanded 
 before the period for exhibiting claims has expired. ''^^ But if a 
 judgment be held by an estate against an heir, his distributive 
 share may be by proper order of the court applied upon such 
 judgment,'^' An executor voluntarily paid over to one of the 
 legatees named in the will, an amount supposed to be equal, or 
 nearly so, to the interest of the legatee. It was subsequently, 
 and after a lapse of ten years, alleged by the executor that the 
 legatee had been overpaid, and upon a request and a refusal 
 to refund, the executor commenced a suit to recover back the 
 alleged excess: Held, that if the executor was entitled to re- 
 cover at all, he was, notwithstanding, barred by the statute of 
 limitations, as the statute begins to run when a cause of action 
 accrues. In a case where some act is to be done, or condition 
 precedent to be performed by a party to entitle him to his right 
 to sue, and no definite time is fixed at which the act is to be 
 done or condition performed, he must exercise reasonable dili- 
 gence to do the one or perform the other, or he will be barred 
 by the statute of limitations ; otherwise it would be in his power 
 to defeat the law by his own negligence and wrong. ''^ In bills 
 for accounting equity applies the same period of limitation pre- 
 
 74— Ryan v. Jones' Exr's, 15 111. son, 3 Gilm. (111.) 597. See sec- 
 
 1; Vanmeter Heirs V. Love's Heirs, tions 1, 2, 3, chapter S3, entitled 
 
 33 111. 260. "Limitations," Starr & Curtis 
 
 75 — Beaird v. "Wolf, 23 111. App. Annotated Statutes of Illinois, with 
 
 436. Jones & Addington's Supplements 
 
 76— Graffenreid v. Kundert, 34 thereto. Vol. 2, pp. 2599 to 2604, 
 
 111. App. 483. and cases cited under sections of 
 
 77— Egan v. Clark, 87 111. App. statute; Vol. 4, pp. 801 to 805, and 
 
 248. cases cited; Vol. 5, pp. 366, 367, 
 
 78 — Shelburne, Exr., v. Robin- and cases cited; Kurd's R. S. of 
 
 111., 1905, p. 1331.
 
 SETTLEMENT OF EXECUTORS, ETC. 511 
 
 scribed by the statute for barring actions of account as courts 
 of common lawJ^ 
 
 602. Suits between associate representatives. ' ' Where there 
 are two or more executors or administratoi-s of an estate, and 
 any one of them takes all or a greater part of such estate and 
 refuses to pay the debts of the decedent, or refuses to account 
 with the other executor or administrator, in such case the ex- 
 ecutor or administrator so aggrieved may have his action of 
 account or suit in equity against such delinquent executor or 
 administrator, and recover such proportionate share of said 
 estate as shall belong to him; and every executor, being a resid- 
 uary legatee, may have an action of account or suit in equity 
 against his co-executor or co-executors, and recover his part of 
 the estate in his or their hands. Any other legatee may have 
 the like remedy against the executors: Provided, that before 
 any action shall be commenced for legacies as aforesaid, the 
 court shall order them to be paid. ' '^^ This section of the statute 
 was formerly 131, section of the statute of Wills, re-enacted and 
 placed under Administration Act without material change.^^ 
 The case cited was a bill in chancery and the section in question 
 was construed. On page 430: "In the preceding part of the 
 section, two modes are prescribed for enforcing the payment 
 of the legacies, one by action of account, and the other by suit 
 in equity; and the proviso declares that before any action shall 
 be commenced for legacies as aforesaid, an order shall be made 
 by the probate court, etc. This clearly applies only to cases 
 where the action of account shall be commenced, for the term 
 action is never properly applied to a suit in equity, nor is suit 
 a proper designation for an action of account. The proviso, 
 
 79 — Richardson v. Gregory, 126 Section 119, chapter 3, Adminis- 
 
 111. 166; Sherman v. Sherman, 36 tration of Estates." Starr & Curtis 
 
 111. App. 482; Higgins v. Spring, 36 Annotated Statutes of Illinois, Vol. 
 
 111. App. 310; Holmes v. Burwell, 1, p. 343, and cases cited; Kurd's 
 
 30 111. App. 445. R. S. of 111., 1905, p. 125. 
 
 80— R. S. 1845, p. 563, sec, 131. 81— Mahar v. O'Hara, 4 Gilm. 
 
 (111.) 425.
 
 512 THE LAW OF ESTATES. 
 
 therefore, does not apply to a suit in equity to enforce the pay- 
 ment of a legacy (Page 429) : The jurisdiction of courts of 
 equity in cases of legacies, is expressly confirmed by this statute ; 
 its general powers and jurisdiction in cases of legacies has been 
 firmly established.^ ^ i^ equity, executors and administrators 
 are trustees, and so also is a devisee who takes a devise, charge- 
 able with legacies or debts. No better illustration could be de- 
 sired, than the case before us. Here the testator devised an es- 
 tate to his son, whom also he made his executor, and in considera- 
 tion of the devise, he imposed upon his son the burthen of sup- 
 porting the widow of the testator in his family, so long as they 
 could agree, or she should choose to reside there, and when she 
 should choose to live by herself, he should build for her a house, 
 and furnish her annually with a specified quantity of corn, 
 wheat and pork. Now, in equity he is considered a trustee for 
 the purpose of executing these provisions in favor of the widow, 
 and by accepting the estate he assumed the trust, and the estate 
 thus devised is not only chargeable in equity with the trust, 
 but by accepting the devise he became personally responsible 
 for the payment of the legacy, according to the provisions of 
 the will. "^^ The demand required to be made by this statute 
 is not necessary or required where the a/iministrator dies be- 
 fore demand is made. The statute has reference to cases where 
 the administrator is in being, and upon whom a demand can 
 be made. The demand required to be made is a matter of form 
 intended to protect parties from needless costs; it was not de- 
 signed to be used by the securities on an administrator's bond 
 as a shield from liability, after a demand had become impos- 
 sible.*^ Under this section of the statute, authority of an ad- 
 ministrator de bonis non to call upon a former administrator, 
 whose letters have been revoked, to account fully for his ad- 
 ministration of the estate, is clear and unmistakable.^-'^ But 
 
 82—1 story's Eq. Jiir.. chapt. 10. 85— Duffin v. Abbott, 48 111. 17; 
 
 83— Mahar v. O'Hara, 4 Gilm. Ruffin v. Farmer, 72 111. 615; 
 
 (111.), p. 429. Dodge v. Cole, 97 111. 351; Golden 
 
 84— People v. Admire, 39 111. 251. v. Bressler, 105 111. 419-432.
 
 SETTLEMENT OP EXECUTORS, ETC. 513 
 
 the courts make a distinction between an administrator de bonis 
 non appointed on the death of an administrator, and one ap- 
 pointed on the revocation of letters. In the one case, that of 
 death, the representatives of the deceased administrator, can be 
 called to account only by the heirs and distributees. In the 
 other case, the statute expressly authorizes the proceedings.^^ 
 It is not within the province of one of several executors to call 
 his co-executors to account for their action in a court of equity. 
 If either of the executors does wrong he, alone, is responsible, 
 the other cannot be injured thereby .^^ But the act of one of 
 several executors or administrators, while he remains in office, 
 is the act of all.^^ 
 
 86— Duffin V. Abbott, 48 111. 17; 340; Huster v. Johnson, 84 111. 61; 
 
 Marsh v. People, 15 111. 286; Ruffin People v. Atkins, 7 111. App. 105. 
 
 V, Farmer, 72 111. 615; Hanifin v. 88— Dwight v. Newell, 15 111. 
 
 Needles, 108 111. 407. 333; Marsh v. People, 15 111. 286. 
 
 87— Grain v. Kennedy, 85 111. 
 
 33
 
 CHAPTER XXXI 
 
 MORTGAGING AND LEASING REAL ESTATE 
 
 Sec. 
 
 603. Mortgaging and leasing of 
 
 real estate by executors, 
 
 when made, — term. 
 
 Sec. 
 
 C04. Foreclosure of such mort- 
 gage. 
 605. No strict foreclosure. 
 
 Sec. 603. Mortgaging and leasing real estate by executors — 
 when made — term. ''Real estate may be mortgaged in fee or 
 for a term of years, or leased by executors: Provided, thai the 
 term of such lease, or the time of the maturity of the indebted- 
 ness secured by such mortgage, shall not be extended beyond 
 the time when the heirs entitled to such estate shall attain the 
 age of twenty-one years, if a male, or eighteen years, if a fe- 
 male: And, provided, also, that before any mortgage or lease 
 shall be made, the executors shall petition the county court for 
 an order authorizing such mortgage or lease to be made, and 
 which the court may grant, if the interests of the estate may 
 require it: Provided, further, that the executor making applica- 
 tion as aforesaid, upon obtaining such order, shall enter into 
 bond, with good security, faithfully to apply the moneys to be 
 raised upon such mortgage or lease, to the payment of the debts 
 of the testator; and all money so raised shall be assets in the 
 hands of such executor for the payment of debts, and shall be 
 subject to the order of the court in the same manner as other 
 assets."! Under this statute an administrator has no power to 
 give a mortgage, and if he does, such act is void even if the 
 heirs or the estate have the benefit of the money raised by such 
 
 • 1 — R. S. 1845, p. 564, sections tion of Estates." Starr & Curtis 
 
 134, 135, rewritten and amended Annotated Statutes of Illinois, 
 
 by law of 1869, p. 372, sec. 1. Sec- Vol. 1, p. 344, and cases cited; 
 
 tion 120, chapter 3, "Administra- Kurd's R. S. of 111., 1905, p. 125. 
 
 514
 
 MORTGAGING AND LEASING REAL ESTATE. 515 
 
 mortgage.2 Where a foreclosure sale under a trust deed con- 
 taining a power of sale in the trustee was given by adminis- 
 trators it was held: The administrators of deceased, had no 
 power to mortgage the land ; and therefore no title passed under 
 the sale made by the trustee of such mortgage.^ But where the 
 will expresses or tends to show, it was the intention and expec- 
 tation of the testator, that his executors would keep his estate 
 intact, so far as they were able; and generally manage it in 
 such a way to make it as productive as possible, and to this 
 end, the executors were given the power to sell and convey such 
 parts of the estate, as they, in their discretion, deemed neces- 
 sary to accomplish the purpose in question, it was held: This 
 grant of power under the circumstances, included the power to 
 mortgage, when the mode of raising money to answer the object 
 of the will, would, in the judgment of the executors, be to the 
 best interest of the estate.'* The language of a certain will was : 
 "I desire that my executor lease the farm for the support of 
 the family during minority.*' The will contained no words "of 
 grant, and there was nothing to show an intention to confer any 
 estate upon the executors who made the lease under which an 
 action for waste against the tenant was brought. Held: The 
 
 2 — Mei ritt v. Simpson, 41 111. but had no power to encumber the 
 
 391; Wetherell v. Harris, 67 Ind. real estate as was done by mort- 
 
 452; Smith v. Hutchinson, 108 111. gage or deed of trust for money 
 
 668. borrowed. And it was held, under 
 
 3 — Smith V. Hutchinson, 108 111. the facts shown where an adminis- 
 
 668. trator succeeded the executor, that 
 
 4 — Starr v. Moulton, 97 111. 535; he had no power, under the stat- 
 
 Butler V. Heustes, 68 111. 597; Pool ute, to give a mortgage upon the 
 
 V. Potter, 63 111. 537. real estate of his intestate, and if 
 
 In Smith v. Hutchinson, 108 111. he gives one, as was done in that 
 
 662, the proceeding was under the case, it will not bind the estate, 
 
 "Burnt Records Act" to establish and a sale under such mortgage 
 
 title; and in that proceeding it ap- will pass no title, and if the ad- 
 
 peared the executor under the ministrator is a part owner in the 
 
 will in question had power to lands he so mortgages, he will be 
 
 lease or sell certain lands for the estopped to dispute the validity of 
 
 purpose of making a division of the mortgage, so far as concerns 
 
 the proceeds among the devisees, his own interest therein.
 
 516 THE LAW OF ESTATES. 
 
 executors had no estate in the premises, for in executing this 
 lease the executors exhausted their power to lease; and the 
 lease terminated at the same time the youngest heir would at- 
 tain his majority. The action of trespass could only be main- 
 tained by the heirs who held the fee and were entitled to the 
 reversion, subject to be defeated by an executor's sale. But as 
 the defendant had covenanted in the lease not to commit the 
 waste complained of, he was liable to be sued on this covenant, 
 and the executors had this remedy for such injury.^ So where 
 a lease was executed by a guardian who was sued in an action 
 of covenant based upon the words of the instrument, "devised 
 and leased": It was held, that in such a lease there are no 
 implied covenants; there being no express covenants contained 
 in the lease, which simply purports to be, and is, but the mere 
 execution of a power conferred by statute, and where no implied 
 covenants arise upon which such officer or agent can be held 
 liable.^ The statute of 1845 did not authorize the mortgaging 
 of the fee but the statute of 1869 did. Both the statutes of 
 1845 and 1869, applied to guardians; but, in 1872 Chapter 64 
 entitled "Guardian and Ward" was passed, which separated 
 the executor, administrator and guardian and as to each the 
 proceeding to mortgage are distinctly separate.'^ The power 
 to lease, sell or mortgage real estate of a decedent is strictly 
 a statutory proceeding, and the executor or guardian exercising 
 such power must proceed and act strictly under the statute. 
 But when power is expressly conferred by will, or from the 
 language of the will it may be implied, the executor may act 
 without the statute.^ By analogy, it would seem; the executor 
 to be right and safe in proceedings to mortgage or lease, should 
 be required to make parties to such proceedings, the same per- 
 sons who are necessary parties where real estate is sold to pay 
 
 5 — Page V. Davidson, 22 111. 117; "Guardian and Ward." Starr & 
 
 Pool V. Potter, 63 III. 537. Curtis Annotated Statutes of Illi- 
 
 G— Webster v. Conley, 46 111. 13. nois. Vol. 2, pp. 2086, 2087; Kurd's 
 
 7— See R. S. 1845, p. 564; Laws R. S. of 111., 1905, p. 1132. 
 
 of 1869, p. 372; see also sections S— Fell v. Young, 63 111. 106. 
 23, 24, 25 and 26, chapter 64,
 
 MORTGAGING AND LEASING REAL ESTATE. 517 
 
 debts ; for the proceeds arising from such mortgage are counted 
 as assets and the executor is required to apply the same in the 
 payment of debts of the testator and give bond with security 
 that he will so apply such proceeds. Another analogj^ lies in 
 the established rules, that under a sale of real estate to pay debts 
 caveat emptor applies; and the mortgage given by the guardian 
 or executor carries no implied covenants, and in the absence of 
 express covenants, the guardian or executor is not liable.^ 
 
 604. Foreclosure. "Foreclosures of such mortgages shall 
 only be made by petition to the county court of the county in 
 which the premises, or a major part thereof, are situated; and 
 any sale made by virtue of any order or decree of foreclosure, 
 may, at any time before confirmation, be set aside by the court 
 for inadequacy of price or other good cause, and shall not be 
 binding upon the executor until confirmed by the court. "i<* 
 
 605. No strict foreclosure. ' ' No decree of strict foreclosure 
 shall be made upon any such mortgage, but redemption shall 
 be allowed as is provided by law in cases of sales under execu- 
 tions issued upon common law judgments. ' ' Under the chapters 
 of this work, relating to Guardian and Ward, where a similar 
 statute is in force, and where the foreclosure of mortgages given 
 by a guardian have been made, it is held: The provisions of 
 the statute were not intended to, and could not exclude the juris- 
 diction of the United States courts in proceedings brought in 
 such courts to foreclose a mortgage given by a guardian, where it 
 appears the requisite citizenship and amount involved are suf- 
 ficient to give such courts jurisdiction." 
 
 9— Webster v. Conley, 46 111, 13. 11— Section 122, chapter 3, "Ad- 
 
 10 — Laws of 1869, p. 372, sec. 23. ministration of Estates." Starr 
 
 Section 121, chapter 3, "Adminis- & Curtis Annotated Statute of lUi- 
 
 tration of Estates." Starr & Curtis nois. Vol. 1, p. 344; Kurd's R. S. 
 
 Annotated Statutes of Illinois, Vol. of 111., 1905, p. 125; Davis v. James 
 
 1, p. 344; Kurd's R. S. of 111., 1905, 10, Biss. 51; United States Mort- 
 
 p. 125. gage Co. v. Sperry, 138 U. S. 313.
 
 CHAPTER XXXII 
 
 ACTIONS WHICH DO AND DO NOT SURVIVE 
 
 Sec. 
 
 606. Actions which survive. 
 
 607. What actions survive. 
 
 608. The legal construction of con- 
 
 tracts determines whether 
 or not a right of action 
 survives. 
 
 Sec. 
 
 609. Implied legal duties imposed 
 
 upon heirs, devisees or 
 legal representatives of de- 
 ceased in actions which 
 survive. 
 
 610. Real estate contracts enforced 
 
 after death or insanity. 
 
 Sec, 606. Actions which survive. In most of the States, the 
 statutes expressly provide for a case where the vendor dies be- 
 fore completing the contract, and leaves heirs or devisees adult 
 or infant; the legislation is of different types, in some States it 
 deals entirely with the suit in equity for a specific performance ; 
 in others it provides for a mere summary special proceeding, by 
 which the contract may be enforced without a suit, as a step 
 in the settlement of the deceased vendor's estate. In relation to 
 contracts that are joint and several the executor or administra- 
 tor is suable in a separate action, but cannot be joined with 
 the survivor; for the reason, that one is to be charged in his 
 own right, the other in the right of his testator or intestate. 
 The judgment cannot be joint, because one is liable personally, 
 the other in his representative capacity, to the extent of assets 
 in his hands.^ Under the principles of the common law, where 
 one joint obligor dies, all rights of action at law, against his 
 estate, or his administrators, is gone; and it was only in equity 
 that relief and satisfaction could be had out of his estate. Even 
 then, relief would be refused, unless the intestate participated 
 in the benefits of the consideration, or could be treated as a sev- 
 
 1— Balance v. Samuel, 3 Scam. (111.) 383. 
 
 518
 
 ACTIONS WHICH DO AND DO NOT SURVIVE. 
 
 519 
 
 eral obligor.^ As to joint rights and obligations, and what 
 deemed joint and several, we refer to statute cited.^ We also 
 call attention in this connection to Chapter 28 consisting of one 
 section, as follows: "That the common law of England, so 
 far as the same is applicable and of a general nature, and all 
 statutes or acts of the British parliament made in aid of, and 
 to supply the defects of the common law, prior to the fourth 
 year of James the First, excepting the second section of the 
 sixth chapter of 43d Elizabeth, the eighth chapter of 13th Eliz- 
 abeth, and ninth chapter of 37th Henry Eighth, and which are 
 of a general nature and not local to that kingdom, shall be the 
 rule of decision, and shall be considered as of full force until 
 repealed by legislative authority."^ Thus in Illinois the com- 
 mon law is in force, so far as it is applicable to our society and 
 institutions, unless modified by statutory laws of this State.^ In 
 the absence of evidence to the contrary, it will be presumed in 
 
 2— Powell Adm'r v. Kettelle, 1 
 Gil. (111.) 491. 
 
 3 — See sections 1, 2, 3, chapter 
 76, entitled "Joint Rights and Obli- 
 gations" (1) Also section 10, chap- 
 ter 122, entitled "Schools." Hurfl's 
 R. S. of 111., pp. 1249, 1250; (2), p. 
 1788; Starr & Curtis Annotated 
 Statutes of Illinois, Vol. 2, pp. 
 2319, 2321, and cases cited; Vol. 
 
 3, p. 3645. 
 
 4 — Starr & Curtis Annotated 
 Statutes of Illinois, with Jones & 
 Addington's Supplements thereto. 
 Vol. 1, p. 901, and cases cited; Vol. 
 
 4, 246, and cases cited; Kurd's R. 
 
 5, of 111., 1905, p. 469. 
 
 5— Boyer v. Sweet, 3 Scam. (111.) 
 120; Lavalle v. Strobel. 89 111. 
 370; Hanchett v. Rice, 22 111. App. 
 442; Trust Co. v. Palmer, 171 111. 
 385; Kochersperger v. Drake, 167 
 111. 125; Schlee v. Guckenheimer, 
 179 111. 596. In this case it is 
 said: The rule that courts will 
 
 not take notice of the laws of a 
 sister state in the absence of an 
 averment and proof does not pre- 
 vail as to the common law, which 
 is presumed to exist in each State 
 of the Union in the absence of con- 
 trary proof. And so it is held in 
 that case, that a contract made in 
 a foreign State which is valid at 
 common law will be presumed by 
 the courts of Illinois to be valid in 
 the State where made, in the ab- 
 sence of contrary proof, and will 
 be enforced by such courts unless 
 contrary to our laws or public 
 policy. So a contract of purchase 
 giving a privilege of purchasing a 
 certain additional quantity of bar- 
 ley, at the same price if taken be- 
 fore a certain day in the future is 
 not void as an option contract, pro- 
 hibited by the statutes of Illinois. 
 Distinction made between case, 
 and Schneider v. Turner, 130 111. 
 28, and Pope v. Hanke, 155 111. 617.
 
 520 THE LAW OF ESTATES. 
 
 the courts of this State that the common law prevails in other 
 States formed from territoiy which once belonged to the colo- 
 nies of England.^ In discussing the common law rights and lia- 
 bilities in case of contracts where one party to such dies, it is 
 said: "Text writers noting the decisions on this subject state 
 the law to be, that when the contract with the deceased is of an 
 executory nature, and the personal representative can fairly and 
 sufficiently execute all that deceased could have done, he may 
 do so, and enforce the contract. ' '^ Exceptional cases arise, when 
 the contract is of a personal character, or requires, in its exe- 
 cution, the exercise of peculiar skill or taste. But when the 
 administrator undertakes to perform the contract of his intes- 
 tate it is upon his personal responsibility, and if losses are sus- 
 tained, he must bear them, and if profits are realized, they be- 
 come assets in his hands for the benefit of the estate. Such were 
 the liabilities the common law imposed upon the administrator 
 assuming to execute the contract of the decedent.^ "All con- 
 tracts made by the decedent may be performed by the executor 
 or administrator, when so directed hy the County Court.' '^ 
 But it is apprehended this statute does not change the common 
 law on this subject, except in one particular. Without this 
 enabling statute the executor or administrator could not bind 
 the estate, nor relieve himself from personal responsibilitj', but 
 under its provisions, when directed by the county court to per- 
 form the contract, the estate may be charged with all losses that 
 may be incurred, as well as receive all benefits of any profits 
 that may be realized, and in that way the executor or adminis- 
 trator may be relieved from all personal responsibility.^^ "It 
 
 6 — Schlee v. Guckenheimer, 179 8 — Rapp v. Phoenix Ins. Co., 113 
 
 111. 596. 111. 398. 
 
 7— Smith V. W. C. M. & Mfg. 9— Section 127, chapter 3, "Ad- 
 Co., 83 111. 500; 1. Parsons on ministration of Estates." See stat- 
 Contracts, 6th ed. p. 131, and see ute at large, ante 567. 
 the following common law author- 10 — Smith v. W. C. M. & Mfg. 
 ities sustaining the text writer: Co., 83 111. 500, 501. In this case 
 Saboni V. Kirkman, 1 M. & W. 418; the rule is laid down, that ff a 
 Yv'entworth v. Cook, 10 A. & E. 42. contract with a deceased party is
 
 ACTIONS WHICH DO AND DO NOT SURVIVE. 521 
 
 is a misapprehension of the law to suppose the death of one of 
 the contracting parties put an end to the contract. For any 
 breach after, as well as before, the death of such party, his 
 estate would be liable to respond in damages. It is conceded, the 
 county court could have directed the administratrix to carry 
 out the contract made with decedent. The admission implies 
 the continued existence of a valid contract, and for any breach 
 thereafter, the administratrix might maintain an action. But, 
 in our view of the law, the administratrix had that right inde- 
 pendently of the statute, taking upon herself all risk incident 
 to the further execution of the contract. "^^ "We quote exten- 
 sively from this leading case because it has been followed con- 
 stantly by the Illinois courts. 
 
 607. What actions survive. It has been seen the death of 
 one of the contracting parties does not put an end to the con- 
 tract.^ 2 So it often happens that the representatives of an 
 estate, or the heirs or devisees of a deceased person, may in 
 some manner be compelled to carry out or litigate under a con- 
 tract of the deceased. An ante nuptial contract may be the 
 basis of a claim against an estate or those interested, such as 
 heirs or devisees.^^ Also actions and possible liabilities may 
 arise out of commercial contracts.^* Contracts covering inven- 
 tions may be specifically enforced.^ ^ "In addition to the ac- 
 tions which survive by the common law, the following also 
 survive: Actions of replevin, actions to recover damages for 
 an injury to the person (except slander and libel), actions to 
 recover damages for an injury to real or personal property, and 
 for the detention or conversion of personal property, and ac- 
 
 of an executory nature, and his 12 — Reeves v. Stipp, 91 111. 610. 
 
 personal representative can fairly 13 — Dunlap v. Lamb, 182 111. 
 
 and suflBciently execute all that the 325 ; Murdock v. Murdock, 219 111. 
 
 deceased could have done, he may 23. 
 
 do so, and enforce the contract, 14 — Mobile Fruit Co. v. J. H. 
 
 the exceptions to the rule being Judy & Son, 91 111. App. 91. 
 
 cited in the text. 15 — Bates v. Machine Co., 192 
 
 11— Smith V. W. C. M. & Mfg. 111. 138; Supply Co. v. Davis Mfg. 
 
 Co., S3 111. 500, 501. Co., 77 Fed. Rep. 883.
 
 522 
 
 THE LAW OF ESTATES. 
 
 tions against officers for malfeasance or nonfeasance, of them- 
 selves or their deputies, and all actions of fraud or deceit. "^^ 
 Where the injury does not cause death, the statuton^ action sur- 
 vives the defendant's death and is good against his administra- 
 tor.i'^ A and B agents of an insurance company with C as 
 surety gave a certain indemnity bond guaranteeing the honesty 
 and fidelity of the bonden for certain funds. C the surety died, 
 and after his death a clerk in the service of the bonden misap- 
 propriated the funds in the hands of the bonden. In such ease 
 under the conditions of the bond the estate of C the surety was 
 held liable.i^ 
 
 608. The legal construction of contracts determine whether 
 or not a right of action survives. Thus where notes were given 
 by A to B to promote the object of the latter in purchasing a 
 church bell ; A having died before the church bell was purchased, 
 B the holder of the notes spent no money nor incurred no lia- 
 bilities in connection with the project which caused him loss or 
 
 10 — Section 123, chapter 3, "Ad- 
 ministration of Estates." Starr & 
 Curtis Annotated Statutes of Illi- 
 nois, Vol. 1, p. 344, and cases cited; 
 Kurd's R. S. of 111., 1905, p. 125. 
 See also sections 1 and 2, chapter 
 70, entitled "Injuries" Starr & 
 Curtis Annotated Statutes of Illi- 
 nois, with Jones & Addington's 
 Supplements thereto. Vol. 2, pp. 
 2155, 2156, and cases cited; Vol. 
 4, general notes, p. 684, 690, and 
 cases cited; Vol. 5, p. 312, and 
 cases cited; Kurd's R. S. of 111., 
 1905, pp. 1152, 1153, Wehr v. 
 Brooks, 21 111. App. 115 C. & E. I. 
 R. R. Co. V. Connor, 19 111. App. 
 593. 
 
 17— -Wehr v. Brooks, 21 111. App. 
 115, and cases cited in the opinion. 
 
 18 — In re Estate of Rapp v. 
 Phoenix Ins. Co., 113 111. 390. And 
 see the following cases from this 
 and other states supporting the 
 
 opinion. Jordon v. Dobbins, 122 
 Mass. 168, goods sued for were sold 
 after the guarantor's death, and 
 not founded therefore upon any 
 present consideration passing to 
 the guarantor. Keld, such a guar- 
 anty is revocable by the guarantor 
 at any time before it is acted upon, 
 death of the guarantor in that 
 case operating to revoke the con- 
 tract for sale of goods after death. 
 See Brandt on Suretyship, sec. 
 113; Green v. Young, 8 Greenlf. 
 14; Moore v Wallace, 18 Ala. 458; 
 Royal Ins. Co, v. Davies, 40 Iowa 
 469; Menard v. Scudder, 7 La. 
 Ann. 385. And see distinction in 
 principle applied as betWSen cases 
 cited and Pratt v. Trustees, 93 111. 
 475; Jenderine v Rose, 36 Mich. 
 54; Karris v. Fawcett, 15 Law. 
 Rep. Eq. C. 311. See also Chitty 
 on Contracts 10th Am. ed. p. 101.
 
 ACTIONS WHICH DO AND DO NOT SURVIVE. 523 
 
 injury. The notes being without consideration in such case, 
 could not be enforced and a right of action thereon it was held 
 did not survive.^'* Collection of notes cannot be enforced as 
 a promise to make a gift.^o Where the promise stands as a 
 mere offer, and may, by necessary consequence, be revoked at 
 any time before it is acted upon there is no right of action. It 
 is the expending of money, etc., or incurring of legal liability, 
 on the faith of the promise, which gives the right of action, and 
 without this there is no right of action.21 Being but an offer, 
 and susceptible of revocation at any time before being acted 
 upon, it must follow that the death of the promisor, before 
 the offer is acted upon, is a revocation of the offer.- 2 An action 
 for a statutory penalty does not survive.^^ 
 
 609. Implied legal duties imposed upon heirs, devisees or 
 legal representatives of deceased in actions which survive. 
 
 Under the common law it was provided, that in all actions to 
 be conunenced in any court of record, if plaintiff or defendant 
 should happen to die after interlocutory and befoi'e final judg- 
 ment, the action should not by reason thereof abate, if such ac- 
 tion could be originally prosecuted or maintained by or against 
 the executor's or the administrator's of the party dying; but 
 the plaintiff' in such case, or, in the event of his death after such 
 interlocutory judgment, his executors or administrators might 
 have a scire facias against- the defendant, or, if he should die 
 after such interlocutory judgment, then his executors or admin- 
 istrators, to show cause why damages should not be assessed or 
 recovered in such action.^* The statute of Illinois, entitled 
 "Abatement" applies to law and chancery proceedings.^^ The 
 
 19 — Pratt Adm. v. Trustees Bap- 22 — Pratt Adm. v. Trustees Bap- 
 tist Society, 93 111. 475. tist Society, 93 111. 475. 
 
 20— Pope V. Dodson, 58 111. 360; 23— Diversey v. Smith, 103 111. 
 
 Blanchard v. Williams, 70 111. 652. 378. 
 
 21 — McClure v. Williams, 43 111. 24 — Life Association of Ameri- 
 
 356; Trustees v. Garvey, 53 111. ca v. Fassett, 102 111. 315, 326. 
 
 401 ; Baptist Educational Society v. 25 — Section 1, chapter 1, "Abate- 
 
 Carter, 72 111. 247. ment." Starr & Curtis Annotated
 
 524 THE LAW OF ESTATES. 
 
 death of a plaintiff pending his suit must be taken advantage of 
 by plea in abatement; otherwise, the judgment in his name 
 will be binding.26 If the sole defendant die pending suit, and 
 his administrator is not made a party to the suit, and judgment 
 is taken the same will be unauthorized and void. And if the 
 plaintiff does not within a reasonable time, take the proper steps 
 to bring the legal representative of the deceased defendant into 
 court, the court should, on its own motion, enter a judgment 
 or order that the suit abate. The same rule applying to the 
 death of a defendant, also applies to the dissolution of a cor- 
 poration.27 ''Where there is but one plaintiff, petitioner or 
 complainant in an action, proceeding or complaint, in law or 
 equity, and he shall die before final judgment or decree, the 
 action, proceeding or complaint, on that account shall not abate ; 
 and if the cause of action survive to the heir, devisee, executor 
 or administrator of such deceased, such heir, devisee, or legal 
 representative may, by suggesting such death upon the record 
 be substituted as plaintiff, petitioner or complainant to prosecute 
 wsuch suit, etc." "Upon the death of a sole defendant, before 
 final judgment or decree, a suit at law or equity will not abate 
 on that account, if it might be originally prosecuted against the 
 heir, devisee, executor or administrator of such defendant. But 
 in such case the plaintiff, petitioner or complainant may sug- 
 gest such death on the record, and may, by order of court, have 
 summons against such person or legal representative, requiring 
 such to appear and defend the action, proceeding or com- 
 plaint. "^^ And where there are several plaintiffs, petitioners or 
 
 Statutes of Illinois, Vol. 1, p. 247, 28 — Sections 10 and 11, chapter 
 
 and cases cited under section of 1, "Abatement." Starr & Curtis 
 
 statute; Kurd's R. S. of 111., 1905, Annotated Statutes of Illinois, Vol. 
 
 p. 97. 1, pp. ^4, 255, and cases cited; 
 
 26— Stoetzell v. Fullerton, 44 111. Hurd's R. S. of 111. 1905, p. 98. See 
 
 108; Life Association of America also section 8, chapter 87, entitled 
 
 V. Fasset, 102 111. 315, 328. "Mandamus." Starr & Curtis An- 
 
 27 — Life Association of America notated Statutes of Illinois, Vol. 
 
 V. Fassett, 102 111. 315. 1, p. 2682; Hurd's R. S. of 111., 
 
 1905, p. 1351.
 
 ACTIONS WHICH DO AND DO NOT SURVIVE. 525 
 
 complainants or defendants in an action, proceeding or com- 
 plaint, in law or equity, the cause of which survives, and any 
 of them die before final judgment or decree, the action at law 
 or equity does not abate on that account, but such death may 
 be suggested on the record, and the cause proceed at the suit 
 of the surviving plaintiffs, petitioners or complainants or against 
 the surviving defendant or defendants, as if such persons had 
 been original parties to the suit.^^ And in ease of the death 
 of all of the plaintiffs or defendants, the cause may be prose- 
 cuted or defended by or against the heir, devisee, executor or 
 administrator to or against whom the case survives. 
 
 610. Real estate contracts enforced after death or insanity. 
 
 Chapter 29 containing eight sections, provides for the enforce- 
 ment of a contract in writing, to make a deed or title to land 
 in this State, for a valuable consideration, where any person 
 contracting shall have died, or become lunatic or insane, with- 
 out having executed and delivered a deed of conveyance. In 
 such case any court having chancery jurisdiction, in the county 
 where the land, or some part thereof, may be situated, may make 
 an order where the statutes have been followed in making par- 
 ties to such cause all those whose rights are affected; and the 
 evidence sustains the right of petitioners in such proceeding, 
 upon the payment of full consideration of such contract, direct- 
 ing the administrator or executor of a deceased person to such 
 contract, or the conservator of a lunatic or insane person, to 
 execute and deliver a deed to the party having an equitable right 
 to the same, or his heirs, according to the true intent and mean- 
 ing of such contract. Or the heirs at law of either party de- 
 ceased, or guardians and conservators of habitual drunkards 
 may sue and be sued under the act, and have the same rights 
 and remedies as the representatives or the heirs of deceased par- 
 ties to such contract. And all such deeds under the provisions 
 of the act shall be good and valid in law. Under this statutory 
 
 29 — Sees. 11, 12, 13, chapter 1, notated Statutes of Illinois, Vol. 
 "Abatement." Starr & Curtis An- 1, pp. 255, 256, 257.
 
 526 
 
 THE LAW OF ESTATES. 
 
 proceeding heirs of deceased contracting parties are very es- 
 sential parties to such proceeding; for the order of conveyance 
 can only be made where the proper parties are before the court. 
 Minority of heirs is no excuse for not asserting their rights.^"^ 
 The order for conveyance can only be had when the considera- 
 tion of the contract is fully paid and discharged; and where 
 consideration has not been paid, equity will entertain' a bill to 
 compel payment and conveyance independently of this statutory 
 
 30 — See sections 1 to 8, chapter 
 29, "Contracts." Starr & Curtis 
 Annotated Statutes of Illinois, 
 with Jones & Addington's Supple- 
 ments thereto, Vol. 1, p. 904, et 
 seq., Vol. 4, p. 247 et seq., Vol. 5, 
 p. 102, et. seq., and cases cited, in 
 each volume under sections of 
 statute and in general notes. See 
 also the following cases: Walker 
 V. Douglas, 70 111. 445, 448; Suth- 
 erland V. Parkins, 75 111. 339; 
 Greenbaum v. Austrian, 70 111. 
 591; Forman v. Stickney, 77 111. 
 575; Kurtz v. Hibner, 55 111. 514; 
 Wood V. Thornley, 58 111. 468; 
 King V. Gilson's Adm'x 32 111. 
 354; Rockwell v. Servant, 54 111, 
 251; Ante nuptial contract re- 
 ceives liberal construction, Dun- 
 lop V. Lamb, 182 111. 325; construc- 
 tion given by parties to contract 
 will often be followed by the court, 
 IkTueller v. North Western Uni- 
 versity, 195 111. 255; and to the 
 same effect, De Clercq v. Barber 
 Asphalt Paving Co., 167 111. 218; 
 circumstances surrounding parties, 
 when the contract is made and ex- 
 ecuted, may aid, limit or enlarge, 
 the ordinary meaning of terms em- 
 ployed, and the court may adopt 
 all such in its discretion in the 
 construction of a contract. Mc- 
 Coy V. Fahrney, 182 111. 65; what 
 
 considered sufficient consideration, 
 forbearance. McMicken v. Safford, 
 197 111. 546. Agreement to release 
 right of inheritance, James v. 
 Hanks, 202 111. 119. Compromise 
 of a doubtful right, held to be in- 
 adequate, Adams v. Crown Coal & 
 Tow Co., 198 111. 450; Reeves Pul- 
 ley Co. V. Jewell Belting Co., 102 
 111. App. 380; Douthart v. Congdon, 
 197 111. 355. Equity will not con- 
 strue a contract, and assess dam- 
 ages for a breach thereof, where 
 the suit is brought to reform the 
 contract, and where there is no 
 charge of fraud or mistake, Clark 
 V. Shirk, 121 Fed. Rep. 343. But 
 an agreement of an expectant heir, 
 which pertains to future contin- 
 gent estate will be considered and 
 enforced in equity. Gary v. New- 
 ton, 201 111. 180; a gift is a vol- 
 untary, gratuitous transfer of 
 property by one to another, and 
 will not discharge an existing le- 
 gal liability. Martin v. Martin, 
 202 111. 388; Morey v. Wiley, 100 
 111. App. 78; Sheldon v. Dunbar, 
 200 111. 493. Intention must be as- 
 certained when a contract is being 
 construed, and the court will refer 
 to the instrument as a whole, and 
 not solely to certain provisions to 
 get at the intention. Gibbs v. 
 Bank, 198 111. 311.
 
 ACTIONS WHICH DO AND DO NOT SURVIVE. 527 
 
 proceedmg.31 The courts are frequently called upon to con- 
 strue a contract where such appears to be void for want of mu- 
 tuality ; or where a merger of an estate may take place at law or 
 equity under some particular circumstances growinp- out of the 
 contract in controversy between the parties to a particular pro- 
 ceeding in law or equity. In the case of Fortkam v. Deters,^^ 
 these very questions are raised and decided. In that case a con- 
 tract for the sale of land, signed and sealed by the proposed 
 vendors, recited, they have "sold" the land described to the 
 proposed vendee; it being held, that such contract does not lack 
 mutuality, even though not signed by the vendee, particularly 
 where the latter accepts and adopts such contract, it will be re- 
 garded as based upon sufficient consideration. In the same case 
 the doctrine of merger is raised, and it is held, that a merger 
 takes place when a legal and equitable estate coincide in the 
 same person ; and when the merger takes place at law, the equit- 
 able estate is immediately merged and annihilated. As to the 
 rule in equity, when it takes place, depends upon the intention 
 of the parties and the particular circumstances ; but equity will 
 not prevent a merger where such prevention would give effect 
 to a fraud or wrong. And so it is held applying these rules in 
 that case, where one purchases property, with notice of a prior 
 agreement by the vendors to convey to another person, the pur- 
 chaser wiU be regarded as the trustee of the latter, and such 
 may be decreed in a proper proceeding in chancery to convey 
 the land in the same manner as his vendors. 
 
 31— Burger v. Potter, 32 111. 66; Warner v. Scott, 63 HI. 368; Kirk- 
 Carpenter V. Mitchell, 54 111. 126; ham v. Boston, 67 111. 597. 
 
 32—206 HI. 159.
 
 CHAPTER XXXIII 
 
 APPEALS AND WRITS OF ERROR 
 
 Sec. 
 611. 
 
 612. 
 613. 
 
 Appeals from the allowance 
 or rejection of claims. 
 
 Appeal to what courts, — 
 bonds. 
 
 Matters involved on appeal to 
 circuit court. 
 
 Sec. 
 
 614. Appeal by representative, his 
 
 bond. 
 
 615. Appeal in proceedings for the 
 
 sale of land to pay debts. 
 
 616. Appeals in such case since the 
 
 creation of the Probate and 
 Appellate Court. 
 
 Sec. 611. Appeals from the allowance or rejection of claims. 
 In the administration of estates, we have heretofore cited the 
 statutes where appeals were provided for; but owing to ques- 
 tions that might arise under the statute relation to "Wills," 
 "Administration of Estates" and possibly the "Practice Act," 
 in connection with the tendency of the legislature to extend and 
 increase the jurisdiction of courts of probate, we deem it neces- 
 sary to cover the subject of appeals, certiorari, and error. The 
 statute relating to the "Administration of Estates" provides: 
 "That in all cases of the allowance or rejection of claims by the 
 county court, as provided in this Act, either party may take an 
 appeal from the decision rendered to the circuit court of the 
 same county, in the same manner appeals are now taken from 
 justices of the peace to the circuit courts, by appellant giving 
 good and sufficient bond, with security, to be approved by the 
 county judge; and such appeals shall be tried de novo in the 
 circuit court. "1 The act relating to justices of the peace, pro- 
 vides, the party praying an appeal shall "within twenty days 
 from the rendition of the judgment from which he desires to 
 
 1 — Section 68, chapter 3, "Ad- nois, Vol. 1, p. 300, and cases cited; 
 ministration of Estates." Starr & Kurd's R. S. of 111., 1905, p. 116. 
 Curtis AnnotatBd Statute of Illi- See also Grier v. Cable, 159 111. 35. 
 
 528
 
 APPEALS AND WRITS OF ERROR. 
 
 529 
 
 take an appeal, enter into bond with security to be appfoved," 
 etc.2 The bond given on appeal from the court of probate, must 
 be approved by that court and filed in that court.^ And the 
 writ of certiorari from the circuit court to the county court in 
 a proper proceeding, will be issued to review judgment of the 
 court of probate in probate matters.* But in the case of Blair 
 V. Sennott,^^ it is said: "The single question upon the record 
 is: If the probate court has jurisdiction, its judgment cannot 
 be reviewed by certiorari, as the remedy for the correction of any 
 error in the final order, if any was committed, is by appeal."^ 
 Section 68 of the Administration Act, providing for appeals from 
 orders of the county court, rejecting or allowing claims against 
 estates to the circuit court, applies and refers to appeals only, 
 and does not authorize the circuit court to issue a writ of cer- 
 tiorari to the county court in such case.*^ 
 
 2 — Section 115, chapter 79, "Jus- 
 tices, etc." Starr & Curtis Anno- 
 tated Statutes of Illinois, with. 
 Jones & Addington's Supplements 
 thereto. Vol. 2, p. 2436, Vol. 4. p. 
 768, and authorities cited under 
 statute; Hurd's R. S. of 111., 1905, 
 p. 115, section 1; article IX. p. 
 1286, Davis v. Jones, 82 111. 107; 
 Pfirshing v. Falsh, 87 111. 260. 
 
 3— Witter v. Estate of Witter, 65 
 111. App. 336; Sullivan v. Breen, 
 93 111. App. 527; Blood v. Harvey, 
 81 111. App. 190. 
 
 4— Johnson v. Gillett, 52 111. 358; 
 Dye V. Noel, 85 111. 290; see also 
 p. 87, section 32, chapter 37, en- 
 titled Courts. Starr & Curtis An- 
 notated Statutes of Illinois, with 
 Jones & Addington's Supplements 
 thereto, Vol. 5, p. 149; Hurd's R. 
 S. of 111., 1905, par. 67, sec. 32, p. 
 608. See section 24, chapter 1, 
 "Abatement." Starr & Curtis, etc.. 
 Vol. 1, p. 259; Hurd's R. S. of 111., 
 1905, p. 100. 
 
 4a— 35 111. App. 368. 
 
 84 
 
 5 — Hyslop v. Finch, 99 111. 171. 
 In this case it is held: There are 
 two classes of cases in which a 
 common law certiorari will lie: 
 first, where it is shown that the 
 inferior court or jurisdiction of 
 such has been exceeded; second, 
 where it is shown that the inferior 
 court or jurisdiction thereof, has 
 proceeded illegally, and from 
 which act no appeal or writ of 
 error will lie. The common law 
 writ of certiorari simply brings 
 before the court, for inspection, 
 the record of the inferior tribunal 
 or body, and its judgment affects 
 the validity of the record alone, 
 — that is, determines that it is 
 valid or invalid. See also cases 
 cited on top of page 178, touching 
 the matter. 
 
 6— Schaeffer v. Burnett, 221 111. 
 315. Under the facts found in that 
 case and revived by the court, it 
 was held the issuing of the writ of 
 certiorari to the county court was 
 not authorized.
 
 530 THE LAW OF ESTATES. 
 
 612. Appeal — to what courts — bonds. "Appeals shall be 
 allowed from all judgments, orders and decrees of the county 
 court, in all matters arising under this act, to the circuit court, 
 in favor of any person who may consider himself aggrieved by 
 any judgment, order or decree of such court, and from the 
 circuit court to the supreme court, as in other cases, and bonds 
 with security to be fixed by the county or circuit court, as the 
 case may be."'' This section should be considered in connection 
 with section 68 of the Administration Act, for it may reason- 
 ably be inferred that this section was intended to cover all 
 cases under that act, as it specially provides for appeals from 
 "all judgments, orders or decrees of the county court in all 
 matters arising under this act. "^ The heir may appear and 
 defend claims against an estate in the name of the adminis- 
 trator.^ And the right to appear and defend in the same man- 
 ner on appeal to the circuit court cannot be denied. As under 
 section 124 providing "any person who may consider himself 
 aggrieved by any judgment, order or decree" of the county 
 court may take an appeal, need not necessarily be a party to 
 the record.i^ A claimant against an estate, if he has a right 
 to appeal in name and in behalf of the administrator, must as- 
 sign errors in his own name.^^ The heir appealing, by virtue 
 of section 124, must file bond executed by himself and security.' ^ 
 The appeal can only be taken from final orders, judgments and 
 decrees.^ ^ The practice on appeal from court of probate to 
 
 7 — Section 124, chapter 3, "Ad- ante, Collins v. Kinnare, 89 111. 
 
 ministration of Estates." Starr & App. 239; Weer v. Grand, 88 111. 
 
 Curtis Annotated Statutes of Illi- 490. 
 
 nois, with Jones & Addington's 11 — Dearth v. Bute, 71 111. App. 
 
 Supplements thereto, Vol. 1, p. 490. 
 
 345; Vol. 4, p. 45; Vol. 5, p. 20, 12— Blood v. Harvey, 81 111. App. 
 
 and cases cited under section of 190; statute reference, see ante 
 
 statute; Hurd's R. S. of 111., 1905. note 7. 
 
 p. 125. 13 — Stevens v. Farrell, 71 111. 
 
 S—Ante 611, for statute quoted App. 467; Lane v. Thorn, 103 111. 
 
 at large. App. 218; Ford v. Bank, 201 111. 
 
 9— Motsinger v. Wolf, 16 111. 71. 122; Grier v. Cable, 159 111. 34. 
 
 10 — As to statute see note 7,
 
 APPEALS AND WRITS OF ERROR. 531 
 
 circuit court being identical with that prevailing on appeals 
 from justices of the peace.^^ 
 
 613. Matters involved on appeal to circuit court. Such 
 necessarily involve claims appealed from and any matter aris- 
 ing upon final order excepting proceedings for the sale of land 
 to pay debts. Thus, generally, from order approving apprais- 
 er's report, making allowance to child of decedent.^^ But ap- 
 peal does not lie from order appointing appraisers, the same not 
 being considered final.^^ Appeal may be taken to the circuit 
 court from order of final settlement.^ ^ But such appeal does not 
 prevent county court from ordering distribution.^^ Appeal 
 may be taken from certain items of administrator's or executor's 
 account.^ ^ And from an order entered by probate court upon 
 citation against representatives of estate. 2« And from final 
 order in a proceeding to discover assets under sections 81 and 82 
 of the Administration Act.^i And in such proceeding, the su- 
 preme court on appeal from the appellate court will review the 
 facts, as the proceeding is in the nature of proceedings in chan- 
 cery. 
 
 614. Appeal by representative — his bond. "In all cases 
 when an executor or administrator shall take an appeal from 
 the judgment, decree or order of any court or justice of the 
 peace to the county, circuit or supreme court, or when he may 
 prosecute writs of error or certiorari, the appeal certiorari or 
 supersedeas bond shall be conditioned to pay the judgment or 
 decree, with costs, in due course of administration; in all other 
 
 14 — Baker v. Thompson, 98 111, 196; Curtis v. Brooks, 71 III. 125; 
 
 App. 190. Millard v. Harris, 119 111. 185; 
 
 15 — Wood V. Johnson, 13 111. Peterman v. U. S. Rubber Co., 221 
 
 App. 548. 111. 581. 
 
 16 — Maynard v. Maynard, 96 111. 20 — Rockey v. Downey, 98 111. 
 
 App. 479. App. 321, 
 
 17 — Reward v. Slagle, 52 111. 21 — For statute cited see ante 
 
 33G; Richardson v. Emberson, 96 511, 512, People v. Benson, 99 111. 
 
 111. App. 405. App. 326; Martin v. Martin, 68 111. 
 
 18— Curtis V. Brooks, 71 111, 125. App. 173; Martin v. Martin, 170 
 
 19— Morgan v. Morgan, 83 111. 111. 23.
 
 532 THE LAW OF ESTATES. 
 
 respects such bond shall be in the form prescribed by law in 
 other cases. ' '22 In suing out a writ of error to reverse a decree, 
 the administrator executed a supersedeas bond conditioned that 
 in case of affirmance the decree should be paid "in due course 
 of administration." This was held sufficient. The administra- 
 tor was not bound to assume an absolute personal liability for 
 the payment of the decree against his estate. ^3 And it was held 
 an appeal bond, by an executor, conditioned that he shall pay 
 the debt in due course of administration, was good. 2* Where an 
 administrator appealed, and the condition of the bond recites 
 that he is administrator, and at the end of his signature to the 
 bond he adds "Adm'r," the court will not hold this is an indi- 
 vidual bond of the administrator.^^ Where a party dies pend- 
 ing his appeal from a judgment against him, and his administra- 
 tor is substituted, an affirmance of a judgment against the de- 
 ceased party's administrator, requires that such be paid as other 
 established claims in the court of probate are paid, and that is in 
 due course of administration. And should the administrator be 
 discharged before paying such judgment it is held to be invalid.^* 
 
 615. Appeal in proceedings for the sale of land to pay debts. 
 
 The right to appeal is a statutory right which did not exist un- 
 der the common law. The writ of error was the writ of right 
 under the common law ; and it also, as to its use, is now regulated 
 by statute in most of the States. It is so regulated in Illinois.^^ 
 The statute of 1845, relating to proceedings to sell land to pay 
 debts in due course of administration, provided for an appeal 
 
 22— Section 125, chapter 3, "Ad- 25— Beardsley v. Hill, 61 111. 
 
 ministration of Estates." Starr & 354. 
 
 Curtis Annotated Statutes of Illi- 26— Green v. Taney, 16 Colo. 3r98. 
 
 nois. Vol. 1, p. 347, ajid cases 27— Langworthy v. Baker, 23 111. 
 
 cited; Kurd's R. S. of 111., 1905, p. 432. See section 123, of the 
 
 126. County Court Act, chapter 37, en- 
 
 23— Smith v. Dennison, 94 111. titled "Courts," providing for ap- 
 
 5g2. peals and writs of error. Hurd's 
 
 24— Mason v. Johnson, 24 HI. R. S. of 111., 1905, p. 625. 
 160.
 
 APPEALS AND WRITS OF ERROR. 533 
 
 to the Supreme Court.^s And where there is no statute directing 
 an appeal to the Circuit Court, and for that matter since the es- 
 tablishment of the Appellate Court, the rule of practice seems 
 to be settled, that the common law writ of error lies to the Su- 
 preme Court.29 To illustrate : In Haines v. The Peaple^^ it ap- 
 peared the statute gave no right of appeal to the Circuit Court, 
 in a proceeding to commit for contempt in failing to settle ac- 
 counts under the order of the County Court, and it was held, 
 a writ of error lies to the Supreme Court. In a bastardy case 
 there being no statute permitting appeal from the County Court 
 to the Circuit Court, the appeal goes direct to the Appellate 
 Court. In such case if the appeal were to the Circuit Court the 
 contesting parties would have the benefit of two jury trials.^i 
 And so a writ of error will not lie where the statute provides 
 for an appeal to the Circuit Court.32 
 
 In Kingsbury v. Sperry, three writs of error from the county 
 court were brought to review the proceedings of that court ; the 
 statute then in force was the same as the present, which pro- 
 vided, that guardians may mortgage the real estate of their 
 wards, by leave of the county court, expressed in an order to be 
 made for that purpose, which mortgage so given can only be 
 foreclosed in the county court. The statute then as now allow- 
 ing an appeal from such order or judgment of the county court 
 to the circuit court upon giving bond and security as directed by 
 the court. Held, no writ of error would lie in such case, the 
 remedy being by appeal.*^ 
 
 28 — Same statute citation as in Goe, 54 111. 285; Frans v. People, 
 
 note 27. 59 III. 427. 
 
 29— Fitzpatrick v. Joliet, 87 111. 33—119 111. p. 282, and cases 
 
 60. cited, page 283. In Kingsbury v. 
 
 30 — 97 111. 262. Sperry, it was held the forclosure 
 
 31 — Lee v. People, 140 111. 536. of a mortgage, or the giving leave 
 
 32 — Ennis v. Ennis, 103 111. 96; by the county court to a guardian 
 
 Frank v. Moses, 118 111. 435; Hob- to mortgage, does not involve a 
 
 son V. Paine, 40 111. 25; Holden v. freehold, within the meaning of 
 
 Herkimer, 53 111. 258; Horner v. the statute relating to appeals and 
 
 writs of error.
 
 534 THE LAW OF ESTATES. 
 
 616. Appeals in such case since the creation of probate and 
 appellate courts. When the legislature of the State of Illinois 
 created Probate and Appellate courts, the practice relating to 
 appeals and writs of error to and from said courts was much 
 confused; particularly was this true, when the relation of such 
 new courts were considered in their new relation to the old and 
 long established courts. The Appellate and Probate court acts 
 went into effect July 1, 1877, and it was really as late as March 
 13, 1896, when the case of Lynn v. Lynn^^ definitely settled the 
 conflict existing under the several sections of the statute relating 
 to appeals in proceedings to sell lands to pay debts. Soon after 
 the establishment of these new courts several cases in their order 
 were decided and now and then one of the statutes in regard to 
 appeals were construed and given effect, but no decided review 
 of the various statutes in apparent conflict was made until the 
 decision noted. Thus, in Union Trust Co. v. Trumble,^^ it was 
 held : That section 8 of the Appellate Court Act repealed, by im- 
 plication, section 122 of the County Court Act in so far as it con- 
 flicted with it. The question arose, whether or not an appeal 
 was to the circuit court in a bastardy case or direct to the Appel- 
 late court from a judgment of the county court.^^ And it was 
 held that section 8 of the Appellate Court Act "operates as an 
 amendment of section 88 of the Practice Act, and should be read 
 and construed as a part thereof. And when it is so read, it is 
 plain the effect is to give the appeal in the bastardy case direct 
 to the Appellate court, for although a bastardy proceeding is not 
 a suit at common law, it is clearly a proceeding at law."^^ In 
 the case, Lynn v. Lynn, it is said : * ' So far we have spoken in re- 
 gard to appeals from and writs of error to county courts, while 
 this case comes from the Probate court of Cook county. Section 
 8 of the Probate Court Act^^ provides that the practice in the 
 probate court shall be the same as now provided or which may 
 
 34—160 111. 307. 38 — See section 8 Probate Court 
 
 35 — 137 111. 146. Act given at large. Sec. 9, chapter 
 
 36— Lee v. People, 140 111. 536. 1, of this work. Laws of 1877, p. 
 
 37— Lynn v. Lynn, 160 III. 307. SI.
 
 APPEALS AND WRITS OF ERROR. 535 
 
 hereafter be provided for the probate practice in the county 
 court; and all laws now in force or which may hereafter be 
 enacted, concerning the administration of estates, shall govern 
 and be applicable to the practice of the probate court. Under 
 this section, whatever practice is provided by law for the county 
 court applies also to the probate court,^" as used in the statute, 
 includes the mode or manner of removing cases from the county 
 or probate court to the Appellate or Supreme Court by appeal 
 or writ of error. ' ' Therefore it was settled beyond further con- 
 troversy, an appeal lies directly to the Supreme court from a 
 decree of the probate court in a proceeding to sell lands of a 
 decedent for the payment of debts and where a freehold is in- 
 volved, the provision of the act in relation to the administration 
 of estates, and of the County Court Act for appeal to the circuit 
 court, are pro taiito repealed by the Practice Act and Appellate 
 Court Act."*^ It is well settled that in cases involving the valid- 
 ity of a statute or the construction of the constitution the appeal 
 or writ of error lies direct to the Supreme Court.**^ 
 
 39 — Fleishmaa v. Walker, 91 Court Act, chapter 37. entitled 
 
 III. 318. "Courts" Appellate Court Act same 
 
 40— Lynn v. Lynn, 160 111. 307; chapter section 8; Hurd's R. S. of 
 
 see also Randolph v. People, 130 111., 1905, pp. 601, 625. 
 
 111. 533; Grier v. Cable, 159 111. 29; 41— Section 89, Practice Act, 
 
 see sections 88, Practice Act, chap- Hurd's R. S. of 111., 1905, p. 1514; 
 
 ter 110. Hurd's R. S. of 111., 1905, County of Cook v. Industrial 
 
 p. 1543; sections 122, 123, County School for Girls, 125 HI. 540.
 
 CHAPTER XXXIV 
 
 ASSIGNMENT! OF DOWER AND HOMESTEAD— PROCEDURE 
 
 Sec. 
 617. 
 
 618. 
 
 619. 
 
 620. 
 
 621. 
 
 622. 
 623. 
 
 624. 
 
 Heir or next freeholder to as- 
 sign dower. 
 
 If assignment not made with- 
 in month, suit. 
 
 Necessary parties, include oc- 
 cupants, interested parties, 
 unknown owners, unknown 
 interests. 
 
 Summons and notice by pub- 
 lication the same as in suits 
 in chancery. 
 
 Pleadings and requirements, 
 hearing, decree. 
 
 Division by commissioners. 
 
 Homestead, dwelling house, 
 assignment of not to affect 
 estate of homestead; 
 waiver. 
 
 Report of commissioners; ap- 
 
 Sec. 
 
 proval by court, effect, pos- 
 session. 
 
 625. When land cannot be divided; 
 
 proceedings. 
 
 626. Sale under decree; lien pre- 
 
 served. 
 
 627. Damages from time of de- 
 
 mand. 
 
 628. Power of court 
 
 629. Heirs, persons interested may 
 
 petition to have dower as- 
 signed. 
 
 630. Administrator's or Guardian's 
 
 sale — assignment in of 
 dower or homestead. 
 
 631. Waste by person endowed. 
 
 632. Representative conveying land 
 
 by order of court does not 
 lose dower. 
 
 Sec. 617. Heir or next freeholder to assign dower. "It shall 
 be the duty of the heir at law, or other person having the next 
 estate of inheritance or freehold in any lands or estate of which 
 any person is entitled to dower, to lay off and assign such dower 
 as soon as practicable after the death of the husband or wife of 
 such person. "1 The heir is thus required by the Dower Act to 
 lay off and assign the widow's dower as soon as practicable after 
 the death of the husband, and, if he does not do so within a 
 month next after such death, the widow may file her petition for 
 the assignment of her dower. The filing of a petition by the 
 widow for the assignment of her dower implies the neglect of 
 the heirs to set it off to her in accordance with the statutory re- 
 quirement. To permit the widow to employ counsel to file a pe- 
 
 536
 
 ASSIGNMENT OF DOWER AND HOMESTEAD. 537 
 
 tition for the assignment of her dower and then permit the heirs, 
 who are made defendants to such petition, to come in and, by fil- 
 ing a cross-bill for partition, compel the widow to pay a portion 
 of their solicitor's fees, would be to permit such heirs to take 
 advantage of their own wrong, inasmuch as the filing of the pe- 
 tition for dower by the widow is the result of their own neglect 
 to set off her dower, as required by section 18 of the Dower Act.- 
 This assignment may be by parol, and when it is impracticable 
 to assign dower by metes and bounds, an allotment may be made 
 to the holder of the dower estate out of his or her proportionate 
 share of the rents and profits arising from the entire property. 
 The holder of the dower estate may, by an arrangement with the 
 heir or devisee, suffer him to rent out the land with the under- 
 standing that such holder, in lieu of dower, is to receive one- 
 third of his or her proportion of the annual rentals.^ Where 
 no demand is made, or petition filed, for the assignment of dow- 
 er, the heirs-at-law are entitled to the whole of the rents. Dam- 
 ages are allowed from the time of demand and a refusal to assign 
 dower. One-third of the rents of the land in which there is 
 dower forms a proper measure of such damages, and until de- 
 mand is made, the surviving wife or husband is entitled to no 
 damages. The filing of a petition for the assignment of dower 
 against the heirs-at-law is a sufficient demand in itself to give a 
 claim to one-third of whatever rents have accrued since that time 
 as damages.^ The right to dower is created by law; the partic- 
 ular portion of the premises to be enjoyed by the widow or sur- 
 viving husband is ascertained by the assignment; and as the as- 
 
 1— Section 18, chapter 41, 3— Lenfer v. Henke, 73 111. 405; 
 
 "Dower." Starr & Curtis Anno- Rawson v. Corbett, 150 111. 466; 
 
 tated Statutes of Illinois, with 10 Am. & Eng. Ency. of Law, 26. 
 
 Jones & Addington's Supplements ed., pp. 172, 175, 178; Sill v. Sill, 
 
 thereto. Vol. 1. p. 1469, and cases 185 111. 608. 
 
 cited; Vol. 4, p. 447, and cases 4— Bedford v. Bedford, 136 III. 
 
 cited; Kurd's R. S. of 111., 1905, 854; Peyton v. Jeffries, 50 111. 143; 
 
 p. 770. Rawson v. Corbett, 150 111. 466; 
 
 2— Gehrke v. Gehrke, 190 111. Sill v. Sill, 185 111, 608. 
 173; Rawson v. Corbett, 150 111. 
 466.
 
 538 THE LAW OF ESTATES. 
 
 signment does not create or transfer any interest in land it may 
 be made without writing — by a verbal agreement made and en- 
 tered into between the owner of the fee and the party entitled 
 to dower.^ The homestead estate is measured and defined by 
 value alone; it may extend to and embrace the entire body of 
 land to which it attaches ; and that estate may also be assigned by 
 parol.^ It is not necessary that legal proceedings should be had 
 in assignment of dower ; and if the same is fair, it will be consid- 
 ered validJ Assignment of dower will not be indefinitely de- 
 layed to await the slow progress of another suit under control of 
 adverse interests, involving matters of an entirely different na- 
 ture, and under which the assignment of dower was merely inci- 
 dental to the pending proceedings.^ And in proceedings, where 
 the decree is held correct, it is not necessary to serve a copy of 
 the decree on the party in possession before issuing a writ of 
 possession and obtaining service of the same.^ In a proceeding 
 for the assignment of dower by a citizen of Illinois, against one 
 defendant of the same State and another a citizen of the State of 
 New York, and where the property involved was owned by the 
 defendants jointly, it was held : As these were necessary parties 
 to such suit, the cause cannot be removed from the State to the 
 Federal court.^'' 
 
 Personal representatives, executors and administrators are not 
 necessary parties to a bill for assignment of dower and home- 
 stead.^ ^ A surviving husband or wife cannot sell, convey or 
 lease dower or homestead rights to a stranger to the title, before 
 such dower and homestead have been set off and assigned; and 
 
 5 — Schnebly v. Schnebly, 26 111. 8 — Heuschkel v. Heuschkel, 86 
 
 116; Lenfers v. Henke, 73 111. 405; 111. App. 135. 
 
 5 Am. & Eng. Ency. of Law, 924, 9_Agnew v. Lichten. 19 111. 
 
 925; 1 Washburn on Real Prop- . ^g 
 
 erty, 256; Pearce v. Pearce, 184 
 
 jjj 239 10— Rand v. Walker, 117 U. S. 
 
 340. 
 293. 11 — Higgins v. Higgins, 219 IlL 
 
 7 — Campbell v. Moore, 15 111. 146. 
 
 6 — Pearce v. Pearce, 184 111. p. 
 )3. 
 
 7— Can 
 App. 129.
 
