From the allegations of the bill and the mony between them was invalid. The rights exhibits attached and made a part thereof, it of Luella Thurm are to be determined by appears that the deceased, Fred Heavens, the intention of the testator, and not as to executed his last will and testament on Jan- whether public policy or good morals deuary 18, 1916. The will, after directing that mand that a divorced person shall not rehis just debts and funeral expenses be paid, marry within a year from the date of the diprovided: vorce. However unlawful such conduct may be, it is not the duty of courts of equity to deprive persons of their civil rights to punish them for immoral conduct. Hardy v. Smith, 136 Mass. 328; Prentice v. Achorn, 2 Paige (N. Y.) 30. "I give, devise and bequeath my watch to my grandson, Fred McDole, my bookcase to my daughter, Charlotte McDole. All my other goods and chattels to my wife, Luella Heavens, to be in lieu of dower and widow's award. I also give and devise unto my wife, Luella Heavens, the premises on Boyd street, Dixon, Illinois, 50x150 feet, to have and enjoy for her natural life, but upon her death, or when she remarries, the said premises I devise to my daughter, Charlotte McDole, if she shall then be living, and if not, to her children then living, in equal parts. Lastly, I direct my executor to sell my vacant lot on North Galena avenue, in Dixon, at public or private sale and out of the proceeds to pay all debts and expenses and mortgage thereon, and the balance of said proceeds I give unto my wife, Luella Heavens." The will named Robert H. Scott, or in case he did not act, Luella Heavens, as executor, and revoked all former wills and codicils made by the testator. It appears from the allegations of the bill that Luella Thurm was a resident of Dixon, Ill., in 1907, and in September of that year obtained a decree in the circuit court of Lee county granting her a divorce from her husband; that at that time Heavens was a widower, residing in said city of Dixon; that on December 23, 1907, Luella Thurm and Fred Heavens went to Clinton, Iowa, and then and there were united in marriage; that said marriage ceremony was in violation of the statute of Illinois of 1905 providing that neither party to a divorce shall be remarried within one year from the time of the decree of divorce. From the record and briefs before us it appears that Heavens and Luella Thurm returned to Dixon and lived together as man and wife until Heavens died, and that his last will and testament was admitted to probate in said county February 28, 1916; that the only child surviving him was his daughter, appellant herein, who at the time of her father's death had two children living, Fred McDole and Olive McDole. [1] Counsel for appellant contend that it is clear from this record that testator, Fred Heavens, thought that he was legally married to appellee Luella Thurm, and that the presumption must be that he made the gift to her under the erroneous impression that the marriage was valid, and that it cannot be told how he would have drawn the will had he known the marriage was invalid. It is a reasonable presumption, from the record before us, that he knew of her former marriage and her recent divorce at the time when the marriage ceremony between them was performed. There can be no question, under the law, that testator could have left this property to Luella Thurm even conceding that they were not legally married and conceding that he knew the marriage cere [2] Counsel for appellant argue that the intention of the testator can be found only from reading the will. While the intention of the testator as expressed in the will must prevail, yet the court is not bound to disregard the circumstances under which the will was made, but should endeavor to place itself in the situation of the testator, in order to understand the language in the sense in which it was used. Hawhe v. Chicago & Western Indiana R. Co., 165 Ill. 561, 46 N. E. 240; Strickland v. Strickland, 271 Ill. 614, 111 N. E. 592; Wallace v. Foxwell, 250 Ill. 616, 95 N. E. 985, 50 L. R. A. (N. S.) 632; Abrahams v. Sanders, 274 Ill. 452, 113 N. E. 737. [3] It is clear from the admitted facts in this record that the testator lived with Luella Thurm as his wife from the time when the marriage ceremony was performed, in 1907, until his death, and that during all this time he held her out to the public as his wife. The terms "husband" and "wife" have undoubtedly for their primary meaning only those persons who are actually and lawfully living together as husband and wife, but the surrounding circumstances may extend the meaning of the terms to