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which particular section of the statute was paign, etc. “A material matter in issue in charged to have been violated in order to said cause" is not different from a “material advise defendant of the nature of the charge question.” It was said in Young v. People, of perjury against him. The circuit court | 134 Ill. 37, 24 N. E. 1070, that the defendhas jurisdiction of all misdemeanors, and ant may have sworn falsely in a material therefore had jurisdiction of this charge. matter and at the same time not have sworn It had jurisdiction to try the defendant for falsely in a matter material to the issue ; a misdemeanor without a jury, and its ju- and this is true because the material matter risdiction was not affected whether a jury may not have been in issue, but it cannot be was waived or uot. If the defendant was true that the defendant swore falsely on the tried by the court without a jury having trial as to a material matter in issue and been waived, as provided in the statute, and at the same time did not swear falsely in a convicted of the misdemeanor charged, his matter material to the issue. The second conviction was erroneous, but not void, and count of the indictment avers the defendif there was corrupt and willful false swear-ant's knowledge of the falsity of his testiing in a matter material to the point in 18- mony, for in that count, after averring that sue on such trial, it was perjury.

the defendant testified that he had not sold [3] It is argued that the indictment in any intoxicating liquor in the town of Chamthis case does not state the issue in the paign, it is averred that in truth and in proceeding in which the perjury was com- fact, as he then and there well knew, he had mitted, and the testimony has not been set sold intoxicating liquor in the town of forth in such a way that this court can see, Champaign within 18 months prior to Janufrom an inspection of the indictment, that ary 27, in the year of our Lord 1916. the alleged false testimony was material to [4, 5] It is insisted that the indictment is the point in issue. There are two methods bad because in neither count is it averred of averring the materiality of the testimony that the alleged false testimony was feloniupon which perjury is assigned: One by ously given. It was held in Ervington v. setting forth the issue and the matter People, 181 Ill. 408, 54 N. E. 981, that an insworn to, so that the court can see that the dictment for a felony must allege that the testimony was material: the other, by stat- | act was done feloniously. That was an ining the particular testimony charged to be dictment for an assault with intent to murfalse, with the allegation that such testimo- der, which was a felony at common law. In ny was material. An indictment which Bolen v. People, 184 Ill. 338, 56 N. E. 408 charges that the testimony alleged to be an indictment for incest), it was contended false was material to the issue on the trial that the indictment must state that the ofof the cause charges sufficiently that the fense was feloniously committed, but the evidence was "in a matter material to the objection was not sustained, for the reason issue or point in question.” People v. Three that incest is a statutory offense and not a witt, 251 Il. 509, 96 N. E. 242. In Kizer felony at common law. The case of Ervingv. People, 211 ill. 407, 71 N. E. 1035, the in- ton v. People, supra, was cited, the court dictment, after stating the court in which saying that the rules were different where the cause was pending, the names of the the offense was a felony at common law. parties, and that the charge was unlawfully Perjury was not a felony at common law. keeping a gaming house and for unlawfully 30 Cyc. 1399; 22 Am. & Eng. Ency. of Law gaming, averred that:

(2d Ed.) 682; 2 Bishop on Crim. Law (2d "It then and there became and was a ma- Ed.) 8 885. The indictment was in the words terial question whether the said John Kizer told one Dennis Lyons," on, etc., "that he, the of the statute, “willfully, corruptly and said John Kizer, was the proprietor of a cer- falsely,” and every indictment is to be tain gaming house, etc.

deemed sufficiently technical and correct Many decisions are considered in that which alleges and charges the offense in the opinion, the allegation was held sufficient, language of the statute creating the otfense. and the indictment was sustained. The lan We have considered only the second count. guage in the second count of the indictment One good count is enough to sustain the in the present case is that “it became and judgment. was a material matter in issue in said The motion in arrest was properly overcause as to whether or not the said Charles ruled, and the judgment of the circuit court Ashbrook” had sold any intoxicating liquors will be affirmed. within the limits of the town of Cham Judgment affirmed.

re

(276 Ill. 416)

Error to Circuit Court, Stark County; WARD V. CAVERLY et al. (No. 10958.) Clyde E. Stone, Judge.

