« PreviousContinue »
of the boy, it would have been its duty to body, according to the testimony of the va
tiff's intestate suddenly started
the introduced, had the street railway company street ahead of defendant's wagon in question, not blockaded the tracks with cars on both and that the driver of said wagon did not see sides of the street crossing the accident would or have a reasonable opportunity to see that not have occurred and deceased would not the plaintiff's intestate intended so doing in
time to avoid a collision with the said deceased, have lost his life, and the censure of the then your verdict must be not guilty." street railway company, are mere surplusage, “(12) The court instructs you that if you be and it was not proper to admit the verdict lieve, from the evidence, that at and just be. in evidence with those portions included. As fore the time of the accident in question there
was one or more street cars standing in Archthe verdict was offered as a whole, and un er avenue a little west of the west line of doubtedly with a desire to present these very State street, and if you further believe that portions of it for the consideration of the the plaintiff's intestate, Samuel Novitsky, ran
across Archer avenue in a northerly or northjury, the objection of appellant to its admis-easterly direction west of said street car or cars sion should have been sustained.
and near to the same, and if you further believe (5) The verdict is inaccurate, as it de- that the said Samuel Novitsky came within the scribed the accident as having occurred at or range of the vision of the driver of the defend
ant's wagon when said wagon and team were near the corner of Eighteenth street, where so close to the said Samuel Novitsky that the as it was near the corner of Nineteenth said driver by the exercise of ordinary care in street, on Archer avenue. We do not regard driving said team and in trying to stop said this variance as of such materiality as to fatally injuring said Samuel Novitsky, then
team was unable to avoid colliding with and make the proper portions of the verdict in your verdict in this case must be not guilty. admissible, as there is no contention that this and if you believe the facts as above stated, is not the verdict of the jury impaneled to you cannot find the defendant guilty, although
you should believe that the defendant's driver make the inquisition regarding the death of was under the influence of liquor. appellant's intestate.
“(13) The court instructs you that if you  It is further contended that the court believe, from the evidence, that the plaintiff's.
intestate collided with defendant's team at or erred in giving defendant's instructions pum about the westerly end of one or more street bered 2, 12, and 13. The testimony offered cars standing in Archer avenue entirely west on the part of appellant tended to prove that of State street, and if you further believe that Martin, the driver of the ice wagon, and the westerly end of said car or cars and came
the said Samuel Novitsky ran northerly from his helper, were coming south on State street within the range of vision of the driver of deat a rapid rate of speed; that when Nine fendant's wagon when said team and wagon teenth street was reached the driver turned were so close to said Samuel Novitsky that the
driver of said wagon, by exercising ordinary his horses as though he intended going west
care in driving and in attempting to stop, could on that street; that be then turned in a cir- not avoid running into and fatally injuring said cle to the south, made another circle to the Samuel Novitsky, then your verdict must be not west and entered the north side of Archer guilty; And if you believe the facts as above
stated, you cannot find the defendant guilty avenue, some of the witnesses describing the even though you should believe the defendant's course he pursued in making these turns as driver was under the influence of liquor." forming the letter S; that the driver and Each of these instructions directs a verhis helper were both sitting on a seat at the dict, and each of them ignores entirely the front end of the wagon with a high parti- testimony on the question of the negligence tion at the back of the seat; that the driv. of the driver and the lack of the exercise of er was driving with a loose line, so that he ordinary care on his part, offered by appelcould not quickly or properly control his lant. It was not sufficient that the driver team; that the driver was intoxicated and of the wagon should begin to exercise ordihis helper was whipping the horses with the nary care from the moment the boy came loose ends of the lines; that, as the wagon within the range of his vision. He could passed the street cars standing on the tracks see the cars standing in the street at or near in Archer avenue near the crosswalk, ap- the crosswalk. He admitted that he knew pellant's deceased came past the west end that this was a crowded thoroughfare at all of the cars standing in Archer avenue; that times of the day and that many people were he collided with one of the horses and was liable to be crossing Archer avenue on the knocked down and run over by the wagon, west side of State street. It was incumbent
proaching this crosswalk and in passing these that a violation of the rule against perpetuities cars, as well as to exercise ordinary care may possibly happen. after anyone came in view around the west (Ed. Note.-For other cases, see Perpetuities,
Cent. Dig. 88 5, 6; Dec. Dig. O4(2).] end of the cars. By these instructions the
2. PERPETUITIES 4(7) WILL Conjury were told, in effect, that the only duty
STRUCTION. devolving upon the driver was to begin to
A will, after making particular bequests, disexercise ordinary care after he saw the boy, posed of the residue of the testator's estate by without regard to the rate of speed he was dividing it into four equal parts. It gave the traveling, the manner in which he was han- first part to the testator's brother for life, and,
subject to such life estate, gave for life onedling his team, his condition as to sobriety, fifth of such first part to the brother's son, oneand as to whether, up to that point, he had tenth to his grandson, one-tenth to his grandbeen in the exercise of ordinary care. The daughter, one-fifth to each of his sons, and onecourt erred in giving these instructions.
