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joint tenants, which conveyed parcel B, was, to consume the whole or a part of the estate, a valid exercise of the power conferred by or even to dispose of it during his lifetime, the second section of the will of Charles A. the gift over after the life estate is not renGaines, and that the title to that parcel dered invalid because the quantity of the reshould be established and confirmed in Rose siduary estate is uncertain. Dean v. Northern Dressler, the surviving joint tenant. Of the Trust Co., 266 Ill. 205, 107 N. E. 186; Burke three complainants, William Troy Cales and v. Burke, 259 Ill. 262, 102 N. E. 293. InJohanna Cales prosecute this appeal. The terpreting the will as a whole, as it must appellees, Rose, Raymond, Marie, Edith, and be interpreted, we are convinced that the Dorothy Dressler, and Buford F. Quigg, as testator intended to devise a life estate to executor, assign cross-errors.

his widow, with power to sell the fee and The principal question to be determined expend the proceeds as she might desire, but is, did the will of Charles A. Gaines give that the remainer, if any, should go to the to his widow the title in fee simple to his appellants and Minnie L. Cales. . real estate, or did it give her only a life [4] The deed to parcel A from Sarah Ann estate therein with the power of sale, and Gaines to Nelda Himmel and the reconvey. vest the remainder in William Troy Cales, ance to Mrs. Gaines were made in order that Johanna Cales, and Minnie L. Cales, subject the property might pass under her will into divestiture by the exercise of such power stead of the will of her deceased husband. by the widow?

The testator by the fourth section of his will [1-3] Sarah Ann Gaines, the widow, was gave what was left of his estate upon his given the power to sell, but the fourth sec- widow's death to William Troy Cales, Johan. tion of the testator's will clearly indicates na Cales, and Minnie L. Cales. He intendthat any property remaining at the death of ed that the residue should pass by his will. his widow should go to appellants and Min- The power of sale conferred by his will upon nie L. Cales. If the second section of the his widow excludes a conveyance by ner for will had simply provided that the testator the sole purpose of cutting off the remainder gave, devised, and bequeathed to his widow and making it possible that the property pass "all of my property, of whatsoever kind and under her will. To sustain a conveyance for wherever located, both personal and real es- such a purpose would permit a mere subter. tate, to have for her own, to do with as she | fuge to defeat the testator's intention. The wishes," appellees' contention would have deeds to parcel A were ineffectual to convey to be upheld. 2 Alexander on Wills, $ 929 ; | that parcel, and it did not pass by the will of Dalrymple v. Leach, 192 Ill. 51, 61 N. E. Sarah Ann Gaines but by the will of Charles 443. But the testator provided for the dis- A. Gaines to the remaindermen. position of the remainder "after the death [5] The situation with reference to parcel of my wife.” Moreover, in the second sec- B is different. It appears from the evidence tion, after the words "to have for her own, that Gaines and his wife, for the services to do with as she wishes," he immediately rendered by Emil and Rose Dressler, in adadds, “that is, to either keep or sell, as she dition to the weekly wage to be paid, agreed wishes, and spend the proceeds as she may to convey to them parcel B, subject to its use desire.” He thus limited the method of her by Mrs. Gaines during her life. Dressler de. disposition of the property to a sale, which voted his whole time to their care. He could only be made in her lifetime. If the served them both day and night. After testator had desired his property to go to his Dressler's death his widow continued to care widow absolutely and unconditionally he for Mrs. Gaines until she died. The convey. would simply have given it to her outright, ance was made by the testator's widow for with no mention of a disposition of the re- her benefit. The fact that the period during mainder and without limiting her power of which Emil and Rose Dressler rendered the disposition to that of conveyance in her life- required service was short does not defeat time. Hence there is nothing in section 13 the conveyance. It was not a mere device to of the Conveyance Act which requires that circumvent the provisions of the testator's the devise to Sarah Ann Gaines be construed will. The deed by which parcel B was conas a fee-simple estate. Under wills contain- / veyed is valid. ing language similar to the one here involved [6, 7] But it is urged that the deed to parthis court has held that a life estate was de- cel B was not delivered. Emil Dressler died vised, with power in the devisee to sell any six days after the deed was executed. It part or all of the real estate in his lifetime, does not appear what knowledge, if any, he but if any estate remained at the death of the had concerning its execution. Rose Dressler life tenant it passed to the remaindermen testified that she knew the deed was to be named. Bradley v. Jenkins, 276 Ill. 161, 114 made, and later that it had been made, and N. E. 582; Gruenewald v. Neu, 215 Ill. 132, that it was to be recorded and sent to her. 74 N. E. 101; Griffiths v. Griffiths, 198 Ill. There was other testimony to the effect that 632, 64 N. E. 1069; Hamlin v. United States Mrs. Gaines, the grantor, had instructed the Express Co., 107 Ill. 443. Where the first attorney who drew the deed to record and taker is given a life estate only, with power deliver it. It was delivered to the attorney

