Sa

The facts necessary to a determination of the questions involved are as follows: bila Barbara Rupprecht died as above stated, leaving no child or children, or descendants of such, surviving her. Louis Richard is the only surviving child of a deceased sister of Sabila Barbara Rupprecht. At the time the original decree was rendered it was supposed that said Richard was the only heir and entitled to the whole estate, and it was so decreed by the court. It appears now, from the evidence in this record, that Sabila Barbara Rupprecht had a sister of the whole blood, whose name was Cathrina Mehl, who died before Sabila Barbara Rupprecht, leaving the petitioners, Johanna Mehl, Maria Wolkersdoerfer, Julia Ledermann, Elisabeth Haschka, and Babette Mehl as her only children and heirs at law, and that petitioner Margaretha Schaetzler was a surviving sister of the half blood of said Sabila Barbara Rupprecht; that all of said petitioners were nonresidents of the state of Illinois, and have all of their lives been residents of the empire of Germany. It affirmatively appears that none of the petitioners had any actual knowledge or notice of the pendency of the original suit until long after the decree had been entered. It appears that the petitioners paid into court $253.06 costs, which they were required to pay, under the order of the court, as a condition upon which the decree would be opened up and a hearing had touching matters set forth in their petition.

ing a last will and testament, by the second, construction of section 19 of the chancery clause of which he devised all of his estate, act; and, second, because the evidence does both real and personal, to his "wife, Sabila not show that petitioners are, in fact, the Barbara Rupprecht, to hold and to have to heirs of Sabila Barbara Rupprecht. her, my said wife, and to her heirs and assigns forever." In the subsequent clause of the will it was provided that at the death of his wife all of his property should be sold and the proceeds given to a large number of legatees, most of whom resided in Germany. The wife of the testator died February 24, 1904. The administrator of the widow's estate filed a bill to have the will construed and for a partition of the estate. Louis Richard, claiming to be the sole heir of Sabila Barbara Rupprecht, filed a cross-bill, claiming that he inherited the entire estate from Mrs. Rupprecht, who, it was claimed, took the fee under the second clause of her husband's will, under the application of the rule in Shelley's Case. The collateral heirs, who resided in Germany, were made parties under the name of "unknown heirs," and were served as such by due publication. Upon a hearing of the cause the circuit court held that the widow took a fee title under the second clause of the will, and that Louis Richard, as her sole heir, inherited the en- | tire estate from her. Upon a review of the record in that case this court affirmed the decree of the circuit court. Rissman v. Wierth, 220 Ill. 181, 77 N. E. 108, 110 Am. St. Rep. 243. Afterwards, on October 6, 1906, several nieces and nephews of Sabila Barbara Rupprecht who had been made parties to the original bill under the description of "unknown heirs," but who had not answered the bill or otherwise appeared, by their attorney, Mr. Vocke, filed their petition under the nineteenth section of our chancery act, alleging that they had not been summoned in said cause or served with a copy of the bill, and had not received the notice required to be sent them by mail, and further alleging that the said Louis Richard was not the sole heir of Sabila Barbara Rupprecht; that the said petitioners were a part of the legal heirs of Sabila Barbara Rupprecht, and entitled, in the aggregate, to two-thirds of the estate, and that said Louis Richards became seised, upon the death of his aunt, Sabila Barbara Rupprecht, of an undivided one-third of said premises, instead of the entire interest, as erroneously adjudged and determined by the original decree. Upon a hearing of the matters alleged in said petition the original decree was vacated, and a decree rendered in accordance with the facts set up in the subsequent petition, finding that the petitioners were the owners of two-thirds of the estate in fee, and that Louis Richard was the owner of the other one-third part. Louis Richard has perfected an appeal from this decree, and insists upon a reversal for two reasons: First, because, he says, petitioners have not "appeared in

It appears from the affidavit of William Vocke that he is the agent and solicitor for the petitioners, and he makes oath that the facts set forth in the petition are true. The petitioners did not personally come into open court, but only appeared by their agent and solicitor, William Vocke. Appellant's first contention is that the court erred in vacating the decree upon a petition signed by an agent and solicitor. His contention is that the statute requires the personal appearance of the petitioners in open court.

The nineteenth section of the chancery act (Hurd's Rev. St. 1908, p. 237), under which this petition is filed, is as follows: "When any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill, or received the notice required to be sent him by mail, and such person, his heirs, devisees, executor, administrator or other legal representatives, as the case may require, shall, within one year after notice in writing given him of such decree, or within three years after such decree, if no such notice shall have been given as aforesaid, appear in open court and petition to be heard touching the

costs as the court shall deem reasonable in | risdiction of the court, so that the matter that behalf, the person so petitioning may may be finally disposed of. There is no appear and answer the complainant's bill, ground for questioning the good faith of peand thereupon such proceedings shall be had titioners or the regularity of the manner in as if the defendants had appeared in due which they have appeared in court. season and no decree had been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise the same shall be ordered to stand confirmed against said defendant. The decree shall, after three years from the making thereof, if not set aside in manner aforesaid, be deemed and adjudged confirmed against such defendant, and all persons claiming under him by virtue of any act done subsequent to the commencement of such suit; and at the end of the said three years, the court may make such further order in the premises as shall be required to carry the same into effect."

Appellant's second and only remaining contention is that the evidence does not establish the heirship of petitioners. The evidence on behalf of petitioners consists mainly of depositions, taken in Germany, of persons residing in the neighborhood where Mrs. Rupprecht was born and reared. These witnesses, John L. Rissman, Cathrina Wierth, Karl Kreutzer, and Julius Reinhardt, and others, grew up in the neighborhood where Mrs. Rupprecht was born, and where her family still resides. Their opportunities for knowing the facts to which they depose were such that they could not be mistaken about the family history and relationship of petitioners to Mrs. Rupprecht. From their testimony it appears that Mrs. Rupprecht's father was married three times, and her mother only once. Her mother was the first wife. Of the children born of this union, four, besides Mrs. Rupprecht, grew up to womanhood, viz., Cathrina, Maria, Margaretha Barbara, and Margaretha Julia Meck. Cathrina married a man by the name of Mehl; Maria married Neiderlohner; Margaretha Barbara married John Michael Mayer, whose brother, Frederick