text:
    Chicago, Milwaukee and St. Paul Railroad Company v. Margaret Dumser.

      Filed at Ottawa March 26, 1884.

    1. Fencing railway tracks—constitutionality of the statute requiring that to be done. Under the police power the State has the undoubted right to require all railway corporations to inclose their roads with a suitable and sufficient fence, as a matter of public safety. Such regulations tend to the safety of persons and property, and are for that reason lawful.
    . 2. In what manner and to what extent railway corporations shall be required by law to inclose their "tracks, and where it shall be done, would seem to be ordinarily within legislative discretion.
    3. Same—as to excepted places—railway stations not within a city or village. The statute requiring railway corporations to fence their tracks having excepted certain places, as, public road crossings, and within such portion of cities and incorporated towns and villages as are or may be laid out and platted into lots and blocks, etc., this court is not disposed, if it has the power, to extend the exception to cases not enumerated, as a matter of law, without proof of facts showing a necessity for relieving such corporation from this duty.
    4. Where a railway corporation has a station at a place on its road where trains stop to receive and discharge passengers and freight, which is not in a city or incorporated town or village, laid out and platted into lots and blocks, and has side-tracks at such station, this court can not, as a matter of law, hold that it is exempted from fencing its track at such station; and if stock gets upon its track for want of such fence, and is killed, the corporation will be liable to the owner for the injury.
    5. The law is well settled, that when no reason arising from public necessity exists for keeping a railway track open at any given point, whether within or without the corporate limits of a city or village, all railroad corporations must conform to the statute, and fence their tracks, or answer for damages that may result from the omission of that duty. If the courts can relieve from this duty, the evidence must present facts showing a great public necessity for not fencing the track at the particular place.
    6. Statutes—rule of construction—enforcing them as written. Where a statute is expressed in clear and precise terms, and its sense is manifest, and it leads to nothing absurd, or where its provisions, if literally applied, will work no palpable injustice, nor contravene any imperative public exigency, there is no reason for not adopting the sense it naturally presents, and it should be enforced as it is plainly written.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    This action was commenced by Margaret Dumser, before a justice of the peace, against the Chicago, Milwaukee and St. Paul Railroad Company, to recover the value of a cow killed by the cars or engine on defendant’s road. On the trial before the justice of the peace plaintiff recovered a judgment against defendant. On the appeal of defendant a trial de novo was had in the circuit court, where plaintiff again recovered a judgment. This latter judgment was affirmed in the Appellate Court for the Second District. A majority of the judges of the Appellate Court having certified that in their opinion the case involves questions of law of such importance, on account of principal and collateral interests, as that it should be passed upon by the Supreme Court, defendant brings the ease to this court on its further appeal. The judges of the Appellate Court also certify the ground of granting the appeal, which is, the “great importance of having a decision of the Supreme Court upon the question as to whether, under the existing laws of Illinois, a railway corporation is obliged to fence the depot grounds and switch limits at all stations, except at the crossings of public roads and highways, and whether such portions of cities and incorporated towns and villages as are or may be laid out and platted into lots and blocks, etc., as appear, only required by section No. 1 of the act in relation to fencing and operating railroads, approved March 31, 1874.”
    Mr. D. S. Wegg, and Mr. Edward C. Lovell, for the appellant :
    It is a general principle of interpretation that all of a statute must be construed together, and while section 1 of the act of 1874, in relation to the fencing and operating rail-

      roads, taken alone, would seem to sustain appellee’s view, the other sections of the same act, especially those compelling railroads, under severe and stringent penalties, to furnish cars and transport passengers and property to and from all their stations and stopping places, and their general duty to the public as common carriers, compel the conclusion that the statute taken all together, and considered as a whole, will not bear such construction. Eev. Stat. chap. 114, secs. 48-88; Act in relation to fencing and operating railroads, approved March 31, 1874, secs. 22, 23, 25; Act regulating receiving, transportation, etc., of grain, approved April 25, 1871, secs. 1, 3, 5.
    The principle that the proper test as to whether a particular place ought to be fenced by a railroad company is the public character of the place, is deducible from numerous decisions of this court. Toledo, Wabash and Western Ry. Co. v. Chapin 66 Ill. 504; Galena and Chicago Union R. R. Co. v. Griffin, 31 id. 303; Great Western R. R. Co. v. Morthland, 30 id. 451.
    The principle that a statute which in general terms imposes on the railroad -company the duty to fence is construed as allowing exceptions required by public necessity and convenience, is recognized by the courts of last resort in several of the States, and by the best writers on this branch of the law. It is immaterial whether much or little business is transacted at any particular point. Pierce on Railroads, (ed. of 1881,) 420, 421; Lloyd v. Pacific R. R. Co. 49 Mo. 199 ; Swearingen v. Railroad Co. 64 id. 73.
    The courts of other States, under similar statutes, have made exceptions as to depot grounds, with a view to the public convenience and necessity, as well as public policy. Davis v. B. and M. R. R. Co. 26 Iowa, 549; Durand v. C. and N. W. Ry. Co. 26 id. 559; Smith v. C. R. I. and P. Ry. Co. 34 id. 506; Latty v. B. C. R. and N. Ry. Co. 38 id. 250; Cleaveland v. C. and N. W. Ry. Co. 35 id. 220; I. and C. R. R.

      Co. v. Kinney, 8 Ind. 402; I. and C. R. R. Co. v. Oestel, 20 id. 231; I. and St. L. R. R. Co. v. Christy, 43 id. 144; Jeffersonville Co. v. Beatty, 36 id. 15; P. C. and St. L. Ry. Co. v. Crandall, 58 id. 365; Ohio Ry. Co. v. Rowland, 50 id. 354; 1 Thompson on Negligence, 519, sec. 24; Flint and P. M. R. R. Co. v. Lull, 28 Mich. 510; 12 id. 596; 7 Am. & Eng. Railroad Cases, 545.
    Mr. D. B. Sherwood, for the appellee:
    The appellee’s right to recover is warranted by section 48, chap. 114, page 848, of Hurd’s Statutes of 1881. The argument of appellant’s counsel relative to the obnoxious features of this act, as they affect public policy, would apply with greater force if they could be applied to a different state of facts. The locus in quo is not an incorporated city, a village or a town, laid out and platted into lots and blocks; neither is it a city or village in fact, but is simply a station-house on the line of this road, without any public places of business about it.
    The cases cited by appellant are not applicable, for this and the further reason that they are based on different statutes. Our present statute is too plain and unambiguous to be the subject of construction. Its meaning is plain and evident to any one.
   Mr. Justice Scott

delivered the opinion of the Court:

No negligence is imputed to defendant in respect to the accident that resulted in injury to plaintiff’s property, unless it was the omission to fence its track at the point where the animal was killed. Section 1 of the act of 1874, in relation to “fencing and operating railroads, ” as amended by the act of 1879, makes it the duty of every railway company, within six months after any part of its line is open for use, to erect, and thereafter maintain, fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent the ordinary farm stock from getting on such railroad, “except at crossings of public roads and highways, and within such portions of cities and incorporated towns and villages as are, or may hereafter be, laid out and platted into lots and blocks. ” Provision is made for gates or bars at farm crossings, and it is also made the duty of such corporations, where the same has not been done, to construct, and thereafter maintain, suitable and sufficient cattle-guards at all road crossings. Any failure to comply with the provisions of the statute in this respect will subject the company to the payment of all damages which may be done by the “agents, engines or cars” of such corporation, to cattle, horses, sheep, hogs, or other stock. The only question made is, whether plaintiff’s cow was killed at a point or place where it was the duty of the defendant railway company to inclose its track with a suitable and sufficient fence to prevent stock from getting on it. The question raised is purely one of law, and involves a construction of a section of the statute in regard to “fencing and operating railways” not heretofore considered by this court.

The point where plaintiff’s cow was killed was eighty rods east of a station on defendant’s road called “Dumser,” but west of the east end of a switch at that station. It is admitted “Dumser” is not an incorporated city, village or town, and has never been laid out and platted into lots and blocks, and neither is it a city or village in fact, but defendant has a station-house at that point, and stops its trains there for receiving and discharging freights and passengers. There is a switch at this point about two thousand feet long, and extends on both sides of the station-house, about one-third on west and two-thirds on east of the station. The value of the cow killed was agreed upon, and also that defendant had been operating its road more than six months prior to the accident, and that it had no fence on the north side of its track, where the cow got upon the track or was killed.

