lander should have been determined by fixing the value of the several life estates according to the mortality tables. By the provisions of this will the brother and sisters of the testatrix are not given a life estate in a portion of the income of the trust estate. The trust period is fixed at 20 years, and these beneficiaries are each of them given a definite portion of the income from the trust estate during the whole of that period. It is then provided that, in the event of the death of any or all of these three beneficiaries before the termination of the trust, the portion of the income devised to the one or ones so dying shall be disposed of in the particular manner specified. In the event of the death of all three of the beneficiaries before the termination of the trust, then, under the provisions of the will, Edwin Newlander would receive seven-ninths of the should be paid to her sister Lottie Newlander the death of the testatrix. By this method and her nephew Edwin Newlander in equal Edwin Newlander was charged with $29,535.portions, and, if either should die before the 89 and the total tax assessed was $2,134.95. termination of the trust, then the whole Appellants contend that this assessment is should be paid to the survivor. In case her erroneous, and insist that under the will the brother, David, should die before the termi- testatrix gave her brother and her two sisnation of the trust, then his share of the ters seven-ninths of the trust income for a income should be paid to May Goodman, and, period of 20 years, or, if they did not live in case she should die, then David's share that long, for the period of their natural should be paid to Lottie Newlander and Ed-lives, and that the interest of Edwin Newwin Newlander, or the survivor of them, in equal portions. In case Lottie Newlander should die before the termination of the trust, it was provided that her share of the income should be paid to Edwin Newlander and May Goodman, or the survivor of them. The will then provided that upon the termination of the 20-year period the trustees should divide the estate into four equal parts, and distribute to May Goodman, Lottie Newlander, and David Goodman each one part, and to Arthur Marks, Sampson T. Marks, and Lester Goodman one part, to be divided equally among them. It will thus be seen that sevenninths of the income from the trust estate was made payable to her brother and two sisters for a period of 20 years, with the provision that, should her said brother and sisters all die before the termination of the 20 years, seven-ninths of the income from the trust estate should be paid to Edwin New-income from the trust estate. This is such a lander for the remainder of the trust period. [1] The only question to be determined is whether section 25 of the Inheritance Tax Act should be applied in determining the amount of inheritance tax which should be assessed. Section 25 provides that, when property is transferred or limited in trust or otherwise, and the rights, interests, or estates of the transferees or beneficiaries are dependent upon contingencies or conditions whereby they may be wholly or in part creat-possible under the provisions of the Inherited. defeated, extended, or abridged, a tax ance Tax Act. A nephew is entitled to less shall be imposed upon said transfer at the exemptions and is taxed at a higher rate highest rate which on the happening of any than a brother or sister. Under the proviof the contingencies or conditions would be sions of this will the brother and sisters of possible under the provisions of the act, and the testatrix did not receive an amount equal such tax so imposed shall be due and payable to their exemptions, and therefore their esby the executors or trustees out of the prop-tates were liable to no tax. To impose the erty transferred. It also provides that upon the happening of any contingency whereby the property, or any part thereof, is transferred to any person taxable at a rate less than the rate imposed and paid, such person shall be entitled to a return of so much of the tax imposed and paid as is the difference between the amount paid and the amount which said. person, corporation, or institution should pay under the inheritance tax laws, with interest thereon at the rate of 3 per cent. per annum from the time of payment. The county court applied section 25, and charged Edwin Newlander, a nephew of the testatrix, with seven-permitted, every person and corporation will ninths of the income from the trust estate for the period of 15 years, assuming that May Goodman, David Goodman, and Lottie Newlander would die within five years after contingency as is contemplated by section 25. People v. Byrd, 253 Ill. 223, 97 N. E. 293; People v. Freese, 267 Ill. 164, 107 N. E. 857. The estate of Edwin Newlander is dependent upon contingencies whereby it may be wholly created, and comes clearly within the provisions of that section. The county court did not err in imposing the tax at the highest rate which, on the happening of the contingencies provided for by the will, would be highest rate possible it was necessary to assume that the contingencies mentioned, namely, the deaths of the brother and sisters of the testatrix, would happen, and that Edwin Newlander, a nephew, would receive sevenninths of the income from the trust for the remainder of the 20 years. [2] It is urged that any construction of section 25 which gives the county court power to limit or arbitrarily fix the use of the beneficiaries of the trust income to five years, or any other arbitrary term, is unconstitutional. The basis of this contention is that, if this is not be required to pay a tax in proportion to its, his, or her property under a law which shall be uniform as to the class upon which it operates. By fixing the time within which it an accidental injury arising out of and in the course of his employment. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. 403.] 2. MASTER AND SERVANT MEN'S COMPENSATION ACT-QUASHING RECORD. 417(7)-WORK 268- HEARSAY-CAUSE OF is assumed the brothers and sisters of the testatrix would die at five years, the court acted more favorably towards appellants than they had a right to expect or demand. By following the true intent and purpose of said section 25 in fixing the tax in this case the court should have assumed that the death Where there was evidence presented on of the brother and two sisters of the testa-hearing before the Industrial Board fairly trix would occur immediately. By assuming juries, which resulted in his death, arising out tending to show that the intestate received inthat their deaths would rot occur until five of and in the course of his employment, the years after the death of the testatrix, and in judgment of the circuit court, on certiorari charging them with seven-ninths of the income by the employer, quashing the record of the from the trust estate for that period, appel-improper. Industrial Board awarding compensation was lants were given a benefit to which they were [Ed. Note.-For other cases, see Master and not entitled, and they cannot complain of this Servant, Dec. Dig. 417(7).] action of the court. Section 25 of the Inherit- 3. EVIDENCE ance Tax Act is not unconstitutional upon INJURY. the grounds claimed (Kochersperger Drake, 167 Ill. 122, 47 N. E. 321, 41 L. R. A. 446), and the action of the court in construing it more liberally than it should, so far as the rights of appellants are concerned, does not have any effect upon the validity of the act itself. If the contingencies which it is assumed will happen do not, in fact, happen, then, under the provisions of the act, the excess tax collected will be repaid to the parties entitled to receive the same, with 3 per cent. interest thereon. The state has but one opportunity to assess the inheritance tax. It is only by assessing the highest rate possible under any contingency which may happen, with the provision that the excess will be repaid in event the contingency does not happen, that the state is assured of securing all V. Testimony of the attending physician and a locomotive engineer's brother-in-law, with reference to statements made by the engineer as to the cause of his injury, was incompetent and should not have been admitted on hearing before the Industrial Board in the engineer's administratrix's proceedings for his death under the Workmen's Compensation Act. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1061, 1062; Dec. Dig. 268.] 4. EVIDENCE 268-HEARSAY DECLARATIONS TO PHYSICIAN. attending physician are admissible in evidence Declarations made by one injured to his when they relate to the part of his body injured, his suffering, symptoms, and the like, but not if they relate to the cause of injury. Cent. Dig. §§ 1061, 1062; Dec. Dig. 268.] [Ed. Note.-For other cases, see Evidence, IN 5. MASTER AND SERVANT 403-WORK- that in his employment he was engaged in work causing him to undergo severe physical strain. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 403.] the tax to which it is entitled. If this tax motive engineer from hernia was received in the should be assessed upon the appellants' the-course of his employment from the mere fact ory, and then, long before the termination of the trust, the contingencies provided for in the will should happen and seven-ninths of the income from the trust estate should be paid to Edwin Newlander for the remainder of the trust period, he would escape taxation upon this succession to the estate of the testatrix. No complaint is made on behalf of the people to the action of the court in assuming that the contingency would not happen fmmediately, but would happen within the period of five years. Error to Circuit Court, McLean County; Sain Welty, Judge. Proceedings under the Workmen's Compensation Act by Mary Turpin to obtain compensation for the death of her husband, Joseph Turpin, opposed by the Chicago & Alton Railroad Company, the employer. Compensation was awarded, the employer brought certiorari, and, the record of the Industrial The judgment of the county court is af- Board being filed as return to the writ, it firmed. Judgment affirmed. (274 I11. 336) CHICAGO & A. R. CO. v. INDUSTRIAL 1. MASTER AND SERVANT 403-WORKMEN'S was quashed on the employer's motion, and the Board brings error. Judgment affirmed. Barry & Morrissey, of Bloomington, for plaintiff in error. Bracken & Young, of Bloomington (Silas H. Strawn, of Chicago, of counsel), for defendant in error. COOKE, J. The Industrial Board of Illinois awarded Mary Turpin, administratrix of the estate of Joseph Turpin, deceased, the sum of $3,500, payable in weekly installIn proceedings under the Workmen's Com- ments, against defendant in error for the pensation Act (Hurd's Rev. St. 1915-16, c. 48, §§ death of her intestate, in a proceeding under 126-152), the burden was upon the administratrix to show by some competent evidence the Workmen's Compensation Act. The recthat the death of her intestate was caused by ord of the board was filed in the circuit court of McLean county as a return to a writ of certiorari, where the same was quashed on motion of defendant in error. The circuit court certified that this is a proper case to be reviewed by this court. attending physician, Turpin's fireman, and George A. McDonald, his brother-in-law. The physician testified to the condition in which he found Turpin when he called upon him on July 6th