carefully, and are unable to say that the jury were not authorized to find the verdict they did. The only question regarded the identity of the prisoners, the plaintiffs in error. The prosecuting witness had known one of them personally for eight or ten years, and the other all of the preceding winter. He swears positively to them being the persons who robbed him, and is confirmed by other testimony in the case. Against this plaintiffs in error swear, on their own behalf, to their innocence, and offer evidence of their relatives and friends to prove an alibi. It was the peculiar province of the jury to weigh and consider the evidence, and judge, from the appearance of the witnesses on the stand, their apparent honesty, intelligence, and candor, or the want of it, what weight should be given to their testimony, and unless we can see that their finding is so contrary to the evidence as to impress the court with the belief that the verdict is the result of passion or prejudice, we ought not to disturb it. But even if the verdict was not supported by the evidence, we could not reverse the judgment, for that reason, because the bill of exceptions does not show that any motion was made in the court below for a new trial on that account. In fact, it does not show that any motion for a new trial was made at all. The transcript shows an entry made by the clerk, in his record, of a motion for a new trial by plaintiffs in error, and that it was overruled and an exception taken. But it does not show on what the motion was based, and if it did, it would not be sufficient, as we have repeatedly held that motions of this kind, and the rulings of the court thereon, and the exceptions, if any are taken, must be preserved by a bill of exceptions, and that a mere entry of the same by the clerk on the record will not answer the purpose. In Daniels v. Shields, 38 Ill. 197, the transcript showed, as a part of the entry of record in the court below, after the formal entry of the judgment, the following: "Thereupon, the said plaintiff, by Parks, his attorney, enters his motion for a new trial, which motion is overruled by the court, and to which ruling of the court in overruling his said motion for a new trial, and the judgment of the court aforesaid, the said plaintiff, by his said attorney, then and there excepted," etc. That entry is the same as in this case, and it was there held that it was insufficient because not embodied in a bill of exceptions. See, also, Gill v. People, 42 Ill. 321, and James v. Dexter, 113 Ill. The judgment of the court below must be affirmed. . (116 Ill. 130). OSBORN and others v. JEFFERSON Nat. Bank. Filed January 25, 1886. WILLS-AFTER-BORN CHILDREN - EXPRESSED INTENTION- - STATUTORY ABATE Section 10 of the descent act (1 Starr & C. St. c. 39, par. 10) provides for the abatement of a will in favor of after-born children for whom no provision is made, unless an intention to disinherit such children appears from the will. The mother's will in this case is held to provide for such children in case they survive their father; and such a provision is a sufficient provision to satisfy the statute. The will does not abate in such a case. In reaching this construction of the will, the expressed intention of the testator is to be gathered from the whole will. Appeal from Cook. *** Rosenthal & Pence, for appellants. Jewett, Norton & Jewett, for appellee. TUNNICLIFF, J. Prior to 1873, Margaret Andrews inherited from her father's estate the property in controversy, situated in the city of Chicago. In that year she intermarried with Francis S. Osborn, and soon after, being about to go abroad, made and published her last will and testament, the material parts of which, so far as the questions here are involved, read as follows: Item First. I give, devise, and bequeath unto my dear husband, Francis S. Osborn, and to his heirs and assigns, absolutely, all my estate, property, and effects, real and personal, in whatever it may consist, or wherever situated at the time of my decease, provided my said husband shall survive me. 76 Item Second. In case 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 equally, and to the heirs and assigns of such child or 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." She died in 1880, without having revoked or changed the will, leaving her husband and three children, the issue of the marriage, surviving her, viz., Ralph about eleven, Abner about six, and Eliphalet about five, years of age. She never had any other children. At the time of the execution of her will and of her death she was domiciled in the state of Ohio, where, afterwards and on the third of March, 1881, the will was admitted to probate. Subsequently thereto Francis S. Osborn gave mortgages upon the property, and it was also attached and sold by his creditors. A bill having been filed to foreclose one of these mortgages, to which the children were made parties, they answered by their guardian ad litem, and also filed a cross-bill, setting forth the facts herein stated, and claiming that under them, and by virtue of section 10 of the statutes