avoid injuring others,-then charged, in substance, that the transfer and railway companies did not regard their said duties, but so carelessly, unskillfully, and negligently conducted themselves that, by and through the negligence and default of their servants, and for want of due care and caution in the performance of their duties, the cab of the transfer company in which plaintiff was being conveyed, and while she was in the exercise of due care, etc., was, by reason of the negligence of said transfer and railway companies, run into with great force and violence by a car of said railway company which was then and there running at a great rate of speed, to wit, a speed of 15 miles an hour, "by means whereof" the plaintiff was violently thrown against the side of the cab, and was severely cut and bruised, and her spinal cord and nervous system were injured, and that she suffered permanent injuries, etc. The transfer company has filed no briefs in this court, but, in elaborate briefs and argument, the railway company insists that as against it the judgment is erroneous, and that the injury was caused solely by the negligence of the driver of the cab, who was the servant of the transfer company, and that there was no evidence tending to prove negligence on its part. No contention is made that appellee was guilty of any contributory negligence in the matter. The railway company contends that the only charge of negligence in the declaration against it is that it was at the time running its car at a great rate of speed, to wit, 15 miles an hour, and that the trial court erred in not instructing the jury to that effect, and that the plaintiff could not recover against it for any other act of negligence. The allegation of negligence in the declaration was not as specific and clear as it should have been, but no demurrer was interposed, and it was sufficient to form an issue upon and to support a verdict.

The allegation in the count cannot, by any reasonable construction, be confined to a charge of negligence in running the car at an unusual or a dangerous rate of speed. It is much more general. The speed of the car is stated as merely descriptive of one of the conditions existing at the time which contributed to the injury. As the charge of negligence was general, and there was evidence tending to prove that the motorman could, by proper care and caution, have stopped the car on the crossing before striking the cab, after he saw that it was approaching the crossing, and that the driver did not appear to notice the car, it is clear the court decided correctly in not instructing the jury on this point as requested by the railway company.

The point is also made that the court erred in not instructing the jury to find the railway company not guilty. The ruling of the court was correct. There was sufficient evidence to go to the jury on the question whether the motorman used due care to bring the car under control and to stop it after he saw

the approaching cab, and thus to prevent the collision, as well as upon the question of undue speed.

It

The objection is also made that the court, in instructions given at the instance of the plaintiff, referred to the negligence necessary to be proved as "negligence as charged in the declaration," without telling them what negligence was charged, or what negligence the evidence had any tendency to prove. is a sufficient answer to say that, if this was error, it was participated in by the defend. ants as fully as by the plaintiff. Many of the instructions asked and given on behalf of the railway company contained the same al leged defect now complained of.

The railway company asked the following instruction: "(11) The court instructs the ju ry that the plaintiff has filed her declaration, containing one count, which states her cause of action; that in and by said declaration she charges both the defendants with negligence causing said injury; that the jury may find one or both of the defendants guilty or not guilty, as the jury may determine from all the evidence in the case; that, before the jury can find the defendant the Springfield Consolidated Railway Company guilty, they must believe from a preponderance of the evidence that the said Springfield Consolidated Railway Company is guilty of the negligence charged against it in said declaration; that the injury, if any, sustained by the plaintiff, was a natural consequence of the negligence charged against the said Consolidated Railway Company, flowing directly and immediately, in unbroken sequence, from said alleged negligence, without any possible intervening and probable efficient cause to which such injury might have been due, in whole or in part." But the court modified it by striking out the words, "without any possible intervening and probable efficient cause to which such injury might have been due, in whole or in part," and then gave it, as modified, to the jury. The modification complained of was not only proper, but necessary. The evidence tended to prove that the injury was caused by the combined negligence of both defendants, and each endeavored, on the trial, to exculpate itself by inculpating the other. As asked, the instruction would have led the jury to conclude that, even if the railway company was guilty of the negligence charged, still, if the driving across the track in front of the approaching car by the driver of the cab was a "possible intervening and probable efficient cause to which such injury might have been due, in whole or in part," then it would not be liable. If such a rule were established, no action could be maintained for injuries caused by the combined negligence of different tort feasors acting independently. The plaintiff herself being rightfully on the track, the railway company could not relieve itself from the effect of its own negligence in running the car against her by proving that the transfer company negligently placed

her there. We are unable to see that the question of proximate and remote cause has any relevancy to this case under the evidence. What has been said disposes, also, of the alleged error of the court in refusing to submit certain interrogatories to the jury bearing upon the same question.