of his inability to reduce the her[1, 2] It will be necessary for us to con- nia, and of the operation which was persider but one of the reasons assigned by de-formed at the hospital. During his examinafendant in error why the action of the cir- tion he was asked what history, if any, the cuit court in quashing the record of the In-patient gave him of the injury when he was dustrial Board was proper and should be affirmed. One of the contentions made in the court below and one of the principal contentions made here is that there was no competent evidence tending to show that Joseph Turpin was injured while in the employ of defendant in error. The burden was upon the administratrix to show that the death of her intestate was caused by an accidental injury arising out of and in the course of his employment. Armour & Co. v. Industrial Board of Illinois (No. 10719) 113 N. E. 138. If there was evidence presented on the hearing before the Industrial Board which fairly tended to show that Turpin received injuries which resulted in his death, arising out of and in the course of his employment by defendant in error, the judgment of the circuit court was wrong and must be reversed. Armour & Co. v. Industrial Board of Illinois, supra; Munn v. Industrial Board of Illinois (No. 10630) 113 N. E. 110. Joseph Turpin was an engineer employed by defendant in error and for some time prior to his death was employed in the capacity of an "engine tamer." It was his duty to take engines which had been overhauled and repaired and break them in before they were put into regular service. This was done by running the engine back and forth in the yard limits. If he found no defect in the engine he reported it as ready for service. If any defect was found, it was his duty to report the same. On July 2, 1914, an engine was turned over to Turpin to break in which had been taken out of service on May 1, 1914, and placed in the shops at Bloomington for a general overhauling, where it remained until that day. Turpin and his fireman operated this engine, working with it practically all day for the purpose of determining whether it was in proper condition for service. The next day Turpin worked on another engine. The next day, July 4th, was a legal holiday. The next day, July 5th, was Sunday. The next day, July 6th, Turpin reported for work and stated he was not feeling well and returned home. A physician was called, who found him suffering from a strangulated or incarcerated hernia. He was removed to a hospital, where an operation was performed, and he soon afterwards died. It is claimed that Turpin received the injury which produced the hernia in working with the engine which had been turned over to him on July 2d. The only testimony which has any bearing upon the question of how the injury was received was that of the called to treat him. An objection to this question was overruled, and the physician replied that Turpin said he was directed to determine the condition of an engine, and he got on it and ran it out and undertook to shift the lever and had a great deal of difficulty in doing so, and in shifting the lever took a pain in his side and from that time. on he had the pain. The doctor testified that the hernia was a recent one, and that hernia was usually produced by a sudden strain upon the abdominal muscles, and that the cause of this man's injury, in his judgment, was some violent physical exertion. This physician was corroborated by other physicians as to the usual cause of hernia and that this hernia had resulted from a recent cause. The fireman testified that on July 2, 1914, he and Turpin were handling switch engine No. 95; that they ran the engine back and forth along a two-mile track inside the city limits about twenty-five times; that in throwing the reverse lever it worked hard, and on one occasion Turpin requested him to assist him in throwing it; that the witness did so; and that it required considerable exertion for the two of them to throw the lever. He testified that Turpin made no complaint at any time that day of being hurt, and that this engine was sent out to work in the yards the next day. The next day they handled engine No. 76 and were on duty until about 3 o'clock. The fireman did not see Turpin again until Monday morning, July 6th, when he complained that he was not feeling well and stated that he was going home. McDonald testified that he was living at Turpin's home in July, 1914; that on July 2d he was eating supper when Turpin came home; that Turpin sat down at the table, ate a little, then got up, and said he had hurt himself handling the engine that day; that he believed he had strained himself. This testimony was given, over objection, in response to an inquiry as to what complaint he had made about pain or suffering. He said that Turpin complained of a distress across his bowels, and said he would not be surprised if he had injured himself in handling the engine. From that time on he ate but little solid food and complained of this pain in the bowels. This is the only testimony offered which in any way tended to prove that Turpin came to his death by reason of an accidental injury arising out of and in the course of his employment. [3-5] The testimony of the physician and [Ed. Note.-For other cases, see Wills, Cent. Dig., 88 2139, 2140, 2150-2155; Dec. Dig. 836.] 