The decree is reversed, and the cause remanded, with directions to dismiss the original bill, retain the cross-bill, and extend the time for payment of the mortgage debt 90 days from the entry of the decree under the remanding order. stead estate cannot be sold on decree or exe- own money the balance of her bid above the cution to satisfy debts of the householder amount of the mortgage which she made to unless enough is bid to satisfy the homestead | Elizabeth L. Stires, and no money or propclaim, but the statute could not apply to a erty of the complainant or her grantors was case where a party entitled to homestead used for that purpose. After Catherine Hofiles a consent in writing that it may be sold, gan bought the land she was entitled to the and the value of it, although much less than rents and profits, and she paid the mortgage $1,000, shall be paid in money. In this case with the exception of $650.50, which remainthe premises were worth $7,000, which was ed due. It was her purpose to preserve her less than the amount of the statutory exemp-home, and naturally she included the chiltion above the amount due on the mortgage. [dren in the expression of her hope and inTo say that land could never be sold with tention, but no trust relation was created. the consent of one having a homestead estate unless such estate was of a value of more than $1,000 would not be in harmony with the statute. The county court had jurisdiction to order the sale of the lands disencumbered of the mortgage and homestead and dower rights, but when put to the test of a sale the lands brought no more than the amount of the incumbrance. The court approved the sale and report of the same and ordered the conveyance, and whether or not the court erred in approving the sale, which produced nothing for the payment of debts, the order was in the exercise of the jurisdic tion conferred by law. The purchaser was content, although it appeared from the sale that the land was worth no more than the mortgage debt. The judgment was binding upon the parties, and not subject to collateral attack. [6] The bill charged fraud and collusion between Catherine Hogan and her attorney and the administrator to enable her to secure title to the land, and alleged ignorance on the part of the complainant of the nature of the proceedings or their intent and purpose, but the answer denied every such charge and allegation, and, the cause having been heard on the bill and answers, the answers were to be taken as true. Derby v. Gage, 38 Ill. 27; Fordyce v. Shriver, 115 Ill. 530, 5 N. E. 87; Roach v. Glos, 181 Ill. 440, 54 N. E. 1022. [7, 8] It must be held, therefore, that there was no fraud, unless the proceedings of record set out in the bill and admitted by the answers constituted fraud in law. That could only be so if every purchase of lands of an estate by a widow who is not an administratrix and occupies no trust relation to the heirs at law or creditors constitutes a fraud upon them. That is not the law, and counsel do not contend that it is. The land was worth $7,000, which was not equal to the incumbrance and the homestead estate, and if it had been sold for its full value no creditor would have received anything. The bill alleged, and it was admitted by the answers, that, the land being heavily incumbered, it was a question with Catherine Hogan, the widow, how the property could be saved, and that she expressed an intention to save it for herself and the children by the proceeding in the county court. She paid with her Reversed and remanded, with directions. (275 Ill. 366) SIMPSON CONST. CO. v. INDUSTRIAL BOARD OF ILLINOIS et al. (No. 10750.) (Supreme Court of Illinois. Oct. 24, 1916. Rehearing Denied Dec. 7, 1916.) 1. MASTER AND SERVANT 419-WORKMEN'S COMPENSATION ACT "AGREEMENT" FOR COMPENSATION-REVIEW-CHANGE IN DISA BILITY. There is an "agreement," within Workmen's Compensation Act, § 19h (Hurd's Rev. St. 191516, c. 48, § 144), providing that an agreement or award under the act providing for compensation in installments may, within 18 months thereafter, be reviewed by the Industrial Board, on the ground that the employé's disability has subsequently recurred, increased, diminished, or ended-where there is a voluntary payment by employer of compensation, as provided by the act, for 10 weeks after the injury, and acceptance thereof by the employé. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 419. First and Second Series, Agreement.] 2. MASTER AND SERVANT 419-WORKMEN'S OF DISABILITY, ACT-REVIEW-RECURRENCE The employé having sought no review by certiorari of the decision of the Industrial Board, that he was not entitled to receive anything from the employer, so that under Workmen's Compensation Act, § 19f, it became conclusive on him that then he was not suffering from any disability as the result of the injury, he could not, unground of a subsequent recurrence of the disder section 19h, providing for a rehearing on the ability, prevail on a showing not of any change in his condition, but merely that his injury was different from what it was claimed on the first, Board confirmed and approved the finding of hearing, and that the exact nature of the injury the committee of arbitration. On September had not been discovered till after such hearing. 8, 1914, Mustaccio filed a petition with the Industrial Board praying that the decision of August 6, 1914, be vacated and set aside. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. 419.] Error to Circuit Court, Cook County; Os-On December 31, 1914, that petition was discar M. Torrison, Judge. Proceedings under the Workmen's Compensation Act by Dominick Mustaccio for compensation for disability from injury, opposed by the Simpson Construction Company, employer. On review in the circuit court, on certiorari, decision of the Industrial Board for the employé was affirmed, and the employer brings error. Reversed and remanded. Miller, Gorham & Wales, of Chicago, for plaintiff in error. Cairoli Gigliotti, of Chicago, for defendants in error. COOKE, J. This writ of error was sued out to review the judgment of the circuit court of Cook county affirming the decision of the Industrial Board of Illinois awarding to Dominick Mustaccio the sum of $4.75 per week for a period of 406 weeks, to be paid by the Simpson Construction Company, plaintiff in error. On October 16, 1913, Dominick Mustaccio was in the employ of plaintiff in error as a hod carrier on a building which it was constructing in the city of Chicago. While Mustaccio was at work, a board about fourteen feet long, one foot wide, and seven-eighths of an inch thick fell from the fourth story of the building and struck him on the left hip, resulting in an injury. Mustaccio at missed. On April 30, 1915, Mustaccio filed another petition with the Industrial Board seeking a review of the decision of August 6, 1914, under the provisions of paragraph "h" of section 19 of the Workmen's Compensation Act, in which it was alleged that the disability of Mustaccio had increased or recurred. Plaintiff in error moved to dismiss this petition on the ground that the board had no jurisdiction to hear the matter, and decision on that motion was reserved until the testimony should have been heard. Evidence was then heard on behalf of both parties, and on August 9, 1915, the Industrial Board denied the motion to dismiss the petition and found that the injury to Mustaccio on October 16, 1913, was caused by a fracture been unable to follow his usual occupation of the fifth lumbar vertebra; that he had since the time of the injury; that the disability had recurred and that the same is partial and permanent; and that he should have $4.75 per week for a period of 406 weeks. These proceedings were reviewed in the circuit court of Cook county by certiorari, where the decision of the Industrial Board was affirmed. Plaintiff in error contends that the Industrial Board was without jurisdiction to make the award of August 9, 1915, and that the motion of plaintiff in error to dismiss the petition should have been allowed, and that in making such award the Industrial Board acted in excess of its jurisdiction and without legal evidence to support it. that time was earning $17.60 per week. Plaintiff in error after the injury paid him compensation at the rate of $8.80 per week for ten weeks, according to the provisions of the Workmen's Compensation Act. At the end of that time, on December 23, 1913, the Paragraph "h" of section 19 provides that plaintiff in error ceased making these pay- an agreement or award under the act providments. On March 14, 1914, Mustaccio filed ing for compensation in installments may, at his application with the Industrial Board for any time within 18 months after such agreean adjustment of his claim for compensation, ment or award, be reviewed by the Industrial alleging that the nature of his injury was Board at the request of either the employer a broken thigh bone and that temporary total or employé on the ground that the disability disability had not yet passed away. The of the employé has subsequently recurred, inmatter was submitted to a committee of ar- creased, diminished, or ended, and on such bitration, and on June 3, 1914, the committee review compensation payments may be reof arbitration found that Mustaccio was not established, increased, diminished, or ended. entitled to receive or recover any amount After the injury to Mustaccio, plaintiff in from plaintiff in error. On June 15, 1914, error voluntarily made payments, under the Mustaccio filed a petition with the Industrial provisions of the act, for a period of 10 Board for a review of the decision of the weeks. After plaintiff in error ceased makcommittee of arbitration. Thereafter he filed ing these payments, Mustaccio had the right a statement of facts shown by the evidence to make application to the Industrial Board heard before the arbitration committee. for an adjustment of his claim for compenFrom this it appeared that the evidence pro-sation, and, if he had been able to show that duced by Mustaccio before the committee the disability continued, he would have been of arbitration was to the effect that he had entitled to have compensation awarded him. sustained an injury to the cartilage involv-He pursued this course, and the case was fully ing the hip. A hearing was had by the In- presented to the committee of arbitration dustrial Board, at which additional testimony and later to the Industrial Board, resulting was produced by both Mustaccio and plaintiff in a finding on August 6, 1914, that he was in error. On August 6, 1914, the Industrial not entitled to receive or recover any amount from plaintiff in error. Mustaccio abided, examined Mustaccio testified on both sides, this decision of the Industrial Board and and the committee of arbitration and the Insought no review by certiorari under the dustrial Board were of the opinion, as a re provisions of the act. Paragraph "f" of sec-sult of all the facts presented, that Mustaccio tion 19 of the Workmen's Compensation Act provides as follows: "The decision of the Industrial Board, acting within its powers, according to the provisions of paragraph e' of this section, and of the arbitrator or committee of arbitration, where no review is had and his or their decision becomes the decision of the Industrial Board in accordance with the provisions of this section, shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided." at that time was not suffering from any disability. Whether the fifth lumbar vertebra had been fractured as the result of the injury and had not at that time been discovered by any of the physicians who examined Mustaccio cannot influence the effect of the finding of the decision of August 6, 1914. Mustaccio was in the same condition then that he was at the time of the last hearing, and he was contending at that time that the result of his injury, whatever its exact nature may have been, was the same as it was at the time of the last hearing before the Industrial Board. As there was no proof whatever that his disability had recurred, but, on the other hand, all the proof was to the effect that his condition had remained the same, the decision of August 6, 1914, was conclusive, and the Industrial Board, after hearing all the testimony, should have dismissed the petition upon the motion of the plaintiff in error. For the reasons given, the judgment of the circuit court is reversed, and the cause remanded. Reversed and remanded. (275 111. 397) NICE et al. v. NICE et al. (No. 10783.) (Supreme Court of Illinois. Oct. 24, 1916. Rehearing Denied Dec. 8, 1916.) 1. WILLS 439-CONSTRUCTION ACCORDING TO INTENT. to ascertain the testator's expressed intent and The paramount rule in construing wills is give it full effect unless it violates law or public policy. [1-3] By virtue of this paragraph the decision of August 6, 1914, that at that time he was not suffering any disability that would entitle him to compensation, became conclusive upon Mustaccio. The voluntary payment by plaintiff in error of compensation, as provided by the act, for a period of 10 weeks following the injury, and the acceptance of the same by Mustaccio, constituted such an agreement as is referred to in said paragraph "h" of section 19 of the act. Mustaccio had the right, in case his disability recurred after the hearing which resulted in the decision of August 6, 1914, to invoke the provisions of said paragraph "h" of section 19 of the act and ask to have compensation awarded because of such recurrence of his disability. The Industrial Board therefore properly reserved the motion to dismiss the petition of April 30, 1915, until the testimony was heard. While the petition of April 30, 1915, was based upon the fact that Mustaccio's disability had recurred, there was no proof offered of any recurrence of his disability. All the proof was to the effect that Mustaccio had always been in the same condition since the time of the injury. The only difference in the evidence or in the position of Mustaccio was that instead of claiming that the injury was to the thigh bone or the ilium or the sacrum, or the juncture of the ilium and sacrum, as in former hearings, on this hearing it was contended that there had been a fracture of the fifth lumbar vertebra, which was the cause of the disability. It was contended that this injury was received on October 16, 1913, as the result of the falling | 488.] board striking Mustaccio, but that the exact nature and extent of the injury had not been discovered until after the hearing which resulted in the decision of August 6, 1914. In order to entitle Mustaccio to compensation, it was incumbent to show that his disability had recurred since the hearing which resulted in the decision of August 6, 1914, and that his condition had changed since that time. Under the statute that decision was conclusive upon Mustaccio that at that time he was not suffering from any disability as the result of the injury. Evidence on behalf of both parties was heard on the hearing which resulted in that decision. Physicians who [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. 439.] 2. WILLS 488 CONSTRUCTION SIC CIRCUMSTANCES. EXTRIN A will devising property to testator's wife for life and on her death to be divided equally between parties named, "making them all my equal heirs," one of whom was a stepdaughter, ation of extrinsic circumstances in construction. contains no latent ambiguity requiring consider[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1024, 1025, 1033-1036; Dec. Dig. 3. WILLS 552(3)-CONSTRUCTION-LAPSE OF BEQUESTS "HEIRS." Though the word "heirs" be construed as tended the stepdaughter named to take as a nat"children," and although testator may have inural child, yet, if she predeceased testator, her children could not take as would those of a child, but the devise lapsed. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1194; Dec. Dig. 552(3). For other definitions, see Words and Phrases, First and Second Series, Heirs.] Error to Circuit Court, De Witt County; George A. Sentel, Judge. Partition by William H. Nice and others against Stephen S. Nice, Alice Bailey, and others. From the decree of partition, Alice death. He recommended partition according Bailey and another, infants, by their guardlan ad litem, Wirt Herrick, bring error. Af firmed. Herrick & Herrick and Wirt Herrick, guardian ad litem, all of Farmer City, for plaintiffs in error. Thomas L. Jarrett, of Springfield, for defendants in error. to the prayer of the bill among the children of the testator who were named as devisees in the will and the children of a daughter of the testator who had predeceased him, and taking into account certain conveyances that had been made by the devisees. Plaintiffs in error filed objections and exceptions to the master's report, but on a hearing by the court CRAIG, C. J. The defendants in error filed the same were overruled, and a decree was their bill for partition in the circuit court of entered approving and confirming the masDe Witt county to the May term, 1915, of ter's report and decreeing partition accordsaid court, claiming to be the owners, to-ingly. gether with certain of the defendants to the The sole question presented by the assignbill, of certain real estate in De Witt and ments of error is whether plaintiffs in error, Macon counties as children and devisees un- as children of Mary Emiline Bailey, under der the last will and testament of Erastus the terms of the will have the same rights Nice, deceased, and as grantees of certain in the estate as they would have if their of said children and devisees. mother had been a child of the testator. Plaintiffs in error contend that their mother took the same share as a child of the testator under the will, and that they are entitled It appears from the pleadings and proofs that Erastus Nice, the former owner of the lands in controversy, made his will disposing of said lands January 12, 1888. The will to the portion devised to their mother under consists of two paragraphs. By the first paragraph the testator provided that his just debts we fully paid. The second paragraph is as follows: section 11 of the statute of descent (Hurd's Rev. St. 1915-16, c. 39), which provides that whenever a devisee or legatee in any last will or testament, being a child or grandchild of "Second.-I give and bequeath to my wife, the testator, shall die before such testator, Mary Elizabeth Nice, all my personal property and no provision shall be made for such of every character; also all my real estate dur- contingency, the issue, if any there be, of ing her lifetime, and at her death said property which remains shall be divided equally between such devisee or legatee shall take the estate Mary Emiline Stephanson (afterward Mary devised or bequeathed as the devisee or legaEmiline Bailey, being daughter of my wife, Mary tee would have done had he survived the E. Nice), and William H. Nice, Stephen S. Nice, testator, and if there be no such issue at Mary L. Nice (now Mary L. McDonald), Elizabeth A. Nice (now Elizabeth A. Stephanson), the time of the death of such testator, the Harvey D. Nice, Ella A. Nice and Thomas M. estate disposed of by such devisee or legatee Nice, making them all my equal heirs. Lastly, shall be considered and treated in all reI hereby nominate and appoint William Parker, of Macon county, Illinois, my executor of this my last will." spects as intestate estate. This section of the statute applies only when those named Mary Emiline Bailey, mentioned in this as devisees or legatees in the will are chilparagraph, a stepdaughter of the testator, dren or grandchildren of the testator, and died in April, 1903, leaving a husband and whether the contention of plaintiffs in error several children, among them Alice Bailey is sound or not depends upon whether the and Emma Bailey, the plaintiffs in error, language of the will is susceptible of such who at the time of the suit were infants and a construction that there would be conferred were represented by a guardian ad litem. upon the stepdaughter of the testator the Mary Elizabeth Nice, the widow of the tes-status of a child of the testator and all the tator, died March 13, 1915. rights given by law to such child. It was alleged in the original bill of com[1, 2] The paramount rule to be observed in plaint that the children of Mary Emiline construing wills is to ascertain the intent Bailey took the share of their mother, but an of the testator as expressed by the language amended bill was filed later in which it was of the will, and it is our duty to give full alleged that only the children of the testator effect to such intent, unless to do so results named in the second clause of the will and in the violation of some rule of law or sound the grantees of certain of them, and the public policy. It is also necessary to consider children of a deceased daughter of the tes- and give full effect, if possible, to all the tator, had any interest in the property. The language of the will. There can be no quesdefendants to the amended bill answered, tion but that the testator intended that Mary and complainants replied thereto, and the Emiline Bailey should take the same rights cause was referred to a special master in in his estate, in all respects, as if she had chancery to take and report the evidence, been one of his own children and heirs at law, with his conclusions. The master found and if she survived the testator and were living reported, among other things, that the dev- when the will spoke. It