In view of the large verdict, and of the fact that the plaintiff could recover compensatory damages only, the most serious question, perhaps, in the case, arises on the first instruction given on behalf of the plaintiff. This instruction, after stating the rule as to liability for negligence, proceeded as follows: "You may, in such case, find both of the defendants guilty, and assess such damages as, in your judgment, under all the evidence, and the facts and circumstances in evidence, plaintiff' is entitled to." This instruction stated no rule to guide the jury in assessing damages, but, standing alone, authorized them to allow her whatever sum they thought she was entitled to. But plaintiff's fifth instruction given was as follows: "If you find for the plaintiff in this case, then, in determining the amount of damages the plaintiff is entitled to recover, if any, you should take into consideration all the facts and circumstances in evidence before you, the nature and extent of the plaintiff's injuries, if any, her pain and suffering resulting from such injuries, if any, and also such future or prospective pain and suffering and loss of health and strength as you may believe, from the evidence, if any, which she has sustained or will in the future sustain by reason of such injuries, and also such sum or sums as plaintiff has become liable for, if any, for nursing and medical service because of said injury, and give her such sum as, in your judgment, under all the evidence, will compensate her." This instruction explains the first by referring to the amount of damages the plaintiff would be "entitled to recover," and then states the rule with substantial accuracy, and confines such damages to such sum as would compensate her. Reading the two instructions together, as they should be read, we are of the opinion that no harmful error was committed.

Two exceptions to the ruling of the court in refusing to admit testimony remain to be considered. After the motorman, as a witness for the railway company, had given his version of the accident, and had stated what he did to avoid it, counsel for said company asked him, "Do you know of anything you could have done, that you did not do, to avoid that collision there?" The court sustained plaintiff's objection, and counsel excepted. It is apparent that whether the witness could have done more than he did to avoid the accident was a question for the jury, and not for the witness, to decide. In other words, it was not proper for the witness to state that he omitted no act of care or caution to avoid the injury. True, the form of the question

was somewhat less objectionable on this ground, inasmuch as it was whether he knew of anything he could have done, and not whether he could have done anything he did not do. But its purpose was the same, and it would have merely elicited the opinion that the witness, acting for the company, did all that he could have done to prevent the collision. He had already testified: "I was sixty or sixtyfive feet back of the city hall when I first saw the bus. It was on Seventh street, forty-five feet south of the track I was on. The horse was being driven at about a dog trot. After crossing the switch, I rang the gong from the time I saw the cab until I ran into it. The driver of the bus did not do anything. At that time he was looking ahead. There was no obstruction between him and my car. The cab came in sight. I was ringing the bell at the time. Of course, I kept on going, not knowing whether he would turn his horse, or what he was going to do. When I saw he was not attempting to stop his horse, I turned on the brake and reversed the car." The jury may well have believed from his own testimony that although the witness saw the cab approaching the track on the crossing, and saw that the driver was looking ahead and paying no attention to the car, he (the witness), not knowing whether the driver would turn out or not, kept on without checking the speed of the car until it was too late to avert the accident. It was not the province of the witness to deduce inferences from or to express opinions upon facts which he had testified to. We find nothing in Rack v. Railway Co., 173 Ill. 289, 50 N. E. 668, 44 L. R. A. 127, cited by counsel, contrary to this view. It is also claimed that the court erred in not allowing Louis Dellert, a witness called by the railway company, to testify to a conversation he had with the driver of the cab just after the accident, in which it is claimed the driver said it was all his fault. The event had fully transpired, and what was said was purely narrative of a past transaction, fully ended, and did not characterize or in any way relate to a transaction then taking place. While the statements of the driver of the cab sought to be proved were claimed to have been made almost immediately after the accident, it did not appear but that they were made under circumstances that would deprive them of their spontaneous character as utterances called forth by the transaction itself. We are of the opinion that it was not made to appear that the statements called for were a part of the res gestæ, and the court did not err in excluding them. See Monroe v. Snow, 131 Ill. 126, 23 N. E. 401; 21 Am. & Eng. Enc. Law, 99, 102. The question raised as to excessive damages was finally disposed of in the appellate court. As we have seen, no errors of law intervened to affect that question.

