Opinion of the Court.

WRIT OF ERROR to the Circuit Court of Peoria County; the Hon. S. D. PUTERBAUGH, Judge, presiding.

Mr. H. GROVE, COOPER & Moss, and F. W. VOIGT, for the plaintiff in error.

Messrs. INGERSOLL & MCCUNE, for the defendant in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of assumpsit brought by Stowell against Lincoln, to recover for services claimed to have been rendered by the former, for the latter, in selling a lumber yard, and stock of materials owned by Lincoln.

The declaration contains three special counts, and the common counts, and sets out in the special counts a contract under which the alleged services were rendered, in these terms: That if Stowell would bring about and effect the sale for Lincoln, of said yard and materials, Lincoln would permit Stowell to retain one-third interest in the premises and materials; and, in addition thereto, would give him one-third of one-half, for effecting the sale.

Stowell on the trial testified to the contract, as follows: "He (Lincoln) said if I would make a sale of two-thirds of the concern, he would retain one-third, and would give me one-half of that for selling the other two-thirds, and I might account for the rest."

The testimony of Lincoln, on the trial, contradicted that of Stowell in every material point.

Lincoln testified that he never made such a contract; that he never asked Stowell to sell the property; never employed him to sell it, and never had any talk with him about selling it for him; that the only conversation they had was, that Stowell "said he was going to find some one with capital to buy out my (Lincoln's) business, so as to give him employment. That he never offered him any thing for doing so."

To entitle the plaintiff to recover, he must establish his cause of action by a preponderance of testimony.

Opinion of the Court. Syllabus.

The plaintiff's statement of the contract in his declaration, and on the stand, differs.

The other testimony in the case is in corroboration of that of Lincoln. It appears from that of the two Culters, father and son, who purchased the property, and were witnesses on behalf of the plaintiff, that they made the purchase of Lincoln, and though Stowell was present at the sale, it was at their request, and it would seem rather in their interest and behalf. Thomas Culter testified that Stowell had nothing to do with the matter except to give them information when they asked him. He was taken into their employ immediately after the purchase. The services performed, if any, must have been slight, and there was no direct testimony as to their value. We think the evidence clearly insufficient to sustain the verdict, and that a new trial should have been granted for that

v.

MARY S. SCOTT.

1. SHELLY'S CASE-rule in applies in Illinois. The common law of England, so far as applicable and of a general nature having been adopted in this State at an early date and continued in force by statute, except so far as the same has been repealed, it follows that the rule in Shelly's case, which is a part of the common law, is in force in this State, it being in harmony with the genius of our institutions, and not in conflict with any statutory provision.

2. SAME what is the rule in. At common law the rule in Shelly's case is not a rule of interpretation, but a rule of property, under and by which all devises of legal estates wherein lands are given to a person for life, or for any greater estate, with an immediate remainder to the "heirs," or heirs of the

Syllabus.

body," of such devisee, the word heirs, or heirs of the body, will operate as words of limitation, and give the devisee an estate in fee simple or in fee tail.

3. SAME-requisites of the rule. The requisites of the rule in Shelly's case are, that there must, in the first instance, be an estate of freehold devised; there must be a limitation to the heirs, or heirs of the body of the person taking that estate, by that name, and not to the heirs as meaning or explained to be sons, children, etc.; the heirs must be named to take as a class or denomination of persons in succession from generation to generation, and by way of remainder, or at least, so that the estate to arise from the limitation to the heirs, and the estate of freehold in the ancestor, shall both owe their effect to the same deed, will, or writing; and that the several limitations shall give interests of the same quality, both legal or both equitable.

4. SAME-limitation. The rule does not apply when the words lawful issue, sons, or children, are used, instead of the word "heirs," because those words are regarded as words of purchase, and not of limitation; and the ancestor, when such words are used, will take only a life estate, and his sons and children will take by purchase, or under the will, for the reason that they are a designation of persons to take originally in their own right. When taking in character of heir, he must take in quality of heir, that is by descent.

5. WILL-devise-rule in Shelly's case applied. A testator, by the terms of his will, devised to his daughter one-third of all his property left after the payment of debts, with the following limitation: "and it is my desire that my daughter, Mary Sophia, shall receive so much of her share of the rents and profits as shall be necessary for her education, until she is twentythree years of age, after which she may come into possession of the full amount of rents and profits, the principal to descend to her heirs:" Held, that the rule in Shelly's case was applicable to such devise, and by it the daughter took an estate of inheritance in fee simple in one-third of the lands of the testator left after the payment of debts.