Bill by Mary J. Ward against Vada Cav. (Supreme Court of Illinois. Dec. 21, 1916. Rehearing Denied Feb. 8, 1917.)

erly and others. Decree dismissing bill, and

plaintiff brings error. Reversed and 1. WILLS 439_CONSTRUCTION-INTENT. manded, with directions.

Testator's intention as expressed in the will must prevail, if it is consistent with the settled T. W. Hoopes and F. B. Brian, both of rules of law.

Toulon, for plaintiff in error. J. H. Rennick [Ed. Note.-For other cases, see Wills, Cent. and W. W. Wright, both of Toulon, for de Dig. 88 952, 955, 957; Dec. Dig. Om439.] fendants in error. 2. WILLS 441–CONSTRUCTION-INTENT. Testator's intent must be ascertained by con

CARTER, J. This was a bill filed in the struing the language of the will in the light of the surrounding circumstances; the court being circuit court of Stark county by plaintiff in entitled to receive such extrinsic evidence as will error, Mary J. Ward, for the construction of put it in testator's place.

the will of Charles D. Ward, her deceased [Ed. Note. For other cases, see Wills, Cent. husband. Demurrers were filed by all the Dig. $ 958; Dec, Dig. 441.]

defendants, and one of them also filed an an3. WILLS Oma 616(1) – TESTAMENTARY POWERS swer by his guardian ad litem. On a hear. -ESTATES CREATED.

ing the court entered a decree construing the A will may create a life estate in realty with power to sell and convey the fee before the de- will, but dismissed the bill for want of equitermination of the life estate, and may also cre- ty. From that decree this writ of error was ate a life estate in personalty of a durable na- sued out. ture with power to sell same, and a limited remainder after termination of the life estate in that at the time of his death, December 24,

From the allegations of the bill it appears wbatever remains.

[Ed. Note.--For other cases, see Wills, Cent. 1914, testator owned certain lots, or portions Dig. 88 1418, 1428-1430; Dec. Dig. Om 616(1).j thereof, in Toulon, in said county, and also 4. COURTS m107-OPINIONS-CONSTRUCTION that there were about $900 of debts against

personal property valued at about $1,800, and AND OPERATION.

The language of a judicial decision must be the estate. The will was dated February 22, construed with reference to the facts of the par. 1913, and, after providing for the payment ticular case, and limited to those points of law of funeral expenses and just debts, reads: raised on the record and necessary to the determination of the case.

"Second--After the payment of such funeral [Ed. Note.-For other cases, see Courts, Cent. expenses and debts, I give, devise and bequeath

unto my beloved wife, Mary J. Ward, all the Dig. 360; Dec. Dig. Om 107.)

rest, residue and remainder of my estate, real, 5. WILLS Om614(17)–CONSTRUCTION-POWER personal and mixed, of whatsoever kind or naOF SALE-REAL ESTATE.

ture and wheresoever situated and whether ownA will provided that, after payment of fu-ed by me now or acquired by me hereafter for neral expenses and debts, the remainder of tes- ed of the tools and machines in my shop and the

and during her natural life, after having dispostator's estate should go to his wife for life, “aft- stock on hands, which I direct shall be sold at er having disposed of the tools and machines either private or public sale, as my executor may on hands, which I direct shall be sold.'

think best. It further provided that at his wife's death all the property devised to her, or so much thereof

“Third-At the death of my wife it is my will "as may remain unexpended," should be divided that all the property so devised to my wife, or between his three children. Held, that no power

so much thereof as may remain unexpended, was granted in the will for the sale of the real shall be divided equally, share and share alike, ty, and that testator's wife was entitled only to between my three children, viz., Vada Caverly the use and income of the realty for life; the wife of E. C. Caverly, Myrtle I. Brown, wife of title in fee being in the children, subject to such J. H. Brown, and Charles W. Ward; and I dilife estate, and the phrase "as may remain un. Charles W. Ward, and that bis share shall be

rect that a guardian be appointed for my son, expended” not referring to the realty.

used as required in the support of my said son, [Ed. Note.-For other cases, see Wills, Cent. and the guardian may use such portion of the Dig. $S 1411, 1412; Dec. Dig. Omw 614(17).] principal towards his support as he may think

advisable." 6. WILLS Om 707(2)—SUIT TO CONSTRUE WILL -Costs.

