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STEIDL et al. v. PEOPLE ex rel. ALEXAN-
DER, County Collector.

MUNICIPAL CORPORATIONS ASSESSMENTS FOR
STREET IMPROVEMENTS-JUDGMENT FOR DELIN-
QUENT ASSESSMENTS-SUFFICIENCY OF SUPERSE-

DEAS.

1. A judgment against property for a special assessment, alleging notice of publication against the lands, and that no defense was made, or cause shown why judgment should not be entered for the taxes and special assessments unpaid for the years therein set forth, and reciting that it was considered by the court that judgment should be entered against the said tracts of land, in favor of the people, for the sum annexed to each tract (being the amount of taxes, assessments, costs, etc.), and ordering that the land should be sold to satisfy the same, was a sufficient compliance with Revenue Law, § 191.

2. Section 40, art. 9, City and Village Act (1 Starr & C. Ann. St. p. 501), in relation to assessments for street improvements, provides: "The application for judgment upon delinquent special assessments in each year, shall include only such special assessments as shall have been returned as delinquent to the county collector, on or before the first day of April, in the year in which such application is made." Held, that the requirement of this section is that the delinquency must occur on or before the 1st day of April, and not that the return must be made on or before the 1st day.

lot 13, it is difficult to see why such intention was not plainly and unequivocally expressed in the release. The master and the court below found that Mrs. Brown had, (Supreme Court of Illinois. April 21, 1898.) when she authorized the execution of the release deed, neither knowledge nor information that any right of way was claimed across the south eighty feet of lots 12 and 13. No such right of way, appurtenance, or privilege was apparent. It would therefore, as the master found, be a fraud upon Mrs. Brown to construe the release to be what is not expressed therein, and was never intended by her or the trustee. The use of the words 'with all appurtenances' is not necessary in order that easements pass with a grant of the estate to which they are attached. Ingals v. Plamondon, 75 Ill. 118; Morrison v. King, 62 Ill. 30. An easement which is not apparent, of which the grantor has not made use, and of which he has no information, does not pass by an implication. Ingals v. Plamondon, 75 Ill. 118. The release by a mortgagee of certain described premises will not be construed as a release of the mortgage upon other portions of the estate in which the mortgagor has, without the consent of the mortgagee, seen fit to create, as against himself, an easement as an appurtenance to the lands described in the release. Harlow v. Whitcher, 136 Mass. 553, 554. The case at bar is essentially variant from Smith v. Heath, 102 Ill. 130, in which the mortgagee is found to have co-operated with the mortgagor in inducing the purchase of lots under an implied understanding that a park should forever remain appurtenant thereto. Mrs. Brown had no part in, and derived no profit from, the creation of the alleged necessity for appellant to have a right of access to Fifty-Third street. The decree properly directs a sale first of the premises retained by the mortgagor, and then of the remaining premises, in the inverse order of alienation, with the following provisions: 'If the aggregate amount bid for the said lands so offered in severalty shall be insufficient to satisfy this decree, then said master shall offer for sale said lots twelve (12) and thirteen (13), except the north seventy (70) feet thereof, together, as one parcel, with all easements and all rights and all claims therein of said defendants, and of all persons claiming under them, save only the right of redemption provided by law; and if the amount bid for the said lands so offered together shall exceed the aggregate of the amounts bid for said lands when offered in severalty, as above provided, then said master shall sell said lands together.' In this there was no error. Iglehart v. Crane, 42 Ill. 261. The decree of the circuit court is affirmed."

A careful consideration of the facts in this case induces us to concur with the appellate court, and its opinion is adopted as the opinion of this court, and the judgment of the ap pellate court for the First district is affirmed Judgment affirmed.