 ASSIGNMENT OF DOWER AND HOMESTEAD. 539 
 
 damages will not be allowed in condemnation proceedings to a 
 stranger holding a lease executed under such circumstances. 
 And it is also held, where an understanding between a surviving 
 husband and his daughters was, that their father might reside 
 on the home place, and receive the rents therefor, while each 
 daughter was to receive rents from other property, amounts to 
 an arrangement for division of the rents only, and does not 
 amount to a parol assignment of dower and homestead; partic- 
 ularly is this so, where it appears under such arrangement, the 
 surviving husband pays the taxes on all the property and keeps 
 up the repairs at his own expense.^ ^ 
 
 618. If assignment not made within month — suit. "If such 
 
 heir or person shall not, within one month next after such death, 
 satisfactorily assign and set over to the surviving husband or 
 wife, dower in and to all lands, tenements and hereditaments 
 whereof by law he or she is or may be dowable, such survivor 
 may sue for and recover the same by petition in chancery, as 
 hereinafter prescribed, against such heir or other person, or any 
 tenant in possession, or any other person claiming right or pos- 
 session in said estate. "^^ ''The petition may be filed in any 
 court of record, of competent jurisdiction in the county where 
 the estate or some part thereof is situated. "^ ^ " Infants may pe- 
 tition by guardian or next friend, and other persons under 
 guardianship by their conservators. When an infant or person 
 under guardianship is a defendant, he may appear by guardian 
 or conservator, or the court may appoint a guardian ad litem for 
 such person, and compel the person so appointed to aet."^^ "The 
 petition shall set forth the nature of the claim, and particularly 
 specify the premises in which dower is claimed, and shall set 
 forth the interests of all parties interested therein so far as the 
 
 12 — C. B. & D. Ry. Co. v. Kelly, 14— Section 21, chapter 41, 
 
 221 III, 498; see also Best v. Jenks, "Dower." 
 
 123 111. 447; Union Brewing Co. v. 15 — Section 22, chapter 41, 
 
 Meier, 163 111. 424. "Dower." 
 
 13— Sections 19, 20, chapter 41. 
 "Dower."
 
 540 THE LAW OF ESTATES. 
 
 same are known to the petitioner, and shall pray for the assign- 
 ment of such dower. "^^ Neither minor heir nor his guardian can 
 make a valid assignment of dower; where such are the only in- 
 terested parties the proceeding must of necessity be by the 
 court.^^ And notwithstanding the statute, the guardian has no 
 power to enter the appearance of his ward in a suit against the 
 latter, where the ward has not been served with process.^ ^ But 
 the guardian may appeal for ward.^^ 
 
 619. Necessary parties include occupants, all interested par- 
 ties, unknown owners, unknown interests. ' ' Every person hav- 
 ing any interest in the premises, whether in possession or other- 
 wise, and who is not a petitioner, shall be made a defendant to 
 such petition. "20 "When there are any persons interested in the 
 premises whose names are unknown, or the share or quantity of 
 interest of any of the parties is unknown to the petitioner, or 
 where such share or interest shall be uncertain or contingent, or 
 the ownership of the inheritance shall depend upon an executory 
 devise, or the remainder shall be contingent, so that such parties 
 cannot be named, the same shall be stated in the petition, "^i " ^u 
 persons interested in the premises in which dower is claimed, 
 whose names are unknown, may be made parties to such petition 
 by the name and description of unknown owners of the premises, 
 or as the unknown heirs of any person who may have been in- 
 terested in the same. ' '-^ 
 
 620. Summons and notice by publication the same as suits 
 in chancery. "The defendants to any such petition shall be 
 
 16— Reference to statutes in 19— Sill v. Sill, 185 111. 601. 
 
 notes 13, 14, 15. Starr & Curtis 20— Section 23, chapter 41, 
 
 Annotated Statutes of Illinois, "Dower." 
 
 with Jones & Addington's Supple- 21 — Section 24, chapter 41, 
 
 ments thereto, Vol. 2, pp. 1469, "Dower." 
 
 1470, and cases cited; Vol. 4, pp. 22— Section 25, chapter 41. 
 
 447, 448, Kurd's R. S. of 111., 1905, "Dower;" reference to statutes, 
 
 p. 770. notes 20, 21, 22. Starr & Curtis 
 
 17 — Bonner v. Peterson, 44 111. Annotated Statutes of Illinois, 
 
 253; statute given, note 14. Vol. 2, p. 1470; Kurd's R. S. of 
 
 18— Dickenson v. Dickenson, 124 111., pp. 770, 771. 
 111. 483.
 
 ASSIGNMENT OP DOWER AND HOMESTEAD. 541 
 
 summoned in the same manner as defendants to suits in chan- 
 cery." Unknown owners, or parties in interest, of the premises, 
 and the unknown heirs of any such persons, may be notified by 
 advertisement as in cases in chancery. "23 "When it shall ap- 
 pear by affidavit filed, as in cases in chancery, that any defend- 
 ant resides or has gone out of the State, or upon due inquiry 
 cannot be found, or is concealed within this State so that process 
 cannot be served on him, and the affiant shall state the place of 
 residence of such defendant, if known, or that upon diligent in- 
 quiry his place of residence cannot be ascertained, he may be 
 notified in the same manner as in such case in chancery. "2* 
 "Non-resident defendants may be served by a copy of the peti- 
 tion in the same manner that such defendants in chancery may 
 be served by a copy of the bill of complaint, and the service 
 thereof may be proved as in such case provided. "^^ "Any de- 
 fendant who is not summoned, served with a copy of the peti- 
 tion, or shall not receive the notice required to be sent him by 
 mail, or the heirs, devisees, executors, administrators and other 
 legal representatives of such person, may appear and answer the 
 petition within the same time and upon the same conditions, and 
 with like effect as in other cases in chancery, "^s 
 
 621. Pleadings and requirements — hearing — decree. "The 
 petitioner may, in his petition, require the defendants or any of 
 them to answer his petition on oath, in which case the answer 
 shall have the same effect as an answer in chancery under 
 oath. "2'^ "During the pendency of any such suit or proceeding 
 
 23 — Sections 26, 27, chapter 41, ments thereto, Vol. 2, p. 1471; 
 
 "Dower." Kurd's R. S. of 111., 1905, p. 771. 
 
 24 — Section 28, chapter 41, See also sections 14 to 22, chapter 
 
 "Dower." 22, entitled "Chancery." Starr & 
 
 25 — Section 29, chapter 41, Curtis, etc.. Vol. 1, pp. 557 to 577, 
 
 "Dower." and cases cited; Vol. 4, p. 95, et 
 
 26 — Section 30, chapter 41, seq., and cases cited; Kurd's R. S. 
 
 "Dower." Reference to statutes, of 111., 1905, pp. 228, 229, 230; Oet- 
 
 notes 23, 24, 25, 26. Starr & Cur- tinger v. Specht, 162 111. 1S2. 
 tis Annotated Statutes of Illinois, 27 — Section 31, chapter 41, 
 
 with Jones & Addington's Supple- "Dower." Statute reference same 
 
 as note 26.
 
 542 THE LAW OF ESTATES. 
 
 any person claiming to be interested in the premises may appear 
 and answer the petition, and assert his or her rights, by way of 
 interpleader; and the court shall decide upon the rights of per- 
 sons appearing as aforesaid, as though they had been made par- 
 ties in the first instance. "-^ "Petitions for the recovery and as- 
 signment of dower shall be heard and determined by the court 
 upon the petition, answer, replication, exhibits and other testi- 
 mony without the necessity of formal pleading. The court may 
 direct an issue or issues to be tried by a jury, as in other cases in 
 equity. "29 "When the court adjudges that the one entitled there- 
 to recover dower, it shall be so entered of record, together with a 
 description of the land out of which he or she is to be so en- 
 dowed, and the court shall thereupon appoint three commission- 
 ers not connected with any of the parties either by consanguinity 
 or affinity, and entirely disinterested, each of whom shall take 
 the following oath, etc."^° Strict proof of regular paper title 
 need not be made on issue of non-seizen; prima facie proof is 
 sufficient by deed or other instrument, unless rebutted or such 
 deeds are attacked for fraud or forgery or some other cause.^^ 
 But a claim by a defendant based upon improvements made on 
 the land in which petitioner is not entitled to dower, must be 
 strictly averred and proved ; and, if such proof is not made, he 
 cannot complain that no mention is made of improvements in 
 the commissioner's report.^s The record must show that the 
 commissioners were duly sworn as required by the statute.^^ And 
 the statutory oath prefixed to the report of the commissioners 
 must be a part of the report and record.^^ 
 
 622. Division by commissioners. "The commissioners shall 
 go upon the premises, and if the same are susceptible of division, 
 
 28 — Section 32, chapter 41, pp. 1471 to 1474 and cases cited; 
 
 "Dower." Kurd's R. S. of 111., 1905, p. 771. 
 
 29— Section 33, chapter 41, 31— Becker v. Quigg, 54 111. 390; 
 
 "Dower." Reich v. Berdel, 120 111. 499. 
 
 30— Section 34, chapter 41, 32— Reich v. Berdel, 120 111. 499. 
 "Dower." Statute reference, notes 33 — Lloyd v. Malone, 23 111. 43; 
 
 28, 29, 30. Starr & Curtis Anno- Durham v. Mulkej-, 59 111. 91. 
 tated Statutes of Illinois, Vol. 2, 34— Lloyd v. Malone, 23 111. 43.
 
 ASSIGNMENT OF DOWER AND HOMESTEAD. 543 
 
 without manifest prejudice to the parties in interest, shall set off 
 and allot to the person entitled thereto his or her dower, by metes 
 and bounds, according to quality and quantity, of all the prem- 
 ises described in the order of the court. "^5 "The dower need 
 not be assigned in each tract separately, but may be allotted in a 
 body out of one or more of the tracts of land, when the same can 
 be done without prejudice to the interests of any person inter- 
 ested in the premises. "^^ 
 
 The commissioners have no power to make partition in such 
 proceedings, among the interested parties entitled to dower.3'^ 
 Their duty is to set off one-third according to quantity and qual- 
 ity by metes and bounds, where it is practicable so to do; and 
 the court in such proceeding will require this to be done in all 
 cases, where it does not prejudice the rights of any interested 
 party, and where it is practicable to do so.^^ The statute quoted, 
 which provides, that in certain cases, where there are several 
 tracts of land in which a wife or husband may be entitled to 
 dower, the same may be set oft' and allotted to her in a body,, has 
 no application where there are purchasers of such lands, or a 
 portion of them, who have acquired interests therein. The mere 
 fact that a widow is occupying one of several distinct parcels of 
 land, as a homestead, in all of which she is entitled to dower, will 
 not authorize the allotment of her entire dower interest in all the 
 parcels, out of that portion occupied as a homestead.^^ Dower is 
 not assignable from part of an estate in lieu of the whole, unless 
 it be done with the consent of parties in interest.^" Nor can such 
 interest be assigned to one heir, relieving the lands of another.'*^ 
 Where A acquired title to land subject to the dower right of 
 
 35 — Section 35, chapter 41, 37 — Lloyd v. Malone, 23 111. 43. 
 
 "Dower." 3S— Atkins v. Merrell, 39 111. 62. 
 
 36— Section 36, chapter 41, „„ ^ , ,„ . 
 
 "Dower." Statute reference, notes 39-Peyton v. Jeffries, 50 111. 
 
 35, 36. Starr & Curtis Annotated ■*■ 
 
 Statutes of Illinois, Vol. 2, pp. 40— Schnebly v. Schnebly, 26 111. 
 
 1474, 1475; Kurd's R. S. of 111., H^- 
 
 pp. 771, 772. See also Longshore v. 41 — Haines v. Hewett, 129 HI. 
 
 Longshore, 200 111. 474. 347.
 
 544 THE LAW OF ESTATES. 
 
 the complainant, and after A's death dower was assi^ed to 
 his widow in the same, and the court subsequently assigned the 
 same land to the elder dowress that had been assigned to A's 
 widow. Held: This being a vital error, it follows that the 
 assignment of damages was wrong, and the decree of the court 
 must be reversed, and the cause remanded with directions to 
 re-assign dower of appellee's interest, upon the bases herein 
 indicated. The rule governing the decision being as follows: 
 "If before the assignment of dower to the ancestor's widow, 
 the grantee should die, and his own widow be endowed, then the 
 subsequent assignment of dower to the elder dowress would 
 operate to interrupt the enjoyment of the other widow in a 
 proportionate part, during the lifetime of the former, but no 
 longer. ' '^^ 
 
 623. Homestead — dwelling house — assignment of n.ot to af- 
 fect estate of homestead — waiver. "The surviving husband or 
 wife shall have the homestead or dwelling house, if he or she 
 desires, and such allotment shall not affect his or her estate of 
 homestead therein, but if the dower is allotted out of other 
 lands, the acceptance of such allotment shall be a waiver and 
 release of the estate of homestead of the person entitled to dower, 
 and his or her children, unless it shall be otherwise ordered by 
 the court. "*^ In a case where a mortgage was foreclosed, in 
 which the wife did not join; the decree in such case provided 
 and directed a sale of the residue, subject to dower, which was 
 held valid.'*"* The surviving husband or wife under the statute 
 have conferred upon them the homestead and dower rights when 
 assigned. No third person, nor any purchaser or grantee of 
 
 42 — 1 Scribner on Dower, 319, See also section 25, chapter 106, 
 
 and cases cited, note 3; Steele v. entitled "Partition." Star & Curtis, 
 
 La Frambois, 68 111. 456. etc.. Vol. 3, pp. 2921, 2924; Kurd's 
 
 43— Section 37, chapter 41, R. S. of 111., 1905, pp. 1495, 1496. 
 
 "Dower." Starr & Curtis Anno- See also Walker v. Doan, 108 IlL 
 
 tated Statutes of Illinois, Vol. 2, 236; Same v. Same, 101 111. 628; 
 
 pp. 1475, 1478. and cases cited; Cool v. Jackson, 13 111. App. 560. 
 Kurd's R. S. of 111., 1905, p. 772. 44— Kail v. Karris, 113 111. 410.
 
 ASSIGNMENT OF DOWER AND HOMESTEAD. 545 
 
 the estate of homestead has that right.^'^ The estate of home- 
 stead can have no separate existence independent of the title 
 of the householder, which title constitutes one of its essential 
 elements, and from which it is inseparable.*^ And it is held 
 that under section 4, chapter 52, entitled "Exemptions,"*'^ the 
 homestead estate is an estate in land and not merely an exemp- 
 tion; and when the interest of the householder does not exceed 
 $1,000 in value the homestead estate comprises his entire title, 
 leaving no interest to which liens can attach or which can be 
 conveyed separately.*^ 
 
 624. Report of commissioners — approval by court, effect^ 
 
 possession. "The commissioners shall make report in writing, 
 signed by at least two of them, showing what they have done, 
 and if they have made a division, describing the premises 
 allotted by metes and bounds or other proper description; and 
 the allotment so made, if approved by the court, shall vest in 
 the person entitled thereto an estate in the lands and tenements 
 set off and allotted to him or her for and during his or her 
 natural life; and the court shall forthwith cause such person 
 to have possession by writ directed to the sheriff for that pur- 
 pose. "*9 When premises are assigned for dower, the assign- 
 ment, like a deed, without mention of appurtenances, will pass 
 all things which are incidents appendant or appurtenant 
 thereto; and in the absence of any restrictions in the proceed- 
 ings, it will be presumed that they were taken into considera- 
 tion by the commissioners and regarded as a charge upon the 
 other portion in favor of that allotted. ^*^ By this statute, the 
 approval of the report of the commissioners setting off dower 
 
 45— Best V. Jenks, 123 111. 447; 48— Roberson v. Tipple, 209 III. 
 
 C. B. & D. Ry. Co. v. Kelley, 221 40, and cases cited on page 41. 
 
 111. 498, and cases cited. 49 — Section 38, chapter 41, 
 
 46 — Section 4, chapter 52, "Ex- "Dower." Starr & Curtis Anno- 
 
 emptions." Starr & Curtis Anno- tated Statutes of Illinois, Vol. 2, 
 
 tated Statutes of Illinois, Vol. 2, p. p. 147, and cases cited; Kurd's R. 
 
 1874. S. of 111., 1905, p. 772. 
 
 50— Morrison v. King, 62 111. 36. 
 85
 
 546 THE LAW OF ESTATES. 
 
 to a widow, vests in her an estate for life in the land assi^ed 
 to her, and the court is required forthwith to cause her to 
 have possession by a writ directed to the sheriff for that pur- 
 pose.^i Where a specific sum of money was awarded in lieu of 
 real estate with consent of dowress ; it was held, the real estate 
 must remain intact, though not producing annual income suffi- 
 cient to meet the dower awarded.^2 i^ ^-j^q following case, a 
 decree was entered finding sufficient facts to sustain dower, 
 which the court held valid.^^ 
 
 625. When land cannot be divided — proceedings. "When 
 the estate out of which dower is to be assigned consists of a 
 mill or other tenement which cannot be divided without dam- 
 age to the whole, and in all cases where the estate cannot be 
 divided without great injury thereto, the dower may be as- 
 signed of the rents, issues and profits thereof, to be had and 
 received by the person entitled thereto as tenant in common with 
 the owners of the estate, or a jury may be empaneled to inquire 
 of the yearly value of the dower therein, who shall assess the 
 same accordingly, and the court shall thereupon enter a decree 
 that there be paid to such person as an allowance in lieu of 
 dower, on a day therein named, the sum so assessed as the yearly 
 value of such dower, and the like sum on the same day of each 
 year thereafter during his or her natural life, and may make 
 the same a lien on any real estate of the party against whom 
 such decree is rendered, or cause the same to be otherwise 
 secured. "^^ Where taxes were paid and improvements made 
 by widow, before she was assigned dower upon lands she was 
 
 51 — Agnew v. Fultz, 119 111. 296. tion of statute: Bonner v. Peter- 
 
 52— Larson V. Wolfe, 163 111. 552. son, 44 111. 253; Fleming v. Ven- 
 
 53— Gogan v. Burdick, 182 111. num, 45 111. 374; Walsh v. Reis, 50 
 
 126. Ill- 477; Meyer v. Pfeiffer, 50 111. 
 
 54 — ^Section 39, chapter 41, 485; Donoghue v. Chicago, 57 IlL 
 
 "Dower." Starr & Curtis Anno- 235; Atkins v. Merrell, 39 111. 62; 
 
 tated Statutes of Illinois, Vol. 2, p. American v. Rimpert, 75 111. 228; 
 
 1476, and cases cited; Kurd's R. S. Scammon v. Campbell, 75 111. 223; 
 
 of 111., 1905, p. 772. And see the Wheeler v. Dav^^son, 63 111. 54; 
 
 following cases, making applica- Kitt v. Scammon, 82 111. 519.
 
 ASSIGNMENT OP DOWER AND HOMESTEAD. 547 
 
 using, it was held she could not recover the money so paid, 
 because the rents until dower was demanded belofnged to heirs, 
 and the taxes paid and the improvements made were an offset 
 to rents belonging to heirs.'^^ Annual expenses and needed 
 repairs will be deducted from yearly value of rentals in con- 
 sidering amount of dower to be awarded.^^ But the increase 
 of value and rentals enures to the benefit of party entitled to 
 dower.57 And there is no difference in the legal effect of a 
 conveyance to a stranger for a valuable consideration, and one 
 to a child for a good consideration, as regards the right of the 
 grantor's widow to dower in the premises conveyed. In assess- 
 ing the value of the widow's dower, in such case, she will be 
 confined to the improvements on the land at the time of the 
 conveyance, although, after the conveyance, the grantor may 
 have erected a house on the premises with his own means.^® 
 
 626. Sale under decree — lien preserved. "Whenever any 
 such decree is made a lien on any real estate, as provided in the 
 preceding section, and a sale of such real estate shall become 
 necessary to satisfy any such installment, the property shall be 
 sold subject to the lien of the installment not then due, unless 
 the court shall at the time direct otherwise, and subsequent 
 sales may, from time to time, be made to enforce such lien as 
 the installments may become due, until all the installments are 
 paid."^^ 
 
 627. Damages from time of demand. "Whenever, in any 
 action brought for the purpose, a surviving husband or wife 
 
 55 — ^Wheeler v. Dawson, 63 111. 1S59, p. 48, sec. 1, which extends 
 
 54. the cases, where allotment of ali- 
 
 56 — Carter v. Stookey, 89 111. mony or of specific sums of money 
 
 279. were made liens on land. Starr & 
 
 57— Gove V. Gather, 23 111. 585; Curtis Annotated Statutes of Illi- 
 
 Stookey v. Stookey, 89 111. 40. nois, Vol. 2, p. 1477; Kurd's R. S. 
 
 58— Stookey v. Stookey, 89 111. of 111., 1905, p. 772. See also in 
 
 40. this connection section 1, chapter 
 
 59 — Section 40, chapter 41, 3, entitled "Conveyances." Starr & 
 
 "Dower." In lieu of part of law, Curtis, etc., Vol. 1, p. 910; Kurd's 
 
 R. S. p. 463.
 
 548 THE LAW OF ESTATES. 
 
 recovers dower in any lands, he or she shall be entitled to 
 recover reasonable damages from the time of his or her demand, 
 and a refusal to assign reasonable dower, which may be assessed 
 by the court, or a jury, if required, may be impaneled for that 
 purpose, and execution may issue therefor. "^^ Where a sur- 
 viving husband or wife dies before assignment of dower, their 
 representatives cannot have damages assessed; and this was 
 decided where the widow dies, while her suit for dower is pend- 
 ing. The right to dower terminates on the death of the widow ; 
 and of course on the death of a surviving husband. The dam- 
 ages being a consequence of a recovery of dower could only be 
 assessed when there was a judgment in favor of dower.^^ Dam- 
 ages against minor heir cannot be recovered. This is based 
 upon the legal status of the minor to the effect that a guardian 
 or minor cannot assign the widow her dower in the lands of her 
 husband, so as to bind the minor on arriving at age; and 
 cannot, therefore, be in default in not making such assignment, 
 if demanded. And where lands are condemned for public im- 
 provements, the assessment of the damages therefor, unless the 
 contrary appears, satisfies all the title to the property, includ- 
 ing the fee simple and all lesser estates. P having dower in the 
 land appropriated by the city to public use, was in equity held 
 to have dower in the proceeds paid in satisfaction of the judg- 
 ment as damages for such appropriation of the land for public 
 use.® 2 And it is the settled law that the bringing of suit for 
 dower amounts to a valid demand.®^ No decree should be entered 
 for damages before demand is made, it is held error to do so.®* 
 Where yearly value in a dower proceeding is assessed under 
 
 60— Section 41, chapter 41, 203; Strawn v. Strawn, 50 III. 
 
 "Dower." Part of R. S. 1845, p. 257; Atkins v. Merrell, 39 111. 63. 
 
 202, sec. 26. Starr & Curtis Anno- 62— Bonner v. Peterson, 44 111. 
 
 tated Statutes of Illinois, Vol. 2, p. 253. 
 
 1478, and cases cited; Kurd's R. S. 63— Atkins v. Merrell, 39 111. 
 
 of 111., 1905, p. 772. 62; Bonner v. Peterson, 44 111. 253. 
 
 61— Turney v. Smith, 14 lU. 241, 64— Cool v. Jackman, 13 111. 
 
 and see Simpson v. Ham, 78 111. App. 360.
 
 ASSIGNMENT OP DOWER AND HOMESTEAD. 549 
 
 section 39,"^ the jury selected to try the issue, should 
 also assess damages ; and if they fail to do so and the court in its 
 decree awards damages not assessed by the jury, it will be 
 irregiilar.'^^ On a petition for the assignment of dower, the court 
 has complete jurisdiction, when it has assigned dower, to cause 
 the widow's damages to be assessed for the detention of her- 
 dower; and when she elects to proceed by petition under the 
 statute, and has her dower assigned, she cannot then abandon 
 that proceeding and invoke the aid of a court of chancery to 
 take an account of the mesne profits. Her remedy in the pro- 
 ceeding by petition is full and complete, and she should pursue 
 it then, and if she fails to do so, she will be deemed to have 
 waived it.^'^ As between themselves — ^the heirs and widow — in 
 redeeming land from mortgage sale it is the duty of each to 
 contribute a ratable proportion of the redemption money, ac- 
 cording to the value of their respective interests. Thus, the 
 heirs, by paying off the mortgage debt, should not be permitted 
 thereby to impose the whole burden of redemption from the 
 mortgage upon the widow, in order that she may avail herself 
 of her dower right, and thereby compel her to refund to them 
 the whole payment made.^^ The heirs by the discharge of the 
 mortgage, have an equitable lien upon the estate, which they 
 might hold against the widow till she contributed her propor- 
 tionate share of the charge, according to the value of her inter- 
 ests^ It is held, that a purchaser of land at an administrator's 
 sale, subject to a mortgage given by the intestate and his wife^ 
 by which the wife released her dower, after payment of the 
 mortgage is not chargeable for rents and profits as mortgagee 
 in possession, in a contest between him and the widow claim- 
 ing dower in the equity of redemption. As respects the right 
 of dower, he would be chai'geable with nothing until demand 
 
 65— Ante 625. Selb v. Montague, 102 111. 446; 
 
 66— R. R. Co. V. Curtenius, 65 III. Montague v. Selb, 106 111. 49. 
 
 120. 69 — 1 Washburn on Real Prop- 
 
 67— Simpson v. Ham, 78 111. 203. erty, 2d ed., 186; Cox v. Garst, 105 
 
 68— Cox V. Garst, 105 111. 342; 111. 342.
 
 550 THE LAW OF ESTATES. 
 
 made for the assignment of dower, and refusal. The right to 
 damages for detention of dower is incident to right of dower 
 and either falls or is allowed with itJ*^ And it is held, where 
 the widow consents to the sale of property by the guardian of 
 her children, she is not estopped from claiming dower. "^ Neither 
 will administrator's statement unauthorized by widow, estop 
 her dower.'^2 The administrator of the widow, where she dies 
 before decree for dower cannot recover mesne profits. And 
 such was held, where a decree assigning dower to a widow, at 
 her suit against the alienees of her husband, was reversed and 
 remanded for further proceedings by the Supreme Court. The 
 theoiy of the decision is based on the doctrine that she must 
 establish her right to dower in her lifetime. The widow died 
 without establishing her right, and the damages consequent upon 
 the recovery of dower cannot be assessed. The principal thing 
 was extinguished by the death of the widow, and with it fell 
 the incident.'^^ If the widow had died after a decree for the 
 assignment of dower, became final and conclusive, the claim of 
 the administratrix to mesne profits might, perhaps, be considered 
 as within the equity of the statute.''' * 
 
 628. Power of court. "The commissioners shall, at all 
 times, be subject to the directions of the court; and any one or 
 more of them may, before the final confirmation of the report, 
 be removed, and others appointed in their stead. "^^ 
 
 629. Heirs, persons interested, may petition to have dower 
 assigned. "Heirs, or, if under age, their guardians, or any other 
 persons interested in lands, tenements or hereditaments, may 
 
 70 — Morrison v. Morrison, 11 111. 75 — Section 42, chapter 41, 
 
 App. 605. "Dower." Starr & Curtis Anno- 
 
 71 — R. R. Co. V. Curtenius, 65 tated Statutes of Illinois, Vol. 2, 
 
 111. 120. p. 1478; Kurd's R. S. of 111., 1905, 
 
 72 — Cox V. Garst, 105 111. 342. p. 772. For fees of commissioners 
 
 73 — Hitt V. Scammon, 82 111. see section 30, chapter 53, "Fees 
 
 520. and Salaries," Starr & Curtis An- 
 
 74_Turney v. Smith, 14 111. 241. notated Statute of Illinois, Vol. 
 
 2, p. 1980.
 
 ASSIGNMENT OF DOWER AND HOMESTEAD. 551 
 
 also petition the court to have dower assigned to the person 
 entitled thereto, which shall be proceeded in in the same manner 
 as is prescribed in other cases. "^^ It is held to be the duty of 
 the guardian to institute proceedings for the assignment of 
 dower so that his wards might obtain their share of the rents 
 and profits of the estate. It was equally his duty, on the dower 
 being assigned, to lease the portion of the farm set apart to the 
 heirs. And his estate is liable for whatever might have been 
 received by a faithful discharge of those duties.''^ And it has 
 been held, that a guardian cannot assign dower pending sale of 
 wards ' property."* 
 
 630. Administrator's or guardian's sale^ — assignment in, of 
 dower or homestead. "Whenever application is made to a 
 county court for leave to sell real estate of a deceased person 
 for the payment of debts, or for the sale of real estate of any 
 ward, as authorized by law, and it appears that there is a dower 
 and homestead, or either, interest in the land sought to be sold, 
 such court may in the same proceeding, on the petition of the 
 executor, administrator, guardian or conservator, or of the 
 person entitled to dower and homestead, or either, therein, cause 
 the dower and homestead, or either, to be assigned, and shall 
 have the same power and may take lilie proceedings therefor 
 as hereinbefore provided for assignment of dower. "'^^ All right 
 and title which the head of the family has in the premises 
 
 76 — Section 43, chapter 41, 1, 1875. Starr & Curtis Annotated 
 
 "Dower." Starr & Curtis Anno- Statutes of Illinois, with Jones <fe 
 
 tated Statutes of Illinois, Vol. 2, Addington's Supplements thereto, 
 
 p. 1479; Kurd's R. S. of 111., 1905, Vol. 2, p. 1479, and cases cited; 
 
 p. 772. Vol. 4, p. 448, and cases cited; 
 
 77— Clark v. Burnside, 15 111. Kurd's R. S. of 111., 1905, p. 772. 
 
 64. See also section 32, chapter 106, 
 
 78 — Sx parte Guernsey, 21 111. entitled "Partition." Starr & Cur- 
 
 443. lis, etc.. Vol. 3, p. 2924; Kurd's 
 
 79 — Section 44, chapter 41, 1905, p. 1496. See section 1, chap- 
 
 "Dower." As amended by laws of ter 52, entitled "Exemptions." 
 
 1875, p. 75. sec. 1: In force July Starr & Curtis, etc., Vol. 2, p. 
 
 1865; Kurd's 1905, p. 1043.
 
 552 THE LAW OF ESTATES. 
 
 which constitute the homestead, is exempted from forced sale 
 for the payment of debts, or other purposes. It is not the mere 
 right of occupancy, but it is the lot or ground as a residence that 
 is exempted.^*^ Where the homestead premises do not exceed 
 in value $1,000, there can be no valid sale of the property itself 
 on execution or decree for the payment of debts or other pur- 
 poses, and this exemption, on the death of the householder, is 
 continued in force as to his widow and children, precisely as 
 held by him. No sale can be rightfully made of the homestead 
 by the administrator of the deceased householder to pay his 
 debts, when the property does not exceed in value $1,000, until 
 the exemption in favor of the widow and minor children has 
 been in some mode terminated; and if such sale is made, a 
 court of equity has the power to set the same aside at the 
 instance of the homestead occupant. The homestead, when not 
 exceeding $1,000 in value, cannot even be sold subject to the 
 homestead right.^^ "Where the homestead exceeds $1,000 in 
 value, the statute directs how a sale of the property may be 
 made.82 Ji enacts that the waiver shall, to be operative, be in 
 writing, subscribed by the householder and his or her wife or 
 husband, if he or she have one, and acknowledged, etc., or pos- 
 session abandoned or given pursuant to the conveyance, "or if 
 the exemption is continued to the childi-en, no waiver or release 
 shall be valid without the order of court directing a release 
 thereof. "83 And if the sale is made in violation of the provi- 
 sions of the statute equity will set such sale aside.*'* A bill for 
 
 80 — Hartwell v. McDonald, 69 pp. 1874, 188fi, 1883, and cases 
 
 111. 293; Hartman v. Schultz, 101 cited; Kurd's R. S. of 111., 1905, p. 
 
 111. 437. 1044. See also sections 10 and 11, 
 
 81 — Hartman v. Schultz, 101 111. chapter 52, "Exemptions." Starr 
 
 437; Wolf V. Ogden, 66 111. 224; & Curtis Annotated Statutes, Vol. 
 
 Bursen v. Goodspeed, 60 111. 277. 2, p. 1885, and cases cited under 
 
 82 — Section 4, chapter 52, "Ex- sections of statute. See also King- 
 
 emptions." man v. Higgins, 100 111. 319; 
 
 83— Sections 6, 7, chapter 52, Hotchkiss v. Brooks, 93 111. 392; 
 
 "Exemptions." Starr & Curtis An- Merritt v. Merritt, 97 111. 249. 
 notated Statutes of Illinois, Vol. 2, 84 — Conklin v. Foster, 57 111.
 
 ASSIGNMENT OF DOWER AND HOMESTEAD. 553 
 
 partition which declares that A. B. has a right of dower in all 
 the lands, does not authorize the court to decree a sale of the 
 lands, and that the dower shall be extinguished by the payment 
 of a gross sum. The order of sale should protect the dowress, 
 by directing the sale subject to her rights. A widow, under the 
 statute, cannot be deprived of her dower, except by her own 
 acts. If a widow applies for an assignment of dower, and this 
 cannot be done without prejudice to the estate, a jury shall fix 
 the annual value of the dower, and the court shall then direct 
 how this value should be annually paid.^'^ 
 
 631. Waste by person endowed. "No person who is en- 
 dowed of any lands shall commit or suffer any waste thereon 
 on penalty of forfeiting that part of the estate whereupon such 
 waste is made to him or them that have the immediate estate of 
 freehold or inheritance in remainder or reversion, but every 
 person so endowed shall maintain the houses and tenements, 
 with the fences and appurtenances, in good repair, and shall be 
 liable to the person having the next immediate estate of in- 
 heritance therein for all damage occasioned by any waste com- 
 mitted or suffered by him or her.''^^ 
 
 632. Representative conveying land by order of court does 
 not lose dower. "No person who sells and conveys land by 
 order of court for the payment of debts shall be deemed to have 
 relinquished, by reason of such conveyance, any right of dower 
 
 104; Hartman v. Schultz, 101 111. 85 — Francisco v. Hendricks, 28 
 
 437; Lewis v. McGraw. 19 111. App. 111. 64; Tibbs v. Allen, 27 111. 119. 
 
 313. For a proceeding where land 86 — Section 45, chapter 41, 
 
 was sold to pay debts, and dower "Dower." R. S. 1845, p. 202, sec. 
 
 and homestead set off by decree of 30, rewritten and extended to hus- 
 
 the county court, having probate band. Starr & Curtis Annotated 
 
 jurisdiction, see the following Statutes of Illinois, with Jones & 
 
 cases: Oettinger v. Specht, 162 111. Addington's Supplements thereto, 
 
 182, and cases cited; Jones v. Gil- Vol. 2, p. 1479, and cases cited; 
 
 bert, 135 111. 27; Kenley v. Bryan, Vol. 4, p. 448, and cases cited; 
 
 110 111. 652; Hartman v. Schultz, Hurd's R. S. of 111., 1905, p. 772. 
 101 111. 437.
 
 554 
 
 THE LAW OP ESTATES. 
 
 which he or she may have in such' lands, unless his or her 
 relinquishment is specified in the deed of conveyance. "^^ 
 
 87 — Section 46, chapter 41, 
 "Dower." In lieu of R. S. 1845, p. 
 203, sec. 34, Starr & Curtis Anno- 
 tated Statutes of Illinois, Vol. 2, 
 p. 1479; Kurd's R. S. of 111., 1905, 
 p. 773. See also section 47 of 
 "Dower Act." Starr & Curtis, etc.. 
 Vol. 2, p. 1480; Kurd's 1905 stat- 
 ute, p. 773. 
 
 Dower right is barred, however, 
 by a decree entered with the wid- 
 ow's consent and failure to re- 
 nounce under the will bars dower. 
 
 Cox V. Lynn, 138 111. 195. See also 
 Warren v. Warren, 148 111. 641; 
 Carper v. Crowl, 149 111. 465; 
 Stookey v. Stookey, 89 111. 40. 
 Dower was held barred by decree 
 on arbitrator's award to a di- 
 vorced wife. Marvin v. Collins, 
 48 111. 156, See also Stow v. 
 Steele, 114 111. 382. Insanity of 
 wife is no ground, in equity, for 
 depriving such of her right to 
 dower. Ex parte McElwain, 29 111. 
 442.
 
 CHAPTER XXXV 
 
 DOWER, JOINTURE, ADVANCEMENTS 
 
 Sec. 
 
 633. Dower generally. 
 
 634. Dower right subject to lien 
 
 and incumbrance. 
 
 635. Effect of conveyance by either 
 
 party on eve of marriage. 
 
 636. Jointure bars dower. 
 
 637. Purchase of land by husband 
 
 in name of wife prima facie 
 presumed to be an advance- 
 ment or settlement. 
 
 638. Provision in will bars dower, 
 
 election, renunciation. 
 
 Sec. 
 
 639. Renunciation must be within 
 
 year after letters. 
 
 640. Testate estate and no descend- 
 
 ant, election, in lieu of 
 dower. 
 
 641. Divorce, effect of. 
 G42. Adultery, effect of. 
 
 643. Judgment, conveyance, laches, 
 
 crime, not to bar other's 
 dower. 
 
 644. Exchange of land, dower in. 
 
 645. Property acquired after will. 
 
 Sec. 633. Dower generally. Since the legislature of the 
 State of Illinois, conferred extended power and jurisdiction on 
 courts of probate in matters relating to the sale of real estate 
 to pay debts, in 1887, all persons holding liens against the real 
 estate or any part thereof, sought to be sold to pay debts, by 
 any executor or administrator, and all persons having or claim- 
 ing any interest in such real estate or any part thereof, in pos- 
 session or otherwise, made parties to such proceeding, the pro- 
 bate court may adjust and settle all equities, and all questions 
 of priority, between all parties interested, as well as investigate 
 and determine all questions of conflicting or controverted titles, 
 that may arise between any of the parties to such proceeding, 
 remove clouds from any real estate sought to be sold, so as to 
 invest the purchaser with a good an indefeasible title to the 
 premises sold.^ And in the manner pointed out by such statute, 
 adjust homestead and dower rights of the husband or wife.^ 
 
 1—Ante, 582, 627. 
 
 2— Jones v. Gilbert, 135 111. 127; 
 Oettinger v. Specht, 162 111. p. 184. 
 
 555
 
 556 THE LAW OF ESTATES. 
 
 And where the county court, found and decreed, that it would 
 be necessary to sell the whole of the real estate, subject to the 
 homestead and dower rights of the widow, it was held: The 
 result accomplished by the final decree, was, that the home- 
 stead estate of the widow contributed to her dower, that part 
 of the dower which was represented in the homestead being in 
 abeyance until the homestead estate should be extinguished.-'^ 
 Under this enlarged statute, it is held: the court of probate 
 has jurisdiction and power to order the sale of real estate to 
 pay debts, notwithstanding it may be subject to a life estate of 
 dower or incumbered by a right of dower. But where the home- 
 stead premises do not exceed in value the smn of $1,000, they 
 cannot be sold to pay debts by the administrator of a deceased 
 householder until after the termination of the exemption in 
 favor of the widow and children.** At the common law, dower 
 is the third part of all the lands, whereof the husband has been 
 seized at any time during the coverture, of such an estate as the 
 children by the wife might by possibility have inherited, and 
 to which by the death of the husband, such wife is entitled for 
 her life. To the consummation of dower, three things are neces- 
 sary, to-wit: marriage, seizin and the death of the husband. 
 Until his death, it is only an interest which attaches to the land 
 by reason of the marriage and seizin. The estate of curtsy 
 under the common law in the husband, is by statute in Illinois 
 abolished; in the matter of dower, the statute of tliis State 
 places the surviving husband or wife on the same common level j 
 the right of the surviving husband or wife to dower being the 
 same.^ The dower of the wife or husband is not defeated by 
 sale on judgment and execution against the husband or wife 
 separately.^ Dower may be barred by the assent or miscon- 
 
 3 — Kenley v. Bryan, 110 111. 652; 6 — See section 5, chapter 68, en- 
 
 Oettinger v. Specht, 162 111. p. 184. titled "Husband and Wife." Starr 
 
 4 — Hartman v. Schultz, 101 111. & Curtis Annotated Statutes of II- 
 
 437. linois, Vol. 2, p. 2120, and cases 
 
 5 — See Section 1, chapter 41 en- cited; Hurd's R. S. of 111., 1905, p. 
 
 titled dower statute at large given 1146; Stone v. Steele, 114 111. 382. • 
 Ante 627.
 
 DOWER. JOINTURE, ADVANCEMENTS. 557 
 
 duct of either the husband or wife; or where the marriage was 
 void ab initio; or for some statutory misconduct on the part of 
 either,''' Dower in Illinois is a common law, not a statutory 
 right, though recognized and extended by statute beyond the 
 limits of the common law ; and the insolvency of the husband 's 
 estate does not affect the wife's right of dower or vice versa.'* 
 Provision for dower in equitable estates refer to equitable estates 
 of inheritance only.^ Dower attaches to surplus after sale of 
 mortgaged lands ; but not if sale was made during the husband 's 
 life.^o If the deceased had lands under a contract of purchase, 
 and before payment of the purchase money, his rights are trans- 
 ferred, no right of dower attaches.^^ Where property is con- 
 demned widow is entitled to dower in deceased husband's estate 
 in such property from compensation received by heirs.^^ ^^(j 
 in accretions to riparian property dower attaches.^ -"^ Widow is 
 dowable of wild and unproductive lands,^* and in mines opened 
 during husband's life; but not in unopened mines.^^ Dower 
 does not attach to lands held in trust by deceased husband.^ ^ 
 Dower unassigned cannot be released or conveyed except to the 
 owner of the fee; this is the well established policy of the law,^'^ 
 
 7— See sections 14, 15, 16, chap- Thorsell, 78 111. 600; Clybourn v. 
 
 ter 41, "Dower." Post, 641, 642, Pitts. Ft. Wayne R. R., 4 111. App. 
 
 643, for statute at large. 463 ; Frederick v. Emig, 186 111. 
 
 8— See statute cited note (6). 322. 
 
 Lick V, Smith, 6 111. (Gill) 503. 12— Bonner v. Peterson, 44 111. 
 
 9 — Davenport v. Farrar, 2 111. 253. 
 
 (1 Scam.) 314; Nicoll v. Todd, 70 13— Gale v. Kinzie, 80 lU. 132; 
 
 111. 295; Atkins v. Merrell, 39 111. Lombard v. Kinzie, 73 111. 446. 
 
 62; Allen v. Allen, 112 111. 323; 14— Schnebly v. Schnebly, 26 111. 
 
 Sues V. Leinour, 16 111. App. 603; 116. 
 
 section 1, chapter 41, "Dower." 15— Lenfers v. Henke, 73 III. 
 
 Vol. 2, p. 1456, Starr & Curtis 405. 
 
 Annotated Statutes of Illinois. 16— Gritten v. Dickerson, 202 111. 
 
 10 — Kaufman v. Peacock, 115 379. 
 
 111. 212; Virgin v. Virgin. 189 111. 17— See section 18, chapter 30, 
 
 150; Noffts V. Koss, 29 111. 301. "Conveyance Act." Starr & Curtis 
 
 11 — Atkins V. Merrell, 39 111. 62; Annotated Statutes of Illinois, Vol. 
 
 Stow V. Steel. 45 111. 328; "Owen v. 1, p. 916; Kurd's R. S. of 111., 1905. 
 
 Robbins, 19 111. 545; Greenbaum v. p. 466; Sloniger v. Sloniger. 161 
 
 Austrian, 70 111. 591; Morse v. 111. 279; Bank v. White, 159 111.
 
 558 THE LAW OF ESTATES. 
 
 Proceedings for assignment of dower involve a freehold and in 
 such case appeal lies direct to the Supreme Court.^^ 
 
 634. Dower right subject to lien and incumbrance. The 
 
 surviving husband or wife of an alien in this State is entitled 
 to dower, the same as if such alien had been a native born citizen 
 of the United States.^^ Before dower attaches, as a general 
 rule, every lien and incumbrance existing in law or equity is 
 prior thereto.2o At common law when the husband had executed 
 a mortgage before marriage, the widow was not dowable in 
 the equity of redemption. But under section 5 of the Dower 
 Act, it is provided: That where the mortgagee of lands mort- 
 gaged by a husband prior to his marriage shall cause the lands 
 to be sold the mortgagor's widow, shall have dower in the sur- 
 plus of the proceeds after satisfying the mortgage debt and 
 costs,2i applies where such lands are sold to pay debts under 
 an order of court, obtained by the mortgagor's administrator in 
 a proceeding wherein all the mortgagees were parties, and their 
 rights as lien holders were insisted upon by them and established 
 and protected by the decree. In Illinois a wife who joins in the 
 execution of a mortgage relinquishes her dower right so far as 
 is necessary to satisfy the lien of the mortgage, her inchoate 
 
 147; Lewis v. King, 180 111. 266; 18— McManaman v. Blocks, 15 
 
 Farrand v. Long, 184 111. 109. In 111. App. 476. 
 
 the latter case it is held: A deed 19 — Section 2, chapter 41, 
 
 to the mortgagee by one mort- "Dower Act." Starr & Curtis An- 
 
 gagor after the death of the other notated Statutes of Illinois, Vol. 
 
 does not pass the grantor's dower 2, p. 1462, Kurd's R. S. of 111., 
 
 right in the deceased mortgagor's 1905, p. 768. 
 
 undivided one-half interest in the 20 — Daniher v. Daniher, 201 111. 
 
 property, where the deed was in- 495; 10 Am. & Eng. Ency. of Law, 
 
 tended merely as a change in the 2d ed. 169, 170; Virgin v. Virgin, 
 
 mortgagee's security, and was exe- 189 111. 151; 1 Scribner on Dower, 
 
 cuted by the grantor in the belief chapt. 28, sec. 15; Schope v. Schaff- 
 
 that he was sole owner of the ner, 140 111. 470. 
 
 property, and hence in ignorance 21 — Section 5, chapter 41, 
 
 of his dower rights. See also "Dower Act." Starr & Curtis An- 
 
 Campbell v. Trotter, 100 111. 281, notated Statutes of Illinois, Vol. 
 
 284; Lowman v. Lowman, 118 111. 2, p. 1463, and cases cited; Kurd's 
 
 582. R. S. of 111., 1905, p. 766.
 
 DOWER, JOINTURE, ADVANCEMENTS. 559 
 
 right of dower becomes consummate only in the excess of the 
 proceeds of the sale. Where a wife joins in a mortgage and 
 the lands are sold, after the husband's death, to satisfy the 
 mortgage, the fact that those who succeed to the husband's fee 
 title redeem the land does not discharge the mortgage lien as 
 to the dower, but the dowress must refund to the parties mak- 
 ing redemption her proportionate share of the amount required 
 to redeem, according to the dower interest, and a lien attaches 
 in equity against such dower interest in favor of the person 
 who redeems the land.-- When a man mortgages his land and 
 after doing so marries, his wife will be entitled to dower out 
 of the lands mortgaged, as against every person, except the 
 mortgagee and those claiming under him.^^ But dower does not 
 attach in favor of second husband, where wife's twenty -year 
 adverse possession was a continuation of first husband's tenure.^^ 
 It was also held, in view of section 8 of the act entitled "Hus- 
 band and wife, ' ' chapter 68 : declaring that neither a husband 
 or wife is entitled to receive compensation for services rendered 
 in the management of the other's property, a husband acquired 
 no interest in the land of his wife from the fact that he has 
 performed labor upon it.^^ And so it is held, where a wife who 
 joins with her husband in the execution of a mortgage on his 
 land is entitled, as against his unsecured creditors, to have 
 dower out of the entire proceeds of the land paid to her out 
 of the surplus after paying the mortgagees 
 
 22— Virgin v. Virgin, 189 111. 1905, p. 768; Shope v. Schaffner, 
 
 151; Burson v. Dow, 65 111. 147; 140 111. 470. 
 
 Greenbaum v. Austrian, 70 111. 24 — Beuter v. Struckart, 181 111. 
 
 591; Selb v. Montague, 102 111. 543. 
 
 446; Cox v. Garst, 105 III. 342. 25— Beuter v. Struckart, 181 111. 
 
 23— Sections 3, 4, 5, Chapter 41, 543. 
 
 "Dower Act." Starr & Curtis An- 26 — Section 8, chapter 68, "Hus- 
 
 notated Statutes of Illinois, with band and Wife." Starr & Curtis 
 
 Jones & Addington's Supplements Annotated Statutes of Illinois, Vol. 
 
 thereto. Vol. 2, pp. 1462, 1463, and 2, p. 2125, and cases cited; Kurd's 
 
 cases cited; Vol. 4, p. 446, and R. S. of 111., 1905, p. 1147; People 
 
 cases cited; Vol. 5, p. 180, and v. Stett, 7 111. App. 294; 10 Am. & 
 
 cases cited; Kurd's R, S. of 111., Eng. Ency. of Law, 2d ed. 170, and
 
 560 
 
 THE LAW OF ESTATES. 
 
 635, Effect of conveyance by either party on eve of mar- 
 riage. The weight of authority is, that a voluntary convey- 
 ance by either party to a marriage contract, of his or her real 
 property, made without the knowledge of the other and on the 
 eve of the marriage, is a fraud upon the marital rights of such 
 other, and such conveyance will be treated as fraudulent and 
 void as against the party surprised, and his or her marital rights 
 in the land so conveyed will not be affected thereby.^^ A con- 
 veyance upon the eve of marriage, to be regarded as a fraud 
 upon the legal rights of the intended wife, must be made with- 
 out her consent or knowledge.^s The rule, however, is not abso- 
 lute. It does not entitle the wife to treat every conveyance made 
 by her husband secretly on the eve of marriage as a fraud on 
 her rights. It may be the husband's duty to make it.^^ The 
 
 cases cited in notes; "Virgin v. 
 Virgin, 189 111. 151. 
 
 27 — 1 Scribner on Dower, chapt. 
 28, sec. 10; Perry on Trusts, sec. 
 213; Freeman v. Hartman, 45 111. 
 57; Clark v. Clark, 183 111. 448; 
 Daniher v. Daniher, 201 111. 494; 
 Babcock v. Babcock, 53 How. Pr. 
 97; Pomeroy v. Pomeroy, 54 How. 
 Pr. 228; Youngs v. Carter, 10 Hun, 
 194; Petty v. Petty, 4 B. Mon. 215; 
 Leach v. Duval, 8 Bush. 201; Lit- 
 tleton V. Littleton, 1 Dev. & B. 
 327; Cranson v. Cranson, 4 Mich. 
 230; Brown v. Brownson, 35 Mich. 
 415; Jones v. Jones, 64 Wis. 301; 
 Thayer v. Thayer, 14 Vt. 107; 
 Ward V. Ward, 63 Ohio St. 125; 
 Butler V. Butler, 21 Kan. 521. 
 
 28— Clark v. Clark, 183 111. 448; 
 see Ward v. Ward, 63 Ohio St. 
 125, where it is held: That the pur- 
 pose to deceive and defraud the 
 other prospective spouse is im- 
 puted to the one who makes the 
 attempted transfer, and conceals 
 the fact till after marriage, and 
 that it makes no difference in 
 
 principle, whether actual fraud 
 was intended or not. And to the 
 same effect see In Arnegaard v. 
 Arnegaard, 7 N. Dak. 475, where 
 any such voluntary conveyance is 
 made without the knowledge of 
 the other of such contracting 
 parties it presents a prima facie 
 case of fraud, subject to be ex- 
 plained by the parties interested, 
 and the burden is on the grantee 
 to establish the validity of the 
 deed. Fennessey v. Fennessey, 84 
 Ky. 519; Hamilton v. Smith, 57 
 Iowa 15; Champlin v. Champlin, 
 16 R. I. 314. 
 
 29— Daniher v. Daniher, 201 111. 
 494. In this case, the court speak- 
 ing of the rule (cited in note 28) 
 hold: Not every voluntary con- 
 veyance is in fraud of the rights 
 of the intended spouse. Where 
 the intention is to provide for the 
 children, and not to defraud the 
 wife or husband, and the advance- 
 ment is reasonable, when consid- 
 ered with reference to the property 
 of the grantor, it will not be held
 
 DOWER, JOINTURE, ADVANCEMENTS. 561 
 
 ease cited makes such conveyance prima facie fraudulent upon 
 the dower rights of each other, and puts the burden upon the 
 grantee to establish its validity .^^ 
 
 636. Jointure bars dower. ''When an estate in land shall 
 be conveyed to an intended husband and wife, or to either of 
 them, or to any person in trust for such intended husband and 
 wife, or either of them, for the purpose of creating a jointure 
 in favor of either of them with his or her consent, to be taken 
 in lieu of dower, such jointure shall bar any right or claim for 
 dower by the party jointured in any lands of the other, "^i This 
 statute does not bar surviving wife's or husband's rights as heir 
 of either of such who may be deceased.^^ Jointure must be 
 by conveyance of property; ante-nuptial contract does not 
 create jointure.^^ But any reasonable provision, accepted by 
 any adult person in lieu of dower, is an equitable jointure, and 
 bars dower, under such contract.^^ And it is held in the 
 case of Barth v. Lines :^^ That this section of the statute 
 cannot be said to deprive a widow of the power to bar her 
 right to dower by any other form of ante-nuptial contract. 
 But in the following case it is held, that both the widow's award 
 and dower may be barred by an ante-nuptial contract, where 
 such is expressed as the condition of the same.^® At the corn- 
 fraudulent. And see in support of v. Firestone, 2 Ohio St. 415; Old- 
 this doctrine Fennessey v. Fen- ham v. Sale, 1 B, Mon. 76; Beck- 
 nessey, 84 Ky. 519; Baker v. with v. Beckwith, 61 Mich. 315. 
 Chase, 6 Hill, 482; Mcintosh v. 31— Section 7, chapter 41, 
 Ladd, 1 Hump. 459; Richards v. "Dower Act." Starr & Curtis An- 
 Richards, 11 Hump. 429; Miller v. notated Statutes of Illinois, Vol. 
 Wilson, 15 Ohio 108; Littleton v. 2, p. 1463, and cases cited; Kurd's 
 Littleton, 1 Dev. & B. 327; Gaines R. S. of 111., 1905, p. 769. 
 V. Gaines, 9 B. Mon. 295; Clark 32 — Sutherland y. Sutherland, 
 V. Clark, 183 111. 448. 69 111. 481. 
 
 30— Daniher v. Daniher, 201 111. 33— McGee v. McGee, 91 111. 
 495; see supporting this exception 548. 
 
 to the general rule. Chapman v. 34 — McGee v. McGee, 91 111. 548. 
 Chapman, 92 Va. 537; Burdine v. 3.5—118 111. 374. 
 Burdine, 98 Va. 515; Champlin v. 36 — Spencer v. Boardman, 118 
 Champlin, 16 R. I. 314; Firestone 111. 553. 
 
 36
 
 562 THE LAW OF- ESTATES. 
 
 mon law a legal jointure settled upon a wife before marriage, if 
 fairly entered into, would bar her dower, but a jointure settled 
 upon her after marriage only had the effect to put her to her 
 election, after the death of her husband, either to accept the 
 settlement or to demand dower.^^ Marriage of the parties to 
 an ante-nuptial contract, coupled with the mutual covenants 
 of the parties waiving and releasing the right of each in the 
 property of the other, is sufficient consideration for the con- 
 tract; and such a contract is not against public policy.^s But 
 if the provisions for the intended wife in an ante-nuptial con- 
 tract are disproportionate to the means of the intended husband, 
 the husband and those claiming under him have the burden of 
 proving that the intended wife, at the time she executed the 
 contract, had full knowledge, or reasonable means of knowing, 
 the nature, character and value of the intended husband's prop- 
 erty, and this knowledge must be brought directly to the in- 
 tended wife in order to bind her under such contract.^^ And 
 such right of election is recognized and retained by section 9 of 
 the Dower Act, which is as follows: *'If before marriage, but 
 without such assent, or if after marriage, land shall be given or 
 assured for the jointure of a wife or husband in lieu of dower, 
 such wife or husband may elect whether to take such jointure, 
 or to be endowed as herein provided, but shall not be entitled to 
 both."'**' And it is held in Heiser v. Sutter, "^^ that B. S., upon 
 the death of her husband, was bound by said post-nuptial set- 
 tlement, unless she elected, in lieu thereof, to take dower in her 
 husband's real estate. She was not entitled to retain the prop- 
 erty which she received under said settlement and at the same 
 time recover her dower. She is not entitled to both, but must 
 
 37—11 Am. & Eng. Ency. of 40— Section 9, chapter 41, 
 
 Law, 2d ed. p. 92, and cases cited "Dower Act." Starr & Curtis An- 
 
 in notes. notated Statutes of Illinois, Vol. 
 
 38— Kroell v. Kroell, 219 111. 2, p. 1464; Kurd's R. S. of 111., 
 
 105. 1905, p. 769. 
 
 39— Murdock v. Murdock, 219 41—195 111. p. 382; Heiser v. 
 
 111. 123; see also Yarde v. Yarde, Sutter. 
 187 111. 636.
 
 DOWER, JOINTURE, ADVANCEMENTS. 563 
 
 elect to retain the property received by virtue of the settlement 
 or return the same and recover dower. 
 
 637. Purchase of land by husband in name of wife prima 
 facie presumed to be an advancement or settlement. The gen- 
 eral rule is, that where the purchase money of land is paid by 
 one person and the title is taken in the name of a third party, 
 there such third party holds the title in trust for him who pays 
 the purchase money. But the purchase of land by a parent 
 in the name of a child, or by a husband in the name of his wife, 
 will, prima facie, be presumed to be an advancement or settle- 
 ment, and not a trust. This latter presumption may be either 
 supported or rebutted by proof of antecedent or contemporane- 
 ous acts or facts, or by proof of any acts or facts so soon after 
 the purchase as to be fairly considered a part of the trans- 
 action.42 ^y^ advancement cannot be established by parol evi- 
 dence, but, on the contrary, ''the gift or grant must be expressed 
 in writing as an advancement, or charged in writing by the 
 intestate, or acknowledged in writing" by the donee or 
 grantee.'*^ An advancement which is not evidenced in the man- 
 ner required by the statute, is, in legal effect, no advancement at 
 all, however clearly it may appear it was so intended. The mere 
 making and delivery of a quit claim deed by a person to his grand- 
 father, as to the lands of the latter, afford no evidence of an 
 intention on the part of the grantor to release an expected in- 
 heritance. And so it is held, that under such a state of facts, a 
 contract of a prospective heir with his ancestor, to take prop- 
 erty conveyed to him, in full of his share in the grantor's estate, 
 as heir, is insufficient to show such agreement.^* "Where a 
 father executes a deed for a tract of land to one child, who 
 
 42— Maxwell v. Maxwell, 109 157 111. 33; Fry v. Morrison, 159 
 
 111. 588; Cartwright v. Wise, 14 111. 244. 
 
 111. 417; Taylor v. Taylor, 4 Gilm. 43— See Sec. 7, chapter 39, "De- 
 
 (111.) 303; 10 Am. & Eng. Ency. scent." Chapter III of this work 
 
 of Law, 2d ed., pp. 18, 19 and au- Ante 66. Pry v. Morrison, 159 111. 
 
 thorities cited in notes; Duval v. 244. 
 
 Duval, 153 111. 49; Goelz v. Goelz, 44— Long v. Long, 118 111. 638; 
 
 Galbraith v. McLain, 84 III. 379.
 
 564 THE LAW OF ESTATES. 
 
 accepts and takes possession of the same, upon the express un- 
 derstanding and agreement that it is in lieu of all claim such 
 child may have in and to the residue of the father's estate upon 
 his death, and that such child will release to the other children, 
 all his claim in expectancy to the residue of the estate, such 
 contract is legal and binding, and will be enforced in equity. 
 And such agreement may be established by parol evidence,*^ 
 Payment by one acting as executor, to the widow, of a sum 
 specified in an ante-nuptial contract as in lieu of her claims on 
 the estate, in accordance with the testator's directions in his will, 
 is held to be valid, even though the probate of the will should 
 be afterward set aside and the will annulled, as the act is one 
 which any executor or administrator would be required to do in 
 due course of administration.*'' A will is regarded as a convey- 
 ance to take effect in future. The laws of descent operate with- 
 out any agency of man, while the law of wills is wholly the 
 agency of man.*^ 
 
 638. Provisions in will bars dower — election — renunciation. 
 
 *'Any devise of land, or estate therein, or any other provision 
 made by the will of a deceased husband or wife for a surviving 
 
 45 — Galbraith v. McLain, 84 111. under whom both parties 
 
 379. claim, unaccompanied by any act 
 
 46 — Hundall v. Ham, 172 111. 76. showing what disposition he made 
 An agreement to make or not to or intended to make of his estate, 
 make a certain disposition of are not evidence. Chadwick v. 
 property, by will or otherwise, Webber, 3 Greenlf. 141; Hatch v. 
 may be specifically enforced in Straight, 3 Conn. 31; Bulkeley v. 
 equity if based upon a valuable Noble, 2 Pick. 337; Hayne v. Rut- 
 consideration. Green v. Broyles, ter, 24 Pick. 242; Ladd v. Abd, 18 
 3 Humph. 167; Maddox v. Rowe, Conn. 513; 1 Greenleaf on Evi- 
 23 Ga. 431; Frisby v. Parkhurst, dence, sec. 110; Starkie on Evi- 
 29 Md. 58; Gupton v. Gupton, 47 dence. Note 1, p. 88; Morse v. 
 Mo. 37; Carmichael v. Carmichael, Thorsell, 78 111. 600, and cases 
 72 Mich. 76; Ballman v. Overall, cited. 
 
 80 Ala. 451; Taylor v. Mitchel, 87 All agreements by expectant 
 
 Pa. St. 518; Sharkey v. McDer- heirs in regard to their future 
 
 mott, 91 Mo. 647; Wright v. Tins- contingent estates, when fairly 
 
 ley, 30 Mo. 389; Manning v. Pip- made, will be enforced in equity, 
 
 pin, 80 Ala. 357. Parsons v. Ely, 45 111. 232; Long 
 
 47—2 Blackstone's Com. 286. v. Long, 118 111. 638; Galbraith v. 
 
 Declarations of the ancestor, McLain, 84 111. 379; Kenney v.
 
 DOWER, JOINTURE, ADVANCEMENTS. 
 
 565 
 
 wife or husband, shall, unless otherwise expressed in the will, 
 bar the dower of such survivor in the lands of the deceased, 
 unless such survivor shall elect to and does renounce the benefit 
 of such devise or other provision, in which case he or she shall 
 be entitled to dower in the lands and to one-third of the personal 
 estate after the payment of all debts. Mere bequest of per- 
 sonal estate is not sufficient, the devise must be of land, or some 
 interest therein, with the widow's express or implied assent to 
 relinquish.*^ Kenunciation of will by surviving widow, does not 
 affect will, it stands, and the statute steps in and provides for 
 equalizing bequests in such case.*^ Where no renunciation is 
 made, it will be conclusively presumed the devise is accepted.'^^ 
 It is held, that a devise by will to the wife of the testator, in 
 equity will be regarded as an offer to purchase the wife's dower 
 interest in the entire realty of the testator ; and upon acceptance 
 of such devise, the wife's dower is barred; but the corpus of 
 such devise retains the nature of dower to such an extent as 
 
 Tucker, 8 Mass. 142; Quarles v. 
 Quarles, 4 Mass. 680; Hobson v. 
 Trevor, 2 P. Wms. 191; Fitch v. 
 Fitch, 8 Pick. 479; Witherell v. 
 Witherell, 2 Eng. Ch. 184; Varick 
 V. Edwards, 1 Hoff. Ch. 382. These 
 citations cover generally matters 
 in text, and notes thereof 44, 45, 
 46 and 47. 
 
 In Hundall v. Ham, cited in 
 note 46, the term "descent" in its 
 technical sense, denotes the trans- 
 mission of real estate, or interest 
 therein, on the death of the owner 
 intestate, to some person by in- 
 heritance, and, as so used, is dis- 
 tinguishable from transmission by 
 devise, which is technically by 
 purchase, and from the transmis- 
 sion of personal property, which 
 is governed by the rules of dis- 
 tribution. 
 
 48 — Section 10, chapter 41, 
 "Dower Act." Starr & Curtis An- 
 
 notated Statutes of Illinois, with 
 Jones & Addington's Supplements 
 thereto. Vol. 2, p. 1464, and cases 
 cited; Vol. 4, p. 446, and cases 
 cited; Vol. 5, p. 180, and cases 
 cited; Kurd's R. S. of 111., 1905, p. 
 769. The following cases apply 
 the statute: Jennings v. Smith, 
 29 111. 116; Deltzer v. Schuester, 
 37 111. 301; Brown v. Pitney, 39 
 111. 468; Haynie v. Dickens, 68 111. 
 267; Gauch v. St. Louis Mut. Life 
 Ins. Co., 88 111. 251; Green v. 
 Birch, 2 111. App. 528; Heslet v. 
 Heslet, 8 111. App. 22; Cowdry v. 
 Hitchcock, 103 111. 262; Collins v. 
 Wood, 63 111. 285; Ditch v. Sen- 
 nott, 117 111. 362; Evans v. Price, 
 118 111. 593. 
 
 49 — McMurphy v. Boyles, 49 111. 
 110; Nicoll V. Scott, 99 111. 529; 
 Marvin v. Ledwith, 111 111. 144. 
 
