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tion to set apart a fund to provide for the annuity was followed by another direction that after the annuitant's death the sum to be invested should fall into the residue. * Treating it as residue must have assisted the court in coming to the conclusion that nobody could take anything from that particular fund until every part of the annuity had been provided for. Here, a specific sum was to be set apart in order to provide for the annuity, and such sum is expressly given over, not as a residue, but as a particular fund, and by a separate and independent gift to the same persons as those to whom the general fund is given. It appears to me that I am bound by the authorities, as well as by the literal interpretation of the language of the will, to hold that this fund is not one out of which any arrears of annuity can be paid to the widow."

In Tarbottom v. Earle, 11 W. R. 680, a testator directed his trustees to invest a sum sufficient to pay £50 per annum to H. T., and on her marriage or death to divide the stocks, etc., from which the £50 should have been produced, equally among his nephews and nieces; the interest on the estate was insufficient to produce £50 per annum; it was held, on the construction of the will, that the deficiency could not be supplied out of the corpus. (Hindle v. Taylor, 20 Beav. 109; Bague v. Dumergue, 10 Hare, 447; Phillips v. Gutteridge, 32 L. J. Ch. 1; Birch v. Sherratt, L. R. 2 Ch. 644; Mason v. Robinson, L. R. 8 Ch. D. 411; Selfox v. Lugden, Johns. 234; Gee v. Mahood, L. R. 11 Ch. D. 891.)

We think that a careful study of all the cases will show the existence of the distinction here pointed out; that is to say: where the terms of the will show the intention of the testator to be, that, at the death of the annuitant, the entire fund set apart for the payment of the annuity shall pass to those who are to take after the death of the annuitant, then the corpus cannot be drawn upon to make up deficiencies in the annuity; the terms of the will in the case at bar show such an intention on

the part of the testator; but where the will provides, that the residue of the fund shall go to those who are to take after the death of the annuitant, or where it provides, that the fund shall be paid over "subject to" the payment of the annuity, or "after the payment" of the annuity, then the corpus will be liable for arrearages; there is no such provision in the will in the case at bar.

A will should be so construed as to give effect, if possible, to every part of it. To divide and partition the estate is a duty as much enjoined upon the trustees as the duty of paying an allowance to the widow. The division, which is directed to be made, is not a division of the residue of the estate after supplying deficiencies in the annuity; nor is it a division of the estate subject to the charge of the annuity. The division directed to be made is of the entire estate. There could not be a division of the entire estate, if a part of it had been exhausted in the payment of the allowance to the widow.

If the corpus of the present estate can be resorted to for the purpose of making up accruing deficiencies in the monthly or yearly allowance of the widow, then, in case she should live long enough, the whole of the capital might be exhausted and nothing would be left either for her or to be divided among the children. Such a result was manifestly not intended by the testator. In Baker v. Baker, 6 H. L. Cas. 616, the lord chancellor said: "According to the construction which is contended for, on behalf of the widow, this strange state of things would arise, that, supposing her life to continue for many years, the provision, which was clearly intended for her by the will, might, in the course of time, by appropriating annually a portion of the corpus of the property, be utterly annihilated, and she would be left without any provision at all." So also in Delaney v. Van Aulen, supra, the Court of Appeals of New York said, in reference to a construction which would take from the fund itself to make up a deficiency of annual avails: "Such a course

162 280 162 287

162 280

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might, in time, utterly annihilate the corpus and the bene-
ficiary be left without any provision at all; and,
therefore, nobody could suppose that such an intention
could have existed in the mind of the testator."

For the reasons stated we are unable to agree with the conclusion reached by the learned judges of the circuit and Appellate Courts.

Accordingly, the judgment of the Appellate Court and the decree of the circuit court are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.




Filed at Ottawa June 13, 1896.

SPECIAL ASSESSMENTS—for improvement of park boulevard cannot be divided into installments. A town ordinance passed prior to the act of 1895, (Laws of 1895, p. 286,) for the improvement of a park boulevard in pursuance of the plans and estimates of the park commissioners, cannot provide that the assessment be divided into installments, with interest upon deferred payments. (Culver v. People, 161 Ill. 89, followed.)

WRIT OF ERROR to the County Court of Cook county; the Hon. FRANK SCALES, Judge, presiding.

GEORGE W. WILBUR, (N. A. PARTRIDGE, of counsel,) for plaintiffs in error.

H. S. MECARTNEY, for defendant in error.

Mr. CHIEF JUSTICE MAGRUDER delivered the opinion of the court:

This is a proceeding for the improvement of Douglas boulevard instituted under the act of May 2, 1873, in regard to parks and boulevards. (2 Starr & Cur. Stat. 1708).

Having determined to improve that portion of Douglas boulevard extending east and west, and also that part of the north and south portion lying south of Colorado avenue, (or “Barry Point road,") the West Chicago Park Commissioners transmitted plans for such work to the authorities of the town of West Chicago, with a request for special assessment proceedings to pay the estimated cost. The town board passed an ordinance, the second section of which is as follows:

"Sec. 2. That said special assessment shall be divided into installments, and that the first of said installments shall be twenty per cent of the total amount of said assessment, and that the deferred installments shall bear interest at the rate of six per cent per annum, as provided by law."

The town filed a petition in the county court, asking that "said special assessment so to be made by such commissioners upon the contiguous property so fronting and abutting on said boulevard so to be improved, may be divided by the order of this court into installments, the first of which shall be twenty per cent of the total of said assessment so to be levied against each separate piece of property, lot or land, so abutting on said boulevard so to be improved, which installment of twenty per cent shall be due and payable on and after the date of confirmation of said special assessment, and that the remainder of the amounts so to be assessed shall be divided into four equal installments, payable annually thereafter."

Three commissioners were appointed, and an assessment roll was made and confirmed.

The judgment of confirmation "orders that said special tax shall be divided and payable by installments, the first of which installments shall be twenty per cent of the total amount of said special tax, and that the remaining portion of said special tax, after deducting said first installment, shall be divided into four equal annual in

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stallments, which installments shall be payable annually thereafter and collected in the same manner that other assessments are now collected; that each of said last mentioned four installments shall bear interest at the rate of six per cent per annum from the times and in the manner provided by law, and that the first above mentioned installment shall be due and payable from and after this date," etc.

The object of the present writ of error is to reverse the judgment of confirmation; and it is manifest that the judgment must be reversed, as it is invalid and unauthorized for the reasons stated in Culver v. People, 161 Ill. 89. The improvement here is the same as that mentioned in the Culver case, and the questions here involved are the same as those decided in that case. The decision there governs and disposes of the present case.

The judgment of the county court is accordingly reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein. expressed. Reversed and remanded.




Filed at Mt. Vernon June 12, 1896.

1. HOMESTEAD-how judgment debtor may avail himself of his right. A judgment debtor need not perform any act, or even manifest an intention, in order to avail himself of the benefits of his homestead exemption, and if sale of his homestead is made on execution, he may, by bill or otherwise, assert his right.

2. SAME claimant of, may assert his rights by motion. A claimant's right to a homestead may be asserted after levy by mot to stay the execution as to the homestead; and on the hearing of such motion, submission of the question to a jury, on oral evidence, whether there has been an abandonment of the homestead, will be sustained on appeal, where no exception questions the practice.

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