author: Mr. Justice Shops

text:
    H. Bailey et al. v. The Valley National Bank.

      Filed at Ottawa January 25, 1889.

      1. Attachment—in aid—personal service in the suit, as obviating necessity of serving the writ of attachment. In case of an attachment brought in aid of an action of assumpsit, where there has been service of the summons in the original suit, service of the writ of attachment upon the defendant is not necessary in order to give the court jurisdiction, either of the person of the defendant, or of his estate seized under the writ. Being in court, the defendant is required to take notice of the subsequent steps in the suit.
    2. Same—amendment of affidavit and bond. A motion to strike from the files an affidavit in attachment and the bond, and to quash the writ, will be overruled, if the plaintiff, by leave of court, files an amended affidavit, setting forth the nature and amount of the indebtedness, and sufficient grounds for the writ, and a sufficient amended bond. Such amendments are fully authorized by section 28 of the Attachment act.
    3. Pleading—pbactice—notice of defense, instead of a special plea— under what state of pleading—sufficiency of the notice, how questioned. Under section 28 of the Practice act, matters of fact constituting a legal defense to the action, instead of being set forth, as at common law, by special plea, may be stated in a notice under the general issue, and evidence of such facts given on the trial, with like effect as if the same had been specially pleaded. No reply, either of admission or denial of the plaintiff, is required or permitted. No issue of law or fact can be ' raised thereon.
    4. If the facts stated in the notice are immaterial, the plaintiff can not demur, and thus raise and determine their sufficiency as a defense. All such notice can do is to relieve the defendant of the necessity of pleading specially any facts not provable under the general issue, and to introduce evidence in their support, if material and explicitly stated, as if the same had been specially pleaded. The court, on the trial, must determine the materiality of the facts stated.
    5. In no sense does the notice provided for, take the place of the general issue, or the plea of non est factum, or the like plea, which goes simply to deny the plaintiff’s cause of action, and it is therefore required by the statute to be filed under the general issue.
    6. Before the filing of any declaration, the defendant filed a notice of set-off, which, on motion of the plaintiff, was stricken from the files:
      Held, that the notice was properly stricken from the flies, because when filed there was nothing to which it could apply, and also because there was no plea filed under which a notice of set-off could be available.
    7. Same—plea not verified. Where the plaintiff’s declaration, with the proper affidavit of claim, is filed in apt time, an unverified plea, or plea and notice, appearing on the files, will, on his motion, be stricken therefrom.
    8. Pleading and evidence—execution of instrument sued on, how put in issue. The plea required by section 33 of the Practice act to be verified to put in issue the execution of any written instrument sued on, is any plea which, at the common law, would be a denial of the plaintiff’s cause of action. The execution may be put in issue by the plea of non est factum, or the general issue, if verified. The execution of the instrument can not be put in issue by the plea of the general issue unverified, with notice of that defense, accompanied with an affidavit of the defendant. It is the plea that is required to be verified.
    9. Where the defendant fails to put in issue the execution of notes sued on, by proper plea verified, he will not be entitled to introduce any evidence tending to show that the notes never were delivered, as their delivery is an essential part of the execution.
    10. Same—question of corporate existence—how put in issue—effect of the general issue. In an action by a private corporation, the plea of the general issue admits the corporate existence of the plaintiff. The proper mode of pleading to put the plaintiff’s corporate existence in issiie, is by the plea of nul tiel corporation. It can not be put in issue by the general issue, and notice denying the plaintiff is a corporation.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.
    Mr. Harrison Boring, and Mr. Stephen B. Moore, for the appellants:
    The statute allows the defendant in actions ex conin'aetu to have his cross-action by notice of set-off, and in effect the notice is a declaration for the defendant. Bennett v. Pulliam, 3 Bradw. 185; Breen v. Sullivan, 5 id. 449; Pettis v. West-lake, 3 Scam. 535; Railroad Co. v. Keep, 22 Ill. 9; Insurance Co. v. Menz, 63 id. 116.
    It is contended, that because plaintiff, after the set-off was filed, filed an affidavit under section 37, this gave it the right to dismiss the cross-action. No such construction can be given to this section, and it was never designed to have any such operation, and could have no such effect in this case. The defendant had the right, absolutely, by statute, to his cross-action.
    The bond should have been stricken from the files, on the ground it was altered by filling in its date. Newlan v. Harrington, 24 Ill. 206; 1 Parsons on Contracts, 223; Master v. Miller, 4 T. R. 329; People v. Organ, 27 Ill. 27; Montag v. Linn, 23 id. 550; White v. Jones, 38 id. 164.
    The writ should have been quashed, for the reason the affidavit failed to show any ground of attachment.
    When two modes of defense are given, the party can not resort to both modes at the same time. He must either plead and give notice, or he must present his defense alone,- by pleas. Gilmore v. Newland, 26 Ill. 200.
    Defendant is not required to plead in order to make the defense that he never executed the note sued on. He has the right to present that defense under the notice filed under the general issue, by making affidavit thereto. Hunt v. Wier, 29 Ill. 83; Burgwin v. Babcock, 11 id. 30.
    A motion to exclude all a party’s evidence is, in effect, a demurrer to the evidence, and must be tested by the same rules. Phillips v. Dickerson, 85 Ill. 11.
    The court has no power to exclude the evidence in any case where its weight has to be considered. Holmes v. Railroad Co. 94 Ill. 444; Phillips v. Dickerson, 85 id. 11; Pennsylvania Co. v. Conlan, 101 id. 93; Crowley v. Crowley, 80 id. 469; Merricks v. Davis, 65 id. 319; Abbott’s Trial Brief, 109.
    The motion camnot be heard before the defendant has closed his case. Kingsford v. Hood, 105 Mass. 495; Nixon v. Brown, 4 Blackf. 157; Walker v. Supple, 54 Ga. 178; Miller v. House, 63 Iowa, 82; Proprietary v. Ralston, 1 Dall. 18; Lamar v. Meeker, 25 N. Y. 361; Brown v. Inswrance Co. 59 N. H. 298.

