(145 N.E.)

[1, 2] Appellant says in its brief that it has raised many points which it believes sound and worthy of consideration, but it concentrates on two points which it considers of more importance and substantially confines its argument to those points. They are that the ordinance providing for the improvement is void, and the verdict of the jury was contrary to and not supported by the evidence.

an attempt to take its property without due | making and collecting the assessment ($625.process of law, in violation of the Constitu- 60), be paid by special tax to be levied on tion. On motion of appellee, the court struck the property in the proportion of the frontfrom the files the second objection and the age or abuttage of each lot or tract upon latter part of the third. A trial was had by the improvement, except as to the right of jury on the objection that appellant's right way of appellant contiguous to the improveof way would not be benefited by the im- ment, the tax was to be levied in proportion provement. The jury found appellant's right to the benefits to the right of way. The difof way would be benefited $10,000 and no ference in the requirements for making a more. The court denied a motion for a new local improvement to be paid for by special trial, reduced the amount taxed against ap- taxation and special assessment, and the dispellant's right of way to $10,000, and con- tinction between the principles governing the firmed the assessment roll, from which judg- two methods, have been so fully discussed ment this appeal is prosecuted. heretofore that it is unnecessary to more than cite some of the cases. City of Sterling v. Galt, 117 Ill. 11, 7 N. E. 471; Davis v. City of Litchfield, 145 Ill. 313, 33 N. E. 888, 21 L. R. A. 563; Palmer v. City of Danville, 154 Ill. 156, 38 N. E. 1067; Lightner v. City of Peoria, 150 Ill. 80, 37 N. E. 69; Kuehner v. City of Freeport, supra. Both forms of taxes are based on supposed benefits to the property, but in special taxation the council determines that the property will be benefited as much as it is taxed. Prior to the amendment in 1895 (Laws 1895, p. 100) of section 17, art. 9, c. 24, Rev. St. 1891, the determination of the council was conclusive. The amendment provided that the ordinance should not be conclusive, but the question of the amount of the benefit of the special tax should be subject to review by the court and tried in the same manner as a special assessment. That amendment did not change the law requiring the council to determine the amount the property to be specially taxed would be benefited, and did not abolish the distinction between a special tax and a special assessment.

Section 3 of the ordinance provides that the cost of the improvement shall be "paid by special taxation to be levied upon the property contiguous to and abutting upon the said improvement, and upon the right of way of the Illinois Light & Power Corporation contiguous to the said improvement, in the proportion of the frontage and abuttage of each lot, block, tract, and parcel of land and property fronting upon the said improvement, except all that portion of the said improvement lying between the outside of the rails of the tracks of the said corporation, and for a distance of eighteen (18) inches on the outside of said rails, which shall be paid for by special taxation to be levied upon said right of way of the Illinois Light & Power Corporation as above described and contiguous to said improvement, * * in proportion to the benefits so derived by said corporation as right of way." The section provided that there should be assessed against the village as public benefits $17,736.54. Appellant contends the ordinance provides for paying the cost of the improvement by a special tax and special assessment combined, and is therefore illegal and void. A single improvement cannot be paid for by special taxation and special assessment combined. Its cost may be paid by either method, but the two methods cannot be combined to provide money to pay the costs of one improvement. Kuehner v. City of Freeport, 143 Ill. 92, 32 N. E. 372, 17 L. R. A. 774; Newman v. City of Chicago, 153 Ill. 469, 38 N. E. 1053; Ronan v. People, 193 Ill. 631, 61 N. E. 1042; City of Chicago v. Brede, 218 Ill. 528, 75 N. E. 1044; Enos v. City of Springfield, 113 Ill. 65.

The estimated cost of the improvement was $66,313.28. The ordinance provided that the cost of the improvement, plus the cost of 145 N.E. -10

The ordinance in this case does not determine the amount required to be raised by special taxation of the property abutting or fronting on the improvement. Appellant's right of way is contiguous to, but does not front or abut upon, the improvement. Kuehner v. City of Freeport, supra; Lightner v. City of Peoria, supra. The ordinance requires the entire cost of the improvement, except the amount assessed against the village, to be paid by special taxation against the property contiguous to and abutting upon the improvement, in the proportion of the frontage or abuttage of each lot or tract fronting upon the improvement, except as to the right of way of appellant the special tax should be levied on that part of it contiguous to the improvement, "in proportion to the benefits so derived" by appellant. That seems clearly to be a combination of the two methods-special taxation and special assessment-of paying the cost of the improvement. The ordinance does not direct what amount shall be taxed, in proportion to frontage, to property abutting the improvement. That could only be determined by the commissioners first determining the amount

The testator owned 110 acres of land in Christian county. His wife, Antje Meyer,

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(145 N.E.)

survived him, and on January 2, 1900, mar- of it, as she may desire." In the other case ried John M. Martens. She died intestate the devise was to the wife of "the homestead on February 3, 1922, having no descendants where we now reside, * * * she to have but leaving besides her husband the children full power to sell all or part of said lots, as or descendants of her deceased brothers and she thinks best." sisters, as her heirs. Martens brought suit in partition, making the other heirs of his wife defendants but not the heirs of Weert H. Meyer. The suit resulted in the sale and conveyance by the master in chancery of the east half of the real estate to Raymond H. Beatty and of the west half to Rupert E. Beatty. The heirs of Weert H. Meyer afterward filed their bill in the circuit court of Christian county against Raymond H. and Rupert E. Beatty for partition of the real estate. Henry Meyer, named in the will, was the son and .only heir of a deceased sister of Antje Meyer, who had been brought up from infancy by the testator and his wife in their home and continued with Antje after the death of the testator. These facts appear from the bill and answer. The complainants filed exceptions to the answer, which were overruled. The cause having been heard on bill and answer, a decree was entered dismissing the bill for want of equity, and the complainants have sued out a writ of error. The sole question in the case arises on the construction of the will-whether it gave to Antje the fee of the real estate, or only a life estate with power to give the remainder to Henry Meyer before her death. If the will gave her a life estate, only, the power not having been exercised at her death, the property descended to the heirs of the testator as intestate property.

[1] The first disposition made by the will, "I give and bequeath to my wife, Antje Meyer, all my real estate and personal property, to have full control after my death," is sufficient, under section 13 of the act concerning conveyances (Smith-Hurd Rev. St. 1923, c. 30, § 12), to vest the fee simple in Antje, and will be given that effect if a less estate be not limited by express words or does not appear to have been devised by construction or operation of law. There are no express words of limitation. The plaintiffs in error argue that the words, "to have full control after my death," added to the language which has been quoted, were clearly intended to restrain and modify the preceding words, for they were unnecessary if such preceding words were intended to devise the fee and useless unless they limit the estate. Similar words added to a like devise were held not to limit the estate devised in Glass v. Johnson, 297 Ill. 149, 130 N. E. 473, and Read v. Adams, 280 Ill. 142, 117 N. E. 459. In the case first cited, the devise was of all the testator's real estate "to my wife, Emma Glass, she to have the right to convey, sell or dispose of it or mortgage it, or any part

[2] It is further contended that the final expression in the will after the bequest of $1,000 to Henry Meyer at the testator's wife's death, "if my wife before her death is so disposed she can give to him, the said Henry Meyer, all the remainder of my estate," is an unequivocal expression of the intention of the testator, which explains the language of the devise to his wife to mean that she should have freedom of control of the property during her life, but only a limited power of disposition of the remainder of the estate to Henry Meyer. The testator's intention must be determined from the language of the will, and the object of construction is to ascertain the intention he has expressed by the language used, and not an intention which he may be supposed to have had in his mind but did not express by the words he has used. The language of the will, as has been stated, clearly devised a fee to the wife, and that must be presumed to be the intention of the testator. The power to give the estate to any person was an incident of that fee, and the devisee needed no further authority from the testator to make such gift. The language of the last clause of the will was no doubt used by the testator, after providing the bequest to Henry, to express his approval of his wife's increasing the gift to Henry if she saw fit.

[3-5] The rule of construction is that when an estate is given by one clause of a will, it cannot be cut down or taken away by a subsequent clause except by clear and unambiguous terms-as clear as the language of the clause giving the estate. Roberts v. Roberts, 140 Ill. 345, 29 N. E. 886. The language in question here falls far short of that degree of clearness. Another rule is, to adopt the construction of a will which will give an estate of inheritance to the first devisee unless limiting or qualifying clauses in the will disclose a clear intention to limit or qualify the estate devised. Becker v. Becker, 206 Ill. 53, 69 N. E. 49; Kohtz v. Eldred, 208 III. 60, 69 N. E. 900. Still another rule is that a testator in making his will is presumed to have intended to dispose of all his estate, and unless it clearly appears to the contrary, a court will adopt any reasonable construction of a will rather than hold that the testator intended to die intestate as to any of his property. Eyer v. Williamson, 256 Ill. 540, 100 N. E. 188; Des Boeuf v. Des Boeuf, 274 Ill. 594, 113 N. E. 900; Wiltfang v. Dirksen, 295 Ill. 362, 129 N. E. 159.

The decree will be affirmed.
Decree affirmed.

(313 III. 438)

KESL et al. v. COBINE. (No. 16131.) (Supreme Court of Illinois.

Oct. 28, 1924.) I. Ejectment 26(1) — Grantor's intent to convey disputed strip to defendant and not to plaintiffs not available as defense.

Where defendant's deed did not convey to him disputed land, but plaintiffs' deed from same grantor did do so, if it was intended to convey such land to defendant and not to plaintiffs, such fact could not be shown in defense of an ejectment suit.

2. Evidence 274(6)—Declaration of defendant's grantor, prior to deed to defendant, as to boundary of land conveyed, held incompe

tent.

Where defendant's deed did not convey to

him disputed land, but plaintiffs' deed from same grantor did do so, declaration of grantor to defendant, before he purchased, that line of his land would be 25 feet east of residence, which would give him disputed tract, was incompetent.

3. Ejectment 27-Testimony of defendant, offered as establishing estoppel in pais against plaintiffs, held properly excluded.

Testimony that, prior to purchase by plaintiffs of disputed tract, defendant informed them, in reply to their inquiry, that his boundary included such tract, offered as establishing estoppel against plaintiffs, held properly ex

cluded.

sister died before this suit was brought, and it was stipulated that appellant now owns the entire interest in the land conveyed by the deed. The land conveyed was described as beginning on the north line 200 feet westerly from the northeast corner of lot 66; thence south parallel with the east line of the lot to its south line; thence west along the south line 100 feet; thence north parallel with the east line to the north line of the lot; thence easterly to the place of beginning. June 3, 1921, Mrs. Cowan conveyed to appellees a tract off the east end of lot 66, 200 feet wide from east to west, which was all that part of the lot lying east of appellant's land, except a parcel in the southeast corner 75 by 150 feet, which is not involved in this suit. The land conveyed to appellees was particularly described by metes and bounds, and except for the small portion excepted in the southeast corner was 200 feet wide east and west. The deed recited it extended on the west to the land conveyed to appellant. At the time the deeds were made there was no fence between the two tracts, and no object to mark the line between them. Appellees had possession of part of the disputed land. They started to build a fence on the line between the two tracts, and appellant secured an injunction, which was later dissolved on motion. Then this ejectment suit was begun.

The disputed strip is not embraced in the description of land conveyed to appellant, but is embraced in the description of land conveyed to appellees. This is not denied, but appellant offered to prove that Mary M. Cowan, some time before she conveyed to him, told him that the east line of the 100 feet would be about 25 feet east of the residence on the property. That would include the 6 feet in dispute and make appellant's

Appeal from Circuit Court, Madison Coun- property 106 feet in width east and west. ty; J. F. Gillham, Judge.

Action by Joseph Kesl and others against Carson Cobine. Judgment for plaintiffs, and defendant appeals. Affirmed.

Henry B. Eaton, of Edwardsville, for ap pellant.

J. F. Eeck, of Edwardsville, for appellees.

FARMER, J. This appeal is prosecuted from a judgment of the circuit court of Madison county in favor of appellees in an action of ejectment. The land involved is a strip 6 feet wide and 100 feet long from north to south and fronts at the north on a public street. The land in dispute is a part of lot 66 of Wheeler's addition to the city of Edwardsville. Lot 66 is triangular in shape and contains approximately 2 acres, and was owned by Mary M. Cowan, the common source of title of appellant and appellees. June 10, 1919, Mrs. Cowan conveyed a part of said lot to appellant and his sister. The

The proof was offered on the theory that it The court refused to admit the proof, and was an establishment of the line by parol. the ruling is assigned as error.

[1-3] Appellant's deed did not convey to him the land in question, but appellees' deed from the same grantor did convey to them the disputed land. If it was intended to convey the strip to appellant and not to appellees, that fact could not be shown in defense of an ejectment suit; nor was it competent to prove the grantor of appellant told him, before he purchased, that the line of his land would be 25 feet east of the residence, which would give him the disputed tract. Duggan v. Uppendahl, 197 Ill. 179, 64 N. E. 289; Grubbs v. Boon, 201 Ill. 98, 66 N. E. 390. Appellant offered to prove that one of appellees, in talking with him, shortly before they purchased, about their intention of buying the land, inquired about the location of his east line, and he informed them that it was 25 feet east of the house

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(145 N.E.)

guilt must be conclusively proved to warrant sustaining conviction.

situated on appellant's property. That testi- [6. Criminal law 1162-Where trial unfair, mony was offered on the theory that it operated as an estoppel against appellees. The court properly sustained an objection to the offered proof. City of Amboy v. Illinois Central Railroad Co., 236 Ill. 236, 86 N. E. 238; Grubbs v. Boon, supra.

[4] Complaint is made that the court permitted proof that the injunction secured by appellant restraining appellees from building their fence on the line was dissolved, and the bill dismissed on demurrer. That proof was not very pertinent to the issues, but even if absolutely incompetent it did no harm to appellant.

The finding and judgment of the circuit court could not, under the law and evidence, have been otherwise than for appellees, and it is affirmed.

Where accused is denied fair trial, to warrant affirmance of conviction, his guilt must be 80 conclusively proved that no other verdict could reasonably have been returned.

Error to Circuit Court, Tazewell County; Charles V. Miles, Judge.

Frank Lewis and others were convicted of burglary and larceny, and they bring error. Reversed and remanded.

James P. St. Cerny, of Pekin, and Robert Scholes and John E. Dougherty, both of Peoria (George W. Sprenger, of Peoria, of counsel), for plaintiffs in error.

Edward J. Brundage, Atty. Gen., E. E. Black, State's Atty., of Pekin, Virgil L. Blanding, of Moline, and W. J. Reardon, of Pekin (Thomas Kennedy, of Bloomington, of counsel), for the People.

FARMER, J. The night of April 11, 1923, a freight train of the Atchison, Topeka & Santa Fé Railway Company was held up at Crandall, Tazewell county, a car opened, and

(Supreme Court of Illinois. Oct. 28, 1924.) several barrels of alcohol stolen from it.

1. Criminal law 1159(2)-Verdict on weight

of testimony prevails in absence of prejudicial error, passion, or prejudice.

Jury being judges of weight of testimony, reviewing court will not substitute its judgment, where no prejudicial error was committed and verdict does not appear to be result of passion and prejudice.

The train carried a combination coach, part of which was for passengers. Crandall is at a crossing of the Lake Erie & Western

Railroad, about 16 miles from Pekin. There

is a grain elevator and an old unoccupied building at Crandall. There is a "Y" track there for switching cars from one railroad to the other. The alcohol was loaded in the car by the American Distilling Company, in

2. Criminal law 508(1)—Accomplice's testl- Pekin, about 3 o'clock in the afternoon of mony competent.

Accomplice's testimony is competent.

3. Criminal law 508 (9)—Accomplice's testimony acted on with great caution.

Where principal evidence is that of accomplices, it is subject to suspicion and should be acted on with great caution, unless so corroborated by other testimony or circumstances as to prove guilt beyond reasonable doubt.

4. Criminal law 508 (9)—Record should be fairly free frem prejudicial error when principal evidence is that of accomplices.

An

April 11 and later switched to the track of the Atchison, Topeka & Santa Fé Railroad for shipment. The train of fourteen cars, of which the car of alcohol was one, left Pekin at 7 p. m. The crew consisted of a conductor, two brakemen, engineer, and fireman. employee of the railroad company whose duty it was to ride the trains for protection of property when alcohol was shipped was aboard the train, also four passengers were aboard when the train left Pekin, and before reaching Crandall another passenger came aboard. He went into the passenger department of the coach where the other four passengers were, asked one of them for a match, and they pulled revolvers on him, searched him, and ordered him back where the trainmen were, and guarded them. The robbers took the train rider's gun from him, and at Crandall took charge of the train and held it from 8:15 o'clock till 11:30 p. m. Trucks arrived at Crandall about the time the train did, and the robbers made the crew hold the Questions, asked defendants and their wit- train until they unloaded the barrels of alnesses on cross-examination, entirely foreign and irrelevant to the issue, for purpose of prej-cohol into the trucks and hauled it away. udicing them with jury, held to require reversal Frank Lewis, Louis Talbot, Lee Burton, Edof conviction and new trial, though court sus- ward Achterberg, Eddie Campbell, Sammy tained objections to most of such questions. Wade, Gordon Burton, Egnac Vidac, alias

When principal evidence is that of accomplices, record should be fairly free from prejudicial error, especially from palpable efforts by state to prejudice defendants with jury by dragging in matters wholly foreign and irrele

vant.

5. Criminal law 11702 (5)-Cross-examination of defendants and witnesses as to indictment for other crimes, etc., held reversible

error.

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