is that guaranty affected by a decree declaring the note itself on which the guaranty was written, and the payment of which was so guarantied, void. The language used in this guaranty, "I hereby guaranty the prompt payment of the within note," by its terms fixed the time at which the payment was to be made as of the date of the maturity of the note; and, if the payment is not made by the maker within the time fixed in the note, there is a breach of the guaranty on which a liability exists, regardless of the fact that no steps have been taken against the principal. A different rule exists when a defense is made to a note by reason of payment or a proper set-off. In such case a defense exists to the guarantor to the same extent as to the maker. A guarantor may make a contract which is collateral, or one which is independent. This guaranty was an absolute undertaking that the maker would pay the note when due, and by the default of the principal an immediate liability existed. The undertaking of the guarantor was an independent contract, not resting on a necessity to exhaust a remedy against the maker; but, by the terms used in the guaranty, it was an undertaking to every subsequent holder that the instrument guarantied was perfectly valid. By a guaranty of this character, the guarantor undertakes to every subsequent holder that the names of the maker and previous indorsers are really in the handwriting of those to whom they respectively purport to belong; and this is carried to the extent that, where a promise has been written upon the note itself, a person guarantying the payment of that note is bound, even though the names of prior parties, or some one of them, were in fact forged. Veazie v. Willis, 6 Gray, 90. And it has been held that where a party to a certificate of deposit transferred it to another, who had no connection with, and was ignorant of the circumstances attending its origin, with the guaranty of the payment thereof, the guarantor was liable for the amount of the certificate, although it was void for matter de hors its face; and the court said the guaranty was, in effect, the representation that the instrument or claim was perfectly valid, as well as a promise to pay it. Purdy v. Peters, 35 Barb. 239.

Under the terms of this declaration, the guaranty of the payment of the note by the signers to that guaranty was a condition precedent to its purchase by the Central Trust & Savings Bank, and it is further averred that its acceptance by that bank was because of its reliance on the guaranty. The contract thus made by the guarantors of the note was a promise as to its legality, and a liability which was not dependent on the prosecution of a suit against the maker of the note, nor dependent on the validity or legality of the note. If the liability of a guarantor of commercial paper were dependent on extraneous circumstances not appearing on or

suggested by the face of the instrument, and such guaranty might be rendered invalid because of fraud, forgery, or other circumstances that might be set up as between the maker and the acceptor of the paper, it would practically destroy the value of commercial paper, and unsettle business transactions, to the great detriment of public interests. The guaranty is a contract by which the validity of the instrument is represented, and is binding on the guarantor to the full effect of such representation. Such being the case, the fact that the Western Wire Works, whose name was appended to the note, was placed there by the treasurer without authority, thereby rendering its execution, as against the maker, invalid, did not change the liability of the guarantor on his contract, because its effect -the effect of the contract of the guarantor -was to represent the note as valid and binding. Such liability existing by reason of the guaranty was not defeated because of the want of authority of the maker of the note to sign the name of the corporation. The decree entered declaring the note fraudulent and void because of the want of authority in the treasurer to sign the name of the corporation thereto did not constitute a defense in favor of the guarantors, and the plea was bad. The demurrer was properly sustained by the trial court. It was error in the appellate court to reverse the same. The judgment of the superior court of Cook county is affirmed. and that of the appellate court for the First district is reversed. Judgment reversed.

ARNOLD et al. v. ALDEN et al.1 (Supreme Court of Illinois. April 21, 1898.) TRUSTS-COMPENSATION OF TRUSTEE-OBLIGATION OF CONTRACTS-WILLS-ISSUE-SURVIVORSHIP-COSTS.

1. Act June 17, 1891, giving compensation to trustees who "shall hereafter act" under any power or appointment created by will, applies to services of a trustee subsequently rendered, although the trust was created before the statute became effective.