50 N.E.-9

3. A certificate of the clerk of the supreme court was in the following form: "I do certify that a writ of error has been issued from this court for the reversal of a judgment obtained by the city of M. vs. H. G. and others in the 1895, in a certain action of special assessment, county court of C. Co., at the December term, which writ of error is made a supersedeas, and is to operate as a suspension of the execution of the judgment, and as such is to be obeyed by all concerned." Held insufficient to suspend the entry of judgment in the case it was claimed to refer to, when filed in the county court, because it is not a certified copy of the writ of error, or of the order making the same a supersedeas, and because it failed, also, to evidence that it connects the parties with, or covers the property involved in, the case it was claimed to supersede.

Error to Coles county court; S. S. Anderson, Judge.

Action by the people, on the relation of R. Alexander, county collector, against John Steidl and others. Judgment for relator, and defendants bring error. Affirmed.

D. T. McIntyre and J. F. Hughes, for plaintiffs in error. James W. Craig, John F. Voigt, Jr., and Emory Andrews, for defendant in error.

MAGRUDER, J. This is a writ of error issued for the purpose of reviewing a judg ment and order of sale of the county court against the property of the plaintiffs in error for a special assessment for the improvement of C street, in the city of Mattoon, entered upon the application of the county collector for judgment against delinquent lands and lots for taxes, special assessments, etc., due and unpaid for the year 1896, and for an order of sale against such lands and lots.

1. It is objected that the judgment of the

county court is defective in form, as not being in compliance with section 191 of the revenue act. This objection may have been good, when made to the incomplete record originally filed by the plaintiffs in error; but the defendant in error suggested a diminution of the record, and filed an amended record. The judgment, as shown by the amended record, is as follows: "Whereas, due notice has been given of the intended application for judgment against said lands and lots, and no sufficient defense having been made, or cause shown why judgment should not be entered against said lands and lots for taxes, special assessments, interests, penalties, and costs due and unpaid thereon for the year or years herein set forth, therefore it is considered by the court that judgment be, and is hereby, entered against the aforesaid tract or tracts or lots of lands, or parts of tracts or lots, in favor of the people of the state of Illinois, for the sum annexed to each, being the amount of taxes and special assessments, interests, penalties, and costs due severally thereon; and it is ordered by the court that the several tracts or lots of land shall be sold to satisfy the amount of the taxes and special assessments, interests, penalties, and costs annexed to them severally, as the law directs." This order, which was signed by the judge, complies substantially with the requirements of section 191 of the revenue act.

2. The next objection made by plaintiffs in error to the entry of judgment against their lots and lands is that the county collector had no authority to include the special assessment in question in his application for judgment. The reason assigned for this contention is that the return of the city collector of Mattoon of the premises of plaintiffs in error as delinquent for the nonpayment of the special assessment for the improvement of C street for the year 1896 was not filed in the office of the county collector until after the 1st day of April, 1897; that is to say, until the 5th day of April, 1897. The report of delinquent lots and lands, as made by the city collector, is dated March 30, 1897, and in it he makes the following statement: "I herewith submit statement of the delinquents made by me on account of C street special assessments for 1896." The question whether the objection now under consideration is a valid one, or not, depends upon the proper construction to be given to section 40 of article 9 of the city and village act. The portion of that section here applicable is as follows: "The application for judgment upon delinquent special assessments in each year, shall include only such special assessments as shall have been returned as delinquent to the county collector, on or before the first day of April, in the year in which such application is made." 1 Starr & C. Ann. St. p. 501. If the meaning is that the return must be made on or before the 1st day of April, the objection would seem to be a valid one; but,

