The will provides for an annual payment, by the trustees, of ten thousand dollars to the wife of the testator, and also gives to her certain articles of personal property, such as furniture, horses and carriages, books and paintings, and a life estate in the homestead, situated in the city of Chicago, on the condition that she would consent to accept the same in lieu of her dower-right,and all other rights in the estate.

The remainder of the net income of the estate was to be divided by the trustees equally between the two daughters for life, with benefit of survivorship between them in such income. After their lives and that of the wife, the whole of the estate was to be by the trustees divided equally amongst, and distributed to, the children of the daughters, the child or children of either taking the whole in default of lawful issue of the other. There is then this further provision, upon which the question arises: In case of the death of both of my said daughters without leaving lawful issue, then, immediately after the decease of my wife, if she survive my said daughters-but if not, then immediately after the decease of my last surviving one of said daughters-my said trustees shall divide my estate into two equal shares, my said trustees being the sole judges of the equality and correctness of such division, and shall at once proceed to distribute one of such shares among the lawful surviving descendants of my own brothers and sisters; such descendants taking per stripes and not per capita. The other share of my estate shall be applied by my said trustees, as soon as the same can consistently be done, to the founding of a free public library, to be located in that portion of the city of Chicago now known as the North Division." Both of the daughters have died without issue and unmarried; one dying in February, 1874, the other in April, 1876. The widow of the testator is still living. She, within one year, renounced her rights under the will, and took, under the law of Illinois, onethird of the personalty and her dower in the realty.

Eight nieces and nephews, and ten grand nieces and nephews of the testator (the parents of the latter being dead) living at the death of the last daughter, constitute the complainants in the bill in chancery herein, which was exhibited in the circuit court of Cook County, asking a present distribution of the estate. The court below granted the prayer of the bill, and the defendants appealed.

The question for determination is, can there be now, during the lifetime of Mrs. Newberry, a legal division of the estate by the trustees; one-half to the descendants of testator's brothers and sisters, and the other half to the public library.

Complainants claim that, upon the death of the last daughter without issue, the class to whom the devise was in part made, viz: the lawful "surviving descendants" of testator's brothers and sisters, was in existence and capable of taking; that at the time the estate became vested in the members of the class, the testamentary life estate, which was given to the widow by the will, was the impediment to the distribution of the estate until

the death of the widow, and the reason of the postponement of the distribution until that event; that such life estate, having been extinguished by renunciation, it is, as to the complainants, the same as if her life had come to an end, and that the remainder to them was accelerated, under the doctrine of the acceleration of remainders, so that they became entitled to immediate enjoyment thereof.

The defendants assert that the death of the widow is fixed by the will as the time when the division and distribution by the trustees shall be made; and, further, that no distribution can be made until then-because they say that that time enters into the description of those who are to take; that the devise over is to those descendants only who survive the death of the wife, and, until that time, it can not be ascertained who the donees under the will are. Who are the donees in this devise to whom one-half of this estate is to be distributed? They are a class of "surviving descendants" of the testator s brothers and sisters. The members of this class are to be determined by the event or time, to which the word "surviving" relates.

However it

There are three periods here to which it may be claimed to relate: the death of the testator, that of the last daughter without issue, Julia Newberry, or the time appointed for the distribution, upon the death of Mrs. Newberry. may have been at some former time, we understand the rule now prevailing to be that, where a gift to survivors is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution, and them only.

[The court here enters into a long and learned discussion of the cases on the question, which are as follows: Knight v. Poole, 32 Beav. 548; Stevenson v. Gullan, 18 Beav. 590; Spurrell v. Spurrell, 11 Hare. 54; Young v. Robertson, 8 Jur. N. S. 825; Sinton v. Boyd, 19 Ohio St. 30; Olney v. Hull, 21 Pick. 311; Teed v. Morton, 60 N. Y. 503.]

This court recognized and applied the above rule in Ridgeway v. Underwood, 67 Ill. 419, where after referring to Jarman on Wills (3 Am. ed. 462,) and Marriott v. Abell, 7 L. R. Eq. Cases, 478, as authority to show the existence of such a rule of construction, it was said: "Here was a prior interest, which was to be extinguished by lapse of time before the land could be sold. The land was then to be sold and the proceeds to be divided between certain of the children. Here, then, applies with literal exactness the rule expressed by Jarman. The will provides for survivorship. It is indefinite in its terms, and the rule solves the doubt by applying the language of the testator to those who survive the period of distribution." *

*

We find it, then, to be the settled rule of law, that as expressed in Cripps v. Wolcott, 4 Madd. 11, "surviving" means surviving at the time of the distribution and possession of the estate, unless a contrary intent is specially found in the will. We do not find any such contrary intent in this will. The form of the gift here, too, there being none

except in the direction to distribute, adds to the strength of the rule, in confining the reference of the words of survivorship, to the time of distribution. The significance which the authorities attach to such a form of gift will be found to be as laid down in Leake v. Robinson, 2 Mer. 363. To a similar effect are Vawdry v. Geddes, 1 Russ. & Myl. 203; Locke v. Lamb, 4 L. R. Eq. 372; Drake v. Pell, 3 Edw. Ch. 2673. The donees, then, here, are the descendants living at the time of distribution, whenever that may be, and not those living at the death of Julia Newberry, unless that event should be coincident with the time of distribution. Until the time of distribution, it is not certain who will be alive to take then; and until that time arrives, it can not be ascertained and made certain who the donees are.

So that we are brought to that which at least is the primary inquiry in the case. What is the time of distribution under the will? Has the period of distribution arrived?

The time appointed by the testator in the contingency which has happened, the death of both daughters without issue, when the trustees should divide his estate into two equal shares and at once proceed to diistribute one of such shares among the lawful surviving descendants of his brothers and sisters, is "immediately after the decease of my wife." Complainants say, by the renunciation of the widow, their remainder has become accelerated, under the rule of acceleration of remainders; so that it is as if the widow were dead, so that thus the appointed time of distribution has arrived.

This doctrine of acceleration is stated by Theobald thus: "Where there is a gift to A for life, and, after his death, to B, if A is incapable of taking because he is an attesting witness, or from any other cause, or if he refuses to take, the remainder is accelerated. The same is the case if the life estate is revoked by the testator, or determined by a forfeiture clause." Theobold on Const. of Wills, 450. Jarman says, 1 Jar. on Wills, 3d Ed. 539: "The doctrine evidently proceeds upon the supposition that, though the ulterior devise is, in terms, not to take effect in possession, until the decease of the prior devisee, if tenant for life, or his decease without issue, if tenant in tail; yet that, in point of fact, it is to be read as a limitation of a remainder to take effect in every [any] event which removes the prior estate out of the way." In Jull. v. Jacobs, L. R., 3 Ch. Div. 711, it is laid down, "that a gift to A for life, and from and after the decease of A, to B, C, D, or any body else, means from and after the determination of the estate; and whether the estate is determined by revocation or by death, or by the capacity of the devisee to take, or by any other circumstance, the life estate being out of the way, the remainder takes effect, having only been postponed in order that the life estate may be given to A."

This doctrine of acceleration, however, is not an arbitrary one, but it is based on the presumed intention of the testator that the remainder-man should take on the failure of the previous estate, notwithstanding the prior donee may be still alive.

And when it is the evident intention of the testator that the remainder should not take effect till the expiration of the life of the prior donee, the remainder will not be accelerated. The further language of Vice-Chancellor Malins, in deciding the case of Jull v. Jacobs, supra, shows clearly and fully the principle which governs this doctrine of acceleratiou. He said: "It is perfectly clear, in the first place, that the children are postponed to the mother simply because the mother is to have the property for her life; but if the mother can not have the property for her life, why are the children to be postponed? The reason of their postponement altogether ceases; they are not to have it until after her death, because the testator assumed that she would have it during her life. But he was ignorant of the law that if he called in his daughter to be an attesting witness, the very gift he made to her would absolutely fail. Now he has postponed his grand children-that is, his daughter's childrensolely because the daughter was to take for life; and if he had known that she could not take it for life, he would not have postponed the children until after her death. He would not have left her and her family totally destitute in the meantime. It is a mere accident that the daughter can not take the life estate; and I am of opinion that the children are postponed to the daughter simply that she may have the property for life; and if she could not have it for life, the children would have it immediately."

In Augustus v. Seabolt, 3 Met. (Ky.) 155, where a prior life estate devised had failed, the devisee for life still living, the court refused to accelerate the remainder, because to do so would violate the plain language of the testator, and defeat his intention the words of the devisee over in remainder being after the death of the devisee for life to a class of children, or such of them as might be living at the time of the death of such devisee. See, also, 49 Cal. 76. *

As respects the intention of the testator, which is to be regarded in the interpretation of a will, it is not the intention to be deduced from speculation upon what the testator may be supposed to have intended, but it is the intention as spoken by the words in the will. In 2 Williams on Ex'rs, 7th Ed., 1078 marg., it is laid down: "The use of the expression that the intention of the testator is to be the guide, unaccompanied with the constant explanation that it is to be sought in his words and a rigorous attention to them, is apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do, instead of strictly attending to the true question, which is, what that which he has written means." 99 As bearing upon the testator's intention, there are other words of the will which should be considered, viz: "In case of the death of both of my said daughters without lawful issue, it is my will that thereafter the portion of my estate, both principal and interest, which would have belonged to them respectively in case they, or either of them, had survived, shall revert to and become a part of my estate. And it is my will, and I direct that, in the case of each and every bequest, and of every in

stance in which I have directed my trustees to pay over money to any person or persons whomsoever, if the person or persons to whom or for whose benefit I have made such bequest, or directed money to be paid as aforesaid, shall have deceased, or from any cause be incapable of taking them, then the amount so bequeathed, or so directed to be paid over, shall revert to and become a part of my estate, unless I have otherwise specifically directed."

The gift or payment of money mentioned in the last sentence above would seem to include this homestead and annuity offered to Mrs. Newberry by the will, if she would consent to take the same, in lieu of her dower, which she became incapacitated by her election of taking, and the direction is not that there shall be an immediate distribution of the estate, but that the failing gift shall revert to and become part of the estate.

"In case of the death of both or either of my daughters during the life-time of my wife, leaving lawful issue living, it is my will and I direct that such lawful issue shall have and receive from my said trustees the portion of the net income from my estate, which would have belonged to that one of my daughters from whom they are descended, had she survived."

To this issue not only the income, but the whole capital is given at the time of final distribution. Now, supposing this last-named contingency-the death of the daughter leaving issue living-had happened, and the present claim for immediate distribution had been set up in behalf of such issue, could it then have been successfully claimed that, as the widow had renounced, the estate of the trustees had ceased, and guardians of the minor son should be appointed, and the capital of the estate be at once turned over by the trustees? That such was the intention of the testator as disclosed by this will?

[Here follow provisions of the will which show that testator contemplated that the trustees would hold and improve the estate, and that his (testator's) wife might renounce the will.]

We are favored with the elaborate and able written opinion, delivered by the learned judge of the circuit court, who decided this case below. It is there said that there can be no doubt that had Mrs. Newberry not renounced but taken under the will, there could be no division or distribution now "for two reasons: First-The will is clear and distinct upon this point; three lives must terminate before distribution can be made. Second-In the nature of things no division and distribution could be had so long as the widow's testamentary estate existed. She was to derive an income from the whole property, and the income was an incumbrance upon the whole property. She was also to have a homestead for life out of testator's property." We are quite unable to perceive why these same reasons do not exist with full force under the widow's renunciation. The will is no more clear and distinct upon the point in the case of one event than in the other. There are no words of the will connecting the time of final distribution with the so-called testamentary estate, any more than with the statutory one, nor in fact with either of them