fifth to his daughter, and then, subject to such
life estates, gave such first part "to the chil.  The seventeenth instruction told the dren of said children and grandchildren, jury that if they believed, from the evi- the child or children of any deceased child to
and in the dence, that the parents of the deceased, or take the parent's part, either of them, were negligent in allowing above named shall ultimately die without de
event any of said children or grandchildren him to go upon the street at the time and scendants or descendant him or her surviving, place of the accident, they should find appel- his or her portion shall go
to his or lee not guilty. It is complained that there her brother or brothers, sister or sisters, or in
case both of the said grandchildren shall so die is no evidence upon which to base this in- without descendants or descendant then to his struction. Appellant is in no position to com- or her uncles and aunt and their descendants, plain of the giving of this instruction on be- respectively,
for life and in remainhalf of appellee, as he asked and had given Held, that the manner in which the estate men
der to their respective children, as aforesaid.” an instruction submitting this same question tioned in the final devise went to the uncles to the jury.
and aunt and their descendants was to the  Appellee contends that the admission uncles and aunt for life and any remainder to of the coroner's verdict in evidence is no estates created thereby must vest within the
their respective children, and that therefore the longer open to question, for the reason that time limited by the rule against perpetuities. on the first appeal to the Appellate Court [Ed. Note. For other caxs, see Perpetuities, the case was reversed for the refusal of the Cent. Dig. $ 12; Dec. Dis. Om 4(7).] court to admit the verdict in evidence, and 3. WILLS 443_CONSTRUCTION. that that holding has become the law of the A will will not be given a construction incase and is binding upon this court. This consistent with the decedent's general scheme
for the disposition of his property unless the lanquestion has been conclusively settled con- guage used imperatively requires it and can be trary to the contention of appellee. Bailey given no other reasonable construction. V. Robison, 244 Ill. 16, 91 N. E. 98, 42 L. R. A. (Ed. Note.-For other cases, see Wills, Cent. (N. S.) 305.
Dig. & 960; Dec. Dig. Om443.]  Appellee also contends that the three 4. PERPETUITIES m4(7)—DEVISES-VALIDITY. Instructions, numbered 2, 12, and 13, com Where the devises to surviving brothers plained of, were given on the second trial, and sisters were to take effect on the death of a
life tenant living at testator's death, they were and as appellant on the first appeal to the not violative of the rule against perpetuities on Appellate Court failed to assign cross-er- the ground that other brothers and sisters might rors questioning the action of the court in be born after decedent's death, and that a progiving them he is now estopped to question and sisters should be joint tenants violated such
vision that husbands and wives of the brothers those instructions. There is no force to this rule because the brothers and sisters might contention. Appellant was not injured by marry spouses born after testator's death. the giving of these instructions upon the sec (Ed. Note.-For other cases, see Perpetuities, ond trial, as the verdict and judgment were Cent Dig. $ 12; Dec. Dig. 4(7).] in his favor. He has the right now, judg.