The judgment must be affirmed. Judgment affirmed.

(199 III. 464)

TURNER et al. v. HAUSE et al.* (Supreme Court of Illinois. Oct. 25, 1902.) WILLS-CONSTRUCTION -ESTATES CREATEDLIFE ESTATES CONVEYANCES - RIGHTS OF REVERSIONERS AND REMAINDERMEN - ACCRUAL-LIMITATIONS.

1. By the fifth clause of a will testator devised land to his son G. and to his heirs, providing that the tracts described should not be subject to sale or liable to the son's debts, but should descend to his bodily heirs at his death, and, in case of no heirs, to his brother and sisters. By the next clause of the will he devised land in controversy to his son H. "on the same principles as that of his brother G., not being subject to sale, transfer, or liability for debts, but to descend to his bodily heirs, and, in case of none, to his brother and sisters." Held, that the words "on the same principles as that of his brother G.," in the subsequent section, did not refer to the words "and to his heirs" in the previous section, but rather to the words prohibiting the sale of the land and providing for their descent.

2. Where testator devised land to his son, providing that it should not be subject to sale, transfer, or liability for debts, but should descend to his bodily heirs, and, in case of none, to his brother and sisters, the son took a life estate only, with remainder to his heirs.

3. 2 Starr & C. Ann. St. (2d Ed.) p. 2603, § 3, provides that the right to make an entry or bring an action to recover land shall be deemed to have first accrued, when there is an intermediate estate, when such intermediate or precedent estate would have expired by its own limitations; and section 6 limits actions to recover land in possession of another under claim or color of title, who has paid the taxes thereon, to seven years. Held that, where a devisee of land acquired only a life estate therein under the will and conveyed the land during his life, the right of the reversioners and remaindermen to sue to recover the land did not accrue. and limitations did not begin to run until the life tenant's death.

4. An order admitting a will to probate, reciting that it was admitted "at a court of probate for said county, held at the courthouse on" a certain day, and on that day "personally appeared before Hon. Samuel Elder, county judge of said county, sitting as a court of probate in and for said county," etc., was sufficient to show a duly constituted court in existence, authorized to admit the will to probate, to authorize the admission of the will in evidence in a subsequent collateral proceeding, without a complete transcript of the record or placita.

Appeal from circuit court, Williamson county; A. K. Vickers, Judge.

Action by Elijah Turner and others against William B. Hause and others for partition. From a judgment in favor of plaintiffs, certain defendants appeal. Affirmed.

This is a bill for partition of 160 acres of land in Williamson county, Ill., described as the N. E. 4 of section 3, township 9 S., range 4 E., of the 3d principal meridian, brought by appellees against appellants. Appellants filed a joint and several answer, to which replication was filed. Upon the hearing of the cause the court below rendered a decree for partition in accordance with the prayer of the bill, finding appellees to be the owners of the property in the proportions therein claimed, and also finding that appel

Rehearing denied December 11, 1902.

lants have no interest in the premises in question. The present appeal is prosecuted from the decree so rendered. The material facts are substantially as follows:

One Peter Hause, who is shown to have been a resident of Saline county in his lifetime, was the original patentee of the quarter section from the government of the United States; the patent having been issued on March 1, 1851, and the entry of the land having been made on August 20, 1849. A tract book was introduced in evidence by the appellees upon the hearing below, being a record of the recorder's office of Williamson county, entitled "Tract Book Original Entries," which shows the date of the entry of the land as having been on August 20, 1849, and Peter Hause as being the person by whom it was entered, and also showing the description of the premises and the number of acres therein contained. Peter Hause made a will dated September 27, 1850. He died in January, 1851, and his will was admitted to probate in the county court of Saline county on February 3, 1851. When Peter Hause died, he left a widow and four children, two sons, George Willis Hause and Horace Stone Hause, and two daughters. The fifth and sixth paragraphs of his will are as follows, to wit:

"Fifth. As to the following named real estate which I am possessed of, lying in township 8 S., R. 6 E., I ordain as follows, viz., to George Willis, my son, and to his heirs, I give the west half of the northwest quarter and the northeast quarter of northwest quarter of section 3, and the east half of the northeast quarter of section 4, all in T. 8 S., R. 6 E.; the above tracts not subject to sale and (or) in any wise liable to the debts of said George Willis, but to descend to his hodily heirs at his death, and, in case of no heirs, to his brother and sisters.

"Sixth. My son, Horace Stone Hause, to have the following tract of land, viz., the northeast quarter of section 3, in township 9 south, range 4 east, containing 166.69 acres, more or less, on the same principles as that of his brother, George Willis Hause, not be ing subject to sale, transfer, or liability for debts, but to descend to his bodily heirs, and, in case of none, to his brother and sisters."

Horace S. Hause died intestate on January 29, 1899, in Saline county, of which he was a resident in his lifetime. He left six children, being the appellees herein, whose names and the dates of whose births are as follows: Sarah Jane Shaw, formerly Sarah Jane Hause, born March 2, 1859; William Burkett Hause, born April 27, 1863; Charles Valentine Hause, born February 14, 1867; George Willis Hause, born April 29, 1872; Hiram Bradford Hause, born December 24, 1877; Loren Kent Hause, born August 19, 1881,-all of whom were living when the bill in this case was filed, and are the only heirs at law of Horace Stone Hause; Loren Kent Hause being a minor when the bill herein

was filed. By warranty deed dated July 18, 1860, Horace S. Hause and his wife, of Saline county. Ill., conveyed to William L. Stilley, of Williamson county, Ill., for an expressed consideration of $600, the quarter section here in controversy, described therein as containing 160 acres, which said deed was recorded in the recorder's office of Williamson county on December 24, 1860. On October 24, 1864, William L. Stilley and his wife, of Williamson county, Ill., by warranty deed of that date, conveyed to Elijah Turner, of Saline county, Ill., for an expressed consideration of $2,700, the quarter section of land here in controversy, and other lands, which Isaid deed was recorded in said recorder's office on December 28, 1865. Elijah Turner, being one of the appellants herein, claims to be still the owner of between 38 and 39 acres of the tract in question. He conveyed the rest of the tract to other parties, under whom, by virtue of various conveyances and by inheritance from deceased persons, the other appellants herein, to wit, Hiram P. Duty, Joseph Hill, Samuel Hill, and Emaline Hill, claim to own the balance of the 160acre tract not claimed by Elijah Turner. The appellants claim title under the limitation laws. Their contention is that the appellant Elijah Turner and those holding under him have been in possession of the premises under claim and color of title made in good faith, and paid all the taxes thereon, for a period of 35 years or more. In their answer the appellants deny that they ever had any notice of any opposing claim of appellees, or any one else, until the commencement of this suit, and they set up and rely upon sections 1 and 6 of chapter 83 of the Revised Statutes, being the act in regard to limitations.