2. The acceptance of a gratuitous trust does not establish a relation of contract with the trustee, and hence the allowance to him of compensation under Act June 17, 1891, subsequentÎy enacted, does not impair the obligation of

any contract.

3. Where a testator devises property for the use of his brothers and sisters, and to the "child or children" of deceased brothers or sisters. by representation, with remainder over in fee to such beneficiaries after 21 years, the "child or children" to take the same share the father or mother would have taken if living, and, in case of death of any brother or sister leaving "no issue," remainder over to the survivors. the meaning of "issue" is limited by "child or children," and only immediate offspring is intended by such terms.

4. A will contained devises to trustees for the use of the testator's brothers and sisters and their children by representation, with re mainder over in fee to the beneficiaries. It al so provided that, if any brother or sister died without issue, the share such one would have

1 Rehearing denied June 10, 1898.

taken if living should "be equally divided among surviving brothers and sisters." Held, that the words of survivorship relate to the death of testator.

5. Where a bill was filed to construe an ambiguity in a will, arising on a claim of an infant grandchild of one of the devisees to share in her undivided interest in the estate, the fee allowed the guardian ad litem should be taxed, as costs, against the whole fund of the estate.

Appeal from circuit court, Dekalb county; Charles Kellum, Judge.

Bill by Philander M. Alden and another, trustees under the will of James S. Waterman, deceased, against Sarah Arnold, an infant, and others, to construe the will, etc. From a decree adjusting the rights of the various parties, defendants appeal. Modified.

This is a bill filed on September 5, 1894, by Philander M. Alden and George S. Robinson, trustees under the will of James S. Waterman, deceased. The bill, as originally filed and as amended, asks for a construction of the will, that the accounts of the trustees be audited and approved, that compensation be awarded them for services performed after July 1, 1891, and that they be permitted to resign their trust, and that successors in trust be appointed. The facts, as set forth in the pleadings and master's report, are as follows: On November 28, 1870, James S. Waterman executed his will by the terms of which he gave to his wife, Abbey L. Waterman, one-third of all his property, and the remaining two-thirds, after some minor bequests, he disposed of by the fourth clause of his will. Said fourth clause is as follows: "Fourth. I give, bequeath, and devise all the rest, residue, and remainder of my estate, both real and personal, to the said Philander M. Alden and George S. Robinson, of Sycamore, Illinois, the executors of this, my last will and testament, hereinafter nominated and appointed, in trust for the use and benefit of my said brothers and sisters, to wit, John C. Waterman, Charles Waterman, Robert W. Waterman, Charlotte Waterman, Mary Wells, and Sarah E. Waterman, to have, hold, manage, and control the same for such purpose for and during the term of twenty-one years from and after the date of my decease, and that, during the continuance of said trust estate as aforesaid, to receive, collect, and pay over to my said brothers and sisters above named the net income and profits thereof in equal proportions to each annually; the child or children of a deceased brother or sister to take the same portion the father or mother would have taken if living. And, at the expiration of said twenty-one years after my decease, I give, bequeath, and devise to my said brothers and sisters, their heirs and assigns, forever, the said rest, residue, and remainder of my estate, both real and personal, to be equally divided between them, share and share alike; the child or children of any de50 N.E.-45

