jointly. Likewise the testator may appoint a person to be his executor for a particular time or period only, as during five years next after his decease, or during the minority of his son or the widowhood of his wife, or until the death or marriage of his son. In these cases, if the testator does not appoint a person to act before the period limited for the commencement of the office on the one hand, or after the period limited for its expiration on the other, the court of probate may commit administration to another person until there be an executor, or after the executorship is ended." And in 1 Lomax, Ex'rs, p. 172, it is remarked: "Where a testator appoints an executor, and provides that in case of his death another should be substituted, then on the death of the original executor, although he has proved the will, the executor so substituted may be admitted to the office, if it appears to have been the testator's intention that the substitution should take place on the death of the original executor, whether happening in the testator's lifetime or afterwards."

Upon the same point Mr. Redfield, in his work on the Law of Wills (volume 3, p. 72), says: "We have already suggested that different executors may have separate and distinct functions. Thus, one set of executors may be named and others to succeed them in the event of their being incapacitated or unwilling, for any reason, longer to continue the service. *

But two persons may be appointed executors, with a provision that one shall not act during the life of the other; or one may be appointed for a definite period, or during the minority of the testator's son or the widowhood of his wife, or until the death or marriage of his son. If there is an interval between the termination of one executorship and the beginning of another, administration with the will annexed must be given by the probate court." In Hartnett v. Wandell, 60 N. Y. 346, the court had occasion to consider this question, and expressed its conclusions in the following language: "Executors may be appointed with separate functions, or to succeed each other in the event that those first named shall die, become incapacitated, or unwilling longer to serve, or two persons may be appointed to act for a definite period or during the minority, or during the absence from the country of one appointed executor. 3 Redf. Wills, 53; Anon., Dyer, 4a; Carte v. Carte, 3 Atk. 174; Pemberton v. Cony, Cro. Eliz. 164; In re Wilmot, 2 Rob. Ecc. 579; In re Langford, L. R. 1 Prob. & Div. 458; Brightman v. Keighley, Cro. Eliz. 43. Different executors may be appointed for different states and countries. Despard v. Churchill, 53 N. Y. 192. These, and numerous other cases that might be cited, are only referred to as showing the great liberality which the courts have exercised in committing the execution of wills to those indicated, in any manner, by the will and in accordance with the intent of the

testator, and so as not to disappoint his wishes, regardless of technicalities." It was ruled in Re Lighton, 1 Hagg. Ecc. 235, and Re Johnson, 1 Swab. & Tr. 17: "But where a testator appoints an executor, and provides that in case of his death another should be substituted, on the death of the instituted executor, although he has proved the will, the substituted executor may be admitted to the office, if it appear to have been the testator's intention that the substitution should take place on the death of the original executor, whether happening in the testator's lifetime or afterwards." And the right of a testator to appoint executors, the one to succeed the other, is also affirmed in Navigation Co. v. Green, 14 N. C. 434.

It seems perfectly clear, therefore, upon authority, and we think equally clear in point of reason and principle, that the county court of Morgan county lawfully commissioned the appellant, Kinney, executor of the last will and testament of the said testator; and in view of the fact that an estate is not fully administered as long as anything is to be done to vest the decedent's estate in the beneficiaries, whether legatees or devisees (Woerner, Adm'n, p. 394), we think the court but performed its duty in so appointing the appellant. The power possessed by the said appellant to possess himself of the assets of the estate of his testator is not to be measured by the rules of the common law with relation to the power of an administrator de bonis non, nor are the various decisions of this court, beginning with the case of Rowan v. Kirkpatrick, 14 Ill. 1, and those resting upon it, relative to the power of such an administrator, to be resorted to in order to determine the authority which appellant, as executor, may lawfully exercise over property belonging to the estate of his testator which had come to the possession of the former executor. The duties and powers of an administrator de bonis non, prior to the amendment of section 37, c. 3, Rev. St., entitled "Administration," by the act of 1887, were restricted by the provisions of said section 37 to the administration of the estate of a deceased not already administered. The rule, therefore, was, as announced in the case hereinbefore last cited, that an administrator de bonis non had no authority whatever over the assets in the hands of a prior administrator, except such as in specie and kind were possessed by the intestate. The effect of the amendment of said section by the act of 1887 need not be considered.