 50— Scheible v. Rinck, 195 111. 
 640.
 
 566 THE LAW OF ESTATES. 
 
 to be exempt from payment of testator's debts.^^ And where 
 lots in Colfax and one hundred and sixty acres of land were 
 devised to the widow for life in lieu of dower and homestead, 
 and she accepted such provision made for her, the court below 
 ordering the one hundred and sixty acres sold, without reserving 
 her rights in the same. It was held: The property devised to 
 her in lieu of dower and homestead, is not in excess of her 
 rights in the estate as a widow, she took as a purchaser for 
 value, and the land could not be sold to pay the testator's 
 debts.'2 A will providing for a surviving husband only to 
 the extent of his legal rights, in this case, one-third of the per- 
 sonalty, is held to be a nullity in that respect.^^ The instrument 
 renouncing need not claim any specific estate, it is sufficient 
 where it renounces the provisions of the will.^-i The filing of a 
 bill in chancery to contest a will is not a renunciation. The 
 statute gives time of one year for that act after letters.^^ An 
 election by the widow, whose husband dies, leaving an estate 
 part testate and part intestate, is not essential to her right to 
 claim her legal share in intestate property.'^s 
 
 639. Renunciation must be v/ithin year after letters. "Any 
 one entitled to an election under either of the two preceding sec- 
 tions shall be deemed to have elected to take such jointure, 
 devise or other provision, unless, within one year after letters 
 testamentary or of administration are issued, he or she shall 
 deliver or transmit to the county court of the proper county 
 a written renunciation of such jointure, devise or other provi- 
 sion. "^'^ The former statute provided for election within one 
 
 51— Richie v. Cox, 99 111. App. App. 113. 
 
 374. 54— Gullett v. Farley, 164 111. 
 
 52— Dauel v. Arnold, 201 111. 571. 
 
 580; Carper v. Crowl, 149 111. 55— See post 639; Scheible v. 
 
 465. In this case it was as- Rinck, 195 111. 640. 
 
 sumed from the record, that the 56 — Sutton v. Read, 176 111. 78. 
 
 court below, made a just and 57 — Section 11, chapter 41, 
 
 equitable apportionment of the "Dower Act." Starr & Curtis An- 
 
 burden to the widow. notated Statutes of Illinois, with 
 
 53 — Lawrence v, Balch, 98 111. Jones & Addington's Supplements
 
 DOWER, JOINTURE, ADVANCEMENTS. 567 
 
 year after probate of will. Under the old statute, delay in 
 election through ignorance (Statute of 1833), requiring elec- 
 tion in six months, held not to forfeit right.'^^ But the statute 
 is now strictly construed as to time; the filing of a bill in 
 equity to contest a wiU does not extend time to renounce.'* 
 
 640. Testate estate and no descendant — election in lieu of 
 dower. "If a husband or wife die testate, leaving no child or 
 descendants of a child, the surviving husband or wife may, if 
 he or she elect, have, in lieu of dower in the estate of which the 
 deceased husband or wife died seized (whether the right to such 
 dower has accrued by renunciation as hereinbefore provided, or 
 otherwise), and of any share of the personal estate which he or 
 she may be entitled to take with such dower absolutely, and in 
 his or her own right, one-half of all the real and personal estate 
 which shall remain after the payment of all just debts and 
 claims against the estate of the deceased husband or wife. The 
 election herein provided for may be made whether dower has 
 been assigned or not, and at any time before or within two 
 months after notification to the survivor of the payment of debts 
 and claims, and not afterwards. "^<^ But if decedent dies with- 
 
 thereto. Vol. 2, p. 1466, and cases claim which such survivor may 
 cited. Vol. 4, p. 446, and cases afterwards set up to any jointure, 
 cited, Kurd's R. S. of 111., 1905, devise, testamentary provision or 
 p. 769. Also see sections 9 and dower thus renounced. Starr & 
 10 referred to in section 11 of Curtis Annotated Statutes of li- 
 the Dower Act, ante, 637, 638. linois, with Jones & Addington's 
 
 58 — United States v. Duncan, 4 Supplements thereto. Vol. 2, p. 
 
 McLean, 99. 1467; Vol. 4, p. 447; Kurd's R. 
 
 59— Scheible v. Rinck, 195 111. S. of 111., 1905, p. 769. See also, 
 
 640; Cowdrey v. Hichcock, 103 111. Chestnut v. Chestnut, 15 111. App. 
 
 262. See section 13, chapter 41, 442; Coles v. Terrell, 162 111. 170. 
 "Dower Act," prescribing form of 60 — Section 12, chapter 41, 
 
 renunciation and providing for "Dower Act." Starr & Curtis An- 
 
 the filing of same in ofBce of notated Statutes of Illinois, with 
 
 the Clerk of County Court, and Jones & Addington's Supplements 
 
 entering same at large upon the thereto, Vol. 2, p. 1466, and cases 
 
 records of the Court, thereupon it cited. Vol. 4, p. 447, and cases 
 
 becomes a complete bar to any cited, Kurd's R. S. of 111., 1905, 
 
 p. 769.
 
 568 THE LAW OF ESTATES. 
 
 out descendants and leaves a will disposing of an entire estate, 
 which consists of personal property, without making any provi- 
 sion for surviving husband or wife, the surviving husband or 
 wife, must fall back on their legal rights under section 10 of the 
 Dower Act,*^^ to one-third of the personal estate after the pay- 
 ment of debts.^2 ^]i election to take under this statute bars 
 dower in half of testator 's lands, not taken by widow.^^ The sur- 
 viving husband or wife in the absence of child or descendants 
 of such child cannot take under sections 10 and 12 of the Dower 
 Act; they must elect, for they are not entitled to take under 
 both sections. Where the terms of an instrument renouncing are 
 uncertain, the election will be implied from acts indicating 
 choice. The filing of a bill in equity by a widow, after renuncia- 
 tion, for partition of deceased husband's estate, by which she 
 claims to be the owner in fee simple of an undivided one-half of 
 the real estate, is held to be notice that the complainant elected 
 to take under section 12 of the Dower Act.^^ As under this sec- 
 tion the surviving husband or wife become seized in fee simple 
 of an undivided one-half of the real estate, such may be dis- 
 posed of by will, and the devisee is entitled to have the estate 
 partitioned.*^^ But if an adopted child is in existence, at the 
 time of the death of the husband or wife, the surviving husband 
 or wife cannot take under section 12; that section applies to 
 husband or wife who dies testate, without leaving a child or 
 descendant of a child.^^ 
 
 641. Divorce — effect of. If any husband or wife is divorced 
 for the fault or misconduct of the other, except where the mar- 
 riage was void from the beginning, he or she shall not thereby 
 lose dower nor the benefit of any such jointure, but if such 
 
 61~Ante, 638. 566; Laurence v. Balch, 195 111. 
 
 62— Laurence v. Balch, 195 111. 628. 
 
 626. 66— Sayles v. Christie, 187 111. 
 
 63— Lessley v. Lessley, 44 111. 435; Keegan v. Geraghty, 101 111. 
 
 527; Evans v. Price, 118 111. 593. 26; Sewell v. Roberts, 115 Mass. 
 
 Si— Ante, 640. 263; Morgan v. Stewart, 122 Mo. 
 
 65— GuUett V. Farley, 164 111. 297.
 
 DOWER, JOINTURE, ADVANCEMENTS. 569 
 
 divorce shall be for his or her o-s\ti fault or misconduct, such 
 dower or jointure, and any estate granted by the laws of this 
 State, in the real or personal estate of the other, shall be for- 
 feited.^'' In a case based on a decree of divorce granted in 
 Kansas for the fault and misconduct of the wife, it was held 
 the dower right and any estate of homestead was forfeited as 
 against the lands of her deceased husband.^^ But a divorce 
 without fault or misconduct on the part of the husband or wife 
 where the ground of divorce is desertion, will not defeat a claim 
 for dower, in lands of either party after death.^^ A foreign 
 divorce based upon constructive service for cause not recog- 
 nized by our laws, will not bar dower or homestead. '^o 
 
 642. Adultery — effect of. "If a husband or wife volun- 
 tarily leave the other and commit adultery, he or she shall be 
 forever barred of dower and of the benefit of any such jointure, 
 unless they are afterwards reconciled and dwell together. "'^^ 
 At common law and by early statutes in aid of it, wife's dower 
 might be barred for several causes that do not now exist. '^2 
 Though a decree for divorce rendered on any statutory ground 
 will bar the dower of the guilty husband or wife, the mere fact 
 that the surviving husband or wife has been guilty of any of 
 such statutory offenses against the marriage relation other than 
 that of adultery will have no effect to deprive such offender 
 of dower. Adultery accompanied by elopement, however, oper- 
 
 67 — Section 14, chapter 41, Durham v. Durham, 162 111. 589; 
 
 "Dower Act." Starr & Curtis An- Knowlton v. Knowlton, 155 111. 
 
 notated Statutes of Illinois, Vol. 158; Barkman v. Barkman, 94 111. 
 
 2, p. 1468, and cases cited, Vol. App. 441. 
 
 4, p. 447, and cases cited, Kurd's 71 — Section 15, chapter 41, 
 
 R. S. of 111., 1905, p. 770. Clark "Dower Act." Starr & Curtis, An- 
 
 V. Lott, 11 111. 105; Hamilton v. notated Statutes of Illinois, with 
 
 Hamilton, 89 111. 349. Jones & Addington's Supplements 
 
 68 — Rendleman v. Rendleman, thereto. Vol. 2, p. 1468, Vol. 4, 
 
 118 111. 257. p. 447, and cases cited, Kurd's R. 
 
 69— Gordon v. Dickison, 131 111. S. of 1905, p. 770. 
 
 141. 72— Sisk V. Smith, 1 Gilm. (111.) 
 
 70— Lynn v, Sentel, 183 111. 389; 503; Spurck v. Cook, 19 111. 415.
 
 570 THE LAW OF ESTATES. 
 
 ates to bar dower by the express provisions of section of statute 
 quoted, unless condoned, and no decree of divorce is necessary 
 to effect such forfeiture.'^ 
 
 643. Judgment, conveyance, laches, crime, not to bar other's 
 dower. "No judgment or decree confessed or recovered 
 against a husband or wife, and no laches, default, covin, for- 
 feiture or crime of either, no deed or conveyance of either, with- 
 out the assent of the other evinced by the acknowledgment 
 thereof, as required by law, shall prejudice the right of the 
 other to dower or jointure, or preclude the othor from the recov- 
 ery thereof if otherwise entitled thereto."''^ The conveyance 
 act regulates the manner by which dower may be relinquished.'^^ 
 In the absence of a provision in a decree, dower is protected 
 under this section of the statute.'^^ Under the statute of 1868, 
 an agreement between husband and wife not acknowledged, did 
 not bar dower.'' '^ 
 
 644. Exchange of land — dower in. "If a husband or wife 
 seized of an estate of inheritance in lands, exchange it for other 
 lands, the surviving husband or wife shall not have dower of 
 both, but shall make election as hereinbefore provided, to be 
 endowed of the lands given, or of those taken in exchange; 
 and if such election be not evinced, by the commencement of 
 proceedings for the recovery and assignment of dower of the 
 lands given in exchange, within one year after the death of 
 such husband or wife, the survivor shall be deemed to have 
 elected to take dower of the lands received in exchange."''^ 
 
 73— Decker v. Decker, 193 111. son v. Brown, 83 111. 562; Herd- 
 
 292-293. Nelson on Divorce, sec. man v. Pace, 85 111. 345; Elder 
 
 430. V. Jones, 85 111. 384; Lewis v. 
 
 74 — Section 16, chapter 41, Graves, 84 111. 205; Bute v. 
 
 "Dower Act." Starr & Curtis An- Kneale, 109 111. 652. 
 
 notated Statutes of Illinois, Vol. 76— Mitchell v. Sawyer, 115 111. 
 
 2, p. 1469; Kurd's R. S. of 111., 650. 
 
 1905, p. 770. 77— Bottomly v. Spencer, 36 
 
 75— Section 18, chapter 30, "Con- Fed. Rep. 732. 
 
 veyance Act." Kurd's R. S. 78— Section 17, chapter 41, 
 
 1905, p. 466. See also, Morri- "Dower Act." Starr & Curtis An-
 
 DOWER, JOINTURE, ADVANCEMENTS. 571 
 
 The word "exchanged" as used in section above, retains its 
 common law meaning, and, as defined by Blackstone, **is a 
 mutual grant of equal interests, the one in consideration of the 
 other. "'^ And so applying these rules and discussing the cases 
 the court in Hartwell v. DeVault,^^ say: "An application of 
 the rules thus laid down to the facts of this case shows, that 
 there was here no 'exchange' of lands within the meaning of 
 that term. The deeds executed by the pa,rties not only do not 
 make use of the word, 'exchange,' but, when considered in con- 
 nection with the contract made on the same day and with all 
 the other evidence, they do not amount to 'a mutual grant of 
 equal interests, the one in consideration of the other. ' ' ' 
 
 645. Property acquired after will. Property acquired after 
 a will made may or may not include the devise of such by will. 
 Whether or not such after acquired property passes by existing 
 will is a mere matter of the intention of the testator or testatrix 
 as expressed by will. The court will give effect to the inten- 
 tion and if possible from the language of the will construe such 
 instrument to pass such property but if in doubt, after acquired 
 property will be treated as intestate and distributed accord- 
 ingly.81 
 
 notated Statutes of Illinois, with stone's Com., marg. p. 323; 7 Am. 
 
 Jones & Addington's Supplements & Eng. Ency. of Law, pp. 115, 892, 
 
 thereto. Vol. 2, p. 1469; Vol. 4, and cases cited in notes, 
 
 p. 447, and cases cited; Kurd's R. 80—159 111. 333. 
 
 S. of 111. 1905, p. 770. 81— Williams v. Uohnson, 112 
 
 79—1 Scribner on Dower, p. 286, 111. 66; Decker v. Decker, 121 111. 
 
 sec. 11; 1 Washburn on Real Es- 343. See ante, chap. 10, 202, 
 
 tate, marg. p. 158, sec. 11; 2 Black- "Construction of Wills."
 
 CHAPTER XXXVI 
 
 DISPOSAL OF UNCLAIMED MONEY 
 
 Sec. 
 
 646. Unclaimed money to be de- 
 
 posited. 
 
 647. How obtained after deposit. 
 
 648. The court making the order 
 
 Sec. 
 
 for deposit is the one to 
 apply to for recovery of 
 funds in hands of county 
 treasurer. 
 
 Sec. 646. Unclaimed money to be deposited. "That when 
 any administrator or executor shall have made final settlement 
 with the county court, it shall be the duty of the court to order 
 said administrator or executor to deposit with the county treas- 
 urer such moneys as he may have belonging to any non-resident 
 or unknown heir or claimant, taking his receipt therefor and 
 have the same filed at the office of the county clerk where such 
 settlement has been made. "^ 
 
 647. How obtained after deposit. "When money shall be 
 deposited as aforesaid, the person or persons entitled to the 
 same may at any time apply to the court making said order and 
 obtain the same upon making satisfactory proof to the court of 
 his, her or their right thereto. "^ 
 
 648. The court making the order for deposit is the one to 
 apply to for recovery of funds in hands of county treasurer. 
 
 Heretofore we have shown the settled law of this State to be in 
 effect, that a court of equity will not assume jurisdiction in the 
 matter of estates pending in the courts of probate, where such 
 court can afford the requisite relief, unless special reasons be 
 
 1 — Par. 136, section 1, chapter 
 3. "Administration of Estates." 
 
 2 — Par. 137, section 2, chapter 
 "Administration of Estates." 
 
 Starr & Curtis Annotated Statutes Starr & Curtis Annotated Statutes 
 
 of Illinois, Vol. 1, pp. 349, 350; 
 Kurd's R. S. of 111., 1905, p. 126. 
 
 of Illinois, Vol. 1, p. 350; Kurd's 
 R. S. of 111., 1905, p. 127. 
 
 572
 
 DISPOSAL OF UNCLAIMED MONEY. 
 
 573 
 
 deemed sufficient, by a court of equity, showing why the court 
 of probate may not afford the relief.^ A bill in equity cannot 
 be maintained by an administrator of an estate for the purpose 
 of determining what disposition should be made of the funds 
 in his hands, or what creditor should receive the fund he held 
 for distribution; it being held that the court of probate has 
 ample jurisdiction to settle all questions, relating to the settle- 
 ment and distribution of estates.'* 
 
 3 — See chapter 2 of this work 
 — "Jurisdiction," ante, 45; also 
 Shepard v. Speer, 140 111. 238. 
 
 4— Strauss v. Phillips, 189 111. 
 9; Dougherty v. Hughes, 165 111. 
 394; Meadowcroft v. Winnebago 
 Co., 181 111. 511-512. In the lat- 
 ter case citing from well estab- 
 lished authority, it is held : "When 
 the owner of property dies intes- 
 tate, without heirs capable of in- 
 heriting it, the title thereof de- 
 volves, by operation of law, upon 
 the State." Crane v. Reeder, 21 
 Mich. 24; Dow v. Ohanlon, 1 
 N. J. 582; Commonwealth v. Hite, 
 6 Leigh. 588; People v. Cultoy, 3 
 Johns, 1. See also section 1, chap- 
 
 ter 49, entitled "Escheats." Starr 
 & Curtis Annotated Statutes of Il- 
 linois, Vol. 2, p. 1809; Kurd's R. 
 S. of 111., 1905, p. 1027. In Mead- 
 owcroft V. Winnebago County, 
 supra. It is held the act does 
 not in anywise purport to divest 
 the title to property, even if the 
 title were held to be in the State. 
 Section 1 of chapter 49 was in- 
 tended to supersede all previous 
 enactments in relation to the 
 subject of escheats, and hence the 
 law now is that the property of 
 illegitimates dying without heirs 
 capable of holding the same es- 
 cheats to the County and not to 
 the State.
 
 CHAPTER XXXVII 
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE 
 
 Sec. Sec. 
 
 649. Introductory remarks. 665. 
 
 650. Witnes'ses — competency and 666, 
 
 credibility of — interest or 667. 
 criminal conviction no dis- 668. 
 Qualification. 669. 
 
 651. Competency and credibility. 
 
 652. Freedom of religious worship 
 
 — limitations — no prefer- 
 ence. 
 
 653. Events after death of dece- 
 
 dent, or after majority of 
 minor. 
 
 654. As to transactions proved by 
 
 an agent. 
 
 655. Transactions proved by par- 
 
 ties entitled to benefit of 
 statute. 
 
 656. Conversations during life of 
 
 deceased adduced by ad- 
 verse witnesses. 
 
 657. As to transactions touched 
 
 by deposition of deceased. 
 
 658. Witnesses when not compe- 
 
 tent, against trustees, rep- 
 resentatives, heirs, legatees 
 and devisees. 
 
 659. Who are interested i)arties. 
 
 660. Incompetent witnesses. 
 
 661. Incompetent witneses con- 
 
 tinued. 
 
 662. When party competent to tes- 
 
 tify in his own behalf — 
 competent witnesses gen- 
 erally. 
 
 663. Competent witnesses con- 
 
 tinued. 
 
 664. Administrators as witnesses. 
 
 574 
 
 670. 
 
 671. 
 672. 
 
 673. 
 
 674. 
 
 675. 
 
 676. 
 
 C77. 
 678. 
 
 679. 
 680. 
 681. 
 682. 
 683. 
 
 684. 
 
 685. 
 686. 
 
 687. 
 
 Admissions and declarations. 
 
 Agent direct and implied. 
 
 Written instruments. 
 
 Book accounts. 
 
 Compulsory production of 
 books for inspection. 
 
 Surviving partner — contract 
 with deceased agent. 
 
 Husband and wife. 
 
 Reference and application in 
 general to said section 5 of 
 the statute. 
 
 Concerning separate proper- 
 ty of wife. Husband and 
 wife may be witness for 
 and against each other. 
 
 Husband and wife agents for 
 each other. 
 
 Adverse party compelled to 
 testify. 
 
 Incompetency not removed 
 by release or assignment. 
 
 Further exceptions. 
 
 Production of books and 
 writings. 
 
 Printed statutes. 
 
 Exemplified statutes. 
 
 Reports of courts. 
 
 Court records how certified. 
 
 Records of cities how certi- 
 fied. 
 
 Records of private corpo- 
 rations how certified. 
 
 Form of certificate. 
 
 Records of justices of the 
 peace, certified copies. 
 
 Sworn copies, false certifi- 
 cate, penalty.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 575 
 
 Sec. 649. Introductory remarks. Before the year 1867, 
 when the legislature of Illinois, passed an act in relation to the 
 legal competency of witnesses, entitled ''Evidence and Deposi- 
 tions," the common law rules as to the competency of witnesses 
 to testify, in both law and equity proceedings were rigidly 
 enforced in this State. At common law, no party to the record 
 could testify, whether interested in the result or not, v*'ithout 
 the consent of all the other parties. In courts of equity, how- 
 ever, it was no objection, that a witness was a party to the 
 record, the only inquiry was, whether a witness was called to 
 support his own interest, if not interested in the result, the party 
 might testify.! "The rule of the common law in relation to the 
 interest of a witness is familiar to all, and operated in full force 
 in this State until the enactment of the law of 1867. However 
 much the existence of the rule was regretted by the most learned 
 and distinguished courts of this country and of England, it was 
 inexorably enforced, and witnesses of the highest character in 
 the community were excluded from the stand, if it appeared 
 they had an interest in the event of the suit. To make sueh 
 competent, resort was had to a written release executed with all 
 the forms of law. Our legislature, in a spirit of enlightened 
 policy, abolished this rule, by declaring that no person should be 
 disqualified as a witness in any civil action, suit or proceeding, 
 or by reason of his or her interest in the event thereof, as a 
 party or otherwise, or by reason of his or her conviction of any 
 crime. "2 The act of 1867 authorized a party to call opponent 
 as a witness; but in order to do so, required an affidavit by 
 such party or his attorney, to show by such instrument what 
 was expected to be proved by the opponent, and a statement in 
 the affidavit, that the matters sought to be established by the 
 evidence of the opponent, could not otherwise be proved. But 
 
 1— Kimball v. Cook, 1 Gilm. 6 52 111. 203; Bradshaw v. Combs, 
 (111.) 433; Galena & Chicago 102 111. 428. 
 
 Union R. R. Co. v. Welch, 24 111. 2—111. Cent. P.. R. Co. v. Weldon, 
 33; 111. Cent. R. R. Co. v. Weldon, 52 111. 293. See also Laws of 1867^ 
 
 p. 183, sec. 1.
 
 576 THE LAW OF ESTATES. 
 
 such affidavit might be upon information and belief of the 
 affiant.3 The competency of witnesses in the various matters 
 relating to administrators, executors, guardians, conservators, 
 and the various claims of every conceivable character, that must 
 of necessity arise under the county and probate court practice, 
 are in almost every proceeding brought in question. The legal 
 representatives of a deceased person, the minor and others under 
 disability, are, in such courts, coming constantly in contact with 
 the legal competency of witnesses to testify. We therefore deem 
 it important to give extensively the statute law of Illinois in this 
 respect, and many of the decisions relating to such, fixing the 
 competency of witnesses and their evidence under the act, en- 
 titled "Evidence and Depositions,"* 
 
 650. Witnesses — competency and credibility of — interest or 
 criminal conviction no disqualification. An act in regard to 
 evidence and depositions in civil cases, approved March 29, 
 1872, in force July 1, 1872, entitled ' ' Evidence and Depositions, ' ' 
 provides "That no person shall be disqualified as a witness in 
 any civil action, suit or proceeding, except as hereinafter stated, 
 by reason of his or her interest in the event thereof, as a party 
 or otherwise, or by reason of his or her conviction of any crime ; 
 but such interest or conviction may be shown for the purpose 
 of affecting the credibility of such witness ; and the fact of such 
 conviction may be proven like any fact not of record, either by 
 the witness himself (who shall be compelled to testify thereto) 
 or by any other witness cognizant of such conviction, as impeach- 
 ing testimony, or by any other competent evidence."^ 
 
 3 — Bell V. Thompson, 34 111. Supplements thereto, Vol. 2, p. 
 
 529; Rann v. Rann, 95 111. 433. 1822, Vol. 4, p. 605, et seq.; Vol. 
 
 4 — Chapter 51, section 11, 5, p. 243, et seq.; Vol. 1, p. 540, 
 
 chapter 19, entitled "Canals"; same Vol., p. 1092; Vol. 3, p. 3360; 
 
 section 32, chapter 34, entitled Vol. 4, p. 1073; Vol. 3, p. 2964; Vol. 
 
 "Counties ; section 28, chapter 4, p 988; Kurd's R. S. of 111., 1905, 
 
 116, entitled "Records"; chapter pp. 1034, 216, 565, 1626, 1527. 
 110, entitled "Plats." Starr & 5— Section 1, chapter 51, "Evi- 
 
 Curtis Annotated Statutes of Illi- dence and Depositions." Starr & 
 
 nois, with Jones & Addington's Curtis Annotated Statutes of Illi-
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 577 
 
 651. Competency and credibility. Intelligence, and not age, 
 was the test of the competency of a witness of tender years. A 
 child of nine years testified on her voir dire that she "under- 
 stood the nature of an oath, and that if she did not swear the 
 truth she would get into hell fire." This being the rigid rule, 
 the witness was held competent to testify.'' The competency of 
 a witness is for the court to determine; the jury cannot reject 
 testimony admitted by the court for supposed incompetency.'^ 
 The interest of a witness does not necessarily diminish his credi- 
 bility.s Right of party to testify in his own behalf is a per- 
 sonal privilege.^ Where a party elicits evidence, that may or 
 may not be competent, he by so doing is in no position to raise 
 the competency of such witness where record is reviewed on 
 appeal for the first time.^*^ But the competency of certain evi- 
 dence under a bill and answer before a master in chancery, on 
 which an original decree was entered, to set aside, alter or 
 change such decree, may be considered in determining the com- 
 petency of a witness and the weight or value of certain evi- 
 dence, if the witness was found competent to testify.^^ Doubts 
 are to be resolved in favor of the competency of a witness.^- 
 In the case of Matze7ibaugh v. The People,^^ it is said: "The 
 offense of which the appellant was convicted is not of the char- 
 acter or grade of crime deemed infamous at the conmion law or 
 
 nois, with Jones & Addington's R. R. Co, v. Weldon, 52 111. 290; 
 
 Supplements thereto, Vol. 2, p. Smith v. West, 103 111. 332. 
 
 1822, Vol. 4, p. 605, Vol. 5, p. 243, 10— Emerick v. Hileman, 197 III. 
 
 et seq., "General notes"; Kurd's 375; Becker v. Foster, 64 111. App. 
 
 R. S. of 111., 1905, p. 1034. 192; Doty v. Doty, 159 111. 52; 
 
 6— Draper v. Draper, 68 111. 17. Dewes v. Osborne, 178 111. 42. 
 
 7— Wickliffe v. Lynch, 36 111. 
 
 11— Ronan v. Bluhm, 173 III. 
 
 285; Whittaker v. Whittaker, 151 
 209; City of Aurora v. Scott, 185 j,, ggfi 
 
 ^'^' ^^^- 12— Christianson v. Dunham 
 
 8— Douglas V. FuUerton, 7 III. Towing & Wrecking Co., 75 111. 
 
 App. 102. App. 274. 
 
 9— Moore v. Wright, 90 111. 470; 13—194 111. 113; 1 Greenleaf on 
 
 People V. Starr, 50 111. 52; Morgan Evidence, section 373; 16 Am. & 
 
 V. Roberts, 38 111. 65; 111. Cent. Eng. Ency. of Law, 2d ed., 246-247, 
 
 and cases cited in notes. 
 
 37
 
 578 THE LAW OF ESTATES. 
 
 under our statute. It is a statutory offense, punishable by fine 
 and imprisonment in the county jail. Nor is it of the class of 
 offenses denominated cn'wen falsi, which were deemed infamous 
 at common law. Crimen falsi, according to the better opinion, 
 does not include all offenses which involve a charge of untruth- 
 fulness, but only such as injuriously affect the administration 
 of public justice, such as perjury, subornation of perjury, sup- 
 pression of testimony by bribery or conspiracy to procure the 
 absence of a witness, or to accuse one wrongfully of a crime, 
 or battery, or the like."" The enactment of said section 
 1 of our statute on evidence has no effect to author- 
 ize the introduction of proof of the conviction of the witness of 
 an offense that would not have rendered him incompetent to 
 testify in the absence of the statute."*^ As aft'ecting the credibil- 
 ity of the claimant, he may be interrogated upon cross-examina- 
 tion as to whether he was convicted of a crime or confined in the 
 penitentiary. But the fact of such conviction will not dis- 
 qualify a witness under this first section of the act in relation 
 to evidence and depositions.^^ And where a claim for services. 
 was sought to be collected from the estate of a deceased person, 
 it was held proper cross-examination to show witness was con- 
 victed of crime. 
 
 652. Freedom of religion and worship — limitations — no 
 preference. Article 2, section 3, of the Constitution of the 
 State of Illinois, 1870, is as follows: "The free exercise and 
 enjoyment of religious profession and worship, without dis- 
 crimination, shall forever be guaranteed; and no person shall 
 
 14 — 1 Greenleaf on Evidence, anbeklar v. People, 93 111. App. 
 
 sec. 373; 16 Am. & Eng. Ency. of 555; Burke v. Stewart, 81 111. 
 
 Law, 2d ed., 246-247. App. 509; Gem v. People, 87 111. 
 
 14a — Ante 650; Bartholomew v. App. 161; Lamkin v. Burnett, 7 
 
 People, 104 111. 601. 111. App. 143. See also Criminal 
 
 15 — Estate of Margaret Handlin Code, division 13, section 6, 
 
 V. Law, 34 111, App. 84. And chapter 38. Starr & Curtis An- 
 
 see the following cases in point, notated Statutes of Illinois, Vol. 
 
 Gage V. Eddy, 167 111. 108; Dax- 1, p. 1397; Kurd's R. S. of III. 
 
 1905, p. 745.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 579 
 
 be denied any civil or political right, privilege or capacity, on 
 account of his religious opinions; but the liberty of conscience 
 hereby secured shall not be construed to dispense with oaths or 
 affirmations, excuse acts of licentiousness, or justify practices 
 inconsistent with the peace or safety of the State. No person 
 shall be obliged to attend or support any ministry or place of 
 worship against his consent, nor shall any preference be given, 
 by law to any religious denomination or mode of worship. "^^ 
 Certain Chinese witnesses, in addition to the oath prescribed by 
 the laws of this State, were also allowed to be sworn according 
 to a Chinese practice, which was called the "Chinese Chicken- 
 oath." The lower court ruling that those of the witnesses who 
 were willing might take the oath, but that none of them should 
 be compelled to do so. Part of the witnesses were sworn in that 
 way, in addition. to the regular oath. Held: This proceeding 
 having been had at the instance and request of the defendants 
 they cannot be heard to complain of it.^'^ This section of the 
 constitution was construed and defined, hi re Walker. ^^ Sec- 
 tion 3 of article 2 of our constitution therefore constitutes a 
 guaranty of absolute freedom of thought and faith, whether 
 orthodox, heterodox. Christian, Jewish, Catholic, Protestant, Lib- 
 eral, conservative, Calvinistic, Armenian, Unitarian or other 
 religious belief, theology or philosophy, and also the right of free 
 exercise and enjoyment of religious professions and worship of 
 any variety of form, the only restraint upon the free exercise of 
 liberty of conscience being, that oaths and affirmations shall not 
 thereby be dispensed with, licentious acts excused or practices 
 justified which are dangerous to the peace and safety of the 
 State." 
 
 16 — Article 2, section 3, Consti- Ewing v. Bailey, 36 111. App. 191. 
 
 tution of Illinois, 1870. Starr & 17— Bow v. People, 160 111. 439. 
 
 Curtis Annotated Statutes of II- 18—200 111. 573. 
 
 linois, Vol. 1, p. 104; Kurd's R. See section 3, article 2, Con- 
 
 S. of 111., 1905, p. 54. Gtitution of Illinois 1870. Starr 
 
 See also the following: Chase & Curtis Annotated Statutes of U- 
 
 v. Cheeney, 58 111. 500; Nichols linois. Vol. 1, p. 104; Kurd's R. 
 
 V. School Directors, 93 111. 61; S. of 111., 1905, p. 54.
 
 580 THE LAW OF ESTATES. 
 
 653. Events after death of decedent — or after majority of 
 minor. If party testifies only to facts occurring after the 
 death, he comes within the first clause of section 2, chapter 51, 
 entitled " Evidence. "^^ A guardian is competent to testify at 
 hearing on his report to facts occurring after parents' death.^o 
 And so a guardian by petition asking to have the homestead 
 vested in children upon the ground that the widow had aban- 
 doned them : It was held the widow was a competent witness to 
 testify to facts occurring after death, and if petitioner was 
 suing for the homestead as heir of deceased, the defendant 
 would be competent to testify to such facts.^i So under a 
 statement of facts occurring after death the administrator is a 
 competent witness.22 When a witness is competent in his own 
 behalf, under certain clauses of the statute, if questions put 
 to him call for evidence which he is not competent to give, 
 objection should be made, and if overruled, exception taken; 
 unless this is done the question of his incompetency as to such 
 evidence cannot be raised in the Appellate Court.^s And so if 
 one who has testified is incompetent in a case against the 
 administratrix, and objection made thereto, and subsequently 
 such administratrix is dismissed out of such proceeding, the 
 question of incompetency of witness is by such act removed 
 from the cause.^^ So parties incompetent by virtue of section 
 of statute may testify against their own interest and be bound 
 thereby.25 The competency of a witness is not destroyed be- 
 cause some future event may bring her within the provisions of 
 the first clause of the act relating to evidence. 26 Where the 
 
 19 — Section 2, chapter 51, "Evi- Kingman v. Higgins, 100 111. 319. 
 
 dence and Depositions." Starr & 22— Stewart v. Kirk, 69 111. 509. 
 
 Curtis Annotated Statutes of II- 23— Pease v. Hunt, 60 111. App. 
 
 linois, Vol. 2, pp. 1824, 1831, and 585. 
 
 cases cited under section of sta- 24 — McDavid v. McLean, 202 111. 
 
 tute in question. Hurd's R. S. 358. 
 
 of 111., 1905, pp. 1034, 1035. See 25— McKay v. Riley, 135 111. 
 
 also Black v. Miller, 71 111. App. 586; Neish v. Gannon, 198 IlL 
 
 456. 223. 
 
 20— In re Steele, 65 111. 322. 26— Baker v. Baker, 202 111. 617; 
 
 21— Carr v. Carr, 177 111. 456; Waugh v. Moan, 200 111. 302;
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 581 
 
 Appellate Court finds that a person is an interested witness, 
 such finding or judgment of that court is conclusive of that 
 fact.27 
 
 654. As to transactions proved by an agent. Where an 
 agent of the deceased is called and has given his evidence as a 
 competent witness under clause 2 of section 2 evidence act, a 
 party in interest may testify only to contradict the testimony of 
 such agent. The incompetency of an interested witness is not 
 waived, from the fact that the agent of the deceased has been 
 called to testify. Such interested witness may, however, testify 
 as to such matters as are given in evidence by such agent; but 
 as to matters which are brought out in cross-examination of such 
 agent which he has not testified to on direct examination, such 
 interested witness cannot be permitted to touch upon in his testi- 
 mony.^^ 
 
 655. Transactions proved by parties entitled to benefit of 
 statute. The lower court, on rebuttal refused to allow appel- 
 lant to testify either in explanation or denial of conversations 
 and declarations which took place before the death of the dece- 
 dent and in his presence between the heirs and the witness his 
 surviving widow, in a proceeding for partition between the 
 heirs against the wife of the deceased. On appeal the ruling 
 of the lower court was held error. The court saying: Under 
 the third clause of section 2 of the evidence act, the witness was 
 ** clearly competent to testify in rebuttal as to transactions or 
 
 Volbracht v. White, 197 111. 301. Starr & Curtis Annotated Statutes 
 
 See also the following cases, re- of Illinois, Vol. 2, pp. 1841-1842, 
 
 lating to the competency or in- and cases cited under section in 
 
 competency of witness, in matter question. Albers Commission Co. 
 
 of contest of will. Brace v. Black, v. Sessel, 193 III. 153, 
 125 111. 33; Pyle v. Pyle, 158 111. 27— McAyeal v. Gullett. 202 111. 
 
 289; Taylor v. Pegram, 151 111. 216; Cronin v. Royal League, 199 
 
 106; Bardell v. Brady, 172 111. 111. 234; Anthony Ittner Brick Co. 
 
 420. See section 7, chapter 51, v. Ashby, 198 111. 565. 
 "Evidence and Depositions." 28 — Leob v. Stern, 198 111. 381. 
 
 Kurd's R. S. 111., 1905, p. 1036. See also statute citations. Notes 
 
 19, 26, ante, 653.
 
 582 THE LAW OF ESTATES. 
 
 conversations between herself and an opposite party or party 
 in interest, after such opposite party or party in interest had 
 testified to such conversation or transaction, and on this point it 
 would be immaterial whether the husband was present or not. 
 There is nothing in section 5 of the act which would exclude 
 her testimony on the ground that it related to conversations or 
 transactions between husband and wife, for in this case they 
 were between appellant and these heirs, and no admission of or 
 conversation with the husband was involved. "29 
 
 656. Conversations during life of deceased adduced by ad- 
 verse witnesses. As to matters arising under the fourth clause 
 of the 2d section of the act relating to evidence, it is said, in 
 the case of Volbracht v. White :^^ "The conversations or admis- 
 sions to which an interested party may testify to under this 
 section are the conversations or admissions which others have 
 testified that he made — not the conversations or admissions made 
 by the deceased person; and the party so called as a witness is 
 competent, under this clause, to testify only to such admissions 
 or conversations as are said to have been made by him out of 
 the presence of the deceased person. Such is the express provi- 
 sion of the statute and also the construction given it by this 
 court.31 
 
 657. As to transactions touched by deposition of deceased. 
 
 Under fifth clause of section 2 of the act relating to evidence. 
 When the ''deposition of such deceased person shall be read in 
 evidence at the trial, any adverse party or party in interest may 
 testify as to all matters and things testified to in such deposi- 
 tion by such deceased person, and not excluded for irrelevancy 
 or incompetency." The death of a person cannot affect the 
 
 29 — Blanchard v. Blanchard, 31 — Buckman v. Alwood, 71 111. 
 
 191 111. 454. This clause of the 155; Maher v. Trust Co., 95 111. 
 
 statute is also applied in case of App. 375; Statute citation, Starr 
 
 Pease v. Hunt, 60 111. App., 586. & Curtis Annotated Statutes of II- 
 
 Statute citations Same as ante linois, Vol. 2, p. 1833; Hurd's R. 
 
 653. S. of 111., 1905, p. 1035. 
 
 30—197 111., page 303.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 583 
 
 competency of a witness, in any proceeding that such exists 
 either by the common law or by statutory enactment granting 
 such a right to testify.^^ jf [^ jg desired to challenge the com- 
 petency of evidence, a ruling must be required, and objection 
 and exception taken.^s 
 
 658. Witnesses when not competent, against trustees, rep- 
 resentatives, heirs, legatees and devisees. Section 2 of the 
 Evidence and Deposition Act provides: **No party to any civil 
 action, suit or proceeding, or person directly interested in the 
 event thereof, shall be allowed to testify therein of his own 
 motion, or in his own behalf, by virtue of the foregoing section, 
 when any adverse party sues or defends as the trustee or con- 
 servator of any idiot, habitual drunkard, lunatic or distracted 
 person, or as the executor, administrator, heir, legatee or devisee, 
 unless when called as a witness by such adverse party so suing 
 or defending, and also except in the following cases, namely: 
 First — In any such action, suit or proceeding, a party or inter- 
 ested person may testify to facts occurring after the death of 
 such deceased person, or after the ward, heir, legatee or devisee 
 shall have attained his or her majority. Second — When, in 
 such action, suit or proceeding, any agent of any deceased per- 
 son shall, in behalf of any person or persons suing or being 
 sued, in either of the capacities above named, testify to any 
 conversation or transaction between such agent and the opposite 
 party or party in interest, such opposite party or party in inter- 
 est may testify concerning the same conversation or transaction. 
 Third — ^Where, in any such action, suit or proceeding, any such 
 
 32 — Easterly Harvester Co. v. Ill, App. 511; City of Chicago, 
 
 Hill, 36 111. App. 99; Butz v. v. Nodeck, 202 111. 270; Jernberg 
 
 Schwartz. 32 111. App. 156; Trun- v. Mix, 199 111. 258; Keating v. 
 
 key V. Hedstrom, 33 111. App. 397; Cornell Bros., 104 111. App. 450; 
 
 Sprigg V. Grannemann, 36 111. Thomson v. Black, 200 111. 469; 
 
 App. 102; Deuterman v. Ruppel, Insurance Co. v. Johnson, 200 111. 
 
 103 111. App. 110; Same v. Same, 362; Columbia Manfg. Co. v. 
 
 200 111. 201. Hastings, 121 Fed. Rep. 330; Starr 
 
 33 — Railroad Co. v. Randolph, & Curtis Annotated Statutes of II- 
 
 199 111. 129; Dady v. Condit, 104 linois, Vol. 2, p. 1834; Kurd's R. 
 
 S. of 111., 1905, p. 1035.
 
 584 THE LAW OF ESTATES. 
 
 party suing or defending, as aforesaid, or any person having a 
 direct interest in the event of such action, suit or proceeding, 
 shall testify in behalf of such party so suing or defending, to 
 any conversation or transaction with the opposite party or party 
 in interest, then such opposite party or party in interest shall 
 also be permitted to testify as to the same conversation or trans- 
 action. Fourth — Where, in any such action, suit or proceed- 
 ing, any witness, not a party to the record, or not a party in 
 interest, or not an agent of such deceased person, shall, in behalf 
 of any party to such action, suit or proceeding, testify to any 
 conversation or admission by any adverse party or party in 
 interest, occurring before the death and in the absence of such 
 deceased person, such adverse party or party in interest may 
 also testify as to the same admission or conversation. Fifth — 
 When, in any such action, suit or proceeding, the deposition of 
 such deceased person shall be read in evidence at the trial, any 
 adverse party or party in interest may testify to all matters and 
 things testified to in such deposition by such deceased person, 
 and not excluded for irrelevancy or incompetency. "3-* 
 
 659. Who are interested parties. Such are usually devel- 
 oped by the pleadings, or at the hearing or trial of an issue. 
 Those persons, who, at common law, were incompetent as inter- 
 ested parties in themselves or by being parties to the record, 
 are still incompetent under the first clause of the second section 
 of the statute quoted, relating to evidence and depositions. 
 Interest or want of interest of parties, directly and indirectly 
 as existing at common law are recognized by the final authori- 
 ties of this State.'^ The disqualifying interest at common law, 
 
 34 — Law 1867, p. 183, section 2. Vol. 5. pp. 254-255, and cases cited; 
 
 Section 2, chapter 51, "Evidence Kurd's R. S. of 111., 1905, pp. 1034- 
 
 and Depositions." Starr & Curtis 1035. 
 
 Annotated Statute of Illinois, with 35 — King v. Worthington, 70 111. 
 
 Jones & Addington's Supplements 114; Kent v. Mason, 79 111. 540; 
 
 thereto, Vol. 2, pp. 1822 to 1834 Remann v. Buckmaster, 85 111. 
 
 inclusive, and cases cited; Vol. 405; McClure v. Otrich, 118 111. 
 
 4, pp. 605 to 608, and cases cited; 325.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 585 
 
 was some legal, certain and immediate interest.^^ It was suffi- 
 cient if the interest exists, and it matters not whether the witness 
 has knowledge of it or no^.^^ The test being, will the Avitness 
 either gain or lose by the operation and effect of the judgment ; 
 or will the record be evidence for or against him in 
 another siction.^^ His interest, however, must be in 
 favor of the party calling him as a witness; if adverse 
 to such, or if his evidence was considered as evenly 
 balanced he was a competent witness.^^ The clear distinction of 
 the rule in this regard, as between courts of law and equity 
 relating to the competency or incompetency of parties to the 
 record as witnesses, will be found in the case of Dodgson v. 
 Henderson. Where the defendant is competent to testify against 
 some, but not all the complainants, his evidence will be con- 
 sidered against the complainant as to whom he is competent.^^ 
 Where it appears the witness' interest is equally balanced he is 
 competent.'*^ And to the same effect defining common law wit- 
 ness as though no statutory act had been passed as to their 
 qualifications; under the statute itself, that is, the excep- 
 tions in the statute, adds to the list witnesses that are made 
 competent.'*- The authorities being numerous, we hereafter 
 distinguish the witnesses by the authorities holding them in- 
 competent and competent to testify in the particular case where 
 the issue is raised. 
 
 660. Incompetent witnesses. The cases under this head are 
 very numerous, depending largely upon the facts developed in 
 
 36— €ombs v. Bradshaw, 6 111. 121; Hurlbut v. Meeker, 104 HI. 
 
 App. 121; 1 Greenleaf on Evi- 542; Ire re Bonse, 18 111. App. 438; 
 
 deuce, 386, 387, 388, 389. Sconse v. Henderson, 102 111. 376. 
 
 37 — Flint V. McClung, 4 Gilm. 40 — Dodson v. Henderson, 113 
 
 (111.) 569. 111. 363; Weingartner v. Pabst, 115 
 
 38 — New England Ins. Co. v. 111. 413; Meister v. Zimmermann, 
 
 Wetmore, 32 111. 246; McClure v. 7 111. App. 160. 
 
 Otrich, 118 W. 325. 41— Sconse v. Henderson, 102 
 
 39— Stokes v. Kane, 4 Scam. Ill, 376; Dodgson v. Henderson, 
 
 (III.) 16; Brooks v. McKlnney, 4 113 111. 363. 
 
 Scam. (111.) 312; Bell v. Farrar, 41 42— Bradshaw v. Combs, 102 111. 
 
 111. 400; Brown v. Hurd, 41 111. 428; Ailing v. Brazee, 27 111. App. 
 
 5^8.
 
 586 THE LAW OF ESTATES. 
 
 each particular case. It may be safely said the statute quoted 
 aforesaid, allowing a party to be a witness, is seemingly broad 
 yet much restricted in its application. It is said in the case of 
 Boynton v. Phelps :^^ "The second section of the act of 1867 
 clearly contemplates that the parties to a suit, when one of them 
 is offered as a witness against the other, shall occupy equal 
 ground ; that both shaU be present in the flesh, or have the power 
 to be present. If it were not so, the greatest injustice would 
 be the result. A swift and willing living witness would have 
 the whole case in his own power, and a door to perjury would 
 be open, so wide and so inviting as to require great moral firm- 
 ness to decline an entrance into it. It would be a temptation 
 very many would not be able to resist." While both parties 
 to a transaction are living they are upon a perfect equality, 
 and can each testify. When one is dead the other is not per- 
 mitted to give evidence, and thus take advantage of the heirs 
 of the deceased, who are wholly ignorant of the facts.*^ In 
 the application of this general statutory rule of justice to the 
 living and dead, the various cases, as they develop certain facts, 
 become special cases in point, where the incompetency of wit- 
 nesses to testify to the particular matters in controversy appear 
 in each case. Where a person, long after the execution and 
 delivery of a deed for land, makes a second conveyance of the 
 same premises to another, who files a biU against the heirs of 
 the prior grantee to have the first deed set aside, on the ground 
 it was delivered on conditions which were never performed, 
 and the bill is brought for the mutual benefit of the second 
 grantee and the grantor, the latter was held not to be a compe- 
 tent witness for the complainant against the heirs of the prior 
 grantee, to prove the grounds on which the first deed sought 
 to be avoided.^^ And it is held in a suit by an executor, upon 
 
 43—52 111., page 219. Pyle v. Oustatt. 92 111. 215; Lang- 
 44— Merrill v. Atkins, 59 111. 20; ley v. Dodsworth, 81 111. 86; Gal- 
 Fisher V. Fisher, 54 111. 235; Ma- braith v. McLain, 84 111. 379; Mc- 
 honey v. Mahoney, 65 111. 406; Cann v. Atherton, 106 111. 33; 
 Alexander v. Hoffman, 70 111. 115; Plain v. Roth, 107 111. 588. 
 Ruckman v. Alwood, 71 111. 155; 45 — McCann v. Atherton, 106 IlL 
 
 33.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 587 
 
 a promissory note to the testator, that the principal maker is 
 not a competent witness for a surety, to prove a contract with 
 the testator for extending the time of payment, even though 
 his default had been taken.^*' It appears that a plaintiff de- 
 scribed himself as an administrator; and the facta established, 
 that the plaintiff could maintain the suit in his own name, and 
 therefore it was unnecessary for him to describe himself as 
 administrator. And under such state of facts, it was held, the 
 plaintiff could not cut off the defendant from being a witness.*'^ 
 Where a bill in chancery was filed by a married woman, against 
 the heirs and administrator of a deceased party to have a deed, 
 executed by her and her husband to the intestate, set aside for 
 fraud, etc., it was held the complainant and her husband were 
 both incompetent witnesses to prove the facts alleged in her 
 bill.^8 Where a bill for specific performance was filed, the 
 agent of the vendor is not a competent witness, after the ven- 
 dee's death, as against his widow and heirs, to testify that a 
 payment, indorsed by him upon the contract, was made by 
 mistake, and that it was not, in fact made.*** A party is not a 
 competent witness against an opponent who is defending as an 
 heir in a suit growing out of a transaction with his ancestor.^* 
 In equity to enforce a resulting trust, against an administrator, 
 and the heirs of an estate, it was held: The complainant was 
 not competent to testify, in his own behalf, as to transactions 
 and conversations with the deceased in his lifetime.^^ In a suit 
 for partition and assignment of dower by heir of intestate 
 against the widow of such intestate, it was held: That she was 
 
 46— Langley v. Dodsworth, 81 Battell, 83 111. 320-321; Galbraith 
 
 111. 86; Dodgson v. Henderson, 113 v. McLain, 84 111. 379; Ferbrache 
 
 111., 363. V. Ferbrache, 110 111. 210; Dyer 
 
 47— Roberts v. Pierce, 79 111. 378. v. Hopkins, 112 111. 168; Show 
 
 48— Crane v. Crane, 81 111. 166. v. Schoonover, 130 111. 448. 
 
 49 — 1 Greenleaf on Evidence, 50 — Ebert v. Cording, 116 111. 
 
 sections 417, 394 to 397; Frink v. 216; Powell v. Powell, 114 111. 
 
 People, 43 111. 27; Walters v. 334; Holderman v. Gray, 130 111. 
 
 Witherell, 43 111. 388; Chicago, 442. 
 
 Rock Island & Pacific R. R. Co. 51— Kelsey v. Snyder, 118 111. 
 
 V. Welch, 24 111. 31; Bruner v. 544.
 
 588 THE LAW OF ESTATES. 
 
 not competent to prove advances by herself to the intestate, and 
 of existence of lien therefore.^^ The deposition of a complainant, 
 taken after the death of a defendant, in a suit in equity t« set 
 aside a deed, and for rent, is incompetent, and should not be 
 read as evidence against such deceased defendant heir.^^ A 
 daughter of a deceased person claiming property under contract 
 with the mother during her lifetime, is an incompetent witness 
 under bill filed by the other heirs to subject such property to 
 distribution,^^ 
 
 661. Incompetent witnesses continued. Where A trans- 
 ferred his bond for a deed to B, without consideration, thereby 
 making the latter his trustee, and procured B to make payment 
 of the purchase money, and had the vendor convey the prop- 
 erty to B, who died, having devised all his estate to C, and 
 the executor of C filed a bill against A and his wife to fore- 
 close the deed as a mortgage, it was held: That A was not a 
 competent witness in his own behalf as to any transaction be- 
 tween himself and B ; nor could he testify in his own interest 
 when called by his co-defendant, his wife.^^ Where application 
 Iv^as made to the county court to require an executor to disclose 
 assets, it was held, that the executor was not a competent wit- 
 ness as to fact occurring before the death of the deceased.^® 
 And in equity, to restrain an administrator from paying over 
 certain money to one of the heirs of the deceased, who claimed 
 under an alleged parol contract between herself and husband 
 and decedent and her mother, made shortly before the mother's 
 death, it was held, that the husband of the claimant was an 
 incompetent witness, to prove the transaction.^^ In an action 
 by an administrator on a note, where it was sought to prove 
 a contract between the defendant and the deceased for board- 
 
 52— Barnard v. Barnard, 119 111. 55— Stewart v. Fellows, 128 111. 
 92. 480. 
 
 53— Dean v. Long, 122 111. 447. 56— Booth v. Tabbernor, 23 111. 
 
 54— Way V. Harriman, 126 111. App. 173. 
 132. 57 — Harriman v. Sampson, 23 
 
 111. App. 159.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 589 
 
 ing of the decedent 's parents, it was held : The wife of the de- 
 fendant was not competent to testify as to such fact.^^ Com- 
 plainants in a foreclosure suit against heirs of a mortgagor 
 cannot testify to the amount due thereunder.^^ A divorced wife 
 of a deceased party, who filed her bill of review to set aside 
 the decree which divorced her, was held, not a competent wit- 
 ness where the defendants were the administrator, widow and 
 heir of such deceased husband.^*^ A donee is incompetent as a 
 witness, where complainants sue as heirs.^^ An executor, is 
 incompetent to testify against contesting heirs, where his in- 
 terest lies in sustaining the will in question.^^ ^ grantee of an 
 ancestor is not a competent witness in suit by him as such.^^ 
 So also, one seeking to establish the fact of heirship to deceased, 
 is not a competent witness in a case where adverse parties de- 
 fend as heirs of such deceased.''^ The statute in this regard 
 was intended to protect the estates of deceased persons from 
 the assaults of strangers, and relates to proceedings wherein 
 the decision sought by the party so testifying would tend to 
 reduce or impair the estate, and does not relate to the relative 
 rights of heirs or devisees as to the distribution of an estate 
 in proceedings by which the estate itself is in no event to be 
 reduced or impaired.^*^ A stockholder of a corporation is not 
 a competent witness in a suit by a corporation against the repre- 
 ss— Gifford V. Wilkins, 24 111. 111. 372. And see also the fol- 
 App. 367. lowing cases where witnesses were 
 
 59 — Reed v. Kidder, 70 111. App. held competent or incompetent 
 500. on some issue raised in the case. 
 
 60— Maher v. Trust Co., 95 111. Blanchard v, Blanchard. 191 111. 
 App. 375. 453; Fletcher v. Shepherd, 174 111. 
 
 61— Sayles v. Christie, 187 111. 268; Roberts v. Woods, 82 111. App. 
 442. 648; Same v. Same, 185 111. 489; 
 
 62— Bardell v. Brady, 172 111. Ramsey v. Nichols, 73 111. App. 
 424; Anderson v. Anderson, 191 651; Pearce v. Pearce, 184 III. 
 111. 101; Fleming v. Mills, 182 111. 289; Goff v. Ins. Co., 92 111. App. 
 469. 211; Yokem v. Hicks, 93 111. App. 
 
 63— Leavitt v. Leavitt, 179 111. 670; Russell v. Happ, 76 111. App. 
 89. 419. 
 
 64 — Lawrence v. Lawrence, 164 65 — Pigg v. Carroll, 89 111. 205; 
 
 Fleming v. Mills, 182 111. 469.
 
 590 THE LAW OF ESTATES. 
 
 sentatives of a deceased party .^^ An adverse party must sue 
 in a representative capacity to render opposite party incom- 
 petent.^^ And so it is held, the question, whether a witness 
 has, or has not, a disqualifying interest, in a particular case, 
 is to be determined by ascertaining, whether he would gain or 
 lose by a decree setting aside the will.^^ The interest of a party 
 may lie solely in his liability for costs, in event of defeat.^^ 
 
 662. When party competent to testify in his own behalf — 
 competent witnesses generally. A suit against grantees of a 
 deceased person, which is not defended by the executor, heirs, 
 legatees or devisees of the deceased, is not one in which the 
 plaintiff is prohibited by the statute from testifying in his own 
 behalf as to personal transactions with the deceased.'^^ A plain- 
 tiff is competent to testify in his own behalf, where defendant 
 is not defending in any pecuniary capacity.'''^ A claimant, who 
 is prosecuting a claim against the estate of a deceased person, 
 is a competent witness in his own behalf, in relation to what 
 was done and said at a settlement between him and the executor 
 of the estate, about which a witness produced by the executor 
 has testified. It is a general rule relating to conversations, that 
 when one party introduces a part, the other may call for and 
 have the entire conversation, so far as it relates to the subject 
 matter in dispute.'^ ^ The administrator is a competent witness 
 for the defense, in a suit against the estate represented by him, 
 to testify, what he knew of the case before and after he became 
 administrator did learn.'^s One heir is a competent witness 
 against another in partition proceedings, where one heir claims 
 the entire title, on the ground that the ancestor held the legal 
 
 66— Albers Commission Co. v. 69— Smith v. Smith, 168 111. 495. 
 
 Sessel, 193 111. 155; Christian- 70— Goelz v. Goelz, 157 111. 33; 
 
 sen V. Dunham Towing and Gage v. Eddy, 179 111. 496. 
 
 Wrecking Co., 75 111. App. 274. 71 — Fireman's Ins. Co. v. Peck, 
 
 67— McGrew v. McGrew, 93 111. 126 111. 493. 
 
 App. 82. 72— Strauther v. Mohler, 80 111. 
 
 68— Campbell v. Campbell, 130 23. 
 
 111. 466. 73— Steel, Adm., v. Clark, Adm., 
 
 77 111. 475.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 591 
 
 title in trust for him, and the other defendant disclaiming any 
 interest, the latter will be a competent witness for his co-de- 
 fendant, and against the petitioner, both at common law and 
 under the statute.''* In equity, the principal on a promissory 
 note is a competent witness in a suit by the surety against the 
 administrator of the payee, to enjoin the collection of a note, 
 on behalf of the surety, to prove a valid contract by the payee 
 extending the time of payment to the principal without consent 
 of the surety J ^ A widow, filed a bill in equity, for herself and 
 heirs to establish a trust for the estate. Held : She was a com- 
 petent witness for herself and the heirs as to all matters affect- 
 ing the transaction of which she has personal knowledge. But 
 the defendant in such suit, is not a competent witness, as he 
 is directly interested in the result of the suit as sole defendant; 
 the adverse parties suing as heirs at law of the deceased, defend- 
 ant was therefore incompetent to testify to anything but mat- 
 ters falling within the exceptions to section 2, chapter 51, Ke- 
 vised Statutes.'^® A mere scrivener employed by deceased to 
 draw a note and mortgage, is not the agent of the deceased, and 
 his testimony is competent concerning transaction between the 
 widow and her deceased husband, as to what was said about an 
 ante-nuptial contract between the latter two.'^'' In a case for 
 specific performance, where special conditions and circumstances 
 appear in the record, a daughter of testator was held competent 
 and permitted to testify, as such was not entitled to the land 
 mentioned in the will and, to prove the contract upon which 
 the relief under bill for specific performance was sought, 
 such having no interest in the result. The rule as laid 
 down, being: "The true test of the competency of a witness, 
 
 74 — Scheerer v. Scheerer, 109 111. 363; Davis v. People, 1 Gilm. 
 
 111. 11; Smith v. West, 103 111. (111.) 409; Grossman v. Wohllen- 
 
 332; Kershaw v. Kershaw, 102 111. hen, 90 111. 537. 
 
 307; Pigg V. Carroll, 89 111. 205; 76— As to statute cited see ante 
 
 Long V. Long, 19 111. App. 383; 658 and notes; Powell v. Powell, 
 
 Treleaven v. Dixon, 119 111. 548. 114 III. 334, 
 
 75 — Bradshaw v. Combs, 102 111. 77 — Spencer v. Boardman, 118 
 
 428; Dodgson v. Henderson, 113 111. 553.
 
 592 THE LAW OF ESTATES. 
 
 when challenged on the ground of interest, is, whether he will 
 gain or lose by the direct legal operation and effect of the judg- 
 ment in the case in which he is called to testify, or whether 
 the record will be evidence for or against him.'^^ In a cause 
 of action which accrued more than five years before the bring- 
 ing of the suit, at which time the claimant first learned he had 
 a right of action against decedent's estate, he was held to be 
 competent to testify to facts occurring after the death of the 
 intestate having reference to his acquiring knowledge of his 
 rights.'^ So a widow was held a competent witness to prove 
 that after her husband's death, she found a deed to him among 
 his papers, as tending to show a delivery to him, that being "a 
 fact occurring after the death of such deceased person. "^"^ 
 
 663. Competent witnesses continued. The defendant is a 
 competent witness in a suit by a widow for causing her hus- 
 band's death by selling him intoxicating liquors.si A ward is 
 a competent witness, in an action against sureties on guardian's 
 bond, to testify whether deceased guardian ever paid any of the 
 money due from him, and whether the guardian was ever con- 
 stituted agent to handle the same.'^^ The maker of a note was 
 held to be a competent witness, as to conversations or transac- 
 tions with him testified to by agents at plaintiff's instance, the 
 agents of the payee having a direct interest in the result of the 
 suit.s^ An executor under a will who is also a devisee of certain 
 lands in trust may disclaim his interest in the trust property 
 and thus become a competent witness-^'* A right not claimed 
 by inheritance, sought to be enforced by an heir, as to facts oc- 
 curring during the minority of the plaintiff, does not exclude 
 the evidence of an adverse party to the suit.^^ In an action 
 
 78— McClure v. Otrich, 118 111. 83— Butz v. Schwartz, 32 III. 
 
 320. App. 156; English v. Landon, 181 
 
 79— Vigers v. Bannon, 118 111. 111. 618. 
 
 334. 84 — Campbell v. Campbell, 130 
 
 80— Griffin V. Griffin, 125 111. 430. 111. 466; Smith v. Smith, 168 111. 
 
 81— Regent v. Bell, 77 111. 593. 493. 
 
 82_people v. Borders, 31 111. 85— Seago v. People, 21 111. App. 
 
 App. 426. 283.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 593 
 
 by the assignee of a certificate of stock against a corporation 
 to recover damages, for the wrongful refusal of the defendant to 
 allow a transfer of the stock on its books; it was held: The 
 death of the original holder of such certificate does not render 
 the plaintiff incompetent as a witness,^^ An interest consisting 
 of inchoate dower right, does not render witness incompetent.^'' 
 The interest of a party will be determined by matters of sub- 
 stance rather than by those of form.^^ Where one sues or de- 
 fends as a grantee of executor, the party in interest is a com- 
 petent witness.^^ A daughter of a complainant by a former 
 husband has not such an interest in the event of a suit seeking 
 to establish a trust in favor of her mother against the heirs of 
 her deceased step-father, as to render her incompetent under the 
 statute.^^ The widow of the deceased is a competent witness 
 in a suit between legatees and the executor, the result of which 
 will not affect her financially, and where it appears she has no 
 interest.^i The son of a grantee does not defend as heir in 
 a suit to set aside the deed and for partition, so as to preclude 
 the complainants from testifying against him under section 2 
 of the Evidence Act, where the validity of the deed as well as 
 the complainant's title rests upon a will under which they all 
 claim.92 Immaterial evidence may be competent by virtue of the 
 other party to the cause having introduced such, evidence as to 
 render it essential by way of contradiction-^^ 
 
 664. Administrators as witnesses. Independent of his of- 
 fice as administrator, if he has no interest in the subject-matter 
 of the litigation and his testimony does not relate to matters 
 growing out of his administration, but to affairs occurring be- 
 
 86— Fireman's Ins. Co. v. Peck, 91— Tanton v. Keller, 167 III. 
 
 27 111. App. 91. 144. 
 
 87— Pain v. Farson, 179 111. 196. 92— Fleming v. Mills, 182 111. 
 
 88— Bardell v. Brady, 172 111. 469; Pigg v. Carroll, 89 111. 205; 
 
 424. Mueller v. Rebhan, 94 111. 142. 
 
 89— Gage v. Eddy, 179 111. 495. 93— Matthews v. Granger, 196 
 
 90— Boyd V. Boyd, 163 111. 614. 111. 168; Illinois Life Assn. v. 
 
 V/ells, 200 III. 451. 
 38
 
 594 THE LAW OF ESTATES. 
 
 tween him and third persons, parties litigant should not be de- 
 prived of his testimony simply by reason of his accepting the 
 office of administrator.'''^ Where an administratrix is suing 
 to recover money in the hands of an officer of the court which 
 she claims as an asset of her intestate, such contestant is the 
 adverse party within the meaning of the statute, and the ad- 
 ministratrix is a competent witness.^^ An alleged creditor of a 
 deceased person, who has been appointed administrator of such 
 person, under the statute authorizing the appointment of cred- 
 itors under certain circumstances, is not competent to testify as 
 to transactions between himself and the deceased in a proceed- 
 ing for his removal commenced by an heir.^^ Where an admin- 
 istrator testifies as to admissions of defendant during decedent's 
 life-time, the defendant may testify as to the same.'''^ Where 
 certain evidence was proffered, such was held admissible.^^ 
 
 665. Admissions and declarations. As a general rule, ad- 
 missions should be made in the presence of the parties sought 
 to be bound thereby; and, by some one legally capable of mak- 
 ing the same. Admissions if made by a child of tender years, 
 should be received more cautiously on account of age, than the 
 admissions of an adult.^^ The admission or declaration of a 
 grantor after he has parted with all his interest in the laud 
 the subject of controversy, will not be received in evidence to 
 defeat the title of his innocent grantee.^ If the relation of law- 
 ful marriage has actually been created, the subsequent admis- 
 sions of the wife to the contrary, no matter if solemnly and 
 deliberately made, can have no effect to dissolve the marriage 
 tie or relieve the other party from the obligations and duties 
 
 94— Yokem v. Hicks, 93 111. App. 97— Penn v. Oglesby, 89 111. 110. 
 