ceased brother or sister to take the same share the father or mother would have taken if living. And in case of the death of any of my said brothers or sisters, leaving no issue, the share such brother or sister would have taken if living to be equally divided among my surviving brothers and sisters." At the date of the execution of the will, all the brothers and sisters of the deceased named in said fourth clause were living. On July 19, 1883, James S. Waterman died, leaving, him surviving, all of said brothers and sisters, except Mary Wells, who had died in March, 1878, leaving, her surviving, four children, to wit, Elizabeth M. Chase, Helen M. Thomas, Abbey J. Kinney, and John Frank Wells. On September 18, 1883, the will was duly probated, and the said Alden and Robinson qualified as executors, and entered upon their duties as such, and also entered upon their duties as trustees under said fourth clause. After the death of the testator, to wit, on April 12, 1891, his brother Robert W. Waterman died, leaving a widow and six children. On May 9, 1891, the testator's sister Charlotte J. Waterman died, unmarried and without children. On October 19, 1883, his brother John C. Waterman died, leaving eight children. On June 7, 1894, his sister, Sarah E. Waterman, a widow, died, leaving, her surviving. three children, to wit, two daughters, Abbey J. Harrison and Clara W. Hayden, and one son, Charles H. Waterman, who are appellants herein, and leaving, her surviving, three grandchildren, to wit, Eva J. Burley, Charles F. Arnold, and Sarah Arnold (the latter a minor), children of a deceased daughter of Sarah E. Waterman, named Mary C. Arnold, who died January 1, 1891. The said Sarah E. Waterman also left, surviving her, two grandchildren, named Minnie Scott (Statt) and Arthur Rowley, the children of a deceased daughter of Sarah E. Waterman, named Frances A. Rowley, who died in March, 1878. A guardian ad litem was appointed for the minor Sarah Arnold. The five grandchildren of Sarah E. Waterman are also appellants herein. The testator's brother Charles Waterman is still living, and has one son, named Waldo Waterman. All of said children and grandchildren and said surviving brother are made parties defendant to the bill and the amendment thereto. Some of the defendants answered, and some demurred to. the bill; and some answered a portion, and demurred to other portions, of the bill. Before the filing of the present bill there had been an accounting in a court of chancery, settling the account of these trustees from the time of their acceptance of the trust up to August 15, 1893. Some of the facts in relation to said former bill and accounting may be seen by reference to the case of Waterman v. Alden, 144 Ill. 90, 32 N. E. 972.

In the case at bar an order of reference was made to a special master to examine

and state the account from August 15, 1893, between said trustees and the various cestuis que trustent named in the bill, and to report what would be a reasonable compensation to be allowed said trustees and the surviving trustee, Alden, from July 1, 1891, to July 19, 1896, for collecting and disbursing income. The master found that the sum of $2,500 would be such reasonable compensation. No exception was taken to this finding.

The court found, on issue joined on demurrer, that the trustees were entitled to the compensation found by the master, by virtue of the act of 1891, and decreed accordingly. The master found (and the court decreed in accordance with such finding) that, by the true construction of said will, the words of survivorship contained in said fourth clause related to the time of the death of said testator; that the children of said Mary Wells take the share to which their mother would have been entitled had she survived the testator; that upon the death of said Charlotte J. Waterman, leaving no child or children, or descendants of any child or children, the share of income accruing after her demise, and the principal fund, which would have gone to her had she survived to take the same under the will, belonged to the brother and sister surviving Charlotte, to wit, Charles and Sarah, and the children of deceased brothers and sisters, taken as a class, and constituting, with the brother and sister, five classes; the surviving children of deceased parents taking in equal proportions the shares their respective ancestors would be entitled to if living. The decree of the court below also ordered that the children of Mary Wells, deceased, taken as a class, on the death of the testator, took, as vested and certain estate, in equal parts, the share of said Mary Wells, to wit, an undivided one-sixth of said trust estate, afterwards, by the death of Charlotte, enlarged to an undivided one-fifth; also, that, on the decease of John C. Waterman, his children, taken as a class, took, as vested and certain estate, in equal parts, the share of the said John C. Waterman, to wit, an undivided one-sixth, enlarged as aforesaid to an undivided one-fifth; that, on the death of Robert W. Waterman, his children, taken as a class, took, as a vested and certain estate, in equal parts, his portion, amounting to onefifth, as aforesaid, except the portion of the income upon one-sixth which had accrued prior to the death of said Robert. The court also ordered and decreed that, on the death of Sarah E. Waterman, her surviving chil dren, taken as a class, took, as vested and certain estate, in equal parts, the portion of said Sarah E. Waterman, to wit, an undivided one-sixth, enlarged to one-fifth, as aforesaid, except such part of the income upon the share of said Sarah as had accrued before her death.