      It was error for the court to refuse defendants’ instructions, which told the jury that one of the issues of the case is as to whether the plaintiff is a corporation, and the burden of proof in on the plaintiff to prove it is a corporation, and if it has failed to make the proof, the verdict must be for defendants.
    Mr. Daniel H. Paddock, for the appellee:
    There was no error in striking the notice of set-off from the files. The paper was a notice, simply. It was not a plea and notice, or a special plea. When this was filed, there was no declaration to which appellee could answer, and when the declaration was filed, with affidavit of merits, the notice of set-off was unsupported by anything. A verified declaration requires a verified defense.
    There was no error in refusing to quash the affidavit, bond and attachment writ, a motion to dismiss which, assuming the office of a plea in abatement, will not be entertained, unless the objection appears upon the face of the papers. Holloway v. Freeman, 22 Ill. 197.
    Under our practice, if any one desires to deny an assignment as having been made as alleged, he must traverse by plea verified. McIntire v. Preston, 5 Gilm. 48; Walker v. Krebaum, 67 Ill. 252; Templeton v. Hayward, 65 id. 178; Shipley v. Carroll, 45 id. 285.
    The execution of the instrument sued on can he put in issue only by plea verified, and can not by notice under the general issue, though the notice is accompanied by an affidavit denying the execution. Stevenson v. Farnsworth, 2 Gilm. 715; Davis v. Scarritt, 17 Ill. 202; King v. Haines, 23 id. 341.
    No issue of law or fact can be formed on a notice filed with the general issue. Burgwin v. Babcock, 11 Ill. 28; Curtis v. Gill, 54 Conn. 49.
   Mr. Justice Shops

delivered the opinion of the Court:

In this case, before declaration was filed, or required to be, appellants filed a notice of set-off. When the declaration was filed, it was supported by an affidavit of claim. On motion, the notice of set-off was stricken from the files.. This action of the court was not error. When the notice was filed, there was nothing on file to which it could apply. Besides, under the 29th section of the Practice act, in actions ex contractu, the defendant having claims against the plaintiff, “may plead the same, or give notice thereof under the general issue, or under the plea of paymentand this -is the statute under wrhich a notice of set-off, alone, could be made available. There was here no plea filed under which such a notice could be given, and,' standing alone, it was properly stricken from the files. But had the notice been accompanied by the pleas named in the statute, or either of them, when the plaintiff’s declaration and affidavit-of claim were filed, in apt time, an unverified 'plea, or plea and notice, appearing on the file, would be stricken therefrom. Spradling v. Russell, 100 Ill. 522.

It is next insisted, that the court erred in not sustaining the motion of appellant Bailey to strike from the files the affidavit for attachment and the attachment bond, and to quash the writ. The motion was properly overruled. Under leave of the court, the plaintiff filed an amended affidavit, setting forth, with sufficient clearness, the nature and amount of the indebtedness claimed to be due, and two sufficient grounds of attachment, and an amended bond. No objection is pointed out to the amended bond and affidavit, and none is apparent. The amendments were fully authorized by the 28th section of the Attachment act.

It is next objected, that there was no service of the writ of attachment upon the appellant Bailey, and that the motion should therefore have been sustained, etc. The suit was brought in assumpsit, and the attachment proceeding was in aid thereof, under the 31st section of the act. Appellant was served in the common law suit in proper time, and the attachment writ was duly returned, with a valid levy upon the property of the defendant endorsed thereon. The jurisdiction of the court over the person of appellant was complete by the service of summons in apt time, in the common law suit, of which the attachment was in aid, and he was required to take notice- of the subsequent steps taken therein. In case there is service of summons in the original suit, no service of the writ of attachment upon the defendant is necessary to give the court jurisdiction, either of the person of the defendant, or of his estate seized under the writ.

It is contended that the court erred in permitting the notes sued on to go to the jury without proof of their execution, and also in refusing to instruct the jury that appellee could not recover without proof of its legal incorporation. Appellants filed an unverified plea of non-assumpsit, and therewith a notice that‘on the trial they would deny the execution of the notes sued on, and averring that such notes were not made and executed by them, or either of them, and also filed an affidavit of one of appellants, setting forth the same fact. There was no attempt, beyond this, to verify the plea, but it is insisted that the affidavit was a verification of the notice, and of the matters therein set forth.

The 33d section of the Practice act provides that “no person shall be permitted to deny, on trial, the execution or assignment of any instrument in writing, whether sealed or not, upon which any action may be brought, or which shall be pleaded or set up by W'ay of defense or set-off, or is admissible under the pleading when a copy is filed, unless the person so denying the same, if defendant, verify his plea by affidavit,” etc. The 28th section of the same act provides that “the defendant may plead as many matters of fact in several pleas as may be deemed necessary for his defense, or may plead the general issue, and give notice in writing, under the same, of the special matters intended to be relied on for a defense on the trial, under which notice, if adjudged by the court to be sufficiently clear- and explicit, the defendant - shall be permitted to give evidence of the facts therein stated, as if the same had been specially pleaded and issue taken thereon.”

It is insisted by appellant, that the verification of the notice wag a compliance with section 33 of the act, and east the burden of proving the execution of the notes upon the plaintiff, before they were admissible in evidence.

The two sections of the statute under consideration were embodied in the same section of the Practice act of 1827, and constituted section 12 of that act, (Laws of 1827, page 314, sec. 12,) and thus continued until divided in the present revision of 1872. The purpose of the provision, now the 28th section, was to relieve the defendant of pleading specially new or affirmative matters relied upon as a defense. He is to be permitted to give evidence of the facts therein stated, as if the same had been specially pleaded and issue taken thereon. The system of common law pleading is repeatedly recognized by the Practice act, and was the recognized mode of procedure when these provisions were first enacted, and has been so ever since. A plea then had, as it now has, a recognized legal meaning, and well defined characteristics and requisites, and the several species of pleas performed a well understood legal office. A special plea, introducing new matter, did not deny the plaintiff’s cause of action, but set up the defense by way of confession and avoidance. It is manifest, that by the provisions of section 28, matters of fact constituting a legal defense to the action, instead of being set forth, as at common law, by special plea, may be stated in a notice under the general issue, and evidence of such facts given on the trial, with like effect as if the same had been specially pleaded. But although the notice given under the general issue has this effect, no reply, either of admission or denial, of the plaintiff, is required, or permissible thereto, and no issue, either of law or of fact, can be raised thereon. (See Burgwin v. Babcock, 11 Ill. 28; Hunt v. Weir, 29 id. 83.) If the facts stated in the notice are immaterial, and which, if true, would constitute no legal defense, the plaintiff can not demur, and thus raise and have determined the question of their sufficiency. All that such notice can he held to do, is to relieve the defendant of the necessity of pleading specially any facts, not provable under the general issue, which he may rely upon at the trial, and to introduce evidence in their support, if material and explicitly stated, as if the same had been specially pleaded. The court must determine the materiality of the facts stated, and on the trial may exclude from the jury, or admit, evidence tending to support the defense. In no sense does the notice provided for take the place of the general issue, or the plea of non est factum, or the like plea, which goes simply to deny the plaintiff’s cause of action, and it is therefore required by the statute to be filed with and under the general issue.

It is clear to us that the plea referred to in the 33d section, and which the pleader must yerify by his affidavit before the plaintiff is put to proof, in the first instance, of the execution of the instrument declared on, and before the defendant can be heard to deny the execution of the instrument, was some one of the pleas which at common law would be a denial of the plaintiff’s right of recovery thereon. That the plea properly performing that office was the common law plea of non est factum, will not be questioned; nor is the holding of this-court, that the general issue, supported by affidavit, is, in effect, a plea of non est factum, at all inconsistent with this view. (Hinton v. Husbands, 3 Scam. 187; Templeton v. Hayward, 65 Ill. 178.) At common law, in suits upon instruments under seal, the plaintiff was not required, in the first instance, to prove execution, because the seal imported both consideration and verity. To put the plaintiff upon such proof, the defendant was required to put in issue the signing, sealing and delivering of the instrument, by his plea of non est factum. But the rule was otherwise when the suit was upon simple contract in writing, for in such case the plea of the general issue put in issue every material averment of the declaration, and was necessarily a denial of the execution of the contract sued upon, proof whereof was thereby cast on the plaintiff. It follows, logically, that any plea which would he a denial of the plaintiff’s cause of action, properly verified, would be a compliance with the provisions of the statute.

