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Charles A. Lewis. Further, I direct that the above said trustee, Frank Harrower, shall pay all of the net income that shall accrue from time to time from interest, rents, or sales, as often as every three (3) months, or as soon as the net balance can be correctly ascertained, in the following proportions, to wit, to my brother John E. Lewis five-eighths (%), and to my brother Charles A. Lewis three-eighths (%)." On October 12, 1899, Ida M. Lewis died, leaving her surviving the complainants, her brothers, and Harry E. Grant, a nephew (a son of a deceased sister), as her sole and only heirs at law. Charles J. Lewis was appointed administrator cum testamento annexo of her estate, which consisted of about $3,000 in personalty and some real estate situated in Chicago. John E. Lewis, one of the complainants, is an invalid, and Charles A. Lewis, the other complainant, is a spendthrift.

It was contended in the court below, and such contention is renewed here, that John E. and Charles A. Lewis took the entire estate absolutely, subject only to the payment of a legacy of $300 to John H. Roseboom, the debts, and the costs of administration; while the appellees contend that John E. and Charles A. Lewis took only a life estate therein, and that the remainder is intestate estate, and passes by the laws of descent to the heirs of the testatrix. The superior court, upon a hearing upon bill, answer, replication, and evidence taken in open court, entered a decree ordering the administrator, upon the settlement of the estate, to turn over the personal property remaining in his hands to Frank Harrower, the trustee named in the will, and authorized said trustee to take immediate possession of the real estate of the testatrix, with full power to sell, convey, and rent the same and invest the proceeds, and to pay over the net income thereof to the complainants, five-eighths thereof to John E. and three-eighths thereof to Charles A. Lewis, and upon the death of John E. Lewis that the trustee pay five-eighths of the estate to the heirs of Ida M. Lewis, deceased, and upon the death of Charles A. Lewis that the trustee pay three-eighths of the estate to the heirs of Ida M. Lewis, deceased. From a reading of the will we think it clear that an active trust was created in Frank Harrower, and that he is authorized to hold said estate for the benefit of John E. and Charles A. Lewis during their lives, respectively; that John E. Lewis took a life estate in five-eighths and Charles A. Lewis in three-eighths of said estate; and that the remainder therein is intestate property, which, not having been devised except for the purposes of the trust, descended to the testatrix's heirs at law and is intestate estate, subject to the trust created by the will. Summers v. Higley, 191 Ill. 193, 60 N. E. 969. While it is true, where a person dies testate it will be presumed that he intended to dispose of his entire estate, and the instrument will be so construed unless

such presumption is clearly rebutted by its provisions, or there is evidence to the contrary (Hayward v. Loper, 147 Ill. 41, 35 N. E. 225), and while courts are reluctant to hold that any part of the property of a testator shall be regarded as intestate property, still in a case like this, where a life interest is created, and there is nothing in the will to show an intention on the part of the testator to dispose of the body of the estate, courts cannot do otherwise than to hold the body of the estate to be intestate property. Minkler v. Simons, 172 Ill. 323, 50 N. E. 176. We are of the opinion the superior court correctly held that John E. Lewis and Charles A. Lewis only took a life interest in said estate, and that they were not entitled to the possession of the body of the estate, but that, under the provisions of the will, the same should remain in the possession of the trustee during the life of said John E. and Charles A. Lewis, and upon the death of John E. five-eighths of said estate should be distributed as intestate property, and upon the death of Charles A. threeeighths should be distributed as intestate property, among the heirs at law of Ida M. Lewis, deceased.

The decree of the superior court will therefore be affirmed. Decree affirmed.

(197 III. 193)

HAIGH et al. v. CARROLL. (Supreme Court of Illinois. June 19, 1902.) PROCEEDINGS IN ERROR-PARTIES-RECEIV

ERS-REPORT-APPROVAL.

Exceptions to a receiver's report as to receipts and disbursements were overruled and the report approved and the receiver discharged. An interested party sued out a writ of error to reverse the order, to which writ the receiver was not made a party. Held, that the receiver was a necessary party to the proceeding, and as the order approving the report and discharging the receiver was as to him a final judgment, and the writ of error as to him the commencement of a new action, rendition of judgment against him when he was not a party was error.

Error to appellate court, First district.

Bill to foreclose a trust deed by Mary Jane Haigh and others against William H. Carroll and others. Charles S. Read was appointed receiver, and filed a report of receipts and disbursements, which was approved, and the receiver discharged. From a judgment of the appellate court (97 Ill. App. 576) reversing the order approving the report and discharging the receiver, he and the complainants bring error. Reversed.