W. W. Clemens and W. H. Warder, for appellants. Choisser, Whitley & Choisser and Duncan & Denison, for appellees.

MAGRUDER, C. J. (after stating the facts). 1. The first question presented by the record is: What interest did Horace S. Hause, the father of the appellees, take in the land in question under the will of his father, Peter Hause? The sixth section of the will is in the following words: "My son, Horace Stone Hause, to have the following tract of land, * on the same principles as that of his brother, George Willis Hause, not being subject to sale, transfer, or liability for debts, but to descend to his bodily heirs, and, in case of none, to his brother and sisters." As to the tract of land here in controversy, given to Horace Stone Hause, he alone is to have it, without any statement that he and his heirs are to have it. No words of inheritance are used in connection with the devise to Horace Stone Hause. Section 13 of the Illinois act in regard to conveyances provides 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 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." 1 Starr & C. Ann. St. (2d Ed.) p. 925. The court can only inquire whether an estate less than a fee is limited by express words, or granted, conveyed, or devised by construction or operation of law, where words theretofore necessary to transfer an estate of inheritance are not used. 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. Wolfer v. Hemmer, 144 Ill. 554, 33 N. E. 751; Saeger v. Bode, 181 Ill. 514, 55 N. E. 129; Smith v. Kimbell, 153 Ill. 368, 38 N. E. 1029. The fee devised to Horace S. Hause may be limited by construction, or by express words in a subsequent part of the will, because words necessary to transfer an estate of inheritance are not used in the devise of such fee. Hence the fee devised to Horace S. Hause may be reduced to a less estate by the words used subsequently in the sixth clause, to wit, "but to descend to his bodily heirs, and, in case of none, to his brother and sisters." The words, "on the same principles as that of his brother, George Willis Hause," as used in section 6, do not refer to the words, "and to his heirs," as used in section 5; but they refer to the following words in section 5: "The above tracts not subject to sale or in any wise liable to the debts of said George Willis, but to descend to his bodily heirs at his death. and, in case of no heirs, to his brother and sisters."

It being settled, then, that there is nothing in the character of the devise of the fee to Horace S. Hause which prevents a limitation of that fee by subsequent words used in the sixth clause, the question arises: What estate less than a fee was devised to Horace S. Hause by the sixth clause? There can be no other answer to this question, under the decisions of this court, than that Horace S. Hause took a life estate only, with remainder in fee to the heirs of his body. In Blair v. Vanblarcum, 71 Ill. 290, where a testator gave, bequeathed, and devised unto his only daughter, "and to the heirs of her body, and to their heirs and assigns," all of his real estate, it was held that she took under such devise a simple life estate, with remainder over to the heirs of her body in fee simple absolute, and that the limitation to her heirs was valid and binding. At common law a devise to a devisee and the heirs of his body created an estate tail general, leaving in the heirs at law of the devisor the reversion in case of an entire failure of issue; but, under

the provisions of the sixth section of our statute in relation to conveyances, such devise would vest in the devisee only a life estate, with remainder in fee to the heirs of his body, and leaving the reversion, in case of an entire failure of issue, in the heirs at law of the devisor. Lewis v. Pleasants, 143 Ill. 271, 30 N. E. 323, 32 N. E. 384; Frazer v. Supervisors, 74 Ill. 282; Cooper v. Cooper, 76 Ill. 57; Lehndorf v. Cope, 122 Ill. 317, 13 N. E. 505. In construing provisions of this kind, the words "his bodily heirs" have no other or different meaning than the words "heirs of his body." In Dinwiddie v. Self, 145 III. 290, 33 N. E. 892, it was held that a conveyance of land to a woman "and her bodily heirs," under section 6 of the couveyance act (1 Starr & C. Ann. St. [2d Ed.] p. 917), would convey to her only a life estate, with a contingent remainder in fee to her children, if any such should be born, and, in default of heirs of her body, the estate in remainder would lapse, and on her death the land would revert to her grantor. In Kyner v. Boll, 182 Ill. 171, 54 N. E. 925, it was held that a conveyance to a grantee and her "bodily heirs" and assigns creates an estate in fee tail general at common law, but, since the abolition of estates tail, passes, under section 6 of the conveyance act, an estate for the grantee's natural life only, with the remainder in fee simple absolute to the persons to whom the estate tail would, on the death of the grantee, first pass at common law. So, in the case at bar, the devise being to Horace Stone Hause, "not being subject to sale, transfer, or liability for debts, but to descend to his bodily heirs, and, in case of none, to his brother and sisters," he took an estate for his natural life only, with the remainder in fee simple absolute to his children, the appellees herein. When the first child, appellee Sarah Jane Shaw (then Sarah Jane Hause), was born, she took an estate in fee simple, subject to the life estate of her father, Horace S. Hause, and subject, also, to be opened to let in after-born children of her father, who would become tenants in common of the fee with her. Kyner v. Boll, supra. Her five brothers, who were born after she was born, took each a fee simple title to an undivided portion of the premises in question, subject to the life estate of their father. It follows that the appellees here, as they respectively came into being, were remaindermen or reversioners, holding the fee subject to the life estate of their father, and the only interest of Horace S. Hause in the premises was that of a life tenant.

