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damus. Our conclusion is that it was error field, Sangamon county, and state of Illinois. in the circuit court to sustain the demurrer Your orators further represent that on the to and dismiss the petition. The judgments 16th day of September, 1885, said Catherine of the circuit and appellate courts are ri- McDonald departed this life, leaving what versed, and the cause remanded to the circuit was claimed to be her last will and testament, court.
which said pretended last will and testament
was on the 22d day of September, 1885, ad(13) Ill. 493)
mitted to probate by the county court of SanMCDONALD et al. v. WHITE et al.
gamon county, Ill.; that by said pretended (Supreme Court of Illinois. Oct. 31, 1889.) will of Catherine McDonald she gave and be
QUIETING TITLE_CONTEST OF WILL. queathed to Mary White, of Springfield, the 1. A bill to remove a cloud from the title to said lot 5, in block 3, in Crosby's second adland cannot be brought when the person whose dition to the city of Springfield, and all right claim constitutes the alleged cloud is in possession and interest that she may have in said land.
2. Where a testator devises land to his wife for life, with power to dispose of it by will, with But your orators represent and charge the contingent remainder to his son in case the wife fact to be that, at the time of the making of makes no will
, and the wife devises the land by said pretended will, said Catherine McDonwill which is duly probated, and the son afterwards conveys the land without ever having possession ald was not of sound mind and memory, or of it, his right to establish title by contesting his capable of making a will; that on the 21st mother's will
, not being assignable, does not pass day of January, 1884, in the county court of to his grantee.
3. Nor is the grantee given the right to con. Sangamon county, state of Illinois, said Cathtest the will by Rev. St. Ill. C. 148, $ 7, which pro- erine McDonald was, by jury, found to be a vides that within three years after its probate distracted person, and a conservator was ap"any person interested” may contest it by bill in pointed for her on the 22d day of January, chancery, since when the will was probated he had | 1894; that, after said Catherine McDonald no interest in the property deyised.
became a distracted person, the pretended Appeal from circuit court, Sangamon coun- will was claimed to have been executed, but ty; JAMES A. CREIGHTON, Judge.
your orators allege and state the facts to be Conkling & Grout, for appellants. Pat- that at the time said pretended will was made ton & Hamilton, for appellees.
she was not of sound mind or memory, or SCHOLFIELD, J. This was a bill in chan not executed by her in the presence of two
capable of making a will; that the will was cery, filed in the circuit court of Sangamon witnesses, as required by law; that the witcounty, to contest the validity of the will of nesses did not attest said pretended will in Catherine McDonald, deceased. The allega- her presence, nor did she declare it to be her tions are substantially as follows: “Your last will and testament. Your orators furorators, Thomas F. McDonald and William ther aver that, the pretended will not being Kane, respectfully represent unto your honor valid, the property before described under the that one John McDonald, late of said county, will of John McDonald became, on the death departed this life on or about the 1st day of of Catherine McDonald, the property of said December, 1877, testate; that said John Mc- James McDonold, son of John McDonald; Donald left Catherine McDonald, bis widow, that James McDonald on the 7th day of May, and James H. McDonald, Margaret McDon-1887, conveyed to your orator Thomas F. ald, now Margaret Stubblefield, Patrick Mc- McDonald all his interest in lot 5, block 3, Donald, Andrew McDonald, and your orator Crosby's second addition to the city of SpringThomas McDonald, his children, as his only field, ill., and that said Thomas F. McDonald heirs at law; that by his will, which said will
conveyed to William Kane his interest in said was duly probated in the county court of San- real estate, but that said Thomas F. McDonald gamon county, III., said John McDonald be vet has a half interest in said estate, although queathed to his wife, Catherine McDonald, it stands in the name of William Kane upon all his real estate of which he died seised, to the records. Your orators further represent have and to hold the same for and during her that said Mary White is in possession of said natural life, giving her the rents and profits premises, claiming them under the pretended arising therefrom,
and with power to dispose will of Catherine McDonald. Your orators of said real estate by her last will and testa- further represent that no parties, except your ment as she should deem proper, but not the orators and the said Mary White, whose hus. power of sale; that among other things it was band is George M: White, have any interest in said will provided that, in case his wife in said will, or in said real estate; and that should fail, neglect, or refuse to make a will
