by statute, and the decree properly found that the deed to Jacob Glos was void. The master reported that appellants offered no evidence to show the amount due by reason of said tax sale and deed issued in pursuance thereof; that they failed to appear promptly when the case was on hearing before him, and failed to appear and support their objections to the master's report; and the master's conclusion was that surviving trustee, could convey none to appellee. Appellee was not required to prove title in his grantor. In cases of this character, to sustain his allegation of title, it is only necessary for complainant to prove that at the time of filing the bill he was in possession of the property, claiming in good faith to be the owner thereof under a deed purporting to convey the same to him. This makes a prima facie case of title, unless overcome by proof to the contrary. Here the answers of appellants were not filed appellants offered no evidence, and there is no proof in the record contradicting appellee's prima facie case. Glos v. Kenealy, 220 Ill. 540, 77 N. E. 146; Towle v. Quante, 246 Ill. 568, 92 N. E. 967; Glos v. Ault, 221 Ill. 562, 77 N. E. 939. This case is unlike Glos v. Greiner, 226 Ill. 546, 80 N. E. 1055, relied upon by the appellants. In that case the proof showed the complainant's grantors had conveyed their title to another grantee before making the conveyance through which the complainant claimed title. Here, if, as insisted by appellants, the trust deed to Lyman and Jackson did not include the premises in controversy, it does not appear that Lyman had no title when he made the deed to complainant. The introduction of the certified copies of quit-claim deeds to appellee was unnecessary, and did not add to appellee's proof. Under this view of the case, it will be unnecessary to pass upon the question raised by appellants whether they were properly admitted in evidence. The proof sustains the finding of the decree that appellee was in possession of the premises, claiming to be the owner thereof, when he filed the bill, and had been continuously from the time he acquired the conveyance from Lyman, in 1903, and that no notice was given him of the expiration of the time for redemption. in good faith, but for the purpose of delay simply, and he recommended that one-half of the costs be taxed against appellants. The decree ordered that appellants pay onehalf the costs, said one-half being $26.40. This, we think, was erroneous. We find nothing in the record that in our opinion authorized the taxing of these costs to appellants. If appellee had wished to relieve himself of costs, he should have made a tender before filing his bill and kept the tender good. Gage v. Goudy, 141 Ill. 215, 30 N. E. 320. The decree will be modified, by reversing the order taxing costs below to appellants; but in all other respects the decree is affirmed. The costs of this appeal will be taxed one-half to appellants and one-half to appellee. Decree modified and affirmed. (251 Ill. 341.) VILLAGE OF PRAIRIE DU ROCHER v. (Supreme Court of Illinois. Oct. 25, 1911.) Under section 12 of the eminent domain act (Hurd's Rev. St. 1909, c. 47), an appeal in condemnation proceedings lies to the Supreme Court. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 659; Dec. Dig. § 252.*] 2. EMINENT DOMAIN ( 244*)-PROCEEDINGSPOSSESSION OF PROPERTY PENDING APPEAL. [2] Appellants contend that the court erred in decreeing part of the costs against them. No tender of the amount due the holder of the tax deed was made before the bill was filed. In his bill complainant alleges he is ready and willing and offers to pay to defendants, or the party interested, the taxes, penalties, and costs paid, as equity may require. Under these conditions it is claimed the costs should have [Ed. Note.-For other cases, see Eminent Do all been decreed against appellee. Appellants had no interest in the premises, except by virtue of the deed of the county clerk to Jacob Glos. He purchased the premises on October 20, 1905, at a sale for the nonpayment of a special assessment, and paid therefor $37.27. There was no redemption from this sale, and a deed was issued to Jacob Glos by the county clerk September 24, 1908. No notice was given to appellee of the expiration of the time of redemption from this sale, as is required The petitioner in a condemnation proceeding, if an appeal is taken by either party, may enter upon the use of the property, upon enter ing into the bond required by section 13 of the eminent domain act (Hurd's Rev. St. 1909, c. 47), without paying or depositing the compensation ascertained. main, Cent. Dig. § 632; Dec. Dig. § 244.*] [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 203; Dec. Dig. § 77.