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in refusing to instruct the jury to find the defendant not guilty, for the reason there was no negligence shown on the part of the defendant, and that the evidence shows conclusively that the accident was caused by the failure of the plaintiff to use due care for his own safety. Plaintiff being upon an elevator of the defendant used for the carriage of persons, the law is well settled that the defendant was bound to exercise the highest degree of care, skill, and diligence practically consistent with the efficient use and operation of the elevator for the plaintiff's safety. The testimony of appellant tended to prove that when the second floor of the building was reached the elevator was stopped, and the door leading thereto was opened by the boy in charge. Appellee, under the mistaken impression that he had arrived at the floor he desired to reach, and in conformity to the implied invitation of the open door to depart from the elevator, stepped upon the edge of the floor of the building in an attempt to alight. At that moment the boy in charge, without first closing the door, and without waiting to see if the plaintiff was about to alight, or if the lowering of the elevator, by reason of the door being open, would imperil his safety, caused the elevator to descend, by reason whereof the plaintiff's injuries were occasioned. Appellant contends that appellee, by his conduct, led the elevator boy to the conclusion that he (appellee) would not leave the elevator until the ground floor was reached, and therefore "the conductor need not take any further care of him, so far as his getting out of the elevator was concerned, until he got to the bottom." We are aware of no law by which a carrier of persons, when once having secured a passenger in its conveyance, may so operate its conveyance that, no matter how negligent it may be, the passenger cannot recover for injuries so received unless by some fortuitous chance the accident occurs at the passenger's destination. Passengers in an elevator must rely for their safety upon the efficient management of the conductor thereof. Their lives and safety are intrusted to his care, and he will be bound to the high est degree of care, skill, and diligence prac tically consistent with the efficient use and operation of such conveyance. Nor is this duty intermittent, but it remains a constant duty owing to the passengers as long as they remain such. When the door was thrown open in such a way as to invite passengers to alight, it was not appellee's duty to stop, listen, or make an examination before departing from the elevator. He had a right to assume that the appellant would perform its full duty toward him. Tousey v. Roberts, 114 N. Y. 312, 21 N. E. 399, 11 Am. St. Rep. 655. And it was immaterial that he did not inform the elevator boy that he was about to alight. If the boy had been in the exercise of that degree of care imposed by the law upon him, the jury might

well find from the evidence that he would have discovered appellee in the act of alighting before the elevator was started in its descent. We have held that "persons operating elevators are carriers of passengers, and the same rules applicable to other carriers of passengers are applicable to those operating elevators for raising and lowering persons from one floor to another in buildings." Deposit Co. v. Sollitt, 172 III. 222, 50 N. E. 178, 64 Am. St. Rep. 35. And in the case of Railway Co. v. Mills, 105 Ill. 63, this court, speaking through Mr. Justice Scholfield, said (page 67): "It was of no consequence whether the car was stopped at the instance of the plaintiff or not, since the act of stopping was productive of no injury, and is in no respect complained of. It is sufficient that while the car was stopped parties were getting off, and the plaintiff, while attempting also to do so with due care, was injured by reason of the negligent starting of the car by the defendant's servants. Nor could it be material to determine whether plaintiff asked or obtained permission of the defendant or its servants to alight. The car being stopped, from whatever cause, at a place where passengers were in the habit of alighting, she had the undoubted right to alight without making any request or obtaining any permission in that regard; and if the defendant's servants knew or by the exercise of due care would have known, of it, it was negligence on their part to start the car before she had a reasonable time in which to alight." The evidence clearly tending to show due care on the part of appellee, negligence on the part of appellant and the resulting injury to appellee, it was not error to refuse the peremptory instruction.

It is next contended that the court erred in giving the third instruction for plaintiff, which was: "The court instructs the jury that, even if the plaintiff made a mistake, and was alighting from the elevator at a floor which was not his destination, this fact will not of itself, as a matter of law, prevent his recovering in this case; but if you believe, from the evidence, that under the instructions of the court the plaintiff, while attempting to alight from the elevator, was exercising ordinary care for his own safety while so doing, and if you further believe from the evidence and under the instructions of the court, that the defendant was guilty of negligence as charged in the first count of the declaration, then you should find in favor of the plaintiff, if such negligence caused injury to the plaintiff as charged in that count." The complaint made is that the instruction ignored the exercising by the plaintiff of ordinary care for his safety before attempting to alight from the elevator, in that it would take away from the jury any consideration of the plaintiff's mistake in alighting at the wrong floor. As we have shown, appellee had the undoubted right to alight at any of the usual stopping places of the

elevator, and if the appellant, by the exercise of such care as the law requires, would have known that appellee was about to alight, it was negligence on its part to start the elevator before he had a reasonable time to do 80.