Plum & Cloyes, for appellants Harrison and others. W. C. Kellum, for appellants

Charles F. Arnold, Minnie Scott, Eva J. Burley, and Arthur Rowley. Carnes & Dunton and John P. Wilson, for appellee P. M. Alden.

MAGRUDER, J. (after stating the facts). 1. The first question in this case is whether the court below decided correctly that the trustees were entitled to compensation, under the provisions of the act of June 17, 1891, for services rendered as trustees since July 1, 1891. The act of June 17, 1891, entitled "An act concerning compensation of trustees," is as follows: "That, where a trustee or trustees shall hereafter act under any power or appointment given or created by any will, testament, or codicil, and in such will, testament or codicil, except in case of trusts for charitable, religious or educational purposes, shall be contained no provision respecting the compensation to be allowed or paid such trustee or trustees, a reasonable compensation may be charged and allowed, demanded and collected therefor." In the case at bar the trustees had acted as executors and trustees under the will for nearly eight years before the act of 1891 went into effect. The will contained no provision allowing them any compensation, and they received no compensation for their services as trustees prior to July 1, 1891. When they accepted the trust under the will, and entered upon their duties as such, there was no law in this state which entitled them to compensation for their services. The rule, laid down in the text-books, and established by the courts of equity in England, is that a trustee is not entitled to compensation for his services. Prior to the passage of the act of 1891, we decided in several cases that the English rule is formally established in the jurisprudence of this state. Buckingham v. Morrison, 136 Ill. 437, 27 N. E. 65; Cook v. Gilmore, 133 Ill. 139, 24 N. E. 524. Counsel for appellants contend that, inasmuch as the trustees here began their services under the will, as trustees for the estate, under the old rule, which allowed them no compensation, they cannot receive compensation for services rendered since the passage of the act of 1891. In support of this contention, the well-known rule is invoked that the legisla ture has no power to pass an act impairing the obligation of contracts. It is said that, by assuming the trust when no compensation was allowed, they thereby agreed to complete the trust without compensation. The validity of this contention depends upon the further question whether the original assumption of the duties of trustees under the will, without the right to receive any compensation under existing law, involved in it any element of contract. The reason given in the authorities for not allowing compensation to trustees at common law was based upon grounds of public policy. The rule was based upon the principle that the trustee should execute the trust for the benefit of the beneficiary alone, and should derive no

profit by reason of the trust. The authorities do not intimate that the relation of trustee and cestui que trust, or the relation between the creator of the trust and the trustee, is one of contract. The act refers to trustees, who "shall hereafter act" under any power created by will. There is no statement that the trustees are those who shall thereafter act under wills to be thereafter executed, or whose appointment, or entry upon the discharge of their duties, shall take place after the passage of the act of 1891. The language refers to future action by trustees, whether under existing wills, or under wills to be executed in the future. It has been held that the recovery of costs is controlled by statutes in force at the time the right to costs accrues, and that it is competent for the legislature, at any time during the progress of a suit, to create an allowance for services not before provided for, and to increase or diminish or wholly abolish such allowance as existed at the beginning of the suit. Supervisors v. Briggs, 3 Denio, 173. "A person who accepts an office to which no compensation is attached is presumed to undertake to serve gratuitously, and he cannot recover anything upon the ground of any implied contract to pay what the service is worth." Mech. Pub. Off. § 856. In the absence of a constitutional provision, and when an office is created by statute, there is no contract for the permanence of the compensation. Such an office is wholly within the control of the legislature creating it, and the compensation of the of ficial holding it may be altered or diminished or terminated altogether during his term of office. Id. § 857; People v. Lippincott, 67 Ill. 333; Mayor, etc., of City of Hoboken v. Gear, 27 N. J. Law, 265. The question of the compensation of a trustee under a will, under such facts as exist in the present case, would seem to come within the doctrine thus announced in relation to costs in litigation, and in relation to the compensation of public officers. In New York it has been held that the commissions of testamentary trustees are governed by the law in force at the time of the settlement of their accounts. In that state, where an accounting went back to 1883, and an act of the legislature was passed in 1892 changing the rate of compensation of testamentary trustees, it was held that such trustees were entitled to full commissions, under the act of 1892, not only as to income received and disbursed after the passage of the act, but also as to income received and disbursed prior to the passage of the act. Naylor v. Gale, 73 Hun, 53, 25 N. Y. Supp. 934; Savage v. Sherman, 24 Hun, 307; Id., 87 N. Y. 283; Dakin v. Demming, 6 Paige, 95. We do not hold, nor is it necessary to hold, that the trustees here are entitled to compensation for any services rendered before the passage of the act of 1891, because no compensation for such services is demanded. In Alabama, where an