We are of opinion that the notice of appellants, though verified, was not a plea denying the execution of the notes sued on, and that its effect was not to east on the plaintiff the burden of proving their execution, and their admission without proof of execution was not error.

What has been said disposes of the alleged error in the exclusion of evidence offered by appellants under the notice, the whole tenor and effect of which was to show that the notes had not in fact been executed. The delivery of the notes was an essential part of their execution. (Hunt v. Weir, supra.) This evidence, as we have seen, the defendants could not be permitted to offer, save under a sworn plea denying the execution of the instruments. Gaddy v. McCleave, 59 Ill. 182.

As to the still further contention of appellants, that as the notice denied that appellee was a corporation, proof of its corporate existence was thereby cast upon appellee, it is to he observed, that under the statute quoted there can be no question of the defendant’s right to plead non-assumpsit and nul tiel corporation, (Hoereth v. Franklin Mill Co. 30 Ill. 151,) and that when the latter plea is interposed, the burden of proving corporate existence is cast on the plaintiff corporation. (Spangler v. Indiana and Illinois Central Railway Co. 21 Ill. 276; Town of Lewiston v. Proctor, 27 id. 414; Stone v. Great Western Oil Co. 41 id. 85; Ramsey v. Peoria Marine and Fire Ins. Co. 55 id. 311.) Such plea, like that of non est factum, is a simple negation,—a denial of the capacity in which the plaintiff sues, —and is not the averment of an affirmative fact. As before said, the notice is not a plea, and under it appellants can not claim the benefit of the rule invoked, as might have been done had the denial been formally pleaded. When the case was tried, the only plea denying the plaintiff’s cause of action was the general issue, and the better rule is, that such plea admits the corporate existence of the plaintiff corporation. (McIntire v. Preston, 5 Gilm. 48.) It may be found that this court, in some of the earlier eases, announced a contrary rule; hut we are disposed to follow the reasoning and authority of the case cited.

Numerous other minor errors are assigned, which we have carefully examined and considered, but do not deem them of sufficient importance to merit extended discussion. It is sufficient to say, that upon mature consideration we find no error in this record for which the judgment should be reversed, and it is accordingly affirmed.

Judgment affirmed.

Mr. Justice Bakeb passed upon this case in the Appellate Court, and therefore took no part in its consideration here.


source: Caselaw Access Project

author: Mr. Justice Bakee'

license: Public Domain

text:
    Anson B. Jenks et al. v. Huntington W. Jackson et al.

      Filed at Ottawa January 25, 1889.

    1. WHiXiS—rules of construction. The rule which controls all others m the interpretation of wills is, that the intention of the testator, to be gathered from the entire will, must govern. Such intention is not to be ascertained from any particular word or expression used in the will, but is to be collected from all the words and all the provisions as a •whole. At the same time, if it is possible, full effect must be given .to every word and every clause of the will.
    2. Same—construction in case of inconsistent provisions. The rejection of one clause in a will to uphold another is a desperate remedy, to be resorted to only in eases of necessity. While, when two clauses are inconsistent and irreconcilable, the last must prevail, yet the later clause, if such construction can be fairly given it, should be deemed to affirm, and not to contradict, the earlier clause.
    3. Same—sense in which words are used from context. While the general rule is, that words used in one part of a will must be understood in the same sense when used elsewhere in the same instrument, yet when there is something in the context which makes a different meaning imperative, as that otherwise the actual intention of the testator will be defeated, or a prior provision, expressed in clear and decisive terms, may be rendered inoperative, the court will presume such words were used in different senses, when such different senses are not strained or unnatural, do no violence to the language used, lead to a reasonable conclusion, and harmonize otherwise inconsistent provisions.
    4. Same—whether devise is to trustee for a devisee. A testatrix devised her estate to A, B and G, her three grandchildren, in equal shares, the part to 0 to be vested in a trustee, for him. She also devised her late husband’s estate, under a power given to her, to D, the father of the three children, in trust for them, with power to divide and make sale of the last named estate, and appointed E as trustee in respect of the share allotted to 0: Held, that the share of 0 in the testatrix’s own estate, as well as in that devised under the power, was vested in E, in trust for C.
    5. Same—what trusts created by a devise—double trust. A testatrix, under a power of disposition by will, devised all the property and estate covered by the power to D, in trust for A, B and 0, in equal shares, and directed that the share of A should be “held in trust for her, as aforesaid,” so that the net annual income thereof should be paid to her during her life, free from the control of her husband, and that on her death the full legal title to the share allotted to her should vest in her heirs other than her husband, and the trustee was given power to divide such estate, and to make sale of the same: Held, that two distinct trusts were thereby created, the first for all three of the beneficiaries, A, B and 0, and the second for A, only, which was to continue for her life. The first trust covered all the property devised under the power, while the latter merely embraced the share allotted to A.
    6. Same—power of sale, when applies to two trusts created. The will also provided that “the trustee * * * under this item of my will, shall have power to make division of the property covered by the same, to receive interest, income, rents and profits, to pay taxes and all other charges thereon, make repairs and improvements, sell and convey, and do all other acts which may be necessary and proper to fully execute the trust reposed in himHeld, that the powers were not conferred on the trustee under one of the trusts, but applied to both the trusts, so far as they were applicable to both, or either.

      7. Same—from what time the will speaks—and estate devised vests. A testatrix devised all her own property to A, B and 0, her grandchildren, the share of C “to be vested in a trustee for him.” Under a power of disposition, she also devised her late husband’s estate to D, in trust for the same persons, directing that the “share or shares” of 0 should “go to and be vested in a trustee,” for his benefit, and appointed E such trustee: Held, that "the will, as to the devise of the testatrix’ own property, spoke from her death, and vested G’s share in her estate in E on her death, but not Ms share in the property devised under the power, which did not vest in E until O’s share was allotted by D. The first undivided share vested immediately in E, in trust, but the other share vested only when the division of the estate devised under the power was made and the respective shares of the several children were ascertained and set apart.
    8. Same—power of sale by trustee. A testator may devise his estate to a trustee in trust, for the benefit of named beneficiaries, to be divided between them by such trustee, and provide that on a division the share of one of the cestuis que trust shall be vested in another trustee, and give a power of sale to each trustee while he holds the legal title. A power of sale in the first trustee while holding the whole of the property, is not inconsistent with a like power of sale in the second trustee, in respect to the property vested in him.
    9. Same—power of sale in trustee-—whether limited to certain purposes. An estate was devised to a trustee in trust for three grandchildren of the testatrix, children of the trustee, giving the latter power “to make division of the property, to receive the interest, income, rents and profits thereof, to pay taxes and all other charges thereon, make repairs and improvements, sell and convey, and to do all other acts” necessary and proper to fully execute the trust: Held, that the power given to sell and convey was not confined to sales and conveyances to enable the trustee to make a division or partition, but that he might sell and convey for the purpose of making repairs or improvements upon the unsold portion of the estate, and also for the purpose of paying taxes and other charges thereon, and that a sale by him would pass the title to the purchaser.
    Appeal from the Superior Court of Cook county; the Hon. G-wynn Gabnett, Judge, presiding.
    The second, fourth and fifth items of the will of Jerusha Maxwell, deceased, are as follows:

      “Item 2d—Subject to the above, I devise and bequeath all my property and estate whatsoever, which may belong to me in my own right, at my decease, to the children of Ophelia, the late wife of Joel C. Walter, in equal shares,—the share of Charles Joel to be vested in a trustee for him, as hereinafter provided. If any of said children should die before me, leaving issue living at my death, such issue to take the same share their parent would if living.

      “Item éth—Since by the will of my late husband, Dr. Philip Maxwell, power is given to me to devise and bequeath all his property, except as in his said will is excepted, now I do hereby, in execution of the said power, devise and bequeath all the property and estate whatsoever, covered by the said power, to Joel C. Walter, and upon his death to the executors and trustees of his last will and testament, in trust for the children of Ophelia, the late wife of the said Joel C. Walter, in equal shares. In case of the death of any of said children before me, leaving issue living at my death, such issue to take the same share as their parent would hereunder, if living. The share allotted to Ida Ophelia Walter, the only daughter of the said Ophelia now surviving her, in case she survives me, shall be held in trust for her as aforesaid, so that after her arrival at lawful age the net annual income thereof shall be paid, in regular quarterly payments, into her own hands and upon her own receipt solely, and without the power, on her part, to anticipate such payments, the same to be so paid to her during her life, and to be received, held and enjoyed by her free and clear from any husband she may have, and to her sole and separate use, and upon her death, the full legal title to the share so allotted to her, or for her benefit, as aforesaid, shall at once vest in her heirs-at-law other than her husband. The trustee and trustees under this item of my will shall have power to make division of the property covered by the same, to receive the interest, income, rents and profits thereof, to pay taxes and all other charges thereon, make repairs and improvements, sell and convey, and do all other acts which may be necessary and proper to fully execute the trust reposed in him and them, respectively.

      “Item 5th—As Charles Joel Walter has shown indications of not being in his right mind, I will and direct that his entire share or shares under my will shall go to and be vested in a trustee, who shall see that the said Charles Joel is properly maintained and amply provided for out of the said property held hereunder by said trustee, he using such an amount for that purpose as in his discretion shall seem best, with power in the said trustee to sell and convey any property belonging to the share of the said Charles Joel, when, in his discretion, it shall appear necessary and proper so to do; and said trustee shall convey, transfer and deliver over to the said Charles Joel his said share, when said trustee shall be satisfied that the said Charles Joel is competent to take care of the same, and not before, unless Joel C. Walter, father of the said Charles Joel, shall direct said trustee so to do. And the said Charles Joel is to have no power to control, dispose of, or incumber the said share allotted to him, by any act done or suffered by him, until the same shall have been actually conveyed to him by the said trustee. In case of the death of the said Charles Joel before the property covered by this item is turned over to him by said trustee, the legal title thereof shall vest absolutely in his heirs-at-law. I nominate and appoint Alonzo J. Willard to be the trustee under this item of my will, in respect of the share allotted to the benefit of the said Charles Joel. In case of his death or his refusal to accept of such trust, then, in default of further appointment by me, the executors and trustees under the will of his father, Joel C. Walter, or such other person or persons as the said Joel C. Walter shall by deed or will appoint, shall be such trustee.”
    The children of Ophelia Walter, wife of Joel C. Walter, were Charles Joel, Philip E. and Ida Ophelia Walter. . Ophelia Walter was the daughter of the testatrix.