It is not claimed the point where the cow was killed is one of the excepted places mentioned in the statute, where the company is not required to fence its track. As has been seen, it was not within the limits of any city or village, nor had the ground been platted into “lots or blocks. ” The argument is, that as the company had a station at the place where the injury was done,—where it stopped its trains to receive and discharge freights and passengers,—a public necessity arises for keeping the grounds adjacent to the depot open, and for that reason it could not have been the intention of the legislature the company should fence its track at such a place. The legislature has seen fit, in absolute terms, to limit the exceptions to the statutory requirement that all railway companies shall inclose their tracks with a suitable and sufficient fence, to the “crossings of public roads and highways, ” and to such portions of cities and villages as have been, or shall hereafter be, laid out and platted into “lots and blocks, ” and the courts would be reluctant to enlarge, by construction, the number of excepted places,—most certainly, unless where the literal application of the statute would work such great public inconvenience it would be held the legislature could not have intended it should apply. It is conceded that under the police power the State has the undoubted right to require all railway corporations to inclose their roads with a suitable and sufficient fence, as a matter of public safety. Such regulations tend to the security of persons and property, and are, for that reason, lawful. In what manner and to what extent railway corporations shall be required by law to inclose their tracks, and when it shall be done, would seem to be ordinarily within legislative discretion.

A statute of the State of Indiana gave the owner of stock killed on a railway a right of action against the company, without regard to the question whether such injury was the result of willful misconduct or negligence, or the result of unavoidable accident. It was, however, provided, the act should not apply to any railroad securely fenced in, and such fence properly maintained by such company. Although this statute is general, and contains no exception, it was held in S. and Ind. R. R. Co. v. Shimer, 6 Ind. 141, the legislature did not intend to authorize railroad companies to inclose streets in a town against the use of the public, and that a literal construction of the statute would lead to an absurdity. In that case the animal was killed within the corporate limits of the town of Lafayette, at a place where the railroad track crossed one of the streets of the town, and it was ruled it would not have been lawful to erect a fence at that point, and that the want of such fence was not the cause of such accident. In the case of Ind. and Cin. R. R. Co. v. Kinney, 8 Ind. 402, it was held, under the same statute cited in S. and Ind. R. R. Co. v. Shimer, a railroad company would not be liable for stock killed or injured at a place on their road where a fence ought not to be erected, unless the injury was negligently or willfully done, and that an open space in front of a mill standing within fifty feet of the track is such a place. In the case of Ind. and Cin. R. R. Co. v. Parker, 29 Ind. 471, it was held, as in the other cases cited, the statute did not apply to injuries done at a point where it would be illegal or improper for the railroad company to maintain fences, such as road and street crossings, but that it was not every place within the corporate limits of a town or city that is within the exception. The exception allowed would be as to places where it would be improper to fence the track, whether within or without the corporate limits of cities or villages. In construing their own statute on the same subject, and which is not unlike the Indiana statute, in F. and P. M. R. R. Co. v. Lull, 28 Mich. 510, the court thought the rule established by the case last cited was a satisfactory one,— that it expressed the limits of the exceptions arising under the statute accurately, and a track within the corporate limits of a city or town, at a point where no reason arising-from public necessity existed for keeping it open, was as much within the statute as a track elsewhere. It seems the courts of Missouri and Iowa have followed closely the rule established by the cases ut supra, in construing similar statutes on the same subject. (Lloyd v. Pacific R. R. Co. 49 Mo. 199; Davis v. B. and M. R. R. Co. 26 Iowa, 549; Cleaveland v. C. and N. W. R. R. Co. 35 id. 220.) It is seen it is held by these courts, that notwithstanding the statute makes railroad corporations liable for injuries done to stock unless their tracks are inclosed with suitable fences, yet they are not bound to fence their tracks at places where it would be improper to do so on account of the great public inconvenience it would occasion, and hence are not liable because of the omission, unless guilty of negligence or willful misconduct in regard to the accident that caused the injury. The reason for the rule adopted in such cases is well stated in The People v. Davenport, 91 N. Y. 574, where it is said, a “principle of construction of universal authority is that which requires the court to limit and restrict the operation of a statute, when its language, if applied in its literal sense, would lead to an absurdity or manifest injustice.” The same rule of construction had been- previously adopted by this court in Perry County v. Jefferson County, 94 Ill. 218. On the other hand, the law is equally well settled that where no reason arising from public necessity exists for keeping it open at any given point, whether within or without the corporate limits of a city or village, all railroad corporations must conform to the statute, and fence their tracks, or answer for damages that may result from the omission of that duty.

It will be noticed the statute of this State in relation to fencing railroads is more definite in its provisions than that of any other State on the same subject to which the attention of the court has been called. In the statutes construed in the cases cited, no exceptions to the general provision the railroad track shall be inclosed, seem to be enumerated; but in this State the excepted places are stated to be at “crossings of public roads and highways, ” and within such portions of cities and incorporated towns and villages as are, or may hereafter be, laid out and platted into “lots and blocks." This is a clear legislative expression as to what places the public convenience demands a railroad track shall be kept open. While this expression of the legislative will may not absolutely forbid any further restrictions as to the application of this statute as it is written, there are many cogent reasons why the courts would hesitate to go further than the legislature has done, and other points will not be deemed excluded from the general provisions of the statute, unless for the most satisfactory reasons. It often happens expressions used in statutes are to be regarded as restrictive, and are intended to exclude all things not enumerated. And so in the construction of statutes, as well as deeds and other written instruments, the maxim, expressio wains est exclusio alterius, is of frequent- application, and often assists to arrive at the intention of the legislature, which it is always desirable to do. But at all events, where a statute is expressed in clear and precise terms, where the sense is manifest, and leads to nothing absurd, or where .its provisions, if literally applied, would work no palpable injustice, nor contravene any imperative public exigency, there can be no reason not to adopt the sense it naturally presents. In such cases there can be no necessity for restricting its operation, and the statute should be enforced as it is plainly written. Newell v. The People, 7 N. Y. 9; Potter’s Dwarris, 145.

The validity of this statute as a police regulation is not doubted, but it is attempted to make an exception to its general provisions,—which it is conceded the legislature has not done,—that would relieve a railroad corporation from the duty to fence its track at a depot located on ground not platted into lots and blocks, and at a point where there is in fact no city or village, for the reason the public convenience requires the track to be kept open at such a place. This, it is thought, can not be done,—certainly not on the record now before this court. There is nothing in the evidence in this case that shows any reason, arising from public convenience or otherwise, that requires the track either east or west of this station-house should be left unfenced. That necessity, if it existed at all, should be made to appear from the evidence by the defendant corporation seeking to be relieved from a duty imposed by a public statute. In the absence of proof it will be presumed the reasons which, in the opinion of the legislature, required railroad tracks to be inclosed with suitable fences to prevent injury to stock, applied here as well as elsewhere. It might be the depot building and platform could be so constructed as to constitute an effectual bar to the approach of stock to the track as a fence would do, and still the front of such building be open to receive and discharge passengers and freights through the building and over the platform, without serious inconvenience to the number of persons that might have occasion to go to or transact business at a country station, as this is. Nothing to the contrary is shown, and no presumptions will be indulged in favor of a party seeking to be relieved from a duty imposed by law, for politic reasons.

But there is another reason why the present judgment should be affirmed. It is agreed it shall not be material where the cow got upon the track, except it was between the switches at “Dumser” station, but that it was killed about eighty rods east of the depot, and that defendant had no fence on either side of its track at that point, which was within the switch limits. Between the depot building and the place where the cow was killed a public highway crosses the railroad grounds and the tracks, from north to south, which highway was not protected by cattle-guards. It is also admitted defendant had no fence on the north side of its track, where the cow got upon the track or was killed. The evidence does not show at what point the cow got on the track, nor whether it came from the north or the south; but as plaintiff’s pasture lands lie north of the track, it is most probable the cow came upon the track from that direction. It may be the cow got on the track at or near the point where it was killed. If it should be conceded the public convenience required the track in the immediate vicinity of the depot building should be kept open, it can not be held as a matter of law, in the absence of any testimony as to the fact, that a like public necessity required the track should not be fenced on either side for a distance of a quarter of a mile at a country station. The fact a switch may extend that far can make no difference. It could be inclosed with a suitable fence as- well as the main track.

In any view that can be taken the judgment is warranted by the law and the evidence, and must be affirmed.

Judgment affirmed.

Scholfield, Dickey and Craig, JJ.: To the extent that this opinion may be regarded as holding that the law imposes the obligation upon railroad companies of fencing their tracks at such points as stations are located, although not within the limits of incorporated cities and villages, we do not concur in it.


source: Caselaw Access Project

author: Mr. Justice Scholeield

license: Public Domain

text:
    William Kirby v. Wabash, St. Louis and Pacific Railway Company et al.

      Filed at Springfield March 26, 1884.

    1. Contracts—rule of construction—as to meaning of words. Words in a contract are to be construed according to their strict and primary acceptation, unless from the context, and the intention of the parties to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect.

