487 We think the above cases state a sound rule, and one which sound public policy and the greater weight of authority alike demand shall be adhered to.

There is another insuperable reason why the warrants here in question cannot be deemed or held to be commercial paper. They were given for work done under the local improvement act of 1897 and payable out of special assessments, and so state upon their face. By sections 73 and 90 of that act the contractor or other person holding such warrants has no claim against the municipality issuing them, other than the fund arising from the assessments that may be collected. "Instruments drawn upon a particular fund, whether the fund has already accrued or is to accrue in the future, are not negotiable bills or notes, since they do not carry the general personal credit of the maker and since they are contingent upon the sufficiency of the fund upon which they are drawn": 4 Am. & Eng. Ency. of Law, 2d ed., 87, and authorities there cited. It is needless to extend this opinion or to further cite authorities upon this last proposition, as they are very numerous and entirely uniform.

The judgment of the appellate court and the decree of the superior court are reversed and the cause remanded to the superior court, with directions to that court to dismiss the intervening petition of appellee, and to make such order with reference to the ownership of said warrants as shall conform to this opinion and as justice and equity may require.

HAND, J., dissenting. I think the warrants in question were so far negotiable as to vest title in the Austin State Bank against all persons except the town of Cicero. To hold otherwise would be to impair the commercial value of such warrants, and increase the cost to the property owner of all local improvements in municipalities in this state.

The Misapplication by a Partner of partnership property to the payment of his individual debt is considered in the note to Davis v. Atkinson, 7 Am. St. Rep. 377-380. The general rule is, that a payment of partnership money to satisfy the personal debt of one partner, if made to a person without notice of the source from which it came, does not entitle the firm or any of its members to recover such money. It is otherwise, however, if the payment was received with such notice: Babcock v. Standish, 53 N. J. Eq. 376, 51 Am. St. Rep. 633; Davis v. Atkinson, 124 Ill. 474, 7 Am. St. Rep. 373. See, too, Holmes v. Gilman, 138 N. Y. 369, 34 Am. St. Rep. 463; Oliphant v. Markham, 79 Tex. 543, 23 Am. St. Rep. 363.

On the Negotiability of Municipal Warrants, see First Nat. Bank v. Gates, 66 Kan. 505, 97 Am. St. Rep. 383; Fidelity Trust Co. v. Palmer, 22 Wash. 473, 79 Am. St. Rep. 953, and cases cited in the cross-reference note thereto.

GERBRICH v. FREITAG.

[213 Ill. 552, 73 N. E. 338.]

WILLS-Joint.-Two persons may at the same time unite their wills in a single instrument, if it is such that it may take effect upon the death of one of the partics, so far as it relates to the property of that one. (p. 235.)

WILLS-Joint-Husband and Wife.-The fact that husband and wife devise their property reciprocally to each other by the same instrument, or that it is a joint or mutual will, does not deprive it of validity if the will can be given effect on the death of either so far as the property of that one is concerned. If it is of that character it may be probated upon the death of one as his or her separate will, and, upon the death of the other, can be again proved as the separate will of the other. (p. 235.)

WILLS-Joint.-Unless Provisions of an instrument executed by two persons jointly as their will are such that the disposition of the property is suspended after the death of one until the death of the other, so that it cannot be executed as the separate will of the deceased, it is no objection that the will of both constitutes but one instrument. (p. 236.)

WILLS-Joint-Husband and Wife.-An instrument executed by husband and wife as their joint will, by which each devised his or her property, with the provision that each parcel of land should pass into the hands of devisees at the death of the owner, subject to the requirement that such devisee was to pay to the survivor during his or her natural life the current rate of rent per acre, as well as the taxes and interest on the mortgage, passes a beneficial interest in the land to the survivor, which vests at the death of the owner, and is, in effect, two separate wills, which may be probated separately as the will of each maker, and therefore valid. (p. 236.)

Livingston & Bach, for the appellant.

E. E. Donnelly, for the appellee.

554 CARTWRIGHT, J. An instrument in writing executed by Ulrich VonGans and Hannah VonGans, husband and wife, was offered for probate in the county court of McLean county as the will of said Hannah Von Gans, who died February 15, 1903, leaving surviving her, her said husband, Ulrich VonGans, five children by her former husband, Freitag, and Henrietta Ernestine VonGans, named in the instrument as the daughter of said Ulrich and Hannah. Appellant, who is one of the children of the former marriage and who was given by the instrument one dollar, with the statement that she had received other valuable consideration in advance, objected to the probate of the instrument as a will, both because it was not executed according to law and because it was not such an instrument as could be probated as

the will of Hannah VonGans. The county court admitted the will to probate, and appellant appealed to the circuit court, where it was again admitted to probate, and this is an appeal from the order of the circuit court.

