(146 N.E.) F. K. Lemon, Grover C. Hoff, and Arthur, therein that they were conveying the reverF. Miller, all of Clinton, and John A. Bag- sion in fee to unite it with the life estate, ley, for appellant. and prematurely destroy the contingent reL. O. Williams and Herrick & Herrick, all mainder in the heirs of the body of Carrie of Clinton, for appellees. HEARD, J. This is an appeal by Lulu Reid from a decree of the circuit court of De Witt county in a suit brought by appellee Smith Fuller for partition, awarding partition and dismissing the cross-bill of appellant. Amanda Klein, late of Clinton, Ill., departed this life testate on October 8, 1914, and by her will, among other things, provided: Fuller. Parker conveyed, by warranty deed of July 22, 1919, the same premises to Carrie Fuller, and on December 6, 1919, Carrie Fuller and Smith Fuller conveyed to Smith Fuller an undivided one-third interest in said premises. Appellees claim that thereby Smith Fuller became the owner of one-third interest, and Carrie Fuller became the owner of two-thirds interest in fee simple in said premises as tenants in common, and that they are the only persons interested in any manner in said premises. The original bill made Robert H. Reid, son of Lulu Reid, and Elizabeth, Florence, and Robert Reid, Jr., only children of Robert H. Reid, defendants, but alleged that they had no right or title to said premises. The ap pellant answered the original bill and admitted the making of the deeds as alleged, but denied that the particular esfate was merged in the reversion, or that Ralph Parker became the owner of said premises, or that Carrie Fuller and Smith Fuller are the only persons interested in the premises. "Third-It is my will that my real estate, being lots three (3) and four (4), in block eleven (11), in the original town of Clinton, consisting of the Central Hotel, three store buildings facing north on Washington street and four store buildings facing east on Monroe street, together with vacant plat of land immediately east of said buildings, be divided by a line running east from the northwest corner of the north store building which faces west and extending east to a point due south of the east line of said Central Hotel, thence south to alley in said block, said east and west line being the north line of the new store buildings erected by me in the year 1913; that the said [1, 2] By the terms of the will, there being Central Hotel and three store buildings facing north, together with all lands in said block no person in esse at the death of testatrix facing north and being north and east of said who could take under the designation of lines, I hereby give and devise to my beloved heirs of the body of Carrie Fuller, the devise daughter Lulu Reid, to have and to hold for to the heirs of the body was necessarily conand during her natural life, then at her death tingent until the birth of an heir of the body it is my will that the same be given in fee sim- of Carrie Fuller, and it was destructible, ple to the heirs of her body or their descend-pending the contingency, by a merger of the ants, per stirpes and not per capita: Provided, however, that said premises shall not be sold, mortgaged and encumbered during the life of the youngest child of the said Lulu Reid which may be living at the time of my decease. life estate in the reversion in fee. Calvert v. Calvert, 297 Ill. 22, 130 N. E. 347. By the provisions of the cause two estates in remainder were created, one in the heirs of the The second is to body of Carrie Fuller and the other in the "Fourth-It is my will that all land and real estate south and west of said division lines, as described in the foregoing clause, shall be given to my beloved daughter Carrie Fuller for and during her natural life, and at her death, should she survive me, then it is my will that [3, 4] By the terms of the will Carrie Fulthe fee simple title in the remainder vest in ler took a life estate, with alternate conthe heirs of her body or their descendants, and tingent remainders with a double aspect to in case none such should be living at the time the heirs of her body and to the legal heirs of her death, then in that event said premises of Amanda Klein, who were Carrie Fuller shall descend to my legal heirs in the same pro-and Lulu Reid, and at the same time the portion as though I had died intestate." Deceased left her surviving her husband, Matt Klein, and her daughters, Lulu Reid and Carrie Fuller, her only heirs at law. She was the owner of lots 3 and 4, in block 11, in the original town of Clinton. Carrie Fuller has no children, is without issue of her body, and was at that time past 50 years of age. Appellees, Carrie Fuller and Smith Fuller, being husband and wife, conveyed the premises sought to be partitioned on July 19, 1919, to Ralph Parker by warranty deed, a copy of which is attached to the original bill. On July 21, 1919, Carrier Fuller and Smith Fuller by warranty deed conveyed the same premises to Ralph Parker, stating reversion in fee vested in Carrie Fuller and Lulu Reid. Friedman v. Friedman, 283 Ill. 383, 119 N. E. 321. This vesting was not affected by the fact that Carrie Fuller, to whom the life estate was devised, was also a reversioner. Kellett v. Shepard, 139 Ill. 