      2. Same—in case of doubt, in whose favor to be solved. If from a contract for a conveyance of a right of way upon a certain condition, it is doubtful what is intended by the words as to the condition, the doubt must be solved in favor of the grantee.
    3. Same—a contract construed as to location of right of way and railroad. The owner of lands gave a bond to a railway company proposing to construct a railroad, obligating himself to make a deed for a strip of land fifty feet wide on each side of the center line of the road, as the same might be located upon and over his lands, which were described, provided said railroad should be built west and north of his dwelling house then occupied by him “on said premises,” when the road was completed, etc., which also provided that unless the road was constructed so that cars might run over the same by a day named, it should become void. Under this, the company entered upon a part of the premises, without objection by the owner, and constructed its road in the time named, west and north of the dwelling house, but that part of the road north of the house was not built on such party’s land. It appeared that his house was situate only two hundred feet south of his north line: Held, that the condition of the bond was complied with if the road was built west and north of the house, without regard to the ownership of the land on which it was built, and that the words, “on said premises,” qualified the word “house,” or should be regarded as merely redundant.
    4. Ejectment—plaintiff must recover on the strength of his own title— bond for a deed as a defence. The owner of land gave a railway company a bond for a deed for a strip of land over his premises, to be given on the performance of certain conditions, which were performed, and a different company operating the road was sued by him in ejectment. It was objected that the defendant had not shown either a lease or a deed for the right of way from the original company: Held, that the rights of the defendant could not concern the plaintiff, who must recover, if at all, on the strength of his own title, and that the bond was a good defence to the action.
    Appeal from the Circuit Court of Jersey county; the Hon. George W. Herdman, Judge, presiding.
    Mr. T. S. Chapman, and Mr. A. A. Goodrich, for the appellant.
    Messrs. Brown & Kirby, for the appellees.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was ejectment, by appellant, against appellee, for a strip of ground occupied by the latter as right of way for its railroad. The general issue was pleaded, and by agreement of parties the cause was tried by the court without the intervention of a jury, and judgment was rendered for appellee.

Appellant’s title to the strip in controversy, originally, is conceded, and the only question is, whether he bound himself, by a bond read in evidence, to convey it for railroad right of way. The bond read in evidence is as follows:

“For and in consideration of the benefits and advantages that will accrue to me by reason of the construction of the St. Louis, Jerseyville and Springfield railroad, and as an inducement to said company to construct their proposed railroad, and also in consideration of the payment to me by said company of one dollar, the receipt of which is hereby acknowledged, I do hereby agree and bind myself, my heirs, administrators, executors and assigns, to make unto said railroad company a good and sufficient deed, free from all incumbrances, for a strip of land fifty (50) feet wide on each side of the center line of said road, as the same may be located and constructed over and upon the following described tract or parcel of land, lying and being in the county of Jersey, and State of Illinois, to-wit: South-west quarter of southeast quarter, and eighteen (18) acres of north part of southeast quarter of south-east quarter, both in section 28; also, the west half of the north-east quarter, and north half of the south-east quarter, of section No. 33,—all in township No. 8, north of range No. 11, west of third principal meridian,— provided said railroad shall be built west and north of my dwelling house now occupied by me on said premises. The said deed to be executed and delivered to the president of said company when the road is completed through above described premises, from a point on the Mississippi river at or near Grafton or Jersey Landing, in Jersey county, Illinois, via Jerseyville, to or near Medora, to or near Chesterfield, to or near Palmyra, all in Macoupin county, Illinois, and to or near Waverly, in Morgan county, Illinois, thence to Springfield, Illinois, or with a railroad connection with Springfield, Illinois. And unless constructed so that cars may be run over the same, as above, on or before the first day of January, A. D. 1882, then this bond shall be null and void.
“Witness my hand and seal, this 6th day of December, 1880.
W. Kirby, [seal.] ”

There was also oral evidence given at the same time, in substance, that the St. Louis, Jerseyville and Springfield Railroad Company entered upon the premises of the appellant under and by virtue of this bond, and built its railroad thereon, without objection from appellant; that the road was built through the premises of appellant described in the bond, from “Jersey Landing,” a point on the Mississippi river in Jersey county, via Jerseyville, through Medora, Chesterfield and Palmyra, in Macoupin county, and through Waverly, in Morgan county, to Bates, in Sangamon county, there connecting with the Wabash, St. Louis and Pacific railway, which runs thence to and through Springfield, so that cars were actually run on it, and did actually run its entire length, by and on the first day of January, 1882; that said railroad was built west and north of the dwelling house of appellant which he then occupied, and which was located on said premises, but the portion of said road that was built north of such dwelling house was not built on the premises of appellant ; and also, that the north line of the premises of appellant, described in the bond, is only two hundred feet from his dwelling house thereon.

The question is, whether the condition in the bond requires that the railroad shall be built on appellant’s land west and north of appellant’s dwelling house, or is it sufficient that it is built west and north of that house, without regard to the ownership of the land on which it is built. The latter was the view taken by the court below, and, as we think, the correct one. It is, as we understand, conceded that the grammatical construction of the sentence leads to this conclusion; but it is insisted that such construction makes senseless the words, “on said premises, ” and that effect must be given those words, and that requires that they shall be held to refer back to and qualify the words, “shall be built. ” At most; those words are only redundant,—they are not meaningless. The sentence, taken alone, as it is written, runs thus: “Provided said railroad shall be built west and north of my dwelling house now occupied by me on said premises.” The rule is, “words are to be construed according to their strict and primary acceptation, unless from the context of the instrument, and the intention of the parties to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect. ” (1 Chitty on Contracts, 11th Am. ed. 113.) It would seem to admit of no reasonable controversy, that under this rule, if the words, “said premises,” were not liable to the charge of redundancy, they would qualify the word “house, ”—i. e., for instance, if the sentence had been thus: “Provided said railroad be built west and north of my house on said premises, ” the words “on said premises, ” would qualify the word “house.” Then, can we say, as matter of law, that there is greater presumption against the redundant use of words than there is in favor of their correct arrangement in a sentence ? We are aware of no authority for such a ruling. Indeed, experience demonstrates that redundancy in the use of language is as common an error as obtains in speaking or writing. Very few, if any, reduce their language, uniformly, to such words only as are necessary to accurately convey their ideas. It would have been so natural here, had the intention really been so, to have said, “Provided said railroad be built on said premises west and north, ” etc., that we incline to the belief that there is less probability that there was error in that regard than that a word or so more than was absolutely necessary was employed to describe the house. At best, we think all that can be said is, it is doubtful which was intended ; but if it be doubtful, the doubt must be solved in favor of the grantee, and the construction for which it contends sustained. 2 Washburn on Real Estate, (2d ed.) 669, *628.

Regarding the case as one where it would be proper to refer to extraneous circumstances, the fact that if the road had been built north of the house on appellant’s premises it would have had to come within a few feet of the house, would seem to render it clear that that construction could not have been intended, because it must have been to increase his damages, there being no requirement to make a station at that place, or to do any other act from which a presumed benefit would result to him.

Counsel suggest that appellant was directing the course the road should take over his own land, and not over that of others. This is hardly borne out by the language of the bond. It will be seen the construction of the road on a prescribed line, and within a definite period, is made necessary, while no direction is given as .to how the road shall run over his premises. It is simply to be built west and north of the house, without other restrictions. Of course, this is to be done with reference to the line upon which the road is, in another sentence, provided to be built.

The objection that the present appellee is not shown to have had either a lease or a deed, can not concern appellant. He must recover, if at all, upon the strength of his own title. The question of appellee’s rights is a matter to be adjusted between it and the St. Louis, Jerseyville and Springfield Railroad Company. The bond was a good defence, and the judgment below was right. Turpin v. Baltimore, Ohio and Chicago R. R. Co. 105 Ill. 11.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Dickey Hr. Justice Walker

text:
    Levi Whipple v. William Whipple et al.

      Filed at Ottawa March 26, 1884.