3. WILLS 450-CONSTRUCTION-INTENTION. In determining the intention of testator, which, when ascertained, is to be carried out, if not prohibited by law, his whole plan and all the parts of the will are to be considered. Dig. § 966; Dec. Dig. 450.] [Ed. Note. For other cases, see Wills, Cent. 4. WILLS 836-CONSTRUCTION-PAYMENT OF DEBT OF REMAINDERMAN. of McDonald in reference to statements made | uted are not chargeable against the interests as by Turpin as to the cause of his injury were remaindermen of his children. incompetent and should not have been admitted. Declarations made by one injured to his attending physician are admissible in evidence when they relate to the part of his body injured, his suffering, symptoms, and the like, but not if they relate to the cause of the injury. Illinois Central Ry. Co. v. Sutton, 42 Ill. 438, 92 Am. Dec. 81; Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625, 45 N. E. 563, 54 Am. St. Rep. 486. This rule is even more rigorously enforced as applied to lay witnesses. Excluding the testimony of the physician and of McDonald as to the statements made by Turpin as to the cause of his injury, there is nothing whatever left upon which to base the conclusion that the injury was received while Turpin was in the course of his employment. The burden rested upon the administratrix to prove that the injury was so received, and it will not be inferred that the injury was so received from the mere fact that it was proven that Turpin, in his employment with defendant in error, was engaged in work which caused him to undergo a severe physical strain. It was incumbent upon the administratrix to show by some competent evidence that the injury was actually received in the course of his employment. It is not indispensable that this be done by direct and positive evidence, as it may be shown by any circumstance which fairly tends to prove it. As there was no evidence tending to show this, the court properly quashed the record of the Industrial Board, and its judgment is affirmed. Judgment affirmed. Under a will devising testator's estate in trust to pay off the incumbrances thereon, and thereafter to pay the income to testator's children, share and share alike, and in case of the death of any one of them, to his or her children, share and share alike, and providing that money W., shall be paid by O. to the trustees, and in advanced by testator to O., son of testator's son default thereof shall be deducted from any money that shall eventually go to W. and shall be distributed equally between testator's children, children, his share shall go to his surviving chiland in case of the death of any of them, leaving dren, share and share alike, W. dying before there was any income to distribute, and O. not having paid his debt to the estate, such debt is to be deducted from the moneys payable to W.'s children, but so that the share of O., if it be sufficient, shall pay it. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2139, 2140, 2150-2155; Dec. Dig. 836.] Error to Appellate Court, Third District, on Appeal from Circuit Court, Ford County; Colostin D. Myers, Judge. Proceeding by James A. Jordan and another against Nettie B. Jordan and others. Judgment on appeal by certain defendants was reversed by the Appellate Court, and plaintiffs bring error. Reversed and remanded, with directions. C. E. Beach, of Paxton, and A. L. Phillips and C. M. Swanson, both of Gibson City, for plaintiffs in error. John H. Passmore and Daniel Riley McMaster, both of Chicago, and Frank Lindley, guardian ad litem, of Danville, for defendants in error. CARTWRIGHT, J. James A Jordan and 1. JUDGMENT 681-RES JUDICATA — TRUSTEES-LIFE TENANT AND REMAINDERMEN. Charles A. Jordan, plaintiffs in error, filed Judgment in proceeding between trustees un- in the circuit court of Ford county their reder a will and one given an equitable life estate port as trustees of the estate of Andrew Jorin the trust fund, contingent on all the debts of the trust estate being paid, which contingency dan, deceased, showing a balance of $3,207.07 did not happen in his lifetime, that debts ow- in their hands, and their petition for an oring the estate by him and a remainderman were der of distribution to the beneficiaries under a charge on, and to be paid out of, the rents the will of Andrew Jordan who might be enand profits coming to him, is not res judicata between the trustees and the remaindermen, who took under and by virtue of the will, as regards liability of their interests for such debts. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1202; Dec. Dig. 681.] 2. WILLS 836-DEBTS OF LIFE TENANT LIABILITY OF REMAINDERMAN. titled thereto. The defendants in error Nettie B. Jordan, Chloa Day Jordan, James Blaine Jordan, Cenoth L. Jordan, William McKinley Jordan, and Homer Jordan, grandchildren of the testator (children of William N. Jordan, who died after the testator), were Under a will giving lands in trust to pay off made defendants, with others. Homer Jorthe incumbrances thereon from its income, and dan was an infant, and a guardian ad litem thereafter to pay the income to testator's chil- was appointed for him. The court made an dren, share and share alike, and on the death of order for the distribution of $3,000, in which any of them, to pay his share to his children, the debts to the estate of one of testator's sons the heirs of William N. Jordan were charg dying before there was any income to be distrib- ed $451.50 for a debt due the estate from ment of all incumbrances aforesaid, it is my will children, and to the heirs of the said Charles A. and desire and I hereby devise to my said grandJordan and James A. Jordan, and the heirs of each taking the share of such deceased parentthat is, such share as such deceased parent would take had not this will been made-share and share alike, it being my intention by this will that at the time, and not before, the title to said real estate shall vest in the heirs of my children or their descendants, and in case of the of each taking the share of the deceased parent, death of any of