Barker & Church, for plaintiffs in error. John C. Wilson and John H. S. Lee, for defendants in error.

HAND, J. The complainants, on August 18, 1898, filed a bill in the superior court of Cook county to foreclose a trust deed upon a 99-year leasehold interest in certain real estate in the city of Chicago. Upon the filing of the bill Charles S. Read was ap

pointed receiver of the premises, with the usual powers conferred upon receivers in like cases. On October 7, 1898, the defendants were defaulted, and thereafter such proceedings were had that on October 25, 1898, a decree of foreclosure and sale was entered for the sum of $15,994.54, which was the amount found to be due for principal, inter est, and solicitor's fees. On December 3, 1898, the master's report showing a sale on November 22, 1898, of the premises to Samuel D. Ward, one of the complainants, for the sum of $16,309.50, was filed and approved, and the sale confirmed. The sale was for the full amount due upon the trust deed. including interest and costs. In the order approving the master's report and confirming the sale, the court, without notice to the defendants, continued the receiver in possession of the premises during the period of redemption. On March 27, 1899, the receiver filed a report, showing his receipts and disbursements to have been $8,582. Exceptions were filed thereto by the defendant William H. Carroll, the owner of the equity of redemption, which exceptions were overruled, the report approved, and the receiver discharged, whereupon Carroll sued out a writ of error from the appellate court against the complainants to review the order of the superior court overruling the exceptions, approving the report, and discharging the receiver, but did not make Charles S. Read, the receiver, a defendant in error, nor was he otherwise a party to the proceeding in the appellate court. The appellate court reversed the order of the superior court and remanded the case to that court, with directions to disallow all expenditures made by the receiver during the period of redemption, and to order the payment of the moneys collected by him to the owner of the equity of redemption, less 5 per cent. for the collection thereof, and the complainants and the receiver have sued out a writ of error from this court to the appellate court to reverse the judgment of that court, and have assigned as error the action of the appellate court in reversing the order of the superior court approving the receiver's report and discharging him from office, and in directing the superior court to enter an order disallowing all expenditures made by the receiver during the period of redemption, and ordering the payment of the moneys collected by him to the owner of the equity of redemption, less 5 per cent. for the collection thereof, when the receiver was not a party to the proceeding in the appellate court.

The judgment of the appellate court does not affect the decree of foreclosure or any other order of the superior court, except such as relates to the approval of the receiver's report and his discharge. There was no controversy between the owner of the equity of redemption and the receiver as to the amount collected by the receiver as rent while he was in possession of the mortgaged

premises.

The only controversy between them in the superior court was whether the receiver should be credited in his account with certain sums which he had paid out for ground rent, repairs, insurance, commissions, etc. The receiver was directly interested in the question of the allowance of such credits, and the superior court having allowed him credit for such payments and approved his report and granted his discharge, the order of the court in that regard was final, and he could not be deprived of the benefit of such order without an opportunity to be heard in the court of review. The suing out of the writ of error from the appellate court was, as to the receiver, a new suit (Bank v. Jenkins, 107 III. 291), and before the appellate court had jurisdiction to reverse the order of the superior court approving his report and discharging the receiver, and to bind him by directing a specific decree to be entered against him in the superior court, the receiver must have been brought before that court in some one of the methods provided by law, as no valid judgment can be rendered against a party who is not actually or constructively before the court. Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458. A receiver appointed in a foreclosure suit cannot appeal from or sue out a writ of error to review the decrees and orders entered in such cause, except in so far as they affect the settlement of his accounts. To the extent, however, that such orders and decrees affect the settlement of his accounts, he may have them reviewed on appeal or by writ of error, and upon the review of a decree or order, by appeal or writ of error, affecting the settlement of a receiver's accounts, he is a necessary party if he is to be bound by the judgment of the court of review. Hinckley v. Railroad Co., 94 U. S. 467, 24 L. Ed. 166; Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888. In Hinckley v. Railroad Co., supra, which was a foreclosure suit, upon the settlement of the accounts of the receiver a balance was found due from him and payment directed. The receiver prayed an appeal. The complainant moved to dismiss the appeal for the reason that the receiver was not a party to the suit. The court say: "The receiver cannot and does not attempt to appeal from the decree of foreclosure or from any order or decree of the court, except such as relates to the settlement of his accounts. To that extent he has been subjected to the jurisdiction of the court and made liable to its orders and decrees. He has, therefore, the corresponding right to contend against all claims made against him. For this purpose he occupies the position of a party to the suit, although an officer of the court, and after the final decree below has the right to his appeal here. In this case the final decree has been given, and the case is properly here upon the appeal as prayed and allowed." In Hovey v. McDonald, su