      Mr. H. S. Monboe, and Mr. A. B. Jenks, for the appellants:
    The only, trust intended was to divide the lands, and hold that intended for Ida Ophelia, as directed. After the division, Joel 0. Walter was the mere naked trustee of the parts belonging to Charles Joel and Philip E., and the title would have at once vested in them. Rev. Stat. chap. 3, sec. 3; Kirkland v. Cox, 94 Ill. 400; Witham v. Brooner, 63 id. 344; Kellogg v. Hale, 108 id. 164.
    The power of sale was given solely for the purpose of division of the estate, and not to enable the trustee to convert the land into money. 2 Perry on Trusts, 769.
    It was his duty to divide the property immediately. Walker v. Shaw, 19 Ves. 391; Hawkins v. Chapel, 1 Atk. 623.
    There was no power, as executor of the will, to sell. Marshall v. Rose, 86 Ill. 374; LeMoyne v. Quimby, 70 id. 399; Schouler on Executors and Administrators, secs. 212, 213; Rev. Stat. chap. 2, secs. 99-101.
    In the construction of wills, full effect should be given, not . only to each item, but to every clause and word of each item. 3 Jarman on Wills, 705, 706.
    In the second item the testatrix speaks of the portion owned by her, in her own right, going to Charles Joel as bis share. She uses that word in the same way in the fourth item. In her mind there are these two shares going to Charles Joel, and only these. Under all rules of construction, the same meaning must he given to the word “share,” in this clause as in the foregoing, unless there is good reason to the contrary. 3 Jarman on Wills, 707.
    All parts of a will are tó be construed in relation to each other, so as, if possible, to make a consistent whole. 3 Jarman on Wills, 705; Welch v. Savings Bank, 74 Ill. 171; Banks v. Jones, 60 Ala. 605; Minnons v. Westfall, 33 Ohio St. 213.
    When two clauses of a will are irreconcilable, on the theory of appellees the last must prevail. 9 Mod. 154; 6 Ves. 100; 2 Wm. Black, 976; 3 M. & E. 158; 1 T. R. 630; 1 Sw. 28; 2 Atk. 372; 6 T. R. 814; 2 Taunt. 109; 18 Ves. 421; 6 More, 214; Murfitt v. Jessop, 94 Ill. 158; Brownfield v. Wilson, 78 id. 467.
    -The court will always look at and consider the circumstances under which the testator makes his will, as, the state of his family, their relations to each other and to the testator, the state of his property, and the like. 3 Jarman on Wills, 705, 706.
    As to his property, see 1 Mer. 646; 7 Taunt. 105; 1 B. & A. 550; 3 B. & C. 870.
    As to state of family, see 3 B. P. C. John. 257; 4 Burr, 216; 4 B. P. C. 441; 3 B. & A. 657; 1 Jarman on Wills, 734, note 9.
    Messrs. Lyman & Jackson, for the appellees:
    By the will of Jerusha Maxwell, Joel C. Walter, the trustee and executor under her will, had power to sell and convey the property in question. His deed conveyed the title to appellees. Hamilton v. Hamilton, 98 Ill. 258; Wicker v. Ray, 118 id. 472.
    It is a well settled rule of construction that all the provisions of a will should be given effect if a construction can be adopted which reconciles and gives effect to all its provisions. Dawes v. Swan, 4 Mass. 208; Schouler on Wills, secs. 437, 438; Dill v. Dill, 1 Des. 237; Mutter's Estate, 38 Pa. 314; Banta v. Boyd, 118 Ill. 186 ; Dalton v. Scales, 2 Ired. Eq. 521; Brownfield v. Wilson, 78 Ill. 467.
    The paramount rule of construction in construing wills is, to give effect to the intention of the testator. Schouler on Wills, sec. 476; Stinson v. Vroman, 99 N. Y. 74; Hitchcocks v. Hitchcock, 35 Pa. St. 393; Wickman v. Samson, 5 Hare, 91.
    The rule of construction is, that a later clause in a will must be deemed to affirm, not to contradict, an earlier clause, if such construction can fairly be given. The effort, and a natural one, is to reconcile and make the disposition a consistent whole, for, in construing doubtful language, that interpretation should be preferred which gives consistency to the whole will, rather than that which works inconsistency. Roseboom v. Roseboom, 81 N. T. 356; Schouler on Wills, sec. 474; 2 Jarman on Wills, 843; Temple v. Sammis, 97 N. Y. 529; Trustees v. Kellogg, 16 id. 83; Thornhill v. Hall, 2 C. & F. 22; Mason v. Ely, 38 Ill. 138.
    The power to sell and convey was given, not as a means of division, but it was intended to be exercised whenever, in the judgment and discretion of the trustee, it was for the benefit of the estate. Hamilton v. Hamilton, 98 Ill. 258; Wicker v. Ray, 118 id. 476.
    It is not necessary that there should be a specific authority given to the trustee to enable him to sell. If a sale is necessary to the due execution of the trust, it will always be inferred that the testator means to give to the person directed or employed every authority which is necessary for his declared purpose. Hill on Trustees, 733, note 2; 2 Spence’s Eq. Jur. 366; Going v. Emery, 16 Pick. 111.
    Thus, where there is a direction to divide and pay over the shares to legatees, where a literal division is impracticable, implies a power to sell for the purpose. Winston v. Jones, 6 Ala. 550.
    No precise form of words is necessary. It is sufficient that an intention to give the power is shown. Hill on Trustees, 733.
    When a testator devises property in trust, to a trustee, with full and plenary powers, the legal title passes to the trustee with full power of sale, and the cestui que trust will take only an equitable estate. 1 Lewin on Trusts, 219; Watson v. Pearson, 2 Exch. 593,
    Where a will contains any direction in regard to the disposition of real estate, or, indeed, any other provision which can not reasonably be carried into effect without the sale of the real estate, a power to do that is implied. Gosling v. Carter, 1 Coll. C. C. 644; Bentham v. Wiltshire, 4 Mad. 44; 3 Redfieid on Wills, 138; Williams on Executors, (Am. ed.) 725.
   Mr. Justice Bakee'

delivered the opinion of the Court:

This is a bill for partition, exhibited in the Superior Court of Cook county, by Anson B. Jenks, claiming to be the owner, as trustee, of the legal title in fee of an undivided third of certain lands lying near the town of Pullman, and by Charles Joel Walter, his cestui que trust, claiming the equitable title in fee of said third interest in said lands. The defendants in the bill are Huntington W. Jackson and David B. Lyman, who are in possession and claim title as owners in fee of the whole of said lands under the wills of Dr. Philip Maxwell, deceased, and of his widow, Jerusha Maxwell, deceased, by virtue of a sale and conveyance by Joel C. Walter, executor and trustee under the will of said Jerusha Maxwell, to one E. Kellogg Beach, and mesne conveyances from said Beach to them.

The lands in question were patented by the United States to said Dr. Philip Maxwell, who died in 1859, having devised his entire estate, real and personal, to said Jerusha Maxwell, for life, with power in her to devise and dispose of the same by her last will and testament. In November, 1870, said Jerusha Maxwell made her last will and testament. At that time she owned a considerable amount of personal property in her own right, but subsequently, in the great fire of 1871, the building on the premises known as No. 79 Clark street, Chicago, which was a part of the property covered by the power in her husband’s will, was destroyed, and in rebuilding, she expended some $15,000 of her separate property, and likewise became indebted to her son-in-law, Joel C. Walter, in about $29,000, for advances. At the time of her death, in 1875, she left about $30,000 in personal property, and the real estate which was the subject of the power in her husband’s will, and consisted principally of unimproved lands, was of the value of about $175,000, but it was incumbered with back taxes, which were liens upon it, to the amount of something over $6000.

The first item of the will of said Jerusha Maxwell merely made provision for several comparatively small bequests of money. The present controversy turns upon the construction to be given to the second, fourth and fifth items of said will.

The cause was heard in the Superior Court upon bill, answer, replication and proofs, and the court found the issues for the defendants, and dismissed the bill for want of equity. From the decree dismissing the bill, the complainants therein prosecute this appeal.

The contention of appellants is, that under the will of Jerusha Maxwell, the title to one-third of said lands sought to be partitioned, vested in Alonzo J. Willard, trustee for Charles Joel Walter, and passed to Anson B. Jenks, his successor in trust, and that said Jenks, as trustee, is now the owner of the same. The contention of appellees is, that by said will said lands were devised to Joel C. Walter, as trustee, with power to sell and convey the same, and that he exercised such power by the sale and conveyance to Beach, from whom, by mesne conveyances, they acquired title.

The rule which controls all others in the interpretation of wills is, that the intention of the testator or testatrix, to be gathered from the entire will, must govern. Such intention is not to be ascertained from any particular word or expression used in the instrument, but is to be collected from all the words and all the provisions considered as a whole. At the same time, if it is possible, full effect must be given to every word and every clause of the will. The rejection of one clause to uphold another is a desperate remedy, to be resorted to only in case pf necessity. While, where two clauses are diametrically opposed to each other and are wholly irreconcilable, the later must prevail, on the presumption it was intended to modify or abrogate the former provision, yet such later clause, if such a' construction can fairly be given it, should be deemed to affirm, and not to contradict, the earlier clause. So, also, while the general rule is, that words used in one part of a will must be understood in the same sense when used elsewhere in the same instrument, yet where there is something in the context which makes a different meaning imperative, as that otherwise the actual intention of the testator or testatrix would be defeated, or a prior provision expressed in clear and decisive terms would be rendered inoperative, the courts will presume such words were used in different senses, when such different senses are not strained or unnatural, do no violence to the language used, lead to a reasonable conclusion, and harmonize otherwise inconsistent provisions.