    1. Canal lands—certificate of purchase, as merely a chose in action— not vesting the legal title. A certificate of purchase of canal land, issued by the canal officers, reciting the purchase and price and amount paid down, and stating that on payment of the residue of the purchase price, with interest, the party purchasing, or his assignee, would be entitled to a conveyance, does not operate like a conveyance to transfer the legal title of the land therein described, to the holder or his assignee. It is simply a chose in action, made assignable by statute.
    2. Resulting trust—in favor of one paying for land, the equitable title being apparently in another. A person in possession of a tract of canal land, when the canal lands were put in market sent by another the money necessary to make the first payment, and requested the latter to purchase the land for him, which was done, the person transacting the business giving his own notes for the deferred payments, and taking the certificate of purchase in his own name. The one for whom the land was bought paid all the pin-chase money, and received the certificate unindorsed: Held, that while the certificate showed the apparent equitable ownership in the person to whom it was given, yet in reality the equitable title was in him whose money paid for the land.
    3. Assignment of certificate of purchase—whether a divestiture of title. The equitable owner and holder of a certificate of purchase of a tract of canal lands, who was in possession of the land as owner, and who had paid all the purchase money, fearing that the holder of the equitable title might die, procured the latter to assign the certificate to an infant son of the real owner, • who still continued to keep possession of the certificate, and never delivered the same to his son, or manifested any intention of parting with his title: Held, that the assignment to the son did not divest the father of his real equity or right to a deed, its only effect being to place the son in the same position as the trustee stood before, and that the father might rightfully erase the assignment to the son, and procure another one to one acquiring his equitable title by purchase.

      i. Fraudulent conveyance—equitable title not enforcible in favor of assignee—a trust will not arise from a fraudulent transfer. If an assignment of a certificate of the purchase of canal land is caused to be made by a father, the equitable owner, to his son, to defraud supposed creditors of the father, but the same was never delivered, the son, even though an infant at the time of the transfer, can receive no aid from a court of equity in the assertion of any claim under the assignment, as against a purchaser from the real owner. By ratifying his father’s act, he ratified it as it actually was, and thereby made himself a party to the fraudulent transaction. But if the certificate, with its indorsement, had been delivered to the son for the purpose of vesting him with the apparent title, and the father had sought in equity to set aside the assignment, it might well be said that no trust in favor of the father could be raised upon a fraud.
    5. Laches—delay in asserting title to land. The equitable owner of a tract of land caused the holder of a certificate of purchase of the same to assign it to the son of the former, in 1851, not for the purpose, however, of passing the title, which fact the son knew before he became of age, which was in 1867, and he also knew that the father claimed to be the owner of the land, and paid all taxes from 1851 to 1882, (more than thirty years,) which claim the son recognized repeatedly, and when he rented part of the land of his father, paid him rents therefor, and received pay for all improvements he put on the same while tenant, and stated to the purchaser from his father that he had no objection to his purchasing of his father. The son, in 1882, filed his bill to set aside the sale made by his father, asserting title in himself. It was held, the laches of the son in asserting his rights, if any., was a bar to the relief sought.
    Appeal from the Circuit Court of Grundy county; the Hon. Francis Goodspeed, Judge, presiding.
    In 1844, William Whipple took possession of and broke eighty acres of canal land, situated in Grundy county. In 1845 he built a house upon it. In June, 1846, he moved his family into the house, and continued to reside there until 1882, with the exception of the years 1873 and 1874, during which he rented the place and received the rents therefor. During all this time he held undisputed possession, claiming as owner. In 1848 the land was put into the market by the canal trustees. William Whipple gave Orville Cone sufficient money with which to make the first payment on the land, and requested him to attend the land sale and bid off the eighty. Cone did so. He bid off the land, made the first payment, executed his individual notes for the deferred payments, and took the canal certificate in his own name, and on his return from the land sale gave the certificate to William Whipple. William Whipple paid all of the notes executed by Cone for the deferred payments, and retained the certificate in his possession until February, 1882, when he sold the eighty to Hoge, one of the defendants. William Whipple paid all the taxes assessed against this land from the time of the purchase until 1882.
    William Whipple signed a note as security for one Kim-ball, in 1839. In 1843 he learned that the note had not been paid. He was never sued upon it. Some person, in 1843, made some inquiry of him regarding it, and he answered that it was not for him to pay it. He never heard of the note afterwards. William Whipple allowed the certificate to remain in the name of Cone, because he feared that this note might not have been paid, and might be sued on. William Whipple, in 1851, fearing that Cone might die, took the certificate to Cone, and requested him to assign it to his son, Levi Whipple, the complainant, who was then an infant, some five or six years old. After the assignment, which was written on the back of the certificate, William Whipple took possession of the certificate, and retained it. It was never delivered to Levi Whipple. The assignment was not made for the purpose of conveying the title to the land to Levi, or the title to the certificate, but “simply to put it in such shape that William Whipple could control the certificate, ’’ William Whipple thinking, at the time, that after Levi became old enough to write he would willingly assign it over to him. Levi Whipple first learned that the certificate had been assigned to him when he was ten or twelve years of age. When he was sixteen years of age his father asked him if he knew how the title stood. He replied that he did. His father said to him : “Some time or other we will take a ride up to Lock-port and have it fixed. ” In 1867, when Levi Whipple became of age, he left the homestead, married, and lived upon other land than that in question. In 1871 he rented this eighty from William Whipple, and continued in such tenancy until the spring of 1873, paying to William Whipple, as rent, one-third of the crops. In 1873, at the end of his tenancy, he moved away, charged William Whipple for all the improvements which he, during his tenancy, had placed upon the premises, and William Whipple paid him for them.
    In 1880, Isaac Hoge, one of the defendants, was desirous of buying two acres of this eighty, to be used for a road. He asked Levi Whipple if he had any objection to his buying the two acres of William Whipple, and paying him $100. He replied that he had no objections. In January, 1882, Hoge was desirous of buying the eighty. He saw Levi, and told him that he thought of buying the property from his father, and asked him if he had any objections,—if he was willing that he (Hoge) should buy the place of his father, William Whipple. Levi answered that he had no objections to his (Hoge) buying the place of his father, William Whipple, if his father and he (Hoge) could agree on the price. Hoge asked him if he would assign the certificate. He replied that he had no objections, but his sisters did not want him to. He never claimed to Hoge that he had any right or interest in the property. As soon as Levi Whipple learned that Hoge was talking of buying, he went to William Whipple and tried to buy the property. William Whipple told him that he had given the refusal to Hoge, but if Hoge did not take it he could have it. Levi offered to pay down $1000, but William Whipple told him he could not get along with less than $2000. Levi replied: “If you will wait a few days, I think I can raise you a couple of thousand dollars, and will pay you the balance in two or three years.” On the 6th day of February, 1882, William Whipple erased the assignment of Orville Cone to Levi Whipple from the back of the certificate, and Cone, at the request of William Whipple, made a new assignment of the same upon the back thereof to defendant Hoge. On the same day William Whipple and wife executed and delivered, together with the certificate so assigned, a warranty deed of the eighty to Hoge, and put him into possession of the land. Hoge paid to William Whipple $4000 in cash, the full price of the purchase.
    On the 27th day of September, 1882, Levi Whipple filed his bill in chancery, in the circuit court of Grundy county, upon the above stated facts, and made William Whipple and wife, Cone, Hoge, and the subsequent grantees of Hoge, parties defendant therein, and praying that William Whipple and Hoge be decreed to surrender the certificate to complainant ; that the assignment from Cone to Hoge be declared null and void; that the assignment from Cone to complainant be declared to be in full force and effect; that the deed from William Whipple and wife to Hoge be declared null and void ; that complainant be declared the -rightful and equitable owner of said property; that possession be ordered to be surrendered to complainant, and for such further relief as equity may require. The complainant was thirty-six years of age when the bill was filed. Upon a hearing, the circuit court dismissed complainant’s bill, and as the question in controversy involves a freehold, the record comes to this court upon the appeal of complainant.
    Messrs. Doud & Wing, for the appellant.
    Mr. E. Sanford, for the appellees.
   Mr. Justice Dickey

delivered the opinion of the Court:

Counsel for appellant seem to assume that an assignment of a certificate of purchase issued by the canal officers, is in all respects the equivalent of a deed of conveyance, by which, under our laws, the legal title to land may be transferred from one to another. This is a misapprehension. The certificate of purchase is not set out in the bill, or its contents found in the record. We must assume that it was simply a statement that Cone had bought the land at a price given, made one payment, of a given amount, down, and upon the making of the deferred payments, with interest, he would be entitled to a conveyance of the legal title of the land to him or to his assigns. This is not a conveyance of land. It is simply a chose in action, made assignable by our statute. The money was all paid by William Whipple, and when the payments were all made, he, in equity, was entitled to a conveyance. The certificate was merely prima facie evidence. It showed the apparent equity in Cone, when in fact it was in William Whipple. This evidence (the certificate) was in the possession of William Whipple, who was also in possession of the land as owner and in his own right. At his request, and while the certificate was still in his possession and under his control, Cone indorsed upon the same an assignment to Levi Whipple, which placed the apparent equity, or right to a deed, in him,—but this did not divest William Whipple of his real equity or right to a deed. The assignment was not made for that purpose. It was made to place Levi in the same position in which Cone stood. No act of William Whipple, or of Cone, is shown manifesting any intention to divest William Whipple of any equity or right of his own pertaining to this land, or to give Levi any beneficial interest in the same.