 670. 98— Brunner v. Battell, 83 111. 
 
 95— Shea v. Doyle, 65 111. App. 317; Plain v. Roth, 107 111. 588. 
 
 475; 111. Cent. R. R. Co. v. Rear- 99— Chicago City Ry. Co. v. 
 
 don, Adm., 157 111. 378. Tuohy, 196 111. 430. 
 
 96 — Henderson v. Treadway, 69 1 — Holton v. Dunker, 198 IlL 
 
 111. App. 357. 412.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 595 
 
 of a husband and father.^ Where the answer to a bill in chan- 
 cery set forth certain admissions claimed to be binding the 
 court held, such answer could not fairly be construed to admit 
 charges and expenses beyond those actually covered by the li- 
 cense contract.^ The admissions by an agent made while acting 
 as attorney and agent in conducting the affairs of his principal, 
 relating to a transaction then pending and considered part of 
 the res gestae were held competent.'* Where admissions were 
 made by an attorney for the appellants in open court in con- 
 demnation proceedings, in effect, conceding, that the appellee 
 company had power and capacity to exercise the right of emi- 
 nent domain, and voluntarily and without objection entered 
 upon the hearing before the jury of the issues as to the amount 
 of damages to which appellants were entitled, it was held : Ap- 
 pellants could not be heard to insist the appellee company had 
 not the right and power to acquire property by the process of 
 condemnation.^ And where settlement \\dth creditors had been 
 made and deed of trust and notes executed in pursuance of 
 the same ; and, afterward in a litigated case, the deed and notes 
 were offered in evidence and objection was made thereto, it was 
 said: "We are unable to see why the evidence was not com- 
 petent on the theory of the defense, which was, that all the 
 claims held by appellant and others against the defendant were 
 adjusted by the execution of the trust deed and notes. In sup- 
 port of that contention, defendant clearly had the right to prove 
 the arrangement and show what was done by way of carrying 
 it out, — that is proof of compliance on its part."^ The duly 
 authenticated transcript of the proceedings and decree contain- 
 ing admissions made in a contested litigation involving the same 
 subject-matter as the case at bar, and between the same parties, 
 
 2 — Hutchinson v. Hutchinson, 5 — Sexton v. Union Stock Yards 
 
 196 111. 432. Co., 200 111. 248, and cases cited 
 
 3 — Bates Machine Co. v. Cook- in the opinion, 
 
 son, 202 111. 256. 6 — Iroquois Furnace Co. v. 
 
 4— Hoffman v. Chicago Title & Hardware Co., 201 111. 299. 
 Trust Co., 198 111. 456.
 
 596 THE LAW OF ESTATES. 
 
 is entitled to full faith and credit, and is properly admitted in 
 evidence. The admission of a fact by a party to a suit, is com- 
 petent evidence, no matter how made; and where the statement 
 or declaration of a party is made in a bill in chancery, the bill 
 is competent evidence to be considered by the jury, who are 
 to determine the weight to be given to the evidence.'^ A 
 corporation is bound by a contract made by its duly authorized 
 agents, its directors, with full knowledge of what they were do- 
 ing, however fraudulent the contract may be in its operation, 
 after it has been executed by the parties to it.^ Where the 
 agent of an insurance company is intrusted with checks and 
 receipts for the purpose of settling a death claim, the agent's 
 representations, declarations and admissions in closing up the 
 transactions, if made at the time and constituting part of the 
 res gestae, are binding upon the company.^ 
 
 666. Agent — direct and implied. The burden of proving 
 the express authority of an agent, or such authority necessarily 
 implied from his employment as an agent, and a part of the duty 
 of the agency, which must be exercised by him as an agent to 
 be effective at all, rests upon the party relying on the agency 
 express or implied. He who asserts agency and authority as 
 such must prove it.^^ The able opinion in this case cited in 
 this note is by Chief Justice Magruder, who learnedly and 
 exhaustively reviews the principal text writers on the subject 
 of agency relating to the case at bar. We therefore give at some 
 length the points decided, and the authorities reviewed. Au- 
 
 7 — Seymour v. Richardson Fuel- tional Bank, 126 111. 584; Republic 
 
 ing Co., 103 111. App. 625; Litch Life Ins. Co. v. Swigert, 135 111. 
 
 V. Clinch. 136 111. 410, 423, 425; 150; Hinkley v. Reed, 182 111. 
 
 Wadsworth V. Duncan, 164 111. 360- 440; Weill v. Zache, 92 111. App. 
 
 366; Smith v. Henline, 174 111. 296; Ross v. Saylor, 104 111. App. 
 
 200; The "Benefactor," 103 U. S. 19. 
 
 239; The "Puritan," 94 Fed. Rep. 9— Hartford Life Ins. Co. v. 
 
 365. Sherman, 223 111. 329. 
 
 8— McNulta V. Corn Belt Bank, 10— Jackson Paper Co. v. Com- 
 
 164 111. 451 ; Darst v. Gale, 83 111. mercial National Bank, 199 111. 151. 
 137; Hanford Cil Co. v. First Na-
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 597 
 
 thority of an agent to endorse commercial paper, can only be 
 implied where the agent would be unable to perform the duties 
 of his agency without the exercise of such authority. The au- 
 thority to collect debts is not autliority to endorse hills. An 
 agency to collect bills and receipt therefor carries no implica- 
 tion of authority to endorse negotiable paper. Party relying 
 on implied authority must have knowledge of the acts. While 
 authority to endorse negotiable paper may be presumed from 
 acts of recognition in former instances, yet those acts must be 
 known to the party setting them up, and if he accepts a check 
 shown upon its face to be endorsed by an agent, he must prove 
 that the facts giving color of authority to the agent were known 
 to him. What acts not sufficient to raise inference of authority 
 to endorse checks. That a party accepting a check endorsed by 
 an agent had seen the agent at the payee's mill engaged in man- 
 aging its business, had seen him opening mail, giving orders to 
 the men and countersigning checks drawn by the treasurer of 
 the company to pay for material purchased by the agent, does 
 not justify the implication that he had authority to endorse 
 checks. Effect of possession of check. That the superintendent 
 of a manufacturing company has a check in his possession given 
 in payment for goods purchased of such company by a cus- 
 tomer, does not authorize any one to purchase or cash the same 
 for him upon his endorsement of the company's name thereon 
 by himself, as superintendent. Effect of act of certifying check. 
 By certifying a check a bank assumes the duty to pay the check 
 only to the payee or upon the payee's genuine endorsement, and 
 having direct notice of the endorser's agency from his signa- 
 ture as the payee's superintendent, it is bound to take notice 
 of the limitation of his authority. Burden of showing stranger's 
 authority to endorse check is upon party asserting it. The bur- 
 den of showing the authority of a stranger to a check to endorse 
 the same for the payee is upon the drawee, if he would escape 
 liability to pay it over again to the payee after paying it upon 
 an endorsement showing upon its face, that it was not made by
 
 598 
 
 THE LAW OF ESTATES. 
 
 the payee.** The conversations of an agent, where it is estab- 
 lished he is acting within the scope of his autliority, are held 
 competent.* 2 Presumptions relating to agents of corporations 
 are the same as relate to agents of individuals. Authority of 
 corporate officers, is limited to the business of the corporation 
 by ail officer not foreign to the corporate powers.*^ 
 
 687. Written instruments. Written proofs, or evidence, are 
 (1) Records; (2) Ancient deed of thirty years' standing which 
 prove themselves; (3) Modern deeds; (4) Other writings that 
 must be attested and verified by parol evidence of witnesses. 
 The one general rule that runs through all the doctrine of trials 
 is this, that the best evidence the nature of the case will admit 
 of shall always be required, if possible to be had; but if not 
 possible, then the best evidence that can be had shall be al- 
 lowed.** Written documents are considered primary and the 
 
 11 — The following cases support 
 the opinion in Jackson Paper Co. 
 V. Commercial National Bank, cited 
 as note (10): Parsons on Con- 
 tracts, Vol. 1, 6th ed., p. 62; 
 Mechem on Agency, sees. 389-392; 
 Daniel on Negotiable Instruments, 
 Vol. 1, 4th ed., sees. 292, 293; 1 
 Am. & Eng. Ency. of Law, 2d ed., 
 p. 1002; Boord v. M. Ferst's Sons & 
 Co., 39 Fla. 381; Gregory v. Loose, 
 19 Wash. 599; Dodge v. National 
 Exchange Bank, 30 Ohio St. 1; 
 Doubleday v. Kress, 50 N. Y. 410; 
 Smith V. Co-operative Dress Assn., 
 12 Daly 304; Atkinson v. St. Croix 
 Manf. Co., 24 Me. 176; Middlesex 
 County Bank v. Hirsch Bros., 24 
 N. Y. St. 297; Graham v. United 
 States Savings Inst, 46 Mo. 186; 
 Smith V. Gibson, 6 Blackf. 370; 
 Railway Equipment and P. Co. v. 
 Bank, 82 Hun. 9; New York Iron 
 Mine v. Bank of Negaunee, 39 
 Mich. 644; Vanbibber v. Bank of 
 Louisiana, 14 La. Ann. 486; Jack- 
 
 son V. Bank, 92 Tenn, 154; Raw- 
 son V. Curtiss, 19 111. 456; Maxey 
 V. Heckethorn, 44 111.437; St. John 
 V. Redmond, 9 Porter, 432; Cash v. 
 Taylor, 8 L. J. (O. S.) 262; Chitty 
 on Bills, 13th Am. ed., pp. 41, 42; 
 Gage Hotel Co. v. Union National 
 Bank, 171 111. 531; Metropolitan 
 National Bank v. Jones, 137 111. 
 634; Chicago Electric Light Rent- 
 ing Co. V. Hutchinson, 25 111. App. 
 476; Commercial National Bank v. 
 Lincoln Fuel Co., 67 111. App. 166; 
 Beattie v. National Bank of Illi- 
 nois, 174 111. 571; Reynolds v. 
 Ferree, 86 111. 570; Schmidt v. 
 Shaver, 196 111. 115; Currie v. Syn- 
 dicate, 104 111. 168. 
 
 12— Pardridge v. Cutler, 104 111. 
 App. 104. 
 
 13 — National Bank v. Nichols 
 Shepard Co. 223 111. 41. 
 
 14 — 2 Cooley's Blackstone, p. 
 367; 1 Greenleaf on Evidence, sees. 
 21, 142, 145, 570; 1 Stark on Evi- 
 dence, sees. 93, 523; Evidence by
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 599 
 
 best evidence; such afford the greatest certainty of the fact in 
 question. The instrument in writing being always regarded by 
 the courts as the primary or best possible evidence of its ex- 
 istence and contents. If the execution of an instrument is to 
 be proved, the primary evidence is the testimony of the sub- 
 scribing witness, if there be one. Until it is shown that the pro- 
 duction of the primary evidence is out of the party's power, no 
 other proof of the fact is in general admitted. All evidence 
 falling short of this degree is termed "secondary." The dis- 
 tinction refers to the "quality" and not to the strength of the 
 proof. 1^ "Where a person is proved to have destroyed any writ- 
 ten instrument, ' * a presumption will arise, that, if the truth had 
 appeared, it would have been against his interest, and his con- 
 duct is attributable to his knowledge of the circumstances. The 
 general rule is: Omnia praesumuntur contra spoliatorem."^^ 
 An altered instrument should not be admitted as evidence until 
 it is shown that all the material alterations or interlineations 
 were made before its execution.^ ''' Where alterations were 
 proved to have been made to the entries in a family Bible, such 
 was held, not to establish the fact of heirship, where one claimed 
 to be an adopted daughter under such altered entry, changing 
 the word "only" to "adopted" and where part of the writing 
 was missing. The court holding in such ease, a child taken by 
 a husband and wife and raised and treated by them as their 
 daughter, but not legally adopted by them, cannot inherit from 
 them as heir.i^ The law charges a party with notice of the con- 
 tents of a letter, which has been received by him.^^ And a let- 
 ter press copy, where the foundation is properly laid and made 
 
 Cowen, Hill and Edwards, Vol. 2, 17— Landt v. McCullough, 103 111. 
 
 gees. 475, 480. App. 670, and cases cited in opin- 
 
 15 — 1 Greenleaf on Evidence, ion. 
 
 sec. 84 ; 1 Stark on Evidence, sees. 18 — Crumley v. Worden, 201 111. 
 
 641, 649. 115. 
 
 16 — Winchell v. Edwards, 57 111. 19 — Michigan Leather Co. v. Fo- 
 
 41; Downing v. Plate. 90 111. 268; ver, 104 111. App. 269; Central 
 
 Anderson v. Irwin, 101 111. 411; Lumber Co. v. Keller, 201 111. 508; 
 
 Tantor v. Keeler, 167 111. 144. Baker v. Baker, 202 111. 612.
 
 600 THE LAW OF ESTATES. 
 
 for its introduction is admissible. ^° As to the use of memoranda 
 and its effect when produced at the request of a party who 
 cross-examines as to particular interlineations contained there- 
 in. 21 Contents of minute book of a corporation must be proved 
 by such book, or a duly certified copy thereof, notwithstanding 
 such book is without the State of Illinois.22 Photographs are 
 admissible. 23 But such are incompetent when taken a long time 
 after the accident.^* 
 
 668. Book accounts. The statute relating to "evidence and 
 depositions," provides: "Where in any civil action, suit or 
 proceeding, the claim or defense is founded on a book account, 
 any party or interested person may testify to his account book, 
 and the items therein contained; that the same is a book of 
 original entries, and that the entries therein made were made 
 by himself, and are true and just; or that the same were made 
 by a deceased person, or by a disinterested person, a non-resi- 
 dent of the State at the time of the trial, and were made by 
 such deceased or non-resident person in the usual course of 
 trade, and of his duty or employment to the party so testify- 
 ing; and thereupon the said account book and entries shall be 
 admitted as evidence in the cause. "25 Before this statute, books 
 of account were admissible only, after proof of person keeping 
 them had been made.^^ Where a party was held not to have 
 brought himself within the requirements of the statute and 
 where account books were held incompetent.^^ The common 
 
 20 — Union Surety Co. v. Tenny, dence and Deposition." Starr & 
 
 200 111. 352. Curtis Annotated Statutes of lUi- 
 
 21 — ^Railway Co. v. Story, 104 nois, with Jones & Addington's 
 
 111. App. 140. Supplements thereto. Vol. 2, p. 
 
 22— Central Electric Co. v. 1834; Vol. 4, p. 608; Vol. 5, p. 255, 
 
 Sprague Electric Co., 120 Fed. Rep. and cases cited under section of 
 
 928. statute; Kurd's R. S. of 111., 1905, 
 
 23— City of Chicago v. Vesey, 105 p. 1035. 
 
 111. App. 195; Railway Co. v. Prast, 26— Kirby v. Watt, 19 111. 393; 
 
 101 111. App. 168. Dodson v. Sears, 25 111. 513; but 
 
 24 — Railway Co. v. Corson, 198 see Ruggles v. Gratton, 50 111. 412. 
 
 111. 103. 27— Bradley v. Gardner, 87 111. 
 
 25— Section 3. chapter 51, "Evi- App. 405; McDavid v. Ellis, 78 111.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 601 
 
 law is not abrogated, but enlarged under this statute.^s "Where 
 the witness states, that the accounts are correct, it is sufficient.^^ 
 Where book of accounts between parties, were made by one 
 party in the presence of the other, they are competent to show 
 the state of the account.^'^ If person who made entries in book 
 account has no personal knowledge of their correctness, the ac- 
 count must be proved by persons furnishing the items in the 
 book, or by other satisfactory evidence.^^ And this rule is ap- 
 plied to depositions on motion to strike out.32 The contents 
 of book accounts cannot be stated; if such are competent, the 
 book itself should be received as evidence.^^ The entries in book 
 account of **cash" or ** check" charged, without connecting 
 such charge with the particular transaction, does not indicate 
 the charge represented the loan of that much money .^^ Where 
 book entitled "Record of Sales" contained no charges, it was 
 held inadmissible as original evidence.^^ g^^ inventories proved 
 to have been correctly made from original notations that were 
 subsequently lost or destroyed, were held to be competent.^^ 
 And also entries in book made from time slips, the day after 
 the work was done, were held competent evidence, and admis- 
 sible.37 
 
 669. Compulsory production of books for inspection. The 
 
 statute giving a right to the inspection of books in certain cases 
 
 App. 383; Chisolm v. Beaman Ma- 538; Redlich v. Bauerlee, 98 111. 
 
 chine Co., 160 III. 113; Marshall v. 134; Lowenthal v. McCormick, 101 
 
 Coleman, 187 111. 58. 111. 143. 
 
 28— Weigle v. Brautigaam, 74 111. 32— Boyd v. Yerkes, 25 111. App. 
 
 App. 291; Bank v. Elledge, 99 111. 527. 
 
 App. 308; BDOks v. Funk, 85 111. 33— Schotte v. Puscheck, 79 111. 
 
 App. 633. App. 53; Huddleson v. McCollum, 
 
 29— Presbyterian Church v. Em- 103 111. App. 409. 
 
 merson, 66 111. 269; Ailing v. 34— Rothchild v. Sessel, 103 III. 
 
 Brazee, 27 111. App. 595. App. 283. 
 
 30— McDavid v. Ellis, 78 111. 35— €airnes v. Hunt, 78 111. App. 
 
 App. 383. 422. 
 
 31 — Stettauer v. White, 98 111. 36 — Railroad Co. v. American 
 
 72; Sexton v. Brown, 36 111. App. Strawboard Co., 190 111. 270. 
 
 281; Hovey v. Thompson, 37 111. 37 — Chisolm v. Beaman Ma- 
 chine Co., 160 111. 113.
 
 602 THE LAW OF ESTATES. 
 
 and under certain conditions, upon application to the court, vest 
 in such court a discretion and a power, to make such order with 
 restriction such as the court may see fit to direct, within such 
 exercise of legal discretion. And in a case where an order to 
 inspect books and papers was granted, the court in its order 
 provided for the sealing up of parts of the items in the books, 
 considered by the court, in the exercise of its discretion irrele- 
 vant to the issue in the cause before it; and this exercise of dis- 
 cretion was sustained by the Appellate Court.^^ The memory 
 of a witness may be refreshed by a party testifying for himself 
 by referring to copies of entries in his books of account ; but he 
 will not be permitted to read from such copies.^^ Where books 
 of account are kept by a party, or under his supervision, en- 
 tries made therein are competent as admissions of the matter 
 stated.40 
 
 670. Surviving partner — contract with deceased agent. The 
 
 act relating to evidence, provides: "In any action, suit or 
 proceeding by or against any surviving partner or partners, 
 joint contractor or joint contractors, no adverse party or per- 
 son adversely interested in the event thereof, shall, by virtue 
 of section 1 of this act, be rendered a competent witness to tes- 
 tify to any admission or conversation by any deceased partner 
 or joint contractor, unless some one or more of the surviving 
 partners or joint contractors were also present at the time of 
 such admission or conversation; and in every action, suit or 
 proceeding a party to the same who has contracted with an 
 agent of the adverse party — the agent having since died — shall 
 not be a competent witness as to any admission or conversation 
 between himself and such agent unless such admission or con- 
 versation with the said deceased agent was had or made in the 
 presence of a surviving agent or agents of such adverse party, 
 and then only except where the conditions are such that under 
 
 38 — Pynchon v. Day, 18 111. App. 40 — Borrower's and Investor's 
 
 147. Building Association v. Cochrane 
 
 39— Bonnett v Glattfeldt, 120 111. 103 111. App. 34. 
 166.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 603 
 
 the provisions of section 2 and 3 of this act he would have been 
 permitted to testify if the deceased person had been a princi- 
 pal and not an agent. "^^ This section of the statute is con- 
 strued and applied in the case of Rothstein v. Siegel, Cooper 
 & Co.,'^^ where it is held: That since the enactment of this 
 section, in all suits or proceedings, a party who has contracted 
 with an agent of the adverse party, and such agent having 
 since died, is not a competent witness to any admission or con- 
 versation between himself and such agent, unless such admis- 
 sion or conversation with the said deceased agent, was had or 
 made in the presence of a surviving agent or agents of such 
 adverse party. It is also held: the holder of a policy of insur- 
 ance, is not a competent witness, as to any conversation with a 
 deceased agent of the company; but he is a competent witness 
 to testify to the situation of the contents of a building destroyed 
 by fire at the time the insurance was effected and the loss sus- 
 tained; it was error to exclude testimony for such purpose. The 
 section of the statute applies to actions on penal bonds as well 
 as contracts.'*^ And in an action of replevin, to recover goods 
 from a firm, where the surviving partner of another firm pre- 
 viously owned the goods sought to be replevined, was a member 
 at the time suit was brought of such firm, it was held, the plain- 
 tiff was not competent as a witness to state admissions by the 
 deceased member of such former firm, touching an alleged sale 
 to the plaintiff.44 
 
 671. Husband — wife. ''No husband or wife shall, by virtue 
 of section 1 of this act, be rendered competent to testify for or 
 against each other as to any transaction or conversation occur- 
 
 41 — Section 4, chapter 51, "Evi- cited under section of statute; 
 
 dence and Depositions," as amend- Kurd's R. S. of III., 1905, p. 1035. 
 
 ed by law of 1S99, p. 216. Ap- 42—102 111. App. 601; Zeigler v. 
 
 proved April 24, 1899; in force Clinton Mut. Fire Ins. Co., 84 II?. ' 
 
 July 1, 1889. Starr & Curtis Anno- App. 444. 
 
 tated Statutes of Illinois, with 43— Henry v. Tiffany, 5 111. App. 
 
 Jones & Addington's Supplements 548. 
 
 thereto, Vol. 2, p. 1836; Vol. 4, pp. 44— Foster v. Hart, 29 111. App. 
 
 608, 609; Vol. 5, p. 255, and cases 260.
 
 604 THE LAW OF ESTATES. 
 
 ring during the marriage, whether called as a witness during 
 the existence of the marriage, or after its dissolution, except 
 in cases where the wife would, if unmarried, be plaintiff or de- 
 fendant, or where the cause of action grows out of a personal 
 Avrong or injury done by one to the other or grows out of the 
 neglect of the husband to furnish the wife with a suitable sup- 
 port; and except in cases where the litigation shall be concern- 
 ing the separate property of the wife, and suits for divorce; 
 and except also in actions upon policies of insurance of prop- 
 erty, so far as relates to the amount and value of the property 
 alleged to be injured or destroyed, or in actions against carriers, 
 so far as relates to the loss of property and the amount and 
 value thereof, or in all matters of business transactions where 
 the transaction was had and conducted by such married woman 
 as the agent of her husband, in all of which cases the husband 
 and wife may testify for or against each other, in the same 
 manner as other parties may, under the provisions of this act: 
 Provided, that nothing in this section contained shall be con- 
 strued to authorize or permit any such husband or wife to tes- 
 tify to any admission or conversation of the other, whether 
 made by him to her or by her to him, or by either to third per- 
 sons, except in suits or causes between such husband and 
 wife. "45 
 
 672. Reference and application in general of said section 5 
 of the statute. This section never renders witness competent 
 who is incompetent under sections 1 and 2 of the act relating 
 to evidence. But a witness who is competent to testify under 
 said sections 1 and 2 may be incompetent under section 5 of the 
 same act.^^ The parties in order to be competent must bring 
 
 45— Section 5, chapter 51, "Evi- 4, p. 609; Vol. 5, p. 255, and cases 
 
 dence and Depositions," as amend- cited under section of statute; 
 
 ed by laws of 1873-4, p. 98, sec. 1. Hurd's R. S. of 111., 1905, p. 1035. 
 
 Approved January 21, 1874. In 46— Pyle v. Oustatt, 92 111., 209, 
 
 force July 1, 1874. Starr & Cur- 215-217; Connolley v. Dunn, 73 111. 
 
 tis Annotated Statutes of Illinois, 218; Mitchinson v. Cross, 58 111. 
 
 with Jones & Addington's Supple- 366; Deniston v. Hoagland, 67 111. 
 
 ments thereto, Vol. 2, p. 1837; Vol. 265.
 
 EVIDENCE AND DEPOSITIOKS. UNDER STATUTE. 605 
 
 themselves within the statute.*'^ When husband is not a party 
 to the suit, although interested in the event thereof, the wife 
 is a competent witness.^^ Where neither husband nor wife are 
 parties to a suit, the wife may testify to conversations occurring 
 during marriage.*^ The general rule is held to be, that a wife 
 can be a witness in all cases in which her husband could be a 
 witness.50 In a suit by a wife for malicious prosecu- 
 tion, her husband is a competent witness.^^ In an action for 
 slander, the husband of a plaintiff, is a competent witness on 
 the part of the wife for slanderous words spoken of her. But 
 the wife of a defendant is not a competent witness for him, in 
 an action for slanderous words spoken by him of the plaintiff.'^ ^ 
 The principle invoked, deducible from the statutory right con- 
 ferred, is to the effect that the "right of action" is property, 
 and, being the separate property of the husband or wife as the 
 case may be, it is the exact case specified in the statute, when 
 the husband and wife may testify for and against each other 
 the same as other parties.^^ A divorced wife may testify to 
 facts occurring after, but not before divorce in an action for 
 seduction.^* In a bill in chancery to set aside a sale of an in- 
 terest in an estate, it is held: Husband and wife are competent 
 witnesses for and against each other only in the cases mentioned 
 in the exceptions to section 5 of the act relating to evidence. 
 The words, "except in cases where the wife would, if unmar- 
 ried, be plaintiff or defendant," do not have reference to cases 
 where the wife is subsequently divorced, or where her husband 
 has died, but simply to cases where the proposed witness has 
 
 47 — Flynn v. Gardner, 3 111. App. 51 — Anderson v. Friend, 71 III. 
 
 253. 175 
 
 48 — Lincoln Ave. G. R. Co. v. 52 — Hawver v. Hawver, 78 111. 
 
 Dadans, 102 111. 417. 412; Anderson v. Friend, 71 111. 
 
 49 — Galbraith v. McLain, 84 111. 475; Chicago, Burlington & Quincy 
 
 ■^19. R. R. V. Dunn, 52 III. 260. 
 
 50—111. Cent. R. R. Co. v. Tay- 53— Otis v. Spencer, 102 111.622; 
 
 lor, 24 111. 323; Freeman v. Free- Munford v. Miller, 7 111. App. 62. 
 man, 62 III. 191. 54— Grose v. Rutledge, 81 111. 
 
 266.
 
 606 THE LAW OF ESTATES. 
 
 never been married, — where the controversy does not concern 
 a right resulting from marriage.^^ So in a suit by an executor, 
 the widow of deceased is not a competent witness for the ex- 
 ecutor, to prove facts which came to her knowledge in conse- 
 quence of marriage relation.^s 
 
 673. Concerning separate property of wife — husband and 
 wife may be witness for and against each other. Where an 
 action was commenced by the husband against a transportation 
 company, upon a receipt given by it to him for his wife's prop- 
 erty; and, the suit relates to the wearing apparel and orna- 
 ments of the wife, it was held: The wife was interested in the 
 property involved in the suit, which rendered her a competent 
 witness, under the exception to the 5th section of the act relat- 
 ing to evidence, which declares, that, where the suit relates to 
 the separate property of the wife, either the husband or wife 
 may be a witness. ^^ 
 
 674. Husband and wife agents for each other. The wife's 
 competency to testify for her husband, as his agent in a trans- 
 action is limited by the extent of her agency; if competent to 
 testify as an agent to the whole transaction, she will be per- 
 mitted to do so. If her agency only extends to a part of a trans- 
 action,- she is a competent witness only as to that part.^^ In an 
 
 55— Smith v. Long, 106 111. 485. 111. App. 87; Brewing Co. v. Ohler- 
 
 56— Reeves v. Herr, 59 111. 8L king, 33 111. App. 356; Trealeaven 
 
 57 — Northern Line Packet Co. v. v. Dixon, 119 111. 549; Lingren v. 
 
 Shearer, 61 111. 263. And see the Ry. Co., 61 111. App. 176; Pain v. 
 
 following cases, which apply the Farson, 179 111. 196; Pfirshing v. 
 
 statute and sustain the text: Heiter, 91 111. App. 410; Smith v. 
 
 Mitchell V. McDougal, 62 111. 498; Smith, 168 IH. 490; Clark v. Peo- 
 
 Kebaum v. Cordell, 63 111. 23; Big- pie, 178 111. 42; Gillespie v. Gilles- 
 
 gins V. Brackman, 63 111. 316; Mc- pie, 159 111. 90; Wilcoxon v. Read, 
 
 Nail V. Ziegler, 68 111. 224; Pigg 95 111. App. 35; Cassem v. Heustis, 
 
 V. Carroll, 89 111. 205; Marshall v. 201 111. 235. 
 
 Peck, 91 111. 187; Funk v. Eggles- 58 — Poppers v. Miller, 14 111. 
 
 ton, 92 111. 515; Mueller v. Reb- App. 87; Cent. R. R. v. Messnard, 
 
 han, 94 111. 142; Ledford v. Weber, 15 111. App. 213; Schneider v. 
 
 7 111. App. 87; Eads v. Thompson, Kabsch, 91 111. App. 387; McDavid 
 
 109 111. 87; Poppers v. Miller, 14 v. Rork, 92 111. App. 485.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 607 
 
 action of trespass by the husband against a stranger, for taking 
 and carrying away the goods of the husband, it was held, the 
 wife was in no sense the agent of her husband in the transac- 
 tion out of which the action arose; she had no interest in the 
 property taken, and had no care of it other than a wife may 
 have of any property that belonged to her husband when the 
 alleged trespass was committed. ^^ The evidence must clearly 
 establish the agency to make either the husband or wife com- 
 petent to testify .^"^ 
 
 675. Adverse party compelled to testify. Section 6 of the 
 Evidence Act, provides: "Any party to any civil action, suit 
 or proceeding, may compel any adverse party or person for 
 whose benefit such action, suit or proceeding is brought, insti- 
 tuted, prosecuted or defended, to testify as a witness at the 
 trial, or oy deposition, taken as other depositions are by law re- 
 quired, in the same manner, and subject to the same rules, as 
 other witnesses."^! 
 
 676. Incompetency not removed by release or assignment. 
 
 Section 7 of the Evidence Act, provides: "In any civil action, 
 suit or proceeding, no person who would, if a party thereto, 
 be competent to testify therein under the provisions of section 
 2 or section 3, shall become competent by resson of any assign- 
 
 59 — Hayes v. Parmalee, 79 111. cases cited under section of stat- 
 
 564. ute; Kurd's R. S. of 111., 1905, p. 
 
 60— Waggonseller v. Rexford, 2 1148. (2) Vol. 2, pp. 2155, 2156; 
 
 111. App. 455; Primmer v. Cla- Vol. 4, p. 684, "general notes"; 
 
 baugh, 78 111. 94; Trepp v. Baker, also p. 690; Vol. 5, p. 294, "gen- 
 
 78 111. 146; Hawver v. Hawver, 78 eral notes," also p. 3121. Starr & 
 
 111. 412; Wing v. Goodman, 75 111. Curtis, etc.; Kurd's (1905), pp. 
 
 159; Robertson v. Brost, 83 111. 1152, 1153. 
 
 116. See section 15, chapter 68, 61 — ^Section 6, chapter 51, "Evi- 
 
 "Husband & "Wife." Also sections dence and Depositions." Starr & 
 
 1 and 2, chapter 70, entitled "In- Curtis Annotated Statute of Illi- 
 
 juries." Starr & Curtis Annotated nois, Vol. 2, p. 1841, and cases 
 
 Statutes of Illinois, with Jones & cited; Kurd's R. S. of 111., 1905, p. 
 
 Addington's Supplements thereto, 1036. See also Thorn v. Wheeler, 
 
 Vol. 2, p. 2133; Vol. 4, p. 674, and 25 111. 544; Corderey v. Kughes, 6 
 
 111. App. 401.
 
 608 THE LAW OF ESTATES. 
 
 ment or release of his claim, made for the purpose of allowing 
 such person to testify. "^2 ^ person having an undivided inter- 
 est in fee in a tract of land, and also an estate of homestead 
 therein, on a bill filed by him to set aside an adverse title 
 against parties defending as executors and devisees, is not a 
 competent witness to testify to statements and declarations of 
 the testator in his lifetime, for the purpose of impeaching the 
 title acquired by him to the land. Nor will he be rendered com- 
 petent by any release or transfer of his interest made for that 
 purpose.^3 Under the section quoted of the Evidence Act, a 
 party does not become a competent witness by releasing or dis- 
 claiming his interest.6^ 
 
 677. Further exceptions. Section 8 of the Evidence Act, 
 provides: ''Nothing in this act contained shall in any manner 
 affect the laws now existing relating to the settlement of the 
 estate of deceased persons, infants, idiots, lunatics, distracted 
 persons, or habitual drunkards having conservators, or to the 
 acknowledgment or proof of deeds and other conveyances re- 
 lating to real estate, in order to entitle the same to be recorded, 
 or to the attestation of the execution of last wills and testaments, 
 or of any other instrument required by law to be attested.®^ 
 
 678. Production of books and v^nritings. Section 9 of the 
 Evidence Act, provides: "The several courts shall have power, 
 
 62— Section 7, chapter 51, "Evi- v. Pegram, 151 111. 106; Bardell 
 
 dence and Depositions." Starr & v. Brady, 172 111. 420; Albers Com- 
 
 Curtia Annotated Statutes of Illi- mission Co. v. Sessel, 193 111. 153. 
 
 nois, with Jones & Addington's In the latter case the section was 
 
 Supplements thereto, Vol. 2, p. applied. See also Christiansen v. 
 
 1841; Vol. 4, p. 610; Vol. 5, p. 256, Dunham Towing & Wrecking Co., 
 
 and cases cited under section of 75 111. App. 274. 
 statute; Kurd's R. S. of 111., 1905, 65— Section 8, chapter 51, "Evi- 
 
 p. 1036. dence and Depositions." Starr & 
 
 63— Deyer v. Hoplcins, 112 111. Curtis Annotated Statutes of llli- 
 
 177. nois. Vol. 2, p. 1842; Kurd's R. S. 
 
 64— Volbracht v. White, 197 111. of 111., 1905, p. 1036. See also sec- 
 
 301; Brace v. Black, 125 111. 33; tions 60, 64, chapter 3, "Adminis- 
 
 Pyle V. Pyle, 158 111. 289; Taylor tration" (ante, i6Z, 476). See also 
 
 Byers v. Thompson, 66 111. 421.
 
 EVIDENCE AND DEPOSITIONS. UNDER STATUTE. 609 
 
 in any action pending before them, upon motion, and good and 
 sufficient cause shown, and reasonable notice thereof given, to 
 require the parties, or either of them, to produce books or writ- 
 ings in their possession or power which contain evidence perti- 
 nent to the issue. "*'6 If an order for the production of books 
 and papers is entered by the court and no objection made 
 thereto, at the time of the entry of such order, it will be con- 
 sidered as entered by consent of all parties.^^ Reasonable no- 
 tice must be given, and the affidavit filed in support of such 
 notice to produce books and papers, must show such contain, 
 evidence material to the issue to be tried in the case.^^ In 
 such a proceeding the court may exercise a sound legal discre- 
 tion, by limiting the inspection to matters contained in books 
 to that only which is pertinent to the issue; it may enter an 
 order to seal up and cancel all parts of the books produced, as 
 do not relate to the matters in controversy. Such an order was 
 entered by the trial court and sustained on review, as coming 
 within the exercise of the legal discretion of the court.®® "The 
 several courts shall have power," as used in section 9 of the 
 Evidence Act, is held to mean all courts.'^'* 
 
 679. Printed statutes. Section 10 of the Evidence Act, 
 provides: "The printed statute books of the United States, 
 and of this State, and of the several States, of the Territories 
 and late Territories of the United States, purporting to be 
 printed under the authority of said United States, any State or 
 Territory, shall be evidence in all courts and places in this 
 
 66 — Section 9, chapter 51, "Evi- 68 — First National Bank v. 
 
 dence and Depositions." Starr & Mansfield, 48 III. 494; Fuller v. 
 
 Curtis Annotated Statutes of Illi- Field, 82 Fed. Rep. 815; Hoagland 
 
 nois, with Jones & Addington's v. Great Western Telegraph Co., 
 
 Supplements thereto, Vol. 2, p. 30 111. App. 304; Rigdon v. Cooley, 
 
 1842; Vol. 4, p. 610; Vol. 5, p. 256, 31 111. App. 630; Bentley v. People, 
 
 and cases cited under section of 104 111. App. 357. 
 
 statute; Kurd's R. S. of 111., 1905, 69— Pynchon v. Day, 118 111. 9. 
 
 p. 1036. 70— Bentley v. People, 104 111. 
 
 67 — Morgan v. Corlies, 81 111. App., page 356. 
 114. 
 
 39
 
 610 THE LAW OF ESTATES. 
 
 State, of the acts therein contained.""^ Courts of this State do 
 not take judicial notice of statutes of other States. "^^ Such must 
 be pleaded to be effective; but such statute is not required to 
 be pleaded Jiaec verba. It is sufficient to state the substance of 
 so much of the statute of a foreign State as is relied on.'^s The 
 statutes of a sister State cannot be proven by testimony of wit- 
 nesses.^^ But judicial notice will be taken by the United States 
 courts of all public statutes of the States.'^^ Effect is given 
 to section 10 of the Evidence Act as above quoted in the case of 
 Grand Pass SJiooting Cluh v. Croshy."'^ In that case a deed 
 was offered in evidence, acknowledged before a Notary Public 
 of Indiana. It was urged that the certificate was not in com- 
 pliance with the forms of acknowledgment required by the laws 
 of Illinois. To support the deed the plaintiff offered in evi- 
 dence a copy of a supplement to a revision of the Statutes of 
 Indiana, which appeared to be published by authority of the 
 General Assembly of the State of Indiana. Held: Sufficiently 
 proven under section 10 aforesaid of the Illinois statute. In 
 the case of Figge v. Rowlen,'^'^ an affidavit, sworn to before a 
 Notary in Ohio, which did not contain a certificate "that Notary 
 was authorized under laws of Ohio to administer oaths" held 
 sufficiently proven, as the true meaning or construction of the 
 statute of a foreign State, as declared by the courts of last re- 
 sort of such State, may be proven by books of reports of deci- 
 
 71 — Section 10, chapter 51, "Evi- question should contain to be ad- 
 dence and Depositions." Starr & missible in evidence, see La Fay- 
 Curtis Annotated Statutes of Illi- ette Bank v. Stone, 1 Scam. (111.) 
 aois, with Jones & Addington's 424; Sick v. Woodruff, 15 111. 15; 
 Supplements thereto, Vol. 2, p. Spangler v. Jacoby, 14 111. 297. 
 1843; Vol. 4, p. 610, and cases cited 74— McDeed v. McDeed, 67 111. 
 under section of statute; Kurd's 545 
 R. S. of 111., 1905, p. 1036. 75— Gormley v. Bunyan, 138 U. 
 
 72— Pease v. Rhawn, 13 111. App. S. 623. 
 
 637. 76—181 111. 269-270. 
 
 73— L. N. A. Ry. Co. v. Shires. 77—185 111. 238. Section 12, 
 
 108 111. 628-629; Eagan v. Connolly, chapter 51, "Evidence and Deposi- 
 
 107 111. 458. As to what authen- tions." See statute citations note 
 
 ticated copy under statute in 83. Post 681.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 611 
 
 sions of such coui-ts purporting to be published by authority; 
 or by the testimony of witnesses learned in the law of such 
 StateJ^ Proof of a foreign law should be made to the court 
 and not to the jury.^^ 
 
 680. Exemplified statutes. Section 11 of the Evidence Act, 
 provides: **An exemplification by the Secretary of this State, 
 of the laws of the other States and Territories, which have been 
 or shall hereafter be transmitted, by order of the executive or 
 legislatures of such other States or Territories, to the Governor 
 of this State, and by him deposited in the office of said Secre- 
 tary', shall be admissible in evidence in any court of this 
 State, "s^ The certificate of the Secretary of State that it ap- 
 pears, from the records of his office, that the Governor on a 
 certain day appointed A, B, and C trustees, to take charge of 
 the assets of the State Bank, as provided by law, is clearly in- 
 admissible to prove the fact of such appointment. The Secre- 
 tary should have certified to a transcript of the record showing 
 the appointment.^^ The courts of this State will not take judi- 
 cial notice of the statutes of other States changing the common 
 law, and, in the absence of proof to the contrary, will presume 
 that the common law is in force in such States.^- 
 
 681. Reports of courts. Section 12 of the Evidence Act, 
 provides: "The books of reports of decisions of the Supreme 
 Court, and other courts of the United States, of this State, and 
 of the several States and the Territories thereof, purporting to 
 be published by authority, may be read as evidence of the deci- 
 sions of such courts. "83 
 
 78— Figg V. Rowlen, 185 111. 238. 81— Colder v. Bressler, 105 111. 
 
 79 — Christiansen v. Graves App. 419. 
 
 Tank Works, 223 111. 142. 82— Tinkler v. Cox, 68 111. 120. 
 
 80 — Section 11, chapter 51, "Evi- 83 — Section 12, chapter 51, "Evi- 
 dence and Depositions." Starr & dence and Depositions." Starr & 
 Curtis Annotated Statutes of Illi- Curtis Annotated Statutes of Illi- 
 nois, Vol. 2, p. 1844, and cases nois, with Jones & Addington's 
 cited; Kurd's R. S. of III. 1905, p. Supplements thereto, Vol. 2, p. 
 1036. 1844; Vol. 4, p. 610, and cases
 
 612 THE LAW OF ESTATES. 
 
 682. Court records — how certified. Section 13 of the Evi- 
 dence Act, provides : ' ' The papers, entries and records of courts 
 may be proved by a copy thereof certified under the hand of 
 the clerk of the court having the custody thereof, and the seal 
 of the court, or by the judge of the court if there be no clerk. "^^ 
 The court takes judicial notice of its own records without 
 proof.^^ Judicial record is admissible to prove itself, and this, 
 notwithstanding, the court in which the cause is pending is not 
 entitled to the custody, or whether such record is or is not prop- 
 erly brought into court.^*^ Court records may be proved by the 
 production of the original records.^'^ The certificate of official 
 should recite facts and is bound to record a fact, not conclusions. 
 The proper proof is a copy of the record duly authenticated.^^ 
 Foreign judgments as well as domestic ones, may be authenti- 
 cated as provided in section quoted.^ ^ Certified copy of patent 
 office record, admissible to establish a prima facie assignment 
 of patent^o 
 
 683. Records of cities — how certified. Section 14 of the 
 Evidence Act, provides: "The papers, entries, records and 
 ordinances, or parts thereof, of any city, village, town or 
 county, may be proved by a copy thereof, certified under the 
 hand of the clerk or the keeper thereof, and the corporate seal, 
 
 cited; Kurd's R. S. of 111., 1905, 87— Walker v. Doan, 108 111. 236. 
 
 p. 1036. 88— Steidel v. People, 173 111. 
 
 84 — Section 13, chapter 51, 33; Schaefer v. Wundene, 154 111. 
 
 "Evidence and Depositions." Starr 577; City of Chicago v. English, 
 
 & Curtis Annotated Statutes of 180 111. 476. 
 
 Illinois, with Jones & Addington's 89 — People v. Miller, 195 111. 
 
 Supplements thereto. Vol. 2, p. 624; Calhoun v. Ross, 60 111. App. 
 
 1844; Vol. 4, p. 610, and cases 312; Horner v. Spellman, 78 111. 
 
 cited; Hurd's R. S. of 111., 1905, 206; Thompson v. Mason, 4 111. 
 
 p. 1036. App. 452; Welch v. Sykes, 8 III. 
 
 85— Robinson v. Brown, 82 111. (3 Gilm.) 197. 
 
 279; Evans v. People, 27 111. App. 90 — Standard Elevator Co. v. 
 
 616. Crane Elevator Co., 76 Fed. Rep. 
 
 86— Stevison v. Earnest, 80 111. 793; National Cash Register Co, v. 
 
 517. Navy Cash Register Co., 99 Fed. 
 
 Rep. 89.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 613 
 
 if there be any; if not, under his hand and private seal. "^^ 
 Copy proves what original would.^^ Certificate must be ap- 
 pended to contents of record and not be merely placed to con- 
 clusions drawn from such record by the officer making the 
 same.^3 Objection to certified copy of record cannot first be 
 raised on appeal.^* The city ordinance of a sister State may 
 be proved by the original record or a sworn copy of it.^^ Where 
 the statute provides that proof of the publication of an ordi- 
 nance shall not be required until denied under oath, positive 
 denial is necessary; denial by information and belief is not 
 sufficient.^^ And where the law requires a record to be kept 
 of corporate action by any of the agencies of the State, the rec- 
 ord alone can be resorted to, to establish such action in all, col- 
 lateral proceedings.^^ 
 
 684. Records of private corporations — how certified. Sec- 
 tion 15 of the Evidence Act, provides: "The papers, entries 
 and records of any corporation or incorporated association, may 
 be proved by a copy thereof, certified under the hand of the 
 secretary, clerk, cashier or other keeper of the same. If the 
 corporation or incorporated association has a seal, the same 
 shall be affixed to such certificate. ' '^^ The records of a building 
 and loan association, are susceptible of proof in various ways: 
 from the by-laws, from the action of the board of directors, 
 from the methods of exacting payment of dues, interest and 
 penalties; its methods of loaning money, etc., and proof can be 
 made under section 15 and 18 of the act in relation to evidence 
 
 91 — Section 14, chapter 51, "City and Village Act." Kurd's R. 
 
 "Evidence and Depositions." Starr S. of 1905; see also Railroad Co. 
 
 & Curtis Annotated Statutes of v. Winters, 175 111. 293; Railroad 
 
 Illinois, with Jones & Addington's Co. v. Eggermann, 161 111. 159; 
 
 Supplements thereto. Vol. 2 p. Billings v. City of Chicago, 167 
 
 1845; Vol. 4, p 610; Vol. 5, p. 256, 111. 344; Railroad Co. v. Binder, 
 
 and cases cited; Kurd's R. S. of 69 III. App. 267. 
 111., 1905 p. 1036. 93— €ity of Chicago v. English, 
 
 92— Schoot V. People, 89 111. 180 111. 476; Steidel v. People, 173 
 
 195; see section 20, chapter 24, 111. 33; Boyd v. Railroad Co., 103 
 
 111. App. 202.
 
 614 THE LAW OF ESTATES. 
 
 and depositions,^^ A pamphlet purporting to be a copy of the 
 by-laws of the order of "Foresters" is inadmissible unless 
 proved as provided by section 15 or 18 of Chapter 51 entitled 
 "Evidence and Depositions. "^ 
 
 685. Form of certificate. Section 16 of the Evidence Act, 
 provides: "The certificate of any such clerk of a court, city, 
 village, town, county, or secretary, clerk, cashier, or other keeper 
 of any such papers, entries, records or ordinances, shall contain 
 a statement that such person is the keeper of the same and if 
 there is no seal, shall so state.- As affecting a foreign record 
 of a judgment, the certificate failed to state, that such person 
 certifying such record was the keeper of the same; and this 
 omission rendered papers inadmissible.^ Where the corporation 
 was named by initials in the certificate, oral testimony was ad- 
 mitted to establish the meaning of such, it was held: Objection 
 thereto on that ground was not valid.^ But objection if any, 
 to a certificate must be specific, if not so, it is not well taken 
 and the court in reviewing the record will not consider any ob- 
 jection not specific."^ 
 
 94 — Deuterman v. Ruppel, 200 der of Forrester's v. Heath, 80 III. 
 
 111. 201. App. 239; Lloyd v. Knights of 
 
 95— L. N. A. Ry. Co. v. Shires, Pythias, 98 Fed. Rep. 69. 
 
 108 111. 617. 2— Section 16, chapter 51, 
 
 96 — Lynch v. City of Litchfield, "Evidence and Depositions." Starr 
 
 16 111. App. 612. & Curtis Annotated Statiites of 
 
 97 — People v. Madison Co. 125 Illinois, with Jones & Addington's 
 
 111. 334. Supplements thereto. Vol. 2, p. 
 
 98 — Section 15, chapter 51, 1846; Vol. 4, p. 611, and cases 
 
 "Evidence and Depositions." Starr cited; Kurd's R. S. of 111., 1905, 
 
 & Curtis Annotated Statutes of p. 1037. 
 
 Illinois, with Jones & Addington's 3 — Thompson v. Mason, 4 111. 
 
 Supplements thereto. Vol. 2, p. App. 452; Campbell v. Miller, 84 
 
 1846; Vol. 4, p. 611, and cases 111. App. 214. 
 
 cited; Kurd's R. S. of 111., 1905, 4— Phillips v. Webster, 85 111. 
 
 p. 1036. 146. 
 
 99— Post 687; Cantwell v. 5 — Ewart v. Village of Western 
 
 Welch Receiver, 187 111. 275. Springs, 180 111. 332; Cantwell v. 
 
 1— Statute cited note (98); Or- Welch, 187 111. 279.
 
 EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 616 
 
 686. Records of justices of the peace — certified copies. Sec- 
 tion 17 of the Evidence Act, provides: "The proceedings and 
 judgments before justices of the peace may be proved by a cer- 
 tified copy thereof, under the hand and private seal of the jus- 
 tice before whom such proceeding or judgment is had, or his 
 successor, having the custody of the same. When such certified 
 copy is to be used as evidence in any county other than that in 
 which the justice so certifying resides, the certificate of the 
 county clerk shall be annexed, certifying that the justice before 
 whom the proceeding or judgment was had was, at the time such 
 proceeding or judgment was had, a justice of the peace, duly 
 commissioned, and if the certificate is by a successor, that he 
 was such successor at the time of making such certificate."* 
 Where a certified copy of a judgment of a justice of the peace 
 of another State was offered in evidence, it was held the party 
 entitled to introduce such evidence, must prove that such jus- 
 tice had jurisdiction of the subject-matter of the suit.'^ The 
 judgment may be proved by original docket of justice within 
 the county and State without resort to certified copy of the 
 record of his docket.^ A record to which was attached the cer- 
 tificate of the justice of the peace, but certificate of the county 
 clerk as required by statute entirely omitted, held inadmissible 
 in evidence.^ 
 
 687. Sworn copies — false certificate — penalty. Section 18 
 of the Evidence Act, provides: **Any such papers, entries, 
 records and ordinances may be proved by copies examined and 
 sworn to by credible witnesses." Section 19. **If any such 
 officer, clerk, secretary, cashier, justice of the peace, or other 
 person authorised to certify copies of any papers, entries, rec- 
 
 6 — Section 17, chapter 51, 7 — Trader v. McKee, 1 Scam. 
 
 "Evidence and Depositions." Starr (III.) 558. 
 
 & Curtis Annotated Statutes of 8 — Willoughby v. Dewey, 54 
 
 Illinois, Vol. 2, p. 1846, and cases 111. 266. 
 
 cited; Kurd's R. S. of 111., 1905, 9— Crossett v. Owens, 110 UL 
 
 p. 1037. 378.
 
 616 
 
 THE LAW OF ESTATES. 
 
 ©rds or ordinances, shall knowingly make a false certificate, he 
 shall be punishable in the same manner as if he were guilty of 
 perjury. "10 
 
 10 — Sections 18 and 19, chapter 
 51, "Evidence and Depositions." 
 Starr & Curtis Annotated Statutes 
 of Illinois, with Jones & Adding- 
 ton's Supplements thereto. Vol. 2, 
 p. 1847; Vol. 4, p. 611; Kurd's R. 
 S. of 111., 1905, p. 1037. 
 
 If a person in official station is 
 bound to record a fact, the proper 
 proof is a copy of the record duly 
 authenticated; but as to matters 
 
 of fact such is not in duty bound 
 to record, his certificate, being 
 extra-official, is merely the state- 
 ment of a private person, and will 
 therefore be rejected. Schaefer v. 
 Wunderle, 154 111. 577. The evi- 
 dence provided for in Section 18, 
 is original, and when such exists 
 of record, secondary evidence can 
 not be resorted to. Mandel v. 
 Swan, etc., Co., 154 111. 177.
 
 CHAPTER XXXVIII 
 
 APPRENTICES 
 
 Sec, 
 
 688. Introductory remarks. 
 
 689. Who may bind. 
 
 690. Finding of drunkenness and 
 
 disability of parentsi, 
 whose consent is required. 
 Indorsement of indenture. 
 
 691. Power of executors under 
 
 will. 
 
 692. Beggars, pauper children, 
 
 arrest of such — Binding 
 same. 
 
 693. Indentures, age and time of 
 
 service. What indenture 
 shall provide. 
 
 694. Rights of the parties. 
 
 Sec. 
 
 695. Compensation to be specified 
 
 and secured to minor. 
 
 696. When indenture to be filed, 
 
 void indenture. Duty of of- 
 ficers. 
 
 697. Complaints against master. 
 
 698. Removing apprentice out of 
 
 the State. 
 
 699. Removal of master. When ap- 
 
 prentice discharged. 
 
 700. Death of master. 
 
 701. Enticing away apprentice, 
 
 penalty. 
 
 702. Action measure of damages, 
 
 for enticing away. 
 
 Sec. 688. Introductory remarks. Apprentices are termed 
 in law, a class of infant servants, who are legally bound to 
 service for a term of years to learn some art or trade. The 
 term is applied to infant males under twenty-one years of age; 
 and to unmarried females under eighteen years of age.* Ap- 
 prentices are generally bound by a statutory form of indenture ; 
 under which, the apprentice by his or her own free will, or by 
 their own act (if not paupers), and with the consent of their 
 father, or mother, or guardian or testamentary executor; and 
 in some instances such are bound under authority vesting by 
 legislative enactment in a justice of the peace, a judge of a 
 court of record or other specially authorized public official of 
 the different States. In order to bind the apprentice it is neces- 
 sary that the statutory requirements be substantially if not 
 strictly followed.- "Children under the age of sixteen years 
 
 1—2 Kents Com. section 263. 2— Page v. Marsh, 36 N. H. 305. 
 
 617
 
 618 THE LAW OF ESTATES. 
 
 may be bound as apprentices, clerks or servants, until they ar- 
 rive at that age, with or without their consent. "^ And this has 
 been the law of this State since the revision of 1874. Under 
 the statute of 1845, the infant could be bound without their 
 consent under fourteen years; at which age, they might be 
 bound with their consent, if males, till the age of twenty-one 
 years, and females till the age of eighteen years.^ The several 
 States of the Union by statutory enactment, have in a great 
 measure, protected the infant from abuse and imposition by 
 those having their care and custody. Wilful and unnecessary 
 exposure to the inclemency of the weather, employment of such 
 in any manner injurious to health or morals; or the employ- 
 ment of such in any manner dangerous to the limbs or the 
 physical body is strictly forbidden under the criminal code of 
 Illinois.^ 
 
 689. Who may bind. The statute of Illinois relating to 
 "Apprentices" provides: "A minor may be bound as afore- 
 said by the father with the consent of the mother, or in case 
 of the death, habitual drunkenness, prostitution, imprisonment 
 in the penitentiary or incapacity of the mother, or wilful de- 
 sertion of the family for six months, without her consent; or, 
 in case of the death, habitual drunkenness, imprisonment in the 
 penitentiary or incapacity of the father, or his desertion of 
 the family for the space of six months, by the mother; or, in 
 case neither father nor mother is living and free from said 
 objections, by the gl^ardian; or if the minor has no parent or 
 guardian, by the judge of the County or Circuit Court of the 
 county in which the minor resides. An illegitimate may be 
 
 3 — Section 1, chapter 9, "Ap- 5 — Starr & Curtis Annotated 
 
 prentices." Starr & Curtis An- Statutes of Illinois, par. 492, 
 
 notated Statutes of Illinois, Vol. section 42a, approved and in 
 
 1, p. 423, Kurd's R. S. of 111., 1905, force July 1, 1895, chapter 38, 
 
 p. 160. Criminal Code of Illinois, Forbid- 
 
 4 — Same statute citation as ding certain employment of chil- 
 
 note 3. dren; Kurd's R. S. of 111., 1905. 
 
 p. 754.
 
 APPRENTICES. 619 
 
 bound by his or her mother, during the lifetime of the putative 
 father, as well as after his decease."^ 
 
 690. Finding of drunkenness and disability of parents, 
 whose consent is required — indorsement on indenture. Section 
 3 of the same act, provides : ' ' The fact of such habitual drunk- 
 enness, prostitution, imprisonment, incapacity or desertion, may 
 be tried and found by a jury to be impaneled for that purpose 
 by the County or Circuit Court of the county in which the 
 minor resides, upon such reasonable notice to the parties inter- 
 ested, by personal service or advertisement, as the court shall 
 direct. ' * Section 4. ' ' The finding of the jury shall be indorsed 
 upon the indenture by the judge, attested by the clerk, under 
 the seal of the court, and shall be deemed sufficient evidence of 
 the facts found. "^ 
 
 691. Power of executors under will. Section 5 of the same 
 act, provides: "The executor or executors who are, or shall 
 be, by the last will and testament of a father, directed to bring 
 up his child to some trade or calling, shall have power to bind 
 such child by indenture, in like manner as the father, if living, 
 might have done; or shall raise such child according to such 
 directions: Provided, this section shall not be so construed as 
 to deprive the mother of the custody and tuition of her child, 
 without her consent, if she be a fit and competent person to 
 have such custody and tuition.^ 
 
 692. Beggars — pauper children — arrest of such — binding 
 same. Section 6. "Any child under the age of sixteen, who 
 habitually begs for alms, or who is, or either of whose parents 
 is chargeable to the county or town as having a lawful settle- 
 
 6 — Section 2, chapter 9, "Ap- Annotated Statutes of Illinois, 
 
 prentices." Starr & Curtis Anno- Vol. 1, pp. 423, 424; Kurd's R. S. 
 
 tated Statutes of Illinois, Vol. 1, of 111., 1905, p. 160. 
 
 p. 423; Kurd's R. S. of 111., 1905, 8— Section 5, chapter 9, "Ap- 
 
 p. 160. prentices." Starr & Curtis Anno- 
 
 7 — Sections 3 and 4, chapter 9, tated Statutes of Illinois, Vol. 1, 
 
 "Apprentices." Starr & Curtis p. 424. Kurd's R. S. of 111., 1905, 
 
 p. 160.
 
 620 THE LAW OF ESTATES. 
 
 ment therein, whereby the child has also to be supported, or 
 who is supported there, in whole or in part, at the charge of the 
 county or town, may be bound as an apprentice, clerk or servant 
 until he or she arrives at that age, by the county board or the 
 overseers of the poor, as the case may be, with the approval of 
 the judge of the County or Circuit Court. "^ Section 7. "The 
 court may on application of the county board or overseer of the 
 poor, issue a writ requiring the sheriff, coroner or any constable 
 of the county, to bring such minor before it, for the purpose of 
 being so bound. "^^ 
 
 693. Indentures — age and time of service — ^what indentures 
 shall provide. Section 8. "No minor shall be bound, unless 
 by an indenture of two parts, sealed and delivered by both par- 
 ties, and when the consent of any person or court is required, 
 the same shall be signified, in writing, in or upon the indenture, 
 and signed by the person or judge whose consent is required." 
 Section 9. "The age and time of service of every apprentice 
 or servant shall be inserted in such indentures; but if the age 
 is unknown, then it shall be inserted according to the best in- 
 formation, which age shall, in relation to the term of service, 
 be taken as the true age of such minor. "^^ "In all indentures 
 it shall be provided that the master shall cause such clerk, ap- 
 prentice or servant to be taught to read and write, and the 
 ground (general) rules of arithmetic; and also that at the ex- 
 piration of such term of service, the master shall give to such 
 apprentice a new Bible and two complete suits of new wearing 
 apparel suitable to his or her condition in life, and twenty 
 ($20.00) dollars in money, in all cases where the term of service 
 
 9 — Section 6, chapter 9, "Ap- prentices." Starr & Curtis Anno- 
 
 prentices." Under this section of tated Statutes of Illinois, Vol. 1, 
 
 the statute, it is held that it is p. 424; Kurd's R. S. of 1905, p. 
 
 not necessary in terms to describe, 160. 
 
 in the indenture, the person so 11 — Sections 8, 9 and 10, chap- 
 bound out "is a poor child." Hayes ter 9, "Apprentices." As amended 
 V. Borders, 1 Gilm. (111.) 46. by law of 1903, May 15, 1903, page 
 
 10 — Section 7, chapter 9, "Ap- of statute same as No. 10.
 
 APPRENTICES. 621 
 
 has been one year or more. In all miu icipalities where a man- 
 ual training school is maintained for the technical instruction 
 of apprentices, such indentures shall further provide that it 
 shall be the duty of the master to cause the apprentice to at- 
 tend such school for at least three consecutive months in each 
 year, without expense to the apprentice. "^^ 
 
 694. Rights of the parties. An indenture of apprenticeship, 
 which is not in conformity with the statute on that subject, is 
 void as to the minor, but remains binding upon the father of the 
 minor who joined with him in its execution, and stipulated that 
 its conditions should be performed.^ ^ A father who is entitled 
 to the services of his minor son, and for whom he is obliged to 
 provide, may, at the common law, assign those services to an- 
 other by contract, for a consideration to enure to himself.^* 
 So where an indenture of apprenticeship was entered into by a 
 minor, his father joining therein, stipulating that the minor was 
 to perform certain services for a specified compensation, the 
 father also covenanting separately that his son should do and 
 perform what he had agreed to do on his part, it was held, that, 
 payment being made for the services of the minor according to 
 the terms of the agreement, a recovery could not be again had 
 
 12 — Amendment includes mat- of it, expressly describe and de- 
 ter after * in section 10. Starr & note who are the parties to it, (as 
 Curtis Annotated Statutes of Illi- between A. of the first part, and 
 nois. Vol. 5, p. 32; Vol. 1, pp. 424, B. of the second part) C. can- 
 425, as to sections 8 and 9; Kurd's not sue thereon, although the ob- 
 R. S. of 111., 1905, pp. 160, 161. The ligation purport to be made for 
 fact that a person is an inden- his sole advantage, and contain 
 tured servant cannot be proved by an express covenant with him to 
 parol, the indenture itself must be perform an act for his benefit, 
 used as the higher and better Hager v. Phillips, 14 111. 259. 
 evidence. Chambers v. People, 4 13 — Day v Everett, 7 Mass. 154; 
 Scam. (111.) p. 351. In the fol- Butler v. Hubbard, 5 Pick, 250; 
 lowing case an action of covenant United States v. Bainbridge, 1 
 was brought, the declaration being Mason, 71-78; Branch v. Ewing- 
 on an indenture of apprenticeship, ton, 2 Doug. 518; Cuming v. Hill, 
 for breach of covenants therein. 3 Barn & Aid, 59; Ford v. Mc- 
 Held in that case. If a deed be Vay, 55 111. 119. 
 inter parties, that is, on the face 14 — Ford v. McVay, 55 111. 119.
 
 622 THE LAW OP ESTATES. 
 
 for such services in the name of the minor, on the ground the in- 
 denture was void under the statute; because, as to the minor 
 and his services it was binding on the father, who was entitled to 
 such services. An implied contract cannot arise where there is a 
 subsisting express contract covering the entire subject matter.^^ 
 
 695. Compensation to be specified and secured to minor. 
 Section 11 of the Apprentice Act, provides: "Every sum of 
 money paid or agreed for, with or in relation to the binding of 
 any clerk, apprentice or servant, as a compensation for his serv- 
 ices, shall be inserted in the indentures, and all money or prop- 
 erty so paid or agreed to be paid, shall be secured to and for the 
 sole use and benefit of the minor, "i^ A right to sue upon a writ- 
 ten contract of apprenticeship, properly alleged and supported 
 by proof is fully recognized by the Illinois courts. ^'^ 
 
 696. When indenture to be filed — void indentures^ — duty of 
 ofiicers. Section 12 of the Apprentice Act provides: "When- 
 ever any minor shall be bound by other than his parent or guard- 
 ian, one copy of the indentures shall be filed in the office of the 
 clerk of the County Court, for safe keeping. "^^ Section 13. "All 
 indentures, covenants, promises and bargains, for taking, bind- 
 ing or keeping any apprentice, clerk or servant, not in conform- 
 ity with the provisions and requirements of this act, shall be 
 utterly void in law, as against such clerk, apprentice or serv- 
 ant. "^^ Section 14. "It shall be the duty of the officers or persons 
 binding such minors, and of the judge of the County or Circuit 
 Court, to see that the terms of the indenture are complied with, 
 and that such minor is not ill used."2o 
 
 15 — Ford V. McVay, 55 111. p. 17 — Chicago Stove Works v. 
 
 122, and authorities cited in opin- Lalley, 41 111. App. 249; Ford v. 
 
 ion; Shute v. Dorr, 5 Wend. 203; McVay, 55 111. 122; Walker v. 
 
