and that the First Church should hold it until there should be a legally organized Methodist church, and should then convey it to such church, is insufficient as a basis for declaring a trust, on account of the statute of frauds, by which all declarations or creations of trust must be manifested and proved by some writing. All other express trusts are declared to be utterly void and of no effect. The statute of frauds, however, has no application to rusts resulting by operation of law, and such trusts may be proved by parol. Such a trust results from the payment of the purchase money by one party, and the conveyance of the legal title to another; and it is contended that the trust alleged in this case resulted from the payment of the entire purchase money by the unincorporated society, which is now incorporated, and capable of taking and holding the legal title, which was taken by Higinbotham. It is essential, however, to the creation of such a trust, that there should have been a society formed for religious purposes, which paid from its funds the purchase price, or some definite part of it, and the trust can only arise from the original transaction. Reed v. Reed, 135 Ill. 482, 25 N. E. 1095; Stephenson v. McClintock, 141 Ill. 604, 31 N. E 310; Koster v. Miller, 149 Ill. 195, 37 N. E. 46. If there was an organized religious society which furnished the purchase price of the real estate, the fact that the society had not become a corporation would make no difference, in equity, where the trust would be upheld and enforced. Ferraria v. Vasconcellos, 31 Ill. 25; Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. 527, 40 L. R. A. 730, 63 Am. St. Rep. 241; Alden v. St. Peter's Parish, 158 Ill. 631, 42 N. E. 392, 30 L. R. A. 232. By virtue of the statute, property held for the use of the members would, upon the incorporation of the society, rest in the corporation. Dubs v. Egli, 167 III. 514, 47 N. E. 766. The facts alleged in this case do not show that any society was formed or organized, but, rather, the contrary. In order to constitute a society, there must be a membership of persons associated together which collectively constitute the society, with such officers as are required, or at least a definite collective body acting as a society. The mission is alleged to have been a mission of Trinity Church, and the facts show that it was an establishment dependent on that church. A mission is ordinarily sustained by some church on the mission property, and is conducted by missionaries for religious instruction and worship for the benefit of those not having their own regular church privileges. The bill does not show that there was ever any society formed for the purpose of religious worship, but that the mission was sustained by Trinity Church and other welldisposed persons as a mission under the control and management of said church. The people who were aided by the mission and given religious instruction, and the children who came to the Sunday school, could not be regarded as a religious society. Trinity Church could establish the mission, purchase the property, construct the buildings, and carry on the work of the mission, without becoming trustees of the people who were benefited by it. Neither are there any facts charged in the bill from which it can be said that the mission furnished the funds, or any part of them, for the purchase of the property or the erection of the building. The facts stated are that $10,000 was provided by the First Church, and not more than $15,000 by the members of Trinity Church, and that Higinbotham contributed. So far as appears, the money did not belong to the mission, but was contributed for the purpose of establishing the mission for Sunday school and other religious work under the direction, management, and control of Trinity Church. The property was erected, in a large part, for business purposes, reserving what was necessary for the Sunday school and work of the mission. Trinity Church rented the portions used for business purposes, and paid the expenses of the mission with the rent and other means. A resulting trust is not created by the facts alleged in the bill. The court was right in sustaining the demurrer and dismissing the bill. The decree is affirmed. Decree affirmed. In re ASSESSMENT OF PROPERTY OF TION-STATUTES-CONSTITUTIONALITY— 1. The decision of the federal Supreme Court, which remains in full force and effect, upholding the constitutionality of Laws 1855, p. 483, providing that all property belonging to or owned by the Northwestern University shall be forever free from taxation, is res judicata between the same parties, not only as to the questions of fact and law decided in that suit, but also as to the grounds of recovery or defense which might have been, but were not, presented. 2. Laws 1855, p. 483, providing that "all property of whatever kind or description belonging to or owned" by the Northwestern University shall be free from taxation, exempts from taxation all the property of the corporation acquired prior to the passage of the act. Proceedings for the assessment of certain real estate belonging to the Northwestern University. The board of review vacated the assessment, and the matter was certified by the auditor of public accounts. Affirmed. The board of assessors of Cook county assessed for taxation for the year 1903 certain improved real estate located in the business center of the city of Chicago, owned by the Northwestern University, which is under lease to the Illinois Trust Safety Deposit Company, and in use by it for banking and safety deposit purposes. The university filed objections to the assessment with the board of review of said