your orators are the persons interested in said or testament, he then made this disposition will, and have the right, under the statute of of his estate: To James McDonald, his son, the state of Illinois, at any time within three he willed and bequeathed lot 5 of block 3 of
years after the probate of such will, to appear J. W. Crosby's addition to the city of Spring- by their bill in chancery, and contest the
Concerning the necessity of complainant's pos- validity of the same, and have an issue at law session of the land in suits to quiet title, see Gage made up, whether the writing purporting to v. Curtis, (Ill.) 14 N. E. Rep. 30, and note; Pearson be the will of Catherine McDonald is her will v. Creed, (Cal.) 20 Pac. Rep. 302; Graves v. Ewart, or not. Your orators further represent that (Mo.) 11 S. W. Rep. 971; Carier v. Woolfork, (Md.) 17 Atl. Rep. 1041; Moses v. Gatliff, (Ky.) 12' S. W. George M. White was appointed administraRep. 139.
tor of Catherine McDonald by the county court of Sangamon county, with the will an- son interested shall within three years after vexed, on the 25th day of September, 1885. the probate of any such will *
apRepresent that Patrick McDonald, one of the pear, and by his or her bill in chancery, children of John McDonald, has since died, etc., then an issue shall be made whether the and left as his children and heirs at law An-writing produced is the will of the testator nie McDonald and Katie A. McDonald. For- or testatrix. The section also provides that asmuch, therefore, as your orators are with “but if no such person shall appear within the out remedy in the premises except in a court time aforesaid, ihe probate, as aforesaid, shall of equity, and to the end that the said Mary be forever binding and conclusive on all parWhite, George M. White, and George M. ties concerned." White, administrator with the will annexed Manifestly the words "parties concerned" of Catherine McDonald, deceased, who are mean those upon whom the law imposes the made parties defendant to this bill, may be re- duty of settling the estate, and the words quired to make full and direct answer to the “interested therein” mean those interested in same, but not under oath, the answer under the settlement of the estate,- that is, those oath being hereby waived, and to the end that who will be directly affected in a pecuniary the said instrument in writing and the probate sense by its settlement,-and the words “any thereof may be set aside and declared null person interested” can only mean one of the and void as not the last will and testament same class of persons. The interest must be of the said Catherine McDonald, and that the a direct pecuniary interest affected by the prosaid real estate before described may be freed bate of the will, for the reference is to an exfrom the operation of said pretended will, isting interest, and not to an interest which and that said pretended will may be set aside may be subsequently acquired, since in that as a cloud upon the title; that your orators event the language would have been, “or if may have such other and further relief in the any one who shall, within three years, be inpremises as equity may require, and to your terested and appear, and by his or her bill in honor seem meet. May it please your honor chancery,” etc. That this is the correct to grant the writ of summons in chancery, meaning of the words is further manifest by directed to the sheriff of Sangamon county, reference to section 14 of the same chapter, commanding him to summon the said Mary where it is provided that “appeals may be White, George M. White, and George M. taken from the order of the county court, White, administrator with the will annexed allowing or disallowing any will to probate, of Catherine McDonald, deceased, to be and to the circuit court of the same county, by appear before this court, on the 1st day of any person interested in such will, in the the next September term thereof, to be held same time and manner as appeals may be at the court-house in said county, then and taken from justices of the peace,” etc. It is there to answer this bill.” The defendants impossible, in the very nature of things, that demurred to the bill, and for cause of demur- others than parties interested in the will at rer alleged that the complainants have not the time of probate can here be interested, now, nor did they have at the time of the and yet precisely the same reasons exist why filing of said bill, any interest in the last will the legislature should restrict the right of and testament of the said Catharine McDon- contest under section 7 as the right of appeal ald. The court sustained the demurrer, and under section 14. Appellants were not interthe cause is here by the appeal of the com- ested in the probate of this will. They were plainant.
deprived of nothing by it. Their interest was Since it is alleged in the bill that Mary derived by purchase long subsequent to the White is in possession of the premises claim- probate of the will, and is therefore not such ing under the will, the bill cannot be sus- as is within the contemplation of the statute. tained as a mere bill to remove a cloud from Moreover, James M. McDonald never had the title, (Hardin v. Jones, 86 Ill. 313; Gage possession of this property. He never had V. Abbott, 99 Ill. 366; Gage v. Griffin, 103 any apparent title to it. Almost all that he Ill. 41; Gage v. Schmidt, 104 Ill. 106;) and had was the bare right to establish title by therefore it only remains to determine wheth- successfully contesting this will. But such er the bill can be sustained as a bill to con- a right is not assignable, and cannot, theretest a will under section 7, c. 148, Rev. St. fore, be the subject of a conveyance. Norton -1874, entitled “Wills." We think it very v. Tuttle, 60 111. 130. The decree is affirmed. clear that it cannot, and that the demurrer to the bill was properly sustained by the court
(130 Ill. 509) below. It is provided in that section that
KLINGER 0. PEOPLE 'ex rel. HUGHES, “when any will, testament, or codicil shall be exhibited in the county court for probate,
State's Attorney. * * it shall be the duty of the court to (Supreme Court of Illinois. Oct. 31, 1889.) receive probate of the same without delay,
DRAINAGE DISTRICT. and to grant letters,
and to do all
A township which cannot be drained exother needful acts to enable the parties con- cept by four different ditches, each draining a dis cerned to make settlement of the estate at as tinct part of the town, cannot be formed into early a day as shall be consistent with the single drainage district, under drainage act Ill rights of the respective persons interested May 29, 1879, or that of 1885. therein: provided, however, that if any per- Appeal from appellate court, third district.
A.T. Pipher and S. R. Reed, for appel- | distinct districts, under the name of systems lant. Charles Hughes, State's Atty., and of drainage.' The plea states that upon the orJ. L. Ray, for appellee.
ganization of said district the commissioners,
in the discharge of their duties, went upon MAGRUDER, J. When this case was de- and examined all the lands within it to detercided in the appellate court of the third dis- mine upon a plan of drainage therein; and trict the following opinion was delivered by upon such examination, being aided therein Mr. Justice PLEASANTS, of that court: by a competent engineer, found the surface
“This was an information in the nature of the land in said district, embracing the of a quo warranto filed by the state's attor - whole town, was such as to constitute four ney of Piatt county, against Klinger, Vander- distinct water-sheds, having different direcvort, and Wooding, charging in separate tions for the natural flow of the surface wacounts that respondents usurped the office of ters thereof respectively. That the highest drainage commissioners of the town of Blue land was near the center of said district, east Ridge, of drainage commissioners of drainage and west, but considerably south of the cendistrict No. 1, of said town, and of drainage ter, north and south, and extended thence commissioners of, in, and for certain pre- northward, from which divide the natural tended drainage districts or systems of drain-flow of such water was about as follows: age which they have designated as drainage From the east and south-east parts of said systems No. 1, No. 2, No. 3, and No. 4, re- district to the south or east of south, into spectively, and without right or authority. Madden run; from the north-east part to the have proceeded to lay out, survey, plat, and north-east, through a natural depression leadconstruct ditches therein, and to levy taxes, ing into the Sangamon river; and on the assessments, etc., therefor. Respondents filed west side of the divide from the northern a plea averring that Blue Ridge was a town part to the south-west, by way of Trinkle in Piatt county; that said county has for slough, into Salt creek, and from the central years been under township organization; and southern parts also, to the southwest that in 1883 there was presented to the town into Goose creek. That to provide a comclerk of said town, with the requisite bond, a plete system of drainage for the district it petition signed by a majority of adult owners would be necessary to construct main ditches of all the lands in said town, being also own- for outlets commencing at the divide near ers in the aggregate of more than one-third of the center of the township, and leading reall said lands, praying that a drainage dis- spectively into Madden run, Sangamon river, trict be organized, embracing all the lands Goose creek, and Salt creek. That no one in said town for the purpose in that behalf continuous line of ditch could be constructed in the statute mentioned; that due notice so as to provide efficient means of drainage thereof was given to the then commissioners for the lands embraced in the district as orof highways of said town; that they proceeded ganized. That the commissioners determined regularly under the provisions of the drain- upon a plan of work for chief or main outlets age act approved May 29, 1879, to organize, for the water of the district which flowed by and did so organize, the district prayed for, way of Goose creek and Trinkle slough, and as drainage district No.1, in said town; that found it would require four main ditches as no other drainage district has been organized outlets to four separate areas of low and wet in said town; and that respondents are now land, having divides or swells of higher land the commissioners of highways of said town. between them; two of said areas flowing The plea set out at great length the several their water into Goose creek, but discharging steps and proceedings taken by all concerned at different points, and the other two into in the alleged organization, and the several Trinkle slough, but also at different points. provisions of the act above referred to, and of “From these statements in the plea we that approved June 27,1885, by which, as they understand it to be conceded, as it clearly is claim, the same were respectively directed or in the argument, that it is not practicable to authorized. A demurrer to the plea, assign- connect or combine a system of ditches that ing divers causes therefore, was sustained. would drain the land of the district as organRespondents Vandervort and Wooding then ized, or any two of the four water-sheds first filed a disclaimer, and declined to defend above mentioned. Each of these will require further; and Klinger abiding by the plea, a a system of drainage entirely separate from judgment was entered of ouster and for costs and independent of those of all the others. The against Klinger and Vandervort, Wooding question, then, is whether the statute authorhaving only just succeeded Wheeler (a former ized the organization into one drainage disco-respondent) as commissioner of highways, trict of lands so related, or, rather, so unreand been substituted for him as respondent lated with respect to drainage. We are of herein. From that judgment Klinger ap- the opinion it did not. We understand that pealed, and brings the record here for review. the system of combined drainage' is dis
"On the part of the people it is contended tinguished by the statute from the system of that the plea shows that the district therein re-individual drainage' which is therein recogferred to never had a legal organization; and, nized, though not specifically so named. An further, that if it had, the respondents aban- individual proposing to drain his own lands doned it, and have undertaken, of their own at his own expense may do so, if necessary, motion, without any petition, to create four though the lands of others, whether the latter are thereby benefited or not, making just|ganization cannot have been validated by the compensation therefor, as the law provides. latter act. Judgment atfirmed.” The drain or drains constructed for that pur- Concurring in the reasoning of the foregopose will constitute a system no less than in ing opinion, and in the conclusion reached the case of combined drainage, but it will re- therein, we adopt the same as the opinion of quire no district organization. But where this court. The judgment of the appellate there are lands so related that the same sys- court is affirmed. tem will benefit all of them more or less, and it is proposed to construct it at the expense
(130 Ill. 515) of all the owners, in proportion to the bene
GREEN et al. v. CITY OF SPRINGFIELD. fits to their respective lands received, they (Supreme Court of Illinois. Oct. 31, 1889.) may proceed to accomplish it without resort MANDATE AND PROCEEDINGS BELOW – CONSTITUto condemnation in the mode prescribed. TIONAL LAW-TAXATION-STREET IMPROVEMENTS. That is the system of combined drainage. 1. Where, on appeal from an order sustaininya The combination referred to is not of ditches, objections to the confirmation of a special tax, the though that will generally be required, but of case, the objectors may thereupon file further ob
supreme court reverses the order, and remands the contribution to the expense of constructing, jections in the lower court, provided such objec extending, improving, and maintaining them. tions raise different questions from those previously
passed upon. Here organization is necessary, since num
2. A municipal ordinance, requiring a tax for bers of persons have a common, though not the cost of improving a street to be levied upon the necessarily an equal, interest. All who are property abutting thereon, is not in conflict with so concerned have a right to be heard, and Const. Ill. art. 9, $ 9, which provides that special
taxes for local improvements may be levied upon may favor or oppose the proposition as each the “contiguous property.”. Following City of sees fit. If the requisite proportion in num- Springfield v. Greene, 11 N. E. Rep. 261. ber and interest of the owners of such lands 3. Upon the hearing of objections to the confirpetition for it, a district is formed which is mation of such a tax, evidence that certain property
was assessed more than its proper share, basing by the law intended to embrace the lands to such opinion upon the superficial area of the propbe benefitel, and no other. Commissioners erty, instead of its frontage, is immaterial. are provided to plan and execute. The lands
4. An ordinance directing the improvement of are classified according to the relative benefit|eral taxation, part by street-car companies, and the
a street, providing for the payment of part by genthey receive, and assessments are made upon rest by special taxation, and providing for the asthem in that proportion for the necessary certaining of the amount of the special tax, to be means, and so the work is done and main- estimated by a committee, under the provisions of
article 9 of the general law for the incorporation tained. Without referring specifically to the of cities and villages, and reported to the council, provisions of the statute, or stating more sufficiently fixes the amount to be raised by special minutely its practical operation, it must be taxation. obvious, from this general view of the firmation of a special tax, where the commission
5. Upon the hearing of objections to the conschenie, that for a good many reasons the dis- ers' report is introduced in evidence, and there is trict No. 1, in this case so-called, cannot be no material evidence tending to rebut it, an instrucsuch as is authorized or contemplated by it. tion stating that the report is competent evidence,
the same as if the commissioners were upon the As attempted to be organized, it is uncom- stand testifying to the facts therein stated, is not monly large of its class, embracing about reversible error, such report being at least prima sixty-four sections of land, and including an facie evidence. incorporated village, having by law independ
Appeal from county court, Sangamon counent powers of its own, in respect to drain-ty; JAMES H. MATHENY, Judge. age, besides much that needs no drainage
Gross & Broadwell, for appellants. Conkand will not be drained. The ditch proposedling & Grout and T. McGrath, for
appellee. for the northeastern water-shed will be about five miles in length. It will not of it- BAILEY, J. This is an appeal from an orself, nor can it by any connection or combi- der of the county court of Sangamon county, nation, be made to aid in draining an acre of confirming a special tax levied upon the propeither of the others. On principle the own- erty of the appellants for the purpose of payers of lands in the south western water-shed ing the expense of paving certain streets and should have nothing to say about nor should alleys of the city of Springfield. This is the their lands be taxed for it. So of those own- second time the case has been before this ing lands in each of those four water-sheds court. The former appeal was brought by as to all the others. We think the statute the city of Springfield, and was from an orconforms to this principle, and therefore that der of the county court sustaining certain obthe plea shows no proper or sullicient petition jections to said tax, and ordering the same to for a district comprising the whole four or be annulled and the proceeding dismissed. either of the areas effected by the separate Upon full consideration of the questions then systems, respectively; that all the land in the presented, said former order was reversed, town cannot be embraced in one district, be- and the cause was remanded to the county cause so small a portion of them would be court, with directions to allow a certain benefited by the same work or system of amendment to the assessment, which that works; that the affairs of such a district court had refused, and for further proceedcould not be administered according to the pro- ings in conformity with the views expressed visions of the act of 1879, or of that of 1885; in the opinion delivered upon the decision of and hence the proceedings taken for its or-'that appeal. City of Springfield v. Green, 120 Ill. 269, 11 N. E. Rep. 261. The cause becomes very apparent upon examination of being reinstated in the county court, said the long line of decisions cited in the opinamendment was allowed; and the appellants, ion. In those decisions the constitutionality at the same time, by leave of the court, filed of special taxes is considered in all its aspects, various other objections to said tax, in addi- including the one above suggested, and is so tion to those upon which the former hearing thoroughly and irrevocably settled as to prewas had. At the subsequent hearing, these, clude all further argument. as well as those previously filed, were over- The objection is that the special tax in ruled, and the order from which the present question has not been legally levied. The appeal was taken was thereupon entered. point of the objection seems to be that the
The point is made that the remanding or- provisions of the ordinance are only prelimider precluded the filing of further objections, nary to the imposition of the tax, but do not, or the raising of new issues. With this in legal effect, levy the tax. The ordinance, view we do not concur. In so far as the re-after ordering the construction of pavements manding order contained specific directions, of a certain description upon certain specified the court below had no discretion, but was streets and alleys, and providing for the paybound to carry out the mandate of this court. ment of the expense of paving the street in. Such, however, was not the character of the tersections and crossings by general taxation, order, except so far as it directed the allow- and also for the payment of the expense of ance of the amendment. Beyond that, the paving the right of way of so much of said county court was at liberty to take further streets as were included in the right of way proceedings, with this limitation: that, in so of steam, horse, or street railway compadoing, it should be controlled and guided by nies by such companies, provides and directs the rules of law established by this court in as follows: "The remainder of the costs of its decision. That certainly did not pre- said improvements shall be paid for by speclude the parties from raising questions, if cial taxation, and for that purpose a special any existed, which had not been submitted to, tax, equal in amount to the whole cost of and had not received the consideration of, paving that portion of said streets or parts this court. It should be observed, however, of streets and alleys not included in the inthat a very considerable portion, at least, of tersections and crossings aforesaid, nor in the objections filed since the decision of the the right of way of any steam, horse, or street former appeal, are, in substance, but repeti- railway company, and the cost of all materials tions, with various changes of phraseology, required therefor, and all other expenses conof the identical objections forinerly urged; or nected with the same, including the cost of a statement, in more ample form, and largely levying and collecting said special tax, is by way of argument, of the grounds upon hereby ordered to be levied, assessed, and which said objictions are sought to be based. collected upon and from the real estate, lots, It is manifest that mere change or amplifica- parts of lots, and tracts of land abutting uption of the statement of an objection, so long on the line of said streets so ordered to be as the objection itself remains in substance paved, in proportion to the frontage thereof the same, cannot take it out of the rules of upon the streets or parts of streets and alleys law already established in this case. It is ordered to be paved as aforesaid." The ordionly as to those which are substantially new nance also appointed a committee consisting that the case is still open for consideration. of three men,and instructed and directed them
The first of the objections recently filed, to make a separate estimate of the cost of pav. and now insisted upon, is that the ordinanceing the several streets, parts of streets, and alunder and by virtue of which said special tax leys ordered to be paved, including the cost of is sought to be enforced is unconstitutional, the labor and materials and all other expenses illegal, and void; the ground of the objec- attending the same, and also a separate estition, when shorn of its verbiage, being, sim- mate of the cost of paving the intersections ply, that the tax which it imposes is not as- or street crossings, and report the same to sessed upon “contiguous property,” within the city council at its next subsequent meetthe meaning of the constitution. The levying, or as soon thereafter as might be. It is ordered by the ordinance was upon the prop- also provided that upon the filing of the reerty "abutting" upon the streets and alleys port of said committee, and the approval to be paved, such levy to be in proportion to thereof by the city council, the city attorney the frontage of the property on such streets be directed to file the proper petition in the and alleys. The point now made is that the county court of Sangamon county for pro"abutting property” is not the "contiguous ceedings to assess that portion of the cost of property” upon which section 9 of article 9 said improvements required to be raised by of the constitution permits special taxes for special taxation, in the manner provided by improvements to be levied. While the con- article 9 of the general law for the incorporastitutional question was not discussed in this tion of cities and villages. It appears that precise aspect in our former opinion, that said committee made its report, and that said aspect of the question was necessarily in- report was approved by the city council. A volved in the decision, and is therefore as petition was thereupon presented to said completely settled as it would have been if it county court, on behalf of said city, by the had not been made the subject of special dis-city attorney, reciting said ordinance, the recussion. If this were otherwise doubtful, it port of said committee, and its approval by