433, 28 N. E. 751, 34 N. E. 254. Since the case of Bond v. Moore, 236 III. 576, 86 N. E. 386, 19 L. R. A. (N. S.) 540, there is an unbroken line of decisions that where there is an estate for life with a contingent remainder, a conveyance which unites the life estate and the reversion before the happening of the contingency on which the remainder is to vest, destroys the remainder. [5, 6] Where the life tenant conveys the The evidence shows such latent ambiguity. There are no store buildings facing east on Monroe street but four face west. A straight line extended due east from the northwest corner of the north store building which faces west would not intersect the east line of the Central Hotel south of the hotel, but would run directly through the hotel, cutting off several feet of the entire southern end of it. The court in its decree recognized this ambiguity, and decreed to appellant the south lien of the hotel in conformity with its various projections. property to a third person, and all the re-gether with the ground south of the hotel versioners convey the property to the same facing on Washington street. person, each expressly for the purpose of destroying the remainder, the person to whom the conveyances are made will take the fee in the entire property divested of the remainder; but where such conveyances are made by the life tenant, and only a part of the reversioners, the grantee in the deed will take the fee to only such proportional undivided part of the property wherein the person making the deed had a reversionary interest. Where there are two reversioners, each having an undivided half interest in the reversion, and the deed is made by the life tenant and one reversioner, the contingent remainder is thereupon destroyed in an undivided half of the property. Lewin v. Bell, 285 Ill. 227, 120 N. E. 633; Kales on Estates and Future Interests (2d Ed.) 329. The contingent remainder in the other undivided one-half is not affected by the conveyance. The record presents a case of repugnant calls. Repugnant calls may or may not be possible and correct descriptions of lands which the testator owned. One or the other of such repugnant calls may correctly describe the land intended to be devised, but both cannot do so. [7-10] The main object in construing a In accordance with the above rule the will is to ascertain the intention of the tescourt decreed: be added to or taken from a will which change the plain meaning of the testator as expressed by his will. No will can ever be reformed because of a mistake made therein by the testator. Clancy v. Clancy, 250 Ill. 297, 95 N. E. 141; Alford v. Bennett, 279 Ill. 375, 117 N. E. 89; Stevenson v. Stevenson, 285 Ill. 486, 121 N. E. 202. tator, and this intention can only be ascer"That the rights and interests of the parties tained from the language used by the tesin said premises are as follows: That said tator in expressing it in his will, read in the Smith Fuller is seized in fee simple of an un- light of the circumstances surrounding him divided one-third interest in an undivided one- at the time of making the will. Extrinsic half interest in said premises, subject to the evidence is never admissible for the purpose dower of said Mathias Klein therein; that Car- of varying the intent of the testator as exrie Fuller is seized in fee simple of an undivid-pressed in the will itself, and no words can ed two-thirds interest of an undivided one-half interest of said premises, subject to the dower of said Mathias Klein therein, and that said Carrie Fuller is further seized of a life estate in the remaining one-half interest of said premises, also subject to the dower interest of said Mathias Klein; that said half of said premises in which said Carrie Fuller has an estate for her natural life therein she is possessed of said life estate with a contingent remainder to the heirs of her body or their descendants, if she should have any living at the time of her death, subject to the dower interest of said Mathias Klein, and with a reversion in fee in said half interest last named in the appellant Lulu Reid in the event that Carrie Fuller should die leaving no children or descendants thereof living at the time of her death, and that none of the other defendants in this proceeding other than the said Carrie Fuller, Smith Fuller, Lulu Reid, and Mathias Klein have any interest, right, title, estate, or claim in and to the said premises which are the subject-matter of this suit, and that no other persons have any interest in the same in any way except as to the contingent remainder in the heirs of the body of said Carrie Fuller." A much more difficult question to determine is as to what property was devised by this provision. In appellant's cross-bill, among other things, she alleged a latent ambiguity in the description of the property devised to her and Carrie Fuller by the will, and alleged that by the devise of the Central Hotel to appellant she became seized of the life interest not only in the building [11] It being evident from the fact of making a will that the testator intended to dispose of his property, the court will endeavor. if possible, by searching all the provisions of the will, to find words that will identify the objects of his bounty and the property