It is next contended that the court erred in refusing to give appellant's second interrogatory, which was as follows: "Was the defendant guilty of negligence causing the injury in this case, and, if so, in what did such negligence consist?" This special interrogatory was properly refused, for it was not restricted to those ultimate facts upon which the rights of the parties directly depended, but sought an opinion on probative facts. Railway Co. v. Dunleavy, 129 Ill. 132, 22 N. E. 15.

We are of the opinion that the record contains no material error, and the judgment of the appellate court will therefore be affirmed. Judgment affirmed.

(197 Ill. 496)

MAGNUSON v. MAGNUSON et al. (Supreme Court of Illinois. June 19, 1902.) WILLS-LAPSED DEVISES-DISPOSITION.

1. Hurd's Rev. St. 1899, p. 403, c. 30, § 5, provides that "no estate in joint tenancy, in any lands * shall be held or claimed under any devise whatsoever, * * unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy, and every such estate * * *shall be deemed to be in tenancy in common." Held, that where residuary devisees, not members of a class to whom property had been devised as tenants in common, died prior to the decease of the testator, the devises, as to them, lapsed and descended to testator's heirs.

2. Where a will makes no provision as to the disposition of lapsed devises, and no intention relative thereto can be gathered from the instrument, a contention that it cannot be presumed to have been testator's intention to die intestate as to the lapsed devises, or that his widow, already provided for, should receive a further portion as heir at law, will not avail to defeat the rule that lapsed devises go as intestate property.

Error to circuit court, Cook county; Frank Baker, Judge.

Suit for partition by Ellen Marie Magnuson against Karl Gustav Magnuson and others. Decree for complainant, and defendant Karl Gustav Magnuson brings error. Affirmed.

Whitfield & Whitfield, for plaintiff in error. H. H. C. Miller and Charles G. Little, for defendants in error Ellen Marie Magnuson, the State Bank of Evanston, William G. Hoag, George H. Miller, and Nils Edward Simonsen. George W. Hess, for defendants in error Thea Sevrina Magnuson, Helga Magnuson, Ellen S. Olsen, Helga Jenny Olsen, and the State Bank of Chicago.

RICKS, J. This is a bill for partition, brought in the circuit court of Cook county by Ellen Marie Magnuson, widow of Peter Oluf Magnuson, deceased, claiming as devi

see under the will of said Peter Oluf Magnuson, and also as one of his heirs at law, against the other devisee end other heirs at law. The bill and amendments allege that Peter Oluf Magnuson died on January 23, 1898, leaving a will, in and by which, after devising one-half of his estate, real and personal, to his wife, $200 to the NorwegianDanish Educational Society of Evanston, and $200 to Raymond Carinius Magnuson, it was provided, "the remainder of my estate I wish to be given and divided equally, share and share alike, between my father, Magnus Larson, my brother, Karl Gustav Magnuson, and my sister, Marie Elise Magnuson;" that said will was duly proven and admitted to record in the probate court of Cook county, and letters testamentary issued thereon; that testator left, him surviving, Ellen Marie Magnuson, the complainant, his widow; Karl Gustav Magnuson, his brother (plaintiff in error); Thea Sevrina Magnuson, his half-sister; Helga Magnuson, his half-sister; Kanut M. Olsen, Thor A. Olsen, Ellen S. Olsen, Magnus Olsen, and Mabel A. Olsen, children and heirs at law of Marie Elise Olsen, who was a sister of Peter Oluf Magnuson, and who died before his death, his only heirs at law and next of kin; that Peter Oluf Magnuson was at the time of his death seised of certain real estate in Cook county; that Magnus Larson and Marie Elise Magnuson died prior to the death of testator; that the four-twelfths of said estate devised to Magnus Larson and Marie Magnuson, by reason of the deaths of said Magnus and Marie prior to the death of testator, descended to the heirs at law of testator, as intestate estate; that complainant is seised of 60/120 of said real estate as devisee, and 20/120 thereof as heir at law, of testator; that Karl Gustav Magnuson is seised of 20/120 as devisee, and 5/120 as heir at law; that Helga Magnuson is seised of 5/120 as heir at law, and that Kanut Olsen and Mabel A. Olsen are seised, each, of 1/120 as heirs at law of testator. The bill further alleges certain incumbrances, as to which no error is assigned, and prays partition or sale. The answer of Karl Gustav Magnuson, plaintiff in error, neither admits nor denies the facts alleged in the bill, but demands strict proof. Kanut M. Olsen, after answering, died, leaving a will devising his entire estate to his widow, Helga Jenny Olsen. She was made a party defendant by amendment to the bill, and answered. A decree was entered finding the facts as alleged in the bill as amended, and adjudging that the four-twelfths of the estate devised to Magnus Larson and Marie Elise Magnuson, by reason of their deaths prior to the death of testator, descended to the heirs at law of testator, as intestate estate; that the interests of the parties were as set out in the bill; and ordering sale, directing the master to distribute the proceeds of sale amongst the parties according to their interests as found in the decree of partition.

