unless excused therefrom? There is certainly nothing in this section of our constitution prohibiting this and like institutions of learning from adopting reasonable rules requiring their students to attend chapel exercises of a religious nature, and to use all at least moral suasion and all argumentative influences to induce obedience thereto. It is a well-known fact that such institutions do generally adopt similar regulations, and that, with rare exceptions, those attending them yield cheerful obedience thereto, regardless of their personal views on the subject of religion. Many esteem it a privilege to be allowed to attend such exercises. Parents placing their children in colleges and universities often desire that they shall be brought under such influences. Shall a court say such a requirement is, in and of itself, a violation of said constitutional provision, merely because some one or more students attending the university may object to obeying it? More especially should this be done when, as is here shown by the auswer, the rules expressly provide that for good cause students may be excused from obedience to such regulation? We have said in construing this section of the constitution: "Religion and religious worship are not so far placed under the ban of the constitution that they may not be allowed to become the recipient of any incidental benefit whatever from the public bodies or authorities of the state." Welch v. Sherer, 93 Ill. 64. It may be said with greater reason that there is nothing in that instrument so far discountenancing religious worship that colleges and other public institutions of learning may not lawfully adopt all reasonable regulations for the inculcation of moral and religious principles in those attending them. We are clearly of the opinion that the rule is not unlawful. At most it could only be fairly contended that urder said clause of the constitution one so desiring it should for reasonable cause be excused from its ob servance. The whole of said section 3 being considered, it is clear thatitis designed to protect the citizen in the free exercise of his religious opinions, and it should be liberally construed to that end. It is doubtless true that one owing obedience to no one else cannot be required to explain or give an excuse why he does not attend places of religious worship; but a moment's reflection will convince any one that the reasons for so holding cannot be applied to those who voluntarily place themselves under the government of others, or who are by parents and guardians placed in institutions of learning, where a code of rules must be adopted for the general government of all students attending them. In the one case the citizen has the right to use his time as he pleases, and, so long as he does not interfere with the rights of others, he may go where he will, and conduct himself as he sees proper. This he may do independently of all questions of conscience. In the other case, however, the will of the student is necessarily subservient to that of those who are for the time being his masters. By voluntarily entering the university, or being placed there by those having the right

to control him, he necessarily surrenders very many of his individual rights. How his time shall be occupied, what his habits shall be, his general deportment, that he shall not visit certain places, his hours of study and recreation.-in all these matters, and many others, he must yield obedience to those who for the time being are his masters; and yet, were it not for the fact that he is under the government of the university, he could find ample provis. ion in the constitution to protect bim against the enforcement of all rules thus abridging his personal liberty. In this case petitioner could not say the faculty had not the right to require him to spend his time in attending chapel, because they, and not himself, had the right to say how he should spend his time. He admits that the rule requiring him to attend chapel was obligatory upon him, and that he was bound to obey it as to all exercises held there except those of a religious character. What personal right, then, has he been deprived of that the faculty did not have complete legal authority to take away from him, unless it be a right of conscience? But this right he expressly stated to the faculty was not in any way interfered with. The answer expressly avers (and this the demurrer admits) that he arbitrarily and in defiance of the authority of said "board of trustees and faculty refused to attend chapel meetings, and also refused to ask to be excused therefrom, and denied the right or authority of said trustees to ask such attendance. We think the conclusion is irresistible that in his controversy with the faculty he was not attempting to protect himself in the exercise of a constitutional privilege, but was only using that clause of the constitution as a shield for insubordination himself, and endeavoring to furnish others an excuse for disobedience. In placing an estimate upon his conduct towards the authorities of the institution it is to be noted that the rule in question was in force from the time he became a student therein to the time he began to disobey it, and that he not only gave his consent to obey it, but for more than five years, without objection, did obey it. Will it be contended that during that period he was compelled to attend a place of worship against his consent? Was the rule unconstitutional as to him during that time? According to his own showing, when he made up his mind to no longer observe the rule he did not so much as inform the faculty of that determination, much less make a request to be allowed to withdraw his former consent to obey it. As we have seen, he was requested to base his application to be excused from attending chapel exercises on the caly reasonable ground that it could be based. He not only refused to do that, but, according to the allegations of the answer, which he admits, refused to ask to be excused on any ground. His expulsion was the result of his own wrong. Neither the respondents nor the faculty have been guilty of a violation of law, or the doing of any wrong. The authorities cited by counsel for petitioner do not militate against this conclusion. The case of State v. District