if the meaning is that the delinquency must occur on or before the 1st day, the objection is without force. The report of the city collector shows that the special assessments were delinquent on March 30, 1897. That report is "prima facie evidence that the special assessments mentioned therein were due and unpaid at the date of said report." Bowman v. People, 137 Ill. 436, 27 N. E. 598. In Bowman v. People, supra, we said: "In our opinion, the statute makes the delinquency on or before the 1st day of April in the year in which the application for judgment is made a jurisdictional fact. Without actual delinquency, then, there is no right in the county collector to apply for and obtain judgment." In the Bowman Case the city collector made his report to the county collector on March 31, 1890 (that is to say, before April 1, 1890); but, as the proper notice of 30 days had not been given, it was held that there was no actual delinquency. Under the doctrine of that case, the legal right to apply for judgment depends upon the existence of the delinquency on or before April 1st, rather than upon the filing of the return on or before April 1st. The mere fact. therefore, that the return of the city collector was not filed with the county collector until April 5, 1897, when the return shows on its face that the delinquency existed on March 30, 1897, does not constitute a valid objection. This conclusion receives indorsement from a comparison of the language of said section 40 with the language of section 182 of the revenue act. By section 40, when the county collector receives the report of the city collector he is to proceed to obtain judgment for the special assessments at the same time and in the same manner as is provided by law for obtaining judgment for taxes. By said section 182, he is to give notice of application for judgment "at any time after the first day of April next after such delinquent taxes and special assessments on lands and lots shall become due," not at any time after the 1st day of April next after return of delinquency has been made.

3. The next objection made by plaintiffs in error to the entry of judgment below was that the judgment of the county court, confirming the special assessment against their property, was pending in the supreme court on writ of error, which was made a supersedeas; that the order for supersedeas was filed in the county court in May, 1896; that the said judgment was affirmed by the supreme court on April 12, 1897; that while the writ of error was pending, and until the order of affirmance was filed in the county court, the special assessment could not be returned as delinquent. People v. Wadlow, 166 Ill. 119, 46 N. E. 775. The only evidence upon this subject introduced by plaintiffs in error was the following certificate of the clerk of the supreme court: "I do certify that a writ of error has been issued from

"If a

this court for the reversal of a judgment
obtained by the city of Mattoon vs. Henry
Gibler and others in the county court of
Coles county, at the December term, 1895,
in a certain action of special assessment,
which writ of error is made a supersedeas,
and is to operate as a suspension of the ex-
ecution of the judgment, and as such is to
be obeyed by all concerned. Given at Spring-
field, June 1, 1896." It may be said of this
certificate that it was not admissible in
evidence, because it merely certifies as to con-
clusions and matters of fact. It is not a cer-
tified copy of the writ of error, or of the or-
der making the same a supersedeas.
person in official station is bound to record
a fact, the proper proof is a copy of the rec-
ord, duly authenticated." Schaefer v. Wun-
derle, 154 Ill. 577. But, aside from this, there
is no evidence here which connects the case
of Gibler v. City of Mattoon, 167 Ill. 18, 47
N. E. 319, with any of the parties to this rec-
ord. It does not here appear that any of the
property involved in the case at bar was in-
volved in the Gibler Case. The supersedeas
referred to in the certificate is not proven to
be in any way connected with this case, nor
is any record produced of the case mentioned
in the certificate. This court will not under-
take the task of hunting up the record of an-
other case, to see whether a supersedeas
therein granted covers any of the property
involved in this proceeding, when no such
record was introduced in the court below.
The third objection is not well taken. The
judgment of the county court is affirmed.
Affirmed.

KINNEY V. KEPLINGER.
(Supreme Court of Illinois. April 21, 1898.)
WILLS-APPOINTMENT OF EXECUTOR GRANT OF
LETTERS-ADMINISTRATOR of Deceased

property belonging to the estate of any deceased person.

5. The estate of a deceased executrix, who was owner of a life estate in her testator's property, is not to be regarded as a debtor to the legatees under the will.

Appeal from appellate court, Third district. Petition by Michael Kinney, executor of the last will of William C. Clark, deceased, against Hardin G. Keplinger, administrator of the estate of Sarah Clark, deceased. From a judgment in favor of defendant, plaintiff appealed to the appellate court, where the judgment was affirmed. 71 Ill. App. 334. Plaintiff appeals. Reversed. Morrison & Worthington, for appellant. Edward P. Kirby, for appellee.

