of the sale of the homestead and household goods, the will directs shall be devoted, so far as necessary, to the payment of the legacies specified in the will, and the balance to be appropriated to such persons or purposes as the wife of the testator shall have lawfully directed, by her will or in any other lawful manner, to receive it.

What has been said not only answers the contention referred to, but also the other insistence that the proceeds of the sale of the homestead and household goods will create a new fund which will have its inception after the other general fund has been distributed, and which is not devised or bequeathed to any one nor is any provision made for its disposition by the executor.

Nor are counsel correct in the position the will does not contemplate that the executor will, in any state of events after the death of the wife, hold any funds in his hands for any period of time longer than that required to pay or distribute it to the legatees mentioned in the will. The bequest to Phillipine Burmester cannot be paid at the death of the wife unless said Phillipine has then arrived at the age of eighteen years. Until that period occurs the executor must retain that portion of the fund in his hands. It may not occur for some time after the death of the appellant.

The chancellor correctly refused to regard the provisions of the will under consideration as void, and gave the proper construction to the instrument.

The decree is affirmed.

Decree affirmed.

INDEX.

ABATEMENT.

PAGE.

pendency of a suit for use of one person is not ground for
abating another suit on same cause of action by same
nominal plaintiff but for a different usee........

.......

155

if parties go to trial on plea in abatement and the defend-
ant is defeated, nothing remains to be done but to ascer-
tain the amount which plaintiff is entitled to recover... 155
if the defendant is in default on all issues except a plea in
abatement, on which he is defeated, he can only partici-
pate to the extent of reducing the plaintiff's recovery.. 156
ABSTRACT OF TITLE.
abstract of title is admissible, in connection with testimony
of attorney who examined it, to show that the purchaser
relied on the record in good faith..

.. 175.

94

ACTIONS AND DEFENSES.-See RIGHTS AND REMEDIES.
in tort it is proper for the court to enter judgment against
one defendant and grant a new trial and permit dismissal
against others, even though verdict was against all..... 58
in action for damages for accidental death it is necessary
to allege and prove that deceased left surviving a hus-
band or wife or next of kin.....................
omission of allegation in action for death that deceased
left a surviving husband or wife or next of kin cannot be
supplied by an amendment two years after the injury... 94
elements necessary to authorize a recovery by servant for
injury received from defective appliance....
pendency of a suit for use of one person is not ground for
abating another suit on the same cause of action by the
same nominal plaintiff but for a different usee
insurance agent's knowledge of the falsity of answers by
the insured to questions contained in his application will
permit a recovery on the policy.. ....

..........

117

155

..... 167

in action for negligence, if reasonable minds would draw
different conclusions from the evidence the court should
not take the case from the jury.......

... 236

effect of failure of writ of attachment to state its grounds. 246

ACTIONS AND DEFENSES.-Continued.

PAGE.

assigned mortgage is subject to equitable defenses existing
between the original parties but not to latent equities
of third persons........

....

what does not justify administrator's refusal to pay over
funds to his successor....
administrator's appointment cannot be questioned in a col-
lateral proceeding......

249

290

.... 290

when rule that the State cannot be made defendant to suit
has no application....

.... 410

when State court may properly decline to delay cause until
termination of suit in Federal court....

424

493

... 528

when information in the nature of quo warranto should not
be deemed a private suit... . . .
duty of assessing capital stock and franchises of corpora-
tions is mandatory, and its performance may be enforced
by mandamus when omitted or evaded
adjournment by board of equalization pending application
for mandamus does not deprive the court of power to com-
mand it to re-convene and assess the omitted property.. 529
where the duty sought to be enforced by mandamus is of a
public nature, imposed by law, there is no necessity for
a specific demand and refusal.....
ADMINISTRATION.-See EXECUTORS AND ADMINISTRA-

TORS.

529

section 70 of Administration act, providing that claims not
presented in two years shall be barred, explained ...... 356
fact that suit is pending against party at time of his death
does not amount to an exhibition of the claim or demand
against the estate......

356

knowledge by executors that a suit was pending at time of
testator's death does not take the case out of the opera-
tion of section 70 of Administration act..........
effect where claim against an estate is not of a character
cognizable by the county court...

356

356

when claim is not a contingent one.

356

when decree allowing claim cannot be against inventoried
assets......