*] Appeal from Randolph County Court; William W. Schuwerk, Judge. Proceedings by the Village of Prairie du Rocher against the Schoening-Koenigsmark land. tion for the payment of costs, etc., incurred by defendant in defending against the petition for condemnation, defendant appeals. Affirmed. Milling Company for the condemnation of | judgment, but under the statutory provision, From a judgment dismissing a peti- which gave to it only the temporary use of the premises pending the litigation. The law must be regarded as settled by the previous decisions of this court that the petitioner in a condemnation proceeding, if an appeal is taken by either party, may enter upon the bond required by section 13 of the eminent douse of the property, upon entering into the H. Wise, Keefe & Wheeler, for appellant. Clay Horner and Sprigg & Gilster, for ap pellee. main act, without paying or depositing the Fé & California Railway Co. v. Phelps, 125 595, 48 N. E. 1058. [3] The constitutionality of this section is vigorously assailed by counsel for the appellant; but we regard it as established by the decisions cited, and not now open to question. The appellee was under no obligation to pay the compensation awarded until the determination of the appeal, and the demurrer to its answer was therefore properly overruled. Judgment affirmed. DUNN, J. The village of Prairie du Roch-compensation ascertained. Chicago, Santa er, the appellee, instituted proceedings for the condemnation of certain premises of the appellant for a local improvement, and on June 10, 1910, a verdict was rendered fixing the compensation to be paid the appellant at $1,350. A judgment was entered for the payment of the compensation so awarded within 60 days, and for the entry of the petitioner, upon such payment, on the premises for the purpose of the contemplated improvement. The defendant in that proceeding perfected an appeal to this court on July 12, 1910, by filing a bond, and on December 21, 1910, the judgment was affirmed, 93 N. E. 425. After this appeal was taken, the village, desiring to take possession of the premises, filed its bond in the sum of $5,000 in accordance with section 13 of the eminent domain act, and thereupon entered upon and thereafter remained in the possession of the premises for the purposes of the improvement for which they were taken. It did not, however, at any time pay or tender the compensation awarded. Immediately upon the affirmance of the judgment, the appellant presented to the county court its petition praying for an order against the village for the payment of the costs, expenses, and attorney's fees incurred by the appellant in its defense against the petition, on account of the petitioner's failure to pay the compensation awarded within the time fixed by the court. The village answered, relying upon the appeal and its bond given pursuant to the statute, and bringing into court the amount of the compensation awarded. The county court overruled a demurrer to this answer and dismissed the petition. [1] Appellee first insists that the appeal should have been taken to the Appellate Court. Section 12 of the eminent domain act provides that in all cases an appeal shall lie to the Supreme Court, and the appeal was therefore properly brought here. [2] The effect of the appeal by the landowner was, during its pendency, to stay the execution of the judgment and the running of the time limited for the payment of the compensation. Whether the village should give the bond required by section 13 of the eminent domain act was optional with it. Its doing so had no effect upon the appeal or the execution of the judgment. Its entry, under the authority given upon the filing of the bond, was not in execution of the (251 III. 298.) CITY OF CHICAGO v. MARSH et al. (Supreme Court of Illinois. Oct. 25, 1911.) 1. MUNICIPAL CORPORATIONS ($ 499*)-SPE CIAL ASSESSMENTS. In proceedings to confirm a special assessment, the filing of objections to the merits amounted to a general appearance, and waived an insufficient publication notice. Corporations, Cent. Dig. § 1171; Dec. Dig. § [Ed. Note.-For other cases, see Municipal 499.*] 2. MUNICIPAL CORPORATIONS (§ 509*) — SPE CIAL ASSESSMENTS APPEAL. On appeal from a confirmation of a special assessment, the city cannot be awarded damages, under Hurd's Rev. St. 1909, c. 33, § 23, on the ground that the appeal was for delay. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 509.*] 3. MUNICIPAL CORPORATIONS (§ 437*) - SPE CIAL ASSESSMENTS. A special assessment cannot exceed the benefit to the property. Corporations, Cent. Dig. 8 1051; Dec. Dig. § [Ed. Note.-For other cases, see Municipal 437.*] 4. MUNICIPAL CORPORATIONS (§ 586*) - SPECIAL ASSESSMENTS. An assessment cannot be made a personal liability against the owner. [Ed. Note.-For other cases, see Municipal Dig. § 586.*1 Corporations, Cent. Dig. §§ 1304-1306; Dec. Appeal from Superior Court, Cook County; Theodore Brentano, Judge. Proceedings by the City of Chicago against Marshall S. Marsh and others to confirm a special assessment. From a judgment of confirmation, defendants appeal. Affirmed. Montgomery, Hart & Smith, for appel- | 103 Am. St. Rep. 191. That is a continuing lants. Philip J. McKenna and Edgar R. Hart (William H. Sexton, Corp. Counsel, of counsel), for appellee. CARTER, J. This is an appeal from a judgment of confirmation in a special assessment proceeding for the improvement of a certain portion of Blanche street, in the city of Chicago, by curbing, grading, and paving with asphalt, and adjusting the necessary sewers, catch-basins, and manholes. Appellants filed 72 objections, most of them going to the merits of the proceedings. Upon the trial only 4 objections were urged, 2 going to the merits, and the other 2 to the jurisdiction