There are, so to speak, four trusts created by this will in respect to property. There were three surviving children of Ophelia, the late wife of Joel G. Walter, and they were Philip E. Walter, Ida Ophelia Walter and Charles Joel Walter; and by item 2 of her will the testatrix devised and bequeathed all her property and estate which belonged to her in her own right, to said children, in equal shares. The shares of the two first mentioned children in such property were given directly to them, but in regard to the share of Charles Joel Walter therein, it was directed that it should “be vested in a trustee for him, as hereinafter provided.” The reference here, and that, too, in connection with the disposition to be made of the share of Charles Joel in the separate property of the testatrix, is to item 5 of the will, and on turning to said item 5, it is seen that it is recited therein that said Charles Joel Walter “has shown indications of not being in his right mind,” and provision made that his “entire share or shares, under the will, shall go to and be vested in a trustee,” and that Alonzo J. Willard is nominated and appointed to be such trustee. Whatever may be the other trusts created by the will, there can be no question but that said items 2 and 5, taken and considered together, show that it was the intention of the testatrix that a share in the property owned by her in her own right should vest in said Willard, in trust for said Charles Joel Walter.

Item 4 of the will contains three distinct clauses or provisions. The first of these clauses creates what may, for convenience, be designated the second trust of the will, and in which trust all three of the children of Ophelia, late wife of said Joel G. Walter,—i. e., Philip E., Ida Ophelia and Charles Joel Walter,—are cestids que trust; and the second of said clauses creates what may be denominated the third trust, it being a trust for the benefit of said Ida Ophelia Walter, only. The first clause or provision of said item 4 refers to the power donated by the will of the deceased husband of the testatrix, and in execution of said power, devises and bequeathes all the property and estate whatsoever, covered by the said power, to Joel G. Walter, in trust for the children of Ophelia, his late wife, in equal shares. The second clause of the same item provides that the share “allotted” to Ida Ophelia Walter shall be held in trust for her “as aforesaid,” so that after her arrival at lawful age the net annual income “thereof” shall be paid to her during her life, and that upon her death the full legal title to the share so allotted to her or for her benefit, “as aforesaid,” shall at once vest in her heirs-at-law other than her husband. Both of the trusts created hy this “item 4” are in the property and estate held by the testatrix under the power. One of them is for the benefit of all three of the children, and the other for the individual benefit of Ida Ophelia. Joel C. Walter is designated as the trustee in respect to both of these trusts,—in respect to the first, in express words and by language which is specific in its terms; in respect to the trust for the benefit of Ida Ophelia, by the repeated use of the words “as aforesaid,” in the particular connections in which they are found. It is plain, also, that the first of the trusts reposed in him includes all the property and estate under the power, and that the other of said trusts merely covers such portion of said property and estate as may be “allotted” to said Ida Ophelia as “her share.”

The third clause or provision of said item 4 is: “The trustee * * * under this item of my will shall have power to make division of the property covered by the same, to receive the interest, income, rents and profits thereof, to pay taxes and all other charges thereon, make repairs and improvements, sell and convey, and do all other acts which may be necessary and proper to fully execute the trust reposed in him.” This third clause is to he read in connection with and as having application to both the other provisions or clauses of item 4, and as bearing upon the powers conferred by the will upon the trustee in respect to both of the trusts created by the item. Its language is, “the trustee * * * under this item of my will.” Who is the trustee under said item? Plainly, Joel 0. Walter. He is the only trustee named in said item. But he is nominated trustee in respect to two distinct trusts, both trusts being provided for in the same item. The clause does not, in terms, designate with reference to which of the trusts mentioned in the "item the powers enumerated therein are given. In fact, they are conferred upon him as “trustee” “under this item.” In other words, they are not confined to his trusteeship under the one trust or the other, but are to be held donated to him as trustee under each and both of the trusts, so far as they are capable of application to both or either. "Very evidently these powers were not donated to him solely as trustee of the share allotted to Ida Ophelia, for the “power to make division of the property covered by the item” there would be no occasion or opportunity to invoke in the execution of the provisions of the will in respect to said share, after it was once- set apart to her, and, manifestly, said power was intended for the purpose of enabling the trustee to make division of all the property and estate, under the power in the will of Dr. Maxwell, among the beneficiaries designated in the will of his widow. If the powers enumerated in item 4 are to be restricted to one, only, of the trusts under said item, then it is plain they must be confined to the trust which has for its subject the whole of the property and estate. But we are inclined to the opinion, that while the power to make division was designed to and only could apply to the trust cover-, ing the whole property, yet that the other enumerated powers were donated in respect to both of the trusts. The phraseology of this third clause of the item, as well as the general scope and intention of the will, seems to indicate this. The trustee or trustees of the allotted share of Ida Ophelia would be a trustee or trustees under “this item,”—the 4th,—of the will. “The property covered by the same” (item) would include said share as well as the whole property. The subsequent words, “thereof” and “thereon,” refer to the property covered by the item,—i. e., both all the property devised and bequeathed to Joel G. Walter and the allotted share of Ida Ophelia, and in the concluding words of the sentence the reference is to other acts in execution of “the trusts” reposed, (not the trust reposed,) thereby indicating it was the intention to give the powers in respect to both trusts, and .that there was only- a failure so to do, to the extent that one of said powers,—that of making division,—was inapplicable, under the scheme of the will, to the trust, the subject of which wras, solely, the allotted share of Ida Ophelia.

Having, for the present, regard only to this item 4 of the will, it seems to us very clear therefrom, that it was the intention of the testatrix to vest, immediately upon her death, all the property and estate covered by the power in the will of her deceased husband, in Joel C. Walter, in trust for the children of the deceased wife of said Joel C., in equal shares, and to give power to said trustee to receive the interest, income, rents and profits thereof, and pay the taxes and other charges thereon, and, in his discretion, make repairs and improvements on, and sell and convey, said property and estate, and finally make division between the beneficiaries, thereby ending the general trust covering the whole property, wherein all the children were cestuis que trust. The division being made by such trustee, and the property apportioned and set apart to the several beneficiaries, this item further provides, that “.the share allotted to Ida Ophelia Walter” “shall be held in trust for her, as aforesaid.” How held in trust for her “as aforesaid?” Evidently by Joel G. Walter, and, upon his death, by the executors and trustees of his last will and testament. If the whole matter stood upon this item 4 alone, then, upon the division of the property, the share of Ida Ophelia would remain in the same trustee named in the general trust, but under a different trust, and the shares, as allotted, of Philip E. and Charles Joel, would vest in said Philip E. and Charles Joel, respectively. But, as we have already seen, it was provided in item 5 of the will, that as Charles Joel had shown indications of not being in his right mind, “his entire share or shares,” under the will, should go to and be vested in a trustee, and that Alonzo J. Willard was appointed such trustee. When would the entire share or shares of Charles Joel vest in Willard, as trustee ? Unless otherwise provided, a will speaks from the death of the testator or testatrix. In respect to the share of Charles Joel in the property of the testatrix owned in her own right, and mentioned in item 2, the will, in this item 5, does so speak. But it does not necessarily speak from that time, in regard to the share of Charles Joel in the property under the power, with which, and which only, item 4 deals. It is to be noted, that it is only in this 'first part of item 5, and in speaking of the vesting of titles in the trustee'for said Charles Joel, the expression, “share or shares,” is used, instead of the word “share,” alone. The words, “shall go to and be vested in a trustee,” evidently have reference to both the share in the property out of the power, and the share in the property under the power, and the conclusion, from such expression, would ordinarily be, that the title to both shares vested in such trustee immediately upon the death of the testatrix. But it is manifest this result can not be accomplished in respect to the share* in the property under the power, until a division is made by the general trustee, without completely ignoring the express provision of item 4, devising and bequeathing all the property and estate covered by the power, to Joel C. Walter. The principle that should govern is, to give effect to both items 4 and 5, and carry out the intention of the testatrix, as gathered from all the words and all the provisions of the will, considered as a whole.