The

No. 8, etc., (decided by the supreme court of Wisconsin in 1899, 44 N. W. Rep. 967,) is much relied upon as sustaining petitioner's right to the writ. The case is wholly unlike this. The relators in that case were members of the Roman Catholic Church, and tax-payers in the school-district. Their children attending the district school were also members of that church. complaint was that Bible readings in the school were exclusively from the "King James version," and therefore sectarian instruction, in violation of section 3, art. 10, of the constitution of that state, "which ordains that no sectarian instruction shall be allowed in the district schools of this state." LYON, J., who wrote the principal opinion in the case, confines his discussion and decision to that question only, and, as we read the opinion, that was the only constitutional question raised by it. In the concurring opinions filed by CASSODAY and ORTON, JJ., there is a discussion of the questions as to whether or not such Bible reading as alleged in the petition was a violation of the rights of conscience, and amounted to compelling the relators to aid in the support of a place of worship against their consent, within the prohibition of other sections of that constitution. It is manifest that all that is said in that case could not be approved by this court consistently with our former decisions, as is there expressly recognized; but if it could, still it would by no means follow that a peremptory writ should issue in this case. None of the questions there decided are necessarily involved here. We are clearly of the opinion that there is no sufficient grounds here shown to authorize the ordering of the peremptory writ of mandamus, and it is therefore denied.

SCHOLFIELD, C. J., (concurring specially.) I place my concurrence in the refusal to award a peremptory mandamus in this case on this ground only: A peremptory mandamus will never issue in favor of a private party unless it shall be made to affirmatively appear that he will otherwise be deprived of something of substantial value to him. It will never be granted, however clear may be the abstract right, to settle a question to merely gratify vanity or curiosity; nor will it be granted if the application be made too late to give to the relator that which the relator asks. People v. Curyea, 16 Ill. 547; Christman v. Peek, 90 Ill. 150; Tapp. Mand. 68, *16. There is no allegation in this petition that the relator is desirous of again becoming a pupil in this university, and that, if the writ shall be granted, he will do so; and the facts stated in the petition authorize an inference to the contrary. They are that he entered the university as a pupil in September, 1879, and remained a student therein until the 30th of April, 1885, when he was suspended; and that, if he had remained in the university until June immediately following his suspension, he would have graduated therefrom at that time. He shows that he acquiesced in that suspension by taking no legal steps to be restored until in March, 1890,-a period of almost five years,-when this peti

tion was filed. If now really desirous of re-entering the university to again in good faith resume his studies therein, he should have so stated.

MAGRUDER, J. I concur in the views expressed by Chief Justice SCHOLFIELD.

(137 III. 94)

SHERMAN et al. v. LEMAN.1 (Supreme Court of Illinois. March 30, 1891.)

TRUSTEE-EXPENSES-APPEAL.

Where a trustee appeals from the decree in a suit brought by him to construe the trust, his expenses in prosecuting such appeal are not chargeable to the trust-fund.

Appeal from appellate court, first district.

Petition by Henry W. Leman to be allowed credit in his accounts as trustee of the Sherman-House property for certain expenditures made by him. Defendants appeal.

William C. Wilson and David L. Zook, (W. T. Burgess, of counsel,) for appellants. John S. Miller, for appellee.

SCHOLFIELD, C. J. In general the expenses of administering a trust are a lien in favor of the trustee on the estate in his hands, and he will not be compelled to part with his control of such estate until those expenses are paid. Johnson v. Leman, 131 Ill. 609, 23 N. E. Rep. 435. But can it be said that the expenses and costs of prosecuting the appeals from the circuit court to the appellate court, and from that court to this court, are expenses of administering the estate? Leman's appointment was strictly pursuant to the letter of the will of Sherman, and so the expenses and costs of determining its validity were rendered necessary by the language there employed by him, and they are therefore properly a charge upon the corpus of his estate. Society v. Mead, 131 Ill. 338, 23 N. E. Rep. 603; Barrington v. Tristran, 6 Ves. 349; Rogers v. Ross, 4 Johns. Ch. 608; Bradford v. Boudinot, 3 Wash. C. C. 122; Ammon's Appeal, 31 Pa. St. 311; Sawyer v. Baldwin, 20 Pick. 388. But their validity was determined by the decree of the circuit court, and that court had plenary jurisdiction in the construction of the will and the administering of the estate. Even if Leman had been lawfully appointed trustee, that court had en. tire control and supervision of all his acts, and might at any time, for cause, remove him and appoint another in his stead. Perry, Trusts. § 275. Hill, Trustees, (4th Amer. Ed.) 298, *190, *191. And the orders and decrees of the circuit court in respect of the removal and appointment of a trustee and the administering of the trust are ample protection to all persons acting under them. Perry, Trusts. § 924; Hill, Trustees. (4th Amer. Ed.) 861. 862, *554. Sherman neither personally selected Leman to be trustee nor devolved duties upon his trustee of a personal character; nor was Leman bound in the first instance to act as trustee, nor after acceptance was he compelled to continue as trustee, for the

1Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

will expressly recognizes his right to resign. See Hill, Trustees, (4th Amer. Ed.) 862. In no view, therefore, can it be said that the interests of the estate required the prosecution of those appeals. Leman undoubtedly had the right to appeal, but the exercise of that right involved considerations affecting him personally only, and not such as materially affected the trustestate, and he exercised it as all persons litigating for their own interests,-at his peril. Perry, Trusts, § 928. Our conclusion follows that the court below erred in decreeing that Leman be allowed to take credit for costs paid on appeal from the circuit court to the appellate court and from the appellate court to this court, and for amount paid his attorney for services upon those appeals. The objection that Leman was improperly allowed costs for | witnesses before the master in chancery we do not think tenable. It was within the discretion of the chancellor to allow those costs, in view of the issues pending when the reference was made to the master. The judgment of the appellate court and the decree of the circuit court are reversed, and the cause remanded to the circuit court, with directions to that court to modify its decree, and disallow the amounts paid by Leman for costs and attorney's fees, paid on the appeals from the circuit court to the appellate court and from the appellate court to this court, but in no otherwise to change it.

(136 Ill. 636)

HIGGINS V. MULVEY et al.1 (Supreme Court of Illinois. March 30, 1891.) RES ADJUDICATA-BURNT-RECORD ACT-TITLE BY

LIMITATION.

The Illinois burnt-record act provides that on a petition to establish title, of which the record evidence has been burned, the court may determine in whom the title is vested. Held, that where a decree declared title to be in the petitioner, such decree estopped the defendants therein from claiming title by limitation beginning from a date prior to the decree.

Error to circuit court, Cook county; L. C. COLLINS, Jr., Judge.

Bill by William H. Higgins against Janius Mulvey and others to quiet title. Defendants pleaded a prior adjudication in favor of Mary Hoag, through whom they derived title. Decree for defendants. Complainant brings error.

J. O'B. Scobey and S. K. Dow, for plaintiff in error. Wilson & Moore and W. W. Gurley, for defendants in error.

WILKIN, J. Numerous errors are as. signed upon the record, but they raise only one issue, and that is, did the plea of defendants in error present a good defense to the petition of plaintiff in error? That it was good as against the title claimed by petitioner through mesne conveyances from the patentee is admitted, but it is insisted that it fails to show any defense to his claim of ownership under the statute of limitations. This contention is based on the theory that the decree set up in the plea had no effect whatever upon the char

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

acter of the possession of the petitioner's grantors, Reid and Higgins, and therefore, it being alleged in the bill that they and petitioner bad been in the actual possession of the said property from May, 1864, to the bringing of this action, in 1888, and that such possession was under a connected title deducible of record, petitioner showed a good title under either the first or fourth sections of our statute of limitations, not met by the plea. It is said that decree was simply declaratory of Mary Hoag's title as it had existed since January 31, 1863, and had no effect whatever on Reid and his successors, who were in possession of said premises since June 10, 1862. In other words, it being assumed that Reid and Nathaniel S. Higgins were in the adverse possession of said property at the time the Hoag decree was rendered, the nature of that possession was in no way changed by the decree, unless it had the effect to make such possession more clearly adverse. "The legal rights of the parties," counsel say, "were not changed by that decree, but simply declared." By this we suppose is meant that a proceeding under the burnt-record act can result in nothing more than to establish the evidence of a petitioner's title, leaving him to assert that title in another and different proceeding. Such, clearly, is not the scope of that act. By section 16 thereof, all persons in possession or claiming title to premises, the title to which is sought to be established, are made necessary parties. By section 18, such persons may oppose the petition by demurrer, answer, or cross-petition. By section 20 the court is empowered "to determine and decree in whom the title in any or all the lands described in said petition is vested, whether in the petitioner, or in any other of the parties before the court." Section 21 provides that "the decree shall be forever binding and conclusive, unless appealed from, or a writ of error is prosecuted thereon, "etc. The plea of appellees shows that George W. Reid and Nathaniel S. Higgins, who plaintiff in error in his petition says were in adverse possession of said lots at the time, and have been since May, 1864, under a connected title deducible of record, were made parties defendant to the Hoag petition, and duly served with process, and that Reid actually appeared therein. It also shows that on that petition it was ordered, adjudged. and decreed by the court that the title to said lots was, and thereby declared to be, vested in said Mary Hoag, her heirs and assigns, forever, free from the claim of all the defendants to said Hoag's petition, and that said Hoag was entitled to the possession of said lots. We are unable to perceive why that decree does not settle the title to the lots in question between Mrs. Hoag and Reid and Nathaniel S. Higgins as effectually as though it had been rendered on a bill to quiet title, or remove a cloud from title. If the statute of limitations was available to either of said defendants to that petition, they had a right, under the sections of the "burntrecord act" above quoted, to interpose it, and they were bound so to do; failing in which, and the decree against them be