It seems, however, to be thought that the rights of Levi are in some way strengthened by the allegation that the real purpose of Cone and William Whipple in having the certificate taken originally in the name of Cone, and in having the certificate afterwards assigned to Levi, was to delay and hinder supposed creditors of William Whipple, and we are asked to examine the proofs. If this charge be true, it would show that the supposed rights of Levi Whipple (to sustain which this bill is exhibited) are founded in fraud, and have no other foundation. In such ease a complainant can have no aid from a court of chancery. It is said Levi, at the time of the assignment, was an infant, and had no personal part in the fraud, and hence can not be unfavorably affected thereby. The case shows that he had no connection with the assignment, and that his father did not in fact accept the assignment for Levi, but for himself. If, however, we are to assume, as counsel insist, that the acceptance of the assignment by the father was for the son, and as his agent, then the act of the agent is the act of the principal, and in so far as such act is affected by the fraud of the agent, the rights of the principal are to the same extent affected. The agent, at the time of the act, had no authority from the principal. It could only become the act of the principal by his ratification. He can not possibly avail himself of the act by ratification— by anything short of ratification of the transaction as it actually was. If it was actually fraudulent, he ratifies the fraud, and is thereby excluded from seeking relief in a court of equity. Had the certificate with its indorsement been delivered to Levi for the purpose of vesting in him the apparent title, and had William come into a court of equity seeking to set aside the assignment to Levi, a very different ease would have arisen. It might well have then been said, no trust in favor of William Whipple can be raised upon a fraud.

Aside from these considerations, the laches of appellant in asserting his rights closes the door against him in this suit. He knew before he came of age that this assignment was in his name. He knew that instead of recognizing him as the real owner in equity of the land, his father claimed to own the same in his own right. He recognized this claim of his father, rented part of the land from his father, paid to him rent, and received payment from his father for improvements made by him during his tenancy. He became of age in 1867, and it is not until 1882 he seeks to assert his supposed rights. His father was in possession, claiming as owner, and paying all taxes upon the land, from 1851 to 1882,—more than thirty years, and for more than fifteen years after complainant ceased to he a minor.

In any view of this case, the decree of the circuit court was, in our judgment, right. The decree is therefore affirmed.

Decree affirmed.

Hr. Justice Walker

I concur in the conclusion reached, on the ground, alone, that complainant gave his full consent that Hoge might purchase the property, and acting on that consent he did purchase, and paid $4000 for it, and it would be a monstrous fraud on Hoge to permit complainant to recover. He is manifestly estopped by that consent from now claiming the title, and the bill was properly dismissed.


author: Mr. Justice Mulkby

text:
    James J. West v. Andrew Fitz.

      Filed at Springfield March 26, 1884.

    1. Wills—trusts and trustees—whether a mere power is conferred, or an estate. If a testator by his will simply directs his executor or a trustee to sell real estate, and apply the proceeds to certain specified purposes, such executor or trustee will take a power only; whereas, if the devise be to the executor or trustee to sell and apply the proceeds, etc., such executor or trustee will take an estate in the land, and not a mere power.
    2. Same—what estate the trustee may convey. No one can transfer to another a better or more extensive title to real estate than he himself has. So if an estate limited to a trustee is for life, or years only, he can not himself, nor can any one substituted for him, convey the fee in the premises, or any other greater estate than the one originally limited.
    3. Same—of the extent of the estate in the trustee, and its duration. In conveyances or devises to trustees, the use of words of inheritance, by way of limitation, does not necessarily pass the fee. Presumptively it does, but this presumption will be overcome when the exigencies of the trust will be satisfied with a less estate.

      4. Where the trustee is required to see to the application of the rents, he will take an estate in the property to enable him effectually to discharge the duties of the trust; but this does not necessarily confer on him the fee. The quantity of the estate in such case depends upon the exigency of the trust and the terms of the limitation. If required to collect and pay the rents for a definite period of time, or during the life of an individual, he will take an estate for years, or life, as the case may be; but when this duty is of indefinite duration, he will take the fee. So when the gift to the trustee is in general terms, without words of limitation, a direction to him to pay the testator’s debts or legacies, or a specific sum in gross, he will, by implication, take the fee as an indemnity in case of payment out of his own funds.
    5. This construction was originally adopted to protect the executor or trustee in paying such claims against the estate, and this construction is not affected by the fact that upon a final administration of the effects of the testator the personal estate may prove sufficient, without resort to the land, to liquidate all demands the executor may be required to pay. It is sufficient in such case that the direction to the executor or trustee to pay the claims is absolute, and that he may in some contingency have to resort to the land for his own protection; and whether such contingency exists, or not, is always to be determined from the will itself, and not from subsequent events. And whether such debts or claims are made a charge on the land, does not at all affect the construction of the will in this respect.
    6. Where land was devised to a trustee in trust to pay the net rent to the testator’s sister, at whose death the same was to form a part of the residue of his estate, all of which residue of his estate, real and personal, was devised to the same trustee in trust, to pay the net income to two other beneficiaries and to the survivor, and after the death of both, to pay certain specific legacies, and the rest to certain relatives named: Held, that the duties of the trustee did not cease with the death of the life beneficiaries, but that he was' required to pay the legacies, for which purpose it might be necessary to sell realty, and that there being no restrictive words, the power to sell would be referred to the trustee’s interest or estate in the land, which would be construed coextensive with his duty to sell, if necessary, which requires an estate in fee.
    7. Where an estate is given to trustees, the trusts must, prima facie, be performed by them by virtue of or out of the estate vested in them, and in order to rebut the presumption of an estate in fee to enable them to sell the property, it must be shown on the face of the will what less estate of definite duration will enable the trustees to serve the trusts out of their interest, and not by way of power,—and this not according to subsequent events, but according to events possible at the testator’s death.
    8. Same—as to the mode of convey anee by trustee. The title to real property in trustees is subject to the same general laws of conveyance and transfer that control and govern it when vested in other persons. The trustee may convey it by any kind of conveyance operative to pass the title if no trust existed.
    9. Same—affect of conveyance by trustee—with and without notice to purchaser. Even when the trustee conveys in direct breach of the trust, the grantee will take the legal title; but if he has notice of the trust, he will, by operation of law, be converted into a trustee himself, and hold the estate subject to the rights of those beneficially interested. So on the death of the trustee, the estate devolves upon the heir, who takes subject to the trust.
    10. Same—heir of trustee—character of his estate. Where a trust estate is devolved upon the heir of the trustee, his title is liable to be divested by the appointment of another trustee, when the instrument creating the trust so provides.
    11. Same—successor of trustee—as to his appointment. The author of every trust has full power to provide for the appointment of a successor in trust, in case the original trustee or trustees refuse to act, die, remove into a foreign jurisdiction, or are removed by a court of competent jurisdiction. But when the author of the trust makes no such provision, and a vacancy occurs in the trusteeship, a court of general chancery jurisdiction, upon a proper bill filed for that purpose, may make the appointment.
    12. Same—of the estate vested in a new trustee. The appointment of a new trustee in the place of one refusing to act, does not, proprio vigore, confer the title upon the appointee, unless by the statute of the State where the land lies it is so provided. So a decree in another State, made in pursuance of the laws of such State, appointing a successor to a trustee to whom land in this State is devised, who declines to act, can not have the effect to transfer the title to the lands here to the appointee, and he will have no power to sell and convey them.
    13. Where a person in the State of Massachusetts devises all his estate, real and personal, to a trustee in trust for certain purposes, imposing active duties upon the trustee, on his death the title of any land of his in this State will be devolved upon his heirs at law, subject to the trust, and upon acceptance of the trust the title to such land will at once pass from his heirs to the trustee, by virtue of the law of this State; but if he declines to accept the trust, the title will remain in the heirs.
    14. Wills and deeds—omission of the word “heirs," as affecting the character of the estate. In this State the omission of the word “heirs, ” or any other words used in limiting a fee at common law, is wholly without significance, either in a deed or will. Without such words they will be construed to have the force and effect they would have at common law if such words were added.
    15. Conflict of laws—as to the title to land—in what jurisdiction to be determined. The validity, force and effect, and construction, of all records, deeds, contracts or agreements relating to or affecting the title to real property, without regard to where they are made, depend entirely on the law of the State where the property is situated, and wills form no exception to this rale. The statutes of another State can have no power or influence in passing the title to lands here. All deeds, contracts and records relating to lands here receive whatever force and vitality they have as muniments of title, from the laws of this State, without regard to where they were made.
    16. Nor is it competent for a court of another State, by any kind of an order or decree, to divest the title of one person to land in this State and vest it in another. The extent of its power would he to compel a party within its jurisdiction, holding the title in trust, to convey it to his successor in trust.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    On the 25th of April, 1878, Stephen Hoyt, late of Salem, Essex county, Massachusetts, died testate, and on the 20th of the following month his will was duly proved and admitted to probate in the probate court of said Essex county. The will is as follows:
    “I, Stephen Hoyt, of Salem, do make this my last will and' testament, this first day of June, in the year 1876.