(146 N.E.) for that purpose, and the grantor then lost | odist Episcopal Church of Waukegan Stacontrol over it. It was recorded and senttion. Judgment for defendant, and the to Rose Dressler, the surviving grantee. The People appeal. Reversed and remanded, with grantor's intention is the controlling fact in directions. determining whether there has been an ef

Ashbel V. Smith, State's Atty., of Waufective delivery of a deed, and such intention kegan (Sidney H. Block, of Waukegan, of is to be gathered from all the circumstances counsel), for appellant. attending the transaction. Marshall v. Moon,

Hall & Hulse, Clarence W. Diver, and Elan 311 Ill. 605, 143 N. E. 399. The finding of L. Clarke, all of Waukegan, for appellee. the master and the decree of the chancellor that the deed was delivered are justified by

DUNN, J. This appeal by the people from the evidence.

the judgment of the county court of Lake (8-10) Appellees contend that if the relief county, sustaining objections of the Methprayed by appellants is granted, the legacies odist Episcopal Church of Waukegan Stabequeathed by the will of Sarah Ann Gaines tion to the application of the county collector will be defeated, and that therefore the lega- for judgment for taxes, presents for decision, tees under her will are necessary parties. as stated by the appellee, the question whethThe executor of her will is a party to this er property owned by a church, and used suit. He answered the bill, joined in this by its pastor as a residence and not for profappeal, and assigned cross-errors. Title it, is taxable. The question is answered afcomes to the legatee through the executor. firmatively in the cases of People v. First Where parties are effectively represented Congregational Church, 232 Ill. 158, 83 N. E. they need not be made parties. Hale v. Hale, 536, and First Congregational Church v. 146 Ill. 227, 33 N. E. 858, 20 L. R. A. 247; Board of Review, 254 III. 220, 98 N. E. 275, 21 Corpus Juris, 290, 291.

39 L. R. A. (N. S.) 437. The question is [11] Appellees also contend that the court fully considered in those cases, and we do erred in admitting the testimony of William not think it necessary or profitable to elabTroy Cales. The conclusion that the two orate the argument. deeds and the will Sarah Ann Gaines are

Counsel foi th appellee in their brief inoperative so far as parcel A is concerned quote extensively from the dissenting opinis reached independently of his testimony, ion in the latter case, and think that the and, in view of our decision with reference court has followed that opinion in the reto parcel B, appellees could not be preju- cent cases of People v. Catholic Bishop, 311 diced by any of his testimony.

Ill. 11, 142 N. E. 520, and Yates v. Board We find no reversible error in the record, of Review, 312 111. 367, 144 N. E. 1. Referand the decree of the circuit court will be af-ence is made particularly to the gardener's firmed.

house and the archbishop's summer home, Decree affirmed.

which are mentioned in the former case in describing the physical property involved. That property was a single tract of sever

al hundred acres, on which were the build(315 Ill, 233) PEOPLE ex rel. PEARSALL, County Col- ings mentioned in describing the property, lector, METHODIST

but no question was made in regard to them,

EPISCOPAL CHURCH OF WAUKEGAN STATION. and there was no adjudication in regard to (No. 16214.)

v.

them specifically. In fact, it appeared from

the record that the buildings referred to as (Supreme Court of Illinois. Dec. 16, 1924. the archbishop's summer home had been forRehearing Denied Feb. 6, 1925.)

merly used for that purpose, but on April Taxation 244_Property owned by church 1, 1922, were used for the purposes of the

and used as pastor's residence held taxa- seminary. The relation of the gardener's ble.

residence to the property was the same as Property owned by church, and used by its that of the building occupied by the superpastor as residence, and not for profit, is tax- intendent of grounds and out-door work of able.

the seminary to the school property involved

in the case of Monticello Female Seminary Appeal from Lake County Court; Perry

v. People, 106 Ill. 398, 46 Am. Rep. 702. L. Persons, Judge.

The judgment will be reversed, and the Application by the People, on the relation cause remanded, with directions to enter of Ira E. Pearsall, County Collector, for judgment against the property for the taxes. judgment for taxes unpaid against the Meth Reversed and remanded, with directions.

For other cases see same topic and KEY-NUMB

in all

ey-Numbered Digests and Indexes

(315 Ill. 320)

no lack of due diligence and of rebutting prePEOPLE v. DABNEY. (No. 16174.) sumption that verdict is correct. (Supreme Court of Illinois. Dec. 16, 1924. 10. Criminal law Ow938(1)-Quality of newly Rehearing Denied Feb. 6, 1925.)

discovered evidence to warrant new trial

stated, 1. Criminal law Om 1159(2)-Conviction not

Newly discovered evidence to warrant new set aside as against evidence, unless verdict trial must be of such character as to make indicates passion or prejudice.

probable change in result of a new trial, must Conviction will not be set aside as against have been discovered since trial, be such as evidence, unless verdict is 80 palpably against could not have been discovered before trial weight of the evidence as to indicate passion by due diligence, be material, and not merely or prejudice.

cumulative. 2. Homicide 257 (1)-Evidence held to sustain conviction for assault with intent to

Error to Circuit Court, Mason County; murder.

Guy R. Williams, Judge. Evidence held to sustain conviction for as

George W. Dabney was convicted of assault sault with intent to murder.

with intent to murder, and he brings error. 3. Homicide 158(1)-Testimony fixing timo Affirmed.

of threat as time of prior arrest of defendant held not objectionable as disclosing such

Gcorge W. Sprenger, of Peoria, for plain

tiff in error. prior arrest. Testimony that threats made by defendant

Edward J. Brundage, Atty. Gen., and Scott had been made at time of prior arrest hela W. Lucas, State's Atty., of Havana, and not objectionable as disclosing such prior ar- James B. Searcy, of Springfield, for the rest, witness having testified he did not know People. exact date of such threats, though voluntary statement that defendant was then intoxicated

STONE, J. Plaintiff in error was indicted was incompetent and properly stricken.

in the circuit court of Mason county upon 4. Criminal law Cm371(4)-Proof of threats the charge of assault with intent to murder

competent, notwithstanding it tends to prove Thomas Cavanaugh, a police officer in Mason another offense.

City. He was found guilty. Motion for a Proof of threats is competent to show ill new trial was made, urging, among other will of defendant, notwithstanding it tends to grounds, discovery of new evidence. This prove commission of another offense.

motion was denied, and plaintiff in error was

He brings the 5. Criminal law ww363–Testimony that bul- sentenced on the verdict.

let, after passing through officer's body, cause here for review, urging, first, that the struck boy, held part of res gestæ.

verdict is not sustained by the evidence; Testimony that bullet from defendant's gun second, that it was error to deny the motion struck boy after it had passed through officer's for new trial on the ground of newly discov. body held part of res gestae and admissible. ered evidence; third, error in the admission 6. Criminal law fww723(1), 1171(1)-Argument of evidence; and, fourth, prejudicial and in

of counsel as to public sentiment held im Hammatory argument on the part of the proper, though not reversible error, in view state's attorney. of circumstances.