of the court over the persons of appellants, on the ground that the publication notice was insufficient, not being published for five successive days. All legal objections were overruled, and appellants waived further controversy on the record. A judgment of confirmation was thereupon entered, and this appeal followed. [1] The question of notice is the only one raised by appellants. Conceding that the publication notice was insufficient to give the court jurisdiction over the persons of appellants, the only way that question could be raised was under a special appearance. The faulty notice was waived by filing obpections to the merits. Such objections amounted to a general appearance and cured all defects in the notice. Nicholes v. People, 165 Ill. 502, 46 N. E. 237; Porter v. City of Chicago, 176 Ill. 605, 52 N. E. 318; Dickey & Baker v. People, 213 Ill. 51, 72 N. E. 791; Marshall v. People, 219 Ill. 99, 76 N. E 70; Waite v. People, 228 Ill. 173, 81 N. E. 837; People v. Smythe, 232 III. 242, 83 N. E. 821; People v. Harper, 244 Ill. 121, 91 N. E. 90. The cases cited by appellants on this question are only in point under spe cial appearance questioning the jurisdiction of the court. [2-4] Counsel for the city insist that this appeal was perfected solely for delay, and that therefore the city should be awarded, as a part of the judgment, under section 23 of chapter 33, on costs (Hurd's Stat. 1909, p. 618), damages not exceeding 10 per cent. on the amount of the assessment against appellants' lands. We do not think this statute applies to special assessment proceedings. If such damages were charged against the property, there is no provision, under the law, as to whom or how such money should be paid out. The fund raised for a local improvement by special assessment must be kept separate for each improvement. In levying special assessments, the assessment on any property must not exceed the special benefit to that property. Crawford v. People, 82 Ill. 557; Middaugh v. City of Chicago, 187 Ill. 230, 58 N. E. 459; Gage v. Springer, 211 Ill. 200, 71 N. E. 860, test through all the proceedings. City of Nokomis v. Zepp, 246 Ill. 159, 92 N. E. 809. The assessment is against the property, and not against the owners of the property. It cannot be made a personal liability against the owners. Spring Creek Drainage District v. Elgin, Joliet & Eastern Railway Co., 249 Ill. 260, 94 N. E. 529; Craw v. Village of Tolono, 96 Ill. 255, 36 Am. Rep. 143; Huston v. Tribbetts, 171 Ill. 547, 49 N. E. 711, 63 Am. St. Rep. 275. The only way such damages could be raised would be by an assessment against the property. Such an arbitrary assessment, regardless of benefits, would be void. The judgment of the superior court will be affirmed. Judgment affirmed. (251 Ill. 505.) CASWELL v. GLOS et al. (Supreme Court of Illinois. Oct. 25, 1911.) EVIDENCE ($ 373*) - DOCUMENTS - FOUNDA TION. tion for the admission of certain abstracts of Where witnesses, offered to lay a foundatitle in a proceeding to register title, had personal knowledge concerning the making of the abstracts, and testified that they were employed in the offices where the abstracts were made, and knew of their own knowledge that they were made in the regular course of business, and that the items were taken from the original records, the evidence was sufficient to entitle the abstracts to admission. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 1581-1593; Dec. Dig. § 373.*] Appeal from Circuit Court, Cook County; Adelor J. Petit, Judge. Land registration proceeding by Charles L. Caswell, Jr., to which Jacob Glos and others filed objections. Decree for complainant, and defendants appeal. Affirmed. John R. O'Connor, for appellants. Daniel M. Healy, for appellee. VICKERS, J. This appeal is prosecuted from a decree of the circuit court of Cook county granting registration of the title to certain real estate described in the application. The applicant's case rests on two original abstracts of title, one made by the Chicago Title & Trust Company, and the other by the recorder of Cook county. These abstracts were received in evidence over appellants' objections, and the ruling of the court in admitting the abstracts presents the only question discussed in the briefs. The principal objection to the abstracts is that the preliminary proof was insufficient, under the provisions of the amendment to section 18 of the Torrens act, adopted in 1907 (Hurd's Stat. 1909, p. 533), to warrant the court in receiving said abstracts as prima facie evidence of title in the applicant. To lay the foundation for the introduction be an abstract of title to the property in question from November 13, 1908, to October 4, 1910, was an abstract of title to the premises mentioned, made by Abel Davis, recorder, in the regular course of business, from the records in Cook county; that the items on said abstract were taken from the original records, and that he was satisfied, from the course of business and information that he had, that the original records were examined at the time the abstract was made. Appellants contend that the evidence of these witnesses was insufficient to lay the foundation for the introduction of the ab of the abstract made by the Chicago Title & ploy