 Jennings v. Graves, 2 Blackf. 449; Brown, 28 111. 378. 
 
 Chase v. Smith, 5 Vt. 556; Walker 18— Section 12, chapter 9, "Ap- 
 
 V. Brown, 28 111. 378. prentices." 
 
 16 — Section 11, Chapter 9, "Ap- 19 — Section 13, Chapter 9, "Ap- 
 prentices." Starr & Curtis Anno- prentices." 
 
 tated Statutes of Illinois, Vol. 1, 20 — Section 14, chapter 9, "Ap- 
 
 p. 425; Kurd's R. S. of 111., 1905. prentices." As to statute citations, 
 p. 161.
 
 APPRENTICES. 623 
 
 697. Complaints against master. Section 15. "The judge 
 of the Circuit or County Court shall at all times receive the com- 
 plaints of any person against masters, alleging undeserved or 
 immoderate correction, unwholesome food, insufficient allowance 
 of food, raiment or lodging, want of sufficient care or physic 
 in sickness, want of instruction in their trade or profession, or 
 the violation of any of the agreements or covenants in the in- 
 denture of apprenticeship contained or that the apprentice, 
 clerk or servant is in danger of being removed out of the juris- 
 diction of this state; and shall cause such masters to be sum- 
 moned before them, and shall, on the return of the summons, 
 whether such master appear or not, hear and determine such 
 cases in a summary way, and make such order thereon as in the 
 judgment of the said judge will relieve the party injured in fu- 
 ture ; and shall have authority, if said judge think proper, to dis- 
 charge such clerk, apprentice or servant from his apprentice- 
 ship or service ; and in case any money or other thing shall have 
 been paid, given or contracted or agreed for by either party, in 
 relation to the said apprenticeship or service, shall make such 
 order concerning the same as the said judge shall deem just and 
 reasonable. And if the apprentice so discharged shall have been 
 bound originally as provided in the sixth section of this act, it 
 shall be the duty of the judge granting the discharge, again to 
 bind him, if said judge shall think proper. "21 
 
 698. Removing apprentice out of State. Section 16. "It 
 shall not be lawful for any master to remove any clerk, appren- 
 tice or servant bound to him as aforesaid, out of this State, with- 
 out the consent of the county court ; and if, at any time, it shall 
 appear to any judge or justice of the peace, upon the oath of 
 any competent person, that any master is about to remove or 
 
 notes 18, 19, 20, see Starr & Cur- 21— Section 15, chapter 9, "Ap- 
 tis Annotated Statutes of Illinois, prentices." Starr & Curtis An- 
 Vol. 1, p. 425; Kurd's R. S. of 111., notated Statutes of Illinois, Vol. 
 1905, p. 161. 1, p. 425; Kurd's R. S. of 111. 1905, 
 
 p. 161.
 
 624 THE LAW OF ESTATES. 
 
 cause to be removed any such clerk, apprentice or servant out of 
 this State, it shall be lawful for such judge or justice to issue 
 his warrant, and to cause such master to be brought before him, 
 and if, upon examination, it appear that such apprentice, clerk 
 or servant is in danger of being removed without the jurisdiction 
 of this State, the judge or justice may require the master to en- 
 ter into recognizance, with sufficient security, in the sum of 
 $1,000, conditioned that such apprentice clerk or servant shall 
 not be removed without the jurisdiction of this State, and that 
 the said master will appear with the apprentice, clerk or servant 
 before the Circuit Court, at the next term thereof and abide the 
 decision of the court therein; which recognizance shall be re- 
 turned to the Circuit Court, and the said court shall proceed 
 therein in a summary manner, and may discharge or continue 
 the recognizance, or may require a new recognizance, and other- 
 wise proceed according to law and justice. But if the master, 
 when brought before any judge or justice, according to the pro- 
 visions of this section, will not enter into a recognizance as afore- 
 said, if required so to do, it shall be lawful for such court or 
 justice to discharge such clerk, apprentice or servant from such 
 apprenticeship or service, and to award judgment against such 
 master for costs, and for such sum as, considering the terms of 
 the indenture and the condition of the parties, may be deemed 
 just and reasonable. "22 
 
 699. Removal of master — when apprentice discharged. Sec- 
 tion 17. Whenever any master of any clerk, apprentice or serv- 
 ant, bound by the court as aforesaid, shall wish to remove out of 
 this State, or to quit his trade or business, it shall be lawful for 
 him to appear with his clerk, apprentice or servant before the 
 Circuit or County Court of the proper county; and such court 
 shall have power, if deemed expedient, to discharge such clerk, 
 apprentice or servant from the service of such master.^^ 
 
 22— Section 16, chapter 9, "Ap- 1, p. 426; Kurd's R. S. of 111., 1905, 
 prentices." Starr & Curtis An- p. 161. 
 notated Statutes of Illinois, Vol. 23 — Section 17, chapter 9, "Ap-
 
 APPRENTICES. 625 
 
 700. Death of master. Section 18. "When any person 
 shall become bound as clerk, apprentice or servant, according to 
 the provisions of this act, to two or more persons, and one or 
 more of them die before the expiration of the term of service, the 
 indentures and contracts shall survive to and against such sur- 
 vivors; and in case of the death of all of the masters in any 
 such indenture or contract named, before the expiration of the 
 term of service, such clerk, apprentice or servant shall be there- 
 by discharged from such service. "^^ 
 
 701. Enticing away apprentice — penalty. Section 19. 
 "Every person who shall counsel, persuade or entice any clerk, 
 apprentice or servant to run away, or to absent himself from the 
 service of his master, or to rebel against or assault his master, 
 shall forfeit and pay a sum not less than $20 nor more than $500, 
 to be sued for and recovered by action on the case, with costs, 
 by such master, in any court of competent jurisdiction. "^^ 
 
 702. Action — measure of damages for enticing away. An 
 
 action will lie against a party who shall "counsel, entice and 
 persuade" an apprentice to depart from the service of his mas- 
 ter; whether the apprentice shall act upon the counsel given or 
 not.26 At common law the master may maintain action against 
 any one who entices away his servant.^^ In an action for dam- 
 ages for enticing away the plaintiff's servants, the following in- 
 struction was given to the jury and held proper and correct: 
 "That the plaintiff, if entitled to recover at all, would be en- 
 titled to recover the value of the services lost, up to the time of 
 the commencement of the suit, the reasonable expenses necessar- 
 
 prentices." Starr & Curtis An- 25 — Section 19, chapter 9, "Ai>- 
 
 notated Statutes of Illinois, Vol. prentices." Starr & Curtis An- 
 
 1, p. 426; Kurd's R. S. of 111., 1905, notated Statutes of Illinois, Vol. 
 
 p. 161. 1, pp. 426, 427; Kurd's R. S. of 111., 
 
 24— Section 18, chapter 9, "Ap- 1905, p. 162. 
 
 prentices." Starr & Curtis An- 26 — HoUiday v. Gamble, 18 111. 
 
 notated Statutes of Illinois, Vol. 35. 
 
 1, p. 426; Kurd's R. S. of 111., 1905, 27— Bixby v. Dunlap, 56 N. H. 
 
 p. 162. 456. 
 40
 
 626 
 
 THE LAW OF ESTATES. 
 
 ily incurred in getting said servants back again, and damages 
 for the loss of time, trouble and injury sustained until the com- 
 mencement of this suit in consequence of the taking away of the 
 servants. ' '^^ 
 
 28 — Hays v. Borders, 1 Gilm. 
 (6 111.) 46. See also authorities 
 cited note 13 of this chapter, and 
 also Sec. 21, Chapter 64, "Guar- 
 dian and Ward," Starr & Curtis' 
 Annotated Statutes of Illinois, 
 Vol. 2, p. 2086, post 650. That 
 section of the Statute providing 
 
 when there is not money of the 
 ward sufficient to teach him to 
 read and write, and the elemen- 
 tary rules of arithmetic, and the 
 guardian fails or neglects to have 
 him so educated, the court shall 
 have power to put out the ward to 
 any other person for the purpose 
 of baviug him so educated.
 
 CHAPTER XXXIX 
 
 APPOFNTMENT AND QUALIFICATION OF GUARDIANS 
 
 Sec. 
 
 703. Introductory remarks. 
 
 704. Who are minors. 
 
 705. The infant cannot change his 
 
 domicile. 
 
 706. Appointment of guardian, 
 
 jurisdiction. 
 
 707. Concealment of material 
 
 facts from court, effect. 
 
 708. Nomination of guardian by 
 
 court, by minor. 
 
 709. Guardian his duties; custody 
 
 of minor, visitation of 
 minor. 
 
 Sec. 
 
 710. Testamentary guardian; es- 
 
 tate, custody. 
 
 711. Must qualify and give bond, 
 
 where the same is not 
 waived. 
 
 712. The bond required. 
 
 713. Limitation. 
 
 714. Powers and duties of testa- 
 
 mentary guardian. 
 
 715. Testamentary guardian, com- 
 
 mission, bond. 
 
 716. Appointment, hearing, bond. 
 
 717. Suit on bond. 
 
 718. Inventory; form of same. 
 
 Sec. 703. Introductory remarks. At common law, there 
 were many kinds of guardians. The three principal or general 
 kinds were classified as guardians by nature, by nurture, and in 
 socage. The guardians by nature and by nurture, were the 
 parents; the father first, and on his death the mother. Neither 
 guardianship by nature or by nurture gave the control of the 
 personal or real estate of the ward to such guardians. The 
 guardianship in socage was given to the next of kin, and such ex- 
 tended to the custody of the person and of the estate, both real 
 and personal, to the age of twenty-one years, unless the ward 
 terminated it at the age of fourteen years, by an election, so to 
 do. This latter guardianship was generally given to the next of 
 kin, who could not possibly inherit from the ward; however, 
 since the enactment of the laws of descent, such guardianship 
 cannot exist in this country. All of those common law terms at- 
 taching to guardians have given way to statutory enactments in 
 
 627
 
 628 THE LAW OF ESTATES. 
 
 most, if not all of the States of our Union. Illinois, by legislat- 
 ive enactments define biit twoj the statutory guardian and the 
 testamentary guardian. In particular cases, however, the law 
 recognizes and finds quasi guardians; these arise where there 
 has been no regular appointment of a guardian as directed by 
 statute, and where the general principle in such case, is: That 
 any person who takes possession of an infant's property, takes 
 it in trust for the infant. Thus the father may become a quasi 
 guardian, but as such having possession of infant's property is 
 treated as a trustee and accountable as such. As to the control 
 of the person of a minor, the father is guardian by nature. As 
 to the estate of the minor, the father has no power, without an 
 appointment, and in this way security is provided for the faith- 
 ful performance of that trust. These general questions will of 
 necessity hereafter arise in regular order, and so far as they are 
 useful and in force will be discussed. The authorities cited give 
 the common law relating to guardians and show the distinction 
 between that law and the modern statute.^ 
 
 704. Who are minors. The statute of Illinois entitled 
 "Guardian and Ward" provides: "That males of the age of 
 twenty-one and females of the age of eighteen years shall be con- 
 sidered of full age for all purposes ; and until these ages are at- 
 tained they shall be considered minors. ' '^ We call attention also 
 to section 18 of the act entitled " Conveyances, "^ providing: 
 "Any married woman, being above the age of eighteen years, 
 joining with her husband in the execution of any deed, mort- 
 gage, eonveyance, power of attorney, or other writing of or re- 
 lating to the sale, conveyance or other disposition of her lands 
 or real estate, or any interest therein, shall be bound and con- 
 
 1— Stevenson v. Westfall, 18 111. Perry v. Carmichael, 95 111. 530; 
 
 211; Kester v. Stark, 19 111. 330; School Trustees v. Kirwin, 25 111. 
 
 Bursen v. Goodspeed, 60 111. 277; 73; Norton v. Hixon, 25 111. 439. 
 
 Scliouler on Domestic Relations, 2 — Section 1, chapter 64, "Guar- 
 
 392, 443; Perry on Trusts, 224; dian and Ward" act. 
 
 Davis V. Harkness, 1 Gilm. (111.) 3 — Section 18, chapter 30, "Con- 
 
 173; Muller v. Bemner, 69 111. 108; veyance" act.
 
 APPOINTMENT AND QUALIFICATION OF GUARDIAN. 629 
 
 eluded by the same, in respect to her right, title, claim or in- 
 terest in such estate, as if she were sole. ' '^ Also section 9 of the 
 act entitled "Husband and Wife." A deed executed by a mar- 
 ried woman under the age of eighteen years, for the conveyance 
 of her estate, is void, and not merely voidable; hence she is not 
 required to take any steps after coming of age to avoid it.^ And 
 as to the effect of other acts of a minor where the statute ap- 
 plies, as given above. See cases cited, notes 6 and 7. 
 
 705. The infant cannot change his domicile. The domicile 
 
 of an infant is that of his father, if living ; if the father be dead, 
 then the domicile of the infant is that of the mother, if she be 
 living and unmarried. If both parents be dead or the mother 
 living and married, then the domicile of the infant is that of the 
 natural guardian or the statutory guardian; for the infant can- 
 not change his domicile. But for the protection of either a 
 guardian or a ward, a guardian may be appointed, where the 
 'person or any property of the infant may be found.^ 
 
 706. Appointment of guardian — jurisdiction. Section 2 of 
 the guardian and ward act provides: "The County Courts in 
 their respective counties may, when it shall appear necessary or 
 convenient, appoint guardians to minors, inhabitants of or resi- 
 dents in the same county, and to such as reside out of this State 
 and have an estate within the same, in the county where the 
 real estate or some part thereof may lie ; or if he has no real es- 
 
 4— Section 9, chapter 68, "Hus- 1129. (2) Starr & Curtis, etc., 
 
 band and Wife" act. Vol. 1, pp. 927, 928 and cases 
 
 5 — Harrer v. Wallner, 80 111. cited; Kurd's 1905, p. 466. (3) 
 
 197. Starr & Curtis, etc., Vol. 2, p. 
 
 6— Stevenson v. Westfall, 18 111. 2126; Vol. 4, p. 674; Kurd's 1905, 
 
 209. p. 1147. (4) Kurd's R. S. of 111., 
 
 7 — Sections 3 and 6, chapter 89, 1905, section amended and in 
 
 "Marriages," section 1, chapter force July 1, 1905, pp. 1353, 1354. 
 
 148, "Wills." As to statute cita- (7) Starr & Curtis, etc., Vol. 3, p. 
 
 tions notes 3, 4, 5 and 7, see Starr 4022; Kurd's 1905, p. 2050. 
 & Curtis Annotated Statutes of Illi- S — Lamar v. Micou, 112 U. S. 
 
 nois, Vol. 2, p. 2075, and cases 452; Gillett v. Wiley, 126 111. 310. 
 cited; Kurd's R. S. of 111., 1905, p.
 
 630 THE LAW OF ESTATES. 
 
 tate, then in any county where he may have personal property. ' '^ 
 The County Court having full jurisdiction of matters of probate 
 and guardianship, is a court of limited, but not of inferior, juris- 
 diction. It is a court of record, and its judgments are to be up- 
 held by the same presumptions applicable to the judgments of 
 other courts of record.^ <> By the statute of Illinois, it is only in 
 the event that a minor is a non-resident of the State, that the 
 element of an estate or property is essential to give jurisdiction 
 to a court to appoint a guardian. ^^ The authorities hold an 
 order of court appointing a guardian, regular upon its face and 
 not void for want of jurisdiction, cannot be collaterally at- 
 tacked.i2 
 
 707. Concealment of material facts from court — effect. 
 
 When an applicant for guardianship letters is in possession of 
 facts which he has every reason to believe would materially in- 
 fluence the court in acting upon his application, it is his duty to 
 disclose them ; and if, from a corrupt motive and with the inten- 
 tion of over-reaching the court, he suppresses them, he is guilty 
 of a wrong.i3 In equity the suppression of facts which, if 
 known, would have prevented a purchase, vitiates the sale.^* 
 Where confidential relations exist, such as those between prin- 
 cipal and agent, the secret acquisition of the title or rights of 
 property of the principal, by the agent, whether under legal 
 process or otherwise, is such a concealment of facts as 
 
 9 — Section 2, chapter 64, "Guar- Davis v. Hudson, 29 Minn. 27; 
 
 dian and Ward." Starr & Curtis Johnson v. Beasley, 65 Mo. 250; 
 
 Annotated Statutes of Illinois, People v. Medart, 166 111. 351. 
 with Jones & Addington's Supple- 11 — Barnsback v. Dewey, 13 111. 
 
 ments thereto, Vol. 2, p. 2076; App. 581. 
 
 Vol. 4, p. 66.7; and cases cited un- 12 — People v. Medart, 166 111. 
 
 der section of statute; Hurd's R. 351, and cases cited in opinion. 
 S. of 111., 1905, p. 1129. 13— Lockridge v. Foster, 4 Scam. 
 
 10 — Propts V. Meadows, 13 111. (111.) 569; Aortson v. Ridgeway, 
 
 157; People v. Gray, 72 111. 343; 18 111. 23; Jackson v. Wilcox, 1 
 
 Bostwick V. Skinner, 80 111. 147; Scam (111.) 344; Pease v. Roberts, 
 
 People V. Seelye, 146 111. 189; Ex 16 111. App. 634. 
 parte Burkhardt, 16 Tex. 470; 14 — Lockridge v. Foster, 4 Scam. 
 
 Lyne v. Sanford, 82 Tex. 58; (111.) 569.
 
 APPOINTMENT AND QUALIFICATION OF GUARDIAN. 631 
 
 equity will relieve against.^'^ Wherever there is a relation 
 which puts one party in the power of the other, a fidu- 
 ciary relation exists.^^ Where no relation of confidence exists, 
 suppressiO'Veri consists in suppressing those facts which one is 
 under a legal obligation to communicate. Thus, the concealment 
 of the minority of a feme covert, conveying in her own right, 
 will be relieved against.^''' But where the owners of an estate in 
 remainder decided to partition it, purchasing in the outstanding 
 life estate, as the result of an agreement between themselves, 
 undisclosed, it was held that the purchase was valid.^^ A con- 
 veyance by a debtor, by way of gift, concealed from creditors 
 with whom he effected a compromise, will not be disturbed where 
 such conveyance was made anterior to incurring the indebted- 
 ness.i^ Failure to disclose is of no importance where the infor- 
 mation, although not revealed, was known to and acted upon by 
 the other party.^o 
 
 708. Nomination of guardian — ^by court — ^by minor. Sec- 
 tion 3 of the Guardian and Ward Act provides: "If a minor 
 is under the age of fourteen years, the county court may nom- 
 inate and appoint his guardian. If he is above that age, he may 
 nominate his own guardian, who, if approved by the court, shall 
 be appointed accordingly; if not approved by the court, or if 
 the minor resides out of the State, or if, after being cited, he 
 neglects to nominate a suitable person, the court may nominate 
 and appoint his guardian in the same manner as if he was under 
 the age of fourteen years: Provided, that in aR cases when a 
 guardian has been appointed by the court while the minor was 
 under the age of fourteen years, such minor, on attaining the 
 age of fourteen years, may at his election nominate his own 
 
 15— Emmons v. Moore, 85 111. 18— Fish v. Cleland, 33 111. 238; 
 304; Watt v. McGalliard, 67 111. Cleland v. Fish, 43 111. 282. 
 
 19 — Jackson v. Minor, 101 III 
 550. 
 
 513; Davis v. Hamlin. 108 111. 39. 
 
 16 — Evans on Agency, 256; Kerr 
 on Fraud and Mistake, 182, 183. 
 
 17 — Bryan and Morrison v. 20 — Whiteside v. Taylor, 105 111, 
 Primm, 1 111. (Breese) 59. 496.
 
 632 THE LAW OF ESTATES. 
 
 guardian, who shall be appointed by the court if deemed a suit- 
 able person, and the new guardian so appointed shall supersede 
 the former one, whose functions shall thenceforth cease and de- 
 termine; and it shall be the duty of the former guardian to de- 
 liver up to his successor all the goods, chattels, moneys, title pa- 
 pers and other effects belonging to such minor in like manner 
 and subject to the same penalties as are provided in the fortieth 
 (40th) section of this act, upon the removal, death or resigna- 
 tion of a guardian. "21 
 
 Where the Probate Court appointed a guardian to two orphan 
 minors, under the age of fourteen years, for the full time until 
 they should respectively attain the age of eighteen years, held 
 that the appointment was valid. And, admitting that the said 
 minors might, under the statute, when they arrived at the age 
 of fourteen years, choose a guardian for themselves, who would 
 supersede the guardian so appointed by the Probate Court, still, 
 in the event of their neglecting or refusing to choose a guardian 
 for themselves, at the proper age, the guardian already appoint- 
 ed by the Probate Court would continue to act in his office until 
 the said minors attained their majority .22 
 
 709. Guardian — his duties — custody of minor — visitation of 
 minor. Section 4 of the Guardian and Ward Act provides: 
 **The guardian of a minor shall have, under the direction of the 
 court, the custody, nurture and tuition of his ward, and the 
 care and management of his estate ; but the parents of the minor, 
 if living, and in case of the death of either of the parents, the 
 surviving parent, they being respectively competent to transact 
 their own business, and fit persons, shall be entitled to the cus- 
 tody of the person of the minor and the direction of his educa- 
 tion. The parents of a minor shall have equal powers, rights 
 and duties concerning the minor. In case the father and mother 
 
 21— Section 3, chapter 64, nois, Vol. 2, p. 2076; Kurd's R. S. 
 "Guardian and Ward." Starr & of 111., 1905, p. 1129. 
 Curtis Annotated Statutes of Illi- 22— Young v. Lorain, 11 III. 
 
 625.
 
 APPOINTMENT AND QUALIFICATION OF GUARDIAN. 633 
 
 live apart, the court may, for good reason, award the custody 
 and education of the minor to either parent or to some other per- 
 son. Whenever any person or persons makes a settlement upon 
 or provision for the support or education of any minor child, it 
 shall be competent for the court, in case either the father or 
 the mother of such child be dead, to make such order in relation 
 to the visitation of such minor child by the person or persons so 
 making such settlement or provision as shall to the court seem 
 meet and proper.^^ The interest of the children should always 
 be taken in consideration by the court, when deciding who shall 
 have custody of orphans.^'* Where a decree of divorce is grant- 
 ed for the fault of the husband, and the court thereby gives the 
 custody of the child absolutely to the mother, such decree takes 
 away, ipso facto, all control of the father over the child, until it 
 is restored by the action of the proper court.^^ The mother's 
 right to the custody of a child, in the absence of the fault of the 
 father, does not arise during the father's lifetime, unless so or- 
 dered by the court in a proper case.-^ As to the control of the 
 person of the minor, the father is a quasi guardian by nature, 
 and upon his death the mother.^^ 
 
 710. Testamentary guardian — estate — custody. Section 5 
 of the Guardian and Ward Act, provides : ' ' The father, being of 
 sound mind and memory, of a child likely to be born, or of any 
 living child, being a minor and unmarried, may, by his last will, 
 dispose of the custody and tuition of such child, to continue 
 during its minority, or for a less time: Provided, no such will 
 shall take effect to deprive the mother, during her life, of the 
 custody and tuition of the child, without her consent, if she be a 
 
 23— Section 4, chapter 64, Zi—In re Smith, 13 111. 138. 
 
 "Guardian and Ward." As amend- 25-Wilkinson v. Deming. 80 111. 
 
 ed by act approved April 18, 1901. 049 
 
 In force July 1, 1901. Law of 
 
 1901, p. 216. Starr & Curtis An- 26-Holson v. Fullerton, 4 111. 
 
 App. 282. 
 
 21 
 1905, p. 1129. 519. 
 
 notated Statutes of Illinois, Vol. 
 
 2. p. 2077; Kurd's R. S. of 111., 27— Perry v. Carmichael, 95 111.
 
 634 THE LAW OF ESTATES. 
 
 fit and competent person to have such custody and tuition. The 
 mother, being of sound mind and memory, and being sole, or 
 surviving the father of her child, may, in like manner, dispose 
 of the custodj'' and tuition of such child. ' '^s Section 6 of 4;he 
 Guardian and Ward Act provides: "The guardianship of the 
 infant's estate may be appointed to one, and the custody and 
 tuition of the minor to another.^^ A, the testator, by his will, 
 appointed his wife guardian of his infant daughter, "so long 
 as she should remain his widow." After the death of A, his 
 widow took out letters of guardianship for the daughter, from 
 the Probate Court of the proper county under the appointment 
 and order of that court by way of compliment to the will. The 
 widow subsequently married B, and a payment on account of the 
 estate of the ward was then made to her husband, B. Held, the 
 authority of the father to name a guardian for his children, is 
 greater than that conferred upon the Probate Court; and when 
 the former has exercised the right, the latter cannot act. The 
 appointment by the court was void for want of jurisdiction. 
 The limitation in the will is strictly legal and must be enforced. 
 The guardianship of the widow was terminated by her marriage 
 to B, and at the time the payment was made to B, the authority 
 of his wife to receive the money, as guardian to the complainant, 
 had ceased; as completely so as if she had been removed by a 
 court of competent jurisdiction. She had no more authority to 
 receive the money than as if she had never been appointed 
 guardian. The husband of a guardian has no right to possess 
 or control the estate of the ward, and a payment to him on ac- 
 count of such estate is void, unless with the express sanction or 
 direction of the guardian; which in this case, at the time of the 
 payment of the money did not exist, as the guardianship ceased 
 on the marriage of the widow to B.*"^ "Where the custody of a 
 
 28 — Section 5, chapter 64, Starr & Curtis Annotated Statutes 
 
 "Guardian and Ward." of Illinois, Vol. 2, p. 2077, and 
 
 29 — Section 6, chapter 64, cases cited; Kurd's R. S. of 111., 
 
 "Guardian and Ward." As to 1905, p. 1130. 
 statute references, notes 28, 29, see 30— Holmes v. Field, 12 111, 423.
 
 APPOINTMENT AND QUALIFICATION OF GUARDIAN. 635 
 
 child is given to the mother by a decree of divorce, for the 
 father's fault, she may, by will, appoint a guardian for such 
 child ; and when such guardian is not shown to be an unfit per- 
 son, and the child expresses a desire to remain with such guard- 
 ian, who is a relative and attached to the child, the court, on the 
 application of the father, will not give him its custody .^^ A 
 testator, by his will, appointed two of his sons executors, and 
 directed and empowered them to sell all real and personal prop- 
 erty belonging to the estate, except the homestead and household 
 goods devised to his widow for life, and use the proceeds for the 
 payment of legacies and for the support and education of the 
 minor children, and also provided, that the executors should 
 hold the estate in trust, except as otherwise provided, until the 
 youngest child should become of age, and further declared: "I 
 will that my executors pay out of my estate annually a sum 
 which, together with that provided in section third hereof, is 
 sufficient to clothe, educate and support my minor children until 
 they become of lawful age: ^'Held, that the executors were made 
 trustees of the estate, and, in effect, testamentary guardians of 
 the minors, with the duty to clothe, educate and support them, 
 and that while faithfully discharging such duty, the court had 
 no rightful power or authority to require the executors to pay 
 over any moneys to the statutory guardian of such minors for 
 their support and education.32 
 
 711. Must qualify and give bond, where the same is not 
 waived. The statute relating to guardians authorizes a parent 
 to appoint a testamentary guardian for the custody and educa- 
 tion of his minor child, and the custody of its property, or to 
 give the custody and tuition of the minor to one and the custody 
 of the property to another; but the guardian of the property is 
 required to give a bond, as in other cases, unless this is dispensed 
 with by the will and such must receive a commission from the 
 County Court to act, and when such bond is not dispensed with, 
 
 31 — Wilkinson v. Deming, 80 32 — Capps v. Hickman, 97 III. 
 111. 342. 437, 438.
 
 636 THE LAW OF ESTATES. 
 
 such appointee will not become the guardian of the minor until 
 he gives a bond as such, and is conmiissioned by the County 
 Court. So if one appointed by will as executor and also as 
 testamentary guardian, qualifies only in the former capacity, so 
 that he is not a legal guardian, but nevertheless acts 
 as such by loaning the funds of the estate, which he might have 
 done as guardian had he qualified in that capacity, he will in 
 equity be held liable to account as guardian ; and if he loans the 
 funds of the estate as executor, in which capacity he has no au- 
 thority to do so, and a loss occurs, he will be required to make 
 it good on the settlement of his accounts before the County 
 Court.33 
 
 712. The bond required. Section 7 of the Guardian and 
 Ward Act, provides : ' ' The County Court shall take of the guard- 
 ian appointed by it, a bond, payable to the People of the State 
 of Illinois, with at least two sufficient sureties, to be approved 
 by the court in a reasonable amount, which in no case will be 
 less than double the amount of the minor's personal estate, and 
 six times the amount of the gross annual income of the minor's 
 real estate: Provided, however, that if such real estate is im- 
 proved or is covered in whole or in part with timber, or is im- 
 proved in part and in part covered with timber, the penal sum 
 in said bond shall be increased by an amount at least double the 
 value of the said improvements, or of said timber, or both as the 
 case may be." The form of the bond being given by statute.^^ 
 "Where, in an action on a guardian's bond, a copy of the bond is 
 admitted in evidence which recites the guardianship and the 
 names of the sureties, such recitals are sufficient evidence of the 
 appointment of the guardian. An order of the Probate Court 
 
 33 — Wadsworth v. Connell, 104 "Guardian and Ward." As amend- 
 Ill. 369; Gilbert v. Guptill, 34 111. ed by act approved May 21, 1877. 
 112; Mclntyre v. People, 103 111. In force July 1, 1877. Laws of 
 142; Davis v. Harkness, 1 Gilm. 1877, p. 114. Starr & Curtis An- 
 (111.) 173. notated Statutes of Illinois, Vol. 
 34 — Section 7, chapter 64, 2, p. 2078, and cases cited; Kurd's 
 
 R. S. of 111., 1905, p. 1130.
 
 APPOINTMENT AND QUALIFICATION OF GUARDIAN. 637 
 
 finding the amount due from a ^lardian to his ward is con- 
 clusive upon the guardian and the sureties on his bond in an ac- 
 tion of debt on the bond, and can only be impeached for fraud 
 or mistake.3^ And also, where suit is brought on bond against 
 several sureties and one of such appears, contests the suit, and 
 appeals, and the other co-sureties do not, the one contesting can- 
 not assign errors for those not contesting on appeal.^^ And so a 
 contribution from co-sureties may be recovered, where one of 
 several sureties upon a guardian bond is forced to pay a judg- 
 ment recovered on such bond in full. He may recover from 
 each of the several co-sureties a pro rata share of the sum paid 
 under such judgment with interest from the date of payment; 
 and the insolvency of one or more of the sureties cannot operate 
 to increase the amounts recoverable against such as are sol- 
 vent.3'^ Where an order of the Probate Court required the 
 guardian to give bond and security, A signed such supplemental 
 bond as surety. Held, the surety on the supplemental bond be- 
 came liable as an original obligor.^* And the sureties on the 
 original bond are liable where the court requires the guardian to 
 give special bond.^^ 
 
 713. Limitation. Actions on bonds must be commenced 
 within ten years next after the cause of action accrues under the 
 statute of "Limitations" and that statute also applies to repre- 
 sentatives where the action survives, and to infants and others 
 under disability. But in equity in case of fraud, from the time 
 the fraud was discovered, or might have been discovered by due 
 
 35— Ryan v. People, 165 111. 143; 37— Moore v. Bruner, 31 111. 
 
 Blackburn v. Bell, 91 111. 434; App. 400. 
 
 Gillett V. Wiley, 126 111. 310; 38— Ammons v. People, 11 111. 
 
 Neihofe V. People, 171 111. 246, 7. 
 
 247. 39— Warner v. People, 57 111. 
 
 36 — Richards v. Greene, 78 111. 202. See section 13, chapter 103, 
 
 525; Hendrickson v. Van Winkle, "Official Bonds" Starr & Curtis 
 
 21 111. 274; Horner V. Zimmerman, Annotated Statutes of Illinois, 
 
 45 111. 14; Cromine v. Tharp, 42 Vol. 2, p. 2835; Kurd's R. S. of 
 
 111. 120; Ryan v. People, 165 111. 111., 1905, p. 1419. 
 143-146.
 
 63S THE LAW OF ESTATES. 
 
 diligence.^ ^ But failure of due diligence may be excused if the 
 relation of trust exists.*^ A claim against a guardian's estate 
 for money coming into the deceased guardian's hands belonging 
 to his wards, is not barred within five years after the majority of 
 the wards. The claim will not be barred so long as an action may 
 be brought upon the guardian's bond, to enforce its recovery.*^ 
 The citation of a surety upon a guardian's bond, tAventy- 
 one years after the ward became of age, to state his knowledge 
 of the guardianship account, the guardian in the meantime hav- 
 ing died, does not revive a right to recover from such surety 
 any unpaid balance.*^ A claim presented against the estate of a 
 deceased guardian thirteen years after the claimant became of 
 age and where most of the funds received by the deceased guard- 
 ian, under the claim sought against his estate, was received before 
 his appointment as guardian, it was held such claim was barred 
 by the Statute of Limitations.** 
 
 714. Powers and duties of testamentary guardian. Section 
 
 8 of the Guardian and Ward Act, provides: "A testamentary 
 guardian shall have the same powers and perform the same du- 
 ties within the scope of his appointment, as a guardian appointed 
 by the County Court. "^^ 
 
 715. Testamentary guardian — commission — bond. Section 
 
 9 of the same act provides: **A testamentary guardian, except 
 
 40— Gillett V. Wiley, 126 111. 310. tions." Starr & Curtis Annotated 
 
 41 — Same as note 40. Statutes of Illinois, with Jones & 
 
 42 — Scheel v. Eidman, 77 111. Addington's Supplements thereto, 
 
 304. Vol. 2, pp. 2621, 2631, 2640, and 
 
 43 — People v. Stewart, 29 111. cases cited under sections of stat- 
 
 App. 441. ute noted; Vol. 4, pp. 809, 811, and 
 
 44 — Beers v. Meyers, 28 111. App. cases cited; Hurd's R. S. of 111., 
 
 648; and see Brooks v. People, 15 1905, pp. 1332, 1333, 1334. 
 
 111. App. 570; Winslow v. People, 45 — Section 8, chapten 64. 
 
 17 111. App. 222; Carter v. Tice, "Guardian and Ward." Starr & 
 
 120 111. 277. See sections 10, 16, Curtis Annotated Statutes of Illi- 
 
 21, chapter 83, entitled "Limita- nois, Vol. 2, p. 2079; Hurd's R. S. 
 
 of 111., 1905, p. 1130.
 
 APPOINTMENT AND QUALIFICATION OF GUARDIAN. 639 
 
 for the custody and tuition of the minor, shall, before he can 
 act, be commissioned by the County Court of the proper county 
 and give the bond prescribed in section 7 of this act — except, 
 that when the testator has requested in his will that a bond be 
 not required, it shall not be required unless, from a change in 
 the situation or circumstances of the guardian, or for other suf- 
 ficient cause, the court shall deem it necessary to require it. ' '^^ 
 
 716. Appointment — hearing — bond. Section 10 of the same 
 act, provides: "Upon application being made for the appoint- 
 ment of a guardian, unless the proper persons are before it, the 
 court shall assign a day for the hearing thereof, and shall direct 
 such notice of the hearing to be given to the relatives of the 
 minor, residing in the county, as he shall, on due inquiry, think 
 reasonable. When any person shall at the same time be ap- 
 pointed guardian for several minors, the court may, if the es- 
 tate shall be so situated as to make it more convenient or ad- 
 vantageous to the interest of the ward, include all in one 
 J)ond.47 
 
 717. Suit on bond. Section 11. "Bonds may be put in suit 
 in the name of the People of the State of Illinois, to the use of 
 any person entitled to recover on a breach thereof, and dam- 
 ages assessed and proceedings had thereon, as other cases of penal 
 bonds. "'^s Where a guardian's bond signed by one surety was 
 presented to the court with the minor's petition nominating a 
 guardian, the court being of opinion that one surety was not 
 sufficient handed the bond back to obligator. Later the signa- 
 
 46 — Section 9, chapter 64, 48 — Section 11, chapter 64, 
 "Guardian and Ward." Starr & "Guardian and Ward." Starr & 
 Curtis Annotated Statutes of Uli- Curtis Annotated Statutes of Illi- 
 nois, Vol. 2, p. 2079; Kurd's R. S. nois, with Jones & Addington's 
 of 111., 1905, p. 1130. Supplements thereto. Vol. 2, p. 
 
 47— Section 10, chapter 64, 2079; Vol. 4, p. 668, and cases cited 
 
 "Guardian and Ward." Starr & under section of the statute 
 
 Curtis Annotated Statutes of Illi- noted; Kurd's R. S. of 111., 1905, 
 
 nois. Vol. 2, p. 2079; Kurd's R. S. p. 1130. 
 of 111., 1905, p. 1130.
 
 640 THE LAW OF ESTATES. 
 
 tures of two additional sureties were obtained, and the sureties 
 were pronounced satisfactory, the judge saying, "That is all 
 right." The bond was handed the judge, who at the request of 
 the sureties handed the bond to them, they taking it away to get 
 another signature. In this they were unsuccessful, and nothing 
 further was shown as to the whereabouts of the bond. Soon af- 
 ter and before the guardian's appointment, one of the sureties 
 died. Held, there was not a delivery of the bond in the lifetime 
 of the surety. If there was no delivery before the death of the 
 surety, it is clear there could be no delivery afterwards, which 
 would render the bond obligatory upon him or his legal repre- 
 sentatives. ^^ 
 
 If a guardian neglects or fails to enforce the security on a 
 loan of his ward 's money until the remedy is barred by the Stat- 
 ute of Limitations, his bondsmen are liable to the ward for such 
 neglect.^" 
 
 718. Inventory — form of same. Section 12 of Guardian and 
 Ward Act, provides: "The guardian shall, within sixty days 
 after his appointment, or if the court is not in session at the ex- 
 piration of that time, at the next term thereafter, return to the 
 court a true and perfect inventory of the real and personal estate 
 of the ward, signed by him and verified by his affidavit. As often 
 as other estate shall thereafter come to his knowledge, he shall 
 return an inventory thereof, within sixty days from the time the 
 same shall come to his knowledge." Section 13. "The inven- 
 
 49 — Brooks v. People, 15 111. rule, constituting the delivery of 
 
 App. 570; and to the point, a bond a deed, which may be analogous, 
 
 to be valid must be delivered dur- see Bryan v. Wash, 2 Gilm. (111.) 
 
 ing the lifetime of the principal. 557; Gunnell v. Cockerill, 79 111. 
 
 Huey V. Huey, 65 Mo. 689; Jack- 79; Bayers v. Spencer, 101 111. 
 
 son V. Leek, 12 Wend, 106; Jack- 429. 
 
 son V. Phipps, 12 John, 418; Cook 50 — Winslow v. People, 17 111. 
 
 V. Brown, 34 N. H. 460; Miller v, App. 222; Dobbins v. First Na- 
 
 Physick, 24 Ark. 244; Jackson v. tional Bank, 112 111. 553; see also 
 
 Rowland, 6 Wend, 666; Prutsman for special breaches of bond, Gil- 
 
 v. Baker, 30 Wis. 644. As to the bert v. Guptill, 34 111. 112; Peo- 
 ple V. Steele, 7 111. App. 20
 
 APPOINTMENT AND QUALIFICATION OF GUARDIAN. 641 
 
 tory shall describe the real estate, its probable value and rental, 
 and state whether the same is encumbered, and, if encumbered, 
 how and for how much, what amount of money is on hand, and 
 contain a list of all personal property, including annuities and 
 credits of the ward, designating them as ' ' good, " ' ' doubtful ' ' or 
 "desperate," as the case may be.^^ Section 14 requires the 
 guardian to make and settle his account at the expiration of a 
 year from his appointment and as much oftener as the court may 
 require,52 Section 15 provides that a guardian, at the expiration 
 of his trust, shall pay and deliver to those entitled thereto "all 
 the money, estate and title papers in his hands as guardian, or 
 with which he is chargeable as such. ' '^^ 
 
 51 — Sections 12, 13, Chapter 64, sections of statute cited in notes 
 
 "Guardian and Ward." 51, 52 and 53, see Starr & Curtis 
 
 52 — Section 14, chapter 64, Annotated Statutes of Illinois, 
 
 "Guardian and Ward." Vol. 2, p. 2080, and cases cited un- 
 
 53 — Section 15, chapter 64, der sections 14 and 15, noted; 
 
 "Guardian and Ward." As to Kurd's R- S. of 111., 1905, p. 1131. 
 
 41
 
 CHAPTER XL 
 
 PUBLIC GUARDIAN 
 
 Sec. 
 
 719. Public County Guardian. 
 
 720. To take oath, form of same. 
 
 721. When such guardian fails to 
 
 qualify. 
 
 Sec. 
 
 722. Public guardian, when ap- 
 
 pointed by the court — 
 powers and duties. 
 
 723. Bond of the public guardian. 
 
 Sec. 719. Public county guardian. "The Governor of this 
 State, by and with the advice and consent of the Senate, shall, 
 before the first Monday in December, eighteen hundred and 
 eighty-nine, and every four years thereafter, appoint in each 
 county of this State, and as often as any vacancies may occur, 
 a suitable person, to be known as public guardian of such coun- 
 ty, who shall hold his office for four years from the first Monday 
 of December, eighteen hundred and eighty-nine, or until his suc- 
 cessor is appointed and qualified, "i 
 
 720. To take oath, form of same. Section 2. "Every per- 
 son appointed as a public guardian shall, before entering upon 
 the duties of his office, take and subscribe and file in the office 
 of the clerk of the County Court the following oath, to-wit : I do 
 solemnly swear (or affirm as the case may be) that I will support 
 the Constitution of the United States and the Constitution of the 
 State of Illinois, and that I will faithfully discharge the duties 
 
 of public guardian of county, according to the 
 
 best of my ability. "^ 
 
 721. When such guardian fails to qualify. Section 3. 
 "Whenever any guardian, appointed under the provisions of 
 
 1— Par. 53, section 1, chapter 2096; Kurd's R. S. of 111., 1905, p 
 
 64, "Guardian and Ward." An act 1135. 
 
 approved June 3, 1889. In force 2 — Par. 54, sec. 2, chapter 64, 
 
 July 1, 1889. Law of 1889, page "Guardian and Ward." Starr & 
 
 165. Starr & Curtis Annotated Curtis Annotated Statutes of Illi- 
 
 Statutes of Illinois, Vol. 2, p. nois, Vol. 2, p. 2097; Kurd's R. S. 
 
 of 111., 1905, p. 1135. 
 
 642
 
 PUBLIC GUARDIAN. 643 
 
 section three (3) of the act entitled 'An act in regard to guard- 
 ians and wards, ' approved April 10, 1872, in force July 1, 1872, 
 shall fail to qualify as such guardian at the expiration of three 
 months from his or her appointment, it shall be the duty of the 
 court to appoint the public guardian of the county where the 
 minor resides, as guardian of the minor. "^ 
 
 722. Public guardian — ^when appointed by the court. Sec- 
 tion 4. The public guardian, when appointed by the court, as 
 provided in this act, shall have the same powers and his duties 
 shall be the same as of guardians appointed under the provisions 
 of section three of the act entitled "An act in regard to guard- 
 ians and wards," approved April 10, 1872, in force July 1, 
 1872.4 
 
 723. Bond of the public guardian. Section 5. '*It shall 
 be the duty of the County Court to require of a public guardian, 
 before entering upon the duties of his office, to enter into a bond, 
 payable to the People of the State of Illinois, in a sum of not less 
 than five thousand dollars, with two or more securities, approved 
 by the court, and conditioned that he will faithfully discharge 
 all the duties of his office, and the court may, from time to time, 
 as occasion may require, demand additional security of such 
 guardian, and may require him to give the usual bond required 
 of guardians in other cases, and in default of giving such bond 
 within sixty days after receiving his commission, or in default of 
 giving additional security within such time as the court may fix 
 after being duly ordered by said court so to do, his office shall be 
 deemed vacant, and upon the certificate of the county judge of 
 such fact, the Governor shall fill the vacancy aforesaid. ' '^ 
 
 3 — Par. 55, sec. 3, chapter 64, Curtis Annotated Statutes of Illi- 
 
 "Guardian and Ward." Starr & nois. Vol. 2, p. 2097; Kurd's R. S. 
 
 Curtis Annotated Statutes of Uli- of 111., 1905, p. 1135. 
 
 nois. Vol. 2, p. 2097; Kurd's R. S. 5 — Par. 57, sec. 5, chapter 64, 
 
 of 111., 1905, p. 1135. "Guardian and Ward." Starr & 
 
 4 — Par. 56, sec. 4, chapter 64, Curtis Annotated Statutes of Uli- 
 
 "Guardian and Ward." Starr & nois, Vol. 2, p. 2097; Kurd's R. S. 
 
 of 111., 1905, p. 1136.
 
 CHAPTER XLI 
 
 DUTIES AND POWERS OF GUARDIANS 
 
 Sec. 
 
 724. Duties and powers of guar- 
 
 dians. 
 
 725. Statutory powers. Appear- 
 
 ance for ward in suit. 
 
 726. Suits by, for or against 
 
 wards, guardians, next 
 friend. 
 
 Sec. 
 
 727. The power to contract how 
 
 far binding on the ward 
 and his estate. 
 
 728. Management by guardian of 
 
 ward's estate. His duties. 
 Education of ward. Ward 
 put out and educated. 
 
 729. Investments guardian's duty. 
 
 Sec. 724. Duties and powers of guardians. The common 
 law duties and powers of guardians still continue in this State, 
 except as modified or superseded by statutory enactments.^ We 
 
 1— Wright V. Cornley, 14 111. 
 App. 551; Bond v. Lockwood, 33 
 111. 212; Bailey v. Bailey, 115 111. 
 551; Hayes v. Mass. Life Ins. Co., 
 125 111. 626; Schmidt v. Shaver, 
 196 111. 115; Schouler's Domestic 
 Relations pp. 461, 462. In Bailey 
 V. Bailey, supra, a decree was en- 
 tered for the payment of money 
 to the guardian of a minor, and 
 the minor had no guardian at the 
 time the decree was entered. Held, 
 such decree will not be erroneous 
 merely from that fact; for in such 
 case the money can not be paid 
 until a guardian shall be appoint- 
 ed and qualified. In the same 
 case it is also held: Where a 
 minor by his guardian and attor- 
 ney files his bill, claiming title to 
 certain lands, he should present 
 the grounds showing his rights, 
 and if he does not, he will not be 
 
 advantage of his omission. If the 
 first bill is dismissed, the adjudi- 
 cation will estop him from again 
 seeking to recover the same prem- 
 ises on other and different 
 grounds not presented in the first 
 suit. In the early case of Bond 
 v. Lockwood, supra, it is held: 
 The statute respecting guardians 
 and wards was not designed and 
 did not constitute a complete 
 code, and that the purpose of the 
 legislature was to confer upon the 
 probate court the power to ap- 
 point guardians, and to regulate 
 their conduct according to the 
 common law. The decision in that 
 respect has been consistently fol- 
 lowed. In Hayes v. Massachusetts 
 Mutual Life Insurance Co. supra, 
 it is lield: A guardian, under the 
 statute of Illinois, has no power 
 to compound or compromise in re- 
 
 allowed in a second suit to take spect of his ward's rights, where- 
 
 6U
 
 DUTIES AND POWERS OF GUARDIANS. 645 
 
 have heretofore shown the duties of guardians as to the custody 
 and visitation of minors, prescribed by statute relating to 
 "guardian and ward," his control of the estate of the minor and 
 his custody of the person. We have also shown that a testa- 
 mentary guardian has the same powers and performs the same 
 duties, within the scope of his appointment, as a guardian ap- 
 pointed by the Court of Probate.- The duty of the 
 guardian to file an inventory, and make settlement and account 
 as prescribed by the Guardian Act.^ But aside from the statute, 
 the common law duties of the guardian are numerous, as regards 
 the management of the estate of his ward; he should keep down 
 unnecessary expense and incumbrances on the property of his 
 ward ; and generally in paying out the money of his ward should 
 be careful as to the purpose for which the payment is made. It 
 is his duty to keep property insured from loss by fire, pay taxes, 
 make reasonable repairs and generally prevent waste, and per- 
 form such other acts and duties as the court may sanction and 
 approve within the scope of his office and under the law tending 
 to preserve the estate of his ward.* 
 
 725. Statutory powers — appearance for ward in suit. Sec- 
 tion 17 of the Guardian and Ward Act provides: *'The guardian 
 
 by a less sum than is due is ac- ward is in pressing need of funds, 
 
 cepted, except under the appro- the county court may order the 
 
 bation or direction of the county guardian to sell the judgment for 
 
 court, and if he does, his act will a price which it finds to be a 
 
 not bind his ward, and the ward good one. See also 15 Am. & Eng. 
 
 may disaffirm it. In Schmidt v. Ency. of Law, 2d ed., p. 56, and 
 
 Shaver, supra, it is held: So far cases cited in support of powers 
 
 as our statutes prescribe the of guardian in text, 
 powers and duties of guardians 2 — Ante, 709, 714. 
 they supersede the common law, 3 — Ante, 718. 
 but the common law power of 4 — Longwith v. Riggs, 123 111. 
 
 guardians still exists when con- 264; Wright v. Comley, 14 111. 
 
 sistent with statute. And where App. 551; Means v. Earles, 15 111. 
 
 it is shown to the probate court App. 273; Hayes v. Mass. Mut. 
 
 by a guardian that a judgment in Life Ins. Co., 125 111. 626; Field 
 
 favor of his ward cannot be col- v. Herrick, 101 111. 115; Kings- 
 
 lected at that time and that the bury v. Sperry, 119 111. 280; Bai- 
 ley V. Bailey, 115 111. 551.
 
 646 THE LAW OF ESTATES. 
 
 shall settle all accounts of his ward, and demand and sue for, 
 and receive in his own name as guardian, all personal property 
 of and demands due the ward, or, with the approbation of the 
 court, compound for the same, and give a discharge to the debtor 
 upon receiving a fair and just dividend of his estate and ef- 
 fects." Section 18 provides: "He shall appear for and repre- 
 sent his ward in all legal suits and proceedings, unless another 
 person is appointed for that purpose, as guardian or next friend, 
 but nothing contained in this act shall impair or affect the power 
 of any court or justice of the peace to appoint a guardian to de- 
 fend the interest of a minor impleaded in such court, or inter- 
 ested in a suit or matter therein pending, nor their power to ap- 
 point or allow any person as next friend for a minor to com- 
 mence, prosecute or defend any suit in his behalf : Provided, that 
 any suit or proceeding may be commenced and prosecuted by 
 any minor by his next friend, without any previous authority or 
 appointment by the court, on such next friend entering into a 
 bond for costs, and filing the same in the court in which, or with 
 the justice of the peace before whom such suit or proceeding is 
 instituted. ' ''^ 
 
 726, Suits by, for or against wards — guardians — next friend. 
 Suits for wards must be in name of ward, by their guardian or 
 next friend.^ The appointment of a guardian ad litem, need 
 not be predicated upon judicial finding of infancy or insanity.'' 
 A disinterested person only is qualified as guardian ad litem; 
 and such should be appointed to represent minors' interests.^ 
 
 5 — Sections 17 and 18, chapter in each volume; Kurd's R. S. of 
 
 64, "Guardian and Ward." As 111., 1905, p. 1131; see also Fil- 
 
 amended by act approved April more v. Weeks, 12 Colo. 239. In 
 
 10, 1881. In force July 1, 1881. which state the statute is simi- 
 
 Laws of 1881, p. 98. Starr & Cur- lar to that of Illinois, 
 
 tis Annotated Statutes of Illinois, 6 — Hoare v. Harris, 11 111. 24; 
 
 with Jones & Addington's Supple- Bowles v. Allen, 16 111. 30. 
 
 ments thereto, Vol. 2, pp. 2082, 7— Pyott v. Pyott, 191 111. 280. 
 
 2083; Vol. 4, p. 668, and cases 8 — Linebaugh v. Atwater, 173 
 
 cited under the sections of statute 111. 616; Phillips v. Phillips, 185 
 
 111. 631.
 
 DUTIES AND POWERS OF GUARDIANS. 647 
 
 If the general guardian, the guardian ad litem or the next 
 friend, does not properly protect the interests of the ward, it is 
 the duty of the court to compel such to do so.^ The next friend 
 or guardian cannot by stipulation or admission surrender the 
 rights of the infant ;^^ and such is unauthorized to waive a 
 jury. 11 A guardian ad litem, who files an answer for infants is 
 bound to exercise reasonable care, prudence and judgment; sub- 
 mitting to the court all questions that may arise, and with the 
 advice of the court, act under its direction.12 If the ward has 
 not been served with process, the guardian has no power to enter 
 the appearance of the ward in a suit against the latter.^'' Under 
 section 18 of the Guardian and Ward Act a suit may be prose- 
 cuted as a poor person.^'* The bond for costs in a suit by a 
 minor may be filed, by permission of the court, after the com- 
 mencement of suit.i^ The bond required by section 18 of the 
 Guardian and Ward Act is not jurisdictional.^^ A guardian has 
 authority to demand and sue, in his owti name to recover all per- 
 sonal property and demands due his ward.^'' And it is within 
 the guardian's power to make sale of personal property without 
 the order of court, except where such sale is prohibited by stat- 
 ute.is But no power is given the guardian under the statute to 
 
 9 — Lloyd V. Kirkwood, 112 111. An affidavit must be filed, as re- 
 
 329; Llnebaugh v. Atwater, 173 quired by statute, Kurd's R. S. of 
 
 111. 616. 111., 1905, p. 555. See also Tracy 
 
 10— Kingsbury v. Buckner, 134 v. Bible, 181 111. 333; Chicago & 
 
 U. S. 650; Railroad Co. v. Haley, Iowa R. R. Co. v. Lane, 130 111. 
 
 170 111. 613. 116; 111. Cent. R. R. Co. v. Lati- 
 
 11 — Lieserowitz v. Railroad Co., mer, 128 111. 163; Consolidated 
 
 80 111. App. 253. Coal Co, v. Gruber, 188 111. 585. 
 
 12— Stunz V. Stunz, 131 111. 210. 15—111. Cent. R. R. Co. v. Lati- 
 
 13 — Dickison v. Dickison, 124 mer, 28 111. App. 552. 
 
 111. 483. 16— Railroad Co. v. Keck, 185 
 
 li— Ante, 724; see Starr & Cur- 111. 405; Consolidated Coal Co. v 
 
 lis Annotated Statutes of Illinois, Gruber, 188 111. 585. 
 
 with Jones & Addington's Supple- 17 — Muller v. Benner, 69 UL 
 
 ments thereto, Vol. 1, p. 1071; Vol. 109; Independent Order, etc., v. 
 
 4, p. 342 and cases cited in each Stahl, 64 III. App. 316. 
 
 volume under section of statute. 18 — Schmidt v. McDean, 98 IlL 
 
 App. 424.
 
 648 THE LAW OF ESTATES. 
 
 bring suits in relation to the real estate of his ward. He cannot 
 maintain ejectment in his own name for his ward's lands; suit 
 should be brought in the name of the ward, who in such case 
 holds the title.^^ But where a guardian recovers a judgment as 
 such, and takes a conveyance of land to himself, in satisfaction 
 thereof, his ward may, on attaining his majority, take the land 
 or charge his guardian with the amount of the judgment and ac- 
 crued interest, at his election, and if, within a reasonable time 
 after coming of age, he elects to take the land, a court of equity 
 will enforce a conveyance of the legal title to him.20 A testator 
 gave to his widow, by his will, money and the rents and profits 
 of land, in lieu of dower, incumbered with the provision that she 
 should maintain and support his children. The widow re- 
 nounced the provisions of the will, had dower assigned, and mar- 
 ried again. Suit was brought against the guardian by the second 
 husband to recover for board and clothing furnished the ward. 
 Held, the guardian may prove that the wards have worked for 
 the plaintiff, and the value thereof, and set it off against his 
 claim.2i Infants cannot be deprived of rights by any agreement 
 as to validity of title.22 An infant is also incapable of making 
 an admission which would affect his rights; and his admissions 
 cannot be used against a third person who assumes to stand as 
 his trustee. 23 
 
 727. The power to contract — 5iow far binding on the ward 
 and his estate. A guardian cannot, by his own contract, bind 
 the person or estate of his ward; but if he promise, on a sufficient 
 consideration, to pay the debt of his ward, he is personally 
 bound by his promise, although he expressly promises as guar- 
 dian. And it is sufficient consideration, if such promise dis- 
 charge the debt of the ward; and a guardian who thus dis- 
 
 19— Muller v. Benner, 69 111. 22— Jolly v. Graham, 222 111. 
 
 109. 550. 
 
 20 — Padfield v. Pierce, 72 111. 23— Baker v. Hamilton, 3 Colo. 
 
 502; Jolly v. Graham, 222 111. 550. 291. 
 
 21— Meyer v. Temme, 72 111. 
 574.
 
 DUTIES AND POWERS OF GUARDIANS. 649 
 
 charges the debt of his ward, may lawfully indemnify himself 
 out of the ward's estate; or, if he be discharged from his guar- 
 dianship, he may have an action against the ward for money 
 paid for his use.^* But the contract must be consummated and 
 binding on the guardian; a mere negotiation for a loan as 
 guardian, where no money passes, will not be enforced in equity 
 on the contract, even when the guardian gives his own notes, 
 and contracts to give a mortgage on the ward's land.^s The 
 guardian has no power to contract to sell or convey the real 
 estate of his ward.-" AVhere a guardian has ward laboring in his 
 interest, and rendering the guardian services, he is not permitted 
 to charge the ward with board furnished by him as guardian, 
 unless he credits the ward with the value of his services.^^ 
 Where a ward, shortly after arriving at age, was induced by a 
 guardian, and before settlement of his accounts, to convey to 
 him, real estate for the express consideration of $1,300, he pay- 
 ing the ward but $600, and representing that indebtedness 
 amounting to $700 was existing against the land, when such 
 was not the ease, it was held, that as the conveyance was made 
 upon a misapprehension of facts induced by the guardian, the 
 transaction could not be sanctioned in equity.^s But the rule 
 is well settled, that a valid contract may be made between gaiar- 
 dian and ward shortly after the ward attains his majority, 
 where it appears a full consideration had been paid, and no 
 undue influence had been exerted.^^ We have heretofore and 
 under different heads cited many cases, where the guardian by 
 fraud or undue influence had imposed upon the ward before 
 and after majority and in every such a case a court of equity will 
 set such transaction aside. As a general rule, the father is en- 
 
 24 — Parsons on Contracts, Vol. 26 — Boughton v. Cameron, 99 
 
 1, p. 136; Sperry v. Fanning, 80 111. App. 604. 
 
 111. 371; Cunningham v. R. R. Co., 27— Hazelrigg v. Pursley, 69 111. 
 
 77 111. 179. App. 472. 
 
 25— Noble v. Runyan, 85 111. 28— Wickiser v. Cook, 85 111. 69. 
 
 618; Field v. Herrick, 101 111. 115; 29 — Reeve's Domestic Relations, 
 
 Nichols V. Sargent, 125 111. 309. p. 475; Wickiser v. Cook, 85 111. 
 
 69. 
 
 >^
 
 650 THE LxUV OF ESTATES. 
 
 titled to the earnings of a son during minority ; but where a mi- 
 nor son contracts on his own account, for his services, with the 
 knowledge of his father, who makes no objection, there is an im- 
 plied assent, that the son shall be entitled to his eamings.^^ Ex- 
 ecutory contracts of infants are voidable and not binding upon 
 them, unless ratified after reaching majority. But there is an 
 exception to this rule, where necessaries are contracted for un- 
 der certain circumstances and where the minor does not live 
 with his parents.^i 
 
 728. Management by guardian of war-i's estate — ^his duties 
 — education of ward — ward put out and educated. Section 19 
 of the Guardian and Ward Act, provides: "The g-uardian shall 
 manage the estate of his ward frugally and without waste, and 
 apply the income and profit thereof, so far as the same may be 
 necessary, to the comfort and suitable support and education 
 of his ward." Section 20. "The guardian shall educate his 
 ward, and it is made the duty of all civil officers to give infor- 
 mation of any neglect of the guardian to his ward." Section 
 21. "When there is not money of the ward sufficient to teach 
 him to read and write, and the elementary rules of arithmetic, 
 and the guardian fails or neglects to have him so educated, the 
 court shall have power to put out the ward to any other person 
 for the purpose of having him so educated. "^^ The common law 
 powers still exist in Illinois where not changed or modified by 
 statute f^ and the statutory enactments, with the aid of the court, 
 will enable a guardian to meet every duty in the management of 
 his ward's estate that may arise during his term of office. But 
 he cannot delegate his powers, he must perform them.^^ The 
 
 30— Birdsall v. Waggoner, 4 2085, 2086; Vol. 4 p. 668; Vol. 5. p. 
 
 Colo. 264. 284, and authorities cited on pages 
 
 31 — Hutchinson v. McLaughlin, of volumes noted; Kurd's R. S. 
 
 15 Colo. 429. of 111., 1905, p. 1131. 
 
 32— Sections 19, 20, chapter 64, 33— Schmidt v. Shaver, 196 111. 
 
 "Guardian and Ward." Starr & 115, and see notes 1, 2, 3 and 4 
 
 Curtis Annotated Statutes of Illi- of this chapter, 
 
 nois, with Jones & Addington's 34 — Mason v. Wait, 4 Scam. 
 
 Supplements thereto, Vol. 2, pp. (111.) 127.
 
 DUTIES AND POWERS OF GUARDIANS. 651 
 
 husband of a ^ardian has no right to possess or control the 
 estate of a ward, except by express direction of the court.''^ In 
 order to obtain the ward's share of rents and profits in his 
 estate, it is the guardian's duty to institute proceedings for 
 the assignment of dower .ss And insure the ward's property 
 against the risk of fire.^"^ 
 
 729. Investments — guardian's duty. Section 22 of the 
 Guardian and Ward Act, provides : * ' It shall be the duty of the 
 guardian to put and keep his ward's money at interest upon 
 security to be approved by the court, or by investing, on ap- 
 proval of the court, the same in United States bonds, or in the 
 bonds of any county or city which are not issued in aid of 
 railroads, and where the laws do not permit said counties or 
 cities to become indebted in excess of five per cent of the assessed 
 valuation of property for taxation therein, and where the total 
 indebtedness of such County or City does not exceed five per 
 cent of the assessed valuation of property for taxation at the 
 time of such investment. Personal security may be taken for 
 loans not exceeding one hundred dollars. Loans upon real estate 
 shall be secured by first mortgage thereon and not to exceed 
 one-half the value thereof. No mortgage loan shall be made 
 for a longer time than five years nor beyond the minority of 
 the ward: Provided, the same may be extended from year to 
 year without the approval of the court. The guardian shall 
 be chargeable with interest upon any money which he shall 
 wrongfuUy or negligently allow to remain in his hands unin- 
 vested after same might have been invested, "^s Loans upon 
 real estate security made by the guardian, without the approval 
 of court is at guardian's risk; if a loss occurs in such case, he 
 
 35— Holmes v. Field, 12 111. 38— Section 22, chapter 64, 
 
 424 ; Lehman v. Rothbarth, 111 111. "Guardian and Ward." As amend- 
 
 200. ed by act of May 13, 1905. In 
 
 36— Clark v. Burnside, 15 111. force July 1, 1905. See Kurd's R. 
 
 62. S. of 111. 1905, p. 1132. Laws of 
 
 37— Means v. Earls, 15 111. App. 1905, p. 287. 
 273.
 
 652 THE LAW OF ESTATES. 
 
 is liable; good faith will not exonerate him.^^ Investments of 
 the ward's estate are governed by statute of this State and not 
 by the common law,*** 
 
 39 — Hughes v. People, 111 III. Courts can not dispense with a 
 
 457. defective execution of power 
 
 40 — Lamar v. Micou, 112 U, S. created by law, or dispense with 
 
 452; Same v. Same, 114 U. S. 218; any of the formalities required 
 
 Hayes v. Mass. Life Ins. Co., 125 thereby for its due execution, for 
 
 111. 626; Holeman v. Blue, 10 111. otherwise the whole policy of 
 
 App. 130; Hughes v. People, 10 111. legislative enactments might be 
 
 App. 148. overturned. Hunt v. School Dis- 
 
 The guardian can not lawfully trict, 14 Vt. 300; 39 Am. Dec. 
 
 give away his ward's right. Ed- 225; County of Hardin v. McFar- 
 
 sall V. Vandemark, 39 Barb. 599; Ian, 82 111. 138; Tamm v. Lavalle, 
 
 Bank v. Norton, 1 Hill, 576. 92 111. 270.
 
 HATER XLI 
 
 LEASING, MORTGAGING AND SELLING REAL ESTATE 
 BY GUARDIANS 
 
 Sec. 
 730. 
 731. 
 732. 
 
 733. 
 
 734. 
 
 735, 
 
 736. 
 737. 
 
 738. 
 
 Leasing real estate. 
 
 Mortgage of real estate. 
 
 Foreclosure of such mortgage. 
 No strict foreclosure. 
 
 The matter of jurisdiction un- 
 der foreclosure of such 
 mortgage. 
 
 Act of guardian in borrowing 
 money by leave of court is 
 ministerial act. 
 