those who are in the ostensible relation of husband or wife although not legally so, especially if it appears that this was the intention of the testator. Page on Wills, § 511; Pastene v. Bonini, 166 Mass. 85, 44 N. E. 246; Marks v. Marks (Can.) 12 Am. & Eng. Ann. Cas. 751, and cases cited in note; 40 Cyc. 1456; Dicke v. Wagner, 95 Wis. 260, 70 N. W. 159. In view of the relations in which he had lived with Luella Thurm from 1907 until his death, and of the other surrounding circumstances, we think it clearly appears from the wording of the will that the testator intended to leave the interest in the property in question to the woman with whom he was living as his wife; that is, the appellee Luella Thurm. The reasoning of this court in Brack v. Boyd, 202 Ill. 440, 66 N. E. 1073, tends strongly to uphold this conclusion. In that case the will provided, among other things, that: "At the death of my said wife it is my will that my said property be vested in my adopted daughter, Mary Jane Ralls, whose name before her said adoption was Mary Jane Singleton." It was argued that the adoption proceedings were invalid. In passing on that question the court said: EXECUTORS AND ADMINISTRATORS 339 INDEMNITY FOR COSTS AND EXPENSES. But where such heir's interest, being merely a reversionary interest in case of death of remaindermen, is possibly of trifling value, the administratrix should not be compelled to institute proceedings without indemnity against costs and expenses of a proceeding and sale, since a sale might not bring enough to pay such costs. The language "identifies the beneficiary be- 16. yond question and is sufficient to vest the estate in remainder in her. This being the case, it will be unnecessary to determine * * whether there was any defect in the adoption proceedings, as it could not affect the result." The authorities cited and relied upon by counsel for appellant are not controlling here. Under all the facts and circumstances before us it is obvious that the testator intended to leave the property in question to appellee Luella Thurm. We find nothing in the record to justify the presumption, even, that the testator would not have left this property to her if he had known that their marriage was invalid. The decree of the circuit court will be affirmed. Decree affirmed. (276 111, 69) BROWN et al. v. KAMERER. (No. 11034.) Where testator devised all his property to his wife, for life, and after her death, separate portions to his children for life, with remainder to their children, if any, surviving them, the remainders are contingent, since it cannot be known until the death of the life tenants in whom the remainders will vest. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1417-1424; Dec. Dig. 339.] Appeal from Stark County Court; Frank Thomas, Judge. Petition by Harley B. Brown and others against Clara Mae Kamerer, as administratrix of the estate of Lewis A. Kamerer, to require sale of real estate to pay debts. From a decree for defendant, petitioners appeal. Reversed and remanded. T. W. Hoopes and F. B. Brian, both of Toulon, and J. W. Fling, Jr., of Wyoming, Ill., for appellants. CARTWRIGHT, J. The county court of Stark county dismissed the petition of the appellants, who had claims of the seventh class amounting to $3,021.34 against the estate of Lewis A. Kamerer, for an order requiring the appellee, as administratrix of the estate, to inventory an interest in the [Ed. Note.-For other cases. see Wills, Cent. real estate of which Lewis A. Kamerer was Dig. 1500; Dec. Dig. 634(12).] 2. WILLS 866-REVERSIONARY INTEREST. Under such will, there being no devise of the fee in the event of death of any of the life tenants leaving no children, the reversion in fee descended to testator's heirs. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 2200-2203; Dec. Dig. 866.] 3. EXECUTORS AND ADMINISTRATORS 329(1) -SALE OF INTEREST OF HEIR FOR Debts. The existence of prior life estates, dower, or other interests, does not prevent a sale of the interest of an heir in his ancestor's estate for the payment of the heir's debts. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. 329(1).] 4. EXECUTORS AND ADMINISTRATORS 335 SALE OF INTEREST OF HEIR FOR DEBTS-PAR TIES. 5. EXECUTORS AND ADMINISTRATORS 338 PETITION TO REQUIRE SALE OF HEIR'S LANDS -DEFENSES. It is not a sufficient answer to a petition to require the administratrix of an heir to sell his interest in the ancestor's estate to pay the heir's debts that the administratrix has no means to commence proceedings, since the same condition would exist in every case under the statute, requiring the personal estate to be first exhausted. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1410-1416; Dec. Dig. 338.] seised at his death and to file a petition to sell the same to pay said claims, and the petitioners appealed. Andrew Kamerer was the owner in fee simple at the time of his death, on January 1, 1906, of lands in Stark county. He left Linda Kamerer, his widow, and his son Lewis A. Kamerer and five other children his heirs at law. By his will he gave all his property, real and personal, to his wife, Linda Kamerer, for life. By the seventh clause of his will, and the codicil thereto, he devised to his son Lewis A. Kamerer for life a portion of the lands after the death of Linda Kamerer, With remainder at the death of Lewis A. Kamerer to his children, if he should leave any children surviving him. In like manner by other clauses of the will he made similar devises of other portions of the lands to his other five children of life estates after the life estate of Linda Kamerer, with remainder to the children of the several de visees if they should leave children surviving them. Lewis A. Kamerer died intestate on November 26, 1914, leaving two children Surviving him. The widow and the other children are all living, and each of the other children has children now living. The defendant answered the petition, averring her willingness to sell any right, title, or interest that Lewis A. Kamerer had in any of the lands, but denying that he had any interest to be sold, and alleged that she had no money with which to commence proceedings or contest titles, and that the children of the devisees claimed title to the property, and all should have been made parties to the petition. [1-6] Upon the death of Lewis A. Kamerer leaving two children surviving him, the remainder after the life estate devised to him vested in the children. The remainders after the successive life estates of Linda Kamerer and the several living children are contingent, since it cannot be known until the death of the life tenants in whom the remainders will vest. Golladay v. Knock, 235 Ill. 412, 85 N. E. 649, 126 Am. St. Rep. 224; Collins v. Sanitary District, 270 Ill. 108, 110 N. E. 318; Barr v. Gardner, 259 Ill. 256, 102 N. E. 287; Smith v. Chester, 272 Ill. 428, 112 N. E. 325. There was no devise of the fee in the event that any of the devisees should die leaving no surviving children, and the reversion in fee descended to the testator's heirs. Peterson v. Jackson, 196 Ill. 40, 63 N. E. 643; Messer v. Baldwin, 262 Ill. 48, 104 N. E. 195; Bond v. Moore, 236 Ill. 576, 86 N. E. 386, 19 L. R. A. (N. S.) 540. One-sixth of that interest descended to Lewis A. Kamerer on the death of the testator, and he had that interest at the time of his death. The existence of life estates, dower, or other interests does not prevent a sale of the interest of Lewis A. Kamerer for the payment of his debts. Kenley v. Bryan, 110 Ill. 652. It was not necessary to make the children of the devisees parties to this petition, for the reason that titles could not be adjudicated, although they would be necessary parties to a petition to sell. The defendant answered that she had no means to commence proceedings, but that is not a sufficient answer, as the same condition would exist in every case under the statute requiring the personal estate to be first exhausted. The petition showed an interest in Lewis A. Kamerer in one-sixth of a reversion in fee in the lands devised to his brothers and sisters, but with children of all the devisees living, his interest might, as claimed in the answer, be of trifling value, and the defendant ought not to be compelled to institute proceedings without indemnity against costs and expenses of a proceeding and sale, as under the facts alleged a sale might not bring enough to pay such costs. The decree is reversed, and the cause remanded. Reversed and remanded. (276 III. 102) NOVITSKY V. KNICKERBOCKER ICE CO. (No. 10935.) (Supreme Court of Illinois. Dec. 21, 1916.) 1. CORONERS 18 INQUESTS - VERDICTFILING. recognize such witness in such sum as he may think proper to appear at the next term of the circuit court of the county, there to give evidence of the matter in question and not to depart without leave, except that in the county of Cook the recognizance shall be to the criminal shall refuse to enter into such recognizance it court of Cook county, and that if any witness shall be the duty of the coroner to commit the witness so refusing to the county jail, and the coroner shall carefully seal up and return to the the recognizance. Held, that as to every other clerk of the court the verdict of the jury and county in the state save Cook the verdict should be filed with the clerk of the circuit court, but in Cook county with the clerk of the criminal court, so an objection to the admission in evidence of a verdict of coroner's jury for Cook county that it was not filed in the office of the clerk of the circuit court will be treated as of the clerk of the criminal court of Cook an objection that it was not filed in the office county. [Ed. Note.