'Nemo est hæres viventis'

none can be

and do prevail where the beneficiaries are would abrogate it. other than children or grandchildren. This is a familiar maxim of law. If none can be the heir of a living person, must often have thwarted the intention of his devisee or legatee. A will speaks from the the testator and worked a hardship upon death of the testator, and no person not then those who were the natural beneficiaries of in existence can, strictly speaking, be either the his bounty when it is considered that wills devisee or legatee of such testator. Hence, if construed technically by its words alone, and were frequently made in extremis-but a without reference to its obvious intent and purfew days, or even hours, before the testator's pose, the entire provision would be rendered Such a construction of this statute death, and at a time when it could not be nugatory. known to a certainty, or ascertained, wheth- of the principle often necessarily applied to the would deservedly fall within the condemnation er or not all the devisees or legatees, in case interpretation of statutes, 'Qui hæret in littera, they were numerous and widely scattered, hæret in cortice.' The construction of were alive and in being at the time of the counsel would call upon us to hold that a devise the statute contended for by the appellants' execution of a will. It was to provide or legacy to a child, contained in a will made against such contingencies that this statute in extremis, would lapse and be wholly avoided, was enacted. It does not, in direct terms or of the will, although such death was wholly unif the child had died one hour before the making by implication, take any notice of the time known to the testator. Such a discrimination of the execution of the will or impose as a between the case of a death happening before condition to its operation or nonoperation the making of the will, and one happening after, is founded in no reason, and we cannot believe upon a gift or devise that the devisee or lega-it to have been within the intention of the Legistee shall be in esse at the date of the execu- lature. Considering the evident purpose and tion of the will. The only conditions im- policy of the act, the mischief intended to be posed by it are that the devisee or legatee remedied, and the fact that it is a remedial statute, to be liberally construed, we are of the shall die before the testator, leaving issue opinion that its meaning is to prevent the lapse surviving the testator, and that no provision of a devise, or bequest, to a descendant of the shall be made in the will for the contingency testator, although the proposed devisee or legatee shall have died before the testator; proof the death of such devisee or legatee be- vided such devisee or legatee shall have left linfore that of the testator. The words "shall eal descendants, who shall be living at the testadie" refer, not to the time of the execution tor's death-and this, whether the death of the proposed devisee or legatee shall have occurred of the will, but to the death of the devisee or before or after the date or making of the will." legatee before the testator, and, we think, include those whose death occurred prior to the execution of the will as well as those whose death occurred in the interim between the making of the will and the death of the testator.

In construing statutes and arriving at the proper construction to be given them, the vital thing is to ascertain and give effect to the intention of the Legislature in enacting them. This intention is to be gathered, not only from the language used, but also from the reason and necessity for the enactment, the evils sought to be remedied, and the objects and purposes to be attained by it. People v. Henning Co., 260 Ill. 554, 103 N. E. 530, 49 L. R. A. (N. S.) 1206; Hoyne v. Danisch, 264 Ill. 467, 106 N. E. 341; Warner v. King, 267 Ill. 82, 107 N. E. 837.

The act of the British Parliament passed in 1837, which was followed by similar enactments in most of the American states, pro

vides:

"Where any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed, for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will." 1 Vic. c. 26, § 33.

The English courts, in construing this act, have held that the act applied to prevent a lapse of the devise or bequest if the devise were to a child or issue of the testator, wheth

of the will, if such death and the making of the will occurred after the passage of the act and in the lifetime of the testator. Mower v. Orr, supra; Winter v. Winter, supra; Barkworth v. Young, supra; Wisden v. Wisden, supra.

In Barnes v. Huson, 60 Barb. (N. Y.) 598,er such child died before or after the making the court construed a similar statute of the state of New York, which was as follows: "Whenever any estate, real or personal, shall be devised or bequeathed to a child, or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child, or other descendant, of the legatee or devisee, as if such legatee or devisee had survived the testator, and died intestate."