6. SAME-rule not affected by a power of sale. And the fact that a mere naked power was given to the executors to sell certain town lots upon a certain contingency, where no trust was created, was held not to affect the application of the rule.

7. CONTINUANCE. Where a complainant made a substantial amendment to her bill, the defendant moved for a continuance on that ground, which the court overruled: Held, on appeal, when it appeared that the cause was afterward continued by the expiration of the term, that the error did no injury, and furnished no ground of reversal.

8. PARTIES in chancery-wife of mortgagor on foreclosure. On bill to foreclose a mortgage executed by a husband alone to secure the payment of purchase money, his wife is neither a necessary nor proper party defendant.

Syllabus. Opinion of the Court.

9. FORECLOSURE-decree for possession. A decree for the foreclosure of a mortgage, among other things, provided that if the premises, in case of sale, were not redeemed in fifteen months, the master in chancery execute a deed to the holder of the certificate of purchase, and requiring the delivery of possession to the grantee in such deed: Held, no error.

10. SAME--interest. When a personal decree is rendered against a mortgagor for the balance of the debt remaining after the sale of the mortgaged premises, with interest, if the proceeds of sale shall not extinguish the interest accrued on the original debt, the court should see that interest is not allowed on interest.

APPEAL from the Circuit Court of Stephenson County; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. J. A. CRAIN, for the appellants.

Mr. HENRY C. HYDE, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The determination of this cause depends upon the effect of the terms used in the will of Orestes H. Wright, which are as follows:

"After all my honest debts are paid, it is my desire that what property is left should be shared equally between my dear and lovely wife, Mary M. Wright, and my dear children, each onethird; that my wife shall retain her third till her death, and then it shall descend to her natural children; and it is my wish that both of my children shall receive a good moral education, which shall be paid out of the rents or interest of property, or dividends of profits of railroad stock, so that the principal shall not be diminished, as there will be amply sufficient. Should my son William be a steady, sober, and industrious young man, as I hope and pray he will be, it is my wish that he should have the rents and profits of his share of the estate after he is twenty-one years old, until he arrives at twenty-five years of age, and then to come into full possession of the principal, and not before; but should he not be a temperate, sober man, it is my desire that it be so fixed, that he shall receive, year by year, the profits only, and that the principal descend to his heirs; and

Opinion of the Court.

it is my desire that my daughter, Mary Sophia, shall receive so much of her share of the rents and profits as shall be necessary for her education, until she is twenty-three years of age, after which she may come into possession of the full amount of rents and profits, the principal to descend to her heirs. It is my desire that my executors and the guardian should consult the best interest and welfare of my wife and children in the management of the estate, and use their best discretion."

Mary Sophia, the devisee named in the above clause, intermarried with John Scott, and they, on the 21st day of March, 1868, executed to Frederick Baker, one of the appellants, a deed, in consideration of the sum of eight hundred and seventy-five dollars, for one of the tracts of land of which her father, O. H. Wright, died seized, and which had been set off and allotted to her in certain partition proceedings instituted by her against the widow, Mrs. Wright, and her brother, William, she claiming the fee therein. To secure the payment of six hundred and seventy-five dollars, part of the purchase money, Baker executed his two notes, and a mortgage on the land.

The notes not being paid, Mary S. Scott filed her bill in chancery to foreclose the mortgage, and for a decree that the land be sold, and that Clarinda Baker may be barred of dower.

The defendant Frederick Baker, answered, admitting the execution and delivery of the notes and mortgage as set forth in the bill, and alleges that he purchased the land, the consideration money expressed in the deed being its full value, and paid in cash two hundred dollars, and received a conveyance in fee, with the usual covenants of warranty, from complainant and her husband, and then alleges, that complainant deriving her title to the land through the devise of her father, she took, by that devise, a life estate only in the land; and her conveyance to the defendant carried that estate only to him, and that he should be compelled to pay on the notes and mortgage the present value of the estate so vested in the complainant at the time of her conveyance, deducting therefrom the purchase money paid, and alleging that such present value, after such deduction,