county, upon the ground ¶ 1. See Judgment, vol. 30. Cent Dig. § 1241. that the property was exempt from taxation by virtue of section 4 of an act of the Legislature approved February 14, 1855, entitled "An act to amend an act entitled 'An act to incorporate the Northwestern University,' approved January 28, 1851," which section reads as follows: "That all property of whatever kind or description belonging to or owned by said corporation, shall be forever free from taxation for any and all purposes." Laws 1855, p. 483. The board of review sustained the objections, and ordered that the assessment upon the fee be vacated and set aside, and assessed the leasehold interest to the trust company at the sum of $50,000. The facts were certified by the board of review to the auditor of public accounts, and by the auditor to this court, in accordance with the provisions of section 35, p. 101, of the revenue act of 1898. It is claimed by the board of assessors the property is subject to assessment and taxation on the following grounds: First, the amendment of 1855 to the charter of the university is unconstitutional and void; and, second, the real estate in question having been acquired by the university prior to the passage of the amendment of 1855, it is not exempt from taxation. H. J. Hamlin, Atty. Gen., for auditor public accounts. Frank L. Shepard, for board of review. John C. Richberg, for board of assessors. John P. Wilson and H. H. C. Miller, for Northwestern University. HAND, C. J. (after stating the facts). In the case of Northwestern University v. People, 80 Ill. 333, 22 Am. Rep. 187, the question of the constitutionality of the amendment of 1855 to the charter of the university was presented to this court for consideration. That case was a suit between the same parties, and presenting the same issues involved here. This court then held the amendment was in conflict with the Constitution of 1848, in so far as it exempted property from taxation which was not itself used directly in aid of the purposes for which the corporation was created, but which was held for profit, merely, although the profits were to be devoted to the proper purposes of the corporation. The case went to the Supreme Court of the United States (Northwestern University v. People, 99 U. S. 309, 25 L. Ed. 387), where the judgment of this court was reversed; that court holding that the amendment of 1855 was a valid contract between the state and the university, the obligation of which could not be impaired by any subsequent legislation of the state imposing taxes upon the property of the corporation. decision remains in full force and effect, and must be held to be decisive of the question now raised as to the validity of the amendment of 1855. By assigning new reasons for holding the act invalid, which existed at the time that decision was rendered, the parties cannot relitigate the question settled by that That litigation. In Umlauf v. Umlauf, 117 Ill. 580, 6 N. E. 455, 57 Am. Rep. 880, on page 584, 117 Ill., and page 456, 6 N. E., 57 Am. Rep. 880, the court said: "No principle is better settled than that where a question proper for judicial determination is directly put in issue and finally determined in a legal proceeding by a court having competent authority and jurisdiction to hear and determine the same, such decision and determination of the question will be deemed final and conclusive upon the parties and their privie in all future litigation between them in which the same question arises, so long as the judgment remains unreversed or is not otherwise set aside." And in Bailey v. Bailey, 115 Ill. 551, 4 N. E. 394, at page 557, 115 Ill., and page 397, 4 N. E.: "As said in Rogers v. Higgins, 57 Ill. 244, the controversy cannot be reopened to hear additional reasons which before existed, and were within the knowledge of the party, in support of the same cause of action. The principle of res judicata embraces not only what actually was determined in the former case, but also extends to any other matter properly involved, and which might have been raised and determined in it." And in Harmon v. Auditor of Public Accounts, 123 Ill. 122, 13 N. E. 161, 5 Am. St. Rep. 502, at page 133, 123 III., and page 164, 13 N. E., 5 Am. St. Rep. 502: "In Beloit v. Morgan, 7 Wall. 619 [19 L. Ed. 205], it is said: "The principle of res judicata reaches further. It extends not only to the questions of fact and of law which were decided in the former suit, but also to the grounds of recovery or defense which might have been but were not presented.' It is contended the holding in Northwestern University v. People, supra, has been modified by the court rendering that opinion in the case of Chicago Theological Seminary v. Illinois, 188 U. S. 662, 23 Sup. Ct. 386, 47 L. Ed. 641. We do not so understand those cases. In the opinion filed in the Seminary Case the two cases are distinguished, and a different conclusion was reached in that case from the University Case, on the ground that the clauses found in the charters of the university and seminary exempting the property of said institutions from taxation were radically different, and not identical in meaning, as was contended in argument when the Seminary Case was being considered. In the Seminary Case, on page 675, 188 U. S., and page 388, 23 Sup. Ct., 47 L. Ed. 641, it was said: "The case of University v. People, 99 U. S. 309 [25 L. Ed. 387], is no authority for the contention contended for by the plaintiff in error. In that case the charter provided 'that all property, of whatever kind or description, belonging to or owned by said corporations, shall be forever free from taxation for any and all purposes.' The difference between the two provisions is intrinsic and material. What is lacking in the case at bar is present in the case cited, namely, a provision exempting all the property 'owned by The only question remaining is, does the amendment of 1855 exempt from taxation the property of the corporation acquired prior to its passage? In People v. Chicago Theological Seminary, 174 Ill. 177, 51 N. E. 198, that question was incidentally involved, and it was held that all property belonging to the corporation was, in unmistakable terms, exempt from taxation. The language contained in the amendment is very comprehensive, it being, "all property, of whatever kind or description, belonging to or owned by said corporation," and is so plain as not to be open to construction, and clearly exempts all the property of the corporation from taxation, acquired prior to the passage of the amendment. The decision of the board of review setting aside and vacating the assessment as to the fee was clearly right, and it will be approved. Decision approved. 1. Hurd's Rev. St. 1899, p. 864, c. 51, provides for the taking of depositions of nonresident witnesses; and section 33 declares that a deposition taken on written interrogatories shall be rejected if the attorney of any party is present. Chapter 148, in regard to wills, provides that, if an attesting witness resides outside the state or county, it shall be lawful to issue a commission to take the testimony of such witness. Held, that chapter 51 does not apply to depositions of nonresident attesting witnesses taken under chapter 148 in proceedings to probate a will, and hence the presence of proponent's attorneys when such a deposition is taken is no ground for striking it from the files. 2. Hurd's Rev. St. 1899, p. 1746, c. 148, § 4, provides that, in probate proceedings, if any attesting witness resides beyond the limits of the state or county in which the will is produced for probate, a commission may issue to take his testimony, etc., while chapter 51 makes general provisions for taking depositions of nonresident witnesses. Held that, on trial de novo, on appeal to the circuit court from an order admitting a will to probate, a deposition taken under chapter 148 is admissible. 3. On appeal from an order admitting a will to probate, the parties are confined to the testimony of the subscribing witnesses. 4. On appeal from an order admitting a will to probate, evidence considered, and held sufficient to show that the will was duly executed. 5. On appeal from an order admitting a will to probate, evidence considered, and held sufficient to show that testator had testamentary capacity. 6. On a will contest, evidence that testator was "rational and under no restraint" was equivalent to evidence that he was of "sound mind and memory," as required by statute. Appeal from Circuit Court, McLean County; C. D. Myers, Judge. Proceedings by James D. Arrowsmith to probate the will of Henry R. Arrowsmith, deceased, in which Elizabeth Bane and others appeared as contestants. From a decree admitting the will to probate, contestants appeal. Affirmed. Ewing & Ewing (John F. Wight, of counsel), for appellants.. Welty & Sterling, for appellee. CARTWRIGHT, J. The county court of McLean county entered an order admitting to probate the last will and testament of Henry R. Arrowsmith, deceased, and an appeal was taken from the order to the circuit court. In the circuit court a motion was made by the contestants to strike from the files the deposition of William Botts, one of the witnesses attesting the will, which had been taken in Indiana by virtue of a commission issued by order of said county court. The grounds of the motion were that notice of the issuing of the commission was not given to the contestants or their attorneys, and that the attorney for the proponents of the will was present when the deposition was taken, and propounded oral interrogatories to the witness in regard to the matters inquired about by the written interrogatories. The court overruled the motion. A previous deposition of the witness had been taken, which was not deemed sufficient, on account of a defect in the commission; and the commission in question was issued by order of the county court, directing that it should issue, and that notice should be given to Ewing, Wight & Ewing, attorneys for the con-· testants. In support of the motion the affidavit of Mr. Wight, one of the firm of attorneys, was filed, stating that he was attending particularly to the case, that notice was not served on said firm or either of the contestants, and that he did not know that the commission was issued or the deposition taken until after the county court had admitted the will to probate. It was conceded that an attorney for the proponents was present when the deposition was taken. The witness Botts was produced at the trial by the contestants, and testified that when the deposition was taken he said, in answer to a question, that he did not believe the testator was in his right mind, and that the attorney said to him, "You don't want to keep Henry R. Arrowsmith's will from being probated?" The attorney for proponents so referred to filed his affidavit that he personally notified the firm of Ewing, Wight & Ewing, by giving notice to Spencer Ewing, one of the members of the firm, in accordance with the order of the court; and he denied that he asked the question attributed to him by Botts, or any other question, or had any conversation with him when the deposition was taken. The commissioner who took the deposition, and the officer who served the subpoena on Botts, and was present when the deposition was taken, did not remember that the attorney said anything of the kind alleged. Chapter 51 of the Revised Statutes provides for the taking of depositions of nonresident witnesses in suits at law or in chancery, and section 33 of that chapter provides that a deposition taken upon written interrogatories shall be rejected if the attorney of any party is present. Hurd's Rev. St. 1899, p. 864. But the deposition in this case was taken in pursuance of the special provisions of chapter 148 of the Revised Statutes, in regard to wills, which contains no such provision. Section 4 of that chapter provides that, if any witness attesting a will shall reside without the limits of the state or county in which the will is produced for probate, it shall be lawful for the court, upon such notice to persons interested as the court may by special order direct, to issue a commission to take the testimony of the witness touching the execution of the will. Hurd's Rev. St. 1899, p. 1746. The special provisions of that section purport to cover the entire subject of taking depositions of witnesses to wills by commission from the county court. It makes no reference to the general statute, and in the case of Matter of Noble, 124 Ill. 266, 15 N. E. 850, the two statutes were regarded as independent of each other. In general, the law is that, in the absence of a statute or rule to that effect, the presence of one of the counsel at the taking of a deposition is no objection to it. 6 Ency. of Pl. & Pr. p. 531. The evidence before the court in this case justified the conclusion that the attorney had nothing to do with taking the deposition, and that it was in no manner influenced by him, and we think his mere presence in the room was not ground for striking it from the files, in the absence of any statutory prohibition. It is further insisted that the deposition could not be read in evidence because taken under said section 4 of chapter 148, which, it is said, does not apply to the taking of depositions to be read in circuit courts, and the decision in Matter of Noble, supra, is cited as so holding. What was decided in that case was that on appeal the method prescribed by chapter 148 was not exclusive; that in the circuit court depositions of witnesses to a will may be taken under the general statute, although the circuit court would undoubtedly have power to order a commission with the will annexed thereto, under the provisions of chapter 148. It is also urged that the deposition taken in the county court could not be read because the trial on the appeal was de novo. We do not so understand the rule. A deposition taken in a suit before the justice of the peace was held in Jarrett v. Phillips, 90 Ill. 237, competent to be read in the trial de novo in the circuit court on appeal. Depositions tak en and read in inferior courts are generally admitted on appeal where the case is tried de novo. 6 Ency. of Pl. & Pr. 576. The circuit court, on a hearing, again admitted the will to probate; and it is argued that there was no sufficient proof of the execution of the will, or of the mental capacity of the testator to make a will. On the appeal from the order admitting the will to probate, the parties were confined to the testimony of the subscribing witnesses. Andrews v. Black, 43 Ill. 256. The rule in such cases is not the same as where probate is refused by the county court, in which case the proponent is entitled, on appeal, to introduce any evidence which would be competent to establish a will in chancery. The will was attested by W. A. Coss and William Botts, and the testimony of Coss at the hearing, with that of Botts as contained in the deposition, was sufficient to admit the will to probate. The attesting clause was in the usual form, reciting that the instrument was subscribed by Henry R. Arrowsmith in the presence of the witnesses, and acknowledged by him to each of them; that he at the same time published and declared the instrument so subscribed to be his last will and testament; and that the witnesses, in his presence, subscribed their names thereto. Coss testified that he was present when the testator signed the will, but did not see him sign it; that the witness signed the will at the request of the testator, and in the presence of William Botts and the testator; and that the testator saw him sign it. As to the condition of the testator's mind at the time he signed the instrument, he testified that, to the best of his opinion, the testator was rational, and that he was under no restraint. The witness Botts, in his deposition, testified that his signature attached to the will was genuine, that he saw the testator sign the instrument, that the testator asked him to sign it as a witness, and that Coss and the testator were present when he signed it. As to the condition of the testator's mind and memory, he testified that he did not believe that he was just right, but that he was capable of doing business. When produced as a witness at the trial by the contestants, Botts testified that he knew the testator, and one day met him, when he said he was going to make a will; that when he was at the testator's house afterward, hauling corn, the testator told him to "come in; we will fix that up now," and Coss also came in; that, when they were in the house, Ezekiel Arrowsmith got the will down and laid it on the table; that the testator signed it, and Coss signed it, and, the witness not being able to write, Coss wrote his name, and the witness made his mark. As to the testator's mental condition, he contradicted his deposition, and testified that the testator was not in his right mind and capable of making a will. As to the deposition, he testified that he did not answer just in the way the depo sition read, but answered that he did not believe the testator was in his right mind. The attorney who was present when the deposition was taken testified that the answer given in the deposition was correct, as the witness gave it; that, when the witness said he did not think the testator's mind was just right, the commissioner said he thought be ought to state to what extent the testator's mind was not right, and the witness added that he thought he was capable of doing business. The commissioner testified that, when the witness was asked about the mental condition of the testator, he hesitated, and, when he made the statement that he was not just right, the commissioner asked him to make it more full and explicit, so that the court would understand what he meant, and he then said he was capable of doing business, and, in answer to a question, said he felt competent to do business with him. The testimony of Botts at the trial tended to impeach his deposition, but we cannot say that the court was wrong in concluding that the witness, at the time of the execution of the will, and when his depo sition was taken, believed that the testator had testamentary capacity. The clear preponderance of the testimony was that the deposition was correctly taken, and the court was justified in regarding the deposition as representing the actual belief of the witness. It is contended that the testimony of Coss as to the mental condition of the testator did not meet the requirement of the statute, because he said the testator was rational and under no restraint, instead of saying that he was of sound mind and memory. In Yoe v. McCord, 74 Ill. 33, and Campbell v. Campbell, 130 Ill. 466, 22 N. E. 620, 6 L. R. A. 167, it was held that sound mind and memory is equivalent to sanity, and one who is rational and acting rationally is, in the common understanding, sane and sound of mind. We think the testimony of the witDess was equivalent to the language of the statute. The judgment is affirmed. Judgment affirmed. CITY OF MACON v. HOLCOMB. (Supreme Court of Illinois. Dec. 16, 1903.) MUNICIPAL CORPORATIONS-NEGLIGENCE-DEFECTIVE SIDEWALK-ACTION FOR INJURIESINSTRUCTION-COMPARATIVE NEGLIGENCE. 1. In an action against a city for injuries from a defective sidewalk, an instruction that the city was bound to use all reasonable care and diligence was not prejudicially erroneous because of the use of the word "all," other instructions having properly defined the legal duty of the city. 2. In an action against a city for injuries from a defective sidewalk, an instruction imposing on the city the absolute duty of keeping sidewalks in repair was not prejudicially erroDeous, where the law was correctly stated in many other instructions. 3. There is no prejudicial error in refusing requested instructions where the same princi ples of law are stated in instructions given for the other party. 4. In an action against a city for injuries from a defective sidewalk, an instruction that defendant would be liable for its negligence, though plaintiff contributed to the injury, if by ordinary care plaintiff could not have avoided the consequence of defendant's negligence, was prejudicially erroneous, as qualifying the rule placing on plaintiff the burden of proving that he did not contribute to the injury, notwithstanding that the correct rule was laid down in other instructions. 5. The doctrine of comparative negligence does not exist in Illinois. Appeal from Appellate Court, Third District. Action by Benjamin F. Holcomb against the city of Macon. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff, defendant appeals. Reversed. Redman & Hogan, for appellant. WILKIN, J. The appellee brought this action in the circuit court of Macon county against the appellant to recover for an in jury to his ankle alleged to have been caused through the negligence of the defendant in failing to keep in repair a sidewalk on one of its streets. The plea was "Not guilty," and upon a trial by jury a verdict and judgment were rendered in favor of the plaintiff for $1,200. The defendant appealed to the Appellate Court, where the judgment of the circuit court was affirmed, and to reverse the latter judgment this appeal is prosecuted. All controverted facts, including the amount of damages, having been settled by the judgment of the Appellate Court, and no objection being here made as to the ruling of the trial court on the admission or exclusion of evidence, the only question for our consideration arises upon the giving and refusing of instructions. It is insisted that error was committed in the giving of the second, third, fifth, and seventh instructions on behalf of the appellee, and the refusal to give the seventh asked by the appellant. The criticism made upon the second instruction given for plaintiff is that it uses the expression "all reasonable care and prudence," whereas it is said it should have read "reasonable care and prudence," omitting the word "all." The instruction would have been more accurate if it had omitted that word, but the jury could not have been misled by it, especially in view of the fact that other instructions given on behalf of both parties correctly defined the legal duty of the city in keeping its sidewalks in repair. It is said the third imposed upon the city the absolute duty of keeping its sidewalks in repair, whereas the law simply required it to exercise diligence in that regard. Considering the instruction as a whole, it is not subject to the criticism made; but, if it were otherwise, the law is correctly stated in several other instructions given. The most 5. See Negligence, vol. 37, Cent. Dig. § 162. |