my heirs, the children and heirs share and share alike. their father. The heirs were also charged | Campbell, wife of R. W. Campbell, and the paywith $1,932.87 which Orvis F. Jordan, a son of William N. Jordan, owed the estate. From that part of the decree charging the children of William N. Jordan with these two items the defendants appealed to the Appellate Court for the Third District. The court made another charge of $347.30 to four of the defendants in error, Nettie B. Jordan, Chloa Day Jordan, Cenoth L. Jordan, and James Blaine Jordan, for money loaned to them by the trustees at the time of their father's funeral and which was due the trustees. There was no dispute about that charge, and no error was assigned upon it in the Appellate Court, but it was expressly excepted from the assignment of errors. The Appellate Court, however, considered that item with the other two and reversed the whole, and remanded the cause to the circuit court to restate the account and enter a decree directing distribution according to the opinion of the Appellate Court. It is admitted that the Appellate Court erred with respect to the charge of $347.30, about which there was no complaint. A writ of certiorari was allowed to bring the record to this court, and the controversy here, as in the Appellate Court, is concerning the two items of the indebtedness of William N. Jordan and Orvis F. Jordan, Andrew Jordan died on June 28, 1901, leaving a widow and five children. He was the owner of 880 acres of farm lands, a house and four lots in Gibson City, a vacant lot in a suburb of Chicago, and personal property of the value of about $20,000. The farm lands were incumbered for about $40,000, and there was a considerable amount of unsecured indebtedness. He left a last will and testament, naming his sons James A. Jordan and Charles A. Jordan, the plaintiffs in error, as executors and trustees, and devising to them his entire estate upon trusts therein declared for the purpose of paying off the incumbrances from the income of the farm lands. Directions were given for leasing the lands, mortgaging the same and renewing incumbrances, the payment of taxes and keeping up repairs, and by that means discharging the incumbrances. The portions of the will material to this controversy are as follows: "That after said incumbrances are paid in full and all the liens against the said lands shall be fully paid and discharged my said executors shall continue to pay the taxes and insurance and keep up reasonable and necessary repairs, and shall then divide the income from said lands, which they shall continue to rent in the manner aforesaid, among my children, share and share alike, and in case of the death of any one of my said children the same to be paid to the heirs, or in case of minority, to the legal guardian of such child or children, share and share alike. The shares from said income to be paid in money to the parties entitled to the same, and to be paid to them in their own hands and not upon any written or verbal order, nor upon any assignment of transfer by my said children or grandchildren. "That after the death of my said children William N. Jordan, John H. Jordan, Nancy E. "That I have advanced considerable money. and may still expend more, for the education of my grandson Orvis Jordan, for which I have taken his promissory notes, and will take such notes for further advancements, and it is my will that he pay the same to my executors, and amount due on said notes shall be deducted from that in default. of his paying the same that the any money that may eventually go to his father, William Jordan, and that such sum so deducted shall be distributed equally between all my children, share and share alike, and in case of the death of any of my said children leaving children surviving him, that the children of such deceased parent share and share alike." William N. Jordan, son of the testator and father of Orvis F. Jordan, died on February 4,, 1910, before the debts of the estate were paid and never having been entitled to anything from the executors from which the debt of Orvis F. Jordan could have been deducted. He left eight children, Orvis F. Jordan, Nellie Jordan McCormick, and the six defendants in error. The report of the trustees filed on April 1, 1913, represented that all debts and obligations of the estate had been fully paid, and that they had in their hands the above stated sum of $3,207.07, to be distributed. The court decided that the debts of William N. Jordan and Orvis F. Jordan were charges on the shares of the children of William N. Jordan and should be deducted from such shares pro rata, and made an order of distribution accordingly. [1] It is contended that the Appellate Court erred in reversing the decree because there was a proceeding in the circuit court of Ford county in which the trustees were the complainants and William N. Jordan one of the defendants, in which a decree construing the will of Andrew Jordan as claimed by the plaintiffs in error was entered in 1904. By that decree the court found that the sums then due the estate by Orvis F. Jordan, and that would be due in the future, were chargeable to the share of the rents and profits accruing to his father, William N. Jordan, to be paid out of that share before William N. Jordan should receive any part of the rents and profits. ment is that this decree was res judicata between the present parties and conclusive of the rights of the defendants in error. But that position is incorrect. William N. Jordan was living at the time of the decree, and he had only an equitable life estate and no interest in the remainder now vested in his children. The will specifically provided that The argu |