part of the decree foreclosing the mortgage held by O. F. Piper. The complaint is that the court below erred in not decreeing partition of the lands in controversy in accordance with the prayer of the original and amended bills. And the "bone of contention" is a deed made by Col. Wilson, purporting to convey said lands to three of his children, Lizzie Elson, Ed. and Samuel Wilson, defendants herein, and claimed by them to have been delivered. Complainants deny that the deed was ever delivered, and upon the question of delivery rests the decision of this case. The undisputed facts in the case are that on September 2, 1889, Col. Wilson was the owner of a large farm, situated in McDonough county; that on said day he made and acknowledged a deed purporting to be an absolute and unconditional conveyance of said land to the defendants Lizzie, Ed., and Samuel, and shortly thereafter handed the same to said Lizzie, in whose possession it has remained ever since; that said deed was never recorded until the day following the death of the grantor, who died intestate, November 30, 1893, and left surviving him the complainants and the defendants Lizzie, Ed., and Samuel, his only heirs at law. At the hearing a large number of witnesses were examined, most of whom were put upon the stand for the purpose of disproving on the one side, and on the other of establishing, the fact of delivery of the deed in controversy. Lizzie Elson and Samuel Wilson were permitted to testify over the objection of complainants. This was error. Complainants sue as the heirs of their deceased father, whose title is here disputed; and the defendants, seeking to disprove such title, were therefore not competent witnesses. Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041; Comer v. Comer, 119 Ill. 170, 8 N. E. 796.

Disregarding such of the testimony as was incompetent, a clear preponderance of the evidence shows that Col. Wilson always treated the land in question as his own, as well subsequent as prior to the alleged delivery of the said deed. The land remained on record as his until after his death, up to which time he paid the taxes thereon with his own money. At different times subsequent to said alleged delivery he made repairs on the premises, leased the land to tenants, collected rents for his own use, and advertised the land for sale in a public newspaper. And on March 1, 1890, he made and delivered to O. F. Piper a mortgage deed thereon to secure a loan of $500. All of these acts were done with the knowledge and acquiescence of the defendants. The evidence further shows that one of said leases was drawn up by defendant Samuel Wilson, and signed by him as agent for his father, who was named therein as owner and lessor. The defendants always spoke of the land as their father's, and so treated it. In a replevin suit wherein Col. Wilson was plaintiff, tried in September, 1891, Samuel Wilson

swore that this land belonged to his father, and that he and his brother Ed. were his father's tenants. There also appears in evidence the following letter, written by defendant Lizzie Elson, and mailed by her to complainant Alice M. Luck: "Peoria, Ill., Feb. 28, 1894. Dear Alice: Your letter was received to-day noon. * I have had

that deed in my possession for some time. Father gave it to me, and told me to keep it, and, if he never called for it,-which he never did, that at his death I must have it put on record. He saw the deed shortly before he went down to Jim's. He was well then, and it was still his desire that I should keep the deed. It is not likely he would change his mind in so short a time. Lizzie."