of Davis, the recorder of Cook county, Trust Company, John L. Day was introduced the last 5 years of which he had been the as a witness for appellee, and testified that reviser of abstracts in the recorder's office; he was an abstracter of titles, and had been that the duties of his position were to see engaged in the business of abstract making that abstracts were correctly made, and at for 40 years last past, in Chicago; that he times to do a part of the work of making was at present employed by the Chicago Ti-abstracts, in person; that it is his duty to tle & Trust Company as assistant secretary; see that abstracts that go out of the office that the Chicago Title & Trust Company are correctly made from the records in existwas engaged in the business of making ab-ence in the various offices. He testified that tracts, and was a regular abstract maker; the abstract offered in evidence, purporting to that his duties were in the abstract department of that company; that the abstract offered in evidence, purporting to be an abstract of title made by the Chicago Title & Trust Company, was a regular abstract of title from the government of the United States to and including November, 13,1908, to the real estate described in the application in this proceeding; that the abstract was made by the Chicago Title & Trust Company from the indexes of the records of Cook county preserved through the great fire, and which formerly belonged to regular abstracters, and which were now held by the Chicago Title & Trust Company as the successor of the pre-stracts, and reliance is placed on the cases vious owners: that the abstract as made on or about November 13, 1908; that it was made in the ordinary course of business, from the indexes and records which had been compiled from the original instruments as filed for record. Mr. Day testified that the abstract was made by employés of the Chicago Title & Trust Company who were competent to do that work, and after it was completed it was submitted to witness, and he revised the abstract and satisfied himself that it was in every particular correct, and thereupon attached the signature of the Chicago Title & Trust Company thereto, as assistant secretary. Witness testified that a letterpress copy of the abstract was made and retained in the office of the abstracters, and that he had compared the abstract of fered in evidence with the letterpress copy, and found that it corresponded in every respect therewith. From such comparison the witness was able to state that the abstract offered in evidence was in the same condition as when it left the hands of the Chicago Title & Trust Company. The other abstract offered by appellee, and to which appellants interposed objections, related to the same property, and covered the time from November 13, 1908, to October 4, 1910. As a foundation for the introduction of this abstract, P. O. Perkins was introduced as a witness, and testified that he was employed by Abel Davis, recorder of deeds for Cook county; that witness had been in the abstract business 15 years in Chicago, employed by various abstract concerns; that he had been for more than 8 years in the em of Waugh v. Glos, 246 Ill. 604, 92 N. E. 974, 138 Am. St. Rep. 259, Culver v. Waters, 248 Ill. 163, 93 N. E. 747, and Jackson v. Glos, 249 Ill. 388, 94 N. E. 502. In the Waugh Case there was no evidence as to when, where, or under what circumstances the abstract was made, and it clearly appeared that the witness had no knowledge whatever as to the making of the abstract, except what he inferred from an examination of the abstract itself, which he had never seen until it was offered in evidence. In the Waters Case the witness merely testified that the abstract had been ordered in the regular course of business, and in the Jackson Case the witness knew nothing whatever of the abstract, except what he learned from an inspection of the abstract itself. He testified that it appeared to have been made in the regular course of business; but manifestly he knew no more about that than any other person. These cases are all entirely different from the case at bar. Here the witnesses had personal knowledge about the making of the abstracts. They were employed in the offices of the abstracters when the abstracts were made, and knew of their own knowledge that the abstracts were made in the regular course of business. This presents an entirely different situation from evidence based upon an inspection of an abstract by the witnesses in court. In our opinion the evidence was sufficient to admit the abstracts in evidence. Hammond v. Glos, 250 Ill. 32, 95 N. E. 39. The decree of the circuit court of Cook county will be affirmed. Decree affirmed. 1. WILLS (§ 225*)-ATTACKING VALIDITYRIGHT TO ACTION. Where a probate of a will is denied because of the existence of a subsequent will, the judg; ment would not be conclusive if the subsequent will should be set aside, so that the proponent of the first will, who is a beneficiary thereunder, may sue in equity to test the validity of the later will without withdrawing his petition, or having it continued, or appealing from the judgment of the probate court. [Ed. Note.-For other cases, see Wills, Cent. Dig. 547; Dec. Dig. § 225.