In the Barnes Case the will was made in 1869. The son of the testator who was mentioned in the will and in behalf of whose children the statute was invoked and held to In the opinion in that case the court said: apply had died in 1861, and the testator, his "It is insisted by the counsel for appellants father, had heard of his death as a prisoner that, from the collocation of the words in the of war in Richmond, Va. This case was not section, the expression 'shall die' can only be lit- overruled by the later case of Pimel v. Betjeerally construed to refer to a time intermediate the making of the will and the death of the tes-mann, and, as before stated, that case held tator. To construe this statute with literal and that there was a distinction between a devise technical accuracy, regardless of anything else, to one by name who was dead when the will

would include a child or children whose death had occurred prior to the execution of the will and whose death was unknown to the testator at the time of making his will, we can see no reason why it should not also include a child or children whose death was known to the testator at the time of executing his will, as the statute does not make knowledge or want of knowledge of such fact on the part of the testator a condition to its TOWN OF NAMEOKI et al. v. BUENGER operation or nonoperation upon wills made after its adoption. The language is broad enough to include all children born to the testator, no matter what the time of their death with respect to the date of the execution of the will, and we think was intended to include all such children.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-9

Appeal from Circuit Court, Madison Coun- and the lands of appellees unfit for cultivaty; J. F. Gillham, Judge. tion and occupancy, and that appellants are Suit by the Town of Nameoki and others | threatening to place in said water course on against Minnie Buenger and others. From a decree for plaintiffs, defendants appeal. Decree affirmed.

Burton & Burton, of Edwardsville, for appellants. Warnock, Williamson & Burroughs, of Edwardsville, for appellees.

the lands of Minnie Buenger further and additional dirt, cinders, slag, brush, débris and other obstructions, and to build and erect

said levee to a greater height and thereby further obstruct the natural flow of the wa

ters aforesaid.

The answer to the bill states that east of

COOKE, J. Appellees, the town of Name- the highway mentioned in the bill there was, oki, by the commissioners of highways of in a state of nature, a large amount of wet said town, and Walter Roman, John Wedig, land claimed to be owned by appellees; that Emil Rammer, and Elizabeth Epping, on May many acres of said land were covered by wa15, 1913, filed their bill for injunction in the ter during most of the year; that the lands circuit court of Madison county against the of appellants and those of appellees are part appellants Minnie Buenger, William Wolf, of what is commonly called the American Louis Buenger, and Henry Marcum to rebottoms along the Mississippi river, formed strain the appellants from further obstruct- by deposits in times of flood and overflow ing an alleged natural water course, and for and composed of sand, silt, and similar suban order requiring them to remove obstruc- stances; that the surface of the land consists tions theretofore placed in said water course of natural ridges running north and south by them and to restore the water course to and depressions between such ridges; that its natural state. The bill alleges that ap- these ridges act as dams or barriers to the pellees, other than the town of Nameoki, own flow of water and in times of low water hold certain farm lands in the town of Nameoki, the water back in large quantities, thereby and that Minnie Buenger, one of the ap-forming ponds, slashes, or sloughs; that in pellants, owns a farm west of and adjoining times of floods the water naturally overflows the farm owned by appellee Walter Roman, such ridges and flows from the north and but separated therefrom by a public high-east across the highway to and upon the way; that the lands owned by appellees, lands of Minnie Buenger, and thence into a which lie east of the public highway, are nat- depression or pond on her land west of the urally higher than the lands of Minnie highway which has no outlet, and that such Buenger west of the highway, and that the overflow water can only escape therefrom by natural flow of water is from the lands sinking into the soil and by evaporation; of appellees across the highway to and up- that said highway was located across a place on the lands of appellant Minnie Buenger where some of the surplus overflow waters and thence to lands adjoining the Buen- flowed in times of flood; that a large amount ger lands on the north and west; that of water naturally remained east of and adupon the lands of appellees Roman, Wedig, joining the highway in a slash, slough, or and Rammer, lying east of the public high- pond on the lands of appellees; that forway, is located a certain slash or slough; merly a wooden culvert was placed in the that the surface waters coming on the lands said highway, through which surplus and of appellees drain first into said slash or overflow waters flowed from the east to the slough and thence westerly through a ditch west to and upon the lands of Minnie Buenor water course leading from said slash ger and into the depression or pond on her through and across the public highway to land; that the appellees, desiring to artiand upon the lands of appellant Minnie fically drain their lands and the pond, slash, Buenger, and that appellees' lands have been or slough thereon, began a course of conso drained for more than 50 years; that ap- duct by which they sought to, and did, propellants, in June, 1912, and before and since duce an unnatural condition in said highway; that date, placed and deposited in the ditch that appellee Walter Roman caused to be dug or water course on the lands of Minnie an artificial channel through and across the Buenger, dirt, cinders, débris, slag, and oth-highway lower than the natural surface of er obstructions, and caused to be built an the adjoining land, and caused to be placed embankment or levee across said ditch or wa- therein a large culvert or tile, so the waters ter course at a place about 50 feet west of from the slash, pond, or slough on appellees' the highway, whereby the surface and other lands could escape and flow to the west waters naturally coming upon the highway through said culvert upon the lands of Minand upon the lands of appellees, which but nie Buenger, and without license or authorifor the acts of appellants would have drained ty caused to be dug on the west side of the and flowed westerly across the highway and highway and on the lands of Minnie Buenupon the lands of Minnie Buenger, were ob-ger an artificial ditch, and thereby and therestructed and caused to back up and remain after in times of heavy rains the waters upon and overflow said highway and a large which would have remained in the slash, portion of the lands of appellees, thereby slough, or pond east of the highway were

