interest devised and void and the devise will be sustained free from the condition.

There have been cases sustaining conditions against alienation to a particular person, but the contrary was held in Jenne v. Jenne, 271 Ill. 526, where the testator by the twelfth clause of his will positively and absolutely forbade anyone who received any amount from his estate to present, give, donate or share up any part of the money to Samuel Senn or his wife, Bertha Senn, and if that should occur there was a devise over to the legal heirs of his three halfsisters in Germany. The court said that a testator can bequeath and devise property by will or not, as he sees fit, but if he makes an absolute gift of such property he cannot by another clause in his will restrict the free use or right to dispose of such gift.

In Potter v. Couch, supra, the testator devised his estate to executors in trust for twenty years and provided that no part of it should be sold or incumbered until the end of twenty years after his death, and no creditor, assignee or purchaser should be entitled to any part of the bounty given the persons named. A subsequent clause provided that in case any legatee should in any manner cease to be personally entitled to the devise or legacy intended for him, such share should go to his children, and in the absence of children to the testator's daughter and her heirs. The court held the limitation or devise over void because the right of alienation is an inherent and inseparable quality of an estate in fee simple, and therefore a condition against all alienation is void as repugnant to the estate devised, and a limitation over in case the first devisee shall alien is also void.

In Mandlebaum v. McDonnell, supra, the testator devised real estate which he directed should remain unsold until a certain devisee became twenty-five years old, or in case of his death it should not be sold for twenty-one years.

after the testator's death. The court held the estate devised was a fee simple absolute and the restrictions upon alienation were void, and that there is no difference whether there is a limitation over or not.

In Lunt v. Lunt, 108 Ill. 307, and Chapman v. Cheney, 191 id. 574, the question considered was whether devises were obnoxious to the rule against perpetuities, and it was held that the estate was vested and would ripen into a title in fee simple absolute in the future and being vested was not subject to the rule. In Christy v. Pulliam, 17 Ill. 59, the testator made a devise of lands to his wife with power to dispose of the same at her death to any person she might think best to live with her and take care of her. The devise was for her natural life, with power to convey a fee, at her discretion, to make provision for herself until her death. These cases have no relation to the question here, where the single question is whether the restraint upon alienation was valid or void.

It will be seen from the foregoing review of cases in this court that no distinction has ever been made between cases where the devisee was entirely prohibited from alienating his estate and cases where he was deprived of an essential quality of the estate for a limited time. Neither is there any distinction, on principle or authority, based upon the limitation over on a breach of the condition so that the testator designates who shall take the estate, or the want of such a limitation so that the estate goes to the testator's heirs. In fact, in Davis v. Hutchinson, 282 Ill. 523, where there was a restraint on alienation, the testator declared the legal consequence that the estate should descend to his heirs-at-law.

The decree is affirmed.

Decree affirmed.

Mr. JUSTICE THOMPSON took no part in this decision.

(No. 13303.-Judgment affirmed.)

THE JOHN M. SMYTH COMPANY, Appellee, vs. THE CITY OF CHICAGO, Appellant.

Opinion filed June 16, 1920-Rehearing denied October 8, 1920.

MUNICIPAL CORPORATIONS—When a city is bound to re-pay fund deposited to meet damages from vacation of streets and alleys—estoppel. Where a property owner is required to deposit in the city treasury a certain sum of money to meet all claims for damages arising from the vacation of portions of certain streets and alleys the city has no right to retain the fund after the Statute of Limitations has run against all such claims for damages, and in an action of assumpsit by the property owner to recover the money the city is estopped to urge the illegality of the ordinance for the vacation. (Lockwood & Strickland Co. v. City of Chicago, 279 Ill. 445, followed.)

APPEAL from the Superior Court of Cook county; the Hon. THEODORE BRENTANO, Judge, presiding.

SAMUEL A. ETTELSON, Corporation Counsel, (FRANK S. RIGHEIMER, HENRY T. CHACE, JR., and GILBERT G. OGDEN, of counsel,) for appellant.