The record shows that on the evening of Argument of state's attorney as to demand December 2, 1923, plaintiff in error, who is of public sentiment for conviction held im- a farmer, drove into Mason City from his proper, though not ground for reversal, where residence, five miles northwest of that place. facts were such that it did not likely affect Cavanaugh had gone on duty at 6 o'clock, verdict.

and about 7 o'clock entered the restaurant of 7. Criminal law Cm 941(1)-Denial of new trial Doc Ewers, located on Tonica street in said

on ground of newly discovered evidence, city. Tonica street extends north and south, which was merely cumulative, held not error. and is intersected north of the Ewers restau

Denial of new trial sought on ground of rant by Chestnut street, extending east and newly discovered evidence, which was merely west. As Cavanaugh entered Ewers' restaucumulative, held not error.

rant he passed plaintiff in error, who was 8. Criminal law fww938(1)-Applications for standing in front of the place talking to a

new trial on ground of newly discovered evi. man named Dobson. It appears from the dence not favored,

state's testimony that shortly after Cava. Applications for new trial on ground of naugh entered the restaurant two of the newly discovered evidence are not favored. state's witnesses, Frank Hubbard, a deputy 9. Criminal law Cm958(1)-Applicant for new sheriff, and Gus Sievers, a state patrol of

trial on ground of newly discovered evidence ficer, who were standing near the front of has burden of showing diligence and of re- the restaurant, saw plaintiff in error looking butting presumptions in favor of verdict. into the restaurant and holding a pistol in his

Applicant for new trial on ground of new- hand; that he was pointing it toward the ly discovered evidence has burden of showing restaurant, and had it out of his pocket for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) two or three minutes. The state's witness, the corner of the alley and the street he saw Clarence Adkens testified that he was in plaintiff in error and the police officer scuffront of the restaurant at that time, and fling over a gun; that he was about 10 or 15 saw plaintiff in error flash the gun, and feet away; that Cavanaugh did not have heard him say, "I will get even." It ap- anything in his hand when he walked across pears that some one notified Cavanaugh that the alley; that he heard the shot fired, and plaintiff in error had a gun, and a short time Bernard Stone, who was with him, shouted: thereafter, while Cavanaugh was walking “Hey, mister! I am shot!" Bernard Stone a his beat, he came upon plaintiff in error boy of 14 years, testified to substantially standing in front of the Farmers' State Bank the same facts as those given by Spangler. on Chestnut street. This bank is located Dr. Don Deal described the wound in one-half block west of the intersection of Stone's chest, and testified that he removed Chestnut street and Tonica street, on the a bullet from the wound, which he thought south side of Chestnut street. It appears to be from a 45-caliber gun. The bullet was that the street there was lighted with elec- introduced in evidence without objection, and tric lights known as cluster ornamental there is no contention that it was not the lights. Plaintiff in error was talking to Ja- bullet fired from plaintiff in error's gun. son Allen. According to the state's evidence Plaintiff in error took the stand and testiCavanaugh walked up to him and said, lied that he did not draw his revolver until "Have you got a gun on you, George?" Cavanaugh tried to shoot him. He denied that whereupon plaintiff in error stepped back and he had ever in any way threatened Cavareplied, "No," but drew a 45-caliber Colt's naugh, but testified that when Cavanaugh apautomatic army pistol from his right hip proached him near the bank he (Cavanaugh) pocket, and pressed the muzzle of it against drew his gun and said, “George, you got a Cavanaugh's side. Cavanaugh grabbed the gun on you?” and grabbed plaintiff in error pistol, and attempted to push the muzzle by the arm, saying, “Don't get smart with away from his body, but before he could do me, or I will blow your head off," and snapso the gun was discharged, and the bullet ped his gun at plaintiff in error, but that it penetrated the left side of his body at about did not fire. Plaintiff in error testified that he the fifth or sixth rib, and passing out lodged then stepped back and that Cavanaugh hit in the chest of a boy named Bernard Stone, him over the head with his revolver and who at that time was some 35 or 40 feet knocked him to his knees; that when he away. Cavanaugh thereupon drew his pis- got up he took his gun out of his pocket and tol, and attempted to shoot plaintiff in error, hit Cavanaugh with it; that in the scuffle at the same time holding onto the latter's that took place Cavanaugh struck plaintiff pistol with his left hand. Cavanaugh's pis- | in error's pistol with his own and it was distol snapped, but did not discharge, and he charged; that he did not fire the gun at all. therefore returned it to his pocket, and, tak- Jason Allen testified on behalf of plaintiff ing hold of plaintiff in error's gun with his in error and corroborated the latter's stateright hand also, attempted to wrest it from ment up to the point where he testified that him. In the struggle that ensued Cavanaugh Cavanaugh was the first to draw his gun, was struck over the head a number of times the witness then stating that he left because and received scalp wounds. Hubbard and he was afraid he would be shot. Sievers, hearing the pistol shot, came to the Plaintiff in error also claims that he did scene, and plaintiff in error was arrested and not draw his gun in front of Ewers' restautaken to the city jail. On being searched, a rant, but that he had in his hand at that clip containing additional cartridges was time a nickel-plated flashlight. Witnesses found in his possession.