act had been passed on February 19, 1867, to increase the compensation of executors, an accounting was had after the passage of that act for services beginning in 1861; and it was held that the executors were entitled to the rate of compensation provided by the act of 1867 for services rendered after the passage of the act. Key v. Jones, 52 Ala. 238; Gould v. Hayes, 19 Ala. 438. The fact that the trustee has received compensation as executor or administrator does not necessarily deprive him of his right to compensation for services rendered as trustee, provided the duties are separate. 2 Am. & Eng. Enc. Law, p. 191. We are of the opinion that the court below committed no error in allowing to appellees herein compensation for their services as trustees after July 1, 1891.

2. The next question which arises in this case grows out of the controversy between the appellants Abbey J. Harrison, Clara W. Hayden, and Charles H. Waterman, who are the children of Sarah E. Waterman, deceased, on the one hand, and the appellants Sarah Arnold, Charles F. Arnold, Eva J. Burley, Minnie Scott, and Arthur Rowley, who are the grandchildren of said Sarah E. Waterman, on the other hand. When Sarah E. Waterman, sister of the testator, died, on June 7, 1894, she left the three children and the five grandchildren above named; the lat ter being the children of daughters of Sarah E. Waterman, who died before Sarah E. Waterman died. It is claimed by said children that they are entitled to take the whole of the share which their mother, Sarah E. Waterman, would have taken if she had lived, to the exclusion of said grandchildren. It is claimed by said grandchildren that they are entitled to take per stirpes the shares that their respective mothers, Mary C. Arnold and Frances A. Rowley, would have taken if they had been alive when their grandmother Sarah E. Waterman died. In other words, the contention on the part of the grandchildren is that the one-fifth share which would have gone to Sarah E. Waterman, if living, should be divided into five equal parts, three of which should go to her children now living, and the other two of which should be divided per stirpes between the issue of her two deceased daughters, Mary C. Arnold and Frances A. Rowley. The solution of this question depends upon the further question whether the language of the fourth clause of the will was intended to include the grandchildren of a deceased brother or sister of the testator, or whether such language should be limited to the child or children of any such deceased brother or sister. The court below held that the children alone of Sarah E. Waterman were entitled to take the whole of her share. The fourth clause of the will nowhere provides that the grandchildren of the testator's deceased brothers or sisters are to take any portion of the estate. If such grandchildren have the right to take, it must be because