There is but one question presented for

our consideration. Magnus Olsen and Marie Elise Magnuson, two of the residuary devisees, having died prior to the decease of the testator, do the devises to them lapse and descend as intestate estate, or fall into the residuum, and pass to Karl Gustav Magnuson, the surviving residuary devisee? Section 5, c. 30, p. 403, Hurd's Rev. St. 1899, provides that "no estate in joint tenancy, in any lands

* shall be held or claimed under any devise * * whatsoever, * * unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy, and every such estate * * shall be deemed

to be in tenancy in common." Under the statute, Magnus Larson, Marie Elise Magnuson, and Karl Gustav Magnuson would have taken by the will as tenants in common, and, upon Magnus Larson and Marie Elise Magnuson dying prior to the death of the testator, the devises to them would lapse. Being tenants in common, the devises which lapse are not reabsorbed into the residue, but go as intestate property. In case of the failure or revocation of the devise to any of the tenants in common, such shares descend to the heir at law of the testator, unless the devises be to the objects as a class. 3 Jarm. Wills (5th Am. Ed.) p. 17. It is said in 1 Underh. Wills, § 336: "Where a lapse takes place in the gift of the residue, either because the sole residuary beneficiary has predeceased the testator, or because one of the several residuary beneficiaries who take as tenants in common have died before him, the gift which lapses is not reabsorbed into the residue, but goes as intestate property either to the heirs or the next of kin of the testator, according to the nature of the property. This rule does not apply to a residue which is given in language which creates a joint tenancy among the residuary legatees, and a fortiori where the residuary gift is to several who take as members of a class, to be ascertained at the death of the testator." And the same doctrine is stated in Skrymsher v. Northcote, 1 Swanst. 570, as follows: "It seems clear, on the authorities, that a part of the residue of which the disposition fails will not accrue in augmentation of the remaining parts as a residue of a residue, but, instead of resuming the nature of a residue, devolves as undisposed of." Powers v. Codwise, 172 Mass. 425, 52 N. E. 525; 2 Redf. Wills (2d Ed.) p. 118. In Minkler v. Simons, 172 Ill. 323, 50 N. E. 176, we said (page 328, 172 Ill., and page 178, 50 N. E.): "Where a testator devises to three of his children property as tenants in common, and subsequently revokes the devise as to one, and makes no disposition whatever of the share revoked, such share will not go to the other two, but it will descend as provided in the statute of descent."

But it is contended by plaintiff in error that, inasmuch as Magnus Olsen died some seven years prior to the death of the testa

tor, it cannot be presumed to have been the intention of the latter to die intestate as to the share of such devisee; that it cannot be presumed, in the face of the provision already made for his widow, that the testator intended she should receive a further portion as one of his heirs at law. To this latter contention we might reply, neither can it be presumed that he intended that the plaintiff in error should receive a further portion. No provision or mention is made in the will itself of the disposition intended to be made of the portion of the devisees dying prior to the testator, and no intention can be gathered from the instrument itself what disposition the testator desired to make of the lapsed devises. Upon considering a will containing substantially the provisions of the will in this case, we said in Minkler v. Simons (page 328, 172 Ill., and page 177, 50 N. E.): "There is nothing to warrant a presumption of an intention on the part of the testator to make a disposition of the revoked share of the estate. However reluctant courts may be to hold that a portion of the property of a testator shall be regarded as intestate property, they cannot do otherwise where, as in this case, there is nothing to show an intention on the part of the testator to dispose of the property."

* *

There being no express declaration in the will that the residuary devisees should take as joint tenants, the decree of the learned chancellor, holding that they would take as tenants in common, and that the shares of the deceased residuary devisees lapsed and passed as intestate property of Peter Oluf Magnuson, was correct, and is affirmed. cree affirmed

De

(197 III. 432)

PIERCE v. PEOPLE ex rel. FIELD. (Supreme Court of Illinois. June 19, 1902.) ELECTIONS-MARKING BALLOTS-WRITING IN NAME OF CANDIDATE-IDENTIFICATION MARKS.