devised by him, and give effect to the will as he has expressed it, if that can be done without the addition or subtraction of words that will change the plain meaning of the will as expressed therein, and if, after the false or repugnant description or part of a description is discarded, there remains in the devise language sufficiently full and accurate to identify the subject of the gift with sufficient certainty, the property there indicated will pass. If, on the other hand, when the false description is eliminated from the will, there is not enough left to afford a basis for identifying the subject of the gift, nothing can pass. Stevenson v. Stevenson, supra. [12, 13] The east and west line mentioned in the will is only definitely described as being the north line of the new store buildings erected in 1913. A line can only be held to be a boundary or division line to the extent (146 N.E.) one of the termini is not definitely fixed, and | It not only the house but also whatever reathere is no means of definitely fixing it, then such line cannot be held as fixing the division between two tracts of land. In the present case the east terminus of the east and west line is described as "a point due south of the east line of the said Central Hotel." The distance of this terminus south of such east lien is not fixed, neither is the point of intersection of the east and west line with the east line of the Central Hotel extended, and there is no means of fixing it either by the words of the will or by the evidence in the case. This line, therefore, must be entirely discarded as a division line so far as it affects the devise of the Central Hotel. The question then naturally arises, is there a sufficient description in the will of the premises sought to be partitioned so that the premises can be definitely and accurately located? In Kennedy v. Kennedy, 105 Ill. 350, the testator being the owner of 636 acres of land forming one connected body, upon which he resided, and which he cultivated and carried on as one common farm, and upon which there were four tenant houses, made a devise to his wife in the following language: "I give and bequeath to my wife, Mary, my homestead, to have and to hold during her life." It was held that the word "homestead" was not used in the statutory sense, but was meant to embrace the entire farm upon which he resided. In Smith v. Dennis, 163 Ill. 631, 45 N. E. 267, the testator devised to his wife his homestead during her lifetime. It was there held that the term "homestead," as used in the will, means "the dwelling house at which the family resides, with the usual and customary appurtenances, including outbuildings of every kind necessary and convenient for family use, and lands used for the purposes thereof." In Myers v. Norman (Ky.) 46 S. W. 214, it was held that a devise by a testatrix of "the house and lot and appurtenances thereto belonging wherein I now reside," included three adjoining lots used for many years by the testatrix for a homestead, and not merely the lot on which the house stood. In McKeough's Estate v. McKeough, 69 Vt. 34, 37 A. 275, it was held that a devise of "my home place, where I now live," carried with it not only the house in which the testator lived, but also the chicken house and yard, coal, and woodshed, together with the yard, separated from the other portion of the premises by a fence, with the right of access for teams to the space in the rear of the house as enjoyed by the testator. In Gilbert v. McCreary, 87 W. Va. 56, 104 S. E. 273, 12 A. L. R. 1172, in holding that the devise of a house by a designation in the will as "No. 114 Tenth street" carried with 146 N.E.-12 A devise of a house sonably and necessarily belonged to it as a In Hartfield v. Pennsylvania Co., 89 N. J. Eq. 45, 103 A. 804, in holding that where a testator purchased a tract of land, and later an adjoining tract, after which he erected a house on the first tract and fenced in both tracts for a lawn, his devise of it as "my house" included both tracts, it was said: 771, it is stated that in a devise or grant the "In 15 Am. & Eng. Enc. of Law (2d Ed.) word 'house' will carry the land upon which the house is built and the curtilage. The authorities there cited adequately support the rule as stated. In 10 Am. & Eng. Enc. of Law, 353, substantially the same rule is stated as follows: 'At common law the term "dwelling house" included not only the premises actually used as such, but also such outbuildings as were within the curtilage, or courtyard, surrounding the mansion house.' In Derrickson v. Edwards, 29 N. J. Law, 468, 474, 80 Am. Dec. 220, our Court of Errors and Appeals, in a mechanic's lien case, has defined a curtilage as follows: 'A curtilage is a piece of ground within the common inclosure belonging to a dwelling house, and enjoyed with it, for its more convenient occupation.' In harmony with these Sisters of St. Francis, 35 N. J. Eq. 392; 401, views Chancellor Runyon held in Lanning v. that the following devise: 'I will my house to No. 160 Rose street, Trenton' was a devise of all of the land of testatrix adjacent to the house that had been used in connection with the house; and in Inhabitants of Phillipsburg v. Bruch's Ex'rs, 37 N. J. Eq. 482, 485, Vice Chancellor Van