the words "child or children" are so construed as to include the enlarged meaning of "grandchild or grandchildren." It is said that the word "issue," as used in the last sentence of the fourth clause of the will, includes in its meaning grandchildren, as well as children, and that, as the expressions "child or children" and "issue" are used interchangeably, and with the same signification, the meaning of the words "child or children" will be enlarged so as to correspond with the meaning of the word "issue." Under the authorities, however, and the rules of construction therein laid down, the word "issue," as it occurs in the fourth clause, will be limited in its signification to correspond with the words "child or children." It is true that the word "issue," as a general thing, means lineal descendants, indefinitely. But whether it means descendants generally, or merely children, will depend upon the intention of the testator, as indicated by the context in which it occurs, or by the language of the entire will. Hence the word "issue" is said to be an ambiguous term. The word "issue," as used in the will, will be construed as synonymous with "children," when such appears from all the language used to have been the intention of the testator. When the word "issue," in one part of a limitation, is explained by the word "children," in another, it will be inferred that the testator intended the word "issue" to denote children. It is only where the word "issue" is not qualified or explained that it is construed to include grandchildren as well as children. But words and expressions are to be construed naturally, and to be taken in their ordinary, proper, and common acceptation, unless it clearly appears in the will that they are used in a different sense. According to the popular signification of the word "children," it denotes the immediate offspring, and will not be construed to mean grandchildren unless a strong case of intention or necessary implication requires it. Again, when the word "issue" is used in reference to the parent of that issue, as where the issue are to take the share of the deceased parent, it must mean his chil dren; that is, the word "parent" confines the word "issue" to the children of the taker. 11 Am. & Eng. Enc. Law, pp. 872, 873, 875; Adams v. Law, 17 How. 417; Palmer v. Horn, 84 N. Y. 516; Reeves v. Brymer, 4 Ves. 692; Mowatt v. Carow, 7 Paige, 328; Baker v. Bayldon, 31 Beav. 209; King v. Savage, 121 Mass, 303; Taylor v. Taylor, 63 Pa. St. 484. Jarman, in his work on Wills, in discussing the question whether the word "issue" shall be construed as synonymous with "children," or as admitting descendants of every degree, says: "The latter, it is presumed, will be its construction, in the absence of a restraining context. * If the testator annex to the gift to the issue words of explanation, indicating that he used the term 'issue' in a special and limited

* *

sense, it is, of course, restricted to that sense." He then cites cases where "issue" is explained to mean "children." 2 Jarm. Wills (Bigelow's 5th Ed.) p. 440. Chancellor Kent says: "A power to appoint to children will not authorize an appointment to grandchildren. This is a settled rule." And. in a note to the text which contains the last quotation, it is said: "A gift to children does not include grandchildren." 4 Kent, Comm. (14th Ed.) p. 345.

Applying the definitions laid down in the authorities thus referred to, to the fourth clause of the will, we can come to no other conclusion than that the word "issue" means "child or children," and that the court below correctly interpreted the will in this particular. Clause 4 provides that the trustees shall pay over to the brothers and sisters of the testator "the net income and profits thereof in equal proportions to each annually, the child or children of a deceaseď brother or sister to take the same portion the father or mother would have taken if living." The fourth clause further provides that the rest, residue, and remainder of the estate, both real and personal, shall be equally divided among the brothers and sisters, share and share alike; "the child or children of any deceased brother or sister to take the same share the father or mother would have taken if living." It will thus be observed that the fourth clause makes use twice of the words "child or children," and that it uses the words "child or children" in reference to, and in connection with, the father or mother of such child or children. If the word "parent" confines the word "issue" to the children of the taker, there is no reason why the words "the father or mother" should not also confine the word "issue" to the children of the taker. Immediately after the language in the fourth clause, where the words "child or children" occur, as above quoted, follows this clause: "And in case of the death of any of my said brothers and sisters, leaving no issue, the share such brother or sister would have taken if living to be equally divided among my surviving brothers and sisters." Manifestly, the meaning of the word "issue," as thus used in the last sentence quoted, must be determined by the context, and by the language immediately preceding. The signification of "issue," as here used, must be limited to child or children, because the context restrains it to such meaning. Nothing in the context tends to show that the word "children" was used in such an enlarged sense as to include grandchildren. On the contrary, the language tends to show that the word "issue" is here used in the restrictive sense of children. The intention of the testator, which must govern in all cases of construction of wills, was evidently to limit the shares of his deceased brothers and sisters to their children, and hence his intention must have been that the word "issue"