The right which, as we have seen, every testator may exercise of appointing an executor as successor to another executor would be but a barren right if such succeeding executor had no authority beyond that possessed by an administrator de bonis non under our statute prior to the amendment before referred to, and this the case at bar fairly illustrates. The only purpose which could have moved the testator in the case at bar

to designate any one to succeed his wife in the office of executor was that such successor should take the property and effects of his estate remaining in the hands of his wife as executrix and life tenant, and, as his executor, devote it to the accomplishment of the purposes to which he designated and indicated in his will that it should be devoted.

There is no rule of law making it necessary the court should disappoint the wishes of the testator. On the contrary, we think the grant of letters executory to the appellant, and the powers conferred upon him thereby, and the provisions of the will, entitle him to the possession of the assets of the estate of his testator, including those in the hands of the prior executor at the date of her death.

It has always been the rule that the administrator of a deceased executor does not succeed to the estate of the deceased executor's testator. Woerner, Adm'n, p. 394. And the common-law rule announced in 2 Bl. Comm. 506, that a sole executor may transmit to his executor the administration of the estate of his testator, has no application in a case where the original testator designated in his will (as did the testator in this case) a person to succeed as executor in case of the death of the person named to execute the will. Navigation Co. v. Green, supra. No reason is perceived why the appellant may not invoke the aid of any and every remedy provided by law to enable him to possess himself of any goods, chattels, moneys, effects, etc., to which he is entitled by virtue of his authority as executor.

We are not impressed with the force of the argument that the administrator of the former executor in the case at bar may retain possession of and administer upon that which was in the hands of his intestate as executrix, and that the legatees of appellant's testator should present demands for the payment of their respective legacies as claims against the estate of the said prior executrix. We think the assets belonging to the estate of the appellant's testator should be in the hands of the appellant as executor, and he should, as his testator desired, pay such legacies and distribute the remainder according to the provisions of the will. If it can be determined, as is apparent to us it may be, that the administrator of said Sarah Clark has in his possession or control any notes, moneys, or other evidences of indebtedness, securities, or articles of property which his intestate, at the time of her death, held in her capacity of executrix of her husband's estate, such possession should be surrendered to this appellant, as successor to Sarah Clark, as executrix of the said will and testament of said William C. Clark.

The petition filed by the appellant herein called upon the court to proceed in accordance with the provisions of sections 81, 82, c. 3, Rev. St., entitled "Administration," and

such sections vest in the court ample power to enter and enforce an order that the appellee administrator surrender any goods, chattels, moneys, effects, etc., in his hands belonging to the estate of the said William C. Clark to the appellant, as executor of the said estate, if it should appear said appellee had such goods, chattels, effects, etc., in his possession, in his capacity as such administrator or otherwise. Though the literal reading of the said section 81 is that the court may inquire as to the property or effects "belonging to any deceased person," yet the proper construction of the language is that the court may investigate as to the possession of any property belonging to the estate of any deceased person. Blair v. Sennott, 134 Ill. 78, 24 N. E. 969. In the case last cited the provisions of said section 81 were held available to secure to an administrator the delivery of a sum of money which the appellant in the case had received after the death of the intestate, but which of right constituted a part of the assets of the estate. There is no force in the suggestion the said Sarah Clark or her estate should be regarded as a debtor of the estate of said William C. Clark, or as a debtor of those entitled to legacies under the will of said William C. Clark. Her position is more nearly that of a trustee, and the appellant, as her successor in the said trust, is entitled to the possession of that which she held as the assets or fund of the trust. We think that the county court should have determined from the evidence whether the appellee had in his possession any moneys, notes, securities, goods, chattels, or effects which were of the assets of the estate of which the appellant is executor, and should have entered an order directing the appellee to deliver such assets, if any were found to be in his possession, to the appellant. It follows the judgment of the appellate court, that of the circuit court, and that of the county court must be and are reversed. The cause is remanded to the said county court for further proceedings in conformity with the views herein expressed. Reversed and remanded.

HINRICHSEN et al. v. HINRICHSEN et al. (Supreme Court of Illinois. April 21, 1898.) WILLS-NATURE OF ESTATE-VESTED REMAINDER.

A devise of the residue of a testator's real and personal estate to his two sons in esse, subject to an equitable life estate therein given to his widow entitling her to the interest and rents thereof, vests the remainder in said sons; and it is immaterial that, by the next clause of the will, a condition subsequent is created which may devest the estate in remainder on certain conditions, where such conditions have not happened and never can happen so far as the rights of plaintiffs, heirs of one of said sons, are concerned.

Error to circuit court, Logan county; George W. Herdman, Judge.

Bill by Irl E. Hinrichsen and another against Eliza Hinrichsen and others to construe the will of plaintiffs' grandfather Michael Hinrichsen. From a decree in favor of defendants, plaintiffs bring error. Affirmed.