-For other cases, see Coroners, Cent. Dig. §§ 20, 21; Dec Dig. 18.] 2. APPEAL AND ERROR 926(2)—REVIEW PRESUMPTIONS. Where the copy of the verdict certified by the coroner was offered in evidence and no objection was made that the original verdict was not produced, any objection that the document. produced was a certified copy was waived, so, as it did not appear from what paper or file the coroner made his certified copy, it will be presumed that he complied with Coroners' Act, §§ Cook county, filed the same with the clerk of 16 and 17, and, the verdict being rendered in the criminal court of Cook county. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3730, 3740; Dec. Dig. 926(2).] At an inquest to determine the cause of the death of a small boy run down by an ice wagon, the coroner's jury returned a verdict that deceased met his death from shock and crushing and run over by an ice wagon belonging to deinjuries received by being struck by a horse fendant, and that from the evidence presented the jury found that had not the street railboth sides of the street crossing the accident way company blockaded the street with cars on could not have happened, and in this respect the jury censured the street car company. The verdict as a whole was offered in evidence in an action against the ice company. Held that, while it is the duty of the coroner's jury to inquire into how and in what manner a death resulted so as to determine whether there is any proper cause for believing a crime has been committed, the coroner's jury has no juhence that portion of the verdict relating to risdiction to consider matters of civil liability; the street car company was surplusage, and the verdict, having been offered as a whole, was improperly admitted. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 1237, 1240; Dec. Dig. 332(1).j 5. EVIDENCE 332(1)-ADMISSIBILITY-VER DICT. Coroners' Act (Hurd's Rev. St. 1915-16. c. 31) §§ 16 and 17, declares that, if the evidence of any witness shall implicate any person as the unlawful slayer of the person over whom the inquisition shall be had. the coroner shall For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-35 Though the verdict of a coroner's jury was inaccurate in its description of the place of death, yet, where it identified the deceased and | verdict was returned for appellant and judgthe accident, it should not be excluded from ment was entered thereon. That judgment evidence on that ground. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 1237, 1240; Dec. Dig. 332(1).] 6. TRIAL 253(9) — INSTRUCTIONS IGNORING ISSUES. In an action for the killing of plaintiff's intestate, who was run down by defendant's ice wagon, where it was plaintiff's theory that the driver was intoxicated and was driving at a reckless speed on a street which he knew was at all times a crowded thoroughfare and which at that time was obstructed by street cars on both sides of the crossing, instruction, that if the driver upon discovering plaintiff's intestate used all means to avoid an accident defendant was not liable, is erroneous, disregarding the negligence relied on. (Ed. Note.-For other cases, see Trial, Cent. Dig. § 620; Dec. Dig. 253 (9).] 7. APPEAL AND ERROR 882(12)-REVIEW HARMLESS ERROR. Appellant cannot complain of the giving of an instruction on behalf of appellee where he requested a similar instruction. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3602; Dec. Dig. 882 (12).] 8. APPEAL AND ERROR LAW OF CASE. was reversed by the Appellate Court for the First District and the cause was remanded for another trial. Novitsky v. Knickerbocker Ice Co., 180 Ill. App. 188. On the third trial the verdict was for appellee. The judgment entered upon this verdict was affirmed by the Appellate Court for the First District, and a certificate of importance was granted. This appeal followed. Appellant's intestate was a boy of less than seven years of age and was killed by being run over by one of the ice wagons of appellee near the intersection of Archer avenue and South State street, in the city of Chicago. South State street runs north and south. At or near the same point Nineteenth street, running east and west, intersects it, and Archer avenue extends southwest; the junction of the center