356

ADVANCEMENTS.

the fact that advancements were made, and the amounts
thereof, must be established by extrinsic evidence, if the
will leaves such matters uncertain............
when declarations by testator concerning advancements
to his son are inadmissible.....

... 628

628

when no presumption can arise that a son destroyed evi-
dence of advancements by his father....

628

AGENCY.-See PRINCIPAL AND AGENT.

AGREED FACTS.

PAGE.

that the evidentiary facts in a case are agreed upon does
not excuse Appellate Court from reciting the ultimate
facts in its judgment, as required by the Practice act... 75
facts need not be recited in Appellate Court's judgment if
the ultimate facts have been agreed upon................

75

a stipulation of facts in a suit by the husband of the tes-
tatrix against her minor heirs, to construe the will, is not
binding on such heirs....

100

AGREEMENTS.-See CONTRACTS.

ALIMONY.

one attached for contempt in not paying alimony must
show that, acting in good faith, he has been unable to
comply with the terms of the decree....

416

unpaid alimony is not a debt which may be discharged by
an order in bankruptcy proceedings....

416

ALTERED INSTRUMENTS.

when alteration of note amounts to a forgery....

136

subsequent alteration of complete note discharges maker. 136
when maker is liable upon raised note.....

note for "......hundred dollars" is not a note for one hun-
dred dollars, but is incomplete.....

136

.... 136

mere negligence by the purchaser of a note does not de-
prive him of his character as a bona fide holder.......... 136
effect of alteration of marginal figures of note.....

136

AMENDMENT.

omission of allegation in action for death that deceased
left a surviving husband or wife or next of kin cannot be
supplied by amendment two years after the injury.
when defect in pleading is not cured by verdict......

ANNEXATION.-See MUNICIPAL CORPORATIONS.

APPEALS AND ERRORS.

if a will disposes of a fee, an appeal from an order of the
circuit court refusing probate and dismissing the peti-
tion lies to the Supreme Court, as a freehold is involved. 97
statement in instructions as to what was charged in dis-
missed counts is surplusage, and is not reversible error
if instructions clearly state such counts were dismissed. 104
when instruction does not authorize recovery on dismissed
count of the declaration......

.... 104

APPEALS AND ERRORS.-Continued.

PAGE.

.... 137

156

if note is not preserved for inspection, Supreme Court can
not say whether trial court erred in admitting it, with-
out explanatory proof of alleged apparent alterations.. 136
instructions which leave questions of implied knowledge
and authority to the jury are erroneous.....
failure to enter a formal default as on partial defense is
merely technical, and if an objection is not made in the
trial court it cannot be raised on appeal..........................
when instruction as to credibility of witness is proper..... 199
an objection that grand jury was irregularly constituted is
not preserved for review, on appeal, by motion to quash
indictment because “it is wholly insufficient in law”............ 272
one cannot avail of error in his own favor. ....
appeal lies to Supreme Court if the State is interested, not-
withstanding the provision of section 8 of the Appellate
Court act as amended in 1887.......

272

... 326

the State is interested in suits relating to the Illinois and
Michigan canal.. ....

326

rule as to amount involved in mechanic's lien appeal.............. 372
when allowance of mechanic's lien will stand on appeal... 372
no appeal lies from order of a circuit judge refusing to dis-
solve injunction in vacation.......

389

act of June 14, 1887, allowing appeals from interlocutory
orders, applies only to orders entered in term time...... 389
effect where Appellate Court reverses without remanding
or reciting the facts in its judgment......
439
amount involved, on appeal, is the amount to be disposed of
by the judgment or decree, and not the amount affected
by the error assigned.....
.... 478
allegation of counsel that a constitutional question is in-
volved does not confer jurisdiction on Supreme Court... 524
when construction of constitution is not involved......
on affirming a judgment awarding mandamus, the Supreme
Court need not fix date of return of writ....
alleged errors not urged in motion for new trial are waived. 594

.....

....

....

ASSESSMENT COMPANIES.-See BENEFIT SOCIETIES.

ASSESSMENT FOR TAXATION.-See TAXES.

ASSIGNMENT.

524

... 529

word "claim" construed, as used in a deed of assignment.. 181
assigned mortgage is subject to equitable defenses existing
between the original parties, but not to latent equities
of third persons..

249

when assignee of mortgage is protected against payments
made by purchasers of the property to the mortgagee,
believing he still owned the mortgage....

249