Buenger, greatly injuring and damaging her highway flowed upon and across the lands lands. The answer states that the appellants thereafter filled up to its natural level the ditch dug by appellee Walter Roman on the lands of Minnie Buenger and thereby restored the lands west of the highway to their natural condition, and that they are merely seeking to maintain the lands at their natural level. The answer charges that some of the appellees have by artificial means drained their lands into the slash east of the highway, and thereby caused the flow of water upon the lands of Minnie Buenger to be unnatural and excessive.

of Minnie Buenger and no water remained standing on the highway or under the bridge or in the tile; that for more than 40 years prior to the filing of the bill herein a furrow or ditch had been made and opened from the westerly end of the slough on appellees' lands to a point on the highway where the tile is now located and in the direction of the natural flow of the surface waters, and said ditch was kept open by Walter Roman on the lands east of and adjoining the highway; that no excavating was done by appellees, or any of them, at any time upon the lands of Minnie Buenger west of the bridge, culvert, or tile; that from 1885 to 1905 no complaint was made by Minnie Buenger or by any of the appellants concerning the action of the highway commissioners in placing the culvert or tile across the highway, but during all of such time they acquiesced in such action of the commissioners; that in June, 1912, the appellants placed and deposited in said water course upon the lands of Minnie Buenger west of the highway, earth, slag, débris, etc., beginning about 10 feet west of the line of the public highway and extending thence westerly about 100 feet, and by reason thereof the flow of the surface waters naturally falling and coming upon the highway and the lands of appellees and naturally flowing across the lands of Minnie Buenger was obstructed and the waters were thereby backed up and caused to stand on the public highway and along the sides thereof and upon large portions of the lands of appellees from which they otherwise would have flowed, and said lands were thereby rendered unfit for cultivation and occupancy, and said highway was thereby damaged; that in July, 1912, appellants again filled in the depression, water course, or ravine through the lands of Minnie Buenger with rocks, bricks, slag, and other material, and in October, 1912, they again built a levee across the ravine on said land west of the tile; that during the month of March, 1913, the levee was washed away, but the other material placed in the ravine remained therein, and caused the water which would have naturally flowed away from the highway to stand thereon and in the tile across the highway and upon the lands of appellees east of the highway; that the water course upon the lands of Minnie Buenger westerly from the highway from year to year gradually widened and deepened by reason of the natural flow of water through the same, and appellants are claiming the right to fill up said ditch, water course, or ravine in such manner as to restore the bottom thereof to the same level it was before washing away and are contending that they have only restored such water course to such level, but the master finds that such water course has been filled up to a

Appellees having filed a general replication to the answer, the cause was referred to the master to take and report proofs and findings as to the law and facts. The master, from the evidence adduced by the respective parties before him, found that appellees' lands east of the highway are higher than the lands of Minnie Buenger west of the highway, and that surface waters naturally drain from the lands of appellees across the highway to and upon the lands of Minnie Buenger; that there is a slash or slough on appellees' lands extending from a point about 100 feet east of the tile in the public highway to a point about one mile north and east thereof; that the surface waters falling upon appellees' lands naturally drain into said slash and thence westerly through a natural depression across said highway and through a natural drain or water course upon and across the lands of Minnie Buenger, and that such natural flow has continued for more than 50 years last past; that in the cultivation and improvement of their lands adjoining said slash east of the highway and naturally draining thereinto, certain ditches or furrows have been made upon the lands of appellee Elizabeth Epping and lands owned by Martin Bauer, and that said ditches drained certain low parts of said lands along the line of the natural flow of the surplus waters falling or coming thereon into the said slash; that the highway in question was laid out in 1883, and 2 or 3 years thereafter a wooden culvert was placed across the highway opposite the west end of the said slash or slough to permit the waters from the slash naturally to cross said highway to and upon the lands of Minnie Buenger west of the road, as it had naturally flowed; that the said culvert was insufficient to receive the waters naturally drained there, and about 1889 a bridge of greater capacity, about 4 feet in width and 18 inches in height, was placed in the highway at the same place, affording a larger opening for the waters draining westerly; that about 1894 the bridge was removed and a 24-inch tile was substituted therefor and placed across the highway, the bottom of the tile resting at or near the natural surface of the ground; that for more than 20 years prior to the commence-point higher than the natural surface of the ment of this suit all waters coming through said bridge or tile to the west side of the