      “Item first.—I give and devise to my friend, Thomas H. Frothingham, of Salem, the messuage numbered 26j- and 28 Harbor street, in Salem, and all my household stuff, books, pictures, furniture and plate, in trust, to pay the net rent and income from said real estate to my sister, Euth H. Denrutt, for life, and to allow her to use said personal property during her life. At the death of my said sister, the estate held in trust under this item shall form a part of the residue of my estate.

      “Item second.—All the residue of my estate, real and personal, I give, devise and bequeath to said Frothingham, in trust, that he shall pay the net income thereof, from time to time, to Stephen Hoyt Sargent, of Belmont, New Hampshire, and Abbie Hoyt Sanborn, wife of Franklin T. Sanborn, of said Salem; and upon the death of either, the whole income shall be paid to the survivor until his or her death. At the death of the last survivor, the trustee for the time being shall pay to Franklin T. Sanborn, of Salem, the sum of $1000; and to Sarah E. Hoyt Jenks, of said Salem, Stephen Hoyt Harrington, (son of Eugene G. Harrington,) of St. Louis, Stephen Hoyt Hesse, (son of Herman T. Hesse,) of St. Louis, Joseph F. Tucker, of Chicago, and Bessie Hoyt Tucker, (daughter of Horace Tucker,) of Chicago, each the sum of $500. All the residue and remainder of the trust estate I give and devise, one-quarter part to the heirs at law of Stephen Hoyt Sargent, and one-quarter part each to my nephews and nieces, Moses Sargent, Jr., of Belmont, of the State of New Hampshire, Franklin S. Sargent, of said Belmont, and Mary Sargent Heywood, (wife of H. O. Heywood,) of Lake Village, New Hampshire.

      “Item third.—I request my executor and trustee to keep the property invested in such securities as savings banks are by the laws of Massachusetts authorized to invest in. I do not wish the real estate on Harbor and Park streets to be sold unless a pressing necessity arises therefor.

      “Item fourth.—I appoint Geo. Foster Flint, of said Salem, executor of this will.

      “Item fifth.—I declare that it is my intention by this will to dispose of any estate over which I have a power of disposition in any manner, especially the estate conveyed to said Flint, in trust, by deed recorded in Essex Registry of Deeds, book 940, leaf 254.

      “Item sixth.—I request that my said trustee and executor may be exempted from giving any surety or sureties on their probate bonds.
    Stephen Hoyt.”
    This will, together with an exemplified copy of the record of its admission to probate, is duly recorded in the recorder’s office of Cook county, this State.
    At the time of Hoyt’s death, in addition to the estate, real and personal, owned by him in Massachusetts, he was the owner in fee of the following real property in this State, namely, lots 5, 6, 7 and 8, in block 1, of Sutton’s addition to Chicago, being the same property involved in this suit.
    Upon Hoyt’s death, Frothingham, the trustee under the will, declined to accept the trust, whereupon George F. Flint was, under the provisions of the statute of Massachusetts, appointed trustee in Frothingham’s stead. Flint having subsequently died, Andrew Fitz, the appellee, was appointed in like manner, by the same court, trustee in Flint’s stead. Fitz, after his appointment, to-wit, on June 1, 1883, proceeding upon the assumption he had power under the will, and his appointment as trustee, to sell and convey lands belonging to the estate, entered into the following contract with James J. West, the appellant, for the sale of the Chicago property:
    “This contract and agreement, made and entered into this first day of June, A. D. 1883, by and between Andrew Fitz, trustee, of Salem, in the county of Essex, and commonwealth of Massachusetts, party of the first part, and James J. West, of Chicago, county of Cook, and State of Illinois, party of the second part:
    “Witnesseth, that the said party of the first part, in consideration of one dollar to him in hand paid, the receipt whereof is hereby acknowledged, has this day sold, and hereby covenants and agrees for his successors and assigns to convey in fee simple, by a good and sufficient deed, as trustee, in the usual form, to the party of the second part, his heirs, executors, administrators or assigns, clear of any incumbrances, except such taxes and assessments as may become liens upon such land on and after the first day of May, A. D. 1883, all the following described lots, pieces or parcels of land, to-wit, lots 5, 6, 7 and 8, in block 1, of Sutton’s addition to Chicago, being the subdivision of blocks 1, 2 and 3, of the assessor’s addition of the east half of the south-east quarter of section 18, township 39 north, range 14 east, of the third principal meridian, situated in the county of Cook, and State of Illinois.
    “The said party of the second part, in consideration of these presents, and of one dollar in hand paid to him by the party of the first part, the receipt whereof is hereby acknowledged, hereby covenants and agrees, for himself, his heirs, executors, administrators or assigns, to pay said party of the first part, as purchase money of the above described land, the sum of $11,850, in the manner following, to-wit: one-third thereof in cash, upon the delivery of the deed above described, to him, one-third in one year after such first payment, and one-third in two years thereafter, the said last two payments to bear interest at six per cent from the date of the delivery of said deed, and to be secured by a mortgage or trust deed from the said James J. West, for the benefit and use of the said Andrew Fitz, trustee, party of the first part.
    Andrew Fitz, Trustee.

    James J. West.”
    After entering into this contract, West, the appellant, becoming apprehensive that a deed from Fitz, as contemplated, by the agreement, would not confer upon him a good title to the property, declined to carry out the contract. Thereupon Fitz filed in the circuit court of Cook county the present bill, setting up, in substance, among others, the foregoing facts, and asking that West be compelled to specifically perform the agreement, and averring a readiness and offer to perform it on his part. West filed a general demurrer to the bill, which was overruled by the court. Electing to stand by the demurrer, West declined to answer further, and thereupon the court entered a decree in conformity with the prayer of the bill, to reverse which West brings this appeal.

      Mr. E. B. Esher, and Mr. William Ritchie, for the appellant :
    The appellant “can not be compelled to take a doubtful title, which will expose him to the expense and hazard of litigation. ” Hoyt v. Tuxbury, 70 Ill. 336.
    Fitz, the new trustee, holds not by virtue of the will, but solely by virtue of his appointment by a foreign court. He does not, therefore, even hold the legal title to this land, for any purpose whatever. City Ins. Co. v. Commercial Bank, 68 Ill.354; Williams v. Mans, 6 Watts, 278; Curtis v. Smith, 6 Blatchf. 549.
    It has only been of late that foreign executors or administrators, with the will annexed, have been able to convey title to land in this State, and even then only “in pursuance of due power vested by will, ”—not by decree of any foreign court. (Rev. Laws 1879, chap. 30, sec. 34.) But Fitz is neither executor nor administrator, and has not the powers or duties of such. Schouler on Executors, secs. 19, 173, 472, 485; 1 Perry on Trusts, secs. 71, 263, 281.
    The terms of this devise do not vest any fee in the trustee, and courts are very averse to enlarging an estate in trustees. 1 Perry on Trusts, sec. 317; 2 Jarman on Wills, *292; Budden v. Harris, 2 D. & R. 36; Cooke v. Blake, 1 Exch. 220.
    The direction to the trustee to pay certain pecuniary legacies after the death of Sargent, does not necessarily imply a power to sell the realty even at that time. 3 Jarman on Wills, (Rand. & Tal.) 424n, 459n; 2 Perry on Trusts, sec. 570.
    The trustees are to receive the gross rents, and after paying out of them the land tax, and any other charges on the estate, to hand over the net rents to the tenant for life. Parker v. Greenwood, 4 M. & W. 430.
    These proper current expenses of the estate must* be paid by the life tenant, even though the whole of the proceeds are thus expended. Latimer v. Moore, 4 McLean, 110; 2 Perry on Trusts, sec. 554; Revel v. Wathinson, 1 Ves. Sr. 93. The interests of the remainder-men can not be touched or affected for that purpose. Holcombe v. Holcombe, 27 N. J. Eq. 473; Holmes v. Tabor, 9 Allen, 246.
    The objection that the taxes upon this land are consuming it, is no reason why the life tenant may demand its sale. The taxes are a charge upon the income upon the life tenant’s interest, and not upon the corpus of the trust estate. He should pay all taxes out of his income. 2 Perry on Trusts, sec. 554; Cavins v. Chabert, 3 Edw. Ch. 312; Jones v. Dawson, 19 Ala. 679; Prettyman v. Walston, 34 Ill. 175.
    Messrs. Peckham & Brown, for the appellee:
    When real estate is left to trustees, with or without words of inheritance, and under any conditions or limitations whatever, they take an estate exactly commensurate with the purposes of the trust. Kirkland v. Cox, 94 Ill. 400; White v. Glover, 59 id. 459; Perry on Trusts, sec. 320; 2 Jarman on Wills, *307.
    As to when the trustee will take an estate in fee, see 3 id. chap. 33, p. 22; Howe v. Dartmouth, 7 Ves. 147; Dimes v. Scott, 4 Russell’s Ch. 195; Fearns v. Young, 9 Ves. 549; Wilkinson v. Duncan, 23 Beav. 469; Kilvington v. Gray, 2 Sim. & Stu. 396.
    That the successor of the trustee appointed by the court in Massachusetts may execute the trust created by the will, counsel cited section 10 of the chapter relating to Wills, and sections 33 and 34 of the Statute of Conveyances. See, also, United States v. Fox, 4 Otto, 315 ; Chase v. Chase, 2 Allen, 101; Newton v. Bronson, 13 N. Y. 592.
   Mr. Justice Mulkby

delivered the opinion of the Court:

This seems to be a friendly suit, in which both parties are desirous the decree below shall be affirmed, provided it can be done consistently with legal principles.

