« ΠροηγούμενηΣυνέχεια »
of the same note adds: “In the great majority of cases where there has been a gift of property to a person, followed by words of recommendation that he should give to a certain object, and which have been held uncertain as to the subject matter of the gift, the expressions used have referred to a residue or remainder existing at the person's death, as 'what shall be left,' 'what he shall die seized of,' 'what he shall die possessed of,' 'what he may have saved,' 'bulk of his residuary estate,' 'remainder of her property,'” etc.,-citing numerous cases.
The attempt to construe the language of the fourth clause so as to make it apply to one-third of the testator's estate cannot be sustained. There is not a single word, either in the first or fourth clause, from which such an inference can be drawn. Counsel speaks of the will as "mentioning the one-half of the two-thirds." To read those words into the fourth clause would be to make a will for the testator under the guise of construing the one made by him. Manifestly, the two clauses, taken together, show a clear intention to give two-thirds of the estate to the wife absolutely, with the expressed wish or desire that if any part of it remain in her possession or control at her death it should go to the nephew; but the desire expressed in the fourth clause created no trust in favor of Frederick Dalrymple, for the reason that whether anything should be left or not depended entirely and solely upon the unrestrained will of the wife. The same construction, under a long line of decisions of this court, also renders the fourth clause repugnant to the second, and therefore void. "If land be devised to a person with general power to dispose of the same, an estate in fee simple passes. Such a power of disposition amounts to an absolute gift of the property. But if it be devised to a person for life, with power to dispose of the reversion, an estate for life only passes; and if the devisee dies without disposing of the reversion, it goes to the heir of the devisor." (Fairman v. Beal, 14 Ill. 244; 4 Kent's
Com. 535, 536; Jarrot v. Vaughn, 2 Gilm. 132.) To the same effect are Funk v. Eggleston, 92 Ill. 515, Wolfer v. Hemmer, 144 id. 554, Wilson v. Turner, 164 id. 398, and Lambe v. Drayton, 182 id. 110.
That the language, "if at my wife's death there is any property then in her possession or control,” gives to the wife an absolute power of disposition, see Estate of Cashman, 134 Ill. 88, and Saeger v. Bode, 181 id. 514. Of course, if the power of disposition in the first taker is a qualified or limited power, there is not necessarily a repugnancy, -and this, we think, will generally explain any seeming conflict in the authorities. Thus, in Bergan v. Cahill, 55 Ill. 160, in which counsel for appellants says the will was very similar to the one at bar, "the wife is only given the power to sell and dispose of the property in case she is not supported by her children." Had the wife, in that case, attempted to exercise the power of alienation without reference to the condition imposed, a court of equity would have restrained her. She did not dispose of the property or attempt to do so.
To attempt to reconcile the language used by courts in the construction of wills would be a hopeless effort. The variety of language used in such instruments is without limit, and as the words must always be so construed and given such a meaning as will best effectuate the intention of the testator, the decisions are necessarily as varied as are the different expressions used in the wills. We have been unable, however, to find a case which will give support to the construction attempted to be placed upon this will by appellants, and we entertain no doubt that to give it the construction contended for would defeat, rather than carry out, the intention of the testator. The judgment of the superior court will be affirmed.
VINCENT H. PERKINS
192 58 e203 1110 108a 2636
Opinion filed October 24, 1901.
192 58 e211 1 59 e211 3 68 j211 3 74
1. ELECTIONS—ballots are best evidence if properly preserved. Ballots are the best evidence of the result of an election if they have been preserved in the manner and by the officers prescribed in the statute, and have not been so exposed to the reach of unauthorized persons as to raise a probability of their having been tampered with.
2. SAME-whether ballots were properly preserved is a question of fact. Whether ballots have been properly preserved is a question of fact, to be determined from all the circumstances proven.
3. BALLOTS—ballot bearing one initial of judge of an election is valid. While the statute requiring the official endorsement of the initials of a judge of the election is mandatory, yet the endorsement of one initial is a sufficient compliance therewith.
4. SAME-ballot bearing full name of judge may be counted. A ballot properly prepared by a legal voter may be counted although the judge of election, without the knowledge or participation of the voter, has endorsed his full name thereon instead of his initials.
5. SAME-effect where circles at the head of two tickets contain crosses. Ballots containing crosses in the circles at the head of two tickets and also a cross in the square before the name of one or the other of the nominees for the contested office are properly counted for the nominee before whose name a cross is marked.
6. SAME-a ballot is bad where other tickets are erased by lines drawn through them. A ballot marked with a cross in the circle at the head of one ticket should not be counted where the other tickets are erased by drawing lines through them.
7. SAME—whether ballot bears distinguishing marks is largely a question of fact. Whether a ballot bears distinguishing marks is largely a question of fact, and the action of the trial court in counting ballots alleged to be so marked cannot be overruled, on appeal, where such ballots are not certified to the appellate tribunal for inspection.
8. SAME—when ballots contained in “defective” envelope may be counted. On contest, ballots found in an envelope containing "defective and objected to” ballots may be counted, where the judges of election in the precincts where they were cast testify that they were cast by legal voters and gave their reasons for not counting them, none of which were valid, and where the ballots themselves are official, bear the initials of the proper judge, are properly marked and were enclosed in sealed envelopes so marked as to disclose their contents.
9. SAME—when appellant cannot complain of error in counting ballots. Ballots not bearing any initials of the judge of election are improperly counted on contest, but the appellant cannot complain where the record does not disclose for whom they were counted nor that appellant made any objection thereto.
10. SAME-ballots numbered by judges by misunderstanding may be counted. Ballots numbered by the judges of election by reason of a misunderstanding, on their part, of the law and without knowledge of the voters, are properly counted if otherwise valid.
APPEAL from the County Court of Cook county; the Hon. ORRIN N. CARTER, Judge, presiding.
CHARLES C. STILWELL, for appellant.
OSCAR HEBEL, for appellee.
Mr. JUSTICE HAND delivered the opinion of the court:
This is a proceeding begun in the county court of Cook county by appellee, to contest the election of ap. pellant to the office of supervisor of the town of North Chicago. At the general election held April 3, 1900, in the town of North Chicago, for the election of town officers, the parties were opposing candidates for the office of supervisor of said town, their names appearing upon the official ballot as nominees of the republican and democratic parties, respectively. On April 7, 1900, the canvassing board of the city of Chicago canvassed the returns of said election, as provided for by law, and declared that the appellant had received 11,953 votes and the appellee 11,890 votes for said office, whereupon a certificate of election was issued to appellant. On May 2, 1900, appellee filed a statement in the county court of said county for the purpose of contesting the election of appellant. Issues were formed and the cause heard, and the court entered a decree finding that appellee had received 11,859 votes and appellant 11,823 votes, and that appellee was duly elected to said office, and the appellant has prosecuted this appeal.
The ballots cast at the election were opened and counted by the court, and the decree was based upon
such re-count, to which action of the court objection was made by the appellant on the ground that the ballots should not prevail over the returns of the judges of the election, for the reason that said ballots had not been properly identified and preserved.
In Collier v. Anlicker, 189 Ill. 34, we say (p. 37): “Two rules upon this subject have been laid down by the de. cisions of this court: First, the returns should not be accepted as conclusive if the judges of the election have been so careless in the performance of their duties as to cast discredit upon their returns. (Catron v. Craw, 164 Ill. 20; Dooley v.Van Hohenstein, 170 id. 630; Murphy v. Battle, 155 id. 182; Caldwell v. McElvain, 184 id. 552.) Second, the ballots are considered the best evidence in determining the result of an election when it appears that they have been preserved in the manner and by the officers prescribed in the statute, and have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with.- Catron v. Craw, supra; Caldwell v. McElvain, supra; Beall v. Albert, 159 Ill. 127; Bonney v. Finch, 180 id. 133." And in Kreider v. McFerson, 189 Ill. 605, it is held that whether the ballots have been properly preserved is a question of fact, to be determined from all the circumstances proved.
The evidence shows that the boxes containing the ballots cast at said election were returned, properly sealed, on the evening of the third or the morning of the fourth of April, 1900, by the judges of election, to the board of election commissioners of the city of Chicago; that they were carefully guarded by the employees of the board of election commissioners until they were placed in the vault in room 316, on the third floor in the city hall in the city of Chicago, under the direction of said commissioners; that they were not tampered with, and the seals on each and all of said boxes were undisturbed when placed in said vault; that afterwards the vault was