The last clause nominates J. H. Brown, Where, in a suit to construe a will, the court his son-in-law, as executor, revoking former found that the will required construction, it should have allowed reasonable solicitor's fees to wills. The will was duly admitted to procounsel for complainant, and should have charg- bate January 23, 1915, and Brown appointed ed such fees and the costs of the litigation executor. This bill was thereafter filed by against testator's property.

the widow, praying that the will be con[Ed. Note. For other cases, see Wills, Cent. strued as giving her power to sell the real Dig. & 1685; Dec. Dig. 707(2).]

estate, the right to expend the money de7. WILLS O 695(1)-JURISDICTION IN EQUITY. rived therefrom and the right to spend the

Under the express provision of Laws 1911, proceeds of all the personal property after P. 253, courts of equity may determine bills in the payment of the debts, as well as the right equity to construe wills, though no question of a trust is involved therein.

to the income from all of said real and per[Ed. Note.-For other cases, see Wills, Cent. sonal property during her lifetime so long Dig. 88 1665, 1666; Dec. Dig. Om695(1).] as it should be unexpended or unsold, and

that the fee-simple title of said property was, estate, real and personal," at the death of vested in the testator's three children, sub- testator's wife, should descend to his heirs; ject to be divested by the widow exercising the next clause giving the wife a life estate said power of sale. The decree construed the with power to manage the property at her will as giving the widow no power to sell discretion and deal with it as the sole ownthe real estate, and that the fee-simple title er, giving her power also, if she deemed exto the same was vested in the three children, pedient, to sell any portion of the property. subject to the life estate of the widow; that it was there held that the wife had unlimsaid widow was not entitled to the posses- ited power of alienation, but that she only sion of the money of said estate after the took a life estate, and not an estate in fee. payment of debts and expenses, but that In Green v. Hewitt, 97 Ill. 113, 37 Am. said money, or any part thereof remaining Rep. 102, the will provided: unexpended at her death, should go to the "After the payment of such debts and funeral said three children in equal shares; and dis- expenses, I give and bequeath to my beloved missed the bill for want of equity at the wife, Elizabeth Thompson, the farm on which we

now reside [describing it), also all my personal cost of plaintiff in error.

property of every description, so long as she re[1-3] The fundamental rule in construing mains my widow; at the expiration of that time a will is that the intention of the testator the whole, or whatever remains, to descend to as expressed therein must prevail, provided my daughter, Mary Thompson.it is consistent with the settled rules of law.