But two questions arise on the record, and the arguments of counsel have been confined mainly to them: First, does the will give to the trustee named in it, or any other trustee legally appointed in his stead, power to sell'and convey to the purchaser a good title in fee to the premises in controversy ; and second, assuming such power is given by the will, does appellee’s appointment as successor in trust by the probate court of Essex county, confer on him such power. We will consider these questions in the order stated.

It is specifically averred in the bill “that by the statutes of Massachusetts, as the same existed when said will was executed and probated, and as they now exist, executors and administrators, when authorized by the probate courts of said State, and provided the decedent’s personalty will not pay debts and legacies, may sell at public auction, and convey, the realty, subject to dower interest, after due notice, either personally or by ptiblication, to all parties interested. And said probate courts, when deeming it expedient for the trust estate, and after such notice as said courts may prescribe to those interested, may empower a trustee to sell and convey the trust property, real or personal, even when a remainder, or a contingent interest, is limited over to persons not ascertained or not in being; and conveyances so made are by said statutes declared to conclude the rights of all who are, or may become, interested, whether in being or not, and all to whom a remainder or a contingent interest may be limited. And said probate courts may empower executors, administrators and trustees to release any vested, contingent or possible rights or interests belonging to the persons or estates represented by them, whenever the court deems it expedient for such persons or estates. And said probate courts may, in case of the death or resignation of an original trustee, appoint a successor, with all the rights of such original trustee.”

While it may savor somewhat of technical refinement and astute discrimination, it is clearly settled by the general current of English and American authority, that if a testator, by his will, simply directs his executor, or a trustee, to sell real estate and apply the proceeds to certain specified purposes, such executor or trustee will take a power only; whereas, if the devise be to the executor or trustee to sell and apply the proceeds, etc., such executor or trustee will take an estate in the land, and not a mere power. (2 Washburn on Beal Prop. 661.) Testing the case in hand by this rule, there is no room for doubt or controversy. The language of the will in this respect could not be clearer or more explicit. The commencement of the first item is: “I give and devise to my friend, Thomas H. Frothingham,” etc., specifying certain real and personal property in Salem, where the testator resided. In the second item the words are: “All the residue of my estate, real and personal, I give, devise and bequeath to said Frothingham, in trust, ” etc. From the language here used, it is manifest the will, by its express terms, gives to the trustee the entire estate of the testator, both real and personal, upon the trusts therein specified, and to put any other construction on the will would be doing gross violence to its terms.

It being clear, then, the trustee is given an estate in the land, and not a mere power over it, the question arises, what is the extent of this interest or estate ? Is it one for years, for life, or in fee ? If for life, or years, only, it is manifest the question now under consideration must be answered in the negative, for it is a fundamental maxim of the law governing the conveyance and alienation of real property, that no one can transfer to another a better or more extensive title than he has himself,—or, in other words, it is clear, if the estate limited to the trustee is for life, or years, only, he could not himself, nor could any one substituted for him, convey the fee in the premises, or any other greater estate than the one originally limited.

In determining whether the trustee takes a fee in the real estate of the testator, a number of considerations are to be looked to, viz: the terms of the limitation itself, our statute relating to conveyances, and the nature of the duties the trustee is required to perform with respect to the property. If we look to the language of the limitation alone, without regard to our statute, or the character of the trusts under the will, we would say the trustee, prima facie, takes a mere life estate. This conclusion, of course, is based upon the omission of the word “heirs, ” in the limitation to the trustee. On the other hand,-if the word “heirs” had been used, the trustee would, prima facie, have taken the fee. But as will be abundantly shown' further on, the use or the omission of the word “heirs, ” in devises to trustees, is anything but conclusive on the subject, even by the common law. Its use or omission in any case only gives rise to a presumption which may be entirely overcome by other provisions of the instrument, and in this State the omission of the word, or any other words used in limiting a fee at common law, is wholly without significance, either in a deed or will. By virtue of the 13th section of our Conveyance act, every deed or will relating to lands in this State, although it does not contain the word “heirs, ” or other words heretofore used to limit a fee, must be construed and given the same force and effect that would he given to it by the common law if the word “heirs,” or other words used for a like purpose, were added. In this connection it is proper to advert to the well recognized principle that the validity, force, effect and construction of all records, deeds, contracts, or agreements relating to or affecting the title-of real property, without regard to where they were made, depend entirely on the law of the State where the property is situated, and, it is hardly necessary to add, wills form no exception to this general principle. 1 Jarman on Wills, 1; Richards v. Miller, 62 Ill. 417.

Applying the general principles to which we have called attention, and the provisions of our statute, to the will before us, it must, though made in another State, receive the same construction as if the. limitation had been to the trustee and his heirs, which of course would, prima facie, give him the fee. We say prima facie, for as already seen, in conveyances to trustees the use of words of inheritance by way of limitation does not necessarily pass the fee. Presumptively it does, but this presumption will be overcome where the exigencies of the trust will be satisfied with a less estate,—and this brings us to the inquiry whether an estate less than a fee will enable the trustee to perform the duties imposed upon him by the will. First, let us see what acts or duties to be performed by a trustee require the legal estate to be in him, for it is manifest there are certain duties and powers the performance of which requires an estate in the trustee. Such, for instance, is the case where the application of rents is given to the trustee, for no one could efficiently exercise such a right or power without having the control of the possession, which is, per se, an interest or an estate in land. (3 Jarman on Wills, 55, et seq.) Where, however, the trustee is not required to collect or pay over the rents, or perform any other duty respecting them, as, where the estate is given to him to the intent another shall have or enjoy the rents and profits, the latter will take the legal estate under the Statute of Uses, the trustee, in such case, being a mere devisee to uses. But the giving of a trustee the application of the rents does not necessarily confer on him the fee. The quantity of the estate in each case will depend upon the exigencies of the trust and the terms of the limitation. If required to collect and pay the rents for a definite period of time, or during the life of an individual, he will take an estate for years, or life, as the case may be; but where this duty is of indefinite duration he will take the fee. So even where the gift to the trustee is in general terms, without words of limitation, a direction to him to pay the testator’s debts, or legacies, or a specific sum in gross, he will, by implication or intendment of law, take the fee, otherwise he would have no indemnity in case of payment out of his own funds, and in the absence of any other fund out of which to make such payment he would be altogether without means to meet the requirements of the will. Abbott v. Essex, 18 How. 202; Doe on the demise of Willey et al. v. Holmes, 8 Term Rep. 1.

The language of the will in this last case is: “I give and bequeath my freehold house, with the appurtenances, etc., * * * and all the furniture thereto belonging, to Elizabeth Gibson, whom I make executrix of this my last will, she paying all my just debts, and funeral expenses, and legacies before mentioned, twelve months after my death. I likewise leave to the said E. Gibson all the rest and residue of my personal estate,” etc., and it was held the executrix, Elizabeth Gibson, took the fee in the land. It is to be specially noted in this case, the fact the executrix was given all the residue of the personal estate made no difference in the result. It was sufficient that the executrix might, under some contingency, be compelled to resort to the realty to meet the requirements of the will. This construction was originally adopted to protect the executor or trustee in paying such claims against the estate, and it is well settled the construction in question is not at all affected by the fact that upon a final administration of the effects of the testator the personal estate may prove sufficient, without resorting to the land, toliquidate all demands which the executor may be required under the will to pay. It is sufficient in such case the direction to the executor or trustee to pay the claims is absolute, and that he may, in some contingency, have to resort to the land for his own protection; and whether such contingency exists or not is always to be determined from the will itself, and not from subsequent events. (3 Jarman on Wills, 23-26.) And whether such debts or claims are made a charge on the land does not at all affect the construction of the will in this respect. Ibid. 24.