Such a state of facts is not at all consistent Iwith the claim that Col. Wilson delivered this deed to the defendants. The mere placing of the deed in the hands of one of the grantees did not of itself necessarily constitute a delivery. In such a case the inquiry is, what was the intention of the parties at the time? and that intention, when ascertained, must govern. Jordan v. Davis, 108 Ill. 336; Bovee v. Hinde, 135 Ill. 137, 25 N. E. 694; Oliver v. Oliver, 149 Ill. 542, 36 N. E. 955. It seems clear that this deed was placed by her father in the hands of Lizzie Elson with the mutual understanding that if he at any time desired to withdraw it she should return it to him, but that "if he never called for it" she should, at his death, have it recorded. In other words, there was no intention, at the time, to convey a present, absolute title to the defendants, but the intention was that the deed should take effect at the grantor's death, and vest the title in the defendants, provided he died without having recalled the deed. There was in no sense an attempt to deliver to the grantees in escrow, as contended by counsel for the defendants, but merely a transfer of the possession of the deed to one of the grantees; the grantor at the time, however, reserving a future control over it. To constitute delivery of a deed, it must clearly appear that it was the intention of the grantor that the deed should pass the title at the time, and that he should lose all control over it. A deed for an interest in land must take effect upon its execution and delivery, or not at all. Bovee v. Hinde, supra; Cline v. Jones, 111 Ill. 563; Stinson v. Anderson, 96 III. 373. We think the mortgaging of the land by Col. Wilson subsequent to his placing the deed in the custody of Lizzie Elson, his offering the land for | sale, and exercising the other acts of ownership over it, heretofore mentioned, were sufficient to constitute a withdrawal of the deed. Stinson v. Anderson, supra. But, even if they were not, the deed is nevertheless void, for it was not to take effect until the death of the grantor. That was an attempt to make a testamentary disposition of property without complying with the statute of wills. Cline v. Jones, supra. The circuit court err

ed in dismissing the complainants' original and amended bills. The decree is therefore reversed, and the cause remanded to that court, with directions to enter a decree in accordance with the prayer of said bill. Reversed in part, and in part affirmed.

(158 Ill. 431)

ORR v. NATIONAL FIRE INS. CO.1 (Supreme Court of Illinois. Nov. 1, 1895.) Appeal from appellate court, Third district. Assumpsit by Abner R. Orr against the National Fire Insurance Company. Plaintiff obtained judgment, which was reversed by the appellate court. 56 Ill. App. 627. Plaintiff appeals. Affirmed.

Calhoun & Steely, for appellant. Thos. Bates and Lawrence & Lawrence, for appellee.

PER CURIAM. The questions involved in this case are the same as those presented and decided in Orr v. Insurance Co. (in which an opinion was filed at the present term of this court) 41 N. E. 854. The reasons given in the opinion for affirming the judgment in that case are equally applicable to this, and need not be repeated here. The judgment of the appellate court will be affirmed.

(158 111. 600)

GUILFOIL v. ARTHUR et al.1 (Supreme Court of Illinois. Nov. 1, 1895.) TRUSTS-CHARITIES-EQUITY-PARTIES-ESTOPPEL. 1. A deed conveyed land in trust for the "widows and home and school or orphans of deceased members of the Brotherhood of Locomotive Engineers," an unincorporated association, and directed that the grantee should hold the land "for said widows and orphans of the members" of such brotherhood, under regulations made by it, "provided that the brotherhood may use the property or dispose of it for any charitable purpose, for the use of said widows and orphans." Held, that the trust thereby created, being a charitable one, was not void for uncertainty.

2. Where the trustee of a trust that is subject to the regulations of an association ignores the terms of the trust deed, a court of equity has jurisdiction to remove him, and appoint a new trustee, at the suit of the individual members of a committee appointed by the association to look after such trust, since they may sue for the benefit of all the numerous beneficiaries,

3. A trustee who has accepted a deed conveying land to him in trust, and has taken possession of the land, is estopped to allege that the trust is invalid because the grantor's title was obtained illegally.

Appeal from circuit court, Coles county; Francis M. Wright, Judge.

Bill by P. M. Arthur and others against John G. Guilfoil. Complainants obtained a decree. Defendant appeals. Affirmed.

This was a bill in equity brought by P. M. Arthur and others, grand officers of the Grand International Brotherhood of Locomotive Engineers, against John H. Guilfoil. It is alleged, in substance, in the bill, among other things, that certain real estate in Coles county, Ill., was conveyed by deed on August 2, 1886, by Mary J. Mitten to John H. Guilfoil, in

