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er. Shelton was also present. Ed Wise, the THE LAST WILL AND TESTAMENT OF A. Kelly other witness, testified that the paper was


McLean AND STATE OF Illinois MADE AND PUBsigned in May or June, 1914, in the back room

LISIIED TIIE 2nd DAY OF Jany IN TIIE YEAR OF of the bank; that he and Ryburn were stand

OUR LORD, ONE THOUSAND NINE HUNDRED thiring in front of the bank, in their shirt teen. sleeves, when Shelton asked them to sign


THE city Of Bloomington IN THE COUNTY OF Kelly's will; that they went in and Shelton McLean AND STATE OF Illinois OF THE AGE OF said, “This is Mr. Kelly's will," and they 82 YEARS AND BEING OF SOUND MIND AND signed it in his presence and in the presence MEMORY, DO HEREBY MAKE, PUBLISH AND DEof each other, but that Kelly was not present. IN MANNER FOLLOWING, THAT IS TO SAY:

CLARE THIS, MY LAST WILL AND TESTAMENT, Wise testified that he had seen Kelly about FIRST-IT IS MY WILL THAT MY FUNERAL EX20 minutes before, going west across the PENSES AND ALL MY JUST DEBTS BE FULLY

PAID railroad track, and that the will was wit

SECOND-I GIVE AND bequeath to Lucy Kelly, nessed after Kelly moved back to Heyworth my wife, all of my estate, both real and perfrom Bloomington. The back room of the sonal for her use and support during the term bank was separated from the front room by of her life and while she remains my widow. a vault which came to within about 4 feet of after the death of my wife, Annie Van Horn and

Third-I give and bequeath to my daughters, the ceiling, and a door which was not so high Lulu Rehker, the east half of the southwest as the vault. Lyman P. Rutledge, assistant quarter of section thirty two, town twenty two, cashier, testified that Kelly came to the bank north of range two east of the third principal

meridian, but before coming into possession of on January 2, 1913, and talked with Shelton this property they shall pay to my grandchilin the back room; that then Shelton came dren the following sums. out, asked Ryburn if he would sign a paper

To Clinton Kelly-one thousand dollars,

Edna Kelly-Two hundred fifty dollars in the back room, and took him and Wise

" Mabel Kelly-Two hundred fifty dollars, into the back room; that witness was from “ Bernad Kelly-Two hundred fifty dollars 12 to 15 feet from where they were and

Lucy Kelly-Two hundred fifty dollars heard Shelton say, “This is Mr. Kelly's last Fourth-To my daughter Lizzie Kelly I be

Pauline Kelly-Two hundred fifty dollars will, and he would like to have you gentlemen queath all of my household goods and property sign as witnesses," and, “Mr. Kelly, sign in previously conveyed by deed. the presence of the witnesses, and the wit received all that might be due him from my

Fifth-My son Frank Kelly, having already nesses sign in the presence of one another;" estate is not to receive any part in this distributhat this occurred while Kelly was living in tion. Bloomington. Shelton was offered by the Sixth-The rest and residue of my property I

give and bequeath to Annie Van Horn and Lulu proponents as a witness, but on objection was Rehker, share and share alike. held incompetent because of his interest as Sixth-The deed, executed to Lulu Rehker executor named in the will.

shall be delivered to her by my executor, and

shall become her property. In opposition to the probate, testimony was

LASTLY-I HEREBY NOMINATE AND APPOINT introduced which tended very strongly to Joseph P. Shelton TO BE THE EXECUTOR OF show that on January 1 and 2, 1913, Kelly THIS, MY LAST WILL AND TESTAMENT, WITHOUT

BOND, HEREBY REVOKING ALL FORMER WILLS was sick, suffering from double hernia and a severe cough; that his hernia had been

IN WITNESS WHEREOF, I HAVE HEREUNTO SET inflamed and rendered painful by the cough, MY HAND AND SEAL, the 2nd DAY OF Jany. IN and that he was in his home in Bloomington, THE YEAR OF OUR LORD, ONE THOUSAND NINE

HUNDRED thirteen. unable to walk about without assistance, and

A. Kelly. that therefore he could not have been in Hey THE ABOVE INSTRUMENT, worth on January 2d. There was also evi- TWO SHEETS WAS NOW HERE SUBSCRIBED BY A. dence tending to prove that both in the latter OF US. AND WAS AT THE SAME TIME DECLARED

