*

*

* *

during

by the testator is carefully to be considered. After providing that they are to take possession only after the death of the son, the paragraph proceeds: "In the meantime * he, my said son, shall have the full use and enjoyment, in possession, of all my lands his natural life," that is to say, during the time intervening between the time when the trustee shall have delivered possession on his compliance with the conditions prescribed by the will and the time of the death of the son and the taking possession by the grandchildren, the son is to have the full use and enjoyment in possession, of the property. The testator was then, in this part of the paragraph, dealing with the beneficial use of the property in possession and fixing bounds to the time of its enjoyment. Having given the title to the grandchildren and limited their possession to begin only after the son's death, he then declared that in the meantime his son shall have it. Is it not perfectly clear that the testator understood that he had fixed a time when the grandchildren should come into possession? If not, why did he say that in the meantime the son should have it, and why did he make no provision on that subject in any of the clauses of the proviso? It should be borne in mind that the proviso was intended to qualify or limit the principal clause of the paragraph and not to override or supersede it, and the whole paragraph should be construed so as to give effect to all its parts according to the intention of the testator, if that can be done in accordance with the rules of law. We think such a construction as we have given the seventh paragraph will carry into effect the intention of the testator except as to the last clause of the proviso, and as to that the intention is plain, but being in conflict with the rule against remoteness, that part, only, is void.

The construction we have given this paragraph accords with the construction given to a will somewhat similar, in Friedman v. Steiner, 107 Ill. 125, where it was

held that an estate otherwise devised in fee simple was by the proviso reduced to a fee determinable. It was there said, that "one of the peculiarities of a fee determinable is, that it may become a fee simple absolute upon the happening of any event which renders impossible the event or combination of events upon which such estate is to end." So in the case at bar, when a grandchild shall reach the age of thirty years it will be no longer possible for him to die under thirty, and the fee determinable of which he was before seized becomes a fee simple absolute. See, also, Lombard v. Witbeck, 173 Ill. 396.

The eighth, ninth, and the first clause of the tenth, paragraphs of the will, all of which paragraphs were also declared void by the decree below as being dependent on said seventh paragraph, are as follows:

“Eighth-In the event that my said son shall die without leaving lawful issue or descendants of such lawful issue him surviving, I give and devise to Mary M. Tesse all of section 2, in town 11, north, in range 4, west, in Christian county, Illinois, or in the event of her death prior to the death of my said son, said land shall go to her child or children or to the descendants of such child or children, if any such there then shall be; but her interest or estate in said land hereby created contingent shall not pass to her heirs-at-law.

"Ninth I give and devise to Catherine M. Tesse all of section 3, in town 11, north, in range 4, west, in Christian county, Illinois, under the same conditions, in like manner and subject in all things to the same limitations set forth in paragraph eight above. The said Mary M. Tesse and Catherine M. Tesse are sisters. They are the children of Anna C. Tesse, deceased, who was the daughter of Edward A. D'Arcy, deceased.

“Tenth-In the case of the death of my said son without leaving lawful issue or the descendants of such issue, such event will exterminate my descendants; and in the event of the death of my said son without leaving lawful

issue or the descendants of such issue, I direct and expressly provide that all the remainder of my property, both real and personal, including the balance of my land in Christian county, shall be appropriated, dedicated and set apart for the purpose of assisting young men in Jersey and Christian counties, in Illinois, in acquiring higher education."

The tenth paragraph also directed that a board of trustees be appointed by the circuit court of Jersey county to administer said charitable trust created by said paragraph. The thirteenth and fourteenth paragraphs appointed the appellant executor and trustee to execute and carry out the provisions of the will, and provided for the appointment of his successor, and contained directions as to the bond to be given. The fifteenth, declared void by the decree, provided for compensation to the executor and trustee. In view of the construction we have given the seventh paragraph we think it unnecessary at this time to consider the further question discussed by counsel,—that is, whether said paragraphs were or not dependent upon said seventh paragraph, and without which the testator did not intend they should operate as a part of his will; nor to consider whether said charitable trust would come into existence or effect in case of the extinction of his descendants, by death, before thirty, and, after appellee's death, of all grandchildren, that is, all children which may be born to the appellee. It will be time enough to consider that contingency (which may never happen) when it arises. It is sufficient to say, that from the construction we give them and the whole will we find no part of the will void for remoteness except the last clause of the proviso to the seventh paragraph before mentioned. As we understand the decree and the arguments of counsel, all the paragraphs except the seventh, declared by the decree to be void for remoteness, were so decreed to be void because they were dependent on said seventh paragraph, which,

as it was held, was in conflict with the rule against perpetuities, and that it was not held or contended that they were of themselves invalid.

The decree will be reversed and the cause remanded to the circuit court, with directions to enter a decree in accordance with the views we have expressed.

Reversed and remanded, with directions.

THE ILLINOIS CENTRAL RAILROAD COMPANY

บ.

LAURA B. JOHNSON, Admx.

Opinion filed October 24, 1901.

PRACTICE―alleged errors not urged in motion for new trial are waived. Under section 56 of the Practice act, where a party files a written motion for a new trial specifying the grounds of such motion, he will be restricted, in a court of review, to the grounds so specified, and all other grounds are waived.

Illinois Central Railroad Co. v. Johnson, 95 Ill. App. 54, affirmed.

APPEAL from the Appellate Court for the Fourth District;-heard in that court on appeal from the Circuit Court of Marion county; the Hon. SAMUEL L. DWIGHT, Judge, presiding.

WILLIAM H. GREEN, (J. M. DICKINSON, of counsel,) for appellant.

W. F. BUNDY, and FRANK F. NOLEMAN, for appellee.

Mr. JUSTICE BOGGS delivered the opinion of the court: On the 22d day of November, 1899, one Zeddie C. Johnson, while engaged in the discharge of his duty as an employee of the appellant company in the capacity of a switchman, in the yards of the company in Centralia, fell or was thrown under the wheels of a moving freight car and sustained injuries which resulted in his immediate

death. The appellee, as administratrix of his estate, instituted in the circuit court of Marion county an action on the case to recover damages under the provisions of the statute for the benefit of his widow and next of kin, on the theory his death was occasioned by actionable negligence on the part of the appellant company. Upon a trial before a jury judgment was rendered against the company in the sum of $4000, and on appeal to the Appellate Court for the Fourth District the judgment was affirmed. This is a further appeal prosecuted by the appellant company to reverse the judgment.

Appellant contends that on the hearing in the circuit court no evidence whatever was produced showing the exercise of any degree of care whatever by the deceased, and that the attempt to show he was inexperienced, and therefore, in some degree, at least, exempt from the necessity of exercising care and caution, failed for a total lack of evidence to support it, and that evidence of negligence on the part of the appellant or any of its servants was wholly wanting. It is therefore urged we should reverse the judgment for the reason the circuit court refused to grant a peremptory instruction, presented in behalf of the appellant company at the close of all the evidence, to direct the jury to find the appellant company not guilty. Counsel for appellee insist the record does not bring before us the question whether the court erred in its ruling with reference to the said peremptory instruction, for the reason that the appellant company filed its motion for new trial in writing, in which it particularly specified the points or grounds relied on to entitle it to a re-trial, and did not in such motion specify the refusal of the court to grant the peremptory instruction as one of the points or grounds for such new trial.

It appears from the record counsel for appellant objected to the action of the court in refusing to grant the peremptory instruction, and excepted to such action of the court at the time the same was had and taken, and