of Illinois, entitled "Descent," they are the absolute owners in fee of the premises, and that their father, said Francis S. Osborn, had only a dower interest in said lands at the time of giving the mortgages and of the attachment and sale of the premises, and pray that the same may be set aside as a cloud upon their title. A demurrer was sustained to this cross-bill, and, the appellants abiding thereby, the cross-bill was dismissed. The only question for our consideration regards the construction of the section of the statute referred to, which 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 proportions, 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." It is very clear that if there is any "provision" made in this will for these children, the appellants, or if it appears by the will that it was the intention of the testatrix to disinherit them then, in either case, the will must stand, and the decree dismissing the cross-bill be affirmed. The contention of the appellants is that, to be a "provision" for them within the meaning of the statute, the devise or bequest in their favor must be certain and absolute, and dependent upon no condition or contingency whatever; and that, as the devise to them in this case is only on the event that testatrix's husband, Francis, should not survive her, there cannot be said to be any "provision" made for them by the will; and as to the intention to disinherit, it is insisted that this must not be found by the court from any resort to construction, implication, or inference to be drawn from the will by reason of anything therein contained, unless this intention is so stated in the will in express terms. In our opinion, neither of these constructions should be placed upon the statute. As to the provision for the after-born children, the statute is silent as to its extent, or whether it should be reasonable or not, as to when it shall commence or when terminate. By its plain, unambiguous meaning, it applies only to children for whom no provision is made by the will, and as to whom it does not appear by the will that they were intentionally disinherited. If any provision is made for them, then they do not come within the purview of the statute. The testator was to be the sole judge of what this provision should be; and that the same was not to be left for the determination of the courts is manifest by the second clause of the section, which authorizes the disinheritance of such child or children altogether if the testator shall simply indicate by his will that such was his intention. The greater includes the less, and so the testator may totally disinherit such after-born child or children. It would seem to follow that he may limit his bequests to them, if he makes any, to anything, no matter how insignificant it may be, and its enjoyment upon any contingeney, however remote. But, whether any provision is made for after-born children or not, the will, under this statute, must still remain as originally made, “if it shall appear by such will that it was the intention of the testator to disinherit such child" or children. Does such intention appear by this will? That it does, in case the husband of the testatrix survived her, is too plain to admit of argument. A mere reading of the instrument is all that is required to demonstrate that. But counsel urge that this intention must be stated in express terms in the will itself. This the legislature have not, by the statute, seen proper to require, and we have no right or power to add to it words which would entirely change its plain meaning, and thus virtually repeal the statute. It is elementary in the construction of wills that the intention of the testator must be given effect to, and to ascertain this the whole will should be looked to and taken into consideration. The testatrix in this case had the power to disinherit her after-born 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 this statute, is valid, and must be enforced as their mother made it and allowed it to remain unrevoked and unchanged till her death. The decree below is affirmed. (141 Mass. 257) SUPREME COURT OF MASSACHUSETTS. NATIONAL UNION BANK Of Boston v. COPELAND and others. (Suffolk, ss.) Filed February 26, 1886. ASSIGNMENT FOR BENEFIT OF CREDITORS-DISTRIBUTION OF ASSETS. The firms of C. & Co. and S. & Co., doing business on joint account, failed, and made an assignment for the benefit of creditors, by the terms of which it was provided that creditors might become parties thereto by executing the same within 60 days from its date, or within such further time, if any, as the trustees, parties thereto, should allow, in writing signed by them. At the expiration of the 60 days the trustees extended the time, and the time was extended on several times subsequent, all the creditors not having assented. Held, upon a bill in equity, brought by certain creditors who had signed the agreement, to compel the trustees to distribute the assets held by them for the benefit of creditors, that the petitioning creditors were entitled and were properly permitted to become parties to the trust, and