$938.86 were rendered against the defendants. This judg ment has been affirmed by the Appellate Court for the Third District, and the cause is brought to this court upon a certificate of importance granted by the Appellate Court. Without stopping to consider whether the question involved was properly raised by a motion to quash the return instead of a plea in abatement, we are disposed to regard the question as properly presented and determine the question of jurisdiction, which was the basis of the certificate of importance granted by the Appellate Court.

Section 13 of the Practice act of 1907 provides as follows: "A co-partnership, the members of which are all non-residents, but having a place or places of business in any county of this State in which suit may be instituted, may be sued by the usual and ordinary name which it has assumed and under which it is doing business and service of process may be had in such county upon such copartnership by serving the same upon any agent of said co-partnership within this State." Section 6 of the Practice act of 1907 is the same as section 2 of the old Practice act, with an amendment added providing against the use of dummy defendants to obtain jurisdiction of non-resident defendants. That section provides that "it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found," etc.

Appellants contend that, construing sections 6 and 13. together, the word "non-residents" found in section 13 should be held to mean persons who are not residents of the State; that to construe those words as including a copartnership the members of which were all non-residents of the county in which the suit was brought, would, in effect, deprive appellants of the right to be sued in the county in which they reside, which is given by section 6 of said act. The whole controversy turns on the meaning of the word "non-residents" in section 13 of our present Practice act. A non-resident is a person who is not a resident of a par

ticular place. The term may be used indiscriminately to describe one who does not reside in a particular country or State or county, or any of the smaller subdivisions of territory made for governmental purposes. The word may as well refer to one not residing in a county as to one who resides beyond the boundaries of the State. (Gardner v. Girtin, 69 Ill. App. 422; Gardner v. Meeker, 169 Ill. 40.) It must be presumed that the legislature intended to give litigants some substantial and additional right by passing section 13. If, as appellants contend, service can only be had under said section upon the members of a co-partnership all of whom are non-residents of the State, there would be no substantial difference in proceeding under said section and under our Attachment act, which provides a means by which the property of non-resident defendants in this State. may be made subject to their debts. It is a matter of common knowledge that many co-partnerships, especially those engaged in dealing in grain, coal, lumber and other like commodities, transact business in many of the counties of the State other than the county where the partners reside, and that such business is transacted by establishing agents in the different counties where its business is carried on. Prior to the enactment of section 13 a plaintiff residing in Alexander county having a claim against a partnership all of the members of which resided in Cook county was compelled to bring his suit in Cook county because the members of the firm resided there and could not be sued out of the county of their residence, notwithstanding the litigation grew out of a transaction with an agent in Alexander county and all of the witnesses thereto also resided. in such county. It has long been the law of this State that a corporation could be sued and jurisdiction obtained in any county in the State and service had upon an agent of such corporation. We think that the intention of the legislature in passing section 13 was to place co-partnerships upon a basis somewhat similar to corporations.

The court below had jurisdiction of the persons of appellants, and there is no error in the judgment of the Appellate Court affirming the judgment of the lower court. Judgment affirmed.

CHARLES C. HEISEN, Defendant in Error, vs. A. C. ELLIS, JR., et al. (VIOLET HAMBLY, Plaintiff in Error.)

Opinion filed December 21, 1910.

I. WILLS-testator's intention should not be given effect if it violates the rule against perpetuities. If the testator has by the language used in the will attempted to create an estate which is in violation of the rule against perpetuities, courts are not justified in frittering away such rule by construction in order to give effect to the intention of the testator, but the entire will must be considered in ascertaining the testator's intention.

2. SAME of two possible constructions, the one upholding the will is preferred. If the language of a will is susceptible of two constructions, one of which will render the will valid and the other render it void, the former construction will be adopted if it can be done without defeating the intention of the testator.