Appeal from Circuit Court, Morgan Counment having been rendered against bim, to ty; Norman L. Jones, Judge. complain of the action of the court in giving
Bill by George Wood against Iren Wood these instructions.
and others. From decree for defendants, For the errors indicated, the judgments complainant appeals. Affirmed. of the Appellate and superior courts are reversed, and the cause is remanded to the
M. T. Layman, of Jacksonville, for appelsuperior court for a new trial.
lant. Worthington, Reeve & Green, of JackReversed and remanded.
sonville, for appellees.
DUNN, J. James Wood died on March 26, (276 III, 164)
1915, leaving a will. His heirs were his brothWOOD v. WOOD et al. (No. 10968.) ers, Richard S., Iven, and George, his sister, (Supreme Court of Illinois. Dec. 21, 1916.)
Julia A. Beekman, the descendants of his 1. PERPETUITIES C4(2)
deceased brothers, Milton and David, and
DEVISE OF INTEREET-VALIDITY.
the descendants of two half-brothers named A devise is roid where the interests devised Smith. He left a widow, who renounced the are dependent on testamentary provisions such / will. His estate, worth about $225,000, con
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
sisted mostly of real estate. His brother "Twelfth. Lest the language of my will may George, and the descendants of his brother not be entirely clear, I will and direct that it Milton and of the deceased half-brothers, eral portions are devised to the succeeding gen.
shall in all cases be taken to mean that the sevtook nothing under the will. George filed a erations per stirpes and not per capita, where, bill in the circuit court of Morgan county as in two instances, two generations are named, praying that the will be set aside on the so that the members of each generation shall
share and share alike in the portion that is or ground that it violated the rule against per- would have been devised to their parent.” petuities. A demurrer was sustained to the
Other provisions of the will are not deembill, it was dismissed for want of equity, and ed necessary to notice. Five codicils were the complainant appealed.
subsequently added to the will, one of which The will makes a number of devises and refers to the fact that the testator did not bequests which are not involved in this pro- mention his brother George or the descendceeding. The part of the will which is ques-ants of his deceased brother Milton as devtioned is that which disposes of the residue isees under his will for reasons which seem of the estate, which the testator divided spe- sufficient to him and that he mentions them cifically into four equal parts, making provi- simply for the purpose of emphasizing that sion for the equalization of the parts in ac- he has purposely selected the persons named cordance with his estimate of the value of as devisees as the sole and only persons and the property included in each part. Para- corporations among whom his estate is to be graph 8 then disposes of the first part as distributed. Another codicil modifies the will follows:
so as to direct that the wives of Iven Wood “Eighth. Said first part, subject to said con- and Richard Wood shall be joint tenants ditional charge, I give, devise and bequeath to with their respective husbands, and the my brother David Wood for and during his natural life. Şubject to the life estate of my said husband of Julia A. Beekman shall be a joint brother I give, devise and bequeath one-fifth of tenant with her, with the right of survivorsaid first part to his son Ballard Wood, one-ship for life. tenth to his grandson, Albert Stice, one-tenth to
(1) The circuit court held that the final de. his granddaughter, Bertha Stice, one-fifth eacb to his sons Samuel Wood and Richard Wood, vise in the eighth paragraph of the will, in and one-fifth to his daughter, Martha Wood, for case of the death of both of the grandchiland during their respective natural lives. Sub- dren of David Wood without descendants, to ject to the life estate of my said brother David Wood, and to the respective life estates in his their uncles and aunt and their descendants, children and grandchildren above named, I give, was a violation of the rule against perpetui. devise and bequeath said first part to the chil- ties and therefore void, but that the remaindren of said children and grandchildren, re- der of paragraph 8 was valid; that the valid spectively, above named, lawfully begotten, the child or children of any deceased child to take provisions of said paragraph and the said the parent's part in equal shares, share and void limitation over are separable; that the share alike, and in the event any of said corpus of the estate was disposed of by the children or grandchildren above named shall valid provisions of paragraph 8; and that ultimately die without descendants or descendant him or her surviving, his or her portion no other provision of the will violates the shall go, irrespective of the date of such death, rule against perpetuities. to his or her brother or brothers, sister or sis
“The rule against perpetuities is thus stated: ters, or in case both of said grandchildren shall •No interest subject to a condition precedent is so die without descendants or descendant, then good unless the condition must be fulfilled, if to his or her uncles and aunt and their descend, at all, within twenty-one years after some life ants, respectively, in equal shares, share and in being at the creation of the interest.' No share alike, for life and in remainder to their interest is good unless it must vest, if at all, respective children, as aforesaid."
