sell, convey or convert, as his judgment might dictate. In the concluding paragraph of the will the trustee was again empowered to convey, convert and manage the estate, both real and personal, as in his judgment would be for his and the grandson's interests. As the trustee had power to sell, convey or convert he took a title sufficient for the exercise of such powers, and therefore had a fee simple title. (Preachers' Aid Society v. England, 106 Ill. 125; Coryell v. Klehm, 157 id. 462; Glover v. Condell, 163 id. 566; Spengler v. Kuhn, 212 id. 186.) The statement that the income of the entire estate, both real and personal, should go to the trustee for his own personal use or re-investment for the estate, as he might wish, must be held to refer to personal control or dominion over the estate and not for beneficial use, because he immediately limited the devise to Joel A. Montague to one-half for life unless Charles T. Montague should die first, when Joel A. Montague was to have the whole. The trust was for the benefit of Charles T. Montague as to one-half of the estate and for the benefit of Joel A. Montague during his natural life, with the direction to execute a will providing that in case of a certain contingency that share, with its accumulations, should be willed to the grandson, Charles T. Montague, or his trustee. The holding of the court that the will only authorized Joel A. Montague to devise the property directly or to a trustee under a naked trust rendered the authority to devise to a trustee utterly senseless. A trustee under a naked trust is not vested with the title for a single moment, and is a mere conduit, through which the title passes directly to the usee. There is no difference whatever between a devise to an individual without naming any trustee, and a devise to him through the medium of a trustee with no active duties, and it is contrary to all rules of construction to treat words to which a rational meaning can be given as having no meaning at all. In our judgment the reasonable construction of the will is, that Joel A. Montague was given

authority, in his discretion, either to devise the fee to Charles T. Montague before he reached the age of fifty years, or to create a trust for him and make the devise to a trustee until he should reach that age. There was no need for requiring a will of one-half of the property to Charles T. Montague or his trustee if the intention was to vest title in Charles T. Montague as soon as Joel A. Montague should die. If it had been the purpose to give Charles T. Montague the property when his father should die, the natural method would have been to provide that upon the death of Joel A. Montague the one-half of the estate given to him for life should go to Charles T. Montague. The provision means nothing unless it means that the trustee named by Joel A. Montague in his will shall have control over the property until Charles T. Montague shall attain the age of fifty years. If it was intended that Joel A. Montague should have power to create a trust at all and to appoint a trustee, it must have been intended that he should prescribe the terms of the trust. It is, however, apparent, taking all the provisions of the will together, that Truman W. Montague intended that Charles T. Montague should have the fee at fifty years of age, or that it should go to his heirs upon his death before that time, if he survived his father.

Joel A. Montague made a will according to the expressed wish of Truman W. Montague, so that there is no occasion to consider the force or effect of the direction to him. He died before Charles T. Montague attained the age of fifty years, so that any question where the property devised to him would have gone under other circumstances is also out of the way.

Our conclusions are, that Charles T. Montague is entitled to the income from one-half of the estate devised by the third paragraph of the will of Truman W. Montague; that the court should provide for a division of the property

which Joel A. Montague was authorized to make; that Joel A. Montague was authorized to create a trust by his will in the one-half of the estate devised to him for life and to appoint a trustee to execute the trust; that if the income from the property devised by the third paragraph of the will of Truman W. Montague should be less than the sum of $125 per month it should be made up to that sum by income from the other half, and in like manner the reasonable expenses of sickness or other necessitous or unforeseen circumstances shall be supplied, if necessary, from the said other half; that if the conditions prescribed in clause (b) of the will of Joel A. Montague are fulfilled, Charles T. Montague shall have the choice of any houses which Joel A. Montague was able to devise, and the trustee shall pay to Charles T. Montague the income from the estate devised by Joel A. Montague; that the trust shall terminate upon the arrival of Charles T. Montague at the age of fifty years or at his death before that time, when the principal shall go to him or his heirs.

No reason was shown for the removal of the plaintiff in error, Harlan P. McNair, as trustee. There was no evidence whatever of unfitness, nor anything in the circumstances or situation of the two estates which would render him an improper person, and if power had been given to Joel A. Montague to appoint his successor as trustee under the third paragraph of the will of Truman W. Montague, we should regard the power as properly exercised and the decree removing the plaintiff in error as trustee of that part of the estate as unwarranted. Joel A. Montague, however, did not have such power, and therefore the plaintiff in error was never legally appointed as trustee under said third paragraph. The supposed removal was not, in fact, a removal, but the court appointed another person as trustee, and we cannot say that the discretion of the court was improperly exercised in making the appointment.

The decree is reversed and the cause remanded, with directions to enter a decree in accordance with the views expressed in this opinion.

Reversed and remanded, with directions.

EDWARD ROTTNER, Appellee, vs. JOHN F. BUCHNER,
Appellant.

Opinion filed October 28, 1913-Rehearing denied Dec. 5, 1913. .

1. ELECTIONS—burden is upon contestant to show that ballots are in same condition as when cast. The mere fact that ballots have not been strung, sealed and kept in the manner prescribed by statute is not conclusive against their weight as the best evidence of the result of the election, but the contestant has the burden of showing that they are the ballots cast at the election and that they are in the same condition as when cast.

2. SAME―an unlawful interference with ballots need not be shown in order to discredit them. It is not necessary, in order to invalidate the ballots as the best evidence, that an unlawful interference with them be shown, and it is sufficient if it appears that reasonable opportunity for interference by unauthorized persons was given.

3. SAME when ballots are not properly preserved. Ballots cannot be said to have been properly preserved in the county clerk's office where the evidence shows that the bags containing the ballots were kept for several weeks where unauthorized persons might readily have gained access to them, some of the bags being sealed only with mucilage, some of them open, with the ballots exposed, some of them containing ballots which had never been strung on wire, one in which the wire had been cut, and one in which there were holes in the ballots but no wire in the bag.

4. SAME when result must be determined by returns. If the ballots have been so carelessly kept as to discredit them the result of the election must be determined by the returns, where there is nothing to impeach the returns except a discrepancy in one of the precincts which does not affect the result of the election whatever is done with such precinct.

CARTER, J., dissenting.

APPEAL from the County Court of LaSalle county; the Hon. W. H. HINEBAUGH, Judge, presiding.

ARTHUR H. SHAY, H. L. RICHOLSON, and Boys, OsBORN & GRIGGS, for appellant.

W. A. PANNECK, for appellee.

Mr. JUSTICE DUNN delivered the opinion of the court:

The appellant and the appellee were candidates for the office of recorder of deeds of LaSalle county at the election of November 5, 1912. The appellant was declared elected. The appellee contested the election and had judgment in his favor, and the defendant appealed.

The judgment against the appellant was based upon a re-count of the ballots, and it is insisted that, in view of the evidence in regard to their care and preservation after their return to the county clerk's office, they ought not to be permitted to overthrow the result shown by the returns of the judges and clerks of election as declared by the county canvassing board. The returns were delivered to the county clerk's office the day after the election, from all the seventy-two voting precincts of the county except one, whose returns were delivered the second day. As they came in they were piled on the floor of the north room of the clerk's office, which consisted of two rooms, with a vault connecting with the north room. The next day the bags containing the ballots were removed to the vault, where they were piled on the floor, against the east wall. The records of the county clerk's office were kept in the vault and it was entered daily by many persons, sometimes accompanied by the clerk or a deputy but often alone. The bags were not sealed with wax impression seals. Many of them were not sealed with wax at all but only with mucilage, and several of them were open and the ballots were