The titles to both shares of Charles Joel Walter are eventually to vest in the trustee named in item 5, but the will does not, in express language, designate the time or times when they shall so vest, and in order to carry into effect the substantial requirements of the will, it is necessary to hold that one of these shares is an undivided share, and vests immediately, and that the other is an allotted share, which can vest only when a division is made by the general trustee of the property under the power, and the respective shares therein of the several children ascertained and set apart. This construction merely, and in respect to one, only, of the two shares in property covered by it, postpones the operation of the trust created by item 5, and a different construction would wholly nullify and destroy an explicit provision contained in, and a clearly expressed trust created by, item 4.

The objections urged to the view of the will we have taken are not of controlling weight. We see no valid reason why there may not be two trustees and two separate and distinct trusts in regard to a portion of the property covered by the power, if only these trusts are so arranged, in regard to time and otherwise, as that there shall be no clashing. Here, the general trust which vested in Joel C. Walter naturally and necessarily ended when he made a division of the property in accordance with the express power given him in that behalf. Then, and not until then, did the share of Charles Joel Walter in the estate of Philip Maxwell vest in the trustee named in item 5 of the will, and then, and not until then, was fully accomplished the intention of the will in respect to “the entire share or shares” designed for the benefit of said Charles Joel, which was, that they should go to and be vested in the trustee nominated in said item. We see nothing inconsistent in the provision that Joel C. Walter, while he is trustee of the whole of the property covered by the power, shall have power to sell and convey, and that Willard, trustee for Charles Joel, after the allotment and distribution, shall have power “to sell and convey any property belonging to the share of Charles Joel, when, in his discretion, it shall appear necessary and proper so to do.”

It is no doubt true, that the testatrix, in the disposition of the property, was anxious to secure Charles Joel Walter an ample support. But it is to be borne in mind, that under the will his interest in her separate property was to vest immediately in the trustee appointed to act in his behalf; that at the time she made the will, (in 1870,) the Clark street building had not been destroyed by fire, and consequently she had not expended $15,000 of her own means in rebuilding, and had not borrowed nearly $30,000 for the same purpose, and that the $6000 of back taxes were not then due and unpaid" on the property of her deceased husband. Consequently, the income to be derived from the one-third of her separate property, as it then stood, would have been quite considerable. And, besides this, said trustee was authorized to encroach upon the principal of the fund derived from said property, the provision of the will being, that he should “see that the said Charles Joel is properly maintained and amply provided for out of said property held hereunder by said trustee, he using such an amount for that purpose as, in his discretion, shall seem best.” The testatrix had the utmost confidence in the integrity, sound judgment and business qualifications of Joel C. Walter. This is shown, not only by the provisions of the will itself, but conclusively appears from the evidence dehors the will. She therefore gave him plenary power over the entire estate derived from her husband, until a division thereof was made, and she left it largely to his discretion to determine the time and the manner of making such division. The property under the _ powrer was of the value of some $175,000, and was, with the exception of the house and lot on Clark street, and a dwelling house at Lake Geneva, unimproved, and afforded no income, and the charges thereon, for' taxes and otherwise, were very considerable. She, therefore, not only authorized him to receive the interest, income, rents and profits, and pay the taxes and other charges, but also to make repara and improvements, and sell and convey, and do all other acts necessary and proper to fully execute the trust reposed in him. The power given him to sell and convey was not, in terms, confined to such sales or conveyances as might enable him to make a division or partition, but there being express authority to -repair and improve, he had a clear right to make sales, for the purpose of making repairs or improvements upon the unsold portions of the estate, and also for the purpose of paying taxes and other charges thereon.

In our opinion, no one of the four trusts created by this will are mere naked or passive trusts, but all of them are active trusts. One of them is in all of the property under the power, and is for the benefit of all of the children of the deceased Ophelia, and is vested in Joel C. Walter, as trustee. Another of them begins when the share of Ida Ophelia is allotted, and is only in the share so allotted, and is in ‘the same trustee. Another of the trusts of the will is imposed upon Alonzo J. Willard, as trustee, and begins when the testatrix dies, and at first, and prior to the division of the estate under the power, is confined to the share of Charles Joel in the property owned by the testatrix in her own right; and the remaining trust is in the share of said Charles Joel in the property under the power, and only vests in Willard after the allotment made,—and these two latter trusts, except in respect to the properties which are the subjects of such trusts, and the times when the titles thereto, respectively, vest in said Willard, are really and in fact one and the same trust.

In October, 1879, Joel C. Walter, as executor and trustee, sold and conveyed the land, an undivided one-third interest in which is here in controversy, for the consideration of $11,900, which was then its full value. There is no question of fraud involved in the case. The trust estate, and the beneficiaries therein, received the benefit of the consideration money. There was ample power in Joel 0. Walter, the trustee, under the powers donated him by the will of Jerusha Maxwell, to make the sale and conveyance, and by his deed the title to the whole interest in the land passed to Beach, and through him to appellees.

The Superior Court properly dismissed the bill of appellants for want of equity therein, and the decree of that court is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    The City of Springfield v. A. W. Sale et al.

      Filed at Springfield January 24, 1889.