not later than twenty-one years after some life Paragraph 9 disposes of the second part on Perpetuities, Š 201: Owsley v. Harrison,
in being at the creation of the interest.' Gray to his brother Iven, Iven's three sons and 190 Ill. 235 (60' N. E. 89); Lawrence v. Smith, daughter, and one grandson and one grand- 163 Iu. 149 [45 N. E. 259]; Howe v. Hodge, daughter, in the same language as paragraph 152 Ill. 252 138 N. E. 1083]. If provisions of
a testamentary character are such that under 8, except that in the final clause the words them a violation of the rule against perpetuities "and their descendants,” after the words "his may possibly happen, then the devise of interor her uncles and aunt,” are omitted. Para- ests dependent upon such provisions is void. graph 10 disposes of the third part of the Am. St. Rep. 86), and cases cited supra.". Quin
Eldred v. Meek, 183 Ill. 26 (55 N. E. 536, 75 residue to testator's brother Richard and his lan v. Wickman, 233 11. 39, 84 N. E. 38, 17 L. three daughters in substantially the same lan- R. A. (N. S.) 216. guage, except that, there being no grandchil  Counsel for the appellant insists that dren involved, the devise in case of the death the last clause of paragraph 8 of the will is of both grandchildren without descendants obnoxious to the above rule because he says, contained in paragraph 8, was omitted. The it devises an estate upon the death of the fourth part was disposed of by the eleventh survivor of the two grandchildren without paragraph of the will to the testator's sister, descendants, to the descendants of the uncles Julia A. Beekman, and her three children, and aunt of such survivor for life with the in substantially the same language as the remainder to the children of such descendthird part was disposed of by paragraph 10. ants, and the tenants of the life estate so The following is the twelfth paragraph of the created may be the descendants of the
death, while their children who are to take mentioned in the preceding part of the the remainder may not be born until more clause. Referring back, we find that the de than 21 years after the death of the grand- vise to the uncles and aunt and their de children of David Wood, thus postponing the scendants is to Ballard Wood, Samuel Wood, vesting of the remainder in them beyond the Richard Wood, and Martha Wood for life period fixed by the rule. If this view of with remainder to their respective children, the estate intended to be created is correct, the child or children of any deceased child the conclusion that it violates the rule fol- to take the parent's part, and, in the event lows, and this view was taken by the circuit any child shall die without a surviving decourt; but in our judgment it is incorrect. scendant, his part to go to his or her brother The general scheme of the testator for the or brothers, sister or sisters. It is to this disposition of his property is manifest.devise that the testator refers when making After providing for certain specific legacies the devise over upon the death of both the and expenditures, he intended to divide the grandchildren without issue, and to save the residue of the estate equally among his repetition of the prolix terms necessary to brothers David, Iven, and Richard and his provide for the various contingencies consister, Julia, giving to each a one-fourth part templated he directed that the estate should of his estate for life, with remainder after go “to his or her uncles and aunt and their the death of each to their respective chil- descendants, respectively,
for life dren named in the will, in equal parts, for and in remainder to their respective children, life, with final remainder in fee, after as aforesaid.” The manner in which the esthe death of each of such children to their tate went to the uncles and aunt and their respective children constituting the third descendants, as aforesaid, was to the uncles generation, treating the grandchildren of his and aunt for life and in remainder to their brothers George and Iven the same as chil- respective children, and this was the mandren, except that each took only half of a ner in which the estate mentioned in the child's share. David died in the testator's final devise was intended to go. lifetime, so that his life estate never took  This construction is consistent with the effect; but the construction of the will is clearly manifest general intent of the testanot affected by that fact. Upon the testa- tor that his sister and each of his named tor's death the life estate in the part of the brothers should take an estate for