 Foreclosure in United States 
 Court of such mortgage. 
 
 Bill of review. 
 
 Proceedings to sell real es- 
 tate. 
 
 Requisites of petition, — filing. 
 
 Sec. 
 
 739. Notice, practice, sale. 
 
 740. Return; sale approved, title. 
 
 741. Proceeds of sale; account, re- 
 
 investment. 
 
 742. Non-resident guardian. Pow- 
 
 ers to collect. 
 
 743. Transfer of real estate to non- 
 
 resident guardian. 
 
 744. Conditions follow grant of au- 
 
 thority to non-resident guar- 
 dian. 
 
 745. Sale of real estate by non-resi- 
 
 dent guardian. 
 746 Notice, terms of sale. 
 747. Deeds, title, bond for costs. 
 
 Sec. 730. Leasing real estate. Section 23 of the guardian 
 
 and ward act provides: ''The guardian may lease the real 
 estate of the ward upon' such terms and for such length of time, 
 not extending beyond the minority of the ward, as the County 
 Court shall approve. "^ It is the duty of the guardian to lease 
 such portion of the estate as is set apart to his ward; and the 
 guardian and his estate, for a failure to lease is liable for what- 
 ever might have been received by a faithful discharge of such 
 duty.2 By statute of Illinois, the guardian has no power or 
 right to take possession of the real estate of his ward; the title 
 
 1— Section 23, chapter 64, cited; Kurd's R. S. of 111., 1905, 
 
 "Guardian and Ward." Starr & p. 1132. 
 
 Curtis Annotated Statutes of Illi- 2— Clark v. Burnside, 15 111. 63. 
 nois. Vol. 2, p. 2087, and cases 
 
 653
 
 654 THE LAW OF ESTATES. 
 
 to such or the interest if any, in the real estate is vested in the 
 ward. The guardian as such in his own name has no right or 
 authority to bring actions in relation to the real estate; his 
 power over the real estate of the ward is limited to leasing the 
 same "upon such terms and for such length of time as the 
 County Court shall approve." Though this power is so limited, 
 he may institute proceedings to assign dower to clear the way 
 for renting of the ward's property and this is considered a 
 duty in such case.^ A guardian who leases the lands of his 
 ward without the approval of the court, cannot bind his ward; 
 such transaction is void as to the latter.'* And where the guar- 
 dian stipulated in the lease for the purchase of improvements 
 put on the premises by the tenant, at the end of the term, and 
 signed the lease, "as guardian" he bound himself personally, 
 notwithstanding he proceeded with the approval of the County 
 Court. His remedy, if any, is to be reimbursed by the ward in 
 such case.5 There are no implied covenants in a lease made 
 by a guardian ; express covenants, if any, will bind the guardian.^ 
 
 731. Mortgage of real estate. Section 24 of the same act, 
 provides: "The guardian may, by leave of the County Court, 
 mortgage the real estate of the ward for a term of years not 
 exceeding the minority of the ward, or in fee, but the time of 
 the maturity of the indebtedness secured by such mortgage 
 shall not be extended beyond the time of minority of the 
 ward."' Section 25. "Before any mortgage shall be made, the 
 guardian shall petition the County Court for an order author- 
 izing such mortgage to be made, in which petition shall be set 
 out the condition of the estate, and the facts and circumstances 
 
 3— Muller v. Benner, 69 111. pp. 54; Hughes v. People, 10 111. App. 
 
 109, 110; McElheny v. Musick, 63 148. 
 
 Ill, 328; Morgan v. Johnson, 68 5— Nichols v. Sargent, 125 111. 
 
 111. 190; Field v. Herrick, 101 111. 309. 
 
 110; Burton v. Cameron, 99 111. 6— Webster v. Conley, 46 111. 13. 
 
 App. 604. 7 — Section 24, chapter 64, 
 
 4 — Field v. Herrick, 5 111. App. "Guardian and Ward."
 
 LEASING REAL ESTATE, ETC. 655 
 
 on which the petition is founded and a description of the prem- 
 ises sought to be mortgaged."^ 
 
 732. Foreclosure of such mortgage — no strict foreclosure. 
 
 Section 26. "Foreclosures -of mortgages authorized by this act 
 shall only be made by petition to the County Court where let- 
 ters of guardianship were granted or in case of non-resident 
 minors, in the County Court in which the premises, or some part 
 thereof, are situated, in which proceeding the guardian and 
 ward shall be made defendants ; and any sale made by virtue of 
 any order or decree of foreclosure of such mortgage may, at 
 any time before confirmation, be set aside by the court for in- 
 adequacy of price, or other good cause, and shall not be bind- 
 ing upon the guardian or ward until confirmed by the court. 
 Section 27 of the same act, provides: **No decree of strict fore- 
 closure shall be made upon any such mortgage, but redemption 
 shall be allowed as is now provided by law in cases of sales under 
 executions upon common law judgments. ' '^ 
 
 733. The matter of jurisdiction under foreclosure of such 
 mortgage. The probate courts provided for in the constitution, 
 are courts of limited jurisdiction, and this jurisdiction em- 
 braces four subjects: 1. All probate matters, embracing the 
 settlement of the estates of deceased persons, and in that con- 
 nection, cases for the sale of real estate of deceased persons 
 for the payment of their debts; 2. The appointment of guar- 
 dians and the settlement of their accounts; 3. The appointment 
 of conservators, and the settlement of their accounts, and 4. 
 All matters relating to apprentices.^^* In a mandamus proceed- 
 ing, it is said: "It is evident that in 1873, when this mortgage 
 
 8 — Section 25, chapter 64, 9 — Section 26, chapter 64, 
 
 "Guardian and Ward." See as to "Guardian and Ward." Starr & 
 
 statute reference, notes 7 and 8, Curtis Annotated Statutes of Illi- 
 
 Starr & Curtis Annotated Statute nois, Vol. 2, pp. 2088, 2089, and 
 
 of Illinois, Vol. 2, pp. 2087, 2088, cases cited; Kurd's R. S. of 111., 
 
 and cases cited; Kurd's R. S. of 1905, p. 1132. Law of 1869, p. 372, 
 
 111., 1905, p. 1132. Sec. 2. 
 
 10—96 111. 377.
 
 656 THE LAW OF ESTATES. 
 
 was made, the County Court of Cook county had jurisdiction of 
 the foreclosure of such mortgages, and that such jurisdiction 
 still remains in that court, unless it has been otherwise pro- 
 vided by the general law; for, by section 4 of the schedule to 
 the constitution, it was provided that "the County Court shall 
 have the same power and jurisdiction that they now possess, 
 until otherwise provided by general law." .... In 1877 when 
 the Probate Court was created, the jurisdiction over the foreclos- 
 ure of such mortgages was not regarded as any part of ' ' probate 
 matters, "or of " the settlement of the estates of deceased persons, ' ' 
 or as embraced within the powers of the County Court in re- 
 lation to "the appointment of guardians," and the supervision 
 of guardians in the discharge of their duties; for no one ever 
 thought of instituting proceedings of foreclosure before the 
 County Court, until the passage of the act especially authoriz- 
 ing that to be done, in 1869."^^ And again we have the ex- 
 pression of the court of last resort where it is said: Where 
 the statute confers on the County Court a jurisdiction un- 
 known to the common law, and gives an appeal from the judg- 
 ments and final orders of that court, under such statutory 
 jurisdiction, to the Circuit Court, a writ of error will not lie 
 from the Supreme Court to review the action of the County 
 Court.^- The foreclosure of a mortgage, and, much less, the 
 giving of leave by the County Court to a guardian to mortgage 
 his ward's lands, does not involve a freehold, within the mean- 
 ing of the section relating to appeals and writs of error.^^ And 
 section 12 of the act establishing Probate Courts, relating to 
 writs of error, it is held, is prospective only in its operation, 
 and applies only to decrees and orders of that court, and does 
 not authorize a writ of error to review a decree or final order 
 of the County Court for the mortgage or sale of a ward's land 
 
 11 — People V. Loomis, 96 111. Co. v. Hall, 94 111 152; Pinneo, et 
 
 377. al, V. Knox, 100 111. 471; Akin v. 
 
 12— Kingsbury v. Sperry, 119 Cassiday, 105 111. 22; Schaeffer v. 
 
 111. 279. Burnett. 221 111. 315. 
 
 13 — See Grand Tower Manfg.
 
 LEASING REAL ESTATE, ETC. 657 
 
 by a guardian.!* But the right to foreclose such a mortgage 
 in the United States court, where the requisite citizenship ex- 
 ists and the amount involved is within that jurisdiction, is not 
 affected by such statute; that court has jurisdiction notwith- 
 standing such statute.! 5 
 
 734. Act of guardian in borrowing money by leave of court 
 is ministerial act. In the case of mortgaging the ward 's estate, 
 no title passes until after decree of foreclosure, sale and con- 
 firmation thereafter. No fact under the statute is required to be 
 adjudicated before making the order. The power is given to the 
 guardian, simply, by leave of the court, to perform the minis- 
 terial act of borrowing money and executing a mortgage. It 
 might have been vested in the guardian absolutely, without con- 
 sulting the court, or it might have been vested in some other 
 individual.!® "Judicial power is only invoked when a fore- 
 closure is sought, and then, the ward has all the rights that he 
 can legally assert. And the act, itself in ordering, that the guar- 
 dian have leave to mortgage, though by a court, is the exercise of 
 a ministerial, and not of a judicial, power, and therefore pre- 
 cludes the right to a writ of error.! '^ "No writ of error can be 
 brought but on a judgment, or an award in the nature of a 
 judgment."!^ It is held, under certain circumstances the 
 County or Probate Court, exercising a chancery power in that 
 respect, is empowered to authorize a guardian to borrow money 
 for the prevention of irreparable injury to the estate, and in 
 such case the statute authorizes the court to empower the guar- 
 dian to mortgage the real estate of the ward. But the money 
 borrowed under such order, can only be applied to the purpose 
 for which the authority was given. And so if a mortgage be 
 
 14 — A7ite, chapter 1, sec. 13; 16 — Cooley's Const'l Lim. 1st 
 
 Kingsbury v. Sperry, 119 111. 279. ed., 98, 99. 
 
 15 — Davis V. James, 10 Biss, 17 — 2 Tid's Practice, 3d Am. ed., 
 
 51; United States Mortgage Co. v. 1140, 1141. 
 
 Sperry, 24 Fed. Rep. 838; Same 18 — Kingsbury v. Sperry, 119 
 
 V. Same, 138 U. S. 313; Same v. 111. 285; Kingsbury v. Powers, 131 
 
 Same, 26 Fed. Rep. 727; Lynn v. III. 194. 
 Lynn, 160 111. 314. 
 42
 
 658 THE LAW OF ESTATES, 
 
 executed by the guardian upon the ward's lands, without the 
 sanction of the court, such mortgage is nugatory and void, so 
 far as the interests of the ward are involved.^® 
 
 735. Foreclosure in United States court. Borrowing money 
 to build upon and improve ward's estate by a guardian who 
 gave mortgage was sustained. The Probate Court of Cook county 
 authorized the guardian to borrow the money and execute the 
 mortgage, which was foreclosed in the Federal Court, and it 
 was held, the right to redeem is implied though not mentioned 
 in a mortgage given by guardian.20 
 
 736. Bill of review. A ward may, before bill to foreclose a 
 mortgage given by his guardian, maintain his bill in equity to 
 review the order of the County Court granting leave to give 
 such mortgage, and thereby take advantage of every objection 
 that might be urged on writ of error. 21 And so this right ex- 
 ists to have the entire proceedings reviewed, on bill to foreclose 
 such mortgage by the ward.22 But in such case the guardian 
 is treated as a trustee and is entitled to be reimbursed for all 
 his costs and expenses in accounting. And if both parties are 
 materially in fault, the expenses should be borne equally.^^ And 
 in a proceeding to foreclose such a mortgage the validity of 
 the mortgage and notes may be questioned.^* 
 
 737. Proceedings to sell real estate. Section 28 of the 
 Guardian and Ward Act, provides: ''On the petition of the 
 guardian the County Court of the county where the ward re- 
 sides, or if the ward does not reside in the State, of the county 
 where the real estate, or some part of it is situated, may order 
 the sale of the real estate of the ward, for his support and 
 
 19 — Merritt v. Simpson, 41 111. 22 — Kingsbury v. Powers, 131 
 
 391. 111. 182. 
 
 20 — United States Mortgage Co. 23 — Kingsbury v. Powers 131, 
 
 V. Sperry, 138 U. S. 313. 111. 182-196; Kingman v. Harmon, 
 
 21— Kingsbury v. Sperry, 119 32 111. App. 529. 
 
 111. 279. 24— Deland v. Metzger, 21 111. 
 
 App. 89.
 
 LEASING REAL ESTATE, ETC, 659 
 
 education, when the court shall deem it necessary, or to 
 invest the proceeds in other real estate or for the purpose of 
 otherwise investing the same: Provided, the said County 
 Court shall make no order for a sale under said petition 
 until the said guardian shall have executed and filed a bond, 
 payable to the People of the State of Illinois, with at least 
 two sufficient sureties to be approved by the court, in dou- 
 ble the value of the real estate by said petition sought to be 
 sold, conditioned for the due and faithful accounting for, and 
 disposition of the proceeds of all real estate that may be sold 
 by him, under such order, in the manner provided by law; 
 which bond may be put in suit in the name of the People of the 
 State of Illinois, to the use of any person entitled to recover 
 on a breach thereof, and damages assessed and proceedings had 
 thereon as in other cases of penal bonds. "^^ The guardian has 
 no power to sell real estate of his ward unless authorized by 
 court.2^ And in this regard the guardian must follow the di- 
 rections of the court.^'^ The proceeding is purely statutory, 
 and the requirements of the statute must be followed, a ma- 
 terial deviation is fatal to the jurisdiction of the court.^^ 
 Where a petition was filed by a guardian for leave to sell the 
 real estate of his ward, for the sole purpose of paying off a 
 mortgage on the property, the lower court having granted an 
 order for sale, the case was taken on appeal by the wards to 
 the Supreme Court, and by that court reversed. It being held, 
 in such case the proceedings should not be sustained, unless 
 there is something shown in the petition, more than the mere 
 
 25 — Section 28, chapter 64. 1132. See also section 44, chapter 
 
 "Guardian and Ward." As amend- 41, "Dower Act" {ante 630) Starr 
 
 ed by act approved May 21, 1877. & Curtis, etc.. Vol. 2, p. 1479; 
 
 In force July 1, 1877. Laws, 1877, Kurd's, 1905, p. 772. 
 
 p. 114. Starr & Curtis Annotated 26 — Mason v. Wait, 4 Scam, 
 
 Statutes of Illinois, with Jones & (111.) 127. 
 
 Addington's Supplements thereto, 27 — Lloyd v. Malone, 23 111. 43; 
 
 Vol. 2, p. 2089; Vol. 5, p. 284, and Fitzgibbon v. Lake, 29 111. 165; 
 
 cases cited under section of stat- Spring v. Cane, 86 111. 580. 
 
 ute; Kurd's R. S. of 111. 1905, p. 28— Spellman v. Dowse, 79 111. 
 
 66.
 
 660 THE LAW OF ESTATES. 
 
 opinion of the guardian, and by which the court can see, that 
 a sale would be more advantageous to the interest of the wards, 
 than a sale upon the foreclosure of the mortgage.^^ 
 
 738. Requisites of petition-filing. ''The petition shall set 
 forth the condition of the estate and the facts and circum- 
 stances on which the petition is founded, and shall be signed 
 by the guardian and verified by his affidavit, and shall be filed 
 at least ten days before the commencement of the term of court 
 at which the application shall be made.^o 
 
 739. Notice — practice — sale. Section 30. "Notice of such 
 application shall be given to all persons concerned, by publi- 
 cation in some newspaper published in the county where the 
 application is made, at least once in each week for three succes- 
 sive weeks, or by setting up written or printed notices in three 
 of the most public places in the county, at least three weeks 
 before the session of the court at which such application shall 
 be made. The ward shall be served with a copy of such notice 
 at least ten days before the hearing of such application. "^^ 
 Section 31. "Such application shall be docketed as other 
 causes, and the petition may be amended, heard or continued 
 for further notice, or for other cause. The practice in such 
 cases shall be the same as in other cases in chancery. "^ 2 Sec- 
 tion 32. "The court shall direct notice of the time and place 
 of sale to be given, and may direct the sale to be made on rea- 
 sonable credit, and require such security of the guardian or 
 purchaser as the interest of the ward may require. "^3 Where 
 it appears necessary, and for the best interest of the ward in 
 
 29 — Greenbaum v. Greenbaum, 32 — Section 31, chapter 64, 
 
 81 111. 367. "Guardian and Ward." 
 
 30 — Section 29, chapter 64, 33 — Section 32, chapter 64, 
 "Guardian and Ward." Starr & "Guardian and Ward." As to sec- 
 Curtis Annotated Statutes of Illi- tions of statute, in notes 31, 32, 
 nois, Vol. 2, p. 2090; Kurd's R. S. 33, Starr & Curtis Annotated Stat- 
 of III., 1905, p. 1132. utes of Illinois, Vol. 2, p. 2090, 
 
 31 — Section 30, chapter 64, and cases cited under section; 
 
 "Guardian and Ward." Kurd's R. S. of 111., 1905, p. 1133.
 
 LEASING REAL ESTATE, ETC. 661 
 
 such proceeding to sell land by guardian, the court may order 
 lands surveyed, subdivided and platted.-'^'* Where a decree re- 
 cited ''notice of this application and due notice to ward has 
 been given" held sufficient.^^ Where the statute requires notice 
 of the application of a guardian to sell real estate to be pub- 
 lished in a newspaper at least once in each week for three suc- 
 cessive weeks, or to be posted in three public places at least 
 three weeks before the session of the court at which the appli- 
 cation is to be made, it is sufficient if the notice is published for 
 three successive weeks in a newspaper, and the first publication 
 is made three weeks before the session of the court.^** In the 
 following case, after the lapse of twenty years from the date 
 of a decree for the sale of a ward's land by his guardian, and 
 the destruction of the court records, oral proof of the publica- 
 tion of notice by the guardian of his intention to present the 
 petition for leave to sell, in one of the papers of the county for 
 the time required by law, taken in connection with a recital in 
 what was proved to be a correct copy of the original decree, that 
 it appeared to the court "that due proof of the time, place, 
 and intention of presenting" such petition was made by publi- 
 cation in one of the public papers of the county ''for six suc- 
 cessive weeks," was held satisfactory proof that the requisite 
 notice of the application to sell had been given.^^ A recital in 
 a decree, "that the court found the petition and its statements 
 to be true" on review by the Supreme Court" twenty-five years 
 after its rendition, and where the petition for a guardian's sale 
 was lost, and where the decree shows the presentation of the 
 petition, notice of the application and personal notice to the 
 ward, it was held in such case jurisdiction must be presumed, 
 although it is not alleged and does not affirmatively appear of 
 record, and such presumption is only overcome when the rec- 
 
 34 — Sections 11-13, chapter 109, 35 — Spellman v. Matthewson, 
 
 "Plats," Starr & Curtis Anno- 65 111. 306. 
 
 tated Statutes of Illinois, Vol. 3, p. 36 — Fry v. Bidwell, 74 111. 381. 
 
 2973; Kurd's R. S. of 111., 1905, 37— Spring v. Kane, 86 111. 580. 
 p. 1529.
 
 662 THE LAW OF ESTATES. 
 
 ord itself shows want of jurisdiction-^^ It is held, the fact that 
 a decree or order of court authorizing a guardian's sale may 
 fail to fix a time and place of sale, may be erroneous, does not 
 effect the jurisdiction and render the sale void.^^ 
 
 740. Return — sale approved — title. Section 33. **It shall 
 be the duty of the guardian making such sale, as soon as may 
 be, to make return of such sale to the court granting the order, 
 which, if approved, shall be recorded, and shall vest in the 
 purchaser or purchasers all the interest in the estate so sold."** 
 Agreement of parties not to bid against each other at a guard- 
 ian 's sale, vitiates the sale.*^ Approval by court is necessary in 
 order to divest title of ward.*- An order approving sale was 
 entered sixteen years after sale, nunc pro tunc; but it was 
 established by the records, the sale in fact was approved at the 
 time of report of sale.*^ But in a case where the minors proved 
 seven or eight years after the sale that at the time of filing the 
 petition for the order of sale they were not served, and when 
 the sale was made they were not residents of this State. Held, 
 the court had no jurisdiction, and that such question was prop- 
 erly raised on the motion for the approval of the sale, and that 
 the sale ought not to be approved.** Approval of report of sale 
 should be by order of court and a part of the record.*^ Irregu- 
 larities in proceedings of guardian's sale of real estate may 
 appear by the record, but the sale will not be legally invali- 
 dated.*® The exercise of discretion in approving or disapprov- 
 ing sale is controlled by well established principles.*' 
 
 741. Proceeds of sale — account — ^reinvestment. Section 34, 
 provides: "An account of all moneys and securities received 
 
 38 — Field v. People, 180 111. nois, with Jones & Addington's 
 
 376; Reid v. Morton, 119 111. Supplements thereto. Vol. 2, p. 
 
 118. 2091; Vol. 4, p. 668, and cases 
 
 39 — Benfield v. Albert, 132 111. cited under section Oi. statute; 
 
 665. Kurd's R. S. of 111., 1905, p. 1133. 
 
 40— Section 33, chapter 64, 41— Lloyd v. Malone, 23 111. 43. 
 
 "Guardian and Ward." Starr & 42— Reid v. Morton, 119 111. 118. 
 Curtis Annotated Statutes of Illi-
 
 LEASING REAL ESTATE, ETC, 663 
 
 by any guardian for the sale of real estate of his ward shall be 
 returned, on oath of such guardian, to the county court of the 
 county where letters of guardianship were obtained, and such 
 money shall be accounted for, and subject to the order of the 
 county court, in like manner as other moneys belonging to such 
 minor. In case of sale for re-investment in this State, the 
 money shall be re-invested under the direction of the court."" 
 Where a party, after arriving at age, settles with his guardian, 
 and receives moneys in the hands of the guardian belonging to 
 him, derived from a sale of his real estate, it will be presumed 
 that he received the same with a knowledge of the source from 
 whence it came, and did the act deliberately. In such case he 
 has no rights to adjudicate and is estopped.*' 
 
 742. Non-resident guardian — powers to collect. Section 44 
 of the Guardian and Ward Act provides: "When there is no 
 guardian in the State of a non-resident minor, his guardian ap- 
 pointed and qualified according to the law of the place where 
 the minor resides, having first obtained the authority of the 
 County Court of the county in this State where any of the per- 
 sonal estate of such minor may be, so to do, may collect, by suit 
 or otherwise, receive and remove to such place of residence of 
 the minor, any personal estate of such minor.""" Under this 
 section of the statute, it is not an essential prerequisite that a 
 foreign guardian, who wishes to ascertain the amount of money 
 in the hands of a home guardian first obtain an order of the 
 
 43— Reid v. Morton, 119 111. 118. Curtis Annotated Statutes of Illi- 
 
 44 — Spellman v. Dowse, 79 111. nois. Vol. 2, p. 2092; Kurd's R. S. 
 
 66.' of 111., 1905, p. 1133. 
 
 45— Field v. Peoples, 180 111. 49— Corwin v. Shoup, 76 111. 
 
 389. 246. 
 
 46 — Conover v. Musgrave, 68 111. 50 — Section 44, chapter 64, 
 
 58; In re Steele, 65 111. 322; Har- "Guardian and Ward." Starr & 
 
 vey V. Sweet, 16 111. 127; FitzgiB- Curtis Annotated Statutes of lUi- 
 
 bon V. Lake, 29 111. 165. nois, with Jones & Addington's 
 
 47 — Ayers v. Baumgarten, 15 Supplements thereto. Vol. 2, p. 
 
 III. 444. 2094, Vol. 4, p. 669, and cases cited 
 
 48 — ^Section 34, Chapter 64, under section of statute; Hurd's 
 
 "Guardian and Ward." Starr & R. S. of 111,, 1905, p. 1134,
 
 664 THE LAW OF ESTATES. 
 
 county court for such purpose. The foreign guardian has the 
 right without such order to cause a citation to issue against the 
 home guardian, requiring such to make a settlement of his 
 guardianship, as such proceeding is not considered to be strictly 
 an action to collect money, but merely a proceeding to require 
 the guardian to account and determine the amount of money 
 in his hands.^^ But in order to sue and collect money, the 
 foreign guardian must follow the requirements of the statute, 
 and first obtain an order of the County Court for that pur- 
 pose.^^ 
 
 743. Transfer of estate to non-resident guardian. Section 
 45. When there is a guardian in this State of a non-resident 
 minor, the court may authorize such guardian to pay over and 
 transfer the whole or any part of the ward's property to the 
 non-resident guardian of such ward, appointed and qualified 
 according to the law of the place where the ward resides, upon 
 such terms as shall be proper in the premises, requiring receipts 
 to be passed; and when the whole estate in the hands of a resi- 
 dent guardian shall be so transferred, may discharge him.^^ 
 
 744. Conditions follow grant of authority to non-resident 
 guardian. Section 46. "But the court shall not grant the 
 authority mentioned in sections 44 and 45, except upon petition 
 of such foreign guardian, signed by him and verified by his 
 affidavit, and unless he shall file with the court properly authen- 
 ticated copies of his letters of guardianship and bond, with 
 security in double the amount of the value of the property and 
 estate sought, which shall have been executed and filed in the 
 court which appointed such guardian.' And unless it shall 
 appear to the court that a removal of such estate will not con- 
 flict with the interest of the ward, or the terms of limitation 
 attending the right by which the ward owns the same, or the 
 
 51— McCleary v. Menke, 109 111. 53— Section 45, chapter 64, 
 300-301. "Guardian and Ward." Starr & 
 
 52 — Campbell v. Millar, 84 111. Curtis Annotated Statutes of Illi- 
 App. 215. nois. Vol. 2, p. 2094; Kurd's R. S. 
 
 of 111., 1905, p. 1134.
 
 LEASING /jREAL ESTATE, ETC. 665 
 
 rights of creditors; i|:lie resident guardian shall have ten days' 
 previous notice of such application.^* 
 
 745. Sale of real estate by non-resident guardian. Section 
 47 provides: "Where any person residing in any other State 
 of the United States, or any Territory thereof, shall have been 
 or may hereafter be appointed guardian, in the State or Terri- 
 tory in which such person resides, of any infant or other person 
 owning real estate within this State, not having any guardian 
 in this State, it shall and may be lawful for every such guardian 
 to file his or her petition in the Circuit Court of the county in 
 which said real estate, or the major part thereof, may lie, for 
 sale of said real estate, for the purpose of educating and sup- 
 porting such infant or other persons under guardianship, or for 
 the purpose of investing the proceeds of such real estate in 
 such manner as the court which appointed such guardian may 
 order and direct; and the said Circuit Court is hereby fully 
 authorized and empowered to order a sale of such real estate, 
 conformably to the prayer of said petition. Provided, that 
 every such guardian applying for such sale, shall file with his 
 or her petition an authenticated copy of his or her letters of 
 guardianship. And, provided, further, that the said court shall 
 make no order for a sale under said petition, until the said 
 guardian shall have executed and filed, in the court which 
 appointed said guardian, a bond, with sufficient security, ap- 
 proved by said last mentioned court, for the due and faithful 
 application of the proceeds of every such sale, in such manner 
 as the said last mentioned court may direct, an authenticated 
 copy of which said bond, and the approval thereof, shall be 
 deemed and taken by the Circuit Court as sufficient evidence of 
 the execution and filing of the same. '"^^ The proceeding by a 
 
 54 — Section 46, chapter 64, text see Ante, 742, 743 and cita- 
 
 "Guardian and Ward." Starr & tions. 
 
 Curtis Annotated Statutes of Illi- 55 — Section 47, chapter 64, 
 
 nois, Vol. 2, p. 2094; Kurd's R. S. "Guardian and Ward." Starr & 
 
 of 111., 1905, p. 1134. As to sec- Curtis Annotated Statutes of Illi- 
 
 tions 44 and 45, referred to in nois. Vol. 2, p. 2095; Kurd's R. S. 
 
 of 111., 1905, p. 1134.
 
 666 THE LAW OF ESTATES. 
 
 guardian to sell the real estate of his ward are statutory, and 
 the requirements of the statute, the application for the sale of 
 such real estate shall be made in the county where the ward 
 resides, or, in case the ward does not reside in the State, in some 
 county where the whole or a part of the real estate is situated, 
 is jurisdictional, and any material deviation from these require- 
 ments, as to the court in which the proceedings must be had, is 
 fatal to the jurisdiction of the court. In the case in question, 
 the wards at and before the petition was filed resided in the 
 State of Ohio. The lands in question were in Cook county and 
 the proceedings had in Will county; and no lands sought in 
 said proceedings to be sold were in Will county as a matter of 
 fact.^« 
 
 746. Notice — terms of sale. Section 48 of the same act, pro- 
 vides: ''Every guardian applying for an order of sale under 
 the foregoing section shall be required to give notice of his or 
 her petition in the same manner as is now required by law in 
 cases of application for sales of lands belonging to minors, by 
 resident guardians; and in every order for the sale of real 
 estate under this act, it shall be the duty of the court to pre- 
 scribe the terms of said sale, and the notice which shall be given 
 thereof, and the place where such sale shall be made. "^^ 
 
 747. Deeds — title — bond for costs. Section 49. ''All sales 
 of real estate, under the provisions of this act, are hereby 
 declared to be good and valid; and all deeds executed by such 
 guardian to the purchaser or purchasers under such sales, shall 
 convey to and vest in such purchaser or purchasers all the 
 estate, right, title and interest, in law or equity, of said infant 
 or others in and to the land so sold. Section 50." In all suits 
 and petitions by non-resident guardians, they shall give a bond 
 for costs, as in cases of other non-residents.^* Where the sale 
 
 56 — Spellman v. Dowse, 79 111. nois. Vol. 2, p. 2095; Kurd's R. S. 
 
 69. of 111., 1905, p. 1135. 
 
 57 — Section 48, chapter 64, 58 — Section 49, chapter 64, 
 
 "Guardian and Ward." Starr & "Guardian and Ward." Starr & 
 
 Curtis Annotated Statutes of lUi- Curtis Annotated Statutes of Illi-
 
 LEASING REAL ESTATE, ETC. 667 
 
 of real estate by a foreign guardian of an insane person is 
 made through an agent, the guardian not being present or 
 directing it, and the guardian adopts the act of her agent, and 
 the court approves the sale, there being no exceptions on this 
 account, and the sale is fairly made and for a good price, it will 
 be binding on the purchaser, and it is doubted whether the sale 
 ccfuld be impeached in a direct proceeding. Where the court 
 ordering sale of real estate has jurisdiction of the subject matter 
 and of the parties, even if the proceedings are irregular and 
 erroneous, the purchaser cannot avoid the sale, as the doctrine 
 of caveat emptor applies in all judicial sales.^^ 
 
 nois, Vol. 2, p. 2095; Kurd's R. S. 59— Wing v. Dodge, 80 111. 564. 
 of 111., 1905, p. 1135.
 
 CHAPTER XLIII 
 
 GUARDIANS' SETTLEMENT AND ACCOUNl ING ON 
 FINAL SETTLEMENT 
 
 Sec. 
 
 748. Settlements yearly and final 
 
 settlements. 
 
 749. Powers of courts of probate 
 
 not strictly confined to stat- 
 ute. Common law powers 
 still exist in such, court and 
 apply to guardians. 
 
 750. Under common law account- 
 
 ing was required of all 
 guardians. 
 
 751. Final settlement. 
 
 752. The powers of courts of chan- 
 
 cery will be applied in spe- 
 cial cases when necessary. 
 
 753. Foreign guardian has right to 
 
 take steps to collect money 
 due his ward. 
 
 754. Final settlement, citation, 
 
 limitation, liability of sure- 
 ties. 
 
 755. Examination of guardians' se- 
 
 curity, additional security. 
 
 Sec. 
 
 756. Counter security. 
 
 757. Removal of guardian, sum- 
 
 mons to show cause, notice, 
 resignation. 
 
 758. Tendering written resignation 
 
 will not operate to release. 
 
 759. Effect of guardian's procuring 
 
 a second appointment by 
 court in another county. 
 
 County court cannot remove 
 guardian without citing him 
 to appear. 
 
 Successor, delivery of prop- 
 erty to such. 
 
 Effect of marriage of female 
 ward. 
 
 Final settlement ; unclaimed 
 moneys in hands of guard- 
 ians; deposit of such money. 
 
 Compensation. 
 
 Appeals. 
 
 760. 
 
 761. 
 
 762. 
 
 763. 
 
 764 
 765 
 
 Sec. 748. Settlements — final settlements — accounting on 
 final settlement. Section 14 of the Guardian and Ward Act pro- 
 vides: "The guardian shall, at the expiration of a year from 
 his appointment, settle his accounts as guardian with the County 
 Court, and at least once every three years thereafter, and as much 
 oftener as the court may require." Section 15. "At the expira- 
 tion of his trust he shall pay and deliver to those entitled thereto 
 all the money, estate and title papers in his hands as guar- 
 dian, or with which he is chargeable as such." Section 16. "On 
 
 668
 
 GUARDIANS' SETTLEMENT. 669 
 
 any accounting and final settlement of guardian, he shall exhibit 
 and file his account as such guardian setting forth specifically, 
 in separate items, on what account expenditures were made by 
 him, and sums received and paid out since his last accounting, 
 and all moneys on hand, and an itemized account of all notes, 
 bonds, accounts, and evidences of indebtedness composing the 
 personal estate of his ward; and such guardian shall produce 
 and exhibit to the court the notes, bonds, accounts, and evidence 
 of indebtedness so itemized, and held by him; and it is hereby 
 made the duty of the court to inspect the assets so exhibited. 
 Which account shall be accompanied by proper vouchers and 
 signed by him and verified by his affidavit. ' '^ 
 
 749. Powers of courts of probate not strictly confined to 
 statute — common law powers still exist in such court and apply- 
 to guardians. The common law powers of guardians still exist 
 in this State, where such powers are not inconsistent with statu- 
 tory enactments.^ In the leading and elaborate case. Bond v. 
 Lockwood, Mr. Justice Beckwith very learnedly discusses the 
 jurisdiction and powers of courts of probate, and the scope of 
 the statute, with conunon law powers of such court and guard- 
 ians. It is substantially stated in that opinion: The provisions 
 of the statute relating to guardians were not designed as a 
 complete code, but were enacted to confer upon the County 
 Court power to appoint guardians, and to regulate their con- 
 iduct in accordance with their duties at common law. Some im- 
 perfections in the common law were remedied, and a more 
 simple and convenient mode of procedure introduced. While 
 some of its provisions were declaratory of the common law, 
 many of the powers and duties, rights and liabilities of guard- 
 
 1 — As amended by act approved pp. 2080, 2081, 2082, and cases 
 
 June 27, 1885. In force July 1, cited; Vol. 4, p. 668, and cases 
 
 1885. Laws, 1885, Section (14), cited; Kurd's R. S. of 111., 1905, p. 
 
 chapter 64, "Guardian and Ward." 1131. 
 
 Starr & Curtis Annotated Statutes 2 — Bond v. Lockwood, 33 111. 
 
 of Illinois, with Jones & Adding- 212; Schmidt v. Shaver, 196 III. 
 
 ton's Supplements thereto. Vol. 2, 115.
 
 670 THE liAW OF ESTATES. 
 
 ians are not by the statute, specifically defined. The statute 
 contains such provisions as were necessary to define the nature 
 of the jurisdiction conferred, prescribe the manner of its exer- 
 cise, and correct some defects of the law as it then existed. In 
 other respects, the common law regulating the powers and 
 duties, rights and liabilities of guardians, was left in force. 
 The power of the County Court to compel guardians to render 
 an account of their guardianship is co-extensive with that of a 
 Court of Chancery. In this respect the statute has made no 
 change, but has conferred upon Courts of Probate a summary 
 power, when necessary to exercise, compelling guardians to 
 render accounts upon oath, touching their guardianship; but 
 this power of the court goes still further, for it may require 
 proofs, examine witnesses, and resort to all manner of means 
 necessary to ascertain the truth. It is made the duty of the 
 court under the later statutes, to inspect the assets exhibited 
 with the account, or claimed to be on hand; and of course 
 implied power of inspection gives the court power to ascertain 
 the truth of the value of such.* Its power in that regard are 
 GO-extensive with that of a court of chancery.^ 
 
 750. Under common law accounting was required of all 
 guardians. Guardians by custom of the various cities recog- 
 nized by the common law, guardians by election, in chivalry, 
 and those appointed by ecclesiastical courts, chancery and other 
 courts, and testamentary guardians were all by the common 
 law required to render an account and might be compelled to 
 do so. As heretofore stated the powers of courts of probate to 
 compel guardians to render an account of their guardianship 
 from time to time are co-extensive with a court of chancery. 
 The accounts are to be rendered upon oath and the court may 
 require their settlement.^ The matter of accounting is not an 
 
 3 — 33 111. 212. 6 — See sections 14 to 16, chapter 
 
 4 — In re Steele, 65 111, 324. 64, "Guardian and Ward." For 
 
 5 — Bostwick V. Skinner, 80 111. statute citations see Ante, 748; 
 
 147; People v. Seelye, 146 111. 189; Bond v. Lockwood, 33 111. 220. 
 
 People V. Medart, 166 111. 351.
 
 GUARDIANS' SETTLEMENT. 671 
 
 action either at law or equity, within the meaning of the 
 statute of limitations.'^ It is a summary proceeding provided 
 by statute.® So under the common law and the statute of this 
 State, the court may allow or disallow in whole or in part an 
 account of a guardian, and may, for that purpose examine wit- 
 nesses, may require the production of vouchers, and do all other 
 acts necessary to enable it to arrive at a correct conclusion as 
 to whether or not the account ought to be allowed; and when 
 allowed it is required to be entered of record. The allowance 
 of a guardian's account is a judicial act, and though it is often 
 and necessarily during the minority of the ward, ex parte, it 
 is presumed by law the act was properly performed until the 
 contrary appears. It is prima facie evidence of the correctness 
 of the account allowed.^ All honest errors in accounting may 
 be explained, as such should not be held conclusive upon the 
 guardian.^" But where one not regularly appointed guardian, 
 who arrogates to himself the functions of such, is called to 
 account, he will be held to the strictest possible accounting 
 under the rules of equity.^^ In such case he will when found 
 converting ward's estate to his own advantage, be charged with 
 compound interest.^- Equity will not permit advantage to be 
 taken of the ward on final settlement, even where the account 
 and settlement is approved by the court.^^ If a guardian makes 
 a fictitious account and report to the court, falsely charging 
 himself with money not in fact due from him to his ward, for 
 
 7 — People V. Stewart, 29 111. lews Appeal, 36 Conn. 186; Story's 
 
 App. 441; Gilbert v. Guptill, 34 Eq. Jur. Sec. 91; Bispham's Prin- 
 
 lU. 112; Doolittle v. Bruce, 81 111. ciples of Equity, p. 189, section 
 
 103. 183. 
 
 8 — In re Steele, 65 111. 322; Mc- 11 — Davis v. Harkness, 1 Gilm. 
 
 Cleary v. Menke, 109 111. 294; Gil- (111.) 173. 
 
 lette V. Wiley, 126 111. 310; Ghee- 12— Rowan v. Kirkpatrick, 14 
 
 ney v. Roodhouse, 32 111. App. 49; 111. 1. 
 
 Harvey v. Harvey, 87 111. 54. 13 — Lehman v. Rothbarth, 111 
 
 9— Bond V. Lockwood, 33 111. 111. 200; Carter v. Tice, 120 111. 
 
 220. 277; Gillette v. Wiley, 126 111. 126; 
 
 10— Zw re Steele, 65 111. 326; Bruce v. Doolittle, 81 111. 103; 
 
 Dixon V. Buell, 21 111. 203; Bran- Bennett v. Hanifin, 87 111. 31. 
 don v. Brown, 106 111. 525; Sel-
 
 672 THE LAW OF ESTATES. 
 
 the fraudulent purpose of making his surety liable, a court of 
 equity will interfere at the suit of the surety to correct such 
 reports, and make them conform to the truth as to the amount 
 of money in fact owing by the principal.^* 
 
 751. Final settlement. All questions, in the absence of 
 fraud, relating to a claim of a guardian against his ward, on 
 final settlement in a court of probate, are necessarily involved 
 in the inquiry, or settlement within the jurisdiction of the 
 court ; and when such adjudication and settlement of account is 
 final it is binding upon the ward and all parties interested, 
 except such matters as are not necessarily involved in the 
 determination. A judgment is conclusive upon the parties to 
 it only in respect to the grounds covered by it, and the law 
 and the facts necessary to uphold it.^^ The Illinois cases fol- 
 low the doctrine of the English cases on this subject.^® And 
 where the accounting is not made in accordance with the statu- 
 tory provisions, it is not an adjudication binding upon the 
 ward.^* From the confidential relation between a guardian 
 and his ward, it will be presumed that the ward acts under 
 the influence of the guardian, and all transactions and dealings 
 between them, prejudicially affecting the interests of the ward, 
 will be held to be constructively fraudulent. And this presump- 
 tion continues even after the guardianship has ended, when the 
 matters between the guardian and ward have not yet been fully 
 settled; and transactions between them during the presumed 
 influence, which are injurious to the interests of the ward, will 
 be set aside, unless shown to have been the deliberate act of the 
 ward, after full knowledge of his rights. In all such cases, 
 the burden rests upon the guardian to prove the circumstances 
 
 14_Fogarty v. Ream, 100 111. 111. 338; Miller v. McMannus, 57 
 
 375, and cases cited, extending 111. 128; Williams v. Walker, 62 
 
 the rule by analogy to conserva- 111. 518; Jessup v. Jessup, 102 111. 
 
 tors. See also Slags v. People, 21 480; Smith v. Wilmington Coal 
 
 111. App. 283. Co., 83 111. 498. 
 
 15— Bigelow on Estoppel, p. 22. 17— Hazelrigg v. Parsley, 69 III 
 
 16— Gray v. Gillilian, 15 111. App. 470; Schmidt v. Shaver, 196 
 
 453; McCloskey v. McCormick, 44 111. 108.
 
 GUARDIANS' SETTLEMENT. 673 
 
 of knowledge and free consent on the part of the ward, good 
 faith and absence of influence alone can overcome this presump- 
 tion.^^ And this doctrine was extended to the following case, 
 where the final report was approved by the County Court, a 
 receipt for the balance due the ward was filed, and the guardian 
 discharged, but no money was paid the ward. This being done 
 in the absence of the ward, and without notice to her, and 
 when no one represented her interests. A bill was filed in 
 equity, and the whole proceeding set aside, the sureties having 
 been parties to the procuring of the receipt, were with the 
 principal held liable to the ward, as they were not protected by 
 the settlement and discharge of the guardian.^** And again, 
 where settlement and reports were approved by the Probate 
 Court, in a case where a husband of a guardian makes out 
 reports in his wife's name, and assumes exclusive agency of 
 the trust funds and securities of the wards, under a settlement 
 pressed after they became of age. In proceedings in chancery, 
 the husband was held to account as a trustee and was not per- 
 mitted to take advantage of the final settlement approved by 
 the court.-** 
 
 752. Foreign guardian has right to take steps to collect 
 money due his ward. A foreign curator or guardian of an 
 infant may cause a citation to issue against a guardian ap- 
 pointed in this State, and require him to make a settlement of 
 his guardianship, and thereby ascertain the money in his hands 
 belonging to the ward, without first obtaining an order of court 
 allowing such foreign curator to sue for or collect the same, 
 that proceeding not being strictly an action to collect the 
 money. It is sufficient if he obtains such order before he seeks 
 to collect the money." ^ And in equity, under the general pow- 
 ers of such court over the estates of infants and others under 
 disability, may procure an order for the sale of an infant's 
 
 18— Gillette v. Wiley, 126 111. 111. 200; Harvey v. Harvey, 87 III. 
 
 310. 54 ; Cunningham v. 111. Cent. R. R. 
 
 19— Carter v. Tice, 120 111. 277. Co., 77 111. 178. 
 
 20— Lehman v. Rothbarth, 111 21— McCleary v. Menke, 109 HI. 
 
 43 
 
 294.
 
 674 THE LAW OF ESTATES. 
 
 unproductive property in which such has a reversionary inter- 
 est in fee, in the land sought to be sold, though the latter be 
 situate in another State and where the bill seeking such relief 
 shows that such a course is for the best interests of the infant. ^^ 
 In such case the land may be sold or mortgaged, where it 
 appears proper for the support of the infant.^^ 
 
 753. The powers of courts of chancery will be applied in spe- 
 cial cases when necessary. Where a testator by his will, in- 
 vokes the equitable jurisdiction of the court in relation to a 
 trust fund, and such fund is reduced to possession by the trus- 
 tee, under the direction of the court, this will also confer, inci- 
 dentally, jurisdiction to construe the will creating the trust.^* 
 Where a testator devises funds to a trustee, in trust, to be 
 loaned, and the income to be applied to a child's support dur- 
 ing its life, and at its death the same be paid over to the other 
 children of the testator, if there is a clear intention, to be 
 gathered from the whole will, that such child is to have a main- 
 tenance, the court may order the trustee to make use of the 
 principal when the income is insufficient, notwithstanding the 
 limitation over. The trustee on his own authority, cannot 
 break in upon the capital of the trust fund for maintenance — 
 and this rule is for the benefit of the infant. That the court, 
 in a proper case, possesses such power, is clearly shown by the 
 authorities.^^ The husband of a guardian who takes the estate 
 of the ward in his o\vn management and control may be treated 
 as a guardian de son tort in a court of equity.^^ And where 
 exigencies arise, not contemplated by party creating a trust, or 
 a necessity absolutely arises to grant reliefj it will be found a 
 
 22— Allman v. Taylor, 101 111. 352; Longworth v. Riggs, 123 111. 
 
 185. 263. 
 
 23 — Allman v. Taylor, 101 111. 25 — Perry on Trusts, sees. 616, 
 
 185-186. 618, and cases cited in notes by 
 
 24 — Bailey v. Briggs, 56 N. Y. the author; Longworth v. Riggs, 
 
 407; Strubher v. Belsey, 79 111. 123 111. 263. 
 
 307; Whitman v. Fisher, 74 111. 26 — Lehman v. Rothbarth, 111 
 
 147; Pomeroy's Eq. Sees. 351, 111. 186.
 
 GUARDIANS' SETTLEMENT. 675 
 
 court of chancery is vested with power to relieve.^' And such 
 power was used, where the court considered it proper, to meet 
 the exigencies or the absolute necessity of the case considered 
 as indicated by authorities cited. 
 
 754. Final settlement — citation — limitation — liability of sure- 
 ties. As long as the guardian 's bond is in force, the statute will 
 not bar an accounting. If the party desires to set up the bar 
 of the Statute of Limitations as a defense, he must plead the 
 same.-^ Equity follows the law as to period of limitation; 
 a bill filed to set aside guardian's bond must be filed within the 
 period for action on bond.-*^ A proceeding by citation to re- 
 quire a guardian to account, is not considered an action at law 
 or in equity, within the meaning of the Statute of Limitations.-'^ 
 It is a summary proceeding to determine the amount of money 
 in the hands of the guardian due the ward, and requires an 
 accounting.^ ^ A failure to make final settlement and payment, 
 is a breach of the guardian's bond, upon which a cause of 
 action at once arises against the sureties under the statute."^ 
 In the absence of fraud, the sureties are bound by guardian's 
 settlement and final accounting.^^ There should be no tempta- 
 tion or even suspicion of temptation for the guardian to abuse 
 the trust.2* 
 
 755. Examination of guardian's security — additional securi- 
 ty. Section 35 of the guardian and ward act, provides: "It 
 shall be the duty of the County Court, at each accounting of 
 
 27— Rhoads v. Rhoads. 43 111. lette v. Wiley, 126 111. 310; Chee- 
 
 230; Voris v. Sloan, 68 111. 588; ney v. Roodhouse, 32 111. App. 49. 
 Longworth v. Riggs, 123 111. 264. 32— People v. Brooks, 22 111. 
 
 28 — Bruce V. Doolittle, 81 111. App. 594; and cases cited; Gillett 
 
 104. V. Guptill, 34 111. 112. 
 
 29— Gillette v. Wiley, 126 111. 33— Ream v. Lynch, 7 111. App. 
 
 310; People v. Stewart, 29 111. 162; Gillett v. Wiley, 126 111. 310. 
 App. 441. 34 — 1 Cooley's Blackstone, 2d 
 
 30— Gilbert v. Guptill, 34 111. ed., 461; Barnsback v. Dewey, 13 
 
 112; Bruce V. Doolittle, 81 111. 104. 111. App. 584; Cheeney v. Rood- 
 
 31— In re Steele, 65 111. 322; house, 32 111. App. 49; Lehman v. 
 
 Cleary v. Menke, 109 111. 294; Gil- Rotbbarth, 111 111. 185.
 
 676 THE LAW OF ESTATES. 
 
 the guardian, to inquire into the sufficiency of his sureties. And 
 if, at any time, it has cause to believe that the sureties of a 
 guardian are insufiicient or in failing circumstances, it shall, 
 after summoning the guardian, if he be not before the court, 
 require him to give additional security, "^° 
 
 756, Counter security. Section 36 of the same act, provides : 
 "Upon the application of the surety of any guardian, and after 
 siunmoning the guardian, the court may, if it believes him to be 
 insolvent or in doubtful circumstances, require him to give 
 counter security to his sureties."^® 
 
 757. Removal of guardian — summons to show cause — ^notice 
 — resignation. Section 37, "The county court may remove a 
 guardian for his failure to give bond or security, or additional 
 or counter security, when required, or for failure to make 
 inventory, or to account and make settlement, or support or 
 educate the ward, or when he shall have become insane, or have 
 removed out of the State, or become incapable or unsuitable for 
 the discharge of his duties, or for failure to discharge any duty 
 required of him by law or the order of court, or for other good 
 cause. "^^ Section 38. "Before removing a guardian the court 
 shall summon him to show cause why he should not be removed 
 for the cause alleged. If the guardian has left the State, or 
 cannot be served with process, he may be notified in the same 
 manner as non-resident defendants in chancery, "^^ Section 
 39. "When it appears proper, the court may permit the guar- 
 dian to resign his trust, if he first settles his accounts and de- 
 livers over the estate as by the court directed, ' '^^ Guardians, at 
 
 35 — Section 35, chapter 64, 37 — Section 37, chapter 64, 
 
 "Guardian and Ward." Starr & "Guardian and Ward." 
 
 Curtis Annotated Statutes of lUi- 38— Section 38, chapter 64, 
 
 nois, Vol. 2, p. 2092; Kurd's R. S. "Guardian and Ward." 
 
 of 111., 1905, p. 1133. 39— Section 39, chapter 64, 
 
 36 — Section 36, chapter 64, "Guardian and Ward." Statute 
 "Guardian and Ward." Starr & citations notes 37, 38, 39. Starr & 
 Curtis Annotated Statutes of Illi- Curtis Annotated Statutes of Illi- 
 nois, Vol. 2. p. 2092; Kurd's R. S. nois Vol. 2 pp. 2092. 2093, and 
 of 111., 1905, p. 1133. cases cited; Kurd's R. S. of 111., 
 
 1905. p. 1133.
 
 GUARDIANS' SETTLEMENT. 677 
 
 common law, were treated as trustees, and as such were held re- 
 sponsible for the faithful discharge of the duties imposed upon 
 them. The aid of the courts of chancery has always been in- 
 voked to compel the execution of trusts and the protection of 
 infants. In this respect the statute has made no change, but has 
 given to the County Court power and jurisdiction somewhat 
 summary in its nature over guardians.^" It is held this action 
 being in its nature equitable and the parties not being entitled 
 to a jury, it was not necessary that propositions to be held as 
 law in the decision of the case should be submitted to the Cir- 
 cuit Court in order to present the question whether or not its 
 action was warranted by the law of the case.*^ It is also said, 
 in Wackerle v. People,*- "he now insists that the tender of his 
 resignation as such guardian, and the appointment which he 
 obtained from the Morgan County Court, ousted the jurisdic- 
 tion of the County Court of Scott county. No resignation 
 was allowable at common law except for strong reasons show- 
 ing that the best interests of the ward demanded it."*^ Prior 
 to the passage of the statute on the subject, a guardian could 
 not in this State, as a matter of right, resign his trust.** 
 
 758. Tendering written resignation will not operate to re- 
 lease guardian. Under section 39 of the guardian and ward 
 act,^^ the resignation of the office of guardian is not an abso- 
 lute right, but subject to a determination of its propriety by 
 the court. Nor can it be said that the mere tender of a written 
 resignation to the court is the proper manner to bring the mat- 
 ter before the court. The guardian ought to present his peti- 
 tion to the court for permission to resign his trust, containing 
 some showing by which the court can see that it would be 
 proper, accompanied by a report of the state of his account 
 
 40— Jn re Steele, 65 111. 322; 43— Schouler on Domestic Re- 
 Wackerle v. People, 168 111. 253. lations, 3rd ed., sec. 315; Wack- 
 
 41— Wackerle v. People, 168 111. erle v. People, 168 111. 253. 
 253. 44— Young v. Lorain, 11 111. 624. 
 
 42—168 111. 254. 45— As to statute at large, see 
 
 Ante, 757.
 
 678 THE LAW OF ESTATES. 
 
 as guardian, and offering to settle the same and deliver over 
 the estate as the court may direct. It is held, the County Court 
 properly treated appellant's attempted resignation as mere 
 waste paper, and did not lose jurisdiction over the appellant 
 thereby.*^ 
 
 759. Effect of guardian procuring a second appointment by 
 court in another county. A guardian regularly appointed in 
 one county by a court having jurisdiction of the subject mat- 
 ter and the persons of the guardian and his wards, cannot di- 
 vest that court of jurisdiction by tendering his written resigna- 
 tion and procuring his reappointment by the County Court of 
 another county.*" 
 
 760. County court cannot remove guardian without citing 
 him to appear. Appointment of guardian may be vacated 
 ab initio, where the rights of third persons are not affected by 
 such resignation.*^ But revocation of letters by the court on 
 such resignation is valid as a cause for removal, and cannot 
 be collaterally reviewed.*^ A County Court, however, has no 
 power to remove a guardian without first summoning him to 
 appear and show cause why he should not be removed for the 
 reasons alleged in the petition required by the statute; and 
 this is so even though the guardian has failed to comply with 
 an order of the court requiring him to give a new and sufficient 
 bond.=^'> 
 
 761. Successor — delivery of property to such. Section 40 
 of the Guardian and Ward Act, provides: "Upon the re- 
 moval, resignation or death of a guardian, another may be ap- 
 
 46— Wackerle v. People, 168 111. ute at large, see Ante, 757; Mun- 
 
 page 254. roe v. People, 102 111. 406; Hani- 
 
 47— Pease v. Roberts, 16 111. fin v. Needles, 108 111. 411; Wack- 
 
 App. 634; Wackerle v. People, 168 erley v. People, 168 111. p. 255. 
 
 111. 255. The two former cases cited in the 
 
 48 — Pease v. Roberts, 16 111. Wackerle case, extend the doc- 
 
 App. 634. trine of the text to Executors and 
 
 49— Young V. Lorain, 11 111. 624. Administrators, and by analogy to 
 
 50— Section 38, chapter 64, that of guardians. See Ante, 757. 
 "Guardian and Ward." For stat-
 
 GUARDIANS' SETTLEMENT. 679 
 
 pointed, who shall giv bond and security and perform the 
 duties prescribed in this act. And the court shall have power 
 to compel the guardian so removed or resigned, or the executor 
 or administrator of a deceased guardian, or the conservator 
 of an insane person, or other person, to deliver up to such suc- 
 cessor all the goods, chattels, moneys, title papers, and other 
 effects in his custody or control, belonging to such minor, and 
 upon failure to so deliver the same, to commit the person of- 
 fending to jail, until he shall comply with the order of the 
 court.^^ An order of a Probate Court, directing a guardian 
 to pay over to his successor a certain sum of money in his 
 hands, belonging to the ward, is conclusive upon the guardian 
 and on his sureties, unless the order can be impeached for fraud 
 or collusion.''- And the successor suing on the former guar- 
 dian's bond must allege in the pleadings his own appointment.^^ 
 
 762. Effect of marriage of female ward. Section 41. "The 
 marriage of a female ward shall discharge her guardian from all 
 right to her custody and education, but not to her property."'* 
 
 763. Final settlement — unclaimed moneys in hands of guard- 
 ians — deposit of such money. "That when any guardian shall 
 have made final settlement with the County Court it shall be the 
 duty of the court to order such guardian to deposit with the 
 county treasurer such moneys as he may have belonging to any 
 ward whose whereabouts may be unknown, or belonging to the 
 unknown heir or heirs of any deceased ward, or the heirs of any 
 ward whose whereabouts may be unknown, and to take the re- 
 ceipt of such treasurer therefor, and to file such receipt in the 
 office of the clerk of the County Court where such settlement has 
 been made. ' '^^ 
 
 51 — Section 40, chapter 64, 53 — People v. Steele, 7 111. App. 
 
 "Guardian and Ward." Starr & 20. 
 
 Curtis Annotated Statutes of Illi- 54 — Section 41, chapter 64, 
 
 nois. Vol. 2, p. 2093, and cases "Guardian and Ward." Starr & 
 
 cited; Kurd's R. S. of 111., 1905, Curtis Annotated Statutes of Illi- 
 
 p. 1133. nois, Vol. 2, p. 2093; Kurd's R. S. 
 
 52— Ammons v. People, 11 ITl. 7; of 111., 1905, p. 1134. 
 Ralston v. Wood, 15 111. 159; 55 — Paragraph 51, sec. 1, chap- 
 Ream V. Lynch, 7 111. App. 161. ter 64, "Guardian and Ward."
 
 680 THE LAW OF ESTATES. 
 
 "When money shall be deposited as aforesaid, the person or 
 persons entitled to the same may at any time apply to the court 
 making such order, and obtain the same upon making satisfac- 
 tory proof to the court of his, her or their right thereto. ' '^^ 
 
 764. Compensation. "Guardians, on settlement, shall be 
 allowed such fees and compensation for their services as shall 
 seem reasonable and just to the court."" In re Steele, the court 
 say: "There was no error in the refusal to allow the claims of 
 the guardians against the estate of the deceased. They were 
 all barred by the statute of limitations and by laches. Letters 
 of administration were granted to one of them in 1856. They 
 were appointed guardians in 1855, during a prior administra- 
 tion. The citation was not issued until 1868. This long time, 
 without any attempt at a settlement of the estate, or the pre- 
 sentation of claims in any of the modes provided by statute, 
 must be regarded as a bar to all debts, and we must presume 
 an adjustment of all rights, except those of the infants. The 
 alleged error in refusing compensation for the care and atten- 
 tion to, and the board and clothing of, the infants, does not 
 exist. There was a contrariety of evidence as to the services of 
 the children, and their expenses, and we ought not to disturb 
 the finding of the court. "^* 
 
 765. Appeals. Section 43. "Appeals shall be allowed to the 
 Circuit Court from any order or judgment made or rendered 
 under this act, upon the appellant giving such bond and se- 
 curity as shall be directed by the court ; but no appeal from an 
 order removing a guardian shall, in anywise, ajBfect such or- 
 der, until the same be reversed.^^ On appeal which lies from 
 
 56— Paragraph 52, sec. 2, chap- 57— Section 42, chapter 64, 
 
 ter 64, "Guardian and Ward." An "Guardian and Ward." Starr & 
 
 act approved May 10, 1889. In Curtis Annotated Statutes of Illi- 
 
 force July 1, 1889. Laws 1889, p. nois, Vol. 2, p. 2096; Kurd's R. S. 
 
 166. Starr & Curtis Annotated of 111. 1905, p. 1134. 
 
 Statutes of Illinois, Vol. 2, p. 58— 7n re Steele, 65 111. 327. 
 
 2096; Kurd's R. S. of 111., 1905, p. 59— Section 43, chapter 64, 
 
 1135. "Guardian and Ward." Starr &
 
 GUARDIANS' SETTLEMENT. 681 
 
 order approving final account and settlement of guardian, the 
 court must give direction for bond and security ; and such bond 
 must be filed and appeal taken during the proper term of the 
 court. '^•^ And an appeal from an order requiring guardian to 
 pay to his ward who has reached majority a sum of money 
 found due by the court on final settlement, is tried de novo in 
 the Circuit Court.®^ The trial in the Circuit Court is generally 
 de novo; the remedy is by appeal and not by writ of error.*^ 
 
 Curtis Annotated Statutes of Illi- 60 — McFarland v. McFarland, 4 
 
 nois, with Jones & Addington's 111. App. 157. 
 
 Supplements thereto, Vol. 2, p. 61 — Hazelrigg v. Pursley, 69 111. 
 
 2093; Vol. 4, p. 669, and cases App. 469. 
 
 cited under section of statute in 62 — Kingsbury v. Sperry, 119 
 
 question in each volume; Kurd's 111. 283; Ennis v. Ennis, 103 111. 
 
 R. S. of 111., 1905, p. 1134. 95; Condon v. Churchman, 32 111. 
 
 App. 317.
 
 CHAPTER XLIV 
 
 IDIOTS, LUNATICS, DRUNKARDS AND SPENDTHRIFTS 
 
 Sec. 
 
 766. Grcneral and introductory re- 
 
 marks. 
 
 767. Proceedings to determine 
 
 questions of sanity. 
 
 768. Summons, service, hearing, 
 
 jury continuance, appoint- 
 ment of conservator. 
 
 769. Bond of conservator, addi- 
 
 tional bond, counter securi- 
 ty. 
 
 770. Summons and notice must be 
 
 served. 
 
 771. When a court of equity will 
 
 adjudicate as to insanity. 
 
 772. The bond must comply with 
 
 the statute. 
 
 Sec. 
 
 773. Care of estate, custody of per- 
 
 son, children. 
 
 774. Inventory, form of same. 
 
 775. Settlements, final manner of 
 
 accounting, power to adjust 
 claims. 
 
 776. Performance of contracts, le- 
 
 gal proceedings, appearance 
 by conservator. 
 
 777. Contracts, when and as to 
 
 whom void. 
 
 778. One knowingly dealing with 
 
 insane person is deemed 
 guilty of fraud. 
 
 779. What contracts voidable. 
 
 780. Swindling an idiot or lunatic. 
 
 781. Management of estate. 
 
 Sec. 766. General remarks. Conservators in the strict sense 
 of the word are guardians of the person and property of the 
 idiot, insane or distracted person, the drunkard and spend- 
 thrift. Such persons under disability are governed practically 
 by statute law of the State of Illinois, similar to that relating 
 to guardian and ward; and in many respects the duties of the 
 conservator and the guardian of minors are similar; for the 
 statutory enactments applicable to both are almost identical. 
 Of necessity, when such statute law is construed, it applies in 
 principle to both the conservator of the insane and the guar- 
 dian of minors. When a conservator is properly appointed 
 by a court of competent jurisdiction and under such appoint- 
 ment qualifies, he is vested with power to care for the estate 
 of the idiot, insane or distracted person, drunkard and spend- 
 
 682
 
 idiot's, lunatics, drunkards, etc. 683 
 
 thrift; and if required by the court has in some respect cus- 
 tody of the person of such. In Illinois, a conservator has 
 merely the care and management of his insane ward's estate, 
 without title thereto; and any action therefor affecting the title 
 to such real estate must be brought against the ward; the judg- 
 ment must be against him, and not against the conservator.' 
 The statute, relating to such provides: "The conservator shall 
 manage the estate of his ward frugally and without waste, and 
 apply the income and profits thereof, so far as the same may be 
 necessary, to the comfort and suitable support of his ward and 
 his family, and the education of his children."^ Section 5 of 
 the same act provides: "Such conservator shall have the 
 care and management of the real and personal estate of his 
 ward, and the custody of his person, unless otherwise ordered 
 by the court; and the custody and education of his children 
 where no other guardian is appointed, unless the court 
 orders otherwise."^ For the detention of the lunatic no appeal 
 lies, but the law allows him a remedy by the writ of habeas 
 corpus.* Under the early statutes of this State, provision only 
 was made for the care and custody of the estates of insane per- 
 sons; and while the early statute provided for the commitment 
 and detention of the insane pauper, the commitment of insane 
 not classed as paupers was not provided for.^ Paupers whether 
 idiots, or otherwise, became public charges of the overseer of 
 the toAvnship or the county authorities. Such could be detained 
 and committed, where there were no relations specified by 
 statute, that might be made to contribute in whole or in part 
 to the support of such.® 
 
 1— Scott V. Bassett, 194 111. 602. 3— Section 5, chapter 86, "Luna- 
 
 2 — Section 17, chapter 86, tics, etc." For statute at large see 
 
 "Lunatics, etc." Starr & Curtis Post, 773, and citations as to Starr 
 
 Annotated Statutes of Illinois, & Curtis, and Hurd. 
 
 with Jones & Addington's Supple- 4 — People v. Gilbert, 115 111. 60. 
 
 ments thereto. Vol. 2, p. 2667; 5 — ^Revised Statutes, 1845, chap- 
 
 Vol. 4, p. 817, and cases cited un- ter 50. City of Alton v. County of 
 
 der section of statute in eacll Madison, 21 III. 115-116. 
 
 volume; Kurd's R. S. of 111., 6 — See Session Laws, 1837, p. 
 