pra, complainants appealed, and upon the motion of the receiver to dismiss the appeal the court say: "The first matter to be determined is the motion on the part of the receiver to dismiss the appeal for the reason that he was not a party to the suit. This motion cannot prevail. The proceedings instituted by the order requiring the receiver to file his account, and the subsequent reference of that account to an auditor and the exceptions thereto, were all directed against the receiver for the purpose of rendering him personally responsible for the fund which had been placed in his hands, and which he had delivered over in obedience to the original decree. It was a side issue in the cause, in which the complainants on the one side and the receiver on the other were real and interested parties. The decree confirming the auditor's report was, as to this matter, a final decree against the complainants and in favor of the receiver.

The receiver, though not a party in the principal suit, was an officer of the court appointed in the suit, and was a principal party to the particular question raised by the proceedings referred to. ** In the last case cited (Hinckley v. Railroad Co., 94 U. S. 467, 24 L. Ed. 166) a decree was rendered against a receiver directing him to pay into court a certain sum of money, being the balance found due from him on a settlement of his accounts. He appealed from this decree, and his right to appeal was sustained by this court. This case is a direct authority to show that the receiver in the present case, had the decree been against him, could have taken an appeal, and, if he would have had a right to appeal, surely the opposite parties have the same right." In Howe v. Jones, 57 Iowa, 130, 8 N. W. 451, 10 N. W. 299, a receiver was appointed in vacation, without notice. The supreme court, on appeal to which the receiver was not a party, reversed the decree, and directed that the order of the court appointing the receiver be set aside, and that the receiver deliver to the clerk of the district court all moneys, notes, or other property received or held by him under the receivership. On the case being remanded, the lower court undertook to enforce this order without regard to payments made by the receiver in accordance with its former orders. On the appeal of the receiver the supreme court, in How v. Jones, 60 Iowa, 70, 14 N. W. 193, in reviewing its former decision, say: "The receiver was not a party to this appeal and cannot be bound by its determinations. It would be grossly unjust to preclude and bind the receiver by a determination that he has the property in his hands, without giving him an opportunity to be heard." The judgment of the appellate court, by reason of the fact that the receiver was not a party to the writ of error sued out from that court, will be reversed, and the cause remanded to the superior

court, without prejudice to the right to sue out another writ of error. Reversed and remanded.

(197 Ill. 310)

ETNA LIFE INS. CO. v. SANFORD. (Supreme Court of Illinois. June 19, 1902.)

APPEAL FAILURE TO ASSIGN ERROR.

Failure to assign error on appeal is not a mere matter of form to be considered waived if not objected to, but one of substance, requiring dismissal of the appeal.

Appeal from appellate court, Second district.

Action by Mary S. Sanford against the Etna Life Insurance Company. From a judgment of the appellate court (98 Ill. App. 376) affirming a judgment for plaintiff, defendant appeals. Dismissed.

E. L. Clover and Wood & Oakley, for appellant. Samuel Richolson, for appellee.

The

PER CURIAM. This is an action of debt upon a life insurance policy brought by appellee against appellant, in the circuit court of Grundy county, in which court a judgment was rendered for appellee for $4,924.32. cause was taken to the appellate court for the Second district by appellant, where a number of errors were assigned, and upon a hearing the judgment of the circuit court was affirmed. From that judgment an appeal is prosecuted to this court.

We have carefully examined both the original record and the record from the appellate court, and are unable to find any assignments of error upon the action of the appellate court. From the nature of the action we could consider nothing but errors of law, and as no assignments of error have been made there is nothing for us to consider. The assignment of error is not a mere matter of form, to be considered waived if not objected to, but one of substance. Ditch v. Sennott, 116 Ill. 288, 5 N. E. 395; Davis v. Lang, 153 Ill. 175, 38 N. E. 635; Press v. Woodley, 160 Ill. 433, 43 N. E. 718; Lancaster v. Railway Co., 132 III. 492, 24 N. E. 629.

The appeal will be dismissed without prejudice, at the cost of appellant. Appeal dismissed.

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RICKS, J. This is an appeal from the board of review of Cook county to reverse its decision holding that $50,000 worth of imported goods of the appellant company, held in original unbroken packages, was subject to taxation for state purposes.