    1. Special assessment—amendment of assessment roll. On application by a city to the county court to confirm special assessments of benefits upon lots by the construction of a sewer, the caption to the assessment roll returned by the commissioners appeared as their “asT sessment of a special tax,” etc.: Held, that the designation as of a special tax was a clerical error, and that an amendment of the caption to make it conform to the fact was properly allowed.
    2. Same—for construction of sewer—assessment limited to benefits. In a proceeding for special assessment of contiguous property for the construction of a sewer, it is the duty of the commissioners to examine the locality where the proposed improvement is to be made, and each contiguous tract of land or lot affected thereby, to determine the amount of special benefits accruing from such improvement, and apportion the cost thereof, not exceeding the amount of special benefits, upon the several lots, in the proportion that they will be severally benefited.
    3. No lot or tract of land can be assessed any greater sum than it is specially benefited by the proposed improvement. There must be assessed to each lot the special benefit it will derive from the improvement, and if a sufficient sum is not thereby raised to make the improvement, the residue must be paid out of the general funds of the city. A report of the commissioners that they have assessed the expense of the improvement according to the frontage of the contiguous lots, without finding that the special benefits are in that proportion, will not be a compliance with the law.
    4. Same—basis for ascertaining benefits—correcting assessment. The law has not prescribed what basis for ascertaining the benefits shall be adopted by the commissioners, but ample provision is made for the correction of errors in the assessment. The county court may change, alter or annul the assessment, and when the roll is corrected, it is the duty of the court to confirm the same by its order.
    5. Same—report of commissioners as to mode of assessment—will not vitiate, where the fact appears. The fact that the commissioners, in their report, gave the frontage of the lots upon the street, or that they assessed against each lot the exact cost of the sewer in front of the same, will not, of itself, vitiate the assessment, when it appears that they determined that the benefit to each lot was equal to the cost of the sewer in front of such lot.
    6. Same—of the ordinance—sufficiency—former decision. The case of City of Springfield v. Mathus et al. 124 Ill. 90, in relation to the sufficiency of an ordinance for the construction of a sewer by special assessment, is cited and followed.
    Appeal from the County Court of Sangamon county; the Hon. James H. Matheny, Judge, presiding.
    Mr. C. L. Conkling, and Mr. Joseph M. G-rotjt, for the appellant :
    Under section 1, article 9, of the general law relating to cities and villages, the city has power to make the improvement wholly by special assessment, and without any part of the expense being paid by the public. (Ricketts v. Hyde Park, 85 Ill. 112.) It may determine what the public or the property shall pay. People v. Sherman, 83 Ill. 166; Watson v. Chicago, 115 id. 78.
    The only restriction is, that the assessment shall not exceed the benefits.
    As to the sufficiency of the ordinance, see section 19, article 9, of the City and Village act; Hyde Park v. Spencer, 118 Ill. 457; Hyde Park v. Borden, 94 id. 33; Lake v. Decatur, 91 id. 599; Foss v. Chicago, 56 id. 354; Street Railway Co. v. Jacksonville, 114 id. 562; Levy v. Chicago, 113 id. 650.
    Messrs. Patton, Hamilton & Shutt, Messrs. Gross & Broad-well, and Mr. H. A. Stevens, for the appellees:
    The assessment was made on the basis of the frontage of the contiguous property, and not upon the special benefits. Wright v. Chicago, 46 Ill. 44.
    Such assessments must be based on and not exceed the special benefits. Larned v. Chicago, 34 Ill. 203; Chicago v. Baer, 41 id. 310; Canal Trustees v. Chicago, 12 id. 403; Rev. Stat. chap. 24, sec. 140; Cooley on Taxation, 454, 418.
    The ordinance is void because it fails to specify the nature, character and description of the sewer, and attempts to delegate authority to the city engineer. Rev. Stat. chap. 24, sec. 135; City of Sterling v. Galt, 117 Ill. 20; Levy v. Chicago, 113 id. 650; Hyde Park v. Spencer, 118 id. 457; Kankakee v. Potter, 119 id. 327.
   Per Curiam :

This was an application by the city of Springfield to the county court for confirmation of the special assessment in a proceeding by the city to construct a sewer in Walnut street, in said city. The county court refused confirmation, and dismissed the petition, and the city appealed.

Two objections are urged tó the proceedings for special assessment, and which, it is said, render them invalid. As stated by counsel for appellees, the two points made against the validity of the proceedings, are: “First, that the case, as made in the county court, failed to show proper assessments;” and, “second, that the ordinance was void, because it did not sufficiently specify and describe the sewer proposed to be constructed.”

The assessment roll returned by the commissioners was improperly returned by them, as appeared in the caption thereof, as.their “assessment of a special tax,” etc. This was manifestly a clerical error, and after filing the roll in the county court, it was, by leave of the court, amended by the commissioners, so as to show it to be an assessment for special benefits, etc. The commissioners had properly certified the assessment, and the amendment of the caption, to make it conform to the fact, was entirely proper.

It is urged, however, that the assessment was not in proportion to the benefits accruing to the several lots from the public improvement proposed, but was made by the commissioners in proportion to the frontage of such lots upon the street in which the sewer was to be constructed. ' This contention arises from the fact that the commissioners, in their report, gave the frontage of each lot upon said street, and assessed the cost of building the sewer in front of the lots upon the same, respectively, and determining that the cost of constructing thé sewer at the street and alley intersections should be borne by the city. It was the duty of the commissioners to examine the locality where the proposed improvement was to be made, and each contiguous tract of land and lot affected thereby, determine the amount of special benefits accruing from such improvement, and apportion the cost thereof, not exceeding the amount of special benefit, upon the several lots, in the proportion that they were severally benefited. In proceedings for special assessment of contiguous property, no lot or tract of land can be assessed any greater sum than it is specially benefited by the proposed improvement. There must be assessed to each lot the special benefit it will derive from the improvement, and if a sufficient sum is not thereby raised to make the improvement, the residue must be paid out of the general funds of the municipality. A report, therefore, of commissioners, that they have assessed the expense of the improvement according to the frontage, without finding that the special benefits are in that proportion, would not be in compliance with the law. Cooley on Taxation, 454; City of Chicago v. Larned et al. 34 Ill. 203; City of Chicago v. Baer, 41 id. 310.

The facts, however, do not sustain the contention of counsel. The assessment was for special benefits accruing to each of the lots named in the assessment roll, from the proposed public improvement. The fact that in the report the commissioners gave the frontage of the lots upon the street, or that they assessed against each lot the exact cost of the sewer in front of the same, will not, of itself, vitiate the assessment. It would seem that the commissioners determined that the benefit to appellees’ lots was equal to the cost of the sewer in front of the same, and charged the amount thereof upon such lot. If so, it is impossible for us to say that the assessment was not fairly and impartially made for benefits accruing to said lots. "What basis for ascertaining benefits shall be adopted by the commissioners is not prescribed by the law. Ample provision is made for the correction of errors in the assessment, by the statute, (sec. 31, art. 9, of general Incorporation act,) and the county court was authorized to modify, alter, change or annul the assessment, and make all such orders as might be necessary to a just and true assessment of the benefits. (Ibid. sec. 33.) When the roll is corrected in the manner provided by statute, it is then the duty of the court to confirm the same by its order. There was no such error in the return of the assessment by the commissioners, as would authorize the dismissal of the proceedings in the county court.

In respect of the second point made, that the ordinance is void because it did not sufficiently specify and describe the sewer proposed to be constructed, it need only be said, that the same ordinance, in all essential particulars, was before this court in City of Springfield v. Mathus et al. 124 Ill. 90, and was there sustained. Indeed, a reading of the two ordinances will show them to be substantially identical. The reports of the committees appointed to estimate the cost of the improvement in the two cases, are also substantially the same. Every element here urged as wanting to the validity of this ordinance, was there insisted upon. No extended discussion of the point made will therefore be necessary or proper.

Eor the reasons given in the ease cited, the objection to the ordinance is held not to be well taken. It follows, as in that case, the order of the county court in this case must be reversed, and the cause remanded for further proceedings.

Order reversed.