earth at the bottom of said ravine or water course, and that such obstruction causes wa

and that no waters have by means of artificial ditches or drains been diverted into the pond or slough on the lands of appellees. A large amount of testimony was taken bearing upon these controverted questions of fact, and the evidence given by the respective witnesses relating thereto is irreconcilable. The master, after hearing the testimony, made express findings upon each of the controverted questions of fact, based upon the testi

of appellees. The chancellor, after considering the evidence taken before the master, heard additional evidence, and at the request of appellants went upon and viewed the premises, and in addition to adopting the findings of the master made the following additional finding concerning the alleged diversion of waters into the pond or slough on the lands of appellees:

ter to stand upon the highway where it had not stood before such obstruction was placed therein. From these findings the master recommended that a decree be entered requiring appellants to remove from the ravine or water course upon the lands of Minnie Buenger all slag, earth, or other material placed therein, and to restore said ravine or water course to the condition in which it was before such substances were placed therein. Objections made by appellants to the mas-mony of the witnesses who testified on behalf ter's findings were by him overruled, and these objections were renewed as exceptions when the report was filed in court. Some additional evidence was offered by appellants and heard by the chancellor over the objection of appellees, at the conclusion of which, at the request of appellants, the chancellor went upon and viewed the premises, accompanied by the solicitors for the respective parties and two of the appellants, after which the court entered a decree finding the facts substantially as found by the master and perpetually enjoining appellants from placing any slag or dirt in the ditch on the land of Minnie Buenger or otherwise obstructing the same, and ordering them within 90 days to take and remove from the ditch all dirt, slag, débris, and other material placed in said water course by them, and that in default thereof the appellants be considered in contempt of court and dealt with according to law. From that decree the appellants have prosecuted this appeal.

Appellants contend that the proof shows: (1) That the tile through which the waters flowed across the highway from the lands of appellees to the lands of appellant Minnie Buenger was placed several inches below the natural surface of the ground; (2) that after the tile was placed in the highway appellee Walter Roman dug or caused to be dug upon the land of Minnie Buenger a ditch leading west from the tile a distance of several feet; and (3) that some of the appellees, and other owners of lands east of the highway who are not parties to the suit, have within the last 20 years, by artificial ditches and drains, diverted waters into the pond or slough on appellees' lands which in a state of nature flowed in a different direction, and that by reason of these various acts large quantities of water were cast upon the lands of appellants and there remained, rendering their lands unfit for cultivation. The evidence offered by appellants tended to prove all of the contentions so made by them. The evidence offered by appellees, however, tended to prove that the tile across the highway was laid upon the natural surface of the ground; that the ditch on the lands of Minnie Buenger leading west from the tile in the highway was, and has been for at least 50 years, a natural water course and has been deepened solely by the action of the water flowing through it,

"The court further finds that the natural drainage of the land of complainant Elizabeth Epping, and the land of Martin Bauer adjoining ward and into said slash or slough, and that the the Epping lands on the south, was always tonatural drainage of any basins or low places on said Epping or Bauer lands was toward said slash or slough, and that any plow furrows or ravines which may have heretofore, in the interest of good husbandry and for the purpose of better cultivating said lands, been cut from any flat or low places on said Epping or Bauer lands toward and into said slash or slough, were cut in the course of the natural drainage of the surplus or overflow waters from such flat or low places, but the court finds that there are not at this time, and were not at the time of the filing of this suit, any artificial ditches upon said Epping or Bauer lands."

We have carefully considered all the evidence, and have reached the conclusion that we would not be warranted in reversing the decree of the circuit court on the ground that the findings of fact made by the master and chancellor are contrary to the evidence. These findings being in favor of appellees, the relief awarded followed as a matter of course. This court, in Gillham v. Madison County Railroad Co., 49 Ill. 484, 95 Am. Dec. 627, adopted the rule of the civil law that the owner of a servient heritage has no right, by embankments or other artificial means, to obstruct the natural flow of the surface water from the dominant heritage and thus throw it back upon the latter, and this rule has since been consistently followed in this state. Appellants admit that they placed obstructions in the ditch leading west from the tile in the highway, and the finding of the master and chancellor that this ditch was a natural water course and had not been deepened by artificial means warranted the decree requiring appellants to remove such obstructions and restraining them from further obstructing the flow of water through that ditch.

The decree of the circuit court is affirmed.
Decree affirmed.