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

v.41N.E.no.22-64

trust for the widows and orphans of deceased members of the Brotherhood of Locomotive Engineers, and under such rules and regulations as shall be provided by the brotherhood; that the rental value of said property is $1,000 per year over and above taxes, repairs, etc.; that John H. Guilfoil entered upon possession of said property immediately after such conveyance, with his family; that he has received the uses, rents, and profits thereof, and converted them to his own use; that he refuses to account to the officers of said brotherhood for such rents, or any part thereof; that Guilfoil, as such trustee, has mismanaged said estate, is committing waste thereon, and that he is insolvent,-and prays that he may be removed as such trustee; that a trustee be appointed by the court to take charge of said property; that an account be taken of the rents and profits received by Guilfoil from said estate, and a decree therefor, etc. The defendant put in an answer to the bill, in which he denies any such organization as that of the Grand International Brotherhood of Locomotive Engineers; denies that orators hold positions in such organization as alleged; denies that he was bound by the by-laws and constitution of such organization; that any such organization existed; admits possession of said property, but denies that he holds possession as trustee for such organization; admits that Mary J. Mitten conveyed said property to him August 2, 1886, and denies that orators have any interest in said premises conveyed in any manner by virtue of said conveyance, and denies that he has any personal property, etc.; denies that such organization accepted said property, and denies that he has ever received property and money as alleged; denies the power of such organization to affect said property or his interest by resolution, etc. It is also set up in the answer that the property originally belonged to one Nixon; that he and others formed a lottery scheme; that the farm was put in to be drawn; that Mary J. Mitten drew the farm, and conveyed it to defendant. On the hearing the court found the allegations of bill true; that said Grand International Brotherhood of Locomotive Engineers is an organized body, with constitution and by-laws, etc. A decree was rendered removing John Guilfoil as trustee, and appointing William Burgess trustee of the said property, etc., for the uses and purposes, etc., with bond at $20,000; orders and adjudges that John Guilfoil pay to said William Burgess, as trustee, $3,652, as found by the court to be due from him; that said Guilfoil deliver up possession of said premises to said William Burgess, and that John Guilfoil, within 20 days, execute and deliver to said Burgess a proper and sufficient conveyance of said premises, and in default thereof that the master make such deed; that, in default of the payment of said $3,652 by said Guilfoil, Burgess proceed to collect the same, etc.; that, upon receiving possession of said property, said Burgess proceed to advertise

and sell said property at public sale, and bring proceeds into court.

A. J. Fryer and J. W. Craig, for appellant. Horace S. Clark, for appellees.

CRAIG, J. (after stating the facts). There is no substantial controversy in regard to the facts in this case. On the 2d day of August, 1886, Mary J. Mitten, who held the legal title to certain lands in Coles county, executed and delivered to the defendant, John H. Guilfoil, a deed conveying the lands to him in trust. The deed was as follows: "This indenture witnesseth: That Mary J. Mitten, a widow, of Marion county and state of Indiana, conveys to John H. Guilfoil, as trustee in trust for the widows and home and school for orphans of deceased members of the Brotherhood of Locomotive Engineers, as hereinafter provided for, in consideration of the sum of twelve thousand dollars, the following real estate in Coles county, in the state of Illinois, to wit: Northwest quarter of section twelve (12), town twelve (12), range seven (7) east of the 3d P. M.; also all that part of the north half of the northeast quarter of section twelve (12) which lies west of the right of way of Illinois Central Railroad; also that part of the southwest of the southeast quarter of said section twelve (12) which lies west of the right of way of said railroad; also all that part of the southeast quarter of section one (1), town twelve (12), range seven (7), which lies west of the said right of way of said railroad,-subject to tax and assessment of A. D. 1886. Said Guilfoil to hold said property for said widows and orphans of the members of the Brotherhood of Locomotive Engineers, under such rules and regulations as shall be provided by the brotherhood; provided that the brotherhood may use the property or dispose of it for any charitable purpose for the use of said widows and orphans, and provided said Guilfoil shall, so long as he acts as trustee, receive any reasonable pay as such trustee. In witness whereof, the said Mary J. Mitten hereby waives homestead interest in the same, has hereto set her hand and seal, this 2d day of August, 1886."