Kelly, THE TESTATOR, IN PRESENCE OF EACH part of December, 1912, and the early part of BY him to BE his LAST WILL AND TESTAMENT, January, 1913, Kelly was suffering with a se AND WE, AT his REQUEST, SIGN OUR NAMES vere cough, which weakened him, and an in


Ed Wise Of Heyworth. flamed side, and that he could not cross the

Edward Ryburn or Heyworth. room or get out of bed. There was also evi

The form was printed - upon a sheet of dence that Ryburn had said that he had for- paper folded at the top, and the first six clausgotten that he had signed the will until he es of the will ended near the top of the second talked the matter over with Shelton, but


The clause in black ink followed, occuthat Shelton called circumstances to his pying a little more than three lines, and the mind, and then he remembered it.

rest of that page and more than half the The original will has been certified to this third page were blank. The deed referred court. It was written upon a printed form. to in the clause of the will written in black The written part is in blue ink, except the ink was a warranty deed dated November date (which appears both in the caption and 23, 1903, executed by Kelly and his wife, at the end of the will) and one clause, which conveying a lot in Bloomington to Lulu Rehare written in black ink. The following is a ker for life and to such of her children as copy of the will, the printed part in small might be living at her death. The deed was capitals, the part written in blue ink in ordi- acknowledged on the day of its date, and renary type and the part written in black ink corded July 19, 1916. All the written part in italics :

of the will except the signatures is in Shel





ton's handwriting. The evidence shows that will may have been prepared in the front both blue ink and black ink were used in the room at a desk where blue ink was used, car. bank at the time, as well as steel pens, gold ried into the back room, the clause in quespens, and fountain pens.

tion added, and the will executed at a desk [1-4] The court admitted the attestation or table where the ink was black. There is clause in evidence, but sustained an objec- evidence that Kelly came into the front room ition to the admission of the will for the of the bank and talked with Shelton, that reason that its appearance showed an altera- they then went into the back room, and tion, and that it was incumbent on the pro- afterward Shelton came out, got the witnessponents to explain that alteration. The fact es, and took them into the back room, where that one clause of the will was written in ink the will was executed. If the date, only, of a different color from the rest of the will had been inserted in black ink, it could not did not, of itself, constitute an alteration, well be claimed that it was a suspicious cirand was not evidence of an alteration requir- cumstance. If half the will had been written ing explanation by extrinsic evidence. There in ink of one color and half in ink of another was no evidence of an alteration of the in- color, it could not have caused suspicion that strument, either on its face or otherwise, but either half was improperly inserted. How, if there were, the mere fact of an alteration then, can the fact that the writer of the will in a written instrument raises no presumption used ink of a different color from that used of law as to when it was made or against in the rest of the will for writing one clause the validity of the instrument. The question and inserting the date in the proper place in as to when, by whom and with what intent the printed form cause a suspicion that he did the change was made is one of fact to be it after the will was executed, particularly submitted to the jury. The party claiming when the signatures of the testator and the the benefit of the instrument must explain witnesses are in the same ink? The fact that the alteration, and, if it is suspicious in ap- this clause is numbered “Sixth” when the pearance and not satisfactorily. explained, immediately preceding clause is numbered the conclusion of fact follows against the "Sixth” is a mistake which might readily instrument. The appearance of the instru- arise in writing the instrument from the ment, alone, may furnish a satisfactory ex- | fact apparent on its face that the fifth and planation without extrinsic evidence. Cat-, sixth clauses form a continuous paragraph, lin Coal Co. v. Lloyd, 180 Ill. 398, 54 N. E. the sixth following the fifth with no apparent 214, 72 Am. St. Rep. 216; Gage v. City of break, and the eye of the writer, in looking Chicago, 225 Ill. 218, 80 N. E. 127. The ob- for the number of the paragraph, might readjection to the admission of the will in evi. ily overlook the word “Sixth.” dence should therefore have been overruled. Counsel for the appellees regard it as a