The objection made in the instrument is that it is a joint will, incapable of being probated as the will of Hannah VonGans while the other maker, Ulrich VonGans, is living. Two 555 persons may at the same time execute separate wills disposing of their property, and there is no legal objection to uniting the wills in a single instrument if it is such that it may take effect upon the death of one of the parties so far as it relates to the property of that one. The fact that husband and wife devise their property reciprocally to each other by the same instrument, or that it is a joint or mutual will, does not deprive it of validity if the will can be given effect on the death of either so far as the property of that one is concerned. If it is of that character it may be probated upon the death of one as his or her separate will, and upon the death of the other can be again proved as the separate will of the other. Unless the provisions of the instrument are such that the disposition of the property is suspended after the death of one until the death of the other, so that it cannot be executed as the separate will of the deceased party, it is no objection that there is but a single instrument: In re Davis, 120 N. C. 9, 58 Am. St. Rep. 771, 26 S. E. 636, 38 L. R. A. 289; Betts v. Harper, 39 Ohio St. 639, 48 Am. Rep. 477; Estate of Cawley, 136 Pa. St. 628, 20 Atl. 567, 10 L. R. A. 93; Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751.

In this case the instrument was declared by the parties to be their joint last will and testament. Hannah VonGans was the owner of two hundred and eighty acres of land, and also of an undivided one-half of one hundred and nineteen acres of which she and her husband, Ulrich VonGans, were tenants in common, he owning the other undivided one-half. These lands were their only property. The will provided that the just debts and funeral expenses of the makers should be paid, including a mortgage for ten thousand dollars on the lands, and directed that the five children to whom the lands were devised should each assume the sum of two thousand dollars, or such equalized portion of the mortgage as might remain unpaid at the time of their death. The lands were devised to four of the children of Hannah VonGans, excluding appellant, and to Henrietta Ernestine VonGans, in tracts of eighty acres each,

except one tract which was seventy-nine acres. One of the daughters was to pay to John Freitag, one of the sons, a note 556 given to the testator and testatrix for cash loaned to her husband. The will contained the following provision: "Each parcel of said land to pass into the possession of our devisees at our, one or the other, demise, and each devisee to pay the survivor a current rate of rent per acre on said land so devised during his or her natural life, together with the taxes, interest on mortgage," etc.

The will was written by a friend of the parties who had been in the grocery business and who was unskilled in such matters. They had been in the habit of trading with him, and he wrote the will from deeds furnished by them. While the forms of expression used are not the same as would have been employed by one more experienced in writing wills, we find no especial difficulty in determining the intent of the parties. By the will each one devised his or her own property, with the provision that each parcel should pass into the hands of the devisees at the death of the owner, but such devisee was to pay to the survivor, during his or her natural life, the current rate of rent per acre, as well as the taxes and interest on the mortgage. The possession being subject to the payment of the current rate of rent, together with the taxes and interest on the mortgage or such part as might remain unpaid, the survivor would be entitled to the full beneficial use of the land for his or her life. That beneficial use in the lands devised by Hannah VonGans became vested in Ulrich VonGans upon her death, and it would only come to an end and the land be freed from the rent charge upon his death. There is nothing in these provisions which suspended the disposition of the property or the operation of the will until the death of Ulrich VonGans, but the instrument is, in effect, two distinct wills, which may be probated separately and be successively proved as the separate will of each maker.

It is claimed that the proof did not show a legal execution of the will. The evidence was that the makers of the will were Germans but they understood English. The person 557 who drew the will read it to them in English and also explained it in German. He called in the witnesses, and asked the makers if they were satisfactory and if they should sign as witnesses, and the makers gave their assent by nodding their heads. The makers of the will took it away with them

and kept it six or seven years and the evidence sufficiently proves that they understood its contents and executed it in accordance with the law.

Appellant offered the testimony of herself and her husband that one of the witnesses testified differently on the application to probate the will in the county court from his testimony in the circuit court as to whether the will was signed before he was called in as a witness. An objection to the offer was sustained. If this testimony had been admitted it could not have affected the result. In fact, appellant proved by a third subscribing witness to the will that the man who drew it called the witnesses into the room and introduced them to the testator and testatrix and stated that they had drawn their will and wanted the witnesses to acknowledge it, and they nodded their assent. Appellant also offered to prove by Ulrich VonGans that after the will was drawn and presented to him for signature he refused to sign until he was assured he was to receive the property in case of his wife's prior death. Ulrich VonGans was not present at the trial, but the objection was not upon that ground, and it is insisted that the court erred in refusing to entertain the offer. The question whether any fraud was practiced upon Ulrich Von Gans was not involved in the offer to probate the will of Hannah VonGans, and the offered evidence would not tend to prove that she was deceived in any manner. Besides, as we interpret the will, it gave him the full beneficial use of the property during his lifetime, and he was not deceived if that representation was made to him.

The judgment of the circuit court is affirmed.

Joint Wills are discussed, in respect to their validity and effect, in the note to Lewis v. Scofield, 68 Am. Dec. 407-410. It is said in Walker v. Walker, 14 Ohio St. 157, 82 Am. Dec. 474, that a joint will is unknown to the testamentary law of this country. But in Betts v. Harper, 39 Ohio St. 639, 48 Am. Rep. 477, it is held that tenants in common of land, owning personal property in severalty, may make a joint will disposing of all their property severably, which will take effect on the death of all. And in În re Davis' Will, 120 N. C. 9, 58 Am. St. Rep. 771, it is held that a paper purporting to be the joint will of the two persons executing it as such, and whereby they devise and bequeath property to a third person, cannot, upon the death of one, be proved as the will of both, but may be probated as the will of the decedent.