1. Under Ballot Law, § 23, directing that the voter shall prepare his ballot by marking a cross opposite the name of the candidate of his choice, or by writing the name of such candidate in a blank space on said ticket and making a cross opposite such name, or, if the elector wishes to vote for all candidates under one party designation, by marking a cross opposite the party designation, a cross opposite a party designation is a vote for a candidate whose name is written in a blank space under such designation, though there is no cross placed opposite his name.

2. A vote for a candidate whose name is written by the voter in a blank space under a party designation, and voted for by a cross opposite the party designation, cannot be thrown out as bearing identification marks, by reason of the failure of the voter to mark a cross opposite the name of the candidate.

Appeal from appellate court, Second district.

Quo warranto by the people, on the relation of Enos Field, against W. Scott Pierce to determine the right to an office. From a

judgment of the appellate court (100 Ill. App. 93) affirming a judgment for relator, respondent appeals. Affirmed.

E. L. Clover and D. R. Anderson, for appellant. C. F. Hanson, State's Atty. (Cornelius Reardon, J. W. Rausch, and McDougall & Chapman, of counsel), for appellee.

CARTWRIGHT, J. The question to be decided in this case is whether 11 ballots cast at the city election in the First ward of the city of Morris on April 16, 1901, shall be counted for Enos Field for alderman of said ward. The appellant, W. Scott Pierce, had 110 votes for that office, and if the ballots in question are counted for Enos Field he had 115 votes, and had a majority of 5. If they are not counted for him he was defeated by a majority of 6.

The following is a copy of said ballots as deposited by the voters:

voters, and the purpose of the statute is to effect that object and to preserve the secrecy of the ballot. The intention of the voters in this case is plain. Enos Field was their choice for alderman of the First ward, and they intended and endeavored to vote for him. The intention being clear, it is the duty of the court to give effect to such intention if it can be done without a violation of the law. It is the duty of every voter to ascertain and follow the provisions of the ballot law, and a ballot cannot be counted where to do so would violate the provisions of the statute, but the statute should be construed so as to give effect to the intention of the voter honestly endeavoring to comply with it, in preference to a construction which would defeat such intention. Every legal voter has a right to vote for the candidate of his own selection, and if the name of such candidate is not printed on the official ballot he has the right to insert it in some blank place on the ticket and

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The candidates on the Republican ticket were nominated by that party and the candidates on the Citizens' ticket were nominated by petition. Thomas Phillips was nominated on the Citizens' ticket for alderman of said ward, but on April 5, 1901, caused his name to be withdrawn from said nomination by his request in writing filed with the city clerk. There remained no candidate on the Citizens' ticket for that office, and the ballots were printed with the words "For Alderman-First Ward," with a blank space below for a name and a square to the left of it. The official ballot was printed and delivered to the voters as it appears above, with the exception of the cross in the circle opposite the word "Citizens' " and the name "Enos Field." The voters who cast the 11 ballots in question each wrote the name "Enos Field" below the words "For Alderman-First Ward," and made a cross in the circle at the head of the ticket.

The object of an election is to obtain and record a correct expression of the will of the

CITIZENS'.

For Mayor,

J. N. BUNNELL.

For City Clerk, ROBERT CONDON.

For City Attorney, J. W. RAUSCH.

For City Treasurer, WM. JONES.

For City Marshal, LAWRENCE BRODERICK.

For Alderman-First Ward,

Enos Field.

San

to vote for the candidate of his choice. ner v. Patton, 155 Ill. 553, 40 N. E. 290. Section 23 of the ballot law of June 22, 1891, recognizes this right. Hurd's Rev. St. 1899, p. 808. The right of the voters to write in the name of Enos Field on the ballot and to vote for him is not questioned, but it is insisted that they did not vote for him-First, because there was no cross made in the square opposite his name; and, second, because the failure to make such a cross in the square was a distinguishing mark, which the law forbade. It is conceded that if a cross had been made in the square opposite his name the ballots should be counted. The argument is that, under the language of the ballot law, making a cross in the circle at the head of the ticket is a vote for those only whose names are printed on the official ballot, and does not include a candidate whose name is written in a space left blank for such name under the title. Said section 23 of the ballot law directs that the voter "shall prepare his ballot by making in the appropriate margin or place a cross