*] 2. WITNESSES (§ 142*)-COMPETENCY-INTEREST -ATTACKING WILL. While stockholders of a corporation and members of beneficiary societies are disqualified as witnesses in suits involving the pecuniary status of the company or society, the connection of the pastor, trustees, and members with a church is voluntary, and, as they have no pecuniary interest in the church property, they are competent witnesses, where the church is defendant in a suit to contest a will which names such church as beneficiary. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 580, 581; Dec. Dig. § 142.*] 3. EVIDENCE (§ 472*)-CONCLUSIONS ULTIMATE FACTS-TESTAMENTARY CAPACITY. In a contest of the validity of a will, testimony of subscribing witnesses that they knew of no fraud, duress, or undue influence used to induce testatrix to sign the will are conclusions as to an ultimate fact, and are improperly permitted to be given where not a necessary conclusion from previous testimony. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2186-2195; Dec. Dig. § 472.*] 4. WILLS (§ 55*)—ATTACKING VALIDITY-TESTAMENTARY CAPACITY. In an action to contest a will, evidence held to show that testatrix was capable of transacting business and of disposing of her property by will. 7. WILLS ($ 52*)-TESTAMENTARY CAPACITY— PRESUMPTIONS. In an action to contest a will, the complainant is not bound to remove all doubt of the sanity of the testatrix, but, to justify a finding of insanity, the evidence must preponderate, and, where it merely raises a doubt, the presumption in favor of sanity will prevail. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 101-110; Dec. Dig. § 52.*] 8. TRIAL (§ 253*) — INSTRUCTIONS — IGNORING EVIDENCE. -- Where, in an instruction given in a will contest, part of the hypothesis of fact is that no fraud, undue influence, or improper conduct, as defined in the instructions, was used to cause the execution of the will, the instruction is not objectionable as limiting the jury to facts and circumstances mentioned in the instructions, to the exclusion of others proved, where the instructions referred to did not state facts and circumstances, but merely gave to the jury the general rule as to what constitutes fraud, undue influence, or improper conduct. Dig. §§ 613-623; Dec. Dig. § 253.*] [Ed. Note.-For other cases, see Trial, Cent. Appeal from Superior Court, Cook County; Arthur H. Chetlain, Judge. Bill to contest a will by Harry C. Adams against the First Methodist Episcopal Church of Irving Park and others. From a decree for defendants, plaintiff appeals. Affirmed. Benson Landon, for appellant. Fred H. Atwood and Frank B. Pease, for appellees. CARTWRIGHT, J. Annie S. Adams, of Irving Park, in Cook county, died on December 16, 1908, leaving both real estate and personal property. She left no child nor descendant, and her heirs at law were a brother and sister living in Massachusetts. Two wills executed by her were presented to the probate court of Cook county. One was dated September 9, 1904, by which she gave all her property, except the family portraits, to her stepson, the appellant, Harry C. Adams. The other will was dated February 29, 1908, and, [Ed. Note.-For other cases, see Wills, Cent. after disposing of the family portraits, gave Dig. §§ 137-161; Dec. Dig. § 55.*] $1,000 to Mary A. Dicey if she should be liv 5. WILLS (§ 166*)-ATTACKING VALIDITY-ing in the house of the testatrix at the death EVIDENCE-UNDUE INFLUENCE. In an action to contest a will giving property to a church, evidence held to show that the will was not obtained by undue influence or improper methods of the pastor. of the testatrix, and gave the remainder of the estate to the First M. E. Church of Irving Park, stating that the testatrix was a char ter member of the church and had been a [Ed. Note.-For other cases, see Wills, Cent. member for nearly 20 years. On January 19, Dig. 88 421-437; Dec. Dig. § 166.*] 1909, the court refused probate of the first will, and admitted to probate the one of lat 6. WILLS (§ 157*) — ATTACKING VALIDITY CHURCH AS BENEFICIARY-RELATION OF PAS-er date. The complainant filed his bill in TOR TO TESTATRIX. the superior court of Cook county setting While there is a confidential relation be- forth facts which would show the first will tween a priest and parishioner that places upon the priest the burden of showing the absence to be valid when made, and charging that of undue influence, where a gift is made by the testatrix at the time of the execution of the parishioner, the pastor has no financial in- the later will, which had been admitted to terest in the church or its property, and where a will leaving property to his church confers probate, was not of sound mind and memory, no benefit upon him, and the evidence shows and that the instrument was the product of conclusively the absence of undue influence or undue influence exercised by members of the improper methods in securing the gift, the re-church. The bill was answered and replicalationship is of no importance in determining tions were filed and an issue was formed for the validity of the will. [Ed. Note.-For other cases, see Wills, Cent. trial by jury. The jury returned a verdict Dig. $ 383, 384; Dec. Dig. § 157.*] finding the paper dated February 29, 1908, |