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BOGGS, J. This was a petition filed in the county court of Morgan county by the appellant, as executor of the last will and testament of William C. Clark, deceased, in which it was represented to the court that one Hardin G. Keplinger had in his possession and under his control certain goods, chattels, moneys, books of account, mortgages, and other evidences of indebtedness which were the property of the estate of the said William C. Clark. The petition further alleged that one Sarah Clark, lately deceased, was the predecessor of the petitioner as executrix of the said will of the said William C. Clark, deceased, and that as such executrix she had in her possession the said goods, chattels, moneys, notes, effects, etc., sought to be recovered; that said H. G. Keplinger was appointed administrator of the estate of the said Sarah Clark, and thus came into possession of the said goods, chattels, notes, effects, etc., and refused to deliver the same into the possession of the petitioner, and that it was necessary petitioner should have possession and control thereof in order that the said estate of the said William C. Clark should be fully administered upon, certain legacies provided by the will paid, and the remainder distributed in accordance with the desire of the said testator, as expressed in said will. Said Keplinger filed an answer to the petition, which presented, as grounds of defense, (1) that said Keplinger had no notes, accounts, moneys, effects, etc., in his hands which belonged to the estate of the said William C. Clark, but that the notes, mortgages, moneys, etc., referred to in the petition, were the property of the said deceased, Sarah Clark, his intestate; and (2) that the said Michael Kinney was in fact administrator de bonis non of the estate of said William C. Clark with the will annexed, and that he had no legal right or authority to call upon the defendant in the petition for an accounting as to any goods, chattels, moneys, mortgages, effects, etc., which came into the hands of the said Sarah Clark as executrix of the estate of the said William C. Clark, and were by her administered upon, converted, or wastmay investigate as to the possession of any ed during her lifetime, and that as to such

EXECUTOR-POWERS.

1. A testator, after giving to his wife all of his property for life, and providing for the distribution of what remained after her death, provided as follows: "I hereby appoint my wife, S., executrix," "and, in case of her death or inability to act, I hereby appoint K. executrix of my last will and testament; and said executrix may dispose of my real and personal property to the best advantage as he sees fit, and make distribution according to the provisions of the will and testament after the death of my wife, S., as soon as possible." Held, that the will appointed said K. executor to succeed said S. at her death.

2. The grant of letters executory to a succeeding executor entitles him to the possession of the assets of the estate of his testator, including those in the hands of the prior executrix at the date of her death.

3. The administrator of a deceased executor does not succeed to the estate of the deceased executor's testator, and has no right to retain possession of assets which were in the hands of his intestate as executor, after a succeeding executor is appointed.

4. Under Rev. St. c. 3, §§ 81, 82, though the literal reading of section 81 is that the court may inquire as to the property or effects "belonging to any deceased person," yet the court

matters the estate of the said Sarah Clark was answerable only to the heirs, legatees, or distributees of the said William C. Clark, deceased. The issues raised by the petition and the answer were submitted to the court upon oral and documentary testimony, and the court adjudged that the prayer of the petition be denied, and the petition was dismissed. This judgment of the probate court was affirmed in the circuit court on appeal, and in the appellate court for the Third district on a further appeal from the judgment of the circuit court. This is an appeal to reverse the judgment of the appellate court.

