go to strangers to his blood, by means of will, marriage or devise.

The testator did not use the formal language commonly employed to create an estate tail, but such an estate may be created by a will without such language, and any expression showing an intention to devise a fee descendible to lineal heirs is sufficient to create a fee tail by the rules of the common law. The purpose of construing a will is to ascertain the intention of the testator and to give it effect if it does not conflict with any rule of law. If this devise would have been of an estate tail at the common law the devise will be given effect by the application of the statute, which declares that the donee shall be seized of a life estate, and the remainder will pass in fee to the heirs to whom the estate tail would have passed according to the course of the common law. That the testator had no intention of devising a fee simple, which is an estate descendible to heirs generally, is clear, for he declared it to be his express will and intention that the estate should not go to strangers to his blood by any laws of descent of this or any other State. He declared that the estate devised should be descendible only to the heirs of his children of his blood, which could mean nothing but their lineal heirs, since no other heirs could be heirs of the testator's blood. He meant that the portion given to each child should go to the descendants of such child in indefinite succession so long as there should be descendants answering the description of the devise, and if there were no such descendants the estate should revert to his other children then living, and should not, in any event, go to their heirs generally. The sense in which the word "heir" is used may be explained by the context. At the common law, if land was given to one and his heirs if he had heirs of his body, and if he should die without heirs of his body it should revert to the donor, the donee had an estate tail. (1 Sheppard's Touchstone, 103.) It is not necessary that particular lan

guage should be used to manifest the intention of a testator, and a devise to a person and his heirs with a limitation over in case he die without issue confers an estate tail, on the ground that the testator has used the word "heirs" in the qualified and restricted sense of heirs of the body. Jarman states the law applicable to such a case in the following language: "Where real estate is devised over in default of heirs of the first devisee, and the ulterior devisee stands related to the prior devisee so as to be in the course of descent from him, whether in the lineal or collateral line and however remote, as the prior devisee in that case could not die without heirs while the devisee over exists, the word 'heirs' is construed to mean heirs of the body, and accordingly the estate of the first devisee, by the effect of the devise over, is restricted to an estate tail, and the estate of the devisee over becomes a remainder expectant on that estate." (3 Jarman on Wills,—5th ed.—96.)

The real estate in question was devised to the children and their heirs of the blood of the testator, which could only mean their descendants, and the gift over was within the rule stated. Under that rule the estate of the children was an estate tail, and the devise over to brothers and sisters surviving at the time any child or his descendants should die without heirs of the testator's blood became a remainder expectant on that estate. The testator referred to issue of the children indefinitely, at any time, for it is only when the words used denote an extinction of the specified issue, irrespective of time or any collateral circumstances, that an estate tail would be created. It is well established that such words as the testator used, if not otherwise explained by the context, import a general, indefinite failure of. issue; and this is shown to have been in the mind of the testator in this case when he provided for a failure of issue of either of his children or their descendants, as there would be no failure of issue so long as there were descendants. The testator said that, failing heirs of

his blood, the estate should revert to his other children then living, by which he necessarily meant living at the time of the failure of issue of the prior devisees, or any of them, or their descendants. The word "children," therefore, was used in a broader sense than descendants of the testator in the first degree. The word was employed to mean descendants of the testator at the time of the failure of issue of the prior devisees or their descendants. The gift over on the failure of heirs of the children of the blood of the testator became an estate in remainder expectant on the estate tail, and could not be regarded as an executory devise to take effect on an indefinite failure of issue, which would necessarily be void for remoteness.

The estate devised to the children of the testator would have been an estate tail by the common law, and by section 6 of the Conveyance act the children took estates for life and the remainder would pass in fee simple to the grandchildren when born, subject to be diminished by the birth of other heirs of the bodies of the children, who might be let in successively at birth. (Voris v. Sloan, 68 Ill. 588; Butler v. Huestis, 68 id. 594; Frazer v. Peoria County, 74 id. 282; Lehndorf v. Cope, 122 id. 317; Welliver v. Jones, 166 id. 80; Turner v. Hause, 199 id. 464; Winchell v. Winchell, 259 id. 471.) The statute operated to destroy the entail supporting the remainder, and necessarily destroyed the remainder expectant on the estate tail. The statute operating upon the estate tail to turn the entail into a fee simple, all subsequent limitations fell. It would not aid an understanding of the single question involved to state the various transfers or incumbrances of the property in detail, but with this opinion as a guide, the chancellor will be enabled to enter a decree in accordance with the law as to each and every interest in the property.