[5] Even if different parts of the will were suspicious circumstance that the will recites written at different times, this would consti- the age of the testator as 82 years when the tute no evidence of an alteration. It might testator was born in 1829. It appears from be said that each successive clause was an the testimony of his daughter that the Mcalteration, but until all were written the Lean county records show that her father instrument was not complete, and there can was born in 1830, so that on January 2, 1913, be no evidence of alteration requiring ex. he would be 82 past, but she says they found planation unless there is some circumstance it was a mistake, and he was born in 1829. which might create a suspicion that the al (6-8] This instrument was signed by Abteration might have been made after execu ram Kelly. It was attested by two credible tion. Here the circumstances all point to witnesses, who certified that he signed and the opposite conclusion. The will was all acknowledged it in the manner required by written by the same hand, and bears on its law. One of the witnesses made the declaraface no indication that it was not all written tion, under oath, to all the circumstances at the same time. The date of the will is required for the admission of the will to inserted in the same ink as the clause which probate. The other repudiated the statement is the basis of the objection, and the signa- signed by him, saying that he had not read tures of the testator and the witnesses are in it, and denied that the testator acknowledged the same ink. So far as the face of the in the will or was present when the witnesses strument is concerned, it would appear that signed as attesting witnesses. The attestathis clause, together with the date of execu- tion clause was prima facie evidence of the tion, was inserted by the same hand, in the due execution of the will. Thompson v. same ink, at the same time, and before execu. Owen, 174 Ill. 229, 51 N. E. 1046, 45 L. R. A. tion. If speculation were to be indulged, 682. The probate of wills does not depend an inference might fairly be drawn that the upon the recollection or even the veracity instrument having been prepared in part, the of subscribing witnesses. While the propo testator, before execution, caused the clause nents are confined in the county court to the to be added for the purpose of assuring the subscribing witnesses, in the circuit court, title to the grantee in the deed which he had on appeal, they may prove the execution of previously executed, the date was then in the will by any evidence competent in chanserted, and the will executed. So far as the cery for that purpose. In re Will of Simon,


Ryburn shows a full compliance with the state to pass, nor one for the immediate preserstatute. Though he stated after Kelly's vation of the public peace, health, or safety. death that he did not remember witnessing

[Ed. Note.-For other cases, see Municipal his will, it is certain that he did witness it, Corporations, Dec. Dig. 108.] and after he had talked with Shelton and ex


ORDINANCE. amined his deposit slip at the bank, his mem

Notwithstanding grant of power to license ory was refreshed as to the details. He is dramshops conferred upon councils by the Citcorroborated very fully by Rutledge, and ies and Villages Act, such power can be put into the direct evidence preponderates clearly in operation only by the passage of an appropriate

ordinance authorizing the issuing of licenses, favor of the legal execution of the will. The specifying who shall issue them, the length of evidence that Kelly was not in Heyworth at time they shall run, the amount to be paid by the time the will bears date does not tend to the applicant, and the time and manner of paycontradict the evidence that he executed

(Ed. Note.-For other cases, see Intoxicating the will at some time. The question is not Liquors, Cent. Dig. $ 48; Dec. Dig. 46.] whether Kelly executed the will on January 2, 1913, but is, did Kelly execute the

Appeal from Circuit Court, La Salle Counwill? The witnesses on one side or the other ty; Edgar Eldredge, Judge. are mistaken as to the date of the occurrenc

Information in the nature of quo warranto es to which they testify, but whichever may by the People, on the relation of W. H. Outbe right, the great preponderance of the evi- man and others, against Wedron J. Wanmer. dence shows that Kelly executed the will in From a judgment for defendant, relators apthe manner required by law, and it should peal. Reversed and remanded with direchave been admitted to probate.

tions. The judgment is reversed, and the cause is George S. Wiley, State's Atty., of Ottawa remanded to the circuit court, with directions (Stead, Woodward & Hibbs, of Ottawa, and to admit the will to probate.