DRUCKER & BOUTELL, ERNEST R. REICHMANN, (WILLIAM S. CORBIN, of counsel,) for appellee.

Mr. JUSTICE STONE delivered the opinion of the court: The appellee on March 1, 1919, instituted a suit in assumpsit to recover the sum of $9201.54 paid to the appellant under the terms of an ordinance passed by the city council of Chicago July 15, 1912. The ordinance provided for the vacation of certain parts of Cortland street and O'Brien avenue and the alleys connected therewith. Section 2 of the ordinance further provided that the appellee should within sixty days pay to the appellant the sum of $9201.54 "toward a fund for the payment and satisfaction of any and all claims for damages which may

arise from the vacation of said streets and alleys, and further shall, within sixty days after the passage of this ordinance, deposit in the city treasury of the city of Chicago a sum sufficient to defray all costs and expenses of constructing a sidewalk and curb across entrances to the streets and alleys herein vacated," etc. The defendant filed eight pleas to the declaration. The first was a plea of the general issue. The second, fifth, sixth, seventh and eighth were as to the operation of the Statute of Limitations, while the third and fourth pleas averred that the ordinance in question is illegal in that it was passed solely for the benefit of the appellee, plaintiff below, and that the money was paid by plaintiff with knowledge that the ordinance was invalid, and that therefore it is not entitled to have return of the amount paid. The plaintiff replied with a similiter to the first plea and demurred to the third and fourth pleas. The demurrers to these pleas were sustained, as was a demurrer to an additional plea filed under leave of court, containing, in substance, the same charge, whereupon defendant abided by said additional plea. A trial was had before a jury and judgment was rendered for the appellee in the sum of $9201.54, and appellant has brought the case here on appeal.

This case is very similar to the case of Lockwood & Strickland Co. v. City of Chicago, 279 Ill. 445. The record shows that the ordinance in question was passed on July 15, 1912, and under the rule laid down in the Lockwood case the Statute of Limitations had run in July, 1917, against claims for damages against the city for the vacating of said streets and alleys, and the statute thereupon began to run against the appellee. Its suit having been filed in 1919, however, was instituted before the Statute of Limitations had run, and, in fact, the appellant does not contend otherwise here. The holding in the Lockwood case is controlling unless the superior court erred in sustaining the demurrers to the pleas of appellant charging that the ordi

nance for vacation was illegal and therefore plaintiff had no right to recover the money paid by it.

We are of the opinion that the trial court did not err in sustaining the demurrers to the third, fourth and additional pleas. There is no doubt that appellant has power to vacate streets and alleys, and it cannot be heard in this case to say that it has exercised that power in an unauthorized or illegal manner. The money was deposited by the appellee in accordance with the ordinance passed by the city, which provided that it should become a "fund for the payment and satisfaction of any and all claims for damages which may arise from the vacation of said streets and alleys." The appellant, therefore, had the benefit of whatever assurance was to be obtained from the depositing of said fund. Had suits or claims been filed for damages by reason of the vacating of said streets and alleys, appellant had the funds deposited by appellee for the purpose of meeting such suits or claims, and since such claims can no longer be filed against it the city has no right to retain this fund.

In City of East St. Louis v. East St. Louis Gas Light and Coke Co. 98 Ill. 415, the city by ordinance made a contract with the gas company for the exclusive right to provide gas within that city and for the sale of gas to the city at a certain stipulated price. Upon suit to recover for gas used by the city under the contract the city raised the objection that the ordinance fixing the price and granting the gas company the exclusive right for thirty years was void. This court held that, regardless of whether or not the ordinance was void so far as the question of future performance under it was concerned, as the city had received and enjoyed the benefit of the contract it was not allowed to set up a void ordinance as a defense to the claim for payment for the gas consumed, citing 2 Parsons on Contracts, 790, where it is said: "A general rule has been asserted which certainly rests upon reason and justice. It is, that where a party has accepted and made his own