Guilfoil entered into possession of the lands conveyed under the deed. He has received the rents and profits ever since, but he has failed to account for the rents, and he has suffered the property to run down. The Brotherhood of Locomotive Engineers, by resolutions adopted, accepted the conveyance for the uses and purposes named in the deed, but Guilfoil has absolutely refused to hold and manage the property as contemplated by the deed, or as requested by the rules and regulations adopted by the brotherhood. Indeed, he has ignored the trust, and holds the property in defiance of the terms and conditions of the deed upon which be secured it. Under such circumstances, was the decree removing Guilfoil as trustee authorized, or was it erroneous? Where lands are conveyed in trust, and the

trustee enters into possession of the property under the deed, it is a plain proposition that he is bound to observe the terms and conditions of the instrument under which he receives a conveyance of the property; and if he fails to discharge his duty as trustee, and attempts to divert the property to a use not contemplated by the deed, or appropriates it to his own use, a court of equity will remove him, and appoint a trustee who will carry out the trust as contemplated by the instrument under which it was created. This rule is so familiar and so well understood that it will not be necessary to cite anything to sustain it. But it is said in argument that the brotherhood is not a corporate body, and cannot sue or be sued, and, having no power to sue or be sued, it cannot authorize any of its members or officers to bring this action, and hence the bill cannot be maintained by complainants. The brotherhood is an organized body, with a constitution and by-laws, but it was never incorporated. At common law a voluntary association not incorporated cannot sue or be sued, but this action was not brought in the name of a voluntary association, and the rule excluding such associations from suing or being sued has no application in this case. It is a general rule, and one well understood, that all persons interested in the subject-matter of the litigation should be made parties complainant or defendant. But there are exceptions to this general rule. In section 97, Story, Eq. PL. in speaking of the subject, the author says: "The most usual cases arranging themselves under the head of exceptions are (1) where the question is one of a common or general interest, and one or more may sue or defend for the benefit of the whole; (2) where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole; (3) where the parties are very numerous, and it is impracticable

to bring them all before the court." In section 107, in the discussion of the third class of cases, where the persons in interest are numerous, it is said: "As there is privity of interest, the court will allow a bill to be brought by some of the parties, on behalf of themselves and of all the others, taking care that there shall be due representation of all substantial interests before the court." In Beatty v. Kurtz, 2 Pet. 584, where a bill was brought by and in the name of a committee of a voluntary society regularly ap pointed for the purpose of protecting certain property, it was held that complainants were entitled to maintain the bill. It is there said: "If they [the complainants] are proved to be the regularly appointed committee of a voluntary society of Lutherans in actual possession of the premises, and acting by their direction, to prevent a disturbance of that possession, under circum

stances like those stated in the bill, we do not see any serious objection to their right to maintain the suits." See, also, Mears v. Moulton, 30 Md. 145; Phipps v. Jones, 20 Pa. St. 263; 2 Beach, Priv. Corp. §§ 901, 902; Birmingham v. Gallagher, 112 Mass. 190; Lloyd v. Loaring, 6 Ves. 773. Here, as has been seen, the real estate was conveyed in trust for the widows and orphans of the deceased members of the Brotherhood of Locomotive Engineers, with power conferred on the brotherhood to dispose of the property for the uses and purposes specified. The organization appointed a committee to look after the property, with authority to employ counsel, and sell the lands, etc. This committee instituted suit in the name of the complainants, officers of the Brotherhood of Locomotive Engineers, to enforce the trust, and, the action of the committee having been reported to the association, the institution of the suit in the names of the complainants was ratified and confirmed. It thus appears that the action was brought in the names of the complainants, for and in behalf of the members of the organization, the Brotherhood of Locomotive Engineers. From the allegations of the bill, and from the evidence introduced in its support, it is plain that the complainants are not suing in their own interest; but, on the other hand, the sole object of the bill is to enforce the trust and save the property involved for the members of the brotherhood. The bill might have been brought in the names of all the members of the Brotherhood of Locomotive Engineers, as persons jointly interested in the property. But where the members of an unorganized association are numerous, as is the case here, the action may be brought in the name of a portion of the members, who sue for themselves and in behalf of all the other members, or, as was done in Beatty v. Kurtz, supra, the action may be maintained in the name of a committee of persons regularly appointed by the organization. The allegations of the bill are not as specific and definite in regard to the capacity in which the complainants sue, if tested by a technical rule, as they should be; but, when all the allegations of the bill and amended bill are considered, we think the capacity in which the complainants sue sufficiently appears.