It appeared from the evidence said William C. Clark left a last will and testament, as follows: "I, William C. Clark, of the county of Morgan and state of Illinois, being of the age of sixty-three years, and being of sound mind and memory, do make, publish, and declare this my last will and testament, hereby revoking all former wills by me made, in the manner following, that is to say: That after the payment of all my just debts and funeral expenses I give and bequeath to my beloved wife, Sarah Clark, all of my real estate, personal property, moneys, goods, chattels, and effects of any and every nature whatever, to her sole use and benefit, her lifetime; that after the death of my beloved wife, Sarah Clark, that whatever remains of my property I will that it be divided as hereinafter mentioned. I will and bequeath to Mrs. Lydia Thomas, wife of J. W. Thomas, my wife's sister, $1,000, and to have no more of my property. I will and bequeath to Mrs. Ada Jasper, wife of William Jasper, $1,000. 1 will and bequeath to my sister Mrs. Ruth Potts $1,000, to have and use her lifetime, and at her death to go to Elizabeth A. Shawen. I will and bequeath to Elizabeth A. Shawen $1,000, wife of Carroll Shawen. will and bequeath to Kitty W. Shawen, Rovenia M. Shawen, Ruth M. Shawen, John E. Shawen, William L. Shawen, $1,000 each, children of Elizabeth and Carroll Shawen. I will and bequeath Geneva A. Belle, the cripple, $1,000, and also to her sister, Emma E. Belle, $500, children of John and Rith A. Belle, daughters of Hanna Nation, and they are not to have any more of my estate whatever. I will and bequeath to John Clark, Laura Clark, and Ida Clark, children of Stephen Clark, $100 each. I will and bequeath to William Clark, son of Stephen S. Clark, William Groves Clark, son of Abner Clark, Martin Clark, and William J. Clark, $100 each, and they are not to have anything more out of my estate whatever. I will and bequeath to John H. Nation $100, son of my sister Hanna, aud to get nothing more out of my estate. I will and bequeath to Hanna M. Baker, Sarah M. Louthen, Rosetta M. Adams, Samuel J. Myers, Emma C. Oswalt, children of my sister formerly Mrs. Ruth Myers, $100 each. I will and bequeath to Margaret E. Dunlap, Mary I. Dunlap, children of Mary E. Dunlap, grandchildren of

I

my sister formerly Mrs. Ruth Myers, $100 each. I will that the residue of my estate, if there be any left, that it be divided according to the statute of the state of Illinois amongst all my heirs except those above named that I have excluded. I hereby ap point my wife, Sarah Clark, executrix of my last will and testament, and that she shall not be required to give bond; and, in case of her death or inability to act, I hereby ap point Michael Kinney executrix of my last will and testament; and, if he is unable to act, that he may appoint some suitable person in his place; and said executrix may dis pose of my real and personal property to the best advantage, as he sees fit, and make distribution according to the provisions of the will and testament after the death of my wife, Sarah Clark, as soon as possible."

He died July 13, 1882. Letters testamentary were issued to Sarah Clark, his widow, on the 22d day of July, 1882, and as execu trix she came into possession of a valuable farm and notes and chattels to the amount of $28,854.40, the property of the said deceased during his lifetime. She survived until the 13th day of April, 1896, and upon her death the county court of Morgan county appointed the said appellant, Kinney, executor of said last will and testament of said William C. Clark, deceased, and appointed appellee, Keplinger, administrator of her estate. While she was acting as executrix of the estate of her husband, the said Sarah Clark paid all claims and demands against the estate, enjoyed the rents and profits of the land, collected the interest and principal of the debts due to the deceased, reloaned the money so collected, taking such security as seemed to her to be safe and satisfactory. appropriating to her own use and benefit such portion of the personal assets in her hands as executrix as to her seemed proper, such being, as she claimed, her right under the provisions of the will. On the 7th day of June, 1892, she filed in the said probate court a report of her acts and doings from the date of the death of her said husband, in which report she stated she desired it to be accepted in the place and stead of all other reports by her formerly made. In this report it was stated that said executrix had in her hands a balance of the personal estate of the said William C. Clark amounting in the ag gregate to the sum of $24,252.17, and that said balance consisted of certain notes, an itemized list thereof, showing the names of the makers of the notes and the amounts thereof, being incorporated into the report. The evidence tended to show that the said Sarah Clark, at the time of her death, had in her possession a number of the same notes described in the list appearing in the said report, and that she had a sum of money on deposit in a bank to her credit as executrix, and that such notes and money came into the possession of the said appellee, Keplinger. and were in his possession at the time of the

filing of the petition, as administrator of her estate; but the court held that the appellant, Kinney, was to be regarded as an administrator de bonis non of the estate of the said William C. Clark, and that his powers extended only to the recovery of goods, chattels, and effects of the deceased which remained unadministered in specie, and to debts due to the said William C. Clark during his lifetime and unpaid, and that he had no power to call upon the administrator of the executrix of the estate of the said William C. Clark to account for any part of the estate except such as was held in specie and kind by the deceased testator. Under such ruling the petition was dismissed. The briefs of counsel are directed almost exclusively to the discussion of the correctness of this ruling, and no other question need have our attention.