Blinn & Harris and Harts & Humphrey, for plaintiffs in error. Beach & Hodnett, for defendants in error.

CARTWRIGHT, J. The only question in this case is whether plaintiffs in error, Irl E. Hinrichsen and Florence I. Hinrichsen, have any interest, by virtue of the will of their grandfather Michael Hinrichsen, in the property described in the eighth clause of said will. Michael Hinrichsen died October 18, 1882, and by the fifth clause of his will devised to his son Solomon Hinrichsen, for life, with remainder in fee to the heirs of his body, a farm of 388.35 acres, subject to an annual charge of $400 to be paid to the testator's widow, Eliza Hinrichsen, during her life. By the sixth clause he devised in like manner to his son Genaro Hinrichsen, father of plaintiffs in error, for life, with remainder in fee to the heirs of his body, a farm of 480 acres, subject to an annual charge of $500, to be paid to said widow during her life. By the seventh clause it was provided that the sons should not sell or incumber the property so devised, and, in case taxes against | any part thereof were unpaid, an executor should be appointed who should take charge of the property, and out of the rents pay, and thereafter keep paid, all taxes thereon. The eighth and ninth clauses are as follows: "Eighth. It is my will that the residue of my personal estate not hereinbefore devised be put at interest, and my real estate not herein before devised be rented by my executors, and that the proceeds of such interests and rents, after deducting such legal fees and expenses as may be allowed them by the court, be paid to my said wife during her natural life, and at her death the same to be divided equally among my children. Ninth. It is my will that in case either of my said sons shall die without leaving legal heirs of their body or heirs thereof, that the said estate shall be inherited by the remaining son in the same manner and with the same restrictions as are set forth in fifth, sixth, and seventh sections hereof." The property disposed of by the eighth clause consisted of 120 acres of land, a lot improved with a store building in the city of Lincoln, and about $12,000 in notes and securities. Genaro Hinrichsen died October 5, 1895, leaving a widow and the plaintiffs in error, his two children. He also left a will, in which nothing was given to plaintiff's in error, whereupon they claimed title to an undivided half of the property now in controversy, disposed of by said eighth clause, subject to the life interest of their grandmother, by virtue of said will of Michael Hinrichsen, and filed their bill to have said will construed and their rights declared. The circuit court found that they had no interest in the property disposed of by the eighth clause, and dismissed their bill at their costs.

The claim of plaintiffs in error is that the eighth clause, which devised and bequeathed a remainder in fee, after the life estate of the widow, in said real and personal property to Solomon and Genaro Hinrichsen, is qualified by the ninth clause so as to limit a life estate to them with remainder to the heirs of their bodies, and that, when Genaro died, plaintiffs in error took under the will, subject to the equitable life estate of the widow, Eliza Hinrichsen. On the other hand, it is contended that the words "said estate," in the ninth clause, refer to the estate granted by the fifth and sixth, and have no reference to the property disposed of by the eighth, which, it is claimed, was a vested remainder in Solomon and Genaro Hinrichsen. The word "said" is a word of reference to what has been already spoken of or specified, and, if there is a question as to which of the antecedent things or propositions specified is referred to, it is generally held to refer to the last of such antecedent propositions or things. But we do not see that it is material in this controversy whether the reference is to the estate specified in the eighth clause or to the entire estate. By the eighth clause the estate was placed in the hands of the executors, as trustees, to put the personal estate at interest and to rent the real estate, and pay the proceeds of the interest and rents, after deducting the proper charges, to the widow during her natural life. This gave to the widow an equitable life estate in the property, and at her death it was to be divided equally between the testator's children. The sons, Solomon and Genaro, were in being at the death of their father, and having present capacity to take the estate at once upon the death of their mother, the life tenant, the remainder was vested. So far as that clause is concerned, the property was given absolutely, and its enjoyment by the remainder-men was postponed only to let in the life estate in the widow. In such case the remainder is vested. Scofield v. Olcott, 120 Ill. 362, 11 N. E. 351; Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558; Hawkins v. Bohling, 168 III. 214, 48 N. E. 94; President, etc., of Harvard College v. Balch, 171 Ill. 275, 49 N. E. 543. It is immaterial in such case that there is a condition subsequent which may devest the estate, and applying the provision of the ninth clause to the estate would not make the remainder contingent. The ninth clause was limited upon a contingency that did not happen and never can happen as to plaintiffs in error, because their father, Genaro Hinrichsen, is dead, and left them, as his children. What estate, or whether any estate at all. would have gone to Solomon Hinrichsen if Genaro had died leaving no children, is of no importance in this case, except in determining whether the remainder would be made contingent by the provision. So far as that question is concerned, the only effect of applying the provision of the ninth clause to the estate granted by the eighth would be

1. The fact that a dying declaration has been reduced to writing does not preclude evidence of unwritten dying declarations made on other occasions.