Fleet gave approval of Bennett v. Bittle, 4 Rawle (Pa.) 339, and Rogers v. Smith, 4 Pa. St. 93, to the effect that a devise of a 'house,' without further descriptive words, is to be deemed to be synonymous with messuage and to pass all within the curtilage of the house." and fix the dividing line between the property devised to Carrie Fuller and appellant, and to hear further evidence for the purpose of locating such dividing line in ac and to decree accordingly. Reversed and remanded, with directions. [14] The undisputed evidence in the case shows that testatrix at the time of making her will resided in the Central Hotel, and was fully conversant with it and its surroundings; that in the south side of the Cen-cordance with the views herein expressed, tral Hotel building were several windows and doors, the use of which would be entirely destroyed if the south line of the devise for life to appellant be held to be the line fixed by the court in its decree; that on the south side of the building there is a wide porch, with steps leading down from it to a concrete walk some distance from the buildings; that on the ground to the south of the building were sheds, which were used during the lifetime of the testatrix in connection with the hotel as wood and coalsheds; that there are permanent brick walks leading from the hotel building to these sheds; that there are (315 Ill. 282) PEOPLE v. WITTE. (No. 16253.) 1. Constitutional law 81-State in exercise 2. Constitutional law 81-Legislature sole judge as to laws enacted to protect public health. shade trees near the building, under which, in the lifetime of the testatrix, were placed benches and chairs for the use of testatrix and the guests of the hotel; that the space immediately south of the hotel building was used in connection with the hotel for hotel purposes, and was not used in any manner in connection with the buildings facing upon Monroe street, but was separated therefrom General Assembly is sole judge of laws to by a fence commencing near the northeast be enacted for protection of public health, and corner of the north store building facing on so long as such laws do not invade inherent or Monroe street; that this fence separated the constitutional rights, determination of General hotel property from the property lying south-Assembly is conclusive. westerly thereof at the time of the making of the will. It was evidently the intention of testatrix that the division line between the devises to appellant and Carrie Fuller should not be the south line of the Central Hotel with its projections, but that the devise to appellant should carry with it some land to the south of the hotel. This is evidenced by the fact that she placed the intersecting point between the division line and the east line of the Central Hotel at a point due south thereof. Applying the principles of law above stated to the facts of this case, we must hold that by the term "the Central Hotel," as used in the will of testatrix, she intended to devise to appellant for life not only the building and the ground upon which the hotel stood, but also the parcel of land lying to the south thereof, which was used by testatrix, at the time of the making of the will, in connection with, and as a part of the hotel property, and that the division line between the properties devised to appellant and Carrie Fuller must be fixed with reference thereto. The exact location of the fence was not fixed by the evidence, nor does the evidence in the case sufficiently fix the boundary lines of the parcel of land used by testatrix as part of the hotel property. The decree of the circuit court is reversed, with directions to proceed, in accordance with the views herein expressed, to ascertain 3. Physicians and surgeons Right to practice medicine subject to power of state to impose regulations. Right to practice medicine is subject to paramount power of state to impose such regulations within constitutional limitations as may be required to protect the people, but measures adopted must be reasonably necessary and appropriate to accomplish legitimate objects within police power. 4. Physicians and surgeons 2- Medical Practice Act held neither unreasonable or discriminatory as between licensees. Medical Practice Act, permitting graduate of medical school who has passed examination under section 8 to practice any system of healing, while person licensed to practice system using no drugs is not permitted to practice any other system, being based on substantial differences in attainments of licensees, is neither unreasonable nor discriminatory. 5. Physicians and surgeons 2-Act not arbitrarily discriminatory because drugless practitioner cannot be licensed to practice surgery without course in materia medica. As naprapath, or other person treating human ailments without use of drugs or medicines, and without operative surgery, may qualify himself to practice surgery and acquire his instruction and training therein in his own kind of school under Medical Practice Act, it is not arbitrarily discriminatory in that drugless practititioner cannot be licensed to practice surgery without taking course in materia medica. (146 N.E.) 6. Physicians and surgeons 4-Right to se- Edwin F. Witte was convicted of violation cure unlimited license extends to person hold- of the Medical Practice Act, and he brings ing limited license under prior statute. Any person, under whatever act he may have secured restricted license, may qualify himself under Medical Practice Act, § 12, to practice medicine in all its branches, by completing necessary additional courses of study. 