It is next claimed that the trust is too vague and uncertain to be enforced. In Perry on Trusts it is said: "It is immaterial how uncertain, indefinite, and vague the cestui que trust or final beneficiaries of a charitable use, provided there is a legal mode of rendering them certain by means of trustees appointed or to be appointed." | Here we apprehend that the trustee named in the deed, and the brotherhood, under the authority conferred by the deed, could determine with certainty the persons entitled to share in the proceeds of the property conveyed. Indeed, the possession in the deed

objected to is not as objectionable as the one sustained by the court in Society v. England, 106 Ill. 127.

It is next claimed that a court of equity will not grant the relief claimed, on the ground that the property was drawn in a lottery, which was illegal and contrary to law. The fact that this property may have been disposed of in a lottery before it was conveyed by Mary J. Mitten to John H. Guilfoil on August 2, 1886, in trust does not affect the deed or the rights created by that instrument. How or of whom Mary J. Mitten acquired the title to that property is a matter which does not enter into this controversy. She having conveyed it to Guilfoil in trust, he, having accepted the deed, and assumed the trust, is estopped by the recitals in the deed of conveyance to him, and whatever rights legitimately arise upon the facts admitted by these recitals may be asserted. Byrne v. Morehouse, 22 Ill. 603; Pinckard v. Milwine, 76 Ill. 453; Orthwein v. Thomas, 127 Ill. 554, 21 N. E. 430. It is a familiar rule of law that a trustee who enters into possession of lands cannot claim adversely to the title under which he enters, and that the principle of estoppel applies to the relation between trustee and cestui que trust, and prevents the former from repudiating the contract by virtue of which he is in possession. O'Halloran v. Fitzgerald, 71 Ill. 53; Willison v. Watkins, 3 Pet. 43. The appellant, Guilfoil, accepted the deed of trust, entered into the posses. sion of the property under it, and by these acts he is estopped from charging its invalidity. Albretch v. Wolf, 58 Ill. 189. He cannot go behind the deed after accepting its provisions and occupying the land under it. When called upon to accept, he has no right to go behind the deed, and call upon the court to inquire whether his grantor's hands are clean or not. That is a matter in which he is in no way concerned. If Mrs. Mitten had acquired the land in bad faith or illegally, and the brotherhood had aided her in thus obtaining the land, it was the duty of appellant to object when the trust was offered to him. He had no right to remain silent then, and, when called upon to account, attempt to hold the lands himself, and call in question the prior acts of his grantor, or the person or persons for whose use the property was conveyed. If a plaintiff needs the aid of his illegal transaction in any respect to support his case, he cannot be heard. But here the case of the complainants is in no way dependent upon the original unlawful transaction in regard to the lottery, but is wholly based upon the trust created by the deed from Mary J. Mitten to Guilfoil. A new contract, founded on a new consideration, although in relation to property respecting which there had been unlawful transactions between the parties, is not itself unlawful. Armstrong v. Toler, 11 Wheat. 258.

(158 III, 396) BALTIMORE & O. R. CO. v. STANLEY.1 (Supreme Court of Illinois. Oct. 11, 1895.) RAILROAD COMPANIES-ACCIDENTS AT CROSSINGSINSTRUCTIONS.