2. Where deceased was in such a condition for a week as to make several separate statements by her, within that time, dying declarations, they are all admissible in evidence, though made at different times.

3. Rev. St. 1874, p. 781 (section 55, Prac. Act), providing that papers read in evidence, other than depositions, may be taken by the jury on their retirement, is not applicable to criminal cases which are governed by the common-law rule.

4. Permitting the jury to take with them to the jury room written statements admitted in evidence as dying declarations was an abuse of the discretion vested in the trial court as to what writings shall be delivered to the jury, especially where portions of the statements not admitted in evidence were simply bracketed, and the jury were instructed to disregard them.

5. Dying declarations may be impeached by evidence of statements made by deceased after the abortion which later caused her death had been procured, and while not in extremis, which tend to contradict material parts of the dying declarations.

6. It is objectionable for the court, during the trial of a criminal case, to examine and crossexamine witnesses at length.

7. An objection to evidence must be specific to be available on appeal.

8. In ruling on the admissibility of evidence of defendant to impeach a dying declaration, the court said: "If conversations conceived in the fertile mind of a defendant can be admitted when the woman is dead and cannot refute it, it would render convictions in this class of cases impossible." Held prejudicial error.

9. In a prosecution for murder in procuring deceased to commit an abortion, the indictment in two counts charged that it was produced by the use of calomel, in two other counts that it was by an unknown noxious drug, and in another count that it was by divers means unknown. The evidence for the state showed that defendant furnished deceased with calomel at her home on July 2, 1896, and directed her how to use it to cause a miscarriage, but it was not shown that deceased used or attempted to use any other drug or means, or that defendant furnished calomel to her on any other occasion, or otherwise aided or abetted her in committing the abortion. Defendant denied seeing deceased on that day, and he was corroborated by other witnesses, but he did not deny that he had had sexual intercourse with deceased which might have caused the pregnancy

or that she had had a miscarriage. Held, that it was error to instruct that "even though you may believe that defendant did not, by his own hand and act, produce the abortion charged," yet if the same was committed by some person (whether deceased or another) as charged in the indictment, who was induced by defendant to so commit it, the jury should find defendant guilty; and charging if defendant "did, in manner and form as charged, either by word, act, gesture, sign, or otherwise, intentionally cause or induce, aid, advise, or encourage" deceased to produce the abortion, as charged in the indictment, he was guilty.

Error to circuit court, Pike county; Jefferson Orr, Judge.

James A. Dunn was convicted of murder in procuring the death of Alice Grimes by supplying her with the means to commit an abortion, and he brings error. Reversed.

W. E. Williams and W. H. Crow, for plaintiff in error. Wm. Mumford and Edwin Johnson, for the People.

BOGGS, J. At the November term, 1896, of the Pike circuit court, an indictment was returned by the grand jury charging the plaintiff in error with the murder of one Alice Grimes. At the April term, 1897, of the said circuit court, the cause was tried, and the plaintiff in error adjudged to be guilty of the charge alleged in the indictment, and his punishment fixed at confinement in the penitentiary for a term of 14 years. This is a writ of error brought to reverse the judgment of conviction.

The theory of the prosecution was that the said Alice Grimes became pregnant with child, and that the plaintiff in error, with intent to produce a criminal abortion, supplied her with and induced her to take repeated large doses of calomel; toat the effect of the administration of the said drug caused a miscarriage; and that said Alice Grimes died as the result thereof. The death of said Alice Grimes was fully proven. The evidence that calomel was furnished by the plaintiff in error to her consisted wholly of her dying declarations, nor was there any proof that he advised or counseled her to use calomel, other than such declarations. The proof as to her pregnancy and that an abortion was produced was her dying statements, together with proof of circumstances which the people insist are corroborative upon the point.