We do not see how the rule of acceleration can be made to apply to her, so that the time appointed by the will for the distribution, namely, the death of Mrs. Newberry, can be accelerated to the time of the death of Julia Newberry. The principle of that rule is that a remainder is accelerated whenever it is apparent that the only object of postponing the remainder man, was that the property might be enjoyed by the tenant for life. The facts of the present case preclude the idea that the postponement of time of distribution was simply and only because of this offered testamentary provision, as a substitute for the dower estate of the widow, and it being uncertain to the mind of the testator whether the proferred substitute would be accepted or not. There is no more room to say this than that the postponement was because and on account of such primary original dower estate, which yet subsists and will until the death of Mrs. Newberry. We fail to perceive any failure here of the precedent estate upon which the ultimate remainder was limited. If the time of distribution is to be considered as dependent on a life estate, it must be regarded as only contingently so on this particular testamentary substitute, in case of its acceptance and that, if not accepted, it was dependent on the dower estate; that it is to be viewed as fixed with reference to whichever estate should ultimately be and remain the estate of the widow according as she should accept or renounce the provision under the will. A life interest, the dower estate, yet remains in the widow. There is too the trust estate. The intermediate estate is not gone and out of the way. We deem this view sufficient without noticing other objections which have been urged against the applicability here of the rule of acceleration. The testator might well prefer, whatever the motive, that his estate should be kept together during the life of the members of his immediate family; and he has most distinctly shown that to have been his purpose.

*

Upon the assumption that the period of distribution is, in true meaning,appointed, not upon the death of the widow but upon the termination of her life interest in the testator's estate, it must have been in order that the division and distribution contemplated by the testator might be made, and not because of the necessity of this whole estate to support the annuity of $10.000 to the widow. It was an integral complete disposition of his entire estate he desired to make, which could not be made before the falling in of the reversionary estate; and it must be taken that the reversionary estate, however arising, was the reason of the postponement. Until the death of the dowress, the reversion expectant in the dower lands will not be subject to the distribution. It is the plain purpose of the will that the division and aistribution should not be made until after the termination of

the three lives-only at a time after the whole estate should have fallen into the trustees disencumbered of all further uses for the two daughters or the widow.

We can come but to the one conclusion, that the period of distribution appointed by the will has not yet arrived and will not until the death of Mrs. Newberry. To determine otherwise would seem to us to be, in this particular, making a will for the testator, instead of expounding the one which he has made.

The decree must be reversed and the cause remanded for further proceedings in conformity with this opinion. Decree reversed.

Associate Justices.

ASSUMPSIT ATTORNEY'S FEES-GUARANTY-IMPLIED PROMISE TO PAY.-Plaintiffs brought an action against defendant to recover attorney's fees for services claimed to have been rendered for him. It appears that D and wife, being tenants of defendant, and having been injured by an engine of a R. R. Co., subsequently brought suit against the company to recover damages. This suit led to protracted litigation, and plaintiff's claim that they were retained by defendant to perform the legal services rendered by them. Defendant denies that he employed them, but claims that they were retained by D and wife, and that if he (defendant) did anything, from which a promise to pay them might be implied, it was after the retaining by D, and then it was collateral and without consideration. Verdict and judgment in the circuit court was for the plaintiffs and defendant appeals. The court, through WALKER, J., say: "If appellant, by an original undertaking, retained appellees, then it might be implied from circumstances. But if appellees were employed by the D's, anything appellant might have done or said would not have created any liability on his part, without a new consideration and an express promise in writing to answer for the performance of the agreement of the D's. An original contract may be implied from circumstances, but a collateral agreement to answer for the debt, default or miscarriage of another person can not, as the statute requires that such agreements must be in writing, and it is held that there must be a consideration to support them. It then depends upon whether there was a previous agreement by D and appellees for the performance of these services. If there was none, then, if he did such acts, and no express promise is claimed, as implied, or agreement to pay for the services, he would be liable. But if there was a previous agreement with D to perform the services, an agreement by appellant, as we have seen, can not be implied." After examining the evidence, the court conclude that there was a previous agreement with D to perform the services. Reversed.-Mosher v. Arnold.