7. Physicians and surgeons 2- Medical Practice Act not arbitrarily discriminatory as to preliminary education. As Medical Practice Act, §§ 12, 12a, and section 5, subsec. 1b, requires of holders of restricted licenses, when applying for unrestricted licenses, the same preliminary education required of applicants graduating from medical college after its passage, it is not arbitrarily discriminatory, because less preliminary education is required by section 5, subsec. 1a, of those previously graduating. 8. Physicians and surgeons 2- Medical Practice Act held not arbitrarily discriminatory as not applying to dentists, pharmacists, and optometrists. Since dentists, pharmacists, and optometrists are subject to Medical Practice Act, but permitted to practice professions under particular statutes applicable to them, and are exempt only to extent that they are included within such acts, Medical Practice Act is not arbitrarily discriminatory because under section 37 it does not apply to such professions. 9. Physicians and surgeons 2- Medical Practice Act not arbitrarily discriminatory because exempting those using prayer or spiritual means. The Medical Practice Act is not arbitrarily discriminatory, because section 37 exempts from its requirements persons treating human ailments by prayer or spiritual means in exercise or enjoyment of religious freedom, in view of Bill of Rights, § 3. 10. Constitutional law error. Affirmed. Darrow, Sissman, Holly & Carlin, of Chicago, for plaintiff in error. Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, Clarence N. Boord, of Springfield, Henry T. Chace, Jr., and Edward E. Wilson, both of Chicago (Harry Eugene Kelly, of Chicago, and B. L. Catron, of Springfield, of counsel), for the People. DeYOUNG, J. An amended information was filed in the municipal court of Chicago which charged that Edwin F. Witte on October 24, 1923, treated Anna Nemac for an ailment by a system or method known as naprapathy, without a license to do so. A motion to quash the amended information on the ground that the statute upon which it was based is unconstitutional was denied. A jury trial followed. From the prosecution's evidence it appeared that Anna Nemac was afflicted with rheumatism; that she called on Witte, who, after interrogating her concerning her ailment, gave her 12 treatments, which consisted solely of a manipulation of the spine, and for which she was charged $25. The defendant admitted that he had no license to treat human ailments. He offered to prove by Dr. H. M. Hess, president of the American Naprapathic Association, that there were about 450 persons in the United States who practiced naprapathy; that it is a drugless system of treating human ailments, discovered in 1905; that the theory underlying it is that many of the ailments of the human body are due to a tightened or shrunken condition of a ligament; that such condition is referred to as a ligatight, and where it takes place near a nerve it brings a mechanical tension on that nerve and inducSince Medical Practice Act, §§ 7, 9, 19, 20, es an abnormal function, and that the conrequires making of rules and regulations un- ception of ligatights as a causative factor of der which examinations are conducted; provides for uniformity therein, and department human ailments is peculiar to the system of of registration and education is not permitted naprapathy and is one of its fundamental arbitrarily to prescribe minimum standard of principles. The offer included a statement of education, nor conduct examinations according the subjects taught in the College of Naprapto whim or caprice, act is not invalid as at-athy and of the courses of study required tempting in section 6 to delegate legislative for the graduation of its students. An objecpower to administrative department. tion to the offer was sustained. The jury 62-Medical Practice Act held not invalid as delegation of legislative power. II. Evidence 83(1) - Not presumed that found the defendant guilty, and a judgment state board will exercise powers arbitrarily. imposing a fine of $500 was entered. He It cannot be presumed that powers confer-prosecutes this writ of error on the ground red on department of registration and educa- that the constitutionality of the Medical tion by Medical Practice Act will be exercised Practice Act (Smith-Hurd Rev. St. 1923, c. 91, arbitrarily as, until contrary is shown, court §§ 1-16x) is involved. indulges presumption that public officers perform their duties without discrimination. Duncan, C. J., and Farmer, J., dissenting. [1-3] The state, in the exercise of the police power, has the right to regulate any and all occupations for the protection of the lives and health of the people. All measures and Error to Municipal Court of Chicago, Jo- regulations for that purpose which do not inseph W. Schulman, Judge. fringe upon constitutional rights are within For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |