that he arose about 10 o'clock on that morning; that he went to the dairy on the street car; and that he did not pass the church in question or see these children. He denied categorically the testimony of the state's witnesses concerning the crime. The testimony of the state shows the offense was committed somewhere between the hours of 10:30 and 12 o'clock, and it is argued that, if the alibi be true, it was impossible for plaintiff in error to have been at the scene of the crime at any time between 10:30 and 12 o'clock. Plaintiff in error lived in the neighborhood of the scene of the crime. One of the witnesses for the defense testified that he saw plaintiff in error between 10:15 and 10:30 o'clock on that morning not far from the scene of the crime. The identification of plaintiff in error by these children was positive. This testimony was all before the jury. It was peculiarly their province to determine who was telling the truth and whether or not the proof of alibi was sufficient to raise a reasonable doubt as to the commission of the crime by plaintiff in error. We are convinced, on a review of the record, that this court would not be justified in disturbing their finding in that matter. There is no reversible error in the record, and the judgment will be affirmed. Judgment affirmed. inconsistent with an intent to create a joint tenancy. 3. Deeds 136-Words evidencing intent to create joint tenancy sufficient, in whatever part of deed appearing. Words unmistakably evidencing an intent to create a joint tenancy are effective, under Rev. St. 1874, c. 30, § 5, regardless of their place in the instrument of conveyance. 4. Deeds 93, 96-Recitals may be referred to, to ascertain intent; intention governs construction. The recitals in a deed may be referred to, for the purpose of arriving at grantor's true intent; and his intent, as disclosed by the deed as a whole, must govern its construction. Appeal from Circuit Court, Cook County; Hugo M. Friend, Judge. Suit by Anton Stukis against Mary Stukis and others. Decree for complainant, and defendants Hattie Burlew and Lillian Warndorff appeal. Affirmed. C. W. Greenfield, of Chicago, for appellants. Otto H. Beutler and Clyde O. Fisher, both of Chicago, for appellee. DUNN, J. The circuit court of Cook county entered a decree of partition on a bill filed by Anton Stukis against Mary Stukis and others, from which Hattie Burlew and Lillian DE YOUNG, J., took no part in this decl- Warndorff, two of the defendants, have apsion. DUNN and THOMPSON, JJ. (specially concurring). We agree with the conclusion reached in this opinion, but not with what is said therein with respect to the instruction concerning the defense of alibi. (316 Ill. 115) STUKIS v. STUKIS et al. (No. 16271.) (Supreme Court of Illinois. Feb. 17, 1925.) 1. Deeds 136-Form of words by which joint tenancy expressly declared not Important. Under Rev. St. 1874, c. 30, § 5, requiring, to prevent a conveyance to more than one person from creating an estate in common, an express declaration that the premises are to pass, not in tenancy in common, but in joint tenancy, the use of these words is not essential, and the particular words in which the intention is expressed are not important. 2. Deeds tenancy. pealed. They claimed to be the owners in fee each of one-eighth interest in the premises, while the decree found that they had no interest in them. The property was conveyed on April 7, 1885, by Carl Edward Wagner and his wife to Rudolph Perlick and Henrietta Perlick, his wife, the parents of the appellants, by a deed in the following language: "This indenture, made this 7th day of April, 1885, between Carl Edward Wagner and Catharina Wagner, his wife, of the city of Chicago, in the county of Cook and state of Illinois, party of the first part, and Rudolph Perlick and Henrietta Perlick, his wife, as joint tenants and not as tenants in common, of the city of Chicago, in the county of Cook and state of Illinois, party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of $6,350 in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged and the said party of the second part forever released and discharged therefrom, have granted, bargained, sold, remised, released, conveyed, aliened, and confirmed, and by these presents do 136-Deed held to create joint grant, bargain, sell, remise, release, convey, A deed describing parties of the second part (grantees) "as joint tenants, and not as tenants in common," held to creat a joint tenancy; the quoted words not being merely descriptio personæ, and the granting and habendum clauses running to "the party of the second part, their heirs, and assigns," not being i alien, and confirm, unto the said party of the second part, their heirs and assigns forever, all the following described lots, pieces, or parcel of land, situated in the county of Cook and state of Illinois, and known and described as follows, to wit: Sublots 4 and 5 in lot 2 in block 38 in Canal Trustees' subdivision of the west one-half, and that part of southeast quar (146 N.E.) ter west of river of section 21, township 39 north, of range 14 east of the third principal meridian. To have and to hold the said premises above bargained and described, with the appurtenancés, unto the said party of the second part, their heirs and assigns, forever." "joint tenants" are not sufficiently clear and explicit to indicate without doubt the purpose to create an estate in joint tenancy, the words "and not as tenants in common" remove all question as to the intention. The statute does not require the declaration that the premises shall pass not in tenancy in The Covenants of seizin, against incumbrances, and of general warranty followed. Perlick | common, but in joint tenancy, to appear in occupied the premises and was living on them with his family when he died, on December 13, 1899. By his will he devised a half interest in his estate to his wife and a fourth each to his two children, the appellants, and directed that after his wife's death all his property should revert to his children, the appellants. On December 14, 1921, Mrs. Perlick, who had married again and was then Mrs. Schoessow, conveyed the premises to Anton Stukis and Mary Stukis as joint tenants. The appellants' claim is that the Wagner deed conveyed the premises to Rudolph and Henrietta Perlick as tenants in common, and that their father's will devised to each of them one-fourth of his one-half of the premises, while the appellee claims that the deed conveyed to the elder Perlicks a joint estate, which upon the death of Rudolph passed to Henrietta, whose deed conveyed the premises in fee to the complainants. [1] At common law a conveyance to two or more persons was deemed to create a joint tenancy, and words or circumstances of negation were necessary to avoid creating a joint tenancy by such a conveyance. At the date of the Wagner deed, section 5 of chapter 30 of the Revised Statutes of 1874, which was first passed in 1827, was in force, the effect of which was to reverse this rule of the common law, so that at the time the deed was executed a conveyance to more than one person created an estate in common in the grantees, unless the premises were expressly declared to pass, not in tenancy in common, but in joint tenancy. Gaunt v. Stevens, 241 Ill. 542, 89 N. E. 812; Mette v. Feltgen, 148 Ill. 357, 36 N. E. 81. The only question for our consideration is, therefore, whether the language of the deed expressly declares the premises to pass, not in tenancy in common, but in joint tenancy. The use of those words is not essential. The statute requires only that the language shall clearly show that the premises are not to pass in tenancy in common, and that the purpose of the deed is to create an 'estate in joint tenancy. The particular words in which the intention is expressed are not important. Slater v. Gruger, 165 Ill. 329, 46 N. E. 235; Cover v. James, 217 Ill. 309, 75 N. E. 490; Mustain v. Gardner, 203 Ill. 284, 67 N. E. 779; Cooper v. Martin, 308 Ill. 224, 139 N. E. 68; Gaunt v. Stevens, supra. [2, 3] There can be no doubt of the intention expressed by the language of the deed. The grantees are described as joint tenants, and not as tenants in common. If the words any particular part of the conveyance. Wherever it appears, it will be sufficient, if it unmistakably declares the purpose. grant was of an estate in fee simple, whether in joint tenancy or in tenancy in common. It was to the party of the second part, their heirs and assigns. The party of the second part was stated to be Rudolph Perlick and Henrietta Perlick as joint tenants and not as tenants in common. reference back to the party of the second part thus described shows an obvious intention that the grantees should take as joint tenants. The [4] Because the granting clause is "to the party of the second part, their heirs and assigns," and the habendum is the same, the appellants invoke the recognized rule that the portions of a deed operative to limit and define the estate are the granting clause and the habendum clause, and that if there is a repugnancy between them the granting clause governs. It is argued that the grant is to Rudolph and Henrietta Perlick, their heirs and assigns, and the character and effect of the deed are to be determined without reference to the words "as joint tenants and not as tenants in common." The rule referred to declares that, where the granting clause of a deed has declared the estate granted, provisions of the habendum or other clauses of the deed cannot divest or control the estate granted, but so far as they are repugnant to it are void. It has no ap'plication here, because the words, "as joint tenants and not as tenants in common," are not repugnant to the grant to the "party of the second part, their heirs and assigns." This grant is of a fee simple, and the grantees, who are described only by reference as "Rudolph Perlick and Henrietta Perlick, as joint tenants and not tenants in common," take an estate in fee simple, whether they take in joint tenancy or tenancy in common. The recitals in the deed may be referred to for the purpose of arriving at the true intention, and the intention of the grantor, as disclosed by the deed as a whole, must govern its construction. The appellants insist that the words "as joint tenants and not as tenants in common" are merely descriptive of the persons, and the grant to the "party of the second part, their heirs and assigns," is a grant to the persons named, only, and the words "as joint tenants and not as tenants in common" in no manner affect the construction of the deed. They cite Baulos v. Ash, 19 Ill. 187, in support of this position. The an Chicago, Terre Haute & Southeastern Railway Company, and against the Cincinnati, Lafayette & Chicago Railway Company. From adverse judgments, railway companies separately appeal, which appeals were consolidated for determination. Judgment reversed. swer to this contention is that the further judgment for delinquent taxes against the description, "and the heirs of her body," following the name "Amanda V. Ash" in the description of the party of the second part, was inconsistent with the granting clause, which was to "the said party of the second part, her heirs and assigns," both in respect to the grantee and the nature of the estate. This answer was made to a similar contenFree P. Morris and Roscoe C. South, both tion in Slater v. Gruger, supra. It was fur- of Watseka (Carl S. Jefferson, of Chicago, L. ther held that the words used in the granting J. Hackney, H. N. Quigley, and R. C. Porter, clause were those proper to be used in creat-all of Cincinnati, Ohio, of counsel), for aping an estate in joint tenancy, provided the pellants. deed also contained the declaration required by the statute. "The only change," it was said, "from the common-law method of conveying the premises made by the statute, is that the deed shall declare that the premises pass, not in tenancy in common, but in joint tenancy. If that statute is sufficiently complied with, there is nothing inconsistent with such an estate in the words employed in the granting clause." The deed in question conveyed an estate in joint tenancy. The decree was right, and will be affirmed. Decree affirmed. (315 III. 589) PEOPLE ex rel. POLLOCK, County Collector, v. CHICAGO, T. H. & S. E. RY. CO. Elmer A. Taylor, State's Atty., and Claude N. Saum, both of Watseka, for appellee. DE YOUNG, J. The county collector of Iroquois county applied for judgment for taxes delinquent in the year 1923. The Chicago, Terre Haute & Southeastern Railway Company filed objections to the road and bridge taxes of the towns of Beaver, Prairie Green, and Sheldon, in that county, and the Cincinnati, Lafayette & Chicago Railway Company filed like objections to the same taxes of the towns of Beaver and Sheldon. The county court overruled the objections and rendered judgment for the taxes. The railway companies have prosecuted separate appeals to this court-one (No. 16490) by the Chicago, Terre Haute & Southeastern Railway Company, and the other (No. 16491) by SAME v. CINCINNATI, L. & C. RY. CO. the Cincinati, Lafayette & Chicago Railway (Nos. 16490, 16491.) (Supreme Court of Illinois. Feb. 17, 1925.) 1. Highways 127(1)—Highway Commissioner must show separate purposes for which taxes levied. Failure of Highway Commissioner to state different purposes for which tax for road and bridge purposes is required and amount of each, as prescribed by Road and Bridges Act, § 56, subd. 3, held to render tax void. 2. Highways 127(1)-Tax cannot be levied for one purpose and applied to another; highway commissioner has no control over state aid roads. Company. These appeals, for the purpose of their determination, have been consolidated. The highway commissioners of the towns of Beaver and Prairie Green certified that they had determined that for the year 1923 $9,000 and $8,892.17, respectively, were necessary to be levied on the property within their towns for road and bridge purposes. In each instance the sum certified was stated in gross. The several items which constituted the total were not stated separately. On the authority of these certificates of the highway commissioners the county clerk extended the tax. Appellants' objections are that road and bridge taxes cannot be certified in lump sums, and if such taxes are so certified they are void. Where, in reference to a road and bridge tax, it was stipulated that it was for pur[1] Subsection 3 of section 56 of the Road pose of buying the right of way on two state and Bridge Act (Smith's Stat. 1923, p. 1794) aid roads, held, that highway commissioner provides that the highway commissioner, in could not levy a tax for widening such roads, determining the amount to be levied for road since a tax cannot be levied for one purpose and applied to another; and, further, roads and bridge purposes, shall state separately mentioned in stipulation being state-aid roads, the several amounts to be levied for the conhighway commissioner had no control or super-struction of roads, the maintenance of roads, vision over them, and had no authority to levy a tax for their widening (Laws 1921, p. 793, §§ 12, 14). the construction of bridges, the maintenance of bridges, the purchase of machinery, the repairs to machinery, the oiling of roads, and the prevention and extirpation of weeds. Appeals from Iroquois County Court; John This provision is mandatory, and for failure H. Gillan, Judge. Proceeding by the People, upon the relation of Lial C. Pollock, County Collector, for to state the different purposes for which the tax is required, and the amount of each, as prescribed by statute, the road and bridge (146 N.E.) tax of each of the towns of Beaver and Prairie Green is void. People v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co. (No. 16316) 145 N. E. 727; People v. Cleveland, Cincinnati, Chicago & St. Louis R. Co. (No. 16317) 145 N. E. 671; People v. Illinois Central Railroad Co. (No. 16231) 145 N. E. 731; People v. Wabash Railway Co. (No. 16311) 145 N. E. 734. [2] With reference to the road and bridge tax of the town of Sheldon it was stipulated: "That the twelve-cent rate for road and bridge damages was for the purpose of buying the right of way on two roads,-the state bond issue road No. 8 (commonly called the Corn Belt Trail), and the state-aid road No. 4015D." The highway commissioner certified this item as damages "for widening roads, $2,000." Appellants' objections are that under the stipulation (1) the tax was not to be used for widening roads; and (2) since stateaid roads, only, are involved, the highway commissioner has no authority to levy a tax for the purpose stated. A tax cannot be levied for one specific purpose and applied to another. Moreover, the roads mentioned in the stipulation are state-aid roads and the highway commissioner had no control or supervision over them. He had no authority to levy a tax for their widening. Laws of 1921, §§ 12, 13, 14, p. 793. Appellants' objections to the road and bridge taxes of the towns of Beaver and Prairie Green, and to the item for damages for widening roads in the road and bridge tax of the town of Sheldon, should have been sustained. As to these taxes the judgment of the county court of Iroquois county will be reversed. Judgment reversed. (315 Ill. 431) LEHIGH STONE CO. v. INDUSTRIAL (Supreme Court of Illinois. Feb. 17, 1925.) .1. Master and servant 405 (6)—Evidence held not to support finding of temporary total disability. Evidence held not to support finding of Industrial Commission under Workmen's Compensation Act, § 8, par. d (Smith-Hurd Rev. St. 1923, c. 48. § 145), that temporary total disability of oiler in stone crushing plant extended over period of 98 weeks. 2. Master and servant 405 (1)-Claimant must prove injury by greater weight of evidence. Burden is on compensation applicant to prove by greater weight of evidence injury complained of. 3. Master and servant 385(15)-Temporary total disability proved by showing inability to work. To prove temporary total disability, it is not enough for claimant to show he did not work, but it must appear that he was not able to work. 4. Evidence 555-Physician's opinion, partly from history of case, that condition of claimant's back was due to trauma, held incompetent. Opinion of doctor, based partly on history of case, that condition of compensation claimant's back was due to trauma or injury, was incompetent; expert opinions not being competent if based on subjective symptoms. 5. Trial 91-Proper to move to exclude physician's opinion when cross-examination developed that it was based on history of case. Where cross-examination developed that physician's opinion that condition of compensation claimant was due to trauma was based partly on history of case, it was proper to move to exclude the opinion, given in direct examination, although unobjected to when given. Error to Circuit Court, Kankakee County; Arthur W. De Selm, Judge. Proceedings under the Workmen's Compensation Act by Andrew Berg, claimant, opposed by the Lehigh Stone Company, employer. Award of compensation by the Industrial Commission was affirmed by the circuit court, and the employer brings error. versed and remanded, with directions. Re W. R. Hunter and Eva L. Minor, both of STONE, J. Defendant in error was injured on August 17, 1920, while in the employ of plaintiff in error as an oiler in the latter's stone-crushing plant in Kankakee county. A belt about 50 feet in length and 12 inches in width, used on one of the crushing machines, broke, and one end, carrying a metal splicing-plate, struck defendant in error on the head. He was later found lying unconscious on the floor near one of the crushing machines. His scalp had been cut. He was taken to a hospital and given medical aid. He remained under treatment until September 13, when he went back to work. Compensation for this time and hospital and medical services were paid. He continued working at his usual occupation of oiler until October 1, 1920, when he quit. He had on September 8, 1920, complained that he had received an injury to his back. In January, 1921, he filed an application for compensation before the Industrial Commission. On hearing the ar For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes bitrator found him wholly and permanently | next day he hoed in the garden from 5 in incapable of work. On review before the the morning until 6 o'clock; that he stepped Commission that finding was sustained. The over the fence six times while working in circuit court of Kankakee county, on cer- the garden and carried a pail of water to tiorari proceedings, set aside the decision of the chickens; that on June 15 he worked the Commission and remanded the cause for on panels of a small fence; that on the 17th further proceedings. On further hearing he chased chickens out of the yard and the Commission on September 27, 1923, threw handfuls of dirt at them, turning his found that as a result of the injury defend- body around and picking up the dirt in the ant in error was temporarily totally inca- garden and throwing it against the fence; pacitated for work for a period of 98 weeks that on the 18th witness saw him working after the injury, and that he was per- around his chicken coop and garden, pulling manently partially incapacitated from pur-weeds and carrying water to the chickens suing his customary line of employment and in a three-gallon pail, and about the same was entitled to compensation under para- occupation on June 19; that on June 20 he graph (d) of section 8 of the Compensation saw him carrying water to the chickens, Act (Smith-Hurd Rev. St. 1923, c. 48, § 145). pulling radishes, and hoeing the garden; On further review by the circuit court the that witness saw him pick up a stone and finding of the Commission was sustained. throw it at a dog, stepping over the fence The cause is brought here for review, plain- back and forth three times. The playhouse tiff in error contending that there is not was made of lath. This witness testified sufficient competent evidence in the record that during this time he did not limp or use to sustain the finding of the Commission of his cane, but that when he left the house to temporary total disability for a period of go downtown he walked with a limp, carried 98 weeks, or to sustain the finding that de-a cane, and held his hand on his hip. fendant in error suffered permanent partial W. R. Sanborn testified that he is one of disability from the injury; that the temporary total disability extended to September 13, when defendant in error returned to work; and that compensation therefor and for hospital and medical aid had been paid. Defendant in error did no work for wages after October 1, 1920, until in the month of July, 1922, when he mowed lawns for hire in the city of Hammond, Ind., and on August 4 of that year he became crossing flagman for a railroad company at a wage of $85.50 per month. On hearing he testified that since October 1, 1920, he has not been able to stoop or bend over or walk without the aid of a cane and has been unable to do any but very light work. the officers of plaintiff in error; that during the month of June, 1921, he saw the defendant in error doing carpenter work in the rear of his yard. He was sawing on some material. The witness noticed a big difference between his actions on the street and in his back yard. On the street he used a cane and walked with a limp, but in using a saw he was in the position a carpenter would assume in sawing lumber; that he was not then carrying a cane. A. L. Franklin, bookkeeper for plaintiff in error, testified that during the month of June he saw defendant in error doing some carpenter work, making a building of some sort in the rear of his yard; that he was bending over in doing the work, matching boards or sawing; that witness drove by the house three times; and that at all these times defendant in error was working in a stooped position, with his body bent forward from his hips, but that when he was on the street he walked slowly, with a limp and with his hand on his hip or back, and carried a cane. Plaintiff in error offered the testimony of three witnesses, Robert M. Good, W. R. Sanborn, and A. L. Franklin, the first of whom testified that for two weeks he had watched the movements of defendant in error in and about his back yard; that he did so between the 7th and 20th of June, 1921, which was ten months after the injury; that he was employed to do so; that witness saw him stooping over the rows in his garden, pulling radishes-remaining in a stooped position at one time as long as nine minutes -walking back to the house, taking the two upper steps of the back porch with one step, stepping over a fence about two feet high, and working on a playhouse; that on June 9 he used a saw and hammer on this play-back and the statements of physicians, Dr. house from 10 a. m. until 4:45 p. m., though the day was hot, and on the 10th he saw him work on the playhouse, sawing, nailing, and fitting parts; that the next day he engaged in the same work from 5 o'clock in the morning until 4:50 in the evening, work The first evidence that appears, in the record of the injury to defendant in error's back was when he complained on September 8. some 20 days after the injury. No one was present when he was injured and the record does not show just what occurred there. The proof that his back was injured is derived from his statement as to pain in his Yeates, and Dr. Longpre, an osteopath. The latter testified that upon examination of defendant in error he found what he styled a rotation of the third and fourth lumbar vertebræ; that he treated him six times, but that he did not treat him further because he |