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 not. 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 is-mony, for in that count, after averring that sue on such trial, it was perjury. the defendant testified that he had not sold any intoxicating liquor in the town of Champaign, it is averred that in truth and in fact, as he then and there well knew, he had sold intoxicating liquor in the town of Champaign within 18 months prior to January 27, in the year of our Lord 1916.

[3] It is argued that the indictment in this case does not state the issue in the proceeding in which the perjury was committed, and the testimony has not been set forth in such a way that this court can see, from an inspection of the indictment, that 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 false, with the allegation that such testimony was material. An indictment which charges that the testimony alleged to be false was material to the issue on the trial of the cause charges sufficiently that the evidence was "in a matter material to the issue or point in question." People v. Threewitt, 251 Ill. 509, 96 N. E. 242. In Kizer v. People, 211 111. 407, 71 N. E. 1035, the indictment, after stating the court in which the cause was pending, the names of the parties, and that the charge was unlawfully keeping a gaming house and for unlawfully gaming, averred that:

"It then and there became and was a material question whether the said John Kizer told one Dennis Lyons," on, etc., "that he, the said John Kizer, was the proprietor of a certain gaming house," etc.

Many decisions are considered in that opinion, the allegation was held sufficient, and the indictment was sustained. The language in the second count of the indictment in the present case is that "it became and was a material matter in issue in said cause as to whether or not the said Charles Ashbrook" had sold any intoxicating liquors within the limits of the town of Cham

dictment for an assault with intent to murder, which was a felony at common law. In Bolen v. People, 184 Ill. 338, 56 N. E. 408 (an indictment for incest), it was contended that the indictment must state that the offense was feloniously committed, but the objection was not sustained, for the reason that incest is a statutory offense and not a felony at common law. The case of Ervington v. People, supra, was cited, the court saying that the rules were different where the offense was a felony at common law. Perjury was not a felony at common law. 30 Cyc. 1399; 22 Am. & Eng. Ency. of Law (2d Ed.) 682; 2 Bishop on Crim. Law (2d Ed.) § 885. The indictment was in the words of the statute, "willfully, corruptly and falsely," and every indictment is to be deemed sufficiently technical and correct which alleges and charges the offense in the language of the statute creating the offense.

We have considered only the second count. One good count is enough to sustain the judgment.

The motion in arrest was properly overruled, and the judgment of the circuit court will be affirmed.

Judgment affirmed.

(276 Ill. 416)
WARD. CAVERLY et al. (No. 10958.)
(Supreme Court of Illinois. Dec. 21, 1916.

Rehearing Denied Feb. 8, 1917.)

1. WILLS 439-CONSTRUCTION-INTENT. Testator's intention as expressed in the will must prevail, if it is consistent with the settled rules of law.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. 439.]

2. WILLS

441-CONSTRUCTION-INTENT. Testator's intent must be ascertained by construing the language of the will in the light of the surrounding circumstances; the court being entitled to receive such extrinsic evidence as will put it in testator's place.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 958; Dec. Dig. 441.]

Error to Circuit Court, Stark County; Clyde E. Stone, Judge.

Bill by Mary J. Ward against Vada Caverly and others. Decree dismissing bill, and plaintiff brings error. Reversed and remanded, with directions.

T. W. Hoopes and F. B. Brian, both of Toulon, for plaintiff in error. J. H. Rennick and W. W. Wright, both of Toulon, for defendants in error.

CARTER, J. This was a bill filed in the circuit court of Stark county by plaintiff in error, Mary J. Ward, for the construction of the will of Charles D. Ward, her deceased husband. Demurrers were filed by all the defendants, and one of them also filed an an

3. WILLS~~616(1) - TESTAMENTARY POWERS Swer by his guardian ad litem. On a hear-ESTATES CREATED.

A will may create a life estate in realty with power to sell and convey the fee before the determination of the life estate, and may also create a life estate in personalty of a durable nature with power to sell same, and a limited remainder after termination of the life estate in whatever remains.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1418, 1428-1430; Dec. Dig. 616(1).] 4. COURTS

107-OPINIONS-CONSTRUCTION

AND OPERATION. The language of a judicial decision must be construed with reference to the facts of the particular case, and limited to those points of law raised on the record and necessary to the determination of the case.

[Ed. Note. For other cases, see Courts, Cent. Dig. 360; Dec. Dig. 107.]

ing the court entered a decree construing the Will, but dismissed the bill for want of equity. From that decree this writ of error was sued out.

From the allegations of the bill it appears that at the time of his death, December 24, 1914, testator owned certain lots, or portions thereof, in Toulon, in said county, and also personal property valued at about $1,800, and that there were about $900 of debts against the estate. The will was dated February 22, 1913, and, after providing for the payment of funeral expenses and just debts, reads:

"Second-After the payment of such funeral unto my beloved wife, Mary J. Ward, all the expenses and debts, I give, devise and bequeath rest, residue and remainder of my estate, real, 5. WILLS 614(17)-CONSTRUCTION-POWER personal and mixed, of whatsoever kind or nature and wheresoever situated and whether ownOF SALE-REAL ESTATE.

think best.