Peter M. MacArthur, of Marseilles, of counReversed and remanded, with directions. sel), for appellants. E. C. Van Hoorebeke, of

Marseilles, and Browne & Wiley and James (276 Ill. 460)

J. Conway, all of Ottawa, for appellee.
PEOPLE ex rel. OUTMAN et al. v. WAN-
MER. (No. 11070.)

CARTWRIGHT, J. The state's attorney (Supreme Court of Illinois. Dec. 21, 1916. Re- of La Salle county, in the name and on be hearing Denied Feb. 9, 1917.)

half of the people of the state of Illinois, on

the relation of W. H. Outman and others, al1. Quo WARRANTO 43-LEAVE TO SUE. Where it is made

to appear to the court that leging themselves to be residents, citizens, the filing of an information in the nature of quo voters, and taxpayers of the city of Marwarranto has been inadvertently or improperly seilles, presented to the circuit court of La allowed under a misapprehension of the law or Salle county their verified petition for leave the facts, the court has power during the term to set aside the order granting leave to file the to file an information in the nature of quo information.

warranto against the appellee, Wedron J. (Ed. Note. For other cases, see Quo Warran-Wanmer, calling upon him to make answer to to, Cent. Dig. 88 35, 36; Dec. Dig. Om 43.) the people by what warrant he claimed to 2. Quo WARRANTO 43-LEAVE TO SUE. hold and execute the franchise, privilege,

In hearing and deciding a motion to set and liberty to keep a dramshop within the aside order granting leave to file information in limits of the city. Leave was given and the the nature of quo warranto, the court may exercise discretion; but the discretion is not a information filed. The defendant, being sum. personal, arbitrary one, but a sound judicial moned, appeared and moved the court to set discretion, resting upon well-established rules aside the order granting the leave to file the of law.

[Ed. Note:-For other cases, see Quo Warran-information. The motion was granted, the to, Cent. Dig. $$ 35, 36; Dec. Dig. Om43.) leave set aside, the information dismissed, 3. MUNICIPAL CORPORATIONS Om 108-DRAM

and judgment entered in favor of the defend. SHOP ORDINANCE COMMISSION GOVERN- ant against the relators for the costs. From MENT LAW.

the judgment this appeal was prosecuted. A dramshop licensing ordinance, not stating

The city of Marseilles is organized under any urgency for its passage, is not excepted from the requirements of the commission form the general act for the incorporation of cities of government law (Laws 1910, p. 12, 8 48), and villages and the act providing for the providing that no ordinance passed by the coun- commission form of government. Laws 1910, cil, except when otherwise required by the laws of the state or by the provisions of the act, ex. p. 12. The following facts were alleged in cept an ordinance for the immediate preserva- the petition: tion of the public peace, health, and safety, con A large portion of the city of Marseilles, taining a statement of its urgency and passed including the business district, is within the by a two-thirds vote of the council, shall go into effect within 30 days of its final passage, and town of Rutland, in La Salle county. At the that during such 30 days its operation may be town election held on April 7, 1914, the town suspended by referendum petition until it is was made anti-saloon territory by a vote of approved by a majority vote of the electors, since şuch an ordinance is not one which the the electors, which became effective 30 days council is required by the general laws of the thereafter. On May 8, 1914, an ordinance of

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Pomoy For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the city was passed prohibiting the sale of in, act, except an ordinance for the immediate toxicating liquors. At the town election on preservation of the public peace, health, and April 4, 1916, there was a vote on the proposi- safety, which contains a statement of its urtion whether the town should continue to be gency and is passed by a two-thirds vote of anti-saloon territory, and it was decided in the council, shall go into effect within 30 the negative, and the vote became effective days of its final passage, and if during the on May 4, 1916. On April 17, 1916, before the 30 days a petition signed by the electors of vote had taken effect, the council passed an the city equal in number to at least 10 per ordinance authorizing the issuing of licenses centum of the entire vote cast for all candito keep dramshops within the city, fixing the dates for mayor at the last preceding generamount of the license fee, bond, and other al municipal election at which a mayor was conditions. On May 1, 1916, the council pass-elected, protesting against the passage of ed another ordinance repealing the prohibi. such ordinance, be presented to the council, tory ordinance of May 8, 1914. A petition the same shall thereupon be suspended from protesting against the passage of the ordi- going into effect, and it shall be the duty nance of April 17, 1916, providing for the is- of the council to reconsider the ordinance, suing of licenses to keep dramshops, signed and if the same is not entirely repealed the by more than 10 per cent. of the electors of council shall submit the ordinance to a vote the city, was filed in the office of the city of the qualified electors of the city or village, 'clerk on May 5, 1916, and was presented by and unless a majority of the electors voting the clerk to the council the same day. The on the same shall vote in favor thereof the petition was referred to the city attorney, ordinance shall not go into effect. Such a and the application of the appellee, Wedron petition was presented in this case, and the J. Wanmer, to keep a dramshop was granted, council refused either to reconsider the ordiand a license to keep the same from that nance or to submit the same to a vote of the day until the first Monday of May, 1917, was electors, but granted a license to the appellee ordered. The next day the city clerk issued before the ordinance could have taken effect the license, and the appellee opened a dram- under any construction of the law. shop in the city within the portion thereof [3] Counsel for the appellee say that when located in the town of Rutland. The city the petition for leave to file the information attorney reported on the petition referred to was presented to the court the ordinance him at the next regular meeting of the coun- had become effective, so that the question cil held on May 8, 1916, and the city council when the license was granted had become refused to reconsider the ordinance or to sub- immaterial. Whether granting the license mit it to a vote of the electors of the city. before 'the ordinance was in effect would From the time that appellee received his li- of itself be sufficient ground for permitting cense he sold and dispensed at retail intox- the information to be filed will not require icating liquors by virtue thereof.