ASSIGNMENT OF JUDGMENT-RIGHT OF SET-OFF OF EQUITABLE CLAIM.-The facts are sufficiently stated in the opinion of the court by DICKEY, J.: "The de

mand proposed to be set-off had no connection in its origin or nature with the judgment assigned. Whether it consisted of unsettled accounts or an account stated, its amount was never reduced to judgment. At the time of the assignment of the judgment, the assignee, while he may have had notice that the judgment debtor had a demand against the assignor of the judgment, had no notice that the judgment debtor had any equitable right to have that demand set-off against the judgment, or even that he claimed any such right. It is not shown that the assignor of the judgment was at that time insolvent. In the case of Trohem & Dougherty v. Hughes, 46 Ill. 48, this court said that 'in equity the assignee of a judgment will be protected from any acts of the parties after notice.' In that case Trohem assigned to Dougherty a judgment he had recovered against Hughes. At the time of the assignment Hughes held a demand against Trohem, which was not in judgment, but was afterwards put in judgment. A bill was filed to set-off this judgment against that assigned to Dougherty. This case falls within the principle on which the Dougherty case was decided, and we hold that the court erred in permitting the claim of set-off to defeat the equitable right of appellant to have payment of the judgment enforced. insist Appellees that the assignment of the judgment by White to Ullman did not operate as an assignment of the appeal bond. We can can concur in this view. The assignment of the judg ment in equity passed to Ullman all the beneficial interest White had in the judgment and all its incidents. The assignment of a debt carries with it in equity the mortgage made to secure the debt." Reversed and remanded.-Ullman u. Crane.

EJECTMENT-TAX TITLE-FAILURE TO RECITE DATE OF EXECUTION RENDERS Deed Void.— Upon trial, in an action of ejectment, plaintiffs offered in evidence, in support of their title, a tax-deed, executed by collector, purporting to convey to them the lands in controversy. To the introduction of this deed defendants objected, on the ground that it was void on its face, which objection was sustained. When lands are sold for taxes, the statute prescribes form of deed to be executed by collector to purchaser, and makes such deed prima facie evidence of facts recited therein. 2 Wag. Stat. Among other things required to be recited is date of execution, or order of county court authorizing such sale. Held, as the deed offered did not contain such recitals, it did not comply with requirement of statute, and was properly excluded. The execution confers power to sell, and the recital of it, as well as as of its date, are essential recitals. Wilhite v. Wilhite, 53 Mo. 74; Blackwell on Tax Titles, sec. 406. Affirmed. Opinion by NORTON, J.-Williams v. McLanahan.

TEXAS CATTLE ACT UNCONSTITUTIONAL-H. & ST. Jo. R. R. Co. v. HUSEN FOLLOWED.-Plaintiff instited suit against defendant railway, for damages sustained by reason of transportation of Texas cattle by defendant. Suit was founded on sec. 1, Wag. Stat. 251, prohibiting introduction of Texas, Mexican and Indian cattle into this state, between the 1st of March and 1st of November of each year, unless they had been kept the entire winter previous in the state, and ren

dering railroad companies transporting through the state liable to damages resulting from Spanish or Texas fever occurring along the line of such railway. Held, that, as the unconstitutionality of the act has been affirmatively settled by the Supreme Court of the United States in H. & St. J. Ry. Co. v. Husen, 95 U. S. 465, 6 Cent. L. J. 170, the case at bar is controlled by the principle decided in that case, and the judgment must be reversed and remanded. Opinion by NORTON, J.Gilman v. H. & St. Jo. Ry. Co.

FORCIBLE ENTRY-EVIDENCE MUST SHOW DEFENDANT IN POSSESSION.-1. In an action of forcible entry and detainer, before a recovery can be had, it must be shown that defendants were in occupancy or possession of the premises sued for at the time of bringing the action; and that plaintiff was in the actual, as contra-distinguished from constructive, possession, at the time defendants entered. The failure to show either of these things is fatal to a recovery. And evidence of these facts must be preserved in the bill of exceptions, in order to have the case considered by the appellate court. In the case at bar, evidence on the part of plaintiff tended to show that land in controversy had, for a number of years prior to 27th of February, 1871, been in possession of Solomon Hendrick, but he claimed no title thereto. Plaintiff, who was a non-resident, claiming title, but had never been in possession, on the 27th of January, 1871, leased the same to Shepperd for three years. Shepperd took possession under lease, said Hendrick making no objection, and occupied it for one vear, when he abandoned possession without giving any notice thereof to plaintiff. Defendant offered no evidence, but demurred to that of plaintiff, which demurrer was sustained. Held that, as there was no evidence that defendants had ever been in possession, demurrer was properly sustained. DeGraw v. Prior, 53 Mo. 316; 32 Mo. 315. Affimed. Opinion by NORTON, J.—Armstrong v. Hendrick.