A 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- and during her natural life, after having dispostator's estate should go to his wife for life, "aft-ed of the tools and machines in my shop and the er having disposed of the tools and machines either private or public sale, as my executor may stock on hands, which I direct shall be sold at * on hands, which I direct shall be sold." It further provided that at his wife's death all the property devised to her, or so much thereof "as may remain unexpended," should be divided between his three children. Held, that no power was granted in the will for the sale of the realty, and that testator's wife was entitled only to the use and income of the realty for life; the title in fee being in the children, subject to such life estate, and the phrase "as may remain expended" not referring to the realty.

that all the property so devised to my wife, or "Third-At the death of my wife it is my will so much thereof as may remain unexpended, shall be divided equally, share and share alike, between my three children, viz., Vada Caverly, wife of E. C. Caverly, Myrtle I. Brown, wife of J. H. Brown, and Charles W. Ward; and I diun-Charles W. Ward, and that his share shall be rect that a guardian be appointed for my son,

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1411, 1412; Dec. Dig. 614(17).] 6. WILLS 707(2)—SUIT TO CONSTRUE WILL -COSTS.

Where, in a suit to construe a will, the court found that the will required construction, it should have allowed reasonable solicitor's fees to counsel for complainant, and should have charged such fees and the costs of the litigation against testator's property.

used as required in the support of my said son, and the guardian may use such portion of the principal towards his support as he may think advisable."

The last clause nominates J. H. Brown, his son-in-law, as executor, revoking former wills. The will was duly admitted to probate January 23, 1915, and Brown appointed executor. This bill was thereafter filed by 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).]

7. WILLS 695(1)—JURISDICTION IN EQUITY. Under the express provision of Laws 1911, p. 253, courts of equity may determine bills in equity to construe wills, though no question of a trust is involved therein.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1665, 1666; Dec. Dig. 695(1).]

estate, the right to expend the money derived therefrom and the right to spend the proceeds of all the personal property after the payment of the debts, as well as the right

to the income from all of said real and personal property during her lifetime so long 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 said three children in equal shares; and dismissed the bill for want of equity at the cost of plaintiff in error.

[1-3] The fundamental rule in construing a will is that the intention of the testator as expressed therein must prevail, provided it is consistent with the settled rules of law. Bradsby v. Wallace, 202 Ill. 239, 66 N. E. 1088; Wardner v. Baptist Memorial Board, 232 Ill. 606, 83 N. E 1077, 122 Am. St. Rep. 138. This intention must be found by construing the words employed by the testator in the will itself in the light of surrounding circumstances, the court being entitled to hear such extrinsic evidence as will put it in the place of the testator. Abrahams v. Sanders, 274 Ill. 452, 113 N. E. 737; O'Hare v. Johnston, 273 Ill. 458, 113 N. E. 127. Without question, a will may create a life estate with power to sell and convey the fee before the determination of the life estate, and may also create a life estate in personal property of a durable nature with power of sale of the same, and a limited remainder, after the termination of the life estate, in whatever remains. Hetfield v. Fowler, 60 Ill. 45; Kaufman v. Breckinridge, 117 Ill. 305, 7 N. E. 666; Walker v. Pritchard, 121 Ill. 221, 12 N. E. 336; Dickinson v. Griggsville Nat. Bank, 209 Ill. 350, 70 N. E. 593.

"After the payment of such debts and funeral expenses, I give and bequeath to my beloved wife, Elizabeth Thompson, the farm on which we now reside [describing it], also all my personal property of every description, so long as she remains my widow; at the expiration of that time the whole, or whatever remains, to descend to my daughter, Mary Thompson."

The opinion holds that the will passed a life estate, only, to the widow in both the real and personal property, subject to be terminated by her marriage, and that the clause "whatever remains" did not apply to real estate, but only to that species of personal property the value and use of which might consist solely in consumption, or to that class of personal property which might be worn out, lost, or destroyed before the time of the widow's death.

In Walker v. Pritchard, supra, the will devised and bequeathed to the testator's wife certain real property, with authority to sell and convey the title and "convert the avails to her own use and benefit," and also bequeathed to her, during her natural life, certain personal property, and then provided that, "at the death of my said wife, all the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may remain unexpended," should go to his two sons. It was there held that the widow had a life estate in both the real and personal property, with power of disposition, and that the sons took the remainder, or such parts as remained undisposed of at her death and could be identified.

[4] Numerous cases have been cited by counsel on each side in support of their argument as to the proper construction to be put on this will; but, while the general rules 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 often not even similar, the rules or precedents laid down in former decisions are frequently of little value. Black v. Jones, 264 Ill. 548, 106 N. E. 462, Ann. Cas. 1915D, 1173; O'Hare v. Johnston, supra. We shall, however, refer to a few of the cases in which the wording of the will considered is most nearly like that of the will here involved.

In Markillie v. Ragland, 77 Ill. 98, the will provided that "whatever may remain of my

by her as above provided in reference to said real estate during her natural life, and that after her death all of the said property to her devised and bequeathed (or so mach thereof as may remain unexpended) to be converted into money by my executors," and the net proceeds divided equally among his children. The decision holds that the wife had a life estate in the property, real and personal, with the right of use and the power of disposition, and that so much of the

principal as was not used by her as her necessities demanded or her judgment dictated, and which should remain unexpended at her death, should be divided among the children. In Vanatta v. Carr, 223 Ill. 160, 79 N. E. 86, the testator bequeathed to his wife all his estate, both real and personal, "during her natural life, except as hereinafter mention- | intended that the wife should have the right ed," then bequeathed to a son certain personal property, and continued:

(276 Ill. 478)

GAVVIN v. CARROLL et al. (No. 10929.) (Supreme Court of Illinois. Dec. 21, 1916. Rehearing Denied Feb. 8, 1917.)

1. WILLS 602(6)-CONSTRUCTION-ESTATES CREATED.

make his fee absolute.

grantors and any future interest they may acquire by devise or inheritance."

The widow of testator is dead, and since making the deed three of the children of the testator have died, leaving only complainant 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 Ella Carroll, surviving surviving children at the time of the son's defendant to the bill. cease, 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 feeble-minded, not capable of making a legal conveyance of the land and warning all perSons not to purchase it; that she once secured the appointment of a conservator for complainant, who was on petition of complainant removed and the property restored to complainant; and that said Ella Carroll is continually annoying and vexing complainant in the use and management of the land. The bill prays a decree declaring title to the land in fee simple in complainant and the removal of clouds therefrom. After answer by Ella Carroll and the minor defendants by

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1357, 1358; Dec. Dig. 602(6).] 2. WILLS 602(3) CONSTRUCTION - ESTATES CREATED.

In such will, the provision for remainder on death of the son without issue did not mean his death during the life of the life tenant, but meant his death without issue at any time. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1354; Dec. Dig. 602(3).]

Appeal from Circuit Court, Macon County; William K. Whitfield, Judge.

Bill by John C. Gavvin against Ellen Carroll, Daniel Gavvin, and others. From a decree for complainant, Daniel Gavvin and oth-guardian ad litem, the cause was referred to ers appeal. Reversed and remanded, with directions.

Lawrence C. Wheat, guardian ad litem, of Decatur, for appellants. Mills Bros. and McDavid & Monroe, all of Decatur, for appellee.

FARMER, J. This is an appeal from a decree of the circuit court of Macon county on a bill in chancery to remove cloud from and quiet title to 40 acres of land. The land originally belonged to James Gavvin, who died testate May 28, 1895, leaving a widow and five children. By the second item of his will the testator gave all his property, real and personal, to his wife for and during her natural life, "and at her death to be disposed of as hereinafter provided." Item 3 reads:

"I will and bequeath to my son John Gavvin the southwest quarter (4) of the southwest quarter (4) of section thirty-two (32), township eighteen (18), north, range three (3), east of the third P. M., in Macon county, Illinois, subject to the provision contained in item 2 of this will, and should he die without issue, then the property devised to him in this item shall be equally divided among my surviving children at the time of his decease."

The bill was filed by John Gavvin, one of the testator's sons and the devisee mentioned in item 3 of the will. The bill alleged there had been much speculation and uncertainty as to what interest each of the children of the testator took under the will, and in 1898, to settle the uncertainty, complainant's brothers and sisters executed and delivered to complainant a conveyance, by warranty deed, of the land described in the third item of the will. Said deed recited: "This conveyance is intended to convey, and does hereby convey, the present interest of the

the master in chancery to take testimony and report conclusions. After hearing the evidence, the master reported, recommending a decree granting the relief prayed. Excepruled, and a decree was entered that comtions by defendants to the report were overplainant is the owner in fee simple of the land, directing that his title be quieted, and enjoining defendants from bringing any suit or proceeding to enforce any alleged claim or interest in the real estate and from in any way molesting complainant or anyone claiming by, through, or under him. This appeal is prosecuted by some of the

minor defendants.

Complainant is deaf and dumb, 51 years old, but it does not appear whether he is married or single or whether he has any lawful issue.

[1] Counsel for both parties agree that by the third item of James Gavvin's will the complainant took a base or determinable fee. The estate created by the will might endure forever, or it might be terminated by John Gavvin's death leaving no issue surviving him. If the condition upon which the estate was to become a fee simple absolute never happened-that is, if John Gavvin died without issue the property would go, under the executory devise, to his brothIf, however, John Gavvin ers and sisters. died leaving issue, the executory devise over would be defeated and the title would be an unconditional fee in such surviving issue. The interest of the executory devisees is a mere expectancy during the life of John Gavvin. It is generally, though perhaps not universally, held that executory devises are alienable when the devisee is an ascertained

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