(X) opposite the name of the candidate of his choice for each office to be filled, or by writing In the name of the candidate of his choice in a blank space on said ticket, making a cross (X) opposite thereto; and in case of a question submitted to the vote of the people, by making in the appropriate margin or place a cross (X) against the answer he desires to give: Provided, however, if he shall desire to vote for all of the candidates of one political party or group of petitioners, he may place such mark at the appropriate place preceding the appellation or title under which the names of the candidates of such party or group of petitioners are printed, and the ballot so marked shall be counted as cast for all of the candidates named under that title." This statute provides two general methods of voting for candidates: One, by putting a cross opposite the name of each candidate voted for; and the other, by putting a cross in the circle at the head of the list of candidates under one party appellation or title. It is true that the statute, in providing for voting an entire ticket by a cross within the circle at the head, says that if the voter desires to vote for all the candidates of one particular party or group of petitioners he may place the mark at the appropriate place preceding the title under which the names of the candidates are printed; but it also says that if he does so his ballot shall be counted as cast for all of the candidates named under that title. It would be, in our judgment, a narrow construction of the statute to say that the ballot should only be counted for those whose names are printed, where it is beyond question that the voter intended to complete the ticket by writing a name in the space left and to vote for the whole ticket. That would be to adopt a construction to defeat the intention of the voter rather than to give it effect. The statute contemplates regular official ballots printed and furnished by the prop

er officers, with the list of candidates of each party or group of petitioners. There is no provision that the ballot shall contain blank spaces in which the voter may write the names of persons for whom he desires to vote. The statute authorizes him to write the name of his candidate in a blank space on the ticket, which might be under no party appellation or title as a ticket, and he could adopt the plan of making the cross opposite the candidate of his choice for each office. In this case, a blank space was left under the title of the Citizens' ticket for the name of a candidate to be written in. The name of Enos Field was written in that space by the voters, and the cross within the circle at the head of that ticket was within the provision of the statute that a ballot so marked shall be counted as cast for all the candidates named under that title. This construction, in our opinion, does no violence to the statute, while it carries out the intention of the vot

ers.

The second claim is that the omission of a

cross in the square opposite the name of Enos Field constituted a distinguishing mark, by which the secrecy and sanctity of the bal lot were impaired. The argument is that the absence of a cross opposite the name was a mark by which these ballots can be identified and distinguished from the other ballots cast at the election, and that they must be rejected on that account. The distinguishing mark prohibited by the statute is such a mark as will separate and distinguish the particular ballot from the other ballots cast at the election. It is some sort of mark put upon the ballot to indicate who cast it and to furnish the means of evading the law as to secrecy. Parker v. Orr, 158 Ill. 609, 41 N. E. 1002, 30 L. R. A. 227. The absence of a cross in the square on these ballots would not serve that purpose and did not constitute a distinguishing mark. The judgments of the circuit court of Grundy county and of the appellate court for the Second district were in accordance with these views.

The judgment of the appellate court is affirmed. Judgment affirmed.

(197 III. 315)

LEWIS et al. v. HARROWER et al. (Supreme Court of Illinois. June 19, 1902.) WILLS CHARACTER OF ESTATE CREATED TESTAMENTARY TRUST.

Where a will directed that all the testator's property should be held in trust by named trustee, and that the trustee should pay the net proceeds thereof in a certain proportion to two brothers of the testator, one of whom was an invalid and the other a spendthrift, there was an active trust created in the trustee for the benefit of the brothers, each of the brothers taking a life estate in the estate in proportion to the amount of income directed to be paid to him, the remainder therein, not being devised, descending to testator's heirs at law as intestate property.

Philip Stein, Judge.
Appeal from superior court, Cook county;

Suit by John F. Lewis and another against Frank Harrower and others for the construction of a will. From the decree rendered, complainants appeal. Affirmed.

Barnes, Barnes & Wulff, for appellants. James Frake, for appellees.

HAND, J. This is a bill in equity, brought in the superior court of Cook county by the appellants for the purpose of obtaining a construction of the will of Ida M. Lewis, deceased, and of the powers of the trustee mentioned therein, which will bears date October 11, 1899, was admitted to probate November 14, 1899, and in part is as follows: "I direct that all the remainder of my property, of whatsoever character, shall be held in trust by my cousin, Frank Harrower, who is at this date in the employ of James Frake, my attorney. Further, I hereby appoint and make my above said cousin, Frank Harrower, trustee, to hold and administer my estate for my two brothers, John E. Lewis and

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