The opinion holds that the will passed a Bradsby v. Wallace, 202 Ill. 239, 66 N. E. life estate, only, to the widow in both the 1088; Wardner v. Baptist Memorial Board, real and personal property, subject to be ter232 Ill. 606, 83 N. E. 1077, 122 Am. St. Rep. minated by her marriage, and that the clause 138. This intention must be found by con- "whatever remains" did not apply to real esstruing the words employed by the testator tate, but only to that species of personal in the will itself in the light of surrounding property the value and use of which might circumstances, the court being entitled to consist solely in consumption, or to that hear such extrinsic evidence as will put it class of personal property which might be in the place of the testator. Abrahams v. worn out, lost, or destroyed before the time Sanders, 274 Ill. 452, 113 N. E. 737; O'Hare of the widow's death. V. Johnston, 273 III, 458, 113 N. E. 127. With In Walker v. Pritchard, supra, the will out question, a will may create a life estate devised and bequeathed to the testator's wife with power to sell and convey the fee before certain real property, with authority to sell the determination of the life estate, and may and convey the title and “convert the avails also create a life estate in personal property to her own use and benefit,” and also beof a durable nature with power of sale of queathed to her, during her natural life, certhe same, and a limited remainder, after the tain personal property, and then provided termination of the life estate, in whatever that, “at the death of my said wife, all the remains. Hetfield v. Fowler, 60 Ill. 45; property hereby devised or bequeathed to her Kaufman v. Breckinridge, 117 Ill. 305, 7 N. as aforesaid, or so much thereof as may reE, 666; Walker v. Pritchard, 121 Ill. 221, main unexpended,” should go to his two sons. 12 N. E. 336; Dickinson v. Griggsville Nat. It was there held that the widow had a life Bank, 209 Ill. 350, 70 N. E. 593.

estate in both the real and personal proper[4] Numerous cases have been cited by ty, with power of disposition, and that the counsel on each side in support of their ar sons took the remainder, or such parts as gument as to the proper construction to be remained undisposed of at her death and put on this will; but, while the general rules could be identified. of construction must always be kept in mind, In Re Estate of Cashman, 134 Ill. 88, 24 none of those rules can be absolutely de- N. E. 963, the will bequeathed to the wife cisive. The language of a decision must al- certain real estate during her natural life ways be construed with reference to the facts and also certain personal property, and furof the particular case, and its authority is ther provided that she "may elect to have largely limited to those points of law raised the above described real estate sold and conon the record and necessary to the determi- veyed by my executors hereinafter named nation of the case; therefore, in the inter- | *

and accept in lieu thereof the sum pretation of wills, as those instruments are of $3,000 in money, to be accepted and held rarely, if ever, identical in wording, and oft- by her as above provided in reference to said en not even similar, the rules or preceuents real estate during her natural life, and that laid down in former decisions are frequent- after her death all of the said property to ly of little value. Black v. Jones, 264 Ill. her devised and bequeathed (or so much 548, 106 N. E. 462, Ann. Cas. 1915D, 1173; thereof as may remain unexpended) to be O'Hare v. Johnston, supra. We shall, how.converted into money by my executors,” and ever, refer to a few of the cases in which the net proceeds divided equally among his the wording of the will considered is most children. The decision holds that the wife nearly like that of the will here involved. had a life estate in the property, real and

In Markillie v. Ragland, 77 Ill. 98, the will personal, with the right of use and the powprovided that “whatever may remain of my er of disposition, and that so much of the

*

principal as was not used by her as her ne- , his debts. He also clearly intended, from cessities demanded or her judgment dictated, the wording of the will, that the wife might and which should remain unexpended at her expend certain of the corpus of the property death, should be divided among the children. for her own use. He left personal property

In Vanatta v. Carr, 223 Ill. 160, 79 N. E. to the amount of about $1,800 and debts of 86, the testator bequeathed to his wife all his about $900. It therefore follows, as the most estate, both real and personal, "during her reasonable construction of the will, that he natural life, except as hereinafter mention intended that the wife should have the right ed," then bequeathed to a son certain per- to use, as her necessities required, any of the sonal property, and continued:

personal property after the payment of fu"At the death of my wife, * whatever neral expenses and debts; that any not so remains of the estate, both real and personal, to spent during her lifetime would go to the be transferred and belong as follows."

children as directed by the will. There being The decision construed the words "what- Do power granted in the will for the sale of ever remains” as not enlarging the life es- the real estate, obviously he did not intend to tate given to the wife in the personal proper- refer to the real estate by the expression in ty; it not being necessary to construe what the third clause “as may remain unexpended," interest she might have in the real estate. for only the proceeds of the real estate if it