2. When, therefore, Horace S. Hause executed a deed in 1860 to William L. Stilley, Stilley took no greater estate than that of Horace S. Hause, to wit, an estate for the life of Horace S. Hause. So, also, in October, 1864, when Stilley executed a deed of the premises to the appellant Elijah Turner, Turner took only an estate in the premises for the life

of Horace S. Hause. In Mettler v. Miller, 129 Ill. 630, 22 N. E. 529, we said (page 642, 129 Ill., and page 532, 22 N. E.): "The settled doctrine, both upon authority and upon principle, is that the possession of land by a tenant for life cannot be adverse to the remainderman or reversioner; and, if he conveys to a third person by words purporting to pass the absolute property, the possession of the purchaser is not, and cannot be, during the continuance of the life estate, adverse to the remainderman or reversioner, so as to set the statute of limitations running against such remainderman or reversioner, but, after a life estate falls in, the possession will be adverse as to a remainderman or reversioner. The reason of the rule first stated is that the possession of the tenant for life, or his vendee, during the continuance of the life tenancy, is in contemplation of law the possession of the remainderman or reversioner, and the latter cannot, during the life of the person for whose life the life estate is, bring an action against the person in possession under such life tenant to recover possession of the premises. All statutes of limitation are based on the theory of laches, and no laches can be imputed to one who has no remedy or right of action, and to hold the bar of the statute could run against the title of a person so circumstanced would be subversive of justice, and would be to deprive such person of his estate without his day in court." See, also, Orthwein v. Thomas, 127 Ill. 554, 21 N. E. 430, 4 L. R. A. 434, 11 Am. St. Rep. 159; Rohn v. Harris, 130 Ill. 525, 22 N. E. 587; Frazer v. Supervisors, 74 Ill. 282; Meacham v. Bunting, 156 Ill. 586, 41 N. E. 175, 28 L. R. A. 618, 47 Am. St. Rep. 239; Beattie v. Whipple, 154 Ill. 273, 40 N. E. 340; Borders v. Hodges, 154 Ill. 498, 39 N. E. 597; Barrett v. Stradl, 73 Wis. 385, 41 N. W. 439, 9 Am. St. Rep. 795; Safford v. Stubbs, 117 Ill. 389, 7 N. E. 653; Enos v. Buckley, 94 Ill. 458; 1 Am. & Eng. Enc. Law (2d Ed.) pp. 807-809.

Section 3 of the limitation law of this state provides that "the right to make an entry or bring an action to recover land shall be deemed to have first accrued at the times respectively hereinafter mentioned, that is to say:

* Third, when there is such an intermediate estate, and in all other cases when the party claims by force of any remainder or reversion, his right, so far as it is affected by the limitation herein prescribed, shall be deemed to accrue when the intermediate or precedent estate would have expired by its own limitation," etc. 2 Starr & C. Ann. St. (2d Ed.) p. 2603. Section 6 of the limitation act (2 Starr & C. Ann. St. [2d Ed.] p. 2605), in relation to possession and payment of taxes for seven years under claim and color of title made in good faith, which is relied upon by the appellants in this case, is a part of the same act which contains section 3 as above quoted, and must be construed in connection with section 3. Appellees were remaindermen or reversioners, holding the fee simple