Where the declaration alleges that the ac cident occurred at a certain public crossing, and the court of its own motion instructs the jury that plaintiff cannot recover unless it did occur at that place, it is proper to refuse as unnecessary instructions as to the law governing accidents at places other than crossings.

Appeal from appellate court, First district. Action on the case by William M. Stanley, administrator, against the Baltimore & Ohio Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 54 Ill. App. 215. Defendant appeals.

Affirmed.

E. R. Jewett, for appellant. Jesse Cox, for appellee.

CARTER, J. This was an action brought by William M. Stanley, administrator of the estate of Robert Waade, deceased, against the Baltimore & Ohio Railroad Company, to recover damages arising from the death of Waade, caused, as alleged, by the negligence of the railroad company in running one of its trains over and across Sixty-Seventh street in the town of Hyde Park on February 20, 1888, whereby the deceased, in walking on the highway over the tracks of the railroad, was struck by a passenger train, and killed. On the first trial of the cause the jury failed to agree, but on the second trial the plaintiff recovered a judgment for $5,000, which, on appeal, was affirmed in the appellate court.

The refusal of the trial court to exclude the evidence from the jury, and to direct a verdict for the defendant, upon motion of defendant's counsel, is regarded by this court as proper under the rule laid down in Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773; Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285; Purdy v. Hall, 134 Ill. 298, 25 N. E. 645; Frazer v. Howe, 106 Ill. 563. The court cannot say that the evidence given at the trial, with all the inferences that could justifiably be drawn from it, is so insufficient to support a verdict for the plaintiff that the verdict returned should be set aside. And under the rule as found in the cases cited it is only when such is the case that the court

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

will be justified in excluding the evidence and directing a verdict for the defendant. On February 20, 1888, when the accident occurred, there were six tracks which crossed Sixty-Seventh street. These tracks were used by three different railroad companies, the IIlinois Central, the Michigan Central, and the Baltimore & Ohio. On the night of the accident the Illinois Central South Chicago suburban train was due to pass Sixty-Seventh street at 10:37, and the Baltimore & Ohio passenger train (which it is alleged killed the deceased) was due at 10:49, going east. The deceased, in company with one Julius Mann, came to the crossing from the west, going east. There were two freight trains on the tracks, one going north and the other south. Corcoran, with a team and wagon, had stopped at the west side of the crossing, waiting for the tracks to be cleared so he could cross over. The deceased and Mann saw Corcoran with his team waiting, but concluded they could cross the tracks, and started to do so. Mann succeeded in crossing the railroad in safety, but Waade was killed. It was alleged in the declaration that Waade was killed on the crossing, and evidence was introduced tending to prove that fact. On the other hand, it was contended by the railroad company that the deceased was killed on its right of way, some 800 feet south of SixtySeventh street. No person saw the deceased at the time he was struck by the train, and hence the uncertainty in regard to the place where he was struck. The body was found 825 feet south of Sixty-Seventh street, near the switchman's shanty. McCarthy, the switchman, testified that he met the deceased man 350 feet north of his shanty, going south on the right of way. This was only a short time before the deceased was killed, and he was then, if this evidence was true, some 500 feet south of the crossing. The testimony of Julius Mann, Corcoran, and Hermann Mann conflicts with the testimony of McCarthy, the switchman, in this regard. lius Mann, who was Waade's companion the night of the injury, testified that they passed on the crossing at Sixty-Seventh street, in front of the freight train coming north, and were about to cross another of the tracks to the east of this point, with Waade a few steps in front of Mann, when the train came from the north which is claimed to have struck Waade, and Waade disappeared. Corcoran and Hermann Mann saw Julius Mann and the deceased enter upon the tracks at the Sixty-Seventh street crossing. This controversy of fact as to the point where deceased was struck by the train has been determined adversely to the appellant by the jury and the appellate court, and it is not within our province to reverse their finding in this respect. Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773. The declaration of the appellee alleges that the deceased was struck and killed at the railroad crossing at Sixty-Seventh street, and no allegation is contained in

Ju