[5] The wills in the cases referred to are was sold could be expended. The real estate none of them worded exactly like the will itself could not be "expended." The wife, before us. An examination of those decisions therefore, is only entitled to the use and inwill show that the court endeavored in each come of the real estate during her life; the instance to construe the will so as to carry title in fee being in the children, subject to out the intention of the testator. In some said life estate of the mother. of those wills there was no specific power (6) Plaintiff in error, by her counsel, congiven to the devisee, legatee, or executor to tends that the court improperly charged the sell and dispose of the property; in others, costs against her. The court undoubtedly errsuch power was clearly given. In this willed in first construing the will and then disthe power clearly given only extends to the missing the bill for want of equity. If the disposition of a portion of the personal prop- bill should have been dismissed for want of erty; that is, the tools and machines in the l'equity, there would be no reason for constru. shop and the stock on hand. If the execu- ing the will. If the will required constructor or wife has the power of disposing of the tion by the court, as it is evident it did, rest of the property, it must be as a neces- counsel for plaintiff in error was entitled to sary incident to the estate that was given solicitor's fees. The general rule as to such the wife. Welsch v. Belleville Savings Bank, fees is that, when the testator has expressed 94 Ill. 191; Strickland v. Strickland, 271 Ill. his intention in his will so ambiguously as to 614, 111 N. E. 592.

make it necessary to go into a court of chanIt is argued by counsel for defendants in cery to get a construction of the will, in orerror that the words “may remain unexpend- der to determine which of two or more aded," in the third clause of the will, refer to verse claims to the same fund or property is what may remain unexpended after the pay- valid, the cost of the litigation should be ment of the funeral expenses. This is not a borne by the fund or property in question, reasonable construction of the will. The Dean v. Northern Trust Co., 266 Ill. 205, 107 wife, by the first clause, was not given a life N. E. 186; Guerin v. Guerin, 270 Ill. 239, 110 estate in any of the property that was neces- N. E. 402; Strickland v. Strickland, supra. sary to pay the funeral expenses and just The trial court should have allowed reasondebts, but was only devised and bequeathed | able solicitor's fees to counsel for plaintiff in that which should remain after such pay- error, and charged said fees and the costs of ment, and by the third clause it is clearly the litigation, including the guardian ad Ilstated that the property so devised to the tem's fees, against the property of the testawife, “or so much thereof as may remain un- tor. expended,” should be divided among the chil [7] There was no trust involved in this dren. The testator's intention is clear that will, but under the act of June 5, 1911 (Laws the property he referred to as remaining un- 1911, p. 253), courts of equity may hear and expended was property in which he gave his determine bills in equity to construe wills, wife a life estate, and not the property that notwithstanding no question of a trust is in. was necessary to be used for the payment of volved therein. Wakefield v. Wakefield, 256 the funeral expenses and debts. The testa- 11l. 296, 100 N. E. 275, Ann. Cas. 1913E, 414. tor's will was drawn up a short time before The decree of the circuit court will be rehis death. He directed specifically that the versed, and the cause remanded, with directools and machines and stock on hand be tions to that court to enter a decree in acsold by the executor. He understood that cordance with the views herein expressed. some of the property must be used to pay Reversed and remanded, with directions.

(276 Ill. 478)

grantors and any future interest they may acGAVVIN v. CARROLL et al. (No. 10929.)

quire by devise or inheritance." (Supreme Court of Illinois. Dec. 21, 1916.

The widow of testator is dead, and since Rehearing Denied Feb. 8, 1917.)

making the deed three of the children of 1. WILLS 602(6)–CONSTRUCTION-ESTATES

the testator have died, leaving only comCREATED.

plainant and Ella Carroll surviving. All of A will bequeathing lands to a son subject the deceased children of the testator left chilto prior life estate, and should be die without dren surviving, who are made parties deissue to be equally divided among the testator's fendant to the bill. Ella Carroll, surviving surviving children at the time of the son's decease, created a base fee determinable only on sister of complainant, has one or more childeath of the son with or without issue, so that, dren. The bill alleges Ella Carroll has causwhile the contingent remaindermen by their deed ed to be filed in the recorder's office of to him cut off any right of theirs, they did not Macon county a notice that complainant is make his fee absolute.