 1905, p. 1347. See also post, 781. 21: Statutes of 1845, chapter 50;
 
 684 THE LAW OF ESTATES. 
 
 767. Proceedings to determine question of sanity, etc. Sec- 
 tion 1. "Lunatics, idiots^ drunkards and spendthrifts," pro- 
 vides: "When any person having any estate, real or personal, 
 shall be, or be supposed to be, an idiot or an insane, distracted 
 or feeble minded person, who, by reason of unsoundness of 
 mind, is incapable of managing or caring for his own estate, 
 or when any person having any estate shall be, or be supposed 
 to be a drunkard or spendthrift who is alleged so to spend, 
 waste or lessen his estate as to expose himself or his family to 
 want or suffering, or any county, town or incorporated city, 
 or village to any charge or expense for the support of himself 
 or his family, the County Court of the county wherein such 
 person resides, shall, on the proper application of any reputable 
 citizen of such county, proceed in the manner hereinafter pro- 
 vided, to ascertain whether such person be an idiot or an insane, 
 distracted or feeble minded person, who, by reason of unsound- 
 ness of mind, is incapable of managing and caring for his own 
 estate, a drunkard or spendthrift as aforesaid. Provided, that 
 in any county wherein a Probate Court is or hereafter may be 
 established, such application shall be made to said Probate 
 Court "^ 
 
 768. Summons, service, hearing, jury, continuance — appoint- 
 ment of conservator. Section 2 of the same chapter, as amended 
 in 1903 is as follows: "On any application for the appoint- 
 ment of a conservator of any person being filed, the court shall 
 set aside cause for hearing, summons shall be issued returnable 
 
 Laws of 1853, p. 262; an act to Curtis Annotated Statutes of Illi- 
 
 amend chapter 50 of the Revised nois, Vol. 2, p. 2657; Kurd's R. S. 
 
 Statutes, entitled "Idiots and of 111., 1905, same section and 
 
 Lunatics" and extending the pro- chapter, p. 1342. 
 visions thereof to habitual drunk- 7 — Section 1, chapter 86, as 
 
 ards. Passed and in force, April amended by law of 1903, page 
 
 19, 1869; Smith v. Bartholomew, 247; passed May 16, 1903. In force 
 
 65 111. 375. See also section 24, July 1, 1903. Starr & Curtis An- 
 
 chapter 85, entitled "Lunatics" notated Statutes of Illinois, with 
 
 granting such the benefit of the Jones & Addington's Supplements 
 
 writ of habeas corpus. Starr & thereto, Vol. 5, p. 374; Kurd's R. 
 
 S. of 111., 1905, p. 1345,
 
 IDIOTS, LUNATICS, DRUNKARDS, ETC. 685 
 
 on any day of the term, and service shall be had upon the per- 
 son for whom a conservator is sought to be appointed, in the 
 same manner by summons or otherwise as service is had in 
 chancery. At the time fixed for the hearing a jury of six 
 persons shall be empaneled to try the case; the court may, for 
 good cause, continue the case from time to time. If any per- 
 son be found an idiot, insane person, distracted or feeble 
 minded person, drunkard or spendthrift, and by reason of such 
 condition incapable of managing or caring for his own estate, it 
 shall be the duty of the court to appoint a conservator for 
 such person."^ 
 
 769, Bond of conservator — additional bond — counter se- 
 curity. Section 3 of the same act as amended by law of 1903 
 is as follows: ''The conservator so appointed shall before en- 
 tering upon the duties of his office give bond payable to the 
 People of the State of Illinois, with at least two sufficient sure- 
 ties to be approved by the couyt at least in double the amount 
 of the ward's personal estate and six times the amount of the 
 gross annual income of the ward's real estate, provided, how- 
 ever, if such real estate is improved or is covered in whole 
 or in part with timber or is improved in part and in part cov- 
 ered with timber, the penal sum in said bond shall be increased 
 by an amount at least double the value of said improvements or 
 of said timber or of bothj as the case may be, with such condi- 
 tions as near as may be as provided, in the case of bonds of the 
 guardians of infants. Additional bonds and counter security 
 may be required as hereinafter provided.^ 
 
 770. Summons and notice must be served. In a proceeding 
 under the statute to procure the appointment of a conservator 
 to a lunatic, the record should show affirmatively, that notice 
 was served and reasonable notice given, or the inquisition will 
 
 8 — Section 2, chapter 86, "Luna- tics, etc.," as amended by law 
 tics, etc." Same statute citations of May 16, 1903. Starr & Curtis 
 as note 7, Ante, 161. Annotated Statute of Illinois, etc., 
 
 9 — Section 3, chapter 86, "Luna- Vol. 5, p. 375; Kurd's Statute, 
 
 1905, p. 1346. See note (7).
 
 686 THE LAW OF ESTATES. 
 
 be set aside. If the party be actually lunatic, the notice can do 
 no harm; but if he be sane it is of the most momentous im- 
 portance to him, and at any rate it must be his legal right.^* 
 The statute of 1845 relating to the "appointment of a con- 
 servator of an insane or distracted person having an estate, real 
 or personal," and the statute of 1853, relating to the "sale of 
 real estate of lunatics or distracted persons," applied to insane 
 married women, as well as others, and this notwithstanding, 
 at the time these statutes were passed, the common law govern- 
 ing the rights of married women obtained in this State.^^ The 
 validity of the appointment of a conservator for a lunatic like 
 that of an administrator, cannot be attacked or questioned in 
 a collateral proceeding, such as a suit to set aside the sale of 
 land by the conservator under a decree of court.^^ Manage- 
 ment of property will not be taken from one supposed to be 
 insane without notice and a hearing." 
 
 771. When a court of equity will adjudicate as to insanity. 
 
 In the case of Pyott v. Pyott,^^ it is said: "It is urged with 
 great earnestness that the Circuit Court, which rendered the 
 decree, was without jurisdiction as to the insanity of P. The 
 position of counsel seems to be, the issue of insanity having 
 been raised by the pleadings the Circuit Court should have 
 suspended further proceedings, and directed an inquisition, 
 in conformity to the common law, or under the provisions of 
 chapter 85 or 86 of the Revised Statutes of the State of Illinois, 
 should be had and taken and the sanity of P. determined and 
 the result certified to the Circuit Court, and that, at all events, 
 it was essential the issue of insanity should have been submitted 
 to and determined by a jury. Held: the chancery court could 
 determine such issue without a jury. After an inquisition and 
 
 10— Eddy V. People, 15 111. 386. Duffin v. Abbott, 48 111. 18; 
 
 11— Gardner v. Maroney, 95 111. Schmidt v. Pierce, 17 111. App. 
 552. 523. 
 
 12— Dodge V. Cole, 97 111. 338; 13— Isle v. Cranby, 101 111. App. 
 Wright V. Walburn, 39 111. 563; 222. 
 
 14—191 111. 289.
 
 IDIOTS, LUNATICS, DRUNKARDS. ETC. 687 
 
 appointment of a conservator for an insane person under the 
 statutory provisions on the subject, all suits and proceedings 
 in behalf of the lunatic should be brought by the conservator, 
 unless the interests of the conservator are adverse to those of 
 the ward, or for other sufficient reasons the court shall deem it 
 better to appoint some other person as next friend to appear 
 for, counsel, prosecute or defend for such insane person. ^° 
 Before such inquisition, the rule which now obtains in both 
 England and the United States is, that a lunatic may sue in 
 his own name by some proper person appointed or recognized 
 by the court as the next friend or guardian ad litem for the 
 insane person.^'' When the mental capacity of a party 
 to a proceeding arises for determination as an issue in 
 a case in chancery (other than under bill to contest a will), 
 the better practice is to cause the question of sanity to be sub- 
 mitted to a jury for an advisory verdict; but the court is not 
 without jurisdiction to hear and determine the question with- 
 out a jury, and even upon verdict rendered by a jury the court 
 may decline to accept the finding of the jury and decide for 
 itself the issue, upon the evidence presented in the case.^^ The 
 court may substitute next friend and make the appointment 
 when necessary so to do.^^ 
 
 772. The bond must comply with the statute. The bond re- 
 quired by the statute runs in the name of the People for the 
 use of the ward, and not for the purpose of securing outside 
 parties.^® So where the bond of a conservator was given by a 
 surety company, and such bond failed to comply with the pro- 
 yisions of the 3rd section of chapter 86 aforesaid,-" which re- 
 
 15—16 Am. & Eng. Ency. of 18— lago v. lago, 168 111. 343; 
 
 Law, 2d ed., p. 601, and cases Isle v. Cranby, 199 111. 47; 
 
 cited in notes; see also post 776. Howard v. Howard, 1 L. R. A. 
 
 16—16 Am. & Eng. Ency. of (Ky.) 610; Pyott v. Pyott, 191 111. 
 
 Law, 2d ed., p. 600. 289. 
 
 17— Brown v. Miner, 128 111. 19— Witham v. People, 89 111. 
 
 148. See also. Dodge v. Cole, 97 App. 105. 
 
 111. 338; Neutzel v. Neutzel, 13 111. 20— For statute at large and ci- 
 
 App. 542; Roughan v. Morris, 87 tation see ante, 767. 
 111. App. 645.
 
 688 THE LAW OP ESTATES. 
 
 quires two sureties, where only one was given, it was held if 
 the statute is valid, the bond was not only properly disap- 
 proved, having but one surety where two are required, but as 
 the case involved the construction of the statute, the Appellate 
 Court decided it could not pass upon the same.-^ Section 4 
 of the act provides, ' ' that suit may be brought on such bond in 
 the name of the People, for the use of any person entitled to 
 recover on the breach thereof, and damages adjudged on pro- 
 ceedings had thereon as in other cases of penal bonds.-^ 
 
 773. Care of estate — custody of person — children. Section 5 
 of chapter 86, provides: "Such conservator shall have the 
 care and management of the real and personal estate of his 
 ward, and the custody of his person unless otherwise ordered 
 by the court, and the custody and education of his children 
 where no other guardian is appointed, unless the court orders 
 otherwise; but this act shall not be so construed as to deprive 
 the mother of the custody and education of the children without 
 her consent, if she be a fit and competent person to have such 
 custody and education."-^ 
 
 774. Inventory — form of same. Section 6 of the same chap- 
 ter, provides: "The conservator shall, immediately upon his 
 appointment, take charge of the estate of his ward, and within 
 sixty days after such appointment, or if the court is not in ses- 
 sion at the expiration of that time, at the next term thereafter, 
 return to the court a true and perfect inventory of the real 
 and personal estate of the ward, signed by him and verified by 
 his affidavit, etc. Section 7 provides: The inventory shall de- 
 scribe the real estate, its probable value and rental, and state 
 whether the same is incumbered, and if incumbered, how and 
 for how much ; what amount of money is on hand, and contain a 
 list of all personal property, including annuities and credits 
 
 21— People V. Church, 103 111. notated Statutes of Illinois, Vol. 
 App. 133. 2, p. 2664; Kurd's R. S. of 111., 
 
 22— Section 4, chapter 86, "Lu- 1905, p. 1346. 
 natics, etc." Starr & Curtis An- 23 — Section 5, chapter 86, "Lu- 
 natics, etc."
 
 IDIOTS, LUNATICS, DRUNKARDS, ETC. 689 
 
 of the ward, designating them as 'good,' 'doubtful' or 'des- 
 perate, ' as the ease may be. ' '^* 
 
 775. Settlements — final — manner of accounting — power to 
 adjust claims. Section 8 provides: "The conservator shall, at 
 the expiration of a year from his appointment, settle his ac- 
 counts as conservator with the County Court, and at least once 
 each one year thereafter, and as much oftener as the court may 
 require. ' ' Section 9 provides : ' ' Such conservator at the expira- 
 tion of his trust, shall pay and deliver to those entitled thereto, 
 all the money, estate and title papers in his hands as conserva- 
 tor, or with which he is chargeable as such, in such manner 
 as shall be directed by the order or decree of any court hav- 
 ing jurisdiction thereof." Section 10: "On every accounting 
 or final settlement of a conservator, he shall exhibit and file 
 his account as such conservator, setting forth specifically, in 
 separate items, on what account expenditures were made by 
 him, and all sums received and paid out since his last account- 
 ing, and on what account each was received and paid out, and 
 showing the true balance of money on hand — which account 
 shall be accompanied by the proper vouchers, and signed by 
 him and verified by his affidavit." Section 11: "The con- 
 servator shall settle all accounts of his ward, and demand and 
 sue for and receive in his own name, as conservator, all per- 
 sonal property of and demands due the ward, or with the ap- 
 probation of the court, compound for the same, and give a 
 discharge to the debtor upon receiving a fair and just dividend 
 of his estate and effects. "^^ This was the law of 1869, incor- 
 porated in act of 1874. Laws of 1869, p. 363, sec. 5 ; E. S. 1845, 
 p. 277, sec. 4. Where a conservator for a period of thirteen 
 years failed to keep accounts and rendered no reports, it was 
 
 24 — Sections 6 and 7, chapter 86, Curtis Annotated Statutes of Illi- 
 
 "Lunatics, etc." Starr & Curtis nois. Vol. 2, p. 2665, and cases 
 
 Annotated Statutes of Illinois, Vol. cited; Kurd's R. S. of 111.. 1905, 
 
 2, pp. 2664, 2665; Kurd's R. S. of p. 1347. These sections give the 
 
 111., 1905, p. 1346. law of 1869, incorporated in the 
 
 25— Sections 8, 9, 10, 11, chap- act of 1874. Laws of 1869, p. 363, 
 
 ter 86, "Lunatics, etc." Starr & sec. 5; R. S. 1845, p. 277, sec. 4. 
 44
 
 690 THE LAW OF ESTATES. 
 
 held he was not entitled to compensation; and was estopped 
 from claiming allowance for services during such time.^'^ The 
 yearly reports of a conservator, are only prima facie evidence 
 upon the final accounting, and this is so, notwithstanding the 
 yearly accounts have been duly approved. Upon the final ac- 
 counting, such yearly accounts may be re-opened, and the costs 
 occasioned by contesting the yearly reports, in certain cases 
 may be taxed to the conservator.^' A claim not included in 
 conservator's inventory or account is not barred in subsequent 
 suit by ward.^^ 
 
 776. Performance of contracts — legal proceedings, appear- 
 ance by conservator. Section 12 of the act, provides: "The 
 conservator, by permission and subject to the direction of the 
 court which appointed him, may perform the personal con- 
 tracts of his ward, mad6 in good faith and legally subsisting 
 at the time of the commencement of his disability, and which 
 may be performed with advantage to the estate of the ward.'* 
 Section 13: "He shall appear for and represent his ward in 
 all suits and proceedings, unless another person is appointed for 
 that purpose, as conservator or next friend; but nothing con- 
 tained in this act shall impair or affect the power of any court 
 to appoint a conservator or next friend to defend the interest 
 of said ward impleaded in such court, or interested in a suit or 
 matter therein pending, nor its power to appoint or allow any 
 person, as next friend of such ward, to commence, prosecute 
 or defend any suit in his behalf, subject to the direction of 
 such court. "^* Although a lunatic or insane person is not 
 
 2Q—In re Conservatorship of 29— Sections 12, 13, chapter 86, 
 
 Hall, 19 111. App. 295. "Lunatics, etc." Starr & Curtis 
 
 27 — Wilcox V. Parker, 23 111. Annotated Statutes of Illinois, 
 
 App. 429. See also, accounting with Jones & Addington's Supple- 
 
 and settlement by executor, ad- ments thereto, Vol. 2, pp. 2665, 
 
 ministrator and guardian, under 2666, and cases cited; Vol. 4, p. 
 
 chapters in this work relating 816, and cases cited; Vol. 5, p. 
 
 thereto; and authorities where 375, and cases cited; Kurd's R. S. 
 
 duties are similar. of 111., 1905, p. 1317. In lieu of 
 
 28— Raymond v. Vaughn, 17 111. law of 1869, p. 366, sec. 6; R. S. 
 
 App. 144. 1845, p. 277, sec. 5.
 
 IDIOTS, LUNATICS, DRUNKARDS, ETC. 691 
 
 punishable criminally, he is liable in a civil action for any tort 
 he may commit.^" In an action by the personal representative 
 of a person wrongfully killed, against the estate of the party 
 killing, to recover compensation for the death, evidence of the 
 insanity of the latter party at the time of his wrongful act 
 causing the death, is inadmissible when offered in defense of 
 the action. A lunatic having no will of his own, and his acts 
 lacking the element of intention, the only proper measure of 
 damages in an action against him for a wrong, is the mere 
 compensation of the party injured. Punishment is not the ob- 
 ject of the law when persons unsound in mind are the wrong- 
 doers.^^ There is no statute authorizing the allowance of claims 
 against the estate of an insane person in the hands of his con- 
 servator, and the allowance of the same in the County Court 
 will be a nullity. The proper remedy of a creditor of one who 
 is adjudged to be insane, is by suit against the conservator as his 
 representative, under which the creditor may have any prop- 
 erty of the insane person sold under execution.^^ And so until 
 the appointment and qualification of a conservator for an in- 
 sane person, it is clear that suit may be brought in such per- 
 son's name for the recovery of a debt due him.^^ In a case 
 where there was no conservator appointed under the statute, 
 it was held, that suit for lunatic might be instituted in name 
 of his next friend on his behalf.^* In suits in chancery by an 
 insane person suing by next friend where no conservator has 
 been appointed, the court treats the proceeding as proper.^*^ 
 If the court has taken jurisdiction of a case by permitting a 
 
 30— Cooley on Torts, sees. 99, 33 — Chicago R. I. and Pacific Ry. 
 
 103; Sherman and Redfield on Co. v. Hunger, 78 111. 300; Speck 
 
 Negligence, section 57; Mclntyre v. Pullman Palace Car Co., 121 111. 
 
 V. Sholty, 24 111. App. 605; Same 33. 
 
 V. Same, 121 111. 600. 34— Ryder v. Topping, 15 111. 
 
 31— Mclntyre v, Sholty, 121 111. App. 216. 
 
 600. 35 — Van Buskirk v. Van Bus- 
 
 32— Morgan v. Hoydt, 69 111. kirk, 148 111. 9; Ronan v. Bluhm, 
 
 App. 489; Fruitt v. Anderson, 12 173 111. 277; Pyott v. Pyott, 191 
 
 111. App. 430. 111. 280; 16 Am. & Eng. Ency. of 
 
 Law, 2d ed., p. 601.
 
 692 THE LAW OF ESTATES. 
 
 bill to be filed in the name of an alleged insane person by a 
 party appointed by the court as next friend, the fact that the 
 alleged insane person appears by attorney and moves to dis- 
 miss the case does not oust the court of jurisdiction; but the 
 court may investigate the mental condition of such person, 
 either by hearing evidence and passing upon the question or 
 by submitting the question to a jury.^® The presumption is, 
 that adult persons of sound mind are capable of managing their 
 own affairs, and caring for their own estates; and the mere 
 fact that it is alleged in an affidavit filed in support of a mo- 
 tion by a person asking that he be appointed the next friend 
 to a particular person who, it is alleged, is of unsound mind 
 and not capable of taking care of his own affairs, does not 
 destroy that presumption.^' 
 
 777. Contracts, when and as to whom void. Section 14 of 
 chapter 86, provides: "Every note, bill, bond or other con- 
 tract by an idiot, lunatic, distracted person or spendthrift, 
 made after the finding of the jury, as provided in section 1 
 of this act, shall be void as against the idiot, lunatic, distracted 
 person, drunkard or spendthrift, and his estate ; but the person 
 making any contract with such idiot, lunatic, distracted person 
 or spendthrift shall be bound thereby. "^^ Although a person 
 may have been adjudged insane, yet, if no conservator has been 
 appointed, and he is in the management of his business, and 
 there is nothing about his appearance to indicate his incapacity 
 to contract, if he purchases an article at a fair and reasonable 
 
 36_isle V. Cranby, 199 111. 39. ton v. Hall, 55 Minn. 22; Beall v. 
 
 37_Isie V. Cranby, 199 111. 39. Smith, L. R. 9 Ch. 85; Jones v. 
 In the latter case it is held: If Lloyd, L. R. 18 Eq. 265; Denny v. 
 a person of unsound mind has not Denny, 8 Allen, 311; Story's Eq. 
 been so adjudged or has no con- Pleading, sec. 66; Malin v. Malin, 
 servator, a suit to protect the Johns. Ch. 240. 
 rights of such person may be 38 — Section 14, chapter 86, 
 brought in his name by some re- "Lunatics, etc." Starr & Curtis 
 sponsible party appointed by the Annotated Statutes of Illinois, 
 court to represent him as next Vol. 2, p. 2666, and cases cited un- 
 friend. See the following lead- der section of statute; Hurd's R. 
 ing cases on the subject: Plymp- S. of 111., 1905, p. 1317.
 
 IDIOTS, LUNATICS, DRUNKARDS, ETC. 693 
 
 price, necessary and useful in his business, the seller having 
 no notice of his being adjudged insane, he will be liable to pay 
 the price he agreed to pay, and it will be error to enjoin a judg- 
 ment on a note given for the price.^^ The same authority hold- 
 ing, notwithstanding the statute, a contract made with a lunatic 
 in a lucid interval, is binding, and may be enforced against 
 him.*" The fact that a person has been adjudged lunatic or 
 insane, and is under the ban of the law when he gave a note, 
 is a legal defense to an action thereon, and should be made 
 at law when suit is brought on note and not attempted in 
 equity.*^ And where a conveyance of land is set aside in equity 
 on the ground of the insanity or lunacy of the grantor, and 
 an account taken, the grantee, having purchased in good faith, 
 without any knowledge of the alleged insanity, will be enti- 
 tled to be reimbursed that which he has paid on the same.*^ 
 And where an insane person received the benefit of all the pur- 
 chase money received from a sale made by his conservator, and 
 it appeared that at the time of receiving it, he had sufficient 
 capacity to transact business intelligently, and that he compre- 
 hended what had been done; it was held, that he was estopped 
 from afterwards denying the validity of such sale.*^ To im- 
 peach a contract for mental incapacity the mental weakness 
 must have been such that the party was incapable of under- 
 standing what he was doing, or comprehending the terms, 
 scope and effect of his contract.** Where, as in Illinois, a con- 
 servator has merely the care and management of his insane 
 ward's real estate, without title thereto, an action affecting the 
 title to such real estate should be brought against the ward, 
 
 39— McCormick v. Littler, 85 111. 85 111. 296-299; Menkins v. Light- 
 
 62. ner, 18 111. 282. 
 
 40— Chitty on Contracts, 8 Am. 43— Searle v. Galbraith, 73 111. 
 
 ed. 132; 4 Parsons on Contracts, 271. 
 
 4tli ed. 314; Lilly v. Waggoner, 27 44— Sands v. Potter, 165 111. 
 
 111. 395. 397; Miller v. Craig, 36 111. 109; 
 
 41— McCormick v. Littler, 85 Willemin v. Dunn, 93 111. 511; 
 
 111. 62. Kimball v. Cuddy, 117 111. 213. 
 
 42 — Scanlon v. Cobb, Guardian,
 
 694 THE LAW OF ESTATES. 
 
 and the judgment must be against him, and not against the 
 conservator.^^ Mere mental weakness does not justify a court 
 of equity setting aside an executed contract, provided such 
 weakness does not amount to an inability on the part of the 
 afflicted person to comprehend the contract.*'' 
 
 778. One knowingly dealing with insane person is deemed 
 guilty of fraud. Where the question is simply as to which of 
 the two titles is the better legal title, the party should bring 
 his action in a court of law, but courts of equity will assume 
 jurisdiction to set aside conveyances fraudulently obtained.*^ 
 While a court of equity will not take jurisdiction of every case 
 of fraud which may be presented, yet there are few questions 
 over which its jurisdiction is more universal, and especially 
 so when it relates to the transfer of real estate.*^ Although 
 it may be true that the fraud^ if proved, might defeat that title 
 in a court of law, yet the courts of equity have ever claimed to 
 possess superior facilities for investigating such questions, to 
 the courts of law, and certainly the relief which they can give 
 is, in many cases, more satisfactory. When the fraud is once 
 established, they can cut up the fraudulent conveyance or con- 
 tract by the very roots, and leave the party in as secure a po- 
 sition as if it had never existed."*^ "Whether a deed executed 
 by an insane person is void, or voidable only, such may 
 be set aside by the insane person after his restoration to sanity, 
 or it may be set aside by a vendee, to whom such insane person 
 conveys the premises, after his restoration to sanity.^" Upon 
 
 45 — Scott V. Bassett, 194 111. 102 111. 596; Breckenridge's Heirs 
 
 602. V. Ormsby, 1 J. J, Marshall, 236; 
 
 46— SafEer v. Mast, 223 111. 108. Kilbee v. Myrick, 12 Fla. 431; 
 
 47— Clay v. Hammond, 199 111. Langdon v. People, 133 111. 382. 
 
 375. In this case the rule "One 48 — Kennedy v. Northup, 15 111. 
 
 knowingly dealing with an in- 148. 
 
 sane person with knowledge of 49 — Clay v. Hammond, 199 111. 
 
 such insanity is deemed guilty of 375. 
 
 premeditated fraud," is applied 50 — Hanna v. Read, 102 111. 
 
 firmly in the case. Supported by 596; Breckenridge Heirs v. Orms- 
 
 the following: Hanna v. Read, by, 1 J. J. Marshall, 236.
 
 IDIOTS, LUNATICS, DRUNKARDS, ETC. 695 
 
 a review of cases it was held: **Aiid these authorities also 
 show, that a purchaser or devisee, holding his right from the 
 infant or non compos, derived after the attainment of legal 
 discretion, or restoration to sanity, may avoid a deed made for 
 the same estate during disability. "... Every person is deemed 
 guilty of meditated fraud when he deals with an insane person 
 with knowledge of such insanity.^^ And the court in a proper 
 proceeding will appoint a receiver to protect the estate of an 
 insane person on a bill filed by next friend.®^ 
 
 779. What contracts voidable. Section 15 provides : Every 
 contract made with an idiot, lunatic or distracted person be- 
 fore such finding, or with a drunkard or spendthrift made after 
 the application for the appointment of a conservator, may be 
 avoided, except in favor of the person fraudulently making the 
 same.^^ A deed by one for whom a conservator is subsequently 
 appointed should not be set aside without requiring restoration 
 of the money paid by the grantee and the return of the prop- 
 erty or its equivalent, which he conveyed to a third party at 
 the instance of the grantor in part consideration for his deed, 
 where the grantee had no knowledge or notice of the grantor's 
 infirmity or of any undue influence by the party to whom the 
 grantee made his conveyance.^* A confession of judgment by 
 insane person will be set aside.^^ And a ratification of voidable 
 deed after restoration of reason, must be evidenced by intelli- 
 gent act.^* 
 
 780. Swindling an idiot or lunatic. Section 16 of the same 
 act, provides: "Whoever, by trading with, bartering, gaming, 
 
 51 — Kilbee v. Myrick, 12 Fla. with Jones & Addington's Supple- 
 
 431; Breckenridge's Heirs v. ments thereto. Vol. 2, p. 2667, Vol. 
 
 Ormsby, 1 J. J. Marshall, 236; 4, p. 816, and cases cited; Kurd's 
 
 Clay V. Hammond, 199 111. 376. R. S. of 111., 1905, p. 1347. 
 
 52— Roughan v. Morris, 87 111. 54— Eldridge v. Palmer, 185 111, 
 
 App. 645. 618. 
 
 53 — Section 15, chapter 8G, 55 — Crawford v. Thomson, 161 
 
 "Lunatics, etc." Starr & Curtis 111. 165. 
 
 Annotated Statutes of Illinois, 56 — Beasley v. Beasley, 180 IlL 
 
 168.
 
 696 THE LAW OF ESTATES. 
 
 or any other device, possesses himself of any property or val- 
 uable thing belonging to any idiot, lunatic or notoriously dis- 
 tracted person, drunkard or spendthrift, shall be deemed guilty 
 of swindling, and upon conviction thereof be fined in a sum not 
 exceeding $2,000, or confined in the county jail not exceed- 
 ing one year, or both."^^ 
 
 781. Management of estate. Section 17 of the same act, 
 provides : ' ' The conservator shall manage the estate of his ward 
 frugally and without waste, and apply the income and profits 
 thereof, so far as the same may be necessary, to the comfort and 
 suitable support of his ward and his family, and the education 
 of his children. "^^ "Where the statute of a State authorizes 
 the Probate Court to appoint a married woman guardian of an 
 insane person, etc., without the concurrence of her husband, and 
 the court appoints the wife of an insane person as his guardian, 
 her acts will be legal and binding until removed, whether the 
 statute contemplated such an appointment or not. Whether 
 the wife might be so appointed, in nowise affects the power of 
 the court, even though its action was erroneous. ^^ A suit in 
 assumpsit commenced in the County Court of Kankakee county 
 to recover for the support of an insane person of means, who 
 was returned by the State authorities to the county, and was 
 kept by it for a period of years in the insane asylum with the 
 knowledge of his conservator, it was held: His estate was liable 
 to the county for his necessary support, care and medical atten- 
 tion furnished by the county during such period.®" This decision 
 is based upon the statute above which requires the conservator 
 to apply the income and profits of his ward's estate, so far as 
 may be necessary, to the comfort and suitable support of his 
 ward. And where a conservator made an allowance to his 
 
 57 — Section 16, chapter 86, 58 — Section 17, chapter 86, 
 "Lunatics, etc." Starr & Curtis "Lunatics, etc." Same statute ci- 
 Annotated Statutes of Illinois, tation as note 57. 
 Vol. 2, p. 2667; Hurd's R. S. of 59— Wing v. Dodge, 80 111. 564. 
 111., 1905, p. 1347. 60— Dandurand v. County of 
 
 Kankakee, 196 111. 539.
 
 IDIOTS, LUNATICS, DRUNKARDS, ETC. 697 
 
 "ward's daughter, though of age, was weak in mind and body; 
 the court held such an allowance was right and proper.*^^ 
 
 61 — In re Conservatorship of Supplements thereto, Vol. 2, p. 
 Hall, 19 111. App. 295. See Starr 2667; Vol. 4, p. 817; Vol. 5, p. 375, 
 & Curtis Annotated Statutes of U- and cases cited under section 17, 
 linols, with Jones & Addington's chapter 86, "Lunatics, etc." Hurd's 
 
 R. S. of 111., 1905, p. 1347.
 
 CHAPTER XLV 
 
 COMMITMENT AND DETENTION OF LUNATICS 
 
 Sec. 
 
 782. General and introductory re- 
 
 marks. 
 
 783. "Insane" defined. 
 
 784. Not restraint of liberty. 
 
 785. Proceedings for supposed in- 
 
 sanity statement. 
 
 786. County judge to issue writ, 
 
 hearing. 
 
 787. Inquest in lunacy shall be by 
 
 jury or a commission of two 
 physicians. 
 
 788. Jury of six, qualified physi- 
 
 cian to be one of jury. 
 
 789. Inquest may be held in open 
 
 court, in chambers, or at the 
 home of the person alleged 
 to be insane, excluding spec- 
 tators. 
 
 790. The provisions of the statute 
 
 reviewed and upheld. 
 
 791. Interrogatories in writing, 
 
 court may set aside findings. 
 Record of finding. 
 
 792. Estate of insane person, in- 
 
 quest in lunacy, appoint- 
 ment of conservator, filing 
 record in probate court. 
 
 793. Jurisdiction of person not 
 
 charged with crime, county 
 judge to keep separate 
 docket. 
 
 794. Insane person kept at expense 
 
 of State. 
 
 795. Judge to inquire into pecu- 
 
 niary condition of person 
 charged with lunacy. 
 
 Sec. 
 796. 
 
 797. 
 
 798. 
 
 799. 
 
 800, 
 801. 
 
 802. 
 
 803. 
 804. 
 
 805. 
 
 806. 
 
 807. 
 808. 
 
 809. 
 
 810. 
 
 Clerk's statement to superin- 
 tendent of hospital. 
 
 Warrant of commitment in 
 duplicate, indorsement, wo- 
 man protected. 
 
 Private not received, except 
 when. 
 
 Communication with friends 
 permitted, when. 
 
 Restraint allowed only, when. 
 
 Authority to discharge pa- 
 tients vested in trustees. 
 
 Not discharged without suit- 
 able clothing and money. 
 
 Entitled to habeas corpus. 
 
 Discharged, receipt of super- 
 intendent. 
 
 Escape; death of patient, pro- 
 ceedings. 
 
 Conspiracy to commit person 
 to hospital or asylum, pen- 
 alty. 
 
 Costs of proceedings. 
 
 Act does not apply to persons 
 in custody on criminal 
 charge. Convicts in peni- 
 tentiary admitted, when. 
 Non-resident admitted, 
 
 when. 
 
 Administration and enforce- 
 ment of laws entrusted to 
 State Commissioners of Pub- 
 lic Charities. 
 
 State Commissioners of Pub- 
 lic Charities. Powers. 
 
 698
 
 COMMITMENT OF LUNATICS. 699 
 
 Sec. 
 
 811. Copies of law to be printed by- 
 Commissioner of State Con- 
 tracts. Early stages of in- 
 sanity, treatment. 
 
 Sec. 
 
 812. Acquittal of crime on plea of 
 
 insanity, proceedings. 
 
 813. Repeal. 
 
 814. Superintendent to furnish. 
 
 clerk with list, penalty. 
 
 Sec. 782. General and introductory remarks. The several 
 acts of the legislature of Illinois, prior to the revision of the 
 laws in 1874, relating to the care of the person and property, 
 of lunatics, idiots or distracted persons, and the commitment 
 and detention of such, were incomplete and unsatisfactory in 
 their operation, leaving as such legislation did much undone, 
 pertaining to the care of the person of these unfortunates. We 
 refer particularly to the acts of 1845, 1847, 1853, 1865 and 
 1867. The revision and enactments of 1874, afforded some meas- 
 ure of relief in this particular, but it was not until the revi- 
 sion of this law in 1893, enacted to meet the absolute require- 
 ments of the State and many counties, who were unable be- 
 cause of lack of proper legislation to take care of the insane and 
 distracted persons increasing in numbers throughout the State, 
 that the legislature took notice, that in this respect Illinois was 
 much behind its sister states in its care of such persons. State 
 pride, one of the cherished principles of the union of States, has 
 always been and always will be an incentive necessary in forc- 
 ing this class of legislation. State and county authorities rec- 
 ognize the fact, that the unfortunate insane, must of necessity 
 be cared for at the charitable institutions of the State erected 
 for this purpose and supported by a tax upon the people of the 
 State. The lunatic, idiot, drunkard and spendthrift, are the 
 outgrowth of society, as that term is applied commonly to the 
 people at large. These unfortunates, always the object of leg- 
 islative enactments, controlling the person and property of 
 such, have certain recognized rights that the more fortunate 
 must respect. It is well to recognize, that the spirit of Amer- 
 ican citizenship, when supported by the public newspapers of 
 the day, will not for an instant, tolerate any abuse of the in- 
 mates of such institutions. These unfortunates are wards of
 
 700 THE LAW OF ESTATES. 
 
 the State, and it, as their guardian through proper and honest 
 officials, is expected to perform the duties relating to such 
 guardianship faithfully and well. This chapter deals princi- 
 pally with the commitment and detention of lunatics, adjudged 
 such, by proper inquisition; we therefore at length give the 
 statute law of Illinois revised in 1893, and amendments thereof, 
 with such authorities in adjudicated cases, arising under this 
 statute, since, and before its enactment. 
 
 783. Insane defined. Section 1, chapter 85 of the statute of 
 Illinois, entitled "Lunatics," under the revision of the act in 
 1893, provides: That the word insane in this act shall be con- 
 strued to mean any person who, by reason of unsoundness of 
 mind, is incapable of managing and caring for his own estate, 
 or is dangerous to himself or others, if permitted to go at large, 
 or is in such condition of mind or body as to be a fit subject for 
 care and treatment in a hospital or asylum for the insane: 
 Provided, that no person, idiot from birth, or whose mental de- 
 velopment was arrested by disease or physical injury occurring 
 prior to the age of puberty, and no person who is afflicted with 
 simple epilepsy shall be regarded as insane, unless the mani- 
 festations of abnormal excitability, violence or homicidal or 
 suicidal impulses are such as to render his confinement in a 
 hospital or asylum for the insane a proper precaution to pre- 
 vent him from injuring himself or others."^ 
 
 784. Not restraint of liberty. Section 2. " Except as herein 
 provided, from and after the passage of this act no insane per- 
 son, or person supposed to be insane, but who shall not have 
 been legally adjudged to be insane, shall, by reason of his in- 
 sanity or supposed insanity, be restrained of his liberty: Pro- 
 vided, that this section shall not be construed to forbid the tem- 
 porary detention of an alleged lunatic, for a reasonable time, 
 not exceeding ten days, pending a judicial investigation of his 
 mental condition. "^ 
 
 1— Section 1, chapter 85, "Luna- Kurd's R. S. of 111., 1905, p. 1338. 
 tics." Starr & Curtis Annotated 2 — Section 2, chapter 85, "Luna- 
 Statutes of Illinois, Vol. 2, p. 2652; tics." Starr & Curtis, etc.. Vol. 2,
 
 COMMITMENT OF LUNATICS. 701 
 
 785. Proceedings for supposed insanity — statement. Section 
 3. "When any person shall be, or be supposed to be, insane, 
 any reputable citizen of the county in which such patient re- 
 sides or is found may file with the clerk of the County Court 
 of said county, a statementj in writing, under oath, setting 
 forth that the person named is insane and unsafe to be at large, 
 or suffering under mental derangement, and that the welfare 
 of himself or others requires his restraint or commitment to 
 some hospital or asylum for the insane ; the said statement must 
 be accompanied by the names of the witnesses (one of whom 
 at least must be a physician having personal knowledge of the 
 case), by whom the truth of the allegations therein contained 
 may be substantiated and proved : Provided, that when it shall 
 appear by such statement the person alleged to be insane has 
 not been examined by a physician, the judge may appoint a 
 qualified physician of the county to make such examination and 
 allow him compensation therefor, not exceeding five dollars, 
 which shall be taxed and collected as herein provided in respect 
 to other costs in proceedings in inquest of lunacy."^ 
 
 786. County judge to issue writ — Shearing. Section 4. 
 **Upon the filing of the statement aforesaid, unless the person, 
 alleged to be insane shall be brought before the court without 
 a writ, or unless an affidavit of some credible person shall be 
 filed setting forth that, in the opinion of the affiant, the phys- 
 ical or mental condition of the said person is such (stating the 
 same), as to render it manifestly improper that such person 
 be brought before the court, the judge of the county shall direct 
 the clerk to issue a writ, directed to the sheriff' or to any con- 
 stable or to the person having custody or charge of the person 
 alleged to be insane, commanding such person to be brought 
 before the court at such time and place as the judge may ap- 
 point for the hearing and determining of the matter; and in 
 
 p. 2653; Kurd's Statutes, 1905, p. tics." Starr & Curtis Annotated 
 
 1338. Statutes of Illinois, Vol. 2, p. 
 
 3— Section 3, chapter 85, "Luna- 2653; Kurd's R. S. of 111., 1905, p. 
 
 1338.
 
 702 THE LAW OF ESTATES. 
 
 no case shall such hearing take place until the person alleged 
 to be insane shall have been notified as the court shall direct,"* 
 
 787. Inquests in lunacy shall be by jury or a commission of 
 two physicians. Section 5 as amended May 14, 1903, is as fol- 
 lows: "Inquests in lunacy shall be by jury or a commission 
 of two licensed physicians engaged in active practice in said 
 county, as hereinafter provided." Section 6 revised law of 
 1893, provides: "When no jury is demanded and the circum- 
 stances of the case are such that there appears to the judge 
 to be no occasion for the impaneling of a jury, or that a trial 
 by jury would for any reason be inexpedient or improper, the 
 judge shall appoint a commission of two qualified physicians 
 in regular and active practice who are residents of the county, 
 to be chosen by himself, on account of their known competency 
 and integrity, who shall make a personal examination of the 
 patient and file with the clerk of the court a report in writing 
 verified by affidavit, of the result of their inquiries together 
 with their conclusions and recommendations. The commission- 
 ers herein provided for shall have power to administer oaths 
 and take sworn testimony."^ 
 
 788. Jury of six — qualified physicians. Section 7 of the 
 revision of 1893, provides: "In all cases of inquest by jury, 
 the jury shall consist of six persons, and one of the jurors at 
 least must be a qualified physician, and the proceedings shall 
 conform in all respects, as nearly as may bcj to the ordinary 
 practice of the County Court. The rights of the person whose 
 mental condition is inquired into shall be the same as those 
 of any defendant in a. civil suit, ' "^ 
 
 789. Inquests may be held in open courts at home of person 
 alleged to be insane excluding spectators. Section 8 as amended 
 
 4 — Section 4, chapter 85, "Luna- 1903. Starr & Curtis Annotated 
 
 tics." Starr & Curtis Statutes, Statutes of Illinois, Vol. 2, p. 
 
 etc., Vol. 2, p. 2653; Kurd's Stat- 2653; Kurd's R. S. of 111., 1905, p. 
 
 utes, 1905, p. 1339. 1339. 
 
 5 — Section 5 and 6, chapter 85, 6 — Section 7, chapter 85, "Luna- 
 
 "Lunatics." As amended May 14, tics,"
 
 COMMITMENT OF LUNATICS. 703 
 
 in 1903, provides: "Inquests in lunacy may be in open court 
 or in chambers, or at the home of the person alleged to be in- 
 sane, at the discretion of the court. The judge shall preside 
 whether the inquest is by jury or a commission, and the pres- 
 ence of the patient shall be indispensable, and no proceedings 
 can be had in his absence, unless otherwise provided for in this 
 act. The judge may require all persons other than the patient, 
 his friends, witnesses, licensed attorneys and officers of the 
 court to withdraw from the room during the inquest. ' '^ 
 
 790. The provisions of the statute reviewed and upheld. In 
 
 the case of Haynes v. Clearlock,^ it is said: "If this statute 
 made no provision for a notice and hearing, then the question 
 of its validity would be fairly involved. Regarding notice, the 
 statute provides, that in no case shall a hearing take place until 
 the person alleged to be insane shall be notified as the court 
 shall direct. The character of the notice is left to the sound 
 discretion of the court ; but the only question which could arise 
 would be w^hether the notice given in a particular case was a 
 reasonable or sufficient one, and this does not affect the validity 
 of the statute. The same case reviewing the sections quoted 
 which provide for inquest to be held in open court, in chambers 
 or at the home of the alleged insane person, and for the in- 
 quest by jury, and where same is not demanded by commission 
 of two qualified physicians, holds: "A court is a place where 
 justice is administered judicially, and the person authorized 
 to administer justice in a judicial capacity must be present. 
 The statute contemplates a hearing, which necessitates the pres- 
 ence of the judge, and the presence of the patient is indispen- 
 sable. The court may, if not satisfied with the finding of the 
 jury or commission, set the same aside and dismiss the pro- 
 ceedings or order another inquest. If the judge approves the 
 finding he may enter a proper order, and the judgment entered 
 
 7 — Section 8, chapter 85, "Luna- utes of Illinois, Vol. 2, p. 2654; 
 tics." As to citations, note 6 and Kurd's R. S. of 111., 1905, p. 1339. 
 7. Starr & Curtis Annotated Stat- 8—184 111. 98.
 
 704 THE LAW OF ESTATES. 
 
 is the judgment of the court. '"^ Under the common law of 
 England, the Lord Chancellor by special grant from the crown, 
 exercised power over the persons and estates of lunatics and 
 idiots. In theory of law, the State, in its character of parens 
 patriae, rightfully exercises the same power and control over 
 the persons and property of lunatics and idiots, that was ex- 
 ercised by the crown of England through the Lord Chancellor 
 at an early period, or as it was exercised prior to the fourth 
 year of the reign of James the First.^** 
 
 791. Interrogatories in writing — court may set aside find- 
 ings — record of finding. Section 9, provides: "The jury or 
 commission, as the case may be, shall furnish to the court in 
 writing answers to such interrogatories as may be contained in 
 a form to be prescribed by the State Commissioners of Public 
 Charities, and shall certify that the same are correct to the 
 best of their knowledge and belief, which interrogatories shall 
 be submitted to the medical member or members of the jury 
 or commission by the court." Section 10. "The court may, 
 if not satisfied with the finding of the jury or commission, set 
 the same aside and dismiss the proceedings or order another 
 inquest." Section 11. "Upon the return of the finding of the 
 jury or commission, the court shall cause the same to be re- 
 corded at large, and shall enter the proper order, in accordance 
 with the finding of the jury or commission, for the disposition 
 of the person alleged to be insane ; such order may discharge 
 the patient with or without conditions; or remand him to the 
 custody of his friends, or commit him to some hospital or asy- 
 lum for the insane, public or private, within the limits of the 
 State, or to a county insane asylum or insane department of 
 a county almshouse, or a department for the insane in the 
 county almshouse in the county where such alleged insane per- 
 son resides. But whatever order may be made in the case 
 shall stand and continue to be binding upon all persons whom 
 it may concern until rescinded, reversed or otherwise legally 
 
 9— Haynes v. Clearlock, 184 111. 10— Dodge v. Cole, 97 111. 354. 
 98-99.
 
 COMMITMENT OF LUNATICS. 705 
 
 superseded or set aside. Appeals shall be allowed to the Cir- 
 cuit Court from any order or judgment made or rendered 
 under this act upon the appellant giving such bond and se- 
 curity within such time as the court may direct."" In Neely 
 V. Shephard,^^ it is held: Section 7 of the act on lunatics, pro- 
 viding that "in all cases of inquest by jury, the jury shall con- 
 sist of six persons" one of whom must be a physician, applies 
 only to the County Court, and on appeal to the Circuit Court 
 from the County Court's judgment finding the respondent to 
 be a distracted person, the customary jury consisting of twelve 
 men should try the case. Persons well acquainted with the 
 respondent in a lunacy inquest, and whose opinions appear to 
 be founded upon the facts as to his condition, may properly 
 be allowed to give such opinions, the weight to be ^iven them 
 being a question for the jury in the Circuit Court.^^ It is also 
 held: Notwithstanding, the provisions of section 11, a writ 
 of error may issue from the Appellate Court where the order 
 entered and sought to be reviewed is void.^* 
 
 792. Estate of insane person — inquest in lunacy — appoint- 
 ment of conservator — filing record in probate court. Section 12, 
 as amended May 14, 1903, is as follows: "If any person al- 
 leged to be insane shall be possessed of any estate, real, per- 
 sonal or mixed, it shall be lawful for the person filing applica- 
 tion for an inquest in lunacy in his case to make at the same 
 time application for the appointment of a conservator of such 
 alleged lunatic. And if such alleged lunatic shall be adjudged 
 insane, or it shall appear to the court that any person has been 
 adjudged insane by the court without application for a con- 
 servator having been made, and that such lunatic is possessed 
 of any estate, real, personal or mixed, and is still insane, in 
 either case it shall be lawful for the court, upon petition filed 
 
 11— Sections 9, 10, chapter 85, 12—190 111. 637. 
 
 "Lunatics." Starr & Curtis Anno- 13 — Neely v. Shephard, 190 III. 
 
 tated Statutes of Illinois, Vol. 2, 637. 
 
 p. 2654; Kurd's R. S. of 111., 1905, 14— Haines v. Clearlock, 95 IlL 
 
 p. 1340. App. 207. 
 45
 
 706 THE LAW OF ESTATES. 
 
 for the purpose, to make an appointment of a conservator upon 
 the same judgment without further proceedings, and exercise 
 in respect thereto all the powers contained in an act entitled, 
 "an act to revise the law in relation to lunatics, idiots, drunk- 
 ards and spendthrifts," approved March 26, 1874, in force 
 July 1, 1874, and all amendments thereto ; and such conservator 
 shall perform the duties and incur the liabilities imposed by 
 said act upon conservators appointed thereunder: Provided, 
 that in any county wherein a Probate Court has been or may 
 hereafter be established, upon the filing in such court of the 
 proper petition, together with the duly certified copy of the 
 record and the verdict of the jury, or the report of the com- 
 mission of physicians, and the judgment of the County Court 
 thereon finding such person insane, such Probate Court may, in 
 its discretion, without further inquest, by jury or commission 
 of physicians, appoint such conservator; and every note, bill, 
 bond or other contract by any person adjudged insane under 
 the provisions of this act, made after such person has been 
 adjudged insane under this act, shall be void as against such 
 lunatic and his estate, but a person making any contract with 
 such lunatic shall be bound thereby. "^° A contract entered 
 into by one personally before he is adjudged insane or consid- 
 ered such, is binding upon his estate, for in that case insanity 
 does not relieve the estate.^^ 
 
 793. Jurisdiction of persons not charged with crime — county 
 judge to keep separate docket. Section 13 of the Lunatic act, 
 provides: "Jurisdiction over the persons of insane persons 
 not charged with crime is vested in the county courts." Sec- 
 tion 14. "Each county judge shall keep a separate docket of 
 proceedings in inquisitions of lunacy, upon which shall be made 
 such entries as will, together with the papers filed, preserve 
 
 15 — Section 12, chapter 85, thereto. Vol. 2, p. 2655; Vol. 4, p. 
 
 "Lunatics." As amended by act of 814; Vol. 5, p. 372; Kurd's R. S. 
 
 May 14, 1903. Starr & Curtis An- of 111., 1905, p. 1340. 
 notated Statute of Illinois, with 16 — Sands v. Potter, 165 111. 
 
 Jones & Addington's Supplements 404; Isle v. Cranby, 199 111. 47, 48.
 
 COMMITMENT OF LUNATICS. 707 
 
 a perfect record of each case. The original statements and 
 application for inquest, writ and return made thereto, and re- 
 ports of commission and verdicts of juries, shall be filed with 
 the clerk of the court, and a copy of the finding, whether the 
 person alleged to be insane be found to be insane or sane, and, 
 if found to be insane, a copy of the medical certificate shall 
 also be in each case furnished to the State Commissioners of 
 Public Charities."" 
 
 794. Insane person kept at expense of state. Section 15. 
 "All insane persons admitted to any State hospital or asylum 
 for the insane shall be maintained and treated, while in the 
 institution, at the expense of the State, but the cost of clothing, 
 transportation and other incidental expenses not constituting 
 any part of the maintenance or treatment, shall be defrayed at 
 their own expense, or that of the county from which they 
 were admitted. "^^ 
 
 795. Judge to inquire into pecuniary condition of person 
 charged with lunacy. Section 16. "It shall be the duty of the 
 county judge, at the time of each inquest in lunacy, to inquire 
 into the pecuniary condition of the person alleged to be insane 
 and that of the relatives who are bound by law to maintain 
 him. Patients committed to any State hospital or asylum for 
 the insane shall be designated as private or county patients. 
 Private patients are such as are of sufficient pecuniary ability 
 to pay for their own clothing and incidental expenses while in 
 the institution, and all others shall be entered upon the docket 
 as county patients. "^^ 
 
 796. Clerk's statement to superintendent of hospital. Sec- 
 tion 17. "Upon the entry of an order of commitment of any in- 
 
 17 — Sections 13 and 14, chapter tated Statutes of Illinois, Vol. 2, 
 
 85, "Lunatics." Starr & Curtis p. 2655; Kurd's R. S. of 111., IB05, 
 
 Annotated Statutes of Illinois, Vol. p. 1341. 
 
 2, p. 2655; Kurd's R. S. of 111., 19— Section 16, chapter 85, 
 
 1905, p. 1340. "Lunatics." Starr & Curtis Anno- 
 
 18 — Section 15, chapter 85, tated Statutes of Illinois, Vol. 2, 
 
 "Lunatics." Starr & Curtis Anno- p. 2655; Kurd's R. S. of 111., 1905, 
 
 p. 134L
 
 708 THE LAW OF ESTATES. 
 
 sane person to a hospital for the insane, the clerk of the County 
 Court shall send a copy of the finding of the jury or com- 
 mission and of the medical certificate provided for in section 
 9 of this act to the superintendent of the hospital for the insane 
 to which such insane person is ordered to be committed, and 
 such superintendent shall, without delay, admit such insane per- 
 son as a patient in said hospital: Provided, that if there is 
 no room in such hospital for the admission of the person com- 
 mitted thereto, and that such county shall have its full quota 
 of patients in said hospital, the superintendent thereof shall 
 return to said county one quiet, harmless chronic patient, but 
 should said coimty not have its full quota of patients in said 
 hospital, the superintendent shall return one quiet, harmless 
 chronic patient to any county which may be in excess of its 
 quota; and should no county be in excess of its quota, the sup- 
 erintendent shall select the most quiet, harmless chronic patient 
 in said hospital and return him to the coiuity from which he 
 was committed, in order to make room for the patient recently 
 adjudged insane: Provided, further, if a hospital or asylum 
 for the chronic or incurable insane shall be established, such 
 chronic patient may be sent to such hospital or asylum for the 
 chronic or incurable insane: Provided, further, that in case it 
 shall not be found possible to admit such patient to a State 
 hospital or asylum for the insane, the court where such inquest 
 is had may make such further order in the matter as may be 
 requisite and lawful."'*' Where the State authorities required 
 the county authorities to receive a patient, and the county 
 authorities did so receive and for a long time have supported 
 the patient as shown by evidence, it is held, the county is not 
 required by law to render that service gratuitously. The hus- 
 band of the patient was liable for support while insane and 
 cared for by the county. This rests on the general duty of 
 the husband to supply his wife with necessaries.-^ And the 
 
 20 — Section 17, chapter 85, Jones & Addington's Supplements 
 "Lunatics." Starr & Curtis Anno- thereto. Vol. 2, p. 2655; Vol. 4, p. 
 tated Statutes of Illinois, with 815; Vol. 5, p. 373; Kurd's R. S. 
 
 of III., 1905, p. 1341.
 
 COMMITMENT OF LUNATICS. 709 
 
 authorities establish and settle the rule, "there can be no rea- 
 son why the public should be charged with the support of a 
 person having ample means for that purpose, and to support 
 such as a public charge, where such have ample means, would 
 not be just." An insane person having property adequate to 
 his support is not a pauper, and consequently the county is 
 not liable for his support.-^ 
 
 797. Warrant of commitment in duplicate — endorsement — 
 woman protected. Section 18. "For the conveyance of any 
 patient to a hospital or asylum for the insane, the clerk shall 
 issue a warrant, in duplicate, directed to the sheriff or any suit- 
 able person, preferring some relative of the insane person, when 
 desired, commanding him to apprehend such insane person and 
 deliver him to the superintendent. When necessary, the clerk 
 may authorize the employment of one or more assistants; but 
 no female patient shall thus be taken to the hospital or asylum 
 by any person not her husband, father, brother or son, without 
 the attendance of some female of reputable character and ma- 
 ture age. Upon receiving the patient, the superintendent shall 
 indorse upon the warrant his receipt, naming the person or per- 
 sons from whom the patient was received, and one copy of the 
 warrant, so indorsed, shall be returned to the clerk, to be filed 
 with the other papers relating to the case, but the other shall 
 be left with the superintendent, and the person delivering the 
 patient shall indorse thereon that he has so delivered him, and 
 said duplicate warrant shall be prima facie evidence of the facts 
 set forth therein and in said indorsement."-^ 
 
 798. Private patient not received — except when. Section 19. 
 "No private person shall be received into any State hospital 
 or asylum for the insane, imless at or before the time of his ad- 
 
 21 — Schelling v. County of 22 — Dandurand v. County of 
 
 Kankakee, 96 111. App. 434; Way Kankakee, 196 111. 540; City of Al- 
 
 V. Cox, 24 Ala. 337; Alner v. ton v. County of Madison, 21 111. 
 
 Plummer, 4 Greenl. (Me.) 258; 114. 
 
 Brookfield v. Allen, 6 Mass. 585; 23— Section 18, chapter 85, 
 
 Goodale v. Lawrence, 88 N. Y. 513. "Lunatics."
 
 710 TPIE LAW OF ESTATES. 
 
 mission there shall have been filed with the superintendent a 
 bond, with two good and sufficient sureties, approved by the 
 county judge, executed to the trustees of the institution, and 
 conditioned that the obligors shall find the patient in suitable 
 and sufficient clothing, while he may remain in the institution, 
 •and promptly pay for any articles of clothing furnished or other 
 necessary incidental expenses incurred by the institution on 
 account of said patient, and remove him when required by the 
 trustees; and in case of failure upon the part of the trustees 
 to recover upon any bond as approved by the county judgCj the 
 county shall become liable to the institution for the amount due 
 from said obligors."-* 
 
 799. Communication with friends permitted — when. Sec- 
 tion 20. "Every patient admitted into any public or private 
 hospital or asyliun for the insane shall have all reasonable op- 
 portunities and facilities for communication with his friends, 
 and shall be permitted to write and send letters, provided they 
 contain nothing of an immoral or personally offensive charac- 
 ter, and letters written by any patient to any member of the 
 board of trustees, or of the State Commissioners of Public 
 Charities, or to any State or county official shall be forwarded 
 unopened. ' '^^ 
 
 800. Restraint allowed only when. Section 21. **No pa- 
 tient shall be placed in restraint or seclusion, in any hospital 
 or asylum for the insane in this State, except by the order of 
 the physician in charge; all such orders shall be entered upon 
 a record kept for that purpose, which shall show the reason 
 for the order in each case, and which shall be subject to inspec- 
 tion by the State Commissioners of Public Charities and such 
 record shall at all times be open to public inspection. "^^ 
 
 24— Section 19, chapter 85, 25— Section 20, chapter 85, 
 
 "Lunatics." As to citations, notes "Lunatics." 
 
 23, 24. See Starr & Curtis Anno- 26 — Section 21, chapter 85, 
 
 tated Statutes of Illinois, Vol. 2, "Lunatics." As to citations, notes 
 
 p. 2656; Kurd's R. S. of 111., 1905, 25, 26. See Starr & Curtis Anno- 
 
 p. 1341. tated Statutes of Illinois, Vol. 2,
 
 COMMITMENT OF LUNATICS. 711 
 
 801. Authority to discharge patients vested in trustees. Sec- 
 tion 22. "Authority to discharge patients from either of the 
 State institutions for the insane is vested in the trustees, but 
 may be delegated, by a formal vote, to the superintendent, under 
 such regulations as they may see fit to adopt. Discharges may 
 be made for either of the following causes, namely: Because 
 the person adjudged to be insane is not insane, or because he 
 has recovered from the attack of insanity or because he has so 
 far improved as to be capable of caring for himself, or because 
 the friends of the patient request his discharge, and in the 
 judgment of the superintendent no evil consequence is likely 
 to follow such discharge, or because there is no prospect of 
 further improvement under treatment, and the room occupied 
 by an incurable and harmless patient is needed for the admis- 
 sion of others who are unsafe to be kept at large or probably 
 curable. Authority is also vested in the trustees to release the 
 patients on parole for any term not exceeding three months; 
 and, if not returned to the institution within that period, a new 
 order of commitment from the county judge shall be necessary 
 in order to the readmission of any such paroled patient to the 
 institution: Provided, that the court may make such order 
 upon the old verdict, if satisfied that the patient in question 
 is still insane. But no patient who is violent, dangerous or 
 more than usually troublesome or filthy, shall be discharged 
 from any State institution and sent back to any county farm, 
 almshouse or insane department thereof. And no patient who 
 has not recovered his reason or who is charged with crime shall 
 be declared discharged until at least ten days after notice shall 
 have been given to the judge of the County Court having juris- 
 diction in the case, in order to enable the said judge to make 
 some proper order as to the disposition of the said patient, 
 when so discharged, which order shall be entered of record, and 
 a copy thereof furnished to the superintendent, and to the State 
 Commissioners of Public Charities."-^ 
 
 p. 2656; Kurd's R. S. of 111., 1905, 27— Section 22, chapter 85, 
 p. 1342. "Lunatics."
 
 712 THE LAW OF ESTATES. 
 
 802. Not discharged without suitable clothing and money. 
 
 Section 23. "No person shall be discharged from a State hos- 
 pital or asylum for the insane without suitable clothing and a 
 sum of money, not exceeding twenty dollars, sufficient to de- 
 fray his expenses home, which shall be charged to the patient, 
 if a private patient, and if a county patient, to the county, and 
 collected as other debts due the institution are collected."-^ 
 
 803. Entitled to habeas corpus. Section 24. "Every person 
 confined as insane shall be entitled to the benefit of the writ of 
 habeas corpus, and the question of sanity shall be decided at 
 the hearing and if the judge shall decide that the person is in- 
 sane such decision shall be no bar to the issuing of the writ 
 a second time whenever it shall be alleged that such person 
 has been restored to reason; and if said person shall be ad- 
 judged sane, on presentation of a certified copy of said judg- 
 ment to the County Court where the inquest was had, such 
 court shall rescind and set aside the judgment of insanity. "^^ 
 
 804. Discharged — receipt of superintendent. Section 25. 
 "Whenever notice shall have been given to the judge of any 
 County Court that any patient committed to any hospital or 
 asylum of this State, under the order of said court, has been 
 discharged cured^ upon receipt of such notice signed by the 
 superintendent the judge shall enter an order restoring the pa- 
 tient in question to all his rights as a citizen, and, if a conserva- 
 tor of his estate shall have been appointed, the said conservator 
 shall be removed. At any time, subsequent to the discharge of 
 any patient, the judge of the County Court may hear evidence 
 tending to show that said patient has been restored to reason, 
 and, if satisfied of his recovery, may make and enter a similar 
 order, and thereafter the said patient shall not be liable to be 
 again committed to any hospital or asylum for the insane with- 
 out a new inquest in his case. "^° 
 
 28 — Section 23, chapter 85, 30 — Section 25, chapter 85, 
 
 "Lunatics." "Lunatics." As to citations, notes 
 
 29 — Section 24, chapter 85, 27, 28, 29, 30. See Starr & Curtis 
 
 "Lunatics." Annotated Statutes of Illinois, Vol.
 
 COMMITMENT OF LUNATICS. 713 
 
 805. Escape — death of patient proceedings. Section 26. 
 *'If any patient shall escape from the hospital it shall be the 
 duty of any sheriff or officer of the peace in any county in which 
 he may be found to apprehend and detain him, and to report 
 the same to the county judge of said county, who shall return 
 him to the institution at the expense of the county from which 
 he was committed." Section 27, "In the event of a sudden or 
 mysterious death of any inmate of any public or private hos- 
 pital or asylum for the insane, a coroner's inquest shall be held, 
 as provided by law in other cases. Notice of the death of a 
 patient and the causes thereof shall, in all cases be given to the 
 judge of the court having jurisdiction over such patient^ and 
 the fact of his death, with the time, place and aUeged cause 
 shall be entered upon the docket. "^^ 
 
 806. Conspiracy to commit person to hospital or asylum — 
 penalty. Section 28. "Any person who shall conspire to com- 
 mit any person to any hospital or asylum for the insane unlaw- 
 fully or improperly, or any person who shall receive or detain 
 any insane person contrary to the provisions af this act, or any 
 person who shall maltreat any insane person, or any person who 
 shall violate any provision contained in this act, shall be 
 deemed guilty of a misdemeanor, and, upon conviction thereof 
 shall be fined not exceeding one thousand dollars, or imprisoned 
 not exceeding one year, or both, at the discretion of the court 
 in which such conviction is had."^^ 
 
 807. Costs of proceedings. Section 29. "The costs of pro- 
 ceedings in inquests of lunacy in case of county patients shall 
 be defrayed from the county treasury; but in case of private 
 patients, if the person alleged to be insane is found to be in- 
 sane, they shall be paid by his guardian or conservator or rela- 
 tives out of his estate, as the court may direct. In all cases 
 
 2, p 2657; Kurd's R. S. of 111., 32— Section 28, chapter 85, 
 
 1905, p. 1342. "Lunatics." See Starr & Curtis 
 
 31 — Sections 26, 27, chapter 85, Annotated Statutes of Illinois, 
 
 "Lunatics." Vol. 2, p. 2658; Kurd's R. S. of 
 
 III., 1905, p. 1343.
 