It appears from the record that appellants are importers of teas and coffees, and have houses in New York City, London, Rio Janeiro, and Santos, Brazil, and Chicago, Ill.; that on April 1, 1901, said firm had goods in original unbroken packages of the value of $50,COO, upon which the United States duties had been paid in their house in the city of Chicago, and also had other personal property, of the value of $25,000, which included moneys in bank, credits, fixtures, chattels, and all other taxable personal property. The board of review held that the $50,000 of imported goods held in the original packages, and upon which the duties had been paid, were subject to general taxation, and accordingly fixed appellants' assessment at $75,000.

The only question presented for our consideration is as to the right of said appellants to hold the imported goods in the original and unbroken packages free from taxation. This question has been before this court in the companion case of Appeal of Pitkin & Brooks, 193 Ill. 268, 61 N. E. 1048. That case holds such property exempt from taxation, and is decisive of the only question raised in this case. The assessment should have been for $25,000 only. To the extent of the $50,000 assessed upon the imported goods it will be set aside, and the county clerk and county treasurer of Cook county are directed to make that deduction from the assessment upon their books. The county treasurer should not enforce the collection of the taxes upon said amount, and if the same have already been collected they should be refunded to appellants.

Reversed and remanded.

(197 Ill. 242)

VILLAGE OF AUGUSTA v. TYNER. (Supreme Court of Illinois. June 19, 1902.) MUNICIPAL CORPORATIONS-STREETS-DEDICA

TION-ACCEPTANCE-ADVERSE OCCUPANCYLIMITATION-RIGHTS OF ADJACENT PROPERTY OWNERS.

1. A valid common-law dedication of a street may be made by a survey and plat which, by failure to observe the terms of the statute, is insufficient as a statutory dedication.1

2. Land was platted as an addition to a village, the owner of the land certifying on the plat that he relinquished to the public all claim to the streets laid out. A portion only of one street was opened and used; the owner of the land leaving a previously constructed fence so that it inclosed the remainder of the street, but making no claim to the inclosed portion, and stating that he would place a new fence on the true line as soon as he was able. The portion of the street not fenced was continuously used by the public, but the fence remained during the period of limitation, some time after which the village entered on the inclosed portion.

1 See Dedication, vol. 15, Cent. Dig. § 61.

Held, that the acceptance and use of the uninclosed portion was an acceptance of the entire street; the tacit permission to the owner to allow his fence to remain where it was being insufficient to show that the village accepted only a part.

3. The statute of limitations does not run against a village in respect to adverse occupancy of a street.

4. It is not necessary to an acceptance of an offer to dedicate land for a street that every street, or all of any street, should be forthwith opened and used when platted.

5. Where lots are sold with reference to a plat whereby adjacent streets are dedicated to the public, the purchasers are entitled to have the street remain open, whether the dedication is accepted by the public or not.

6. Where land is platted as an addition to a village, streets are dedicated, and adjacent lots sold with reference thereto, the private right of the lot owners to have the street remain open cannot be enforced by the municipality, but as to the latter an acceptance of the dedication is necessary.

Appeal from circuit court, Hancock county; John A. Gray, Judge.

Action by Cornelia H. Tyner against the village of Augusta and others. From a judgment for plaintiff, defendant village appeals. Reversed.

W. H. Mead and David E. Mack, for appellant. Apollos W. O'Harra, for appellee.

CARTWRIGHT, J. Appellee brought this suit in trespass in the circuit court of Hancock county against appellant and certain of its officers and servants to recover damages by reason of removing a fence and grading the premises for a street. To the declaration there was a plea of the general issue, and a plea of liberum tenementum in the appellant, and that the other defendants were its officers and servants, acting under its command. Issue was joined on the first plea, and the second was traversed by a replication, on which issue was joined. The jury was waived, and it was agreed that no judgment should be rendered against the officers and servants of appellant. The cause was tried by the court, and judgment was rendered against appellant, from which it appealed.

The case was tried mainly on a stipulation of facts, with some additional evidence introduced by the parties. The facts agreed upon and proved are as follows: John H. Catlin, being the owner in fee simple of certain real estate, including the premises in question, on October 16, 1866, caused to be surveyed and laid out thereon Catlin's Third addition to the village of Augusta. He caused a survey and plat to be made and certified to by Edwin Mead, deputy surveyor of Hancock county. Upon the plat he certified that it was surveyed and laid out by his direction, and that he relinquished all claim to the streets laid out, for the use and benefit of the public; and he acknowledged the plat and had it recorded. The addition consisted of three blocks lying east and west, and north of them was a street marked "Prairie street," of the width of 66 feet. The premises in controversy are a part of that street, as designated on the plat.

