(No. 14128.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. THOMAS WHITE, Plaintiff in Error.

Opinion filed December 22, 1921.

I. CRIMINAL LAW-when time allowed for argument in support of motion for new trial is sufficient. Where the time for hearing arguments in support of a motion for new trial is set for the day following the return of the verdict, and counsel do not ask for further time than is allowed them but appear and argue the motion, the presumption is that sufficient time was allowed.

2. SAME when beginning trial on day court appoints counsel for defendant is not error. Where the defendant is not represented by counsel and the court appoints an attorney to defend him, and it is not shown that the defendant or the attorney asked for time in which to prepare for the trial, it is presumed that an immediate trial was desired and there is no error in proceeding with the trial at once.

3. SAME-judgment against defendant by his true name need not mention his alias. Where a defendant is indicted under his true name as "Thomas White, otherwise called Thomas McGuirk," it is not a valid objection that the judgment against him is under his true name without mentioning his alias.

4. SAME when objection that indictment charged two felonies is waived. An objection that the indictment charged burglary and receiving stolen property, in different counts, is not ground for reversal of a judgment of conviction for burglary, where the defendant made no motion to quash or to require the People to elect, but, so far as the record shows, willingly pleaded to the indictment and went to trial.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. ANTON T. ZEMAN, Judge, presiding.

DANIEL M. DEVER, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, ROBERT E. CROWE, State's Attorney, and EDWARD C. FITCH, (Edward E. WILSON, HENRY T. CHACE, JR., and CLYDE C. Fisher, of counsel,) for the People.

Mr. JUSTICE FARMER delivered the opinion of the court: Plaintiff in error was indicted at the November term, 1919, of the criminal court of Cook county. The indictment in different counts charged him with the crime of burglary and receiving stolen property. He was indicted under the name of "Thomas White, otherwise called Thomas McGuirk." He pleaded not guilty, and the cause came on for trial January 14, 1920. He was not represented by counsel, and the court appointed Francis V. Healy to represent and defend him. A jury was called, impaneled and sworn the same day and the trial was concluded that day, resulting in a verdict finding the defendant, Thomas White, alias Thomas McGuirk, guilty of burglary in manner and form as charged in the indictment, and that he was twenty-eight years of age. On the return of the verdict plaintiff in error entered a motion for a new trial. The court set the motion for hearing at two o'clock in the afternoon the next day, when it was heard, overruled and judgment pronounced on the verdict. The record shows counsel were heard in support of the motion and in opposition to it before the motion was denied. Plaintiff in error was sentenced to the penitentiary, where he is now confined. He was given sixty days in which to file a bill of exceptions but none was filed, and we have only the common law record before us.

It is urged as grounds for reversal that the court abused its discretion in permitting the defendant charged with two felonies to be tried on the same day counsel was appointed to defend him; that the court erred in setting the argument on the motion for a new trial on the day following the return of the verdict; that the indictment charges Thomas White, otherwise called Thomas McGuirk, with the commission of two felonies, and the judgment of conviction is against Thomas White, only.

The record does not show, and it is not asserted by counsel, that plaintiff in error or the attorney appointed by

the court to defend him asked or desired time to prepare for trial. For aught that appears they were ready and desired an immediate trial. The situation presented in People v. Bopp, 279 Ill. 184, and North v. People, 139 id. 81, relied on by plaintiff in error, was entirely different from the . case here. In both of those cases the defendants were indicted for murder, and when counsel was appointed to defend them a continuance was asked for the purpose of enabling counsel to perpare the defense. The motions for continuance were supported by affidavits made by counsel and others. Counsel's affidavits set up that time would be necessary to enable them to prepare for trial, and also in both cases that counsel had other engagements and duties which would not permit them then to enter upon the trial. This court held that under the circumstances shown a continuance should have been granted. It does not appear in this case that plaintiff in error asked or desired further time than was allowed by the court to prepare for the motion for a new trial. The record shows that his counsel was present and argued the motion, and the presumption is warranted that no further time was needed than was given.