 714 THE LAW OP ESTATES. 
 
 where the person alleged to be insane is found not to be insane, 
 the court may, in its discretion, require that the costs shall be 
 paid by the person who filed the statement provided for in sec- 
 tion 3 of this act and award judgment against him therefor. 
 The fees paid for jury service, attendance of witnesses and ex- 
 ecution of legal process shall be the same which are allowed by 
 law for similar service in other cases. For services as commis- 
 sioner to make inquests in lunacy the sum of five dollars per 
 day and the actual and necessary traveling expenses shall be 
 allowed and paid to each person so employed. But when any 
 person having a residence in this State shall be adjudged to be 
 insane by the County Court of any county of which he is not a 
 resident, the judge of the County Court in the county in which 
 the said person resides shall be furnished with a transcript of 
 the record and finding in the case, and thereupon the said 
 county shall become liable for the costs of proceedings and for 
 the cost of clothing, transportation and other incidental ex- 
 penses of such patient while in the institution. And when any 
 soldier or sailor in any Soldiers' or Sailors' Home shall be de- 
 clared insane, such soldier or sailor shall be received by some 
 State hospital. "2* 
 
 808. Act does not apply to persons in custody on criminal 
 charge — convicts in penitentiary admitted when — non-resident 
 may be admitted, when. Section 30. "Nothing in this act shall 
 be construed to apply to insane persons, or persons supposed to 
 be insane, who are in custody on a criminal charge." Section 
 31. "Insane convicts in the State penitentiaries may be com- 
 mitted to the asylum for insane criminals without formal re- 
 quest on the certificate of the penitentiary physician." Sec- 
 tion 32. "Insane persons not residents of this State shall not 
 be detained in any private institution for the insane of this 
 State unless committed thereto in accordance with the laws of 
 the State or Territory of which they are residents, or with the 
 laws of this State. "^^ 
 
 33 — Section 29, chapter 85, 34 — Section 30, chapter 85, 
 "Lunatics." "Lunatics." See Starr & Curtis
 
 COMMITMENT OF LUNATICS. 715 
 
 809. Administration and enforcement of laws entrusted to 
 state commissioners of public charities. Section 33. "The ad- 
 ministration and enforcement of the laws relating to the insane 
 of this State and their treatment, in or out of hospitals or asy- 
 lums for the insane, is entrusted to the State Commissioners 
 of Public Charities, who shall have power, from time to time, 
 with the approval of the Governor and Attorney General, to 
 make rules and regulations on the following matters, so far 
 as the same are not inconsistent with any laws of this State. 
 
 1. The licensing of all houses or places in which any person can 
 be lawfully detained as insane or of unsound mind, and the 
 withdrawal of licenses granted by them for cause shown, with 
 the approval of the Governor and Attorney General. 2. Regu- 
 lation of the forms to be observed relating to the commitment, 
 transfer of custody and discharge of lunatics not in conflict 
 with the provisions of this act. 3. The visitation and inspec- 
 tion of all houses or places in which any persons are detained 
 as insane and of all persons detained therein. 4. Reports and 
 information to be furnished by the managers or trustees and 
 medical superintendents of all houses or places subject to the 
 provisions of this act, and by the boards of auxiliary visitors 
 herein provided for. In case it shall, in the judgment of the 
 State Commissioners of Public Charities, become necessary to 
 institute prosecutions under this act, they are hereby author- 
 ized to call upon the Attorney General and upon the State's 
 Attorneys of the several counties for any aid and assistance 
 which may be requisite, and the said officers are hereby di- 
 rected and required to render such assistance upon their appli- 
 cation : Prt>vided, that existing private institutions in this State 
 shall not be amenable to prosecution under this act until the 
 Board of State Commissioners of Public Charities shall ha^e 
 made such rules and allowed thirty days' notice within which 
 to take out license and shall have decided upon the applica- 
 tion. "^^ 
 
 Annotated Statutes of Illinois, Vol. 35 — Section 33, chapter 85, 
 
 2, p. 2658; Kurd's R. S. of 111., "Lunatics." 
 1905, pp. 1342, 1343.
 
 716 THE LAW OF ESTATES. 
 
 810. State commissioners of public charities — powers. Sec- 
 tion 34. "The State Commissioners of Public Charities shall 
 have power to appoint boards of auxiliary visitors of all county 
 almshouses, jails and other house or places other than State or 
 licensed private institutions for the care of the insane, in which 
 any person of unsound mind is or may be detained; one such 
 board shall be appointed in every county in the State, to be 
 composed of three persons, one of whom may be a woman and 
 at least one of whom shall be a qualified physician. The com- 
 missioners may remove said board or any member thereof and 
 fill vacancies; at least once a year members who have failed to 
 act for a year past shall be removed. No compensation or al- 
 lowance for expenses whatever shall be allowed or paid to such 
 visitors. It shall be the duty of any and all persons in charge 
 of each and every almshouse or jail, or of any house or place 
 within the county in which any person of unsound mind is de- 
 tained, except State and licensed private hospitals or asylums 
 for the care of the insane, to admit any or all of the visitors 
 appointed for said county, in every part of such institution, and 
 to render them every facility within their power to enable them 
 to make in a thorough manner their visit, inspection and ex- 
 amination, which are hereby declared to be for • a public pur- 
 pose, and to be made with a view to the public welfare. The 
 boards herein authorized shall make such inspection and report 
 as the State Commissioners of Public Charities may prescribe 
 and require: Provided, that all State and licensed private hos- 
 pitals or asylums for the care of the insane shall be visited by 
 the State Board of Charities only."'® 
 
 811. Copies of law to be printed by commissioner of State 
 contracts — early stages of insanity — treatment. Section 36. 
 "The Commissioner of State Contracts shall cause to be printed 
 in pamphlet form a sufficient number of copies of this act, etc., 
 for the information of county officials and of the public. ' ' Sec- 
 
 36— Sections 34, 35, chapter 85, tated Statutes of Illinois, Vol. 2, 
 "Lunatics." Starr & Curtis Anno- pp. 2659, 2660; Kurd's R. S. of 111., 
 
 1905, p. 1344.
 
 COMMITMENT OF LUNATICS. 717 
 
 tion 37. "Any person who may be in the early stages of in- 
 sanity who may desire the benefit of treatment in a State or 
 licensed private hospital for the insane as a voluntary patient, 
 may be admitted to such hospital on his own written applica- 
 tion, accompanied by a certificate from the County Court of 
 the county in which such applicant resides, stating that such 
 person is a private or county patient, as the case may be, and 
 such person shall, if admitted to a State or licensed hospital 
 for the insanCj have the same standing as other private or 
 county patients : Provided, that all voluntary patients shall 
 have the right to leave the hospital at any time on giving thi'ee 
 days' notice to the superintendent. "^'^ 
 
 812. Acquittal of crime on plea of insanity — proceedings. 
 
 Section 38. "In all cases where any person is sent to a State 
 hospital for the insane, being acquitted of crime on the plea 
 of insanity, or being under indictment for crime, the State's 
 Attorney in charge of the case shall officially notify the super- 
 intendent of the hospital to which the accused is sent, of any 
 indictment pending against such person, or of the fact that the 
 accused has been acquitted of his crime, on the plea of insanity, 
 and it shall be the duty of the superintendent so notified, in 
 case such superintendent shall at any time discharge the ac- 
 cused, to officially notify the State's Attorney of the fact of 
 such discharge and the reasons therefor. "^^ 
 
 813. Repeal. Section 39. All acts and parts of acts incon- 
 sistent herewith are hereby repealed, also act of March 21, 1874, 
 and amendatory act of June 15, 1887.^^ 
 
 814. Superintendent to furnish clerk with list — penalty. 
 
 Paragraphs 40 and 41, sections 1 and 2, act of 1887, approved 
 June 8, 1887. "That each superintendent of any hospital for 
 
 37 — Sections 36, 37, chapter 85, "Lunatics." See as to notes 37, 38, 
 "Lunatics." 39. Starr & Curtis Annotated 
 
 38 — Section 38, chapter 85, Statutes of Illinois, Vol. 2, p. 
 "Lunatics." 2660; Kurd's R. S. of 111., 1905, pp. 
 
 39— Section 40, chapter 85, 1344, 1345.
 
 718 THE LAW OF ESTATES. 
 
 the insane in this State, shall hereafter, on the first day of 
 January and July of each year, furnish the clerk of the county 
 court of the proper county thereof, with a full and complete 
 list of all insane patients confined in said hospital from said 
 county, stating the date of admission of each, whether said 
 patients be paupers, the present mental and physical condition of 
 each; also giving the names of such as may have died or been 
 discharged since last report, with date of such death or dis- 
 charge. " Any such superintendent failing to comply with the 
 foregoing section shall be liable to a fine of one hundred dollars 
 for each failure, to be collected by suit, before a justice of the 
 peace of the county wherein such hospital is situate, on com- 
 plaint of such clerk of the County Court, or other person hav- 
 ing relatives or friends confined in said hospital."*" 
 
 40 — Paragraphs 40, 41, sections 1 and 2, chapter 85, "Lunatics." 
 Kurd's R. S. of 111., 1905, p. 1345.
 
 CHAPTER XLVI 
 
 INVESTMENT OF MONEY, LEASING, MORTGAGING AND 
 SELLING REAL ESTATE BY CONSERVATORS 
 
 Sec, 
 
 815. Investment of money. 
 
 816. Leasing and mortgaging real 
 
 estate. 
 
 817. Petition to mortgage. 
 
 818. Conservator's sale of real es- 
 
 tate; petition, notice, docket, 
 practice, order of sale. 
 
 819. Presumption of jurisdiction. 
 
 820. No collateral attack on rec- 
 
 ord, when. 
 
 821. Powers conferred by statute 
 
 upon the court. 
 
 822. Return of sale, approval, rec- 
 
 ord, title, proceeds of sale. 
 
 Sec. 
 
 823. Sufficiency of sureties. How 
 
 protected. 
 
 824. Removal of conservator; sum- 
 
 mons to show cause; notice. 
 
 825. Resignation of conservator; 
 
 successor; delivery to same. 
 
 826. Non-resident ward; powers of 
 
 conservator. 
 
 827. Sale of real estate of such 
 
 ward. 
 
 828. Notice, petition; sale of non- 
 
 resident wards' real estate. 
 
 829. Bond for faithful application 
 
 of money for costs. 
 
 Sec. 815. Investments of money. *'It shall be the duty of 
 the conservator to put and keep his ward's money at interest, 
 upon security to be approved by the court, or invest the same 
 in United States bonds or other United States interest bearing 
 securities. Personal security may be taken for loans not ex- 
 ceeding $100, Loans in larger amounts shall be upon real 
 estate security. No loan shall be made for a longer time than 
 three years, unless authorized by the court: Provided, the 
 same may be extended from year to year, without the approval 
 of the court. "^ 
 
 816. Leasing and mortgaging real estate. ''The conserva- 
 tor may lease the real estate of the ward, upon such terms and 
 
 1— Section 18, chapter 86, Vol, 2, p. 2667; Kurd's R, S. of 
 "Lunatics," etc, Starr & Curtis 111., 1905, p, 1348. See also Wing 
 Annotated Statutes of Illinois, v. Dodge, 80 111., 564; In re Hall, 
 
 19 111. App, 295. 
 
 719
 
 720 THE LAW OF ESTATES. 
 
 for such length of time as the County Court shall approve." 
 Section 19. "The conservator may by leave of the County 
 Court, mortgage the real estate of the ward for a term of years, 
 or in fee."^ 
 
 817. Petition to mortgage. Section 21. "Before any mort- 
 gage shall be made, the conservator shall petition the County 
 Court for an order authorizing such mortgage to be made, in 
 which petition shall be set out the condition of the estate and 
 the facts and circumstances on which the petition is founded, 
 and a description of the premises sought to be mortgaged." 
 Section 22. "No decree of strict foreclosure shall be made 
 upon any such mortgage, but redemption shall be allowed, as 
 is now provided by law in cases of sales under executions upon 
 common law judgments."^ 
 
 818. Conservator's sale of real estate — petition — notice — 
 docket — practice — order for sale. Section 23 of Chapter 86, 
 provides: "On the petition of the conservator, the County 
 Court of the county where the ward resides, or if the 
 ward does not reside in the State, of the county where the 
 real estate or some part of it is situated, may order the sale of 
 the real estate of the ward for his support and that of his fam- 
 ily when the court shall deem it necessary, or to invest the pro- 
 ceeds in other real estate, or for the purpose of otherwise in- 
 vesting the same, or for the purpose of paying the debts of the 
 ward or the education of the children of said ward." Section 
 24. "The petition shall set forth the condition of the estate 
 and the facts and circumstances on which the petition is 
 founded, and shall be signed by the conservator and verified by 
 his affidavit, and shall be filed at least ten days before the com- 
 mencement of the term of court at which the application shall 
 be made." Section 25. "Notice of such application shall be 
 
 2 — Sections 19 and 20, chapter 86, "Lunatics," etc. Starr & Cur- 
 
 86, "Lunatics," etc. tis Annotated Statutes of Illinois, 
 
 3— Sections 21 and 22, chapter Vol. 2, p. 2667; Kurd's R. S. of III., 
 
 1905, p. 1348.
 
 INVESTMENT OF MONEY, ETC. 721 
 
 given to all persons concerned by publication in some newspaper 
 published in the county where the application is made, at least 
 once in each week for three successive weeks or if no newspaper 
 is published in such county by setting up written or printed 
 notices in three of the most public places in the county at least 
 three weeks before the session of the court at which such appli- 
 cation shall be made. The ward shall be served with a copy of 
 such notice at least ten days before the hearing of such applica- 
 tion. Such service may be proved in the same manner as the 
 service of a copy of a bill in chancery." Section 26. "Such 
 application shall be docketed as other causes, and the petition 
 may be amended, heard or continued for further notice or for 
 other cause. The practice in such cases shall be the same as in 
 other cases in chancery." Section 27. "The court shall direct 
 notice of the time and place of sale to be given, and may direct 
 the sale to be made on reasonable credit, and require such se- 
 curity of the conservator or purchaser as the interest of the 
 ward may require."'* 
 
 819. Presumption of jurisdiction. The presumption is in 
 favor of the jurisdiction of a court of general jurisdiction, 
 without the facts appearing in the record; on the other hand, 
 there is no presumption in favor of the judgment of a court 
 of inferior and limited jurisdiction; but the facts must appear 
 in the record, showing the jurisdiction. The rule is well set- 
 tled as applying to courts of limited jurisdiction, that the court, 
 to acquire jurisdiction of the parties, has only to have them 
 before it, and whether by legal notice, by service, or voluntary 
 appearance, does not matter. And where the record shows, or 
 the court finds this jurisdictional fact the record cannot be 
 contradicted or questioned in a collateral proceeding. It is 
 true, that if, by an inspection of the whole record, it is seen that 
 
 4 — Sections 23, 24, 25 and 26, ences made by Starr & Curtis on 
 
 chapter 86, "Lunatics," etc. Starr page 2668 of Vol. 2; Searle v. Gal- 
 
 & Curtis Annotated Statutes of braith, 73 III. 269; Wing v. Dodge, 
 
 Illinois. Vol. 2, pp. 2667, 2668; 80 111. 564; Dodge v. Cole, 97 111. 
 
 Huvd's R. S. of 111., 1905, p. 1348. 338; Gardner v. Maroney, 95 111. 
 
 See also statutory cross refer- 552. 
 46
 
 722 THE LAW OF ESTATES. 
 
 there could not have been jurisdiction of the person, then the 
 prima facie case would be overcome. But where the court has 
 adjudged that there was jurisdiction of the person, the court 
 on review will not look beyond the record, or receive evidence 
 outside of it, to disprove the finding. In this respect the ques- 
 tion can only be tried by the record.^ 
 
 820. No collateral attack on record when. When the order 
 or decree shows, and the court finds jurisdictional facts, the 
 proceedings for sale of real estate by a conservator cannot be 
 contradicted or questioned in a collateral proceeding. Where 
 a decree recited that the County Court had appointed a con- 
 servator for the defendant, and that the latter had been ascer- 
 tained by a jury, according to the form of the statute, to be an 
 insane person, it was held, that he could not be allowed to con- 
 tradict the finding of the decree, so far as it related to the ap- 
 pointment of a conservator;*^ and this doctrine was upheld and 
 applied in analogous cases. 
 
 821. Powers conferred by statute upon the court. Those 
 conferred by the act in question under sections 23, 24, 25, 26, 
 27.'' And when it is deemed necessary by the court in proceed- 
 ings for conservators' sales, it is competent for the court to au- 
 thorize lands surveyed, platted and subdivided.® And in such 
 proceeding the court may assign dower and homestead.® The 
 notice of such proceedings must be given as required by statute 
 strictly.^" But it is held sufficient in case of application for 
 sale by non-resident guardian, if notice is published in daily pa- 
 
 5 — Osgood V. Blackmore, 59 111. Osgood v. Blackmore, 59 111. 265; 
 
 264; Jackson v. Spink, 59 111. 409; Wing v. Dodge, 80 111. 564; Dodge 
 
 Kinney v. Knoebel, 47 111. 417; v. Cole, 97 111. 338. 
 McCormick v. Wheeler, 36 111. 7 — For statute citation see Ante 
 
 114; Hamilton v. Lubukee, 51 111. 818. 
 
 415; Griffith v. Bogert, 18 How. 8— Section 11, chapter 109, 
 
 U. S. 158; Krieger v. Krieger, 221 "Plats." Ante 739. 
 111. 479. 9 — Section 44, chapter 41, 
 
 6_Searle v. Galbraith, 73 III. "Dower." Ante 630. 
 269; Fitzgibbon v. Lake, 29 111. 10— Section 25, chapter 86. 
 
 165; Gondy v. Hall, 30 111. 109; Ante 818.
 
 INVESTMENT OF MONEY, ETC. 723 
 
 per, three insertions in each successive week, the first time not 
 less than thirty days before presentation of the petition of the 
 time and place, requesting all interested parties to show cause 
 why prayer of petition should not be granted.^^ 
 
 822. Return of sale — approval — ^record — title^ — proceeds of 
 sale. Section 28, provides : "It shall be the duty of the con- 
 servator making such sale, as soon as may be, to make return of 
 such sale to the court granting the order, which, if approved, 
 shall be recorded, and shall vest in the purchaser or purchasers 
 all the interest of the ward in the estate so sold." Section 29 
 provides : ' ' An account of all moneys and securities received by 
 any conservator for the sale of real estate of his ward shall be 
 returned on oath of such conservator to the County Court of the 
 county where letters of conservatorship were obtained, and such 
 money shall be accounted for and subject to the order of the 
 County Court in like manner as other moneys belonging to such 
 ward. In case of sale for reinvestment in this State, the money 
 shall be reinvested under the direction of the court. ' '^- When the 
 sale is fairly made by the guardian through an agent, and for a 
 good price, it will not be set aside because the guardian was ab- 
 sent, and where the guardian adopts the act of the agent. If the 
 crier of a judicial sale of real estate on behalf of the guardian 
 of an insane person states publicly, at the sale, that the guard- 
 ian will pay certain assessments on the property, which is not 
 done, this will furnish no ground to set aside the sale by the 
 purchaser, or furnish any grounds of equitable relief. His rem- 
 edy, if any, is at law, for a failure of consideration, when sued 
 on his notes for the purchase money." The following rule is 
 laid in the case of Dodge Conservator v. Cole.^* In every suit 
 claiming a right when it is denied, it is the duty of the court to 
 ascertain in the first place whether the fact or combination of 
 
 11— Wing V. Dodge, 80 111. 56i; Annotated Statutes cf Illinois, 
 Ante 737, 738. Vol. 2, p. 2669; Kurd's R. S. of 
 
 12— Sections 28, 29, chapter 86, 111., 1905, p. 1348. 
 "Lunatics," etc. Starr & Curtis 13— Wing v. Dodge, 80 III. 564. 
 
 14—97 111. 338.
 
 724 THE LAW OF ESTATES. 
 
 facts exists upon which the right depends and in the next place, 
 to determine whether the law, as applicable to the facts found, 
 gives the right claimed, and the performance of those duties is 
 the exercise of judicial power. The fact that no precedent can 
 be found in which relief has been granted under a similar state 
 of facts is no reason for refusing it/^ Judicial sales are not 
 within the Statute of Frauds, and are binding upon the bidder 
 or purchaser without any written contract or memorandum of 
 sale signed by him or his agent. ^"^ Where a bidder at a con- 
 servator's sale had notice of a reservation, made by the con- 
 servator, of the amount of a judgment for damages for a part 
 of the land taken for the opening of a highway, a question 
 of fact is to be determined from the evidence. The purchaser at 
 a conservator's sale has a right to appear before the court and 
 object to the report of sale if any statements therein are deemed 
 by him incorrect, and if he does not do so he is bound by the 
 decree approving the sale.^' 
 
 823. Sufficiency of sureties — ^how protected. Section 30, 
 provides: "It shall be the duty of the County Court, at each 
 accounting of the conservator, to inquire into the sufficiency of 
 his sureties, and if at any time it has cause to believe that the 
 sureties of a conservator are insufficient or in failing circum- 
 stances, it shall, after summoning the conservator, if he be not 
 before the court, require him to give additional security." Sec- 
 tion 31. "Upon the application of the surety of any conserva- 
 tor, and after summoning the conservator, the court may, if it 
 believes him to be insolvent or in doubtful circumstances, re- 
 quire him to give counter security to his sureties. "^^ 
 
 15 — Curtis V. Brown, 29 111. 201; and cases cited under section of 
 
 Voris V. Sloan, 68 111. 588. statute in question; Kurd's R. S. 
 
 16— Chandler v. Morey, 195 111. of 111., 1905, p. 1102. 
 606; 6 Ballard on Real Property, 17 — Chandler v. Morey, 195 111. 
 
 sec. 850; Robertson v. Smith, 94 606; Woerner's Am. Law of Ad- 
 
 Va. 250; Andrews v. O'Mahoney, ministration, Vol. 2, 2d ed., marg., 
 
 112 N. Y., 567; see also section 2, p. 1057; Overdeer v. Updegraff, 69 
 
 chapter 59, "Frauds and Per- Pa. St. 110; Dodge v. Cole, 97 111. 
 
 Juries." Starr & Curtis Annotated 338. 
 Statutes of Illinois, Vol. 2, p. 1997, 18— Sections 30, 31, chapter 86,
 
 INVESTMENT OF MONEY, ETC. 725 
 
 824. Removal of conservator — summons to show cause — no- 
 tice. Section 32. "The county court may remove a conserva- 
 tor for his failure to give bond or security or additional or 
 counter security when required, or for failure to make inven- 
 tory or to account and make settlement, or support the ward, 
 or when he shall have become insane, or have removed out of 
 the State, or become incapable or unsuitable for the discharge 
 of his duties, or for failure to discharge any duty required of 
 him by law or the order of the court, or for other good cause. ' * 
 Section 33. "Before removing a conservator the court shall 
 summon him to show cause why he should not be removed for 
 the causes alleged. If the conservator has left the State or 
 cannot be served with process, he may be notified in the same 
 manner as non-resident defendants in chancery. "^^ 
 
 825. Resignation of conservator — successor appointed — de- 
 livery to same. Section 34. "When it appears proper the 
 court may permit the conservator to resign his trust, if he first 
 settles his accounts and delivers over the estate as by the court 
 directed." Section 35. "Upon the removal, resignation or 
 death of a conservator, another may be appointed, who shall 
 give bond and security, and perform the duties prescribed by 
 this Act. The court shall have power to compel the conserva- 
 tor so removed or resigned, or the executor or administrator of 
 a deceased conservator to deliver up to such successor all the 
 goods, chattels, moneys, title papers and other effects in his 
 custody or control belonging to the ward; and upon failure to 
 so deliver the same, to commit the person offending to jail until 
 he shall comply with the order of the court."-" 
 
 826. Non-resident ward — powers of conservator. Section 41 
 provides: "The conservator, guardian, curator or committee 
 
 "Lunatics," etc. Starr & Curtis 20 — Sections 34 and 35, chapter 
 
 Annotated Statutes of Illinois, S6, "Lunatics," etc. Starr & Cur- 
 
 Vol. 2, p. 2669; Kurd's R. S, of tis Annotated Statutes of Illinois, 
 
 111., 1905, p. 1349. Vol. 2, pp. 2669, 2670; Kurd's R- 
 
 19— Sections 32 and 33, chapter S. of 111., 1905, p. 1349. 
 86, "Lunatics," etc.
 
 726 THE LAW OF ESTATES. 
 
 of any non-resident, idiot, lunatic, insane or distracted person, 
 spendthrift or drunkard, appointed in any of the United States 
 or Territories, or any foreign country, in pursuance of the laws 
 of any such State, Territory or country, may commence and 
 prosecute in his name as such conservator, guardian, curator 
 or committee, suits for the recovery of any real or personal 
 property, or any interest therein in this State, belonging to any 
 such idiot, lunatic, insane or distracted person, spendthrift or 
 drunkard, or for any injury to such property, in any of the 
 courts of record in this State having jurisdiction in similar 
 cases by persons in their own. rights, and may collect, receive 
 and remove to his place of residence any personal estate of his 
 ward. "^^ When application is made by a non-resident con- 
 servator or guardian of an insane person, the law does not 
 require the petition to state the purposes for which the property 
 is to be sold. It seems sufficient to confer jurisdiction for the 
 petition to show that the court of the State where the con- 
 servator resides has required the sale, without reference to the 
 application of the proceeds. And where the statute of Massa- 
 chusetts authorizes the Probate Court to appoint a married 
 woman guardian of an insane person, without the concurrence 
 of her husband, and the court appoints the wife of an insane 
 person as his guardian, her acts will be legal and binding, 
 whether the statute contemplates such an appointment or not.-^ 
 By comity existing between the States, a foreign guardian of 
 an insane person may sue in this State in his representative 
 capacity.^^ "Where the insane person was a resident of the 
 State of Kansas, and the defendant in error was his conservator 
 by virtue of an appointment made by the Probate Court of 
 Republic county, Kansas, the bill styled the complainant 
 therein, "Isaac McClun, by C. G. Bulkley, conservator and 
 guardian." It was held that section 41 of chapter 86 of the 
 
 21 — Section 41, chapter 86, 4, p. 817, and cases cited; Kurd's 
 
 "Lunatics," etc. Starr & Curtis R. S. of 111., p. 1350. 
 
 Annotated Statutes of Illinois, 22— Wing v. Dodge, 80 111. 564. 
 
 with Jones & Addington's Supple- 23 — Campbell v. Millar, 84 111. 
 
 ments thereto. Vol. 2. p. 2671; Vol. App. 215.
 
 INVESTMENT OF MONEY, ETC. 727 
 
 Hevised Statutes, entitled ''Lunatics," etc., authorizes suits in 
 "behalf of non-resident insane persons to be prosecuted in the 
 name of the conservator of such insane person, and for the 
 reason the complainant in this bill was not so styled the defend- 
 ants thereto moved the court to dismiss the suit for want of 
 jurisdiction. The court granted a cross-motion to amend the 
 bill so as to make "C. G. Bulkley, conservator and guardian 
 of said Isaac McClun, an insane person," a co-complainant in 
 the bill, and such amendment being made, denied the motion 
 to dismiss. Section 24 of chapter 110, entitled "Practice," 
 authorized the amendment introducing the conservator as a 
 party complainant in his own name. Retaining the insane per- 
 son by the said conservator as a party was but an irregularity — 
 not an error of reversible character.^* 
 
 827. Sale of real estate of such ward. Section 42 of the 
 
 "Lunatic" Act, aforesaid, provides: "It shall be lawful for 
 any such conservator, guardian, curator or committee of any 
 non-resident idiot, lunatic, insane or distracted person, spend- 
 thrift or drunkard, who shall obtain an order from the proper 
 court in the State, Territory or country in which such conserva- 
 tor, guardian, curator or committee was appointed, authorizing 
 him to make application for the sale of his ward's real estate 
 or personal property in this State, upon filing a certified copy 
 of such order for record in the office of the clerk of the Circuit 
 Court in the county in this State in which the property or the 
 major part thereof is situated, by petition to such court to 
 obtain an order authorizing such conservator, guardian, curator 
 or committee to sell and transfer any such property or interest 
 therein, belonging to any such idiot, lunatic, insane or distracted 
 person, spendthrift or drunkard, and to make deeds and con- 
 veyances thereof; which deeds and conveyances executed and 
 acknowledged in pursuance to the laws of this State, or of the 
 State, Territory or country in which such conservator, guardian, 
 curator or committee was appointed, shall be effectual in law 
 and equity to pass to the grantee or grantees therein all the 
 
 24— MoClun v. McClun, 176 111. 378.
 
 728 THE LAW OF ESTATES. 
 
 right, title and interest of such idiot, lunatic, insane or dis- 
 tracted person, spendthrift or drunkard therein. The court 
 ordering the sale may authorize any person to act as auctioneer 
 of the property, but the deed shall be executed by the conserva- 
 tor, guardian, curator or committee. "^^ 
 
 828. Sale of real estate of non-resident ward — notice — peti- 
 tion. Section 43, of the Lunatic Act provides: "Notice of the 
 time and place of presenting said petition to said Circuit Court 
 shall be given by publication in the nearest newspaper for four 
 successive weekSj the first of which publications shall be at least 
 forty days before the time fixed for the presentation of said 
 petition, requesting all persons interested to show cause why 
 the prayer of said petition should not be granted. "^^ And it 
 was held where the publication was not strictly in accordance 
 with the statute, it was considered sufficient. 
 
 829. Bond for faithful application of money, and for costs. 
 
 Section 44 of the Lunatic Act provides: "The said Circuit 
 Court may, in its discretion, require such conservator, curator,, 
 guardian or committee to file a bond, with sufficient securities^ 
 conditioned for the faithful application of the money which 
 may be received from any such property, for the benefit, and 
 to the use of such idiot, lunatic, insane or distracted person, 
 spendthrift or drunkard." Section 45. "In all suits by non- 
 resident conservatorSj guardians, curators or committees they 
 shall give a bond for costs as in cases of other non-residents."^^ 
 
 25— Section 42, chapter 86, 26— Section 43, Chapter 86, 
 
 "Lunatics," etc. Part of law of "Lunatics," etc.; Wing v. Dodge, 
 
 1865, rewritten in act of 1874, ex- 80 111. 564. 
 
 tended to conservators appointed 27 — Sections 44, 45, chapter 86, 
 
 in foreign country, etc. Starr & "Lunatics," etc. Starr & Curtis 
 
 Curtis Annotated Statutes of Illi- Annotated Statutes of Illinois, 
 
 nois. Vol. 2, p. 2671; Kurd's R. S. Vol. 2, p. 2672; Kurd's R. S. of 
 
 of 111., 1905, p. 1350. See also 111., 1905, p. 1350. See section 1, 
 
 Wing V. Dodge, 80 111. 564; Camp- chapter 33, "Costs." Kurd's Stat- 
 
 bell V. Millar, 84 111. App. 215; utes, 1905, p. 554. Morgan v. 
 
 McClun V. McClun, 176 111. 378. Hoyt, 69 111. 489.
 
 CHAPTER XLVII 
 
 RESTORATION OF REASON OF INSANE 
 
 Sec. 
 
 830. Restoration of reason; notice 
 
 to conservator. 
 
 831. Trial, judgment, settlement of 
 
 accounts. 
 
 Sec. 
 
 832. Appeals. 
 
 833. Compensation 
 
 tors. 
 
 of conserra- 
 
 Sec. 830. Restoration of reason — notice to conservator. The 
 
 Statute of Illinois relating to lunatics, etc., provides: "When 
 any person, for whom a conservator has been or may be ap- 
 pointed under the provisions of this Act, shall be restored to 
 his reason, or in case such drunkard or spendthrift shall have 
 become so reformed as to be a proper and safe person to have 
 the care and management of his estate, such person may apply 
 to the County Court of the county in which such conservator 
 was appointed, to have said conservator removed, and the care 
 and management of his property, or so much thereof as shall 
 remain, restored to him." Section 38. "Notice of such in- 
 tended application shall be given to the conservator ten days 
 before the commencement of the term of the court to which the 
 application shall be made."^ Where the Circuit Court of Han- 
 cock county, Illinois, on notice, petition and proofs, declared a 
 certain person a lunatic, and appointed a conservator of the 
 property and effects of such on the verdict of the jury selected 
 for such purpose, and continued the cause, the conservator so 
 appointed, from time to time, made report of his acts and doings 
 to the court appointing him; about three years after such pro- 
 ceeding, the party adjudged insane filed his petition in that 
 
 1— Sections 37-38, chapter 86, 
 "Lunatics," etc. Starr & Curtis 
 
 Annotated Statutes of Illinois, Vol. 
 2, p. 2670; Kurd's R. S. of 111., 
 1905, p. 1349. 
 
 729
 
 730 THE LAW OF ESTATES. 
 
 court, alleging he was sane, and praying that a jury be em- 
 panelled to try the question of his sanity and capacity to man- 
 age his business affairs; and, that the conservator appointed 
 by the court be discharged and his property restored to hira. 
 On motion, the Circuit Court dismissed the petition for restora- 
 tion to sanity at the costs of the petitioner, and the case on 
 writ of error was taken to the Supreme Court. It was there 
 held that the petition was between the same parties and re- 
 lated to the same subject matter, recited the former proceedings 
 and asked a further order, which when rendered would have 
 been final. The petition was an application for further pro- 
 ceedings in the former case, and should not prejudice the merits 
 in such case. On the filing of such petition, the court below 
 may require the original case to be redocketed, an issue formed 
 and tried on the merits; and if it be found that the petitioner 
 has regained his reason, order the conservator to return his 
 property to him, otherwise to refuse the relief."'' 
 
 831. Trial, judgment, settlement of accounts. Section 39 of 
 the act in question provides: "It shall be the duty of the court 
 to which any such application, as provided in the foregoing 
 section, is made, on proof that said conservator has been duly 
 notified of such application, to cause a jury to be summoned 
 to try the question whether said applicant is a fit person to 
 have the care, custody and control of his or her property, and if 
 the said jury return in their verdict that such person is a fit 
 person to have the control of such property as aforesaid, then 
 the court shall enter an order fully restoring such person to 
 all the rights and privileges enjoyed before said conservator 
 was appointed: Provided, that such conservator, so removed, 
 shall be allowed a reasonable time to settle his accounts as such, 
 and to pass over the money or property in his hands, and such 
 removal shall not invalidate any contracts made in good faith 
 by such conservator, while acting as such: Provided, further, 
 that no application shall be entertained for the removal of any 
 conservator appointed for any person under the provisions of 
 
 2— Ayers v, Mussetter, 46 111. 472.
 
 RESTORATION OF REASON OF INSANE. 731 
 
 this Act, within less than one year from such appointment, 
 unless for neglect of duty or mismanagement of his trust. "^ 
 Under section 5 of the act establishing probate courts {ante, 6), 
 all probate matters, and all matters in relation to the appoint- 
 ment of guardians and conservators, and the settlement of their 
 estates, is transferred from the County Court to the Probate 
 Court in all counties in the State of Illinois, where the latter 
 court is established. On an application, under the statute, for 
 the appointment of a conservator for an insane or distracted 
 person, the true and proper test is, whether the defendant has 
 sufficient mental capacity to transact ordinary business, and to 
 take care of and manage his property. If he is incapable of 
 understanding and acting with discretion in the ordinary affairs 
 of life, then he is a person of unsound mind, and incapable of 
 managing his estate. On the trial of such a person, it appeared 
 he executed a deed conveying his, respondent's property, to a 
 trustee, after the institution of the proceeding to declare him 
 insane and incapable of taking care of and managing his prop- 
 erty. Held: such act could have no special bearing on the merits 
 of the case.* While the Probate Court has jurisdiction in the 
 appointment of conservatorSj its jurisdiction is not exclusive. 
 In a proper proceeding, and where the question might arise in 
 a proceeding pending in the Circuit Court, in which a party 
 properly before that court was supposed to be insane, it might 
 properly try the issue without referring the case as to the ques- 
 tion of insanity to the Probate or County Court. The Circuit 
 Court has its jurisdiction conferred by the constitution, and 
 such cannot be taken away by legislative enactment and trans- 
 ferred to another court; but the legislature may confer con- 
 current jurisdiction with the Circuit Court upon Probate and 
 County Courts in certain matters that would not be exclusive 
 in the latter courts.^ 
 
 3— Section 39, chapter 86, 4— Snyder v. Snyder, 142 111. 60. 
 
 "Lunatics," etc. Starr & Curtis 5 — Klokke v. Dodge, 103 III. 
 
 Annotated Statutes of Illinois, 124; Darling v. McDonald, 101 111. 
 
 Vol. 2, p. 2670; Kurd's R. S. of 373; Hankins v. People, 106 111. 
 111., 1905, p. 1349.
 
 732 THE LAW OF ESTATES. 
 
 832. Appeals. Section 40 of the act relating to Lunatics, 
 etc., provides: "Appeals shall be allowed to the Circuit Court 
 from any order or judgment made or rendered under this Act, 
 upon the appellant giving bond and security as shall be directed 
 by the court; but no appeal from an order removing a con- 
 servator shall in anywise affect such order until the same be 
 reversed. ' '^ 
 
 833. Compensation. Section 36 provides: "Conservators 
 on settlement shall be allowed such fees and compensation for 
 their services as shall seem reasonable and just to the court."' 
 
 628; Wilson v. People, 94 111. 426; to the record in such case and the 
 
 Snyder v. Snyder, 142 111. 60. manner same is made up on ap- 
 
 6 — Section 40, chapter 86, peal, see Ayers v. Mussetter, 46 
 
 "Lunatics," etc. Starr & Curtis 111. 472. 
 
 Statutes, etc.. Vol. 2, p. 2671; 7— Section 38, chapter 86, 
 
 Kurd's Statutes, 1905, p. 1350; "Lunatics," etc. Starr & Curtis 
 
 Snyder v. Snyder, 142 111. 60. As Statutes, etc.. Vol. 2, p. 2670; 
 
 Kurd's Statutes, 1905, p. 1349.
 
 CHAPTER XLVIII 
 
 COMMON DISASTER 
 
 Sec. 
 
 834. Common disasters. 
 
 835. Presumption of death under 
 
 the Roman or civil law. 
 
 836. Presumption of death under 
 
 the common law of England. 
 
 Sec 
 
 837. Inferences of survivorship 
 
 rhay be drawn from the best 
 evidence suggested by every 
 case. 
 
 838. When insured and beneficiary 
 
 die in same disaster; effect. 
 
 Sec. 834. Common disasters. Where two or more persons 
 lose their lives in a common disaster, like a shipwreck, railroad 
 wreck, fire or other accident or disaster, it often becomes most 
 important to ascertain who died first. This question when set- 
 tled by reliable legal proof determines property rights and the 
 succession thereto. 
 
 835. Presumption of death under the Roman or civil law. 
 
 ''If a father and his son perished in the same battle or ship- 
 wreck, the son, above the age of puberty, was presumed to have 
 survived his father; under that age, to have pre-deceased him. 
 This was upon the idea that in the former case the son was 
 usually stronger, and the latter weaker than his father. So if 
 persons perishing in the same disaster were all under fifteen, 
 the presumption of survivorship was with the elder ; if all were 
 over sixty, with the younger. Similarly, the wife was pre- 
 sumed to have yielded first to the common peril. "^ 
 
 836. Presumption of death under common law of England. 
 
 In the case of Middeke v. Balder,- Mr. Justice Carter, review- 
 ing the English and American authorities, gives the civil and 
 
 1 — 24 Am. & Eng. Ency. of Law, of death under civil and common 
 pp. 1027-1028, and authorities law rules. 
 cited in notes under presumption 2 — 198 111. 594. 
 
 733
 
 734 THE LAW OF ESTATES. 
 
 common law rules, adopting and applying the latter in the case 
 as the law of this State. "When two or more persons lose their 
 lives in a common disaster, by the civil law a number of pre- 
 sumptions of survivorship arise, based on age, sex and condition 
 of health, but there is no presumption that they all died simul- 
 taneously. At common law there is no presumption of survivor- 
 ship, and if survivorship is claimed it must be proved, and the 
 one having the burden of proof of such survivorship must fail 
 if he cannot prove it. While there is no such presumption, the 
 practical result of this rule is that the parties are treated as 
 having all died at the same instant of time; and that no one 
 of those thus dying synchronously takes from any of the others 
 dying in the common disaster, by reason of the other's death. '^ 
 This rule was practically settled in England in 1855 in the 
 leading case.^ The common law rule of survivorship is gen- 
 erally applied in all those States of the Union where the com- 
 mon law was first extended. The code laws of Louisiana and 
 California with slight modifications, as well as the final decisions 
 of the courts of those States still hold to the rule of the civil 
 law.* 
 
 3 — Underwood v. Wing, 4 De G. Goodrich, 3 Redf. 87; Cayne v. 
 
 M. & G. 633, heard on appeal from Leach, 8 Mete. 371; (41 Am. Dec. 
 
 the Master of the Rolls; Under- 523); Wing v. Angrave, 8 H. L. 
 
 wood V. Wing, 19 Beav. 459. Cass, 183; Newhall v. Nichols, 75 
 
 4-Louisiana Code, Art. 936. 939; ^- ^- ^^' ^^^^^^^ ^- ^aHett, 23 Kan. 
 
 Holister v. Corder, 76 Cal. 652. ^76; In re Ehle's Estate. 73 Wis. 
 
 For a full discussion of the civil ^^^' P«" ^- B^"' ^^ South Caro- 
 
 and common law rules in regard "^^ Equity (Cheves) 99; Whitley 
 
 to legal presumption of survivor- ^- Equitable Life Assurance Soc. 
 
 ship see the following authori- ^^ Wis. 176; Johnson v. Merri- 
 
 ties: 1 Greenleaf on Evidence, t^^^' ^^ ^«- ^^^' Petition of Wil- 
 
 13th ed., sections 29, 30; 1 Jones ^^r. 20 R. L 126; Fuller v. Lin- 
 
 on Evidence, section 60; Best on zee, 135 Mass. 468; Hildebrandt 
 
 Presumptions, sections 142, 144; ^- Ames, 66 S. W. Rep. 128 
 
 2 Kent's Commentaries, 12th ed., (Tex.); United States Casualty 
 
 435, and cases cited in notes by Co. v. Kacer (Mo.), 69 S. W. 
 
 the authors of the text-books Rep. 370; Cowman v. Rogers, 73 
 
 noted. Taylor v. Daplock, 2 Phill. Md. 406; Balder v. Meddeke, 92 
 
 (Eccl. Rep.) 261; In re Selwyn. 3 HI. App. 229; Meddeke v. Balder, 
 
 ,Hagg (Eccl. Rep.) 748; Stinde v. 198 111. 590.
 
 COMMON DISASTER. 735 
 
 837. Inferences of survivorship may be drawn from the best 
 evidence suggested by every case. It seems that if there is evi- 
 dence arising from the age, sex or physical conditions of the 
 person who perished, from which a reasonable inference of sur- 
 vivorship might be drawn, such inferential proof may suffice. 
 In any ease, if there is evidence arising from the nature of the 
 accident, and the manner of death of the party, which tends to 
 show that some one did in fact survive the others, the whole 
 question is one of fact to be decided in each case by the jury 
 before whom the case is brought.^ One of the earliest, if not 
 the earliest case considered in this country was that of Pell v. 
 Ball.^ B and his wife perished, on board of a steamboat, at 
 sea, by the explosion of one of the boilers, which shattered the 
 vessel and caused it to fall to pieces and sink in about one-half 
 hour after the explosion. Upon evidence that Mrs. B was seen, 
 and was heard to call loudly for her husband, immediately 
 after the disaster, and that he was not heard to answer nor was 
 heard or seen at any time after the explosion, it was held : That 
 Mrs. B had survived her husband. The case is most important 
 in this respect, independent of the excellent reasoning of the 
 learned judge delivering the decision ; as the rules laid down in 
 that case have been applied in many cases of common disaster 
 since decided. The court said in that case:^ "There will gen- 
 erally be found something in the condition of the parties, their 
 age, strength, health and habits, which willj in some degree at 
 least, rescue the decision from the imputation of rash conjec- 
 ture, and place it rather upon the foundation of evidence and 
 probability than tremulous presumption. Where there is any 
 evidence whatsoever, even though it be but a shadow, it must 
 govern in the decision of the fact."^ *'The common law encour- 
 ages a resort to every fountain from which truth can be drawn ; 
 it listens to witnesses; it looks into the internal evidence of 
 things; it contemplates the whole of the circumstances, and 
 
 5—1 Greenleaf on Evidence, 7 — Pell v. Ball, 12 South Caro- 
 
 16th ed., sees. 29, 30. lina Equity (Cheves), 99-103. 
 
 6 — 12 South Carolina Equity 8 — Id., page 104. 
 Reports (Cheves) 99.
 
 736 THE LAW OF ESTATES. 
 
 then draws its conclusions, according to the prepondering prob- 
 ability. If the case is divested of proof and the exigency de- 
 mands it, resort should be had to extraneous circumstances. If 
 it contains internal evidence and no more, that must be resorted 
 to. But if, to this, witnesses can be added, bearing positive 
 testimony, or detailing facts from which reasonable inferences 
 can be drawn, these furnish the most satisfactory proof. ^ "But 
 because the plaintiffs are to prove the fact of survivorship, it 
 does not follow that they are to prove it to demonstration. All 
 reasonable inferences will be drawn from the best evidence, sug- 
 gested by the case; and though at last we may be far from 
 arriving at anything like certainty, although indeed, there may 
 remain much obscurity and doubt, yet if we have evidence only 
 sufficient to lead us out of the regions of conjecture, we may 
 follow it." In the case of Johnson v. Merrithew'^^ evidence was 
 heard to the effect that Mrs. Margaret P. Nickerson, one of the 
 parties lost in the shipwreck, was, in January, 1875, while on a 
 visit to her daughter in Boston, stricken with paralysis or 
 some kindred malady that prostrated her bodily and confused 
 and unsettled her mind. The court holding, with the ease of 
 Whyte V. Mann}'^ "Death may be proved by showing facts 
 from which a reasonable inference would lead to that con- 
 clusion," and, "if death may be inferred from facts shown, it 
 logically follows that the time of death may be fixed with more 
 or less certainty in the same manner. "^^ In the Wisconsin 
 case the court found from the evidence that the old man Abram 
 ,died first, then his son James on his way to assist his father; 
 and lastly the wife and children. The evidence admitted in 
 that case is almost entirely circumstantial; the buildings are 
 minutely described, the location of the rooms, the windows, 
 doors, exits, and the furniture, particularly the beds occupied 
 by the victims; also, the physical disabilities and the habits of 
 the parties who lost their lives by fire occurring at the farm 
 
 9— Id., page 108. 12— In re Ehle's Estate, 73 Wis. 
 
 10—80 Me. 111. 445-462. 
 
 11—26 Me. 361.
 
 COMMON DISASTER. 737 
 
 house in which the deceased parties lived. The evidence of 
 physical disability admitted and considered by the court shows 
 that Abram was 82 years of age, in poor health, feeble and 
 requiring considerable attention; that Helen was active and 
 nervous and easily awakened ; and that James had a phlegmatic 
 temperament, which made it at times difficult to awaken him. 
 In summing up the evidence in that case the court say (page 
 462) : "The direct evidence establishes the fact that James 
 uttered the cry under circumstances which made death certain 
 to him within a few seconds; whereas, there is no e\idence 
 that at that same moment of time the flames had penetrated 
 the family sleeping room — much less that at that same moment 
 death was equally imminent to the children and their mother. 
 It is not the case of death to several from the same direct 
 operating cause, as an explosion; nor yet the case of several 
 burning to death in the same room, or in the same building, 
 in the absence of all evidence tending to show the situation of 
 the victims and the place of their origin and the progress of the 
 fire. On the contrary the death of the several victims resulted 
 from a succession of causes." 
 
 838. When insured and beneficiaiy die in same disaster — 
 effect. In a ease involving the right to the proceeds of a policy 
 of insurance upon the life of the husband for the benelit of 
 the wife, where both perish in the same disaster. The court in 
 the first instance treats all parties as having died at the same 
 instant. In effect the rule, "that no one takes anji:hing from 
 any of the others by reason of such other's death" is put in 
 force in such case. The party claiming the fund must prove the 
 fact of survivorship if he prevails." Where a benefit certificate 
 provided, "that the benefits shall be paid to the heirs of the 
 deceased member in case the named beneficiary dies before the 
 insured"; if both the insured and the beneficiary perish in the 
 
 13— Fuller v. Linzee, 135 Mass. 66 S. W. Rep. 128; United States 
 468; Pardon v. Briscoe, 81 Tex. Casualty Co. v. Kacer (Mo.), S. 
 563; Hildebrandt v. Ames (Tex.), W. Rep. 370; Cawman v. Rogers, 
 
 73 Md. 406. 
 47
 
 738 THE LAW OF ESTATES. 
 
 same disaster the heirs or representatives of the beneficiary have 
 the burden of proving, that the beneficiary became entitled to 
 the benefit fund by reason of his or her surviving the insured; 
 and, if they cannot make such proof the benefit will go to the 
 heirs of the deceased member.^* The beneficiaries of a certificate 
 in fraternal associations have no vested interest under the laws 
 of Illinois.^^ In cases of ordinary property no one has a vested 
 right in it during the lifetime of the absolute owner, but has 
 only an expectancy, dependent upon the death of the owner 
 during the lifetime of the expectant, and upon the further con- 
 tingency that the owner does not dispose of the property by 
 deed, gift or will made before his death.^^ 
 
 14— Meddeke v. Balder, 198 111. Railroad Brakemen, 146 111. 570; 
 
 590. Voigt V. Kersten, 164 111. 314. 
 
 15— Martin v. Stubbingo, 126 111. 16— Meddeke v. Balder, 198 111. 
 
 387; Benton v. Brotherhood of 590.
 
 CHAPTER XLIX 
 
 FEES OF CLERKS 
 
 Sec 
 
 839. Fees of clerks of probate 
 
 courts in counties of the 
 third class. 
 
 840. Payment in advance. 
 
 841. Repeal. 
 
 842. Act in relation to docket fee 
 
 held unconstitutional. 
 
 843. Fees of clerks of county- 
 
 courts in probate matters. 
 
 Sec. 
 
 844. Remission of fees in county 
 
 and probate courts in coun- 
 ties of first and second class. 
 
 845. Repeal of acts in conflict with. 
 
 846. Record in case of appeal or 
 
 writ of error; clerks' fees 
 and costs. 
 
 847. Per diem to clerks of probate 
 
 court in counties of second 
 class. 
 
 Sec. 839. Fees of clerks of Probate Courts in counties of 
 third class. An Act to provide for fees of clerks of Probate 
 Courts of the third class approved May 29th, 1879, in force 
 July 1st, 1879.1 
 
 That the clerks of probate courts in counties of the third class 
 shall be entitled to receive the fees herein specified for the ser- 
 vices mentioned, and such other fees as may be provided by law 
 for other services not herein designated. 
 
 For taking proof of last will and testament, or codicil, when 
 proved separately, and endorsing certificate of probate, thereon, 
 and for entering order admitting to probate last will and testa- 
 ment, or codicil, and granting letters testamentary, $7. 
 
 For granting letters of administration, guardianship or con- 
 servatorship, $5. 
 
 For filing for any purpose, 25 cents. 
 
 For taking and approving bond of executor or administrator, 
 
 1 — Par. 53, section 1, chapter 53, Jones & Addington's Supplements 
 
 "Fees and Salaries." Laws of thereto. Vol. 2, pp. 1937, 1938; Vol. 
 
 1879, p. 164. Starr & Curtis An- 4, p. 626; Kurd's R. S. of 111., 1905, 
 
 notated Statutes of Illinois, with pp. 1075, 1076. 
 
 739
 
 740 THE LAW OF ESTATES. 
 
 guardian, conservator, or any other bond required by law to be 
 
 taken, $1. 
 
 For certified copy of letters testamentary, of administration, 
 of guardianship or conservatorship, $1. 
 
 And in addition thereto, 15 cents for each one hundred words 
 contained in said will or codicil. 
 
 For issuing warrant to appraisers^ $1. 
 
 For taking and filing renunciation of executor or of right to 
 administer, 50 cents. 
 
 For filing and docketing each claim against estates, and for 
 entering' order allowing or dismissing same, $1.50. 
 
 For entering order reinstating or refiling or redocketing each 
 claim, $1.50. 
 
 For filing and docketing proof of notice for adjustment of 
 claims, $1. 
 
 For filing and docketing assignment of claims or judg- 
 ment, $1. 
 
 On petition for appointment of conservator, and petition for 
 sale of real estate by executor, administrator, guardian or con- 
 servator, docketing and filing the same, a docket fee of $6. 
 
 For each cause tried by jury a jury fee of $3 to be prepaid by 
 the party calling for the jury ; and in ease of an application for 
 appointment of a conservator, when a conservator is appointed, 
 to be taxed against the estate of the person for whom the con- 
 servator is appointed; and in case of a claim, the costs to be 
 taxed against the unsuccessful party and collected as other 
 taxed costs. 
 
 For entering order, docketing, filing and issuing citation, $1. 
 
 For issuing and filing subpoena, 25 cents. 
 
 For issuing dedimus potestaem [potestatem], $1. 
 
 For issuing, docketing and filing executions, $1. 
 
 For proof of heirship, $1. 
 
 For writ of attachment for contempt of court, $1. 
 
 For every certificate under seal of court issued by clerk, ex- 
 cept as herein otherwise provided, 50 cents. 
 
 For discharge of executors, administrators, guardians, or con- 
 servators, or any sureties on their bonds, $2.50.
 
 FEES OF CLERKS. 741 
 
 For entering any order not herein otherwise provided for, 75 
 cents. 
 
 For issuing summons and filing same, 75 cents. 
 
 For administering each oath, 15 cents. 
 
 For recording all papers, instruments, documents and writ- 
 ings required by law or order of court to be recorded, for each 
 one hundred words, 15 cents. 
 
 On application for the grant of letters testamentary, of ad- 
 ministration, guardianship or conservatorshipj it shall be the 
 duty of the applicant to state in his or her petition the value 
 of all the real and personal estate of such deceased person, 
 infant, idiot, insane person, lunatic, distracted person, drunkard 
 or spendthrift, as the case may be, and on the grant of letters 
 testamentary, administration, guardianship or conservatorship, 
 there shall be paid to the clerk of said Probate Court, from the 
 proper estate, and charged as costs a docket fee as follows: 
 
 When the estate does not exceed $5,000, $5. 
 
 And the sum [of] one (1) dollar for each and every addi- 
 tional $1,000 of the estate of such deceased person, infant, idiot, 
 insane person, lunatic, distracted person, drunkard or spend- 
 thrift, as the case may be. 
 
 In all cases where any deceased person shall leave him or her 
 surviving a widow or children resident of this State, who are 
 entitled out of said estate to a widow's or child's award, and 
 the entire estate real and personal of such deceased person shall 
 not exceed $2,000, and in the case of any minor whose estate 
 real and personal does not exceed the sum of $1,000, and whose 
 father is dead, and in all cases of any idiot, insane person, 
 lunatic, or distracted person, drunkard or spendthrift, when 
 such person has a wife or infant child dependent on such per- 
 son for support, and the entire estate of such person shall not 
 exceed the sum of $2,000, the probate judge (by order of court) 
 shall remit and release to such festate all of the costs herein 
 provided for. 
 
 In all estates not exceeding $500 in value, the judge of the 
 Probate Court may in his discretion suspend, modify or remit 
 the costs by order of court duly made. As amended by act
 
 t42 THE LAW OF ESTATES. 
 
 approved June 19, 1891. In force July 1, 1891. L. 1891, p. 
 137; Legal. 
 
 840. Payment in advance. Section 2. The clerk of Probate 
 Courts shall be entitled in all cases to demand and receive the 
 payment of all fees for services in advance, so far as the same 
 can be ascertained.^ 
 
 841. Repeal. Section 3. All acts or parts of acts in con- 
 flict with this act are hereby repealed. [As amended by act ap- 
 proved June 19, 1891. In force July 1, 1891. L. 1891, p. 39.] 
 
 842. That portion of the act, concerning docket fee, recently 
 held to be unconstitutional, and an attempt to impose a burden 
 upon estates in the nature of a tax for the purpose of raising 
 revenue for public purposes. The act relating to fees including 
 a doclvet fee provided for has been strenuously enforced in Cook 
 county at least ever since its enactment in 1879. Many hun- 
 dred thousand dollars has been exacted and paid as a docket 
 fee from deceased persons' estates, and from the estates of 
 infants, idiots, lunatics, distracted persons, drunkards and 
 spendthrifts, through their legal representatives, such as execu- 
 tors, administrators, guardians and conservators. This vast 
 sum of money so collected imposed as a burden upon estates 
 in the nature of a tax, is supposed to have found its way into 
 the county treasury and used for public purposes. In October, 
 1906, the Supreme Court of Illinois, having this question of 
 docket fees squarely before them in the case of Cook County v. 
 Fairhank, et al.,^ it was held: The provisions of the Act of 1879 
 entitling Probate Courts of the third class to a graduated docket 
 fee, based upon the value of the estate upon which application 
 is made for letters testamentary or of administration, guardian- 
 ship or conservatorship, is unconstitutional, as being an attempt 
 to impose a burden upon estates, in the nature of a tax, for the 
 
 2 — Hamilton v. People, 61 111. case cited in note, and it was 
 
 App. 94. Section 2 of Act in ques- held fees should not be demanded 
 
 tion providing for payment of fees or paid in advance. 
 
 in advance was passed upon in 3 — 222 111. 578.
 
 FEES OF CLERKS. 743 
 
 purpose of raising revenue for public purposes. The law ap- 
 plied in the Illinois case has also been ai)plied in other States.* 
 
 843. Fees of clerks of county courts in probate matters. Sec- 
 tion 3. For taking proof of last will and testament, or codicil, 
 when proved separately, and indorsing certificate of probate 
 thereon, including all services relating thereto, thirty-five cents. 
 
 For entering order admitting to probate last will and testa- 
 ment, or codicil, twenty cents. 
 
 For recording last will and testament, or codicil, for every 
 one hundred words, eight cents. 
 
 For taking bond of executor, administrator, guardian or con- 
 servator, administering oath and recording bond, fifty cents. 
 
 For issuing and sealing letters testamentary, letters of admin- 
 istration, appointment of guardian or conservator, and record- 
 ing the same, seventy-five cents. 
 
 For entering order for appointment of appraisers, twenty 
 cents. 
 
 For issuing warrant to appraisers, fifty cents. 
 
 For taking and filing renunciation of widow or next of kin, 
 five cents. 
 
 For entering each judgment, order or decree, or settlement of 
 executor, administrator, guardian or conservator, for every one 
 hundred words, eight cents. 
 
 For filing and docketing claims against estates, ten cents. 
 
 For entering orders allowing claims against estates, counting 
 the whole entry as one, twenty cents: Provided, no charge 
 shall be made for allowing claims against estates, except for 
 swearing to and filing affidavits, unless the claim is litigated 
 as other suits. 
 
 For filing inventories, appraisement bills, sale bills, and all 
 
 4 — State V. Mann, 76 Wis. 469; courts in construing statutes as- 
 State V. Gorman, 40 Minn. 232; sume that they were enacted by 
 Fatjo V. Pfister, 117 Cal. 83; In re the legislature with a view to the 
 Cope's Estate, 191 Pa. St 1; see settled maxims and principles of 
 also People v. Hinrichson, 161 111. statutory interpretation. That 
 223. In this case it is held: The case, in the Fairbanks case, being 
 
 explained and distinguished.
 
 744 THE LAW OF ESTATES. 
 
 other exhibits and writings (except wills and codicils), five 
 cents. 
 
 For entering order approving the same, twenty cents. 
 
 For recording inventories, appraisement bills, sale bills, and 
 all other exhibits and writings (except wills and codicils), for 
 every one hundred words, eight cents. 
 
 For entering order approving widow's award, twenty cents. 
 
 For certified copies and exemplifications of records, papers 
 and settlements, for every hundred words, eight cents. 
 
 For certified copies, with seal of court, of letters of adminis- 
 tration or testamentary, or guardianship or conservatorship, 
 fifty cents. 
 
 For petition, order, and issuing citation, forty-five cents. 
 
 For entering order approving account of executor, adminis- 
 trator, guardian or conservator, twenty cents. 
 
 For recording such accounts, for every one hundred words, 
 eight cents. 
 
 For entering order approving reports of executor, adminis- 
 trator, guardian or conservator, twenty cents. 
 
 For entering order discharging executor, administrator, guar- 
 dian or conservator, twenty cents. 
 
 For keeping a regular account current with executor, admin- 
 istrator, guardian or conservator^ to be kept in a well bound 
 book, and preserved, on each settlement, fifty cents. 
 
 For filing petition, and issuing summons in application to sell 
 real estate, twenty-five cents. 
 
 For entering order for same, twenty-five cents. 
 
 For entering order appointing guardian ad litem, twenty 
 cents. 
 
 For dedimus to prove will, or otherwise, fifty cents. ^ 
 
 844. Remission of fees in county and probate courts in coun- 
 ties of first and second class. An act, approved June 18, 1891. 
 In force July 1, 1891. Laws of 1891, p. 136. Amended June 
 
 5— Par. 55, section 3, chapter linois, Vol. 2, pp. 1934, 1935, 1936; 
 53, "Fees and Salaries." Starr & Kurd's R. S. of 111., 1905, pp. 1072, 
 Curtis Annotated Statutes of II- 1073.
 
 FEES OF CLERKS. 745 
 
 21, 1895. In force July 1, 1895. Laws of 1895, p. 175. Sec- 
 tion 1. In all cases where by the death of any person there 
 shall be left, surviving such person, a widow or children resi- 
 dent of this State who are entitled out of said estate to a 
 widow's or children's award, and the entire estate of such 
 deceased person shall not exceed one thousand (1,000) dollars, 
 and in case of any minor whose estate does not exceed the sum 
 of five hundred (500) dollars, and whose father is dead, and 
 in all cases of any idiot, insane person, lunatic or distracted 
 person, drunkard or spendthrift, when such person has a wife 
 or infant child dependent on such person for support, and the 
 entire estate of such person shall not exceed the sum of one 
 thousand (1,000) dollars, and in cases of the adoption of chil- 
 dren wherein it shall appear to the court that the child adopted 
 is under the age of fourteen years, and that his or her estate 
 does not exceed in value the siun of five hundred (500) dollars, 
 the court shall make an order, and cause the same to be entered 
 of record, releasing and remitting all the fees of the clerk and 
 other officers of the court.® 
 
 845. RepeaL Section 2. All acts or parts of acts in conflict 
 with this act are hereby repealed. 
 
 RECORD ON APPEAL AND ERROR. 
 
 An act concerning fees and costs. [Approved June 15, 1887. 
 In force July 1, 1887. L. 1887, p. 182.] 
 
 846. Record in case of appeal or writ of error, fee to clerk 
 and costs to party. Section 1. Be it enacted by the People of 
 the State of Illinois, represented in the General Assernbly, That 
 whenever any party to any suit or proceeding in any court of 
 record in this State, desires to take an appeal or prosecute a 
 writ of error from any judgment, or decree of such court, ren- 
 dered in any such suit or proceeding, to the Appellate or Su- 
 preme Court, and shall present to the clerk of such court, where 
 
 6— Kurd's R. S. of 111., 1905, pp. 1076, 1077.
 
 746 THE LAW OF ESTATES. 
 
 such judgment or decree was rendered, a fair copy of the bill 
 of exceptions, or certificate of evidence, or other papers not of 
 record in such cause, necessary to be transcribed, the clerk shall, 
 in making up the transcript of the record for such appeal or 
 writ of error, be allowed three cents for each one hundred 
 words, for comparing such copies with the originals, or with 
 the record thereof, and for correcting any errors in the same: 
 Provided, that in no case shall the fee for such services be less 
 than one dollar ; and he shall insert such copy in the record and 
 certify the same as a part thereof. And in counties of the sec- 
 ond and third class, the party furnishing such transcript, and 
 who shall be successful on such appeal or writ of error, shall re- 
 cover as costs against the unsuccessful party not furnishing such 
 transcript, ten cents for each one hundred words thereof, to- 
 gether with such other costs as may be allowed by law: Pro- 
 vided, that the parties to such appeal or writ of error, may by 
 agreement, have the original bill of exceptions, or certificate of 
 evidence, instead of a copy incorporated in such transcript of 
 the record, without paying, or being liable to pay any fees or 
 costs therefor.'^ 
 
 847. Per diem to clerks of circuit and probate courts in 
 counties of second class. An act to amend an act entitled "An 
 act to allow a per diem fee to clerks of the Circuit and Probate 
 Courts in counties of the second class," approved June 15, 
 1893, in force July 1, 1893. [Approved June 7, 1895. In 
 force July 1, 1895. L. 1895, p. 175.] 
 
 Per diem fee to clerks of Circuit and Probate Courts in 
 counties of first and second class. An act to amend an act 
 entitled, "An act to allow a per diem fee to clerks of the cir- 
 cuit and Probate Courts in counties of the first and second 
 class," approved June 7, 1895, in force July 1, 1895. [Ap- 
 proved May 10, 1901. In force July 1, 1901. L. 1901, p. 208.] 
 
 847a. Clerks allov/ed per diem fee. Section 1. Be it enacted 
 hy the People of the State of Illinois represented in the Gen- 
 
 7— Starr & Curtis Annotated 1941; Kurd's R. S. of 111., 1905, 
 Statutes of Illinois, Vol. 2, p. pp. 1076, 1077.
 
 FEES OF CLERKS. 747 
 
 eral Assembly: That an act to amend an act entitled, "An act 
 to allow a per diem fee to clerks of the Circuit and Probate 
 Courts in counties of the first and second class," be amended 
 to read as follows: 
 
 The clerks of the Circuit Court in counties of the second class 
 shall receive and be allowed as a per diem fee for attendance 
 upon said courts the sum of six dollars per day ; and the clerks 
 of the Probate Court in counties of the second class, and clerks 
 of the Circuit Court in counties of the first class shall be allowed 
 the same per diem fee for attendance upon their respective 
 courts as are now allowed to clerks of the county court and 
 sheriffs in counties of the second class for such service.^ / 
 
 8— See L. & N. R. R. Co. v. East R. S. of 111., 1905, p. 1077, and 
 St. Louis, 134 III. 661; Callon v. note by editor. Query, is it valid? 
 Jacksonville, 147 III. 114; Hu'rd's
 
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