Immediately north of this street was Catlin's farm, of which the addition had been a part. He opened to the use of the public all of the street except a strip on the north side, but built his fence in the street, about 22 feet south of the north line at the west end, and about 12 or 14 feet at the east end. The part of the street opened to the public was worked and kept in repair by the city authorities. At the east end some lots were afterwards sold north of Prairie street, and not in the addition; and the fence at that end, for about 150 feet, was moved back near the north line of the street. During the period from the filing of the plat up to March, 1873, Catlin sold to different persons all the lots described in said addition, according to their proper description, and by reference to the plat. That part of the street north of the fence not open to the public was cultivated by Catlin, and the fence remained in practically the same place since 1868. The fence was very old, and in later years consisted of some wires stretched on stakes and a few old posts. There were a few forest trees-four or five in number-which sprung up along the fence. Catlin during his lifetime made to different persons statements that the fence was not on the line, but stood out in the street; that the street was 66 feet wide; that when he got able he was going to put the fence on the line; and that he would let the fence stand until he built a new one. He did not claim any ownership of the strip, or any right to hold it. He claimed that he was merely leaving the fence there until a new fence should be built in the future. To one person he said that he signed the plat under a misunderstanding as to the width of the street, and he would keep the fence where it was, for he thought that some time he might get a right to the land by limitation. Catlin died intestate July 25, 1900, and by a decree in partition entered April 24, 1901, the part of the farm north of the addition was set off to plaintiff, Cornelia H. Tyner. Her ownership extends to the north line of Prairie street, and she claims that the premises in controversy never became part of the street. She was about to put up a fence on the line of the old one, and on June 2, 1901, the defendants took down the fence and opened the whole street to the public, and this is the alleged trespass.

John H. Catlin attempted to make a statutory dedication of the street by means of the plat, on which he certified that it was made by his direction, and that he relinquished all claim to the streets laid out for the use and benefit of the public, and which he duly acknowledged and caused to be recorded. Notwithstanding his intention, the plat did not have the effect of conveying the fee to the village, for the reason that the Revised Statutes of 1845, then in force, required the survey and certificate to be made by the county surveyor. The survey and certificate were made by a deputy county surveyor in his own

name as deputy, and not in the name of the county surveyor, so that the plat did not have the effect to convey the fee of the street. Village of Auburn v. Goodwin, 128 Ill. 57, 21 N. E. 212. The question, therefore, is whether there was a dedication of this street good at the common law. Such a dedication may be made by a survey and plat which is insufficient as a statutory dedication. It could be made by the survey and plat alone, by which Catlin set apart the street for the use of the public. Maywood Co. v. Village of Maywood, 118 Ill. 61, 6 N. E. 866; Marsh v. Village of Fairbury, 163 Ill. 401, 45 N. E. 236.

The dedication being not according to the statute, the title in fee did not vest in the village, but remained in Catlin, burdened with the offer of dedication, and, as between him and the village, would become complete upon acceptance. The street was opened, except the strip in controversy, and was used by the public, and worked and kept in repair by the village authorities. There is no dispute that the street was accepted of the width that it was opened, but it is insisted that there was no acceptance of the other portion. It is true that a street may be accepted in part, and the remainder rejected, if it is proved that such was the intention of the public authorities. An acceptance of some of the streets named in a plat will not constitute an acceptance of the whole, if it is shown that there was an intention to limit the acceptance. City of Chicago v. Drexel, 141 Ill. 89, 30 N. E. 774; Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191. Under the evidence in this case, it could not be said that the village accepted only a part of the street, and declined to accept the remainder. Catlin never withdrew his offer, but always said that the street was 66 feet wide. He claimed no right to the part inclosed by him, and said that when he built a new fence he would put it on the line. His possession of the strip was not adverse to the village. He made no claim to the strip, although at the time he seems to have had a mistaken idea that the statute of limitations might give him title some time. That statute does not run against a village in respect to a street, and the mere permission to him to remain in possession of a part of the street, when he disclaimed any right to it or any hostility to the public, could not ripen into any right under the statute of limitations, even if it applied to the public. So far as the public are concerned, unless the offer to dedicate is withdrawn, the street may be opened and used at the discretion of the public authorities as public necessity may require, and it is not necessary to an acceptance that every street should be forthwith opened when platted. Lee v. Town of Mound Station, 118 Ill. 304, 8 N. E. 759.

Although the survey and certificate were not made by the county surveyor, yet Catlin sold all the lots in the addition with reference to the plat; and this created a common-law

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