any attention, for the reason that if section [1, 2] If it was made to appear to the court 48 applied to the ordinance it was never in that the filing of the information had been in effect. The ordinance was not one excepted advertently or improperly allowed under a by section 48, since it was not one which the misapprehension of the law or the facts, the council was required by general laws of the court had power, during the term, to set state to pass, and it was not one for the imaside the order granting leave to ile the in-mediate preservation of the public peace, formation. In hearing and deciding the mo- health, or safety, and did not state any ur. tion the court was authorized to exercise dis- gency for its passage for such purpose. cretion; but the discretion was not a person. There is no conceivable reason for excluding al, arbitrary one, but was a sound judicial a dramshop ordinance from the plain providiscretion, resting upon well-established rules sion of the statute. Even if the electors of of law. People v. Town of Thornton, 186 I. a municipality favor the issue of licenses for 162, 57 N. E. 841; People v. Mackey, 255 Ill. dramshops, they may be vitally interested in 144, 99 N. E. 370; People v. Union Elevated an ordinance passed for that purpose with reRailroad Co., 269 Ill. 212, 110 N. E. 1. The spect to the location of dramshops, the lirecord does not exhibit any fact outside of or cense fee, or restrictions which they may contrary to the averments of the petition deem advisable for their protection or in the which might properly influence the court in public interest. the decision of the motion, and it is not [4] An ordinance is always necessary to claimed that there was any such existing authorize the issuing of a license to keep a fact; so that the question to be determined dramshop. The power to grant such licenses is whether the petition showed sufficient is conferred upon councils by the Cities and ground for filing the information. The ques- Villages Act, but the statute itself does not tion of law relates to the application of sec-authorize a city to grant a license. The powtion 48 of the act providing for the commis-er can only be put into operation by the pas. sion form of government. That section pro- sage of an appropriate ordinance author. vides that no ordinance passed by the coun- izing the issuing of licenses, specifying who cil, except when otherwise required by the shall issue them, the length of time they shall

and the time and manner of payment. Peo- I was the first act on the subject of adoption ple v. Village of Crotty, 93 111. 180. The pow. which was unknown to the common law. Such er can only be exercised by the passage of | ing a child so as to render it capable of inherit

act provided that any person desirous of adoptan ordinance determining the amount to be ing his or her estate might present a petition to paid and other necessary details and comply- the circuit or county court of his or her resing with the general law of the state with re- idence, setting forth the name, age, and

sex of gard to dramshop licenses. People v. Mount, any other person related by blood to such child,

such child, etc., and authorized the guardian or 186 111. 560, 58 N. E. 360. The restriction if there should be no father or mother, to file against the granting of licenses in the town objections to the application. The act was conof Rutland had been removed by the vote tinued with slight changes through the subse

quent statutes down to Hurd's Rev. St. 1915which became effective on May 4, 1916, and 16, c. 4. Held, that as Rev. St. 1874, c. 131, $ the dramshop was established in that part of | 2, provides that the provisions of any statute, the city within the territorial limits of the so far as they are the same as those of any town of Rutland; but the removal of the tion of such prior provisions, and as the word

prior statute, shall be construed as a continuarestriction did not authorize granting a li- "child," when not used with reference to parcense, except in pursuance of a valid ordi-ents and indicating a particular person, usually nance passed for that purpose. The plain means a young person of immature years, alrequirement of the law was that, if such an relation of parent and child, the statute did not

though it may with otber context refer to the ordinance should be passed, it should not go authorize the adoption of adults, though it did into effect for 30 days, and on the presenta- not specifically restrict the right of adoption to

minors. tion of a petition within that time the council should reconsider the ordinance, and if