The circuit court ruled that the deceased was in such condition, physically and mentally, for a period of seven days prior to her death, that statements made by her were admissible in evidence as dying declarations. Witnesses were produced and allowed to testify to declarations made by her in their presence on four different days, and proof was also made that statements made by her on still another day were reduced to writing and signed by her, and this written statement was produced and read in evidence to the jury. The plaintiff in error objected to the admission of the oral dying declarations

on the ground that where such declarations have been repeated at different times, and at one of which times such statements were reduced to writing, only the written statement is admissible in evidence. The court overruled the objection, and the plaintiff in error excepted, and now urges the ruling of the court as error. The rule, as we understand it to be, is, if the dying statements are reduced to writing and signed by the declarant, the writing is the best evidence of the statement made at that time, and must be produced or its absence accounted for, but that the fact that a declaration has been reduced to writing will not preclude evidence of unwritten declarations made on other occasions. Whart. Cr. Ev. § 295; Bish. Cr. Proc. § 1213; Hoch. Crimes, § 184; McClain, Cr. Law, § 429, and authorities cited in note g.

Nor is the contention of the plaintiff in error tenable that the people are restricted to proof of the declarations made on one occasion only. Such statements, if otherwise admissible, may be proven as made from time to time.

When the jury retired to consider of their verdict, the court, over the objections of the plaintiff in error, permitted the jury to take the written dying declarations into the jury room for their consideration, and this action of the court is urged as error. Section 55 of the practice act (Rev. St. 1874, p. 781), which provides that papers read in evidence, other than depositions, may be taken by the jury upon their retirement, is applicable only to civil cases. The mode of procedure to be observed in the trial of criminal cases is governed by the provisions of division 13 of the Criminal Code (Rev. St. p. 409). The eighth section of the division (1 Starr & C. Ann. St. [2d Ed.] 1896, par. 612, p. 1400) provides that all trials for criminal offenses shall be conducted according to the course of the common law, except when the Criminal Code points out a different mode. Nothing in the said division of the Criminal Code purports to direct what shall be taken by the jury from the bar of the court. The common-law rule in criminal cases was that the jury, when they retired to deliberate on their verdict, should take with them such books and papers which had been produced in evidence as the judge presiding should direct. 1 Bish. Cr. Proc. (3d Ed.) § 982a; Hoch. Crimes, § 250. Whether a writing introduced in evidence in a criminal case should be delivered to the jury to be consulted by them in the jury room, rests in the sound discretion and judgment of the court, and it is therefore not error to permit a jury to take a written statement, unless the reviewing court can say that such course was prejudicial to the defendant, and ought not, in the exercise of sound discretion and judgment, have been pursued. The written statement in question assimilated so nearly to a deposition that all of the reasons which

have by text writers and courts been advanced in support of the view that depositions should not be taken by a jury in their retirement may well be invoked as reasons why this statement should not have been allowed to go into the jury room.

In Rawson v. Curtiss, 19 Ill. 456 (which was decided prior to the enactment of the section of the practice act which excludes depositions from the jury when in their retirement), Mr. Justice Briese, after forcibly stating the injustice of allowing written testimony to be taken into the jury room, declared that the practice of permitting depositions to be taken out by the jury, either with or without the direction of the court, was wrong in practice and should be abolished. This remark of the court applies with greater force to dying declarations than to depositions, regularly and lawfully taken; because, when a deposition is taken, ample opportunity is given the adverse party to appear and cross-examine the witness, and thereby expose any errors, bring out suppressed facts which would weaken or qualify the statement, test the truthfulness, recollection, and fairness of the witness, and aid to determine as to the truth of his statements, while no such opportunity is permitted when a dying declaration is reduced to writing. In the case at bar, dying declarations of the deceased, made on four occasions other than when the written statement was signed, were reproduced by witnesses for the state before the jury. The written statement was read in their hearing. They heard no evidence on the part of the plaintiff in error except such as was testified to by witnesses in their presence, and the testimony so produced in behalf of the plaintiff in error was in direct conflict with material portions of the dying declarations. To deliver the written statement to the jury so they might have it constantly before them during their deliberations, to operate on their sympathies as well as their memory, tended to give a manifest advantage to the people over the plaintiff in error, whose proof was but oral. No reason is suggested, nor is any perceived, why the one party should have thus been given an advantage over the other.

The circuit court ruled that certain portions of the written statement were not admissible in evidence and not competent for the jury to consider, and ordered these portions to be marked, and orally announced the jury should not consider such marked phrases. It appears from the record these incompetent phrases or words were marked by being inclosed with brackets. A similar course was pursued with reference to depositions which the court permitted the jury to take with them in their retirement in the case of Rawson v. Curtiss, supra, and in the course of the criticism upon such practice this court said (page 481): "The jury may or may not have disregarded the marked portions. This cannot be known certainly, as there is no proof to the point, but it is certainly apparent that they had no other instructions. They were not told, in express