Plaintiff in error made no motion to quash the indictment because it charged two offenses and made no motion to require the People to elect. So far as this record shows he willingly pleaded to the indictment and went to trial.

There is no merit in the contention that the judgment should be reversed because it was against plaintiff in error in his true name and did not mention his alias.

The evidence not having been preserved by bill of exceptions, it is to be presumed that plaintiff in error was proven guilty beyond a reasonable doubt.

The judgment is affirmed.

Judgment affirmed.

800-16

(Nos. 14215, 14216.-Reversed and remanded.)

JAMES W. WATTS, Exr. Appellee, vs. NETTIE M. Killian, Appellant.-JAMES W. Watts, Exr. Appellant, vs. NETTIE M. KILLIAN et al. Appellees.

Opinion filed December 22, 1921.

I. MORTGAGES when mortgaged property is primary fund for payment of mortgage debt. Where a grantee of mortgaged property assumes and agrees to pay the mortgage debt he becomes the principal debtor and the grantor the surety for the payment of the debt, and as between them the mortgaged property becomes the primary fund for the payment of the debt; but this is true only between the parties to the conveyance, as the rule rests upon the relation of principal and surety and the right of the surety to the benefit of the collateral.

2. WILLS-when testator's mortgaged property is not primary fund for mortgage debt. One who purchases mortgaged property and agrees to pay the mortgage becomes personally liable for the mortgage debt, and where he dies testate before the maturity of the debt the mortgaged property is not the primary fund for the debt as between the widow, who renounced the will, and the claimants of the fee, but the personal estate will be liable although the mortgagee has filed no claim against the personal estate. (Sutherland v. Harrison, 86 Ill. 363, followed.)

3. SAME-widow who renounces will is entitled to one-third of personalty only after payment of debts. The right of a widow, upon renouncing the will, to take one-third of the personal estate is not a right to one-third of the whole personal estate at the time of the testator's death but only to one-third after the payment of all debts.

4. SAME-Court will so construe will as to dispose of all testator's property, if possible. Where a person dies testate it is presumed he intended to dispose of all his property and leave no part of it as intestate estate, and this presumption is so strong that the court will adopt any reasonable construction of the will rather than hold that the testator intended to die intestate as to any of his property.

5. SAME when executor may sell undivided interest not disposed of in the will. A residuary clause in a will directing the executor to sell all the rest of the testator's real and personal property, wherever situated, "except any farm property in Lee county," does not preclude the executor from selling an undivided one-sixth interest which the testator owned in a tract of land in said county

and which he failed to dispose of by the will, where the will declares an express intention of the testator not to die intestate and such sale is necessary to carry out the manifest intention of the testator shown in other provisions of the will.

6. SAME-when provision in will to prevent lapse does not dispose of after-acquired property. A clause in a will declaring the intention of the testator that the provisions of his will shall dispose of all his property of every kind and character, and that if any provision should fail such property shall be given to his grandchildren, cannot be construed as disposing of a farm which the testator acquired after the will was made, where the will makes no reference to after-acquired property.

7. SAME real property acquired after making of will does not pass unless an intention affirmatively appears. Real estate acquired after the execution of a will will not pass by virtue of the will unless an intention to dispose of the same affirmatively appears from the will.

APPEAL from the Circuit Court of Lee county; the Hon. OSCAR E. HEARD, Judge, presiding..

MARK C. KELLER, for Nettie M. Killian, appellant and appellee.

JOHN P. DEVINE, for James W. Watts, Exr. appellee and appellant.

HENRY C. WARNER, and ROBERT L. WARNER, for appellee Jessie S. Johnson.

SHERWOOD DIXON, for infant appellees.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

Squire E. Johnson, of Dixon, in Lee county, executed his last will and testament on November 21, 1914, and died on April 11, 1920, leaving Jessie Johnson, his widow, and Nettie M. Killian, his daughter and only heir-at-law. The will was admitted to probate, and the widow renounced her rights under the will and elected to take under the law. The executor, James W. Watts, filed his bill in the circuit