(Ed. Note. For other cases, see Adoption, not repealed it should be submitted to the Cent. Dig. 8 4; Dec. Dig. 3. electors at an election. There was no excuse First and Second Series, Child.]

For other definitions, see Words and Phrases, for the refusal of the council to obey the law,

2. JUDGMENT 489-COLLATERAL ATTACKand, the petition provided for by the statute

JURISDICTION. having been presented to the council, the Where the county court was without jurisordinance did not go into effect.

diction to enter an order for the adoption of The argument for the appellee does not an adult, its decree may be collaterally imadvise the court of any reason for setting laches barring relief.

peached at any time, delay not amounting to aside the leave to file the information and

(Ed. Note.-For other cases, see Judgment, dismissing it, except that it was evidently Cent. Dig. 88 924, 925; Dec. Dig. Cw489.] not the intention of the General Assembly to


218 - CONTEMPORANEOUS have such an ordinance submitted to the peo CONSTRUCTION. ple, for which no reason is given, and the The adoption statute clearly showing that further fact that the court acted from the adoption of adults was not contemplated, worthy motives, in the honest belief that it the construction of such statute cannot be af:

fected by the long-continued entry in the county was for the best interests of those concern- court of the largest county in the state of deed to set aside the leave and dismiss the in- crees for the adoption of adults; the general formation. That, of course, is beyond ques-construction of the statute by inferior courts

not being applicable. tion; but the exercise of discretion is regufated by fixed principles of law, and must be Cent. Dig. $$ 294, 295; Dec. Dig. 218.]

[Ed. Note.-For other cases, see Statutes, exercised in conformity with them. There was an entire disregard of the statutory 4. TRIAL (ww47(1)-OFFER OF PROOF-SUFFImethod prescribed for the enactment of a

In a suit to set aside conveyances by decevalid ordinance in the city under the com- dent and an order whereby decedent adopted the mission form of government, which is es- grantee, plaintiffs' offer to show that for a long pecially designed to preserve to the electors, insane, made on the exclusion of questions as

time before the entry of the order decedent was by means of a referendum, the right to de- to decedent's insanity, was sufficient though cide whether an ordinance shall become the plaintiff called no more witnesses. law or not. The court erred in sustaining [Ed. Note.-For other cases, see Trial, Cent. the motion of the appellee.

Dig. $ 119; Dec. Dig. Om47(1).] The judgment of the circuit court is re- 5. DEEDS Om 211(1)→VALIDITY-INSANITY. versed, and the cause is remanded, with di In a suit to set aside conveyances by decerections to restore the information to the dent on the ground of insanity, evidence imfiles of the court, and for further proceed properly rejected held sufficient to present ques

tion whether the grantee knew or was charged ings not inconsistent with the opinion of this with knowledge of decedent's insanity. court.

[Ed. Note.-For other cases, see Deeds, Cent. Reversed and remanded, with directions. Dig. $8 637-640, 642, 647; Dec. Dig. 211

(1).] (276 Ili, 505) BARTHOLOW et al. v. DAVIES.

Duncan, J., dissenting. (No. 11049.)

Appeal from Circuit Court, Cook County; (Supreme Court of Illinois, Dec. 21, 1916. Jesse A. Baldwin, Judge. Rehearing Denied Feb. 9, 1917.)

Bill by Clara G. Bartholow and otherg 1. ADOPTION @ww5—PERSON SUBJECT TO ADOP-against Lillian E. Davies. From a decree TION-STATUTES—"CHILD."

Act of 1867 (Laws 1867, p. 133), entitled dismissing the bill, complainants appeal. Re “An act to provide for the adoption of minors," versed and remanded.


wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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