[Ed. Note. For other cases, see Wills, Cent. feeble-minded, not capable of making a legal Dig. 88 1357, 1358; Dec. Dig. Om 602(6).) conveyance of the land and warning all per2. WILLS 602(3) - CONSTRUCTION - ESTATES sons not to purchase it; that she once seCREATED.

cured the appointment of a conservator for In such will, the provision for remainder op complainant, who was on petition of complaindeath of the son without issue did not mean his death during the life of the life tenant, but ant removed and the property restored to commeant his death without issue at any time. plainant; and that said Ella Carroll is con

[Ed. Note.-For other cases, see Wills, Cent. tinually annoying and vexing complainant in Dig. § 1354; Dec. Dig. Om 602(3).)

the use and management of the land. The Appeal from Circuit Court, Macon Coun- bill prays a decree declaring title to the ty; William K. Whitfield, Judge.

land in fee simple in complainant and the Bill by John C. Gavvin against Ellen Car: removal of clouds therefrom. After answer roll, Daniel Gavvin, and others. From a de- by Ella Carroll and the minor defendants by cree for complainant, Daniel Gavvin and oth-guardian ad litem, the cause was referred to ers appeal. Reversed and remanded, with the master in chancery to take testimony and directions.

report conclusions. After hearing the evi.

dence, the master reported, recommending Lawrence C. Wheat, guardian ad litem, of Decatur, for appellants. Mills Bros. and a decree granting the relief prayed. ExcepMcDavid & Monroe, all of Decatur, for ap- ruled, and a decree was entered that com

tions by defendants to the report were overpellee.

plainant is the owner in fee simple of the FARMER, J. This is an appeal from a deland, directing that his title be quieted, cree of the circuit court of Macon county on a

and enjoining defendants from bringing any bill in chancery to remove cloud from and qui- suit or proceeding to enforce any alleged et title to 40 acres of land. The land originally claim or interest in the real estate and from belonged to James Gavvin, who died testate in any way molesting complainant or anyMay 28, 1895, leaving a widow and five chil- one claiming by, through, or under him. dren, By the second item of his will the This appeal is prosecuted by some of the

minor defendants. testator gave all his property, real and personal, to his wife for and during her natural

Complainant is deaf and dumb, 51 years life, "and at her death to be disposed of as old, but it does not appear whether he is hereinafter provided.” Item 3 reads:

married or single or whether he has any

lawful issue. "I will and bequeath to my son John Gavvin the southwest quarter (94) of the southwest [1] Counsel for both parties agree that by quarter (44) of section thirty-two (32), town. the third item of James Gavvin's will the of the third P. M., in Macon county, Illinois, complainant took a base or determinable subject to the provision contained in item 2 of fee. The estate created by the will might enthis will, and should he die without issue, then dure forever, or it might be terminated by the property devised to him in this item shall John Gavvin's death leaving no issue surbe equally divided among my surviving children at the time of his decease."

viving him. If the condition upon which The bill was filed by John Gavrin, one the estate was to become a fee simple abof the testator's sons and the devisee men- solute never happened-that is, if John Gavtioned in item 3 of the will. The bill al- vin died without issue—the property wou'd leged there had been much speculation and go, under the executory devise, to his brothuncertainty as to what interest each of the ers and sisters. If, however, John Gavvin children of the testator took under the will, died leaving issue, the executory devise over and in 1898, to settle the uncertainty, com- would be defeated and the title would be an plainant's brothers and sisters executed and unconditional fee in such surviving issue. delivered to complainant a conveyance, by The interest of the executory devisees is a warranty deed, of the land described in the mere expectancy during the life of John third item of the will. Said deed recited :

Gavvin. It is generally, though perhaps not “This conveyance is intended to convey, and universally, held that executory devises are does hereby convey, the present interest of the alienable when the devisee is an ascertained

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

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