life; that property included in paragraph 8 of the will the next generation, being their children who vested in the four children and two grand- are named, including the four grandchildren children of David Wood, and paragraph 8 named, should next take a life estate; and disposed of the remainder in the life estate that the children of this generation, being of each child and grandchild to his or her the third generation, should take the fee. A children, provided that, if any such children construction which would give to the chilshould have died before the termination of dren of one of David Wood's children who the life estate, the child or children of such had died the fee in the portion of the propdeceased child should take the parent's part. erty in which his parent had had a life esIt was then provided that, if any of the chil- tate, but only a life estate in the portion in dren or grandchildren of David Wood should which the grandchildren had had a life esdie without descendants surviving, his or her tate, would be unreasonable. No purpose of portion should go to his or her brother or the testator in making such an irrational brothers, sister or sisters. The further pro- devise is apparent, and a construction which vision was made “In case both of said grand arrives at a result so inconsistent with the children shall so die without descendants or general scheme of the testator for the disdescendant.” The word "so" here refers back position of his property will not be adopted to the expression in the preceding clause, “in unless the language used imperatively rethe event any of said children or grandchil-quires it and can be given no other reasondren above named shall ultimately die with-able construction. out descendants or descendant him or her If the last devise in paragraph 8 takes surviving,” and indicates that the death with effect, the estate thereby created, upon the out descendants referred to was death with death of the last surviving grandchild of out descendant or descendants surviving. The David Wood, will vest at once for life in devise in case both of said grandchildren Ballard Wood, Samuel Wood, Richard Wood, should so die without descendant or descend- and Martha Wood, with remainder in fee to ants was “then to his or her uncles and their children. If any of them are without aunt and their descendants, respectively, children, this remainder will be contingent;
for life and in remainder to their but it must rest, if at all, during the lives of respective children, as aforesaid.” The ex- the persons named. If any of them are dead, pression “as aforesaid” refers back to the the fee will vest at once, on the death of the previous devise to the uncles and aunt of the survivor of the grandchildren, in their chilgrandchildren and their descendants, and in- dren. The estates created by this paragraph dicates that the gift over after the death must therefore vest within the time Umited without descendants of both the grandchil- by the rule. dren is of the same character as the devise Nothing further need be said about the re to the uncles and aunt and their descendants maining paragraphs, for if the estates limit
ed by paragraph 8 are valid there is no rea-fof the railroad company for delinquent taxes son for holding those limited by the other levied for park purposes in the city of Taylorparagraphs invalid.
ville, the relator appeals. Affirmed.  It is suggested that the devise, in cer
Edward E. Adams, of Taylorville, for appeltain contingencies, to surviving brothers and lant. John E. Hogan, of Taylorville, for apsisters, violates the rule because other broth
pellee. ers and sisters may be born after the death of the testator, and that the provision that husbands and wives shall be joint tenants
CARTER, J. The Wabash Railroad Comalso violates the rule because the brothers pany, appellee, filed in the county court of and sister might marry spouses born after Christian county in April, 1916, objections the death of the testator. The will speaks to the rendition of judgment against certain from the testator's death, and therefore re- of its property for delinquent taxes levied fers to wives and husbands who were such for park purposes in the city of Taylorville, wives and husbands at that time. All the in said county. The objections were susdevisees to surviving brothers and sisters tained and judgment refused as to said tax were to take effect upon the death of a life for park purposes, amounting to $89.43. tenant living at the testator's death and This is an appeal from that decision. were therefore within the rule.
