and after her death it shall be paid to the testator's children then surviving, share and share alike; that the property shall be rented for hotel purposes as long as any of his children shall live, and "when all are dead I direct that my executors sell the same, and my other property then belonging to my estate, and divide the proceeds equally among the surviving heirs of my children." The heirs of the children are not all those persons who upon the death of the children succeed to their respective estates from generation to generation, but only those heirs who are surviving at the death of the last child are included. The words used to designate the remainder-men who are to take after the expiration of the life estate at the death of the last survivor of the children indicate as such remainder-men the persons who at that time answer the description of heirs and limit the estate to such persons and to their heirs and not to the heirs in general of the respective children who have previously died, and such estate takes effect as a contingent remainder to the heirs who are then living of all the children who have died.

Another objection to the application of the rule in Shelley's case is that the children of the testator took no interest in the remainder under his will. The devise to each child was, to receive the rents and profits of the land given to such child for life. If he died leaving children the land was given absolutely to the children. If he died leaving no children the executors were authorized to collect the rents and profits during the life of the surviving children and the widow, and when the last child had died the executors were directed to sell the property and distribute the proceeds to the surviving heirs. This gave a contingent equitable interest in the proceeds of the land as personal property, and not any interest in the land itself. (Baker v. Copenbarger, 15 Ill. 103; Ebey v. Adams, 135 id. 80; Maginn v. McDevitt, 269 id. 196; Martin v. Martin, 273 id. 595; Grove v. Willard, 280 id. 247.) Since the exec

utors were required to manage and control the land and eventually to sell and convey it and distribute the proceeds they took an estate in fee simple, since a trustee must take such estate as is necessary to enable him to perform his trust. Ebey v. Adams, supra; Emmerson v. Merritt, 249 Ill. 538; Maginn v. McDevitt, supra.

With regard to the eighty-acre tract of land which was devised to Sarah J. Churchill for life, the appellant argues that the fee simple title to that land is now in her and Mrs. Marr and George S. Churchill because of the provision that the rents and proceeds should be divided equally among the children of the testator surviving at her death and the testator's wife, without making any final disposition of the fee. It is manifest that the direction that the executors divide the rents and profits among the surviving children was not intended to convey an equitable fee to them; that it was not intended to create a perpetual trust in the executors to collect and pay to the children, their heirs and grantees. The design of the testator, as shown by his whole will, was to give to each of his children such portion of his real estate as he thought proper for life, and in case of the death of either of the children leaving children, the land in which any child so dying had a life estate was to go to his or her children, but if any child died leaving no children then the real estate devised to such child was to come back to the executors, who were to have charge of the property, collect the rents and divide them equally among the surviving children and the widow until the death of the last surviving child, and then the whole was to be subject to the provision contained in the will for the final disposition of all the testator's estate, which directs that when all are dead the executors shall sell the Churchill House, and "my other property then belonging to my estate, and divide the proceeds equally among the surviving heirs of my children.”

The question has not been argued, but the facts appear by the bill that the trust which was created by the testator

for the collection of the rents of his estate, the management of the hotel and the distribution of the proceeds among his children has now no trustee. The surviving executrix died many years ago. The trustee who was appointed by the court died shortly before the bill was filed. There is nobody charged with the duty of carrying out the trust. The appellant is interested in the property, in the collection of the rents and profits and their distribution and in the preservation of the property for the future. It is a proper case for the appointment of a trustee upon the application of any person interested. A court of equity will not permit a trust properly created to fail for want of a trustee, and where for any reason a vacancy exists in the office the court will appoint a trustee where no other provision for the appointment exists. (French v. Northern Trust Co. 197 Ill. 30.) Though the bill did not specifically ask for the appointment of a trustee, and the theory of the complainant was that the legal title had become vested in the surviving heirs of Charles B. Churchill and they were entitled to the partition which was prayed for, yet the bill stated facts which showed that the title was not so vested, that the complainant was mistaken in her judgment of the legal questions involved and the rights of the parties, and that she was entitled to have a trustee appointed. The bill prayed for general relief. Where a bill prays for general and special relief and the special relief cannot be granted, the court may grant any relief which is consistent with the facts alleged in the bill and proved by the evidence. (VanZanten v. VanZanten, 269 Ill. 491; Struve v. Tatge, 285 id. 103; Atchison, Topeka and Santa Fe Railway Co. v. Stamp, 290 id. 428; Kelly v. Kelly, 293 id. 169.) For this reason the demurrer should have been overruled.