The county court, upon the death of the said Sarah Clark, executrix, construed the will of the said William C. Clark to direct the appointment of the appellant, Kinney, as executor of the said will, and we think such the correct construction of that instrument. The clause in the will which we think should be deemed an appointment of the said Kinney as executor was inartistically drawn, but when the purpose and plan of the testator, as disclosed by an examination of the will in all of its parts, are considered în connection with the language of the clause, it seems to us beyond controversy that it was the intention of the testator that the appellant should administer the will as his executor after the death of his wife, Sarah. The plan of the will is plain and simple. It is that the debts of the testator should be paid; that his wife, Sarah, should enjoy the use of his real and personal property during her natural life, and that after her death such of his property as remained should be applied to the payment of the different legacies specified in the will, and if, after such legacies should be paid, there should be a surplus remaining, it should be distributed under the rules of the statute of descent, except that certain legal heirs designated in the will should be excluded from distribution. It was undoubtedly the desire of the testator that his widow, Sarah, should act as his executrix, but it is equally clear he did not expect that all of the duties which he required his executor should perform would or could be performed by his wife, Sarah, for the reason that he imposed duties upon his executor which were not to be performed until after the death of the said Sarah. Keeping this in view, we may, without difficulty, arrive at a satisfactory conclusion as to the proper construction of that portion of the will relating to the desire of the testator as to whom the administration of the will should be committed, and we find the language employed in the will is consistent with the view that the testator desired that his wife, Sarah, if alive at the time of his

death, should act as his executrix so long as she should live and be able to so act, and that upon the death of the said Sarah the said appellant, Kinney, should succeed his wife as executor, and should, to quote the words of the will, "dispose of my real and personal property to the best advantage, as he sees fit, and make distribution according to the provisions of the will and testament," and, to transpose the remaining words of the sentence of the will, "as soon as possible after the death of my wife, Sarah Clark,” and is inconsistent with the view the said. Kinney should only act as his executor in the event his wife should not be alive at the time of his death. The plan and purpose of the testator demanded that some one should act as executor after the death of the said Sarah, and any other construction of the will would defeat his intention, and do violence, as we think, to the meaning of the words. employed to carry the plan into execution. He selected appellant, Kinney, to succeed his wife and complete the settlement of his. affairs.

It was entirely competent for the said testator to empower his wife, Sarah, to act as his executrix during her lifetime, and to select and name the appellant as the person to be appointed executor to discharge duties which, under the will, could not be performed during the lifetime of the executrix. Speaking upon this subject, it is said in 1 Williams, Ex'rs (9th Ed.) pp. 288, 289: "The appointment of an executor may be either absolutely or qual-ified. It may be absolute when he is constituted certainly, immediately, and without: any restriction in regard to the testator's effects, or limited in point of time. It may be qualified by limitations as to the time or place wherein, or the subject-matter whereon, the office is to be exercised; or the creation of the office may be conditional It may be qualified by limitations in point: of time, inasmuch as the time may be limited when the person appointed shall begin or when he shall cease to be executor. Thus if one appoint a man to be his executor at a certain time, as at the expiration of five years after his death, or at an uncertain time, as upon the death or marriage of his son, this is a good appointment. Where the deceased appointed two executors, and in case of the death of either of them, appointed two others to be executors in their stead, on the death of the original executor, who had aloneproved the will, the substituted executors were admitted to the office. So, if a man appoints his son to be executor when he shall come of full age, such qualified appointment is good, and in the meantime he has no executor. Again, the testator may appoint the executor of A. to be his executor, and ther if he die before A. he has no executor unt A. die. So, a man may make A. and B. his executors, and appoint that A. shall not intermeddle during the life of B., and by this they shall be executors successively, and not

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