The city of Taylorville passed its tax levy The circuit court was wrong in its con- ordinance for the annual tax, including $5,500 clusion as to the eighth paragraph of the levied upon the taxable property of the city will but right in sustaining the demurrer. for park purposes. The sole question involvThe will did not violate the rule against per-ed in this appeal is whether the amount of petuities, and the decree will be affirmed. taxes for park purposes in cities under 50,000 Decree affirmed.
population in this state should be controlled
by the act with reference to tax for park (276 III. 92)
purposes, approved and in force June 29, PEOPLE ex rel. DAVIS, County Collector, v. 1915 (Laws of 1915, p. 291), which provides,
WABASH R. CO. (No. 10944.) among other things, that cities of less than (Supreme Court of Illinois. Dec. 21, 1916.)
50,000 population may levy a park tax, not to 1. MUNICIPAL CORPORATIONS Om958_TAXES exceed three mills on the dollar, on the prop-STATUTORY PROVISION.
That Act June 29, 1915. (Laws 1915, p. 291). erty in said city or village, and providing, authorizing a park tax by cities of less than 50,- further, “that if the inhabitants of any city 000 population, provided the inhabitants of any or village having a population of 1,500 or city or village having a population of 1,500 or more shall by vote so determine, said annual more shall by vote so determine, was passed as tax may be levied in addition to or in excess an emergency act, does not limit its application to cities of less than 50,000 population where of taxes levied as limited by section 1 of such emergency existed.
article 8 of 'An act for the incorporation of [Ed. Note.-For other cases, see Municipal cities and villages,' approved April 10, 1872, Corporations. Cent. Dig. 88 2023–2037; Dec. and the amendatory acts thereto,” or whethDig. Cam958.] 2. STATUTES O 159_REPEAL BY IMPLICATION.
er they should be controlled by the provisions Where two acts are seemingly repugnant, of the act of 1901, as amended in 1905, 1909, they should be so construed, if possible, that the 1913, and 1915. Laws of 1915, p. 572. This later may not repeal the earlier by implication. latter act provides, among other things, that
[Ed. Note.-For other cases, see Statutes, in reducing the rate per cent. of the tax levied Cent. Dig. $ 229; Dec. Dig. 159.) 3. STATUTES 161(1) - REPEAL
for county purposes “the rate per cent. of the ENACTMENT.
tax levy for city or village purposes (exclusive Where it is impossible to give effect to two of library,
school and park puracts, the later in point of time will prevail.
exclusive of the taxes (Ed. Note.-For other cases, see Statutes, levied for the payment of the principal of Cent. Dig. 88 230, 233, 234; Dec. Dig. 161(1).]
and the interest on bonded, indebtedness and 1. STATUTES Omw 22544 VALIDITY OF Tax judgment),
in cities and villages LAWS-TIME OF TAKING EFFECT.
having a population of less than 150,000 The Park Tax Law (Laws_1915, p. 291), shall not be reduced below a rate of $1.20 on passed as an emergency, act June 29, 1915, each $100 assessed value,” etc. It is conceded controls Act June 10, 1915 (Laws 1915, 572), relating to the levy and extension of taxes, that the population of the city of Taylortaking effect July 1, 1915, in so far as the two ville is 5,442; that the tax levy for park acts cannot be harmonized.
purposes is in excess of $1.20 on the $100; [Ed. Note.--For other cases, see Statutes, that no vote authorizing the tax was taken Cent. Dig. 304; Dec. Dig. Om 22574.]
in the city of Taylorville before the levy; Appeal from Christian County Court; C. that if the tax levy for park purposes in said A, Prater, Judge.
city of Taylorville must be controlled by said Proceeding by the People, on the relation Park Tax Law approved June 29, 1915, then of J. J. Davis, County Collector, against the the objection of appellee was rightly sustain. Wabash Railroad Company. From the refused in the county court. al to render judgment against the property The act authorizing a two mill tas for