The decree will be reversed and the cause will be remanded, with directions to overrule the demurrer.

Reversed and remanded, with directions.

(No. 14239.-Reversed in part and remanded.)

THE PEOPLE ex rel. Abram Peer, County Collector, Appellee, vs. THE Louisville and Nashville Railroad COMPANY et al. Appellants.

Opinion filed December 22, 1921.

1. TAXES—when amount of county tax for miscellaneous purposes is too large for levy in one item. As it is not possible to foresee all the contingencies or possibilities that may arise in the business year of a county, a certain amount of taxes for general, incidental, miscellaneous or similar purposes may be levied in one item; but this amount must be small in comparison with the total levy, and an item for such purposes amounting to more than onefourth of the total levy is entirely too large.

2. SAME when tax to pay bonds voted by school district should be included in levy for building purposes. As school boards have power to levy taxes only for educational and building purposes a tax to pay bonds voted by a school district for building purposes must be included in the levy for building purposes, and any indebtedness incurred for educational purposes must be paid out of the tax levied for educational purposes.

3. SAME-vote to issue bonds for school building purposes does not authorize increase of tax rate. A vote taken in a school district to issue bonds for building purposes is not the equivalent of a vote to increase the tax rate, and where taxes have been levied for educational and building purposes up to the statutory rate of two per cent, in the absence of a vote the board is not authorized to increase such rate by levying an additional amount to pay maturing bonds and coupons voted by the district.

4. SAME-School district must levy tax sufficient to pay bonded indebtedness. Under section 9 of article 9 of the constitution a school district must levy a sufficient amount of taxes to pay the principal and interest on a bonded indebtedness for building purposes which has been authorized by vote, but any levy for building purposes (other than for bonded indebtedness) when added to the levy for bonded indebtedness for building purposes must not exceed the rate allowed by the statute unless authorized by vote.

5. SAME-record of levy of road district taxes may be amended by parol testimony. The provisions of section 191 of the Revenue act for the correction of irregularities in the assessment and levying of taxes authorize the introduction of parol testimony, in a proceeding by the county collector for judgment for delinquent

taxes, to amend the record of the levy of taxes in a road district so as to show the action of the commissioners in agreeing upon damages for altering, widening, vacating or ditching to drain roads under section 58 of the Road and Bridge act, for which a levy of thirteen and one-third cents in excess of sixty-six cents on the $100 is authorized.

APPEAL from the County Court of Hamilton county; the Hon. JAMES M. LEE, Judge, presiding.

CHARLES P. HAMILL, (JOHN M. ECKLEY, of counsel,) for appellants.

W. W. DAILY, State's Attorney, (H. ANDERSON, of counsel,) for appellee.

Mr. JUSTICE DUNCAN delivered the opinion of the court:

This is an appeal by the Louisville and Nashville Railroad Company and the Southeast and St. Louis Railway Company from a judgment of the county court of Hamilton county overruling the objections of appellants to the delinquent county taxes, the taxes of school district No. 39 and the road and bridge taxes of Twigg and Mayberry townships and ordering sale of their property.

As to the county tax, it was stipulated that the county board levied a total of $32,600 for county purposes, including the item, "miscellaneous, $9000;" that this item was 27.6 per cent of the entire levy for county purposes; that a total tax of $3340.51 was assessed against the property of the objectors, and that $921.98 of this amount was levied for miscellaneous purposes; that the total county tax spread by the county clerk was $35,033.47, and that the $9000 "miscellaneous" item was 25.69 per cent of the county tax spread by the clerk.

It is settled by the decisions of this court that a county. may levy a certain amount for general, incidental, miscellaneous or similar purposes, but that this amount must be small in comparison with the total levy and must be, in fact,