3. SAME when executors take as executors and not as trustees. Under a residuary clause of a will providing that all the rest and residue of the testator's estate after the payment of bequests shall go to the executors, to be held by them in trust for the purpose of assigning, transferring, conveying and delivering the same to the regents of a named university as a perpetual endowment fund, the executors take as executors and not as trustees, and exercise their powers and duties with reference to the property in their capacity

as executors.

4. SAME when will does not violate rule against perpetuitics. Where a residuary clause provides that "the rest, residue and remainder of my estate, both real and personal and wherever situated, after the payment of said bequests as aforesaid, I give, devise and bequeath unto the executors of this my last will and testament hereinafter named," etc., the title vests in the executors immediately, subject to the payment of the bequests, as the words "after the payment of said bequests" refer to the quantum of the estate devised and not to the time when title shall vest. Preston, 226 Ill. 447, distinguished.)

(Johnson v.

WRIT OF ERROR to the Superior Court of Cook county; the Hon. ARTHUR H. CHETLAIN, Judge, presiding.

ROBERT F. KOLB, for plaintiff in error.

LACKNER, BUTZ & MILLER, for defendant in error.

Mr. JUSTICE FARMER delivered the opinion of the court: Defendant in error, Charles C. Heisen, filed his bill in chancery against A. C. Ellis, Jr., and Lewis B. McCornick, as executors of the last will and testament of Jennie D. Thompson, deceased, and Lackner, Butz & Miller, their agents and attorneys in fact, praying an injunction restraining them from forfeiting a certain lease held by complainant to certain premises on Dearborn street, in the city of Chicago. The bill alleged that the complainant leased the premises May 1, 1891, from Mary Young, the then owner, for a term of ninety-nine years, at an annual rental of $3000, payable in quarterly installments on the first day of May, August, November and February of each year; that complainant took possession of the premises and afterwards Mary Young died and Jennie D. Thompson became seized and possessed of said real estate; that about October 29, 1907, the said Jennie D. Thompson died leaving a will, in which Ellis and McCornick were named as executors, but the original bill alleged the will had not been probated and no letters testamentary had been issued thereon. The bill alleged that Lackner, Butz & Miller, acting as agents and attorneys for Ellis and McCornick, about October 16, 1909, served a written notice on complainant declaring his lease had been forfeited by reason of his default in the payment of the quarterly installment of rent due August 1, 1909, and on the same day said agents and attorneys demanded immediate possession of the premises and began forcible detainer proceedings therefor in the municipal court of the city of Chicago. The bill alleged that the lease provided

for forfeiture, without demand or notice, for default in the payment of rent for thirty days, but further alleged that all rent had been paid to August 1, 1909, and that many payments had been made after the time stipulated in the lease and the lessor and executors had never sought to forfeit it because of a failure to pay the rent in accordance with the provisions of the lease; that they never intimated they would take advantage of said clause, but by repeatedly accepting payment long after it became due they induced complainant to believe no advantage would be taken of his failure to pay the rent promptly according to the terms of the lease, and thereby induced him to exercise less vigilance and promptness in the payment of rent than he would otherwise have exercised; that his failure to pay the rent was not willful but was due to inadvertence and oversight and to the long continued custom between the parties. The bill alleged the complainant had tendered the rent due, with interest thereon from the time it became due; that it had been refused by defendants, and the complainant brought it into court and made tender thereof. The bill further alleged complainant was preparing to erect a twenty-story building upon the premises; that he was then having plans drawn and excavations for the foundations made, had entered into a contract for the razing of the old building on the said premises and the erection of a new one, and had arranged for a loan of $1,500,000 therefor, at an expense of $6800, most, if not all, of which facts defendants knew. The executors and Lackner, Butz & Miller were duly served with process and filed their answer. Afterwards, on March 7, 1910, Heisen filed an amended bill, in which he alleged that the will of Jennie D. Thompson was duly admitted to probate in the county of Salt Lake, Utah, November 23, 1907, and letters testamentary issued to Ellis and McCornick; that a duly authenticated copy of the will was filed in the probate court of Cook county, Illinois, February 18, 1908. The will is set out in the bill. The will, which will