In the present case appellant concedes it may be necessary to sell part of the realty to pay legacies, and that in such event the trustee will have power to do so. If by this, counsel mean to say the trustee, in the event suggested, would, by virtue of the estate vested in him under the will, have the power to sell to pay legacies, that would,' in effect, be yielding the whole question, for the power to sell and convey land absolutely, is an incident of a fee simple estate, only. But if by this it is intended to assert, in the event a sale of a part of the realty should become necessary to pay legacies, the trustee would be able to do so by virtue of a mere power under the will, independently of the estate conferred on him, we confidently assert no authority can be found for the position, and certainly none has been cited. We do not wish by this to be understood as saying that a trustee could not be given a life or other less estate, only, and yet be clothed with a power to sell upon a given contingency, or that instances of this kind can not be found in the reported cases; but what we intended to say, and do say, is, no case can be found adopting such a construction where the limitations of the will are like the present. The construction suggested is never adopted, except where the estate of the trustee is expressly, or by necessary implication, limited to an estate for life, or for a term of years. In this case there is no foundation for such a claim, for in addition to the fact the will, by its very terms, is, under our statute, prima facie a gift in fee, it is manifest on the face of the instrument that the duties of the trustee do not cease upon the deaths of Stephen Hoyt Sargent and Abbie Hoyt Sanborn, the life beneficiaries. After their decease he is required to pay certain specified legacies, and for this purpose it is conceded it may be necessary to sell a part of the realty. In such cases, where there are no restrictive words, as is the case here, the settled construction is, the power to sell will be referred to the trustee’s interest or estate in the land, and for that purpose his estate will be construed as coextensive with the duty to sell, should it become necessary in carrying into effect the objects of the trust, which, of course, would require a fee. Where the will, as it does here, primei facie gives to the trustee an estate in fee, the question is not whether the estate given shall be enlarged to meet the exigencies of the trust, as it is in most of the cases where there has been any serious doubt, but the question is, shall this prima facie fee simple estate be cut down to a less estate, when it is conceded the trustee may have duties to perform in the .execution of the trust that no one can lawfully perform except the owner in fee, or some one acting by his express authority.

Jarman, in his valuable work on Wills, (volume 3, page 67,) after reviewing some of the cases relating to this subject, says: “The general rule now acted upon is, that where an estate is given to trustees, all the trusts must, prima facie, be performed by them by virtue or out of the estate vested in them; * * * for it would be a strange and artificial construction to hold, first, that the natural meaning of the words should be cut down because they would give an estate more extensive than the trust required, and then, when the trust does require the whole fee simple, that it must be supplied by way of power, defeating the estate of the subsequent devisees, and not out of the interest of the trustees. To rebut this prima facie construction, it must be shown on the face of the will what less estate of definite duration will enable the trustee to serve the trusts out of their interest, and not ly way of, power,—and this not according to subsequent events, but according to events possible at the testator’s death. ”

Had the will in this case simply required the trustees to pay over the net income of the estate to Mr. Sargent and Mrs. Sanborn during their lives, and his duties had terminated with their decease, it might well be contended that the prima facie fee was cut down to a life estate, on the ground so extensive an estate as the fee was not demanded by the exigencies of the trust. But such is not the case. The case of Goodtitle v. Maddern, 4 East, 496, is a strong case in support of the view the trustee in this case takes the fee. In that case, after certain specific bequests, the testator gave the residue of his estate, both real and personal, to his wife, directing her to sell the personal property to pay his debts, and that if it should not be sufficient for that purpose, then to sell certain real property. The question in the case was, whether upon the death of the testator, his wife, who survived him, took under the will a fee in the realty, and it was held she did, notwithstanding it was conceded, on the trial, the personal property was more than sufficient to pay the testator’s debts. Numerous other authorities might be cited to the same effect, but it is unnecessary to do so.

We think it clear, on reason and authority, the will in this case gives the fee to the trustee. There are other reasons apparent on the face of the will, not adverted to, which we think support the construction we place upon it, but will not stop to point them out, as the discussion on this branch of the case has already extended further than desirable.

With respect to the remaining question but little need be said. A recurrence to a few general principles ought to satisfactorily solve it. And first, it is to be observed the title to real property in trustees is subject to the same general laws of conveyance and transfer that control and govern it when vested in other persons. It passes by the same instrumentalities that it does in other cases. The trustee may convey it by any kind of a conveyance that would be operative to pass the title if no trust existed, even where such conveyance would be a direct breach of the trust, in which case, if the grantee takes with notice of the trust, he will, by operation of law, be converted into a trustee himself, and consequently will hold the estate subject to the rights of those beneficially. interested in it. If the fee is in the trustee, and he die without making any disposition of it, the estate devolves upon his heirs precisely as in other cases, in which event the heirs of course take the title subject to the trust. There is this diversity, however, in cases where the heirs take the estate absolutely, and where they take it clothed with a trust: In the latter case the title of the heirs is subject to be divested by the appointment of another trustee, where the instrument creating the trust so provides. The author of every trust has full power to provide .for the appointment of a successor or successors in trust, in case the original trustee or trustees refuse to act, die, remove into a foreign jurisdiction, or are removed by a court of competent jurisdiction. But where the author of the trust makes no provision, as is the case here, for the appointment of a new trustee, in any of the contingencies mentioned, and a vacancy occurs in the trusteeship, as it has in the present case, a court of general chancery jurisdiction, upon a proper bill filed for that purpose, may make the appointment. (1 Perry on Trusts, sec. 282; Golder et al. v. Bressler, 105 Ill. 419.) But such appointment does not, proprio vigore, confer the title upon the appointee, unless, by the statute of the State where the land lies, it is so provided. As the title of the trustee is not complete until he is clothed with the legal title, the decree, where the appointment is made by a court of chancery, usually directs the proper conveyance or conveyances to be made for that purpose. (Ibid. 284.) Conceding, for the purposes of the argument, a court of chancery or other court exercising like powers in a foreign State may entertain a bill or petition to appoint a trustee to hold lands in this State, and compel those having the legal title to convey it to the appointee, about which we express no opinion, it is nevertheless clear no decree could be entered there in such proceeding that would, of its own inherent force, transfer the title to the appointee, for it is well settled this can only be done in the jurisdiction where the land lies, and where there is a statute expressly authorizing it. Ibid. 72.

Upon the death of Stephen Hoyt, the testator, the title to this land devolved upon his heirs at law, subject to the trust. Had Frothingham, the trustee, accepted the trust, upon such acceptance the title to the land, by virtue of the laws of this State,—not of Massachusetts,—would at once have passed from Hoyt’s heirs to the trustee, and would have related back to the time of Hoyt’s death; but as the latter declined to accept the trust, the title continued in the heirs, and we are of opinion a fair construction of the various allegations of the bill in the case shows that the title is still in .the heirs. At any rate, it is not averred in the bill they have conveyed it to appellee, or any one through whom he claims, and if such were the fact, we must assume it would have been so averred. The claim in the bill is, that by virtue of the appointment of appellant by the Massachusetts court, and by operation of the statutes of that State, he became seized in fee of the land in controversy; but it is clear he could not acquire title to lands here, in that manner. The statutes of Massachusetts can have no power or influence in passing the title to lands here. All deeds, contracts and records relating to lands here, receive whatever force and vitality they have as muniments of title, from the laws of this State, without regard to where they were made. Take an ordinary deed for land here, executed in Massachusetts, in conformity with the laws of that State. Such deed, of course, is valid and operative as a conveyance in this State,—not, however, because the laws of Massachusetts' have any force here, but simply because our own legislature has declared that a deed thus made shall be valid and effective here.

We think it clear, from this record, appellee has failed to show he is seized in fee of the lands in controversy, as charged in the bill, and consequently he is not in a condition to make such a title to the appellant. Nor do we think it was competent for the Massachusetts court, by any kind of an order or decree it might enter, to clothe appellee with power to convey the land. That court could only act in personam. The outside limit of its powers would have been to have compelled those having the legal title to convey it to the trustee, after his appointment. But it is not pretended anything of this kind was done, and it is manifest there is nothing in our laws authorizing the transfer of the title to lands here in the manner claimed. This being so, it follows the demurrer to the bill should have been sustained, and it was error not to do so. •

The decree of the circuit court is reversed, and the cause remanded, with directions to that court to sustain the demurrer.

Decree reversed.

Mr. Justice Walker: I hold the will confers power on the first trustee to sell the property, but his successor has no such power.