The decree is reversed and the cause is remanded to the circuit court, with directions to enter a decree in accordance with the views herein expressed.

Reversed and remanded, with directions,

FREDERICK BARNARD et al. Appellants, vs. THE CITY OF CHICAGO, Appellee.

Opinion filed October 27, 1915-Rehearing denied Dec. 8, 1915.

I. MUNICIPAL CORPORATIONS-what rights of the abutting owner cannot be impaired without compensation. Since the constitution of 1870 the owner of property abutting upon a street cannot have his right of ingress and egress or his easement of light and air taken away or materially impaired by the making of a public improvement unless he is compensated for his injury.

2. DAMAGES-the constitution of 1870 takes away protection of statutory authority to damage property. Under the constitution of 1870 the fact that a city has statutory authority to pass an ordinance requiring a public improvement to be constructed in a street does not relieve the city from liability for damages sustained by abutting property.

3. SAME-city is liable for damage to building caused by constructing a tunnel in a public street. Where the construction of a tunnel in a public street by a street railway company in obedience to an ordinance causes a building on an abutting lot to crack and settle and become unsafe, the city is liable in damages, under the constitution of 1870, even though the ordinance was passed by statutory authority, the basis of the liability being the interference with the right of the owner to the full use and enjoyment of his property, including the building. (Rigney v. Chicago, 102 Ill. 64, followed; Otis Elevator Co. v. Chicago, 263 id. 419, explained.) CARTWRIGHT and COOKE, JJ., dissenting.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN GIBBONS, Judge, presiding.

Kales, Kelly & HALE, (ALBERT M. KALES, and WIILIAM B. HALE, of counsel,) for appellants.

JOHN W. BECKWITH, Corporation Counsel, (LEE D. MATHIAS, WILLIAM H. SEXTON, P. W. SULLIVAN, and WILLIAM DILLON, of counsel,) for appellee.

SAMUEL A. ETTELSON, Corporation Counsel, (George E. CHIPMAN, JOHN H. PASSMORE, ROY S. GASKILL, and WILLIAM DILLON, of counsel,) for appellee on rehearing.

Mr. JUSTICE DUNN delivered the opinion of the court: The appellants sued the appellee in an action on the The court sustained a demurrer to the declaration and rendered a judgment against the plaintiffs in bar of the action and for costs, from which they have appealed.

case.

The first count of the declaration avers that the plaintiffs were the owners of a ninety-nine year leasehold estate in certain premises in the city of Chicago fronting on LaSalle street and improved with a five-story and basement brick and stone building occupied by plaintiffs and their sub-tenants for stores and offices; that on February 11, 1907, the city council of the city of Chicago passed an ordinance authorizing the Chicago Railways Company, a street railway corporation, to construct, maintain and opcrate a system of street railways in the streets and public ways in the city of Chicago, and required it to reconstruct a tunnel under the Chicago river, at LaSalle street, according to the terms of the ordinance, to the approval of the commissioner of public works and under the supervision of the board of supervising engineers; that the Railways Company accepted the ordinance and in May, 1910, began the reconstruction of the tunnel, which was constructed in and beneath the surface of LaSalle street, for a passageway under the Chicago river for its street cars; that the Railways Company excavated in and under LaSalle street for the purpose of constructing its tunnel, opened up and obstructed said street, cut off access to the plaintiffs' property, and caused the surface of the street adjacent to the plaintiffs' property and the walls of the plaintiffs' building to sink, crack and settle to such an extent that it became necessary for the plaintiffs to shore up and retain said building and support the same and re-build the foundations, floors and walls thereof, and caused plaintiffs' tenants to leave and the building to stand, in part, vacant, whereby the rents were lost to the plaintiffs, and the plaintiffs were