appears from the isee, Mary Emiline Bailey, died prior to the evidence that at the time the testator marsaid Erastus Nice, and, being his stepdaugh- ried her mother Mary Emiline was about 12 ter, took no interest in said real estate, and years old; that she lived with the testator that the interest given her lapsed at her and her mother as one of the family and helped in the household work and in caring | of his own children would take in all respects for the other children who were born to the under the laws of Illinois, there would be testator; that the testator was fond of her, more merit in the contention. But the testaintroduced her as his daughter, and treated tor has not said so, and while it is very clear her in all respects as one of his own children; | from the language used in the will that the that after she married and removed to anoth-testator intended that Mary Emiline Bailey, er state they visited each other at intervals, the mother of the plaintiffs in error, should and after her death he stated that his prop-share equally with his children in the disposierty would have to go through court, because tion of his estate, we are unable to say from she had left minor children. There is also the language used that the testator intended some slight evidence that at the time the tes-that she should have the status and all the tator married the mother of Mary Emiline rights of a child. The devise was to her only, had some money, which was put into the com- and she having died before the testator, and mon fund and used by the testator in the not being a child or grandchild of the testaaccumulation of the property which he left. tor, and not having the status of a child There is, however, no such latent ambiguity or grandchild under the language of the will, in the terms of the will that it is necessary the devise to her necessarily lapsed. to take into consideration the circumstances The decree of the circuit court will be surrounding the testator and the making of affirmed. the will to explain its terms. The will must Decree affirmed. be construed according to the intent of the testator as expressed therein, not from the intent which the testator may have had in his mind and which he failed to express. (275 Ill. 497) STEPHENS et al. v. HOFFMAN et al. (No. 10788.) hearing Denied Dec. 8, 1916.) [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495, 496; Dec. Dig. 228(1).] 2. EVIDENCE 577-TESTIMONY ON FORMER TRIAL-ADMISSIBILITY-FOUNDATION. Testimony given by a witness at a former trial is not admissible, where the witness is in another state and there is no showing that his deposition could not have been taken by the exercise of ordinary diligence. [3] If the mother of plaintiffs in error had merely been mentioned by name as devisee to-(Supreme Court of Illinois. Oct. 24, 1916. Regether with the children of the testator, and the will had stopped with that, there can be 1. VENDOR AND PURCHASER 228(1) - INNOno doubt that the devise to her would have CENT PURCHASER-PAYMENT-NOTICE. Where there is no evidence in the record that lapsed by reason of her dying before the tes-defendants in ejectment had purchased the proptator. The fact that she was a stepchild erty from the claimant adverse to plaintiffs, or would not prevent such lapse, as the devise had paid him anything for it, and the conclusion to her would be no different from that of a fendants knew of the condition of the title and is necessarily drawn from the record that dedevise to any other person not a child or the contest over it, at the time they acquired the grandchild of the testator. The only question title, they take subject to all equities that could is: Do the words "making them all my equal be urged against their predecessor. heirs," in the latter part of the second clause of the will, change the effect of the will? Ordinarily these words would be taken as merely indicating that an equal division or disposition should be made among those the testator had previously named. It is contended, however, by counsel for the plaintiffs in error that the word "heirs," as used by the testator, is equivalent to the word "children," and that to properly construe the will the word "children" should be substituted for the word "heirs." There is reason for such contention, as the word "them," in the expression "making them all my equal heirs," refers, of course, to Mary Emiline Bailey and the children of the testator whom he had previously named, and can refer to no other. But, even if the word "children" is substituted for the word "heirs," can the clause be construed so as to confer an interest on any one but Mary Emiline Bailey and the children of the testator, and Mary Emiline Bailey be given the same status as a child of the testator and all the rights of such child, without substituting therein words not used by the testator, and also giving such words a meaning which it cannot be said, from all the language in the will, the testator intended? If the testator had provided, in unequivocal language, that Mary Emiline Bailey should take as one [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2406; Dec. Dig. 577.] 3. TRIAL 252(12)-INSTRUCTIONS-APPLICA BILITY TO EVIDENCE. the name of plaintiffs' ancestor had been substi- 4. EVIDENCE 594 WEIGHT UNCONTRA DICTED TESTIMONY. While the positive testimony of a witness who was uncontradicted and unimpeached by ei |