DAMAGES-EVIDENCE-STATUTE OF FRAUDS.---Plaintiff instituted suit for damages growing out of an alleged breach of contract on part of defendants, iu refusing to receive and pay for three hundred and sixty head of hogs, claimed to have been sold to them by plaintiff. Answer, general denial, and statute of frauds, judgment for plaintiff, from which defendants appeal. The memorandum of sale, offered in evidence, was as follows: "Brookfield, Sept. 10, 1874. William O'Neil. You will please get 360 hogs instead of 250, if you can, so as to make three car-loads at your place. Be careful about the weight. J. J. Crain Bros. & Co." During progress of trial, a witness on behalf of plaintiff was permitted to detail statements made to him by one Black, in regard to reason why defendants would not receive and pay for the hogs, which plaintiff had offered to deliver. These statements were not made in presence of any of defendants. Plaintiff was also permitted to introduce parol evidence, showing price agreed to be paid for hogs on delivery. Held, 1. That evidence of statements to witness not being made in presence of either of defendants, was inadmissible. 2. Parol evidence was clearly inadmissible to contradict, alter or vary a written contract; but when a written memorandum of a contract does not purport to be a complete expression of the entire contract, or a part of it only is reduced to writing, the matter thus omitted may be supplied by parol evidence. Rollins v. Claybrook, 22 Mo. 407; Moss v. Green, 41 Mo. 389; Briggs v. Munchon, 56 Mo. 467. The memorandum offered in evidence is silent as to price to be paid, and does not purport to express entire contract, and evidence offered to explain it in this particular, being in nowise contradictory to the writing, was, under authorities cited, properly admitted. Reversed and remanded. Opinion by NORTON, J.-O'Neil v. Crane.

RAILWAY COMPANY- EXCESSIVE CHARGES-ACTION FOR PENALTY.-1. In an action for three times the excess above legal rates, of the charges made by a railway company for carriage of goods, plaintiff, after a repeal of the statute giving such an action, can not, without amendment of the complaint, recover as in a common-law action for the simple excess of such charges above reasonable rates. 2. Whether the common-law action was suspended by the substitute of the statute; whether the repeal of the statute restored that action in cases which had occurred under the statute; whether an action founded on the statute can be changed by amendment to the common-law action; and whether the rates fixed by statute would then be taken for reasonable rates-not decided. 3. The rule of distribution of the statutory rates, between several railroad companies joining in one carriage, given in Rood v. Railway Co., 43 Wis. 146, will be adhered to as one required by the provisions of the statute itself. Opinion by RYAN, C. J.-Streeter v. C. M. & St. P. R. R.

EXEMPLARY DAMAGES-WAIVER OF OPENING ARGUMENT-CONDUCT OF TRIAL.-1. An award of punitive damages for a tort which is also punishable as a crime, is not in violation of the constitutional provision that no person, for the same offense, shall be twice put in jeopardy of punishment: and the rule allowing such damages should not now be abrogated or modified in this state, except by legislation. Provocation of an assault, though not sufficient for justification, may go to exclude exemplary damages. 3. A waiver of the opening argument to the jury by plaintiff's counsel, if it leaves him the closing argument at all, confines it to a strict reply; but quære, whether a mere violation of this rule, excepted to, would be sufficient to reverse a judgment. 4. If counsel, against objections, persevere in arguing to the jury upon pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence, this, on exceptions duly taken, may be good ground for a new trial, or for a reversal; and the judgment herein is reversed on such ground. Opinion by RYAN, C. J.- Brown v. Swineford.