Lloyd Cantrell and Gordon Andrews, called Cavanaugh's testimony concerning the oc- in his behalf, testified that plaintiff in error currence in front of the bank is corroborated showed them a flashlight in front of Ewers' by the testimony of Carl Tohlen, a boy of restaurant that night. In rebuttal it is 14 years, who testified that he was directly shown by testimony of the sheriff of Mason across the street from the bank when the county, W. F. Close, that the next morning encounter took place between Cavanaugh he searched plaintiff in error in the city and plaintiff in error. He testified that as jail and found no flashlight on him. HubCavanaugh approached plaintiff in error he bard and Sievers both testified that he had had nothing in his hand; that Cavanaugh no flashlight in his possession when he was said something; that plaintiff in error step- searched on the night of December 2 in the ped back a step or two and pulled out a gun ; city lockup. that Cavanaugh closed in on him and plain [1, 2] The questions as to the manner in tiff in error shot.

which the shot was fired and as to who causGraham Spangler, a witness for the people, ed it to be fired were questions of fact for testified that he was in the alleyway next to the jury. A reviewing court will not set the Farmers' State Bank, near the corner, aside a conviction as unjustified by the evi. when he saw Cavanaugh going west down dence unless the verdict is so palpably Chestnut street; that as the witness got to against the weight of the evidence as to in

dicate it was based on passion or prejudice. , offense does not render such evidence incomPeople v. Jones, 310 ill. 275, 141 N. E. 773; petent if it is competent for any purpose in People v. Carrico, 310 Ill. 543, 142 N. E, 164. the case. People v. McGuirk, 312 Ill. 257,

[3] The state sought to show by the wit- 143 N. E. 855; People v. Meisner, 311 Ill. ness Leslie Elmore that a conversation had | 40, 142 N. E. 482; People v. Kircher, 309 taken place between the witness and plain- | Ill. 500, 141 N. E. 151; People v. Hall, 308 tiff in error in which the latter uttered | Ill. 198, 139 N. E. 123. As we have seen, the threats against Cavanaugh. The witness was court, on motion, struck out the testimony unable to fix the time, and he was asked if of the witness. We are of the opinion that it was immediately following the arrest of that ruling was one more favorable to plainplaintiff in error in the month of June, 1923. tiff in error than he was entitled to have. This was objected to, and the court permit [5] It is also contended that the testimony ted the witness to answer for the purpose of of Spangler and Stone to the effect that the fixing the date of the conversation, if there latter was struck by the bullet was incompewas such. The witness answered that he re- tent and prejudicial. We do not think so. membered the time plaintiff in error was in It clearly concerned a part of the res gestä. jail, although he could not recall the date. [6] It is urged that the judgment in this Counsel for plaintiff in error moved that case should be reversed because inflammathe answer in regard to plaintiff in error be- tory statements were made by the state's ing in jail be stricken as not responsive. attorney in argument. Particular attention This motion was overruled. The witness is called to the following statement: stated it was along in the summer of 1923;

"I say to you men in all sincerity, in all that when he took plaintiff in error home he frankness and honor, that the honor and the was under the influence of whisky, and said, morality of Mason county is at stake in this “I will get even.” On motion of counsel for one case; and I want to say to you, gentlemen plaintiff in error the volunteer statement of of the jury, that there are going to be thouthe witness that plaintiff in error was under sands of people in this county that are anxious. the influence of whisky was stricken. Later ly waiting for a verdict of your unbiased judg. the court sustained a motion to strike all of ment on this evidence of guilty.” the testimony of the witness for the reason This statement was objected to, and the that it did not show that the threat referred objection was promptly sustained, and the to Cavanaugh and admonished the jury to court instructed the jury that the statement give no consideration to the statement. The was improper and that they should not conobjection is now made that, although strick- sider it. The statement was clearly error, en on motion this evidence was prejudicial and in a case close on the facts would be and was error, in that it showed plaintiff in sufficient to reverse the judgment. The jury error had been previously arrested and intox- were required to try the case according to icated; that such was incompetent evidence the law and the evidence, and what the of an offense not charged and prejudicial to people of the community might want in the the interests of plaintiff in error. It is an- matter had nothing to do with their duty in swered that the question and answer ob- the case. The state's attorney had no right jected to were for the purpose of fixing the to inject into the case, by argument, any intime when the conversation occurred; that ference that the public were anxiously awaitthe state expected to show by the witnessing a verdict of guilty. We are of the opinthat the threat was against Cavanaugh, and ion, however, that in this case it cannot be that the fact the answer disclosed a previous said that but for such statement the verdict arrest did not render it incompetent.

might have been otherwise. The testimony [4] From the testimony of the witness it presented in the case shows the guilt of is evident that he was testifying concerning plaintiff in error, and this error is not sufa conversation which he had with plaintiff ficient to cause a reversal of the judgment. in error about Cavanaugh at the time when [7-10] It is also urged that it was error to plaintiff in error was arrested, and it is a deny the motion for a new trial on the fair inference that plaintiff in error's expres- ground of newly discovered evidence. In sion, "I will get even," referred to his ar. connection with this motion counsel for rest by Cavanaugh. The statement that he plaintiff in error filed the affidavit of Elliott was intoxicated was a voluntary statement R. Bale, who states that he was near by of the witness and properly stricken. His and saw the encounter. A reading of his aftestimony, however, concerning plaintiff in fidavit, however, discloses that his testimony error's arrest was for the purpose of fixing would be cumulative merely, in that it the time, as best the witness could, when the would tend to corroborate plaintiff in error conversation occurred, the witness having and the witness Jason Allen. Applications stated that he did not know the exact date. for new trial on the ground of newly disProof of threats was competent as tending covered evidence are not looked upon with to show ill feeling towards the officer on favor by courts, but such applications are plaintiff in error's part. The fact that testimo- to be subjected to close scrutiny. The burny tends to prove the commission of another den is on the applicant to rebut the presump

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