are entitled to participate in the distribution of the trust fund.1 This was a bill in equity to determine what creditors are entitled to share in a fund, in the hands of certain trustees, appointed under an assignment for the benefit of the creditors of Charles W. Copeland & Co., and Stedman & Co., who failed in July, 1883, and to compel the distribution of the fund among those creditors who are entitled to participate in the same. The deed of trust referred to was executed by the debtors and the trustees on the twenty-seventh of August, 1883, and provided that creditors might become parties thereto by executing the same within 60 days from its date, or within such further time, if any, as the trustees should allow in writing. At the expiration of the 60 days, the trustees extended the time within which creditors might execute the same to January 24, 1884, and the time was further extended at several times to December 26, 1885. The main facts appear in the opinion. Myers & Warner, for plaintiff. Allen, Hemenway & Savage, Brooks & Nichols, and Geo. W. Morse, for defendants. DEVENS, J. The case presented involves the discussion of two questions: First. Whether the trustees, under the deed of assignment made to them for the benefit of the creditors of C. W. Copeland & Co., had power to allow further time for creditors to become parties thereto, by more than one writing indorsed on the deed. Second. If they had such power, was it well exercised, after the first extension had been made to January 24, 1884, by the further extension of time until August 25, 1884, indorsed in writing on the deed on May 5, 1884? Since this time, the subse 1 For general discussion of partnership assignments for benefit of creditors, see Ex parte Hopkins (Ind.) 2 N. E. Rep. 587, and note, 590-597. quent extensions have been made each before the expiration of the time previously limited, so that there can be no question as to their formal regularity if the second extension was proper. It is the contention of the creditors who executed the deed on or before January 24, 1884, and who have been allowed here to intervene, that the power of extension expired on that date, and that the attempted extensions subsequently made are invalid, both for want of authority to extend and by reason of non-compliance with the terms of the deed of assignment in the mode adopted. It cannot be controverted that, where the terms of an assignment of the nature of that here in question explicitly confined its operation to those creditors only who shall become parties thereto within a limited time, the disposition of the courts in this commonwealth has been more strict than that of the English courts in treating the time thus fixed as of the essence of the contract, and in refusing to creditors the privilege of acceding to or executing the deed after such time has elapsed. While this is conceded in First Nat. Bank v. Smith, 133 Mass. 26, which is the latest case in which the subject is adverted to, the decision of the case is, however, put wholly on the ground that it was then impossible for the creditor, who had filed his bill four years after the deed of trust was made, praying to become a party thereto, was entirely unable then to give the consideration which the deed called for. Phoenix Bank v. Sullivan, 9 Pick. 410; Battles v. Fobes, 21 Pick. 239; Dedham Bank v. Richards, 2 Metc. 105; Dunch v. Kent, 1 Vern. 260; Spottiswood v. Stockdale, Coop. 102; Collins v. Reece, 1 Coll. 675; Watson v. Knight, 19 Beav. 369; Raworth v. Parker, 2 Kay & J. 163; Whitmore v. Turquand, 1 Johns. & H. 444. In the United States, also, where there is more conflict of opinion, it would appear that the weight of authority is in accordance with the views expressed in the English cases. Bank v. Partee, 99 U. S. 325; De Caters v. De Chaumont, 2 Paige, 490; Owens v. Ramsdell, 33 Ohio St. 439; Pfeifer v. Dargan, 14 S. C. 44; Pearpoint v. Graham, 4 Wash. C. C. 232; Coe v. Hutton, 1 Serg. & R. 398. We have no occasion, in the case at bar, to review our cases on this subject, or compare them with those which have been elsewhere decided. The assignment in question contained a provision for an extension of time, the construction of which must control its operation. It is contended that the right to allow further time by a writing imports only a single act, and no more, and that the time having been extended to January 24, 1884, this right on the part of the trustees was entirely exhausted, and, further, that if even an extension by such single act might have been made of sufficient length to include the last extension as actually made, if such extension was reasonable, that it could not be done by a succession of acts. If such be the strict grammatical construction of the phrase "in writing," it might properly be said that such construction is not to be followed when it would lead to a result at variance with other and apparently controlling provisions or objects of the deed. But the particle "a" is not necessarily a singular term. It is often used in the sense of "any," and is then applied to more than one individual |