of Archer avenue and State street being a few feet south of the junction of the center of Nineteenth and South State streets. A double-track street car line ex1099(7)-REVIEW-tends along the center of Archer avenue, turning north as it enters South State street and forming a junction with a double-track street car line extending both north and south in the center of South State street. The boy was run over and killed at or near the north and south crosswalk along the west side of South State street and north of the street car tracks in Archer avenue. At the time of the accident some street cars were standing Where judgment for plaintiff on previous trial of an action for wrongful death was reversed by the Appellate Court because of exclusion of the verdict of the coroner's jury, such judgment does not become the law of the case so that the admission of the verdict which contained improper matters could not be complained of on a subsequent appeal by plaintiff. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4376; Dec. Dig. 1099(7).] 9. APPEAL AND ERROR 1099(9)-REVIEW LAW OF CASE-CROSS-Error. Where a judgment for plaintiff on previous trial was reversed by the Appellate Court, failure of plaintiff to assign cross-errors as to instructions given for defendant does not make such instructions the law of the case precluding complaint by plaintiff on appeal from a subsequent adverse judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4377; Dec. Dig. 1099 (9).] Appeal from Second Branch Appellate Court, First District, on Error to Superior Court, Cook County; Marcus Kavanagh, Judge. on the tracks in Archer avenue as they extended into State street. It is a disputed question how many cars were thus standing on the tracks-whether one on the north track and one or two on the south trackand whether they extended west beyond the crosswalk. Both the front and rear wheels of the ice wagon passed over the body of the boy and he was instantly killed. [1, 2] The coroner held an inquest on the body, and one of the grounds urged for reversal is that the court erred in admitting the coroner's verdict in evidence. It is first contended that the verdict was not admissible because it does not appear that it had been filed in the office of the clerk of the circuit court. This objection is not accurately made. The coroner of Cook county is not required to file such a verdict with the clerk of the circuit court, but is required to file the same Edgar L. Master, of Chicago, for appellant. with the clerk of the criminal court of Cook Miller, Gorham & Wales and McKinley & Hansen & Schmauch, all of Chicago, for ap-Act are as follows: pellee. Action by Morris Novitsky, administrator, against the Knickerbocker Ice Company. A judgment for defendant was affirmed by the Appellate Court, and plaintiff appeals. Reversed and remanded. COOKE, J. Appellant, Morris Novitsky, as administrator of the estate of Samuel Novitsky, deceased, brought suit in the superior court of Cook county against appellee, the Knickerbocker Ice Company, to recover damages for the death of his intestate. Three trials have been had. Upon the first trial the jury disagreed. Upon the second a county. Sections 16 and 17 of the Coroners' "Sec. 16. If the evidence of any witness shall implicate any person as the unlawful slayer of the person over whom the said inquisition shall be held, the coroner shall recognize such witness in such sum as he may think proper, to be and appear at the next term of the circuit court for the said county, there to give evidence of the matter in question, and not depart without leave, except that in the county of Cook the recognizance shall be to the criminal court of Cook county. streets, on October 5, A. D. 1903. And from the evidence presented to us this jury finds that had the C. C. S. R. W. Co. not blockaded Archer avenue with cars on both sides of street crossing this accident would not have occurred and deceased not lost his life in such a manner and in this respect censure the above-named company." It is contended that the last sentence of the verdict above quoted was not a proper finding to be made by the coroner's jury, and that the admission of the verdict in evidence, including that finding, was prejudicial error. By the provisions of these sections a coroner is required to recognize any witness who testifies to any fact implicating any person as the unlawful slayer, to be and appear at the next term of the circuit court of the verdict of a coroner's jury has been filed We have repeatedly held that when the county, except in the county of Cook the with the clerk of the circuit court it berecognizance is required to be made to the comes a public record, and as such is comcriminal court of Cook county. By section petent evidence to be considered as tending 17 the coroner is required to seal up and to prove any matter properly before the correturn to the clerk of the court the verdict oner which appears on the face of the inof the jury and the recognizances. It is ap-quest. United States Life Ins. Co. v. Vocke, parent that this statute requires the coroner 129 Ill. 557, 22 N. E. 467, 6 L. R. A. 65; Pyle to return the verdict to the clerk of the court to which the recognizances are required to be made. This distinction has not been pointed out in any of the cases dealing with the filing of a verdict of a coroner's jury or its admissibility in evidence. The discussion in those cases has been general, and it has been broadly stated that the statute requires the verdict of the coroner's jury to be filed with the clerk of the circuit court. This statement is accurate as to every county in the state except the county of Cook. We will consider this point as though counsel were objecting that it did not appear that the verdict was filed with clerk of the criminal court of Cook county. v. Pyle, 158 Ill. 289, 41 N. E. 999; Grand Lodge I. O. M. A. v. Wieting, 168 Ill. 408, 48 N. E. 59, 61 Am. St. Rep. 123; Stollery v. Cicero St. Ry. Co., 243 Ill. 290, 90 N. E. 709; Foster v. Shepherd, 258 Ill. 164, 101 N. E. 411, 45 L. R. A. (N. S.) 167, Ann. Cas. 1914B, 572; Devine v. Brunswick-Balke Co., 270 Ill. 504, 110 N. E. 780. The statute provides that it shall be the duty of the jury at a coroner's inquest to inquire how, in what manner, and by whom or what the dead body came to its death, and of all other facts of and concerning the same, together with all material circumstances in any wise related to or connected with the said death, and make up and sign a verdict and deliver the same to the coroner. The province of a coroner's jury is to determine whether there is probable cause for believing that a crime has been committed, and, if the evidence of any witness shall implicate any person as the unlawful slayer of the person over whose body the inquisition is held, it is the duty of the coroner to recognize such witness to appear at the next term of the circuit or criminal court. If the person implicated by the inquest as the unlawful slayer or as an accessory is not in custody, it is the duty of the coroner to cause such person to be apprehended and committed until discharged by law. The oath required by the statute for each member of the coroner's jury to take is that he will diligently inquire and true presentment make how and in what manner and by whom or what the person over whose body the inquisition is held came to his death. The jury had fully complied with this oath [3, 4] The coroner's verdict found: when it stated that Samuel Novitsky came "That the said Samuel Novitsky, now lying to his death from shock and crushing indead at 1824 State street, in said county of juries received, caused by being struck by Cook, state of Illinois, came to his death on the a horse and run over by the wagon belonging 5th day of October, A. D. 1903, in Dr. Mur- to appellee and driven by Martin Johnson on ray's office, corner State and Twentieth streets, from shock and crushing injuries received, Archer avenue near the corner of State and caused by being struck by a horse and run over Eighteenth streets, on October 5, 1903. Had by the two left-hand wheels of ice wagon No. the jury believed, from the testimony before 214 belonging to the Knickerbocker Ice Company and driven by Martin Johnson on Archer it, that Martin Johnson, the driver, or any avenue near the corner of State and Eighteenth one else, was criminally liable for the death The instrument offered was a certified copy of the verdict, being certified by the coroner. The record discloses that no objection was made that the original verdict was not produced, and objection that the document produced was a certified copy was waived. The only objection made was as to the materiality and competency of the instrument. It does not appear from what paper or file the coroner made his certified copy-whether from a file in his own office, or from the verdict required by the statute to be filed with the clerk of the criminal court of Cook county. It will be presumed that the coroner complied with the statute and filed the verdict with the clerk of the criminal court of Cook county and that the coroner made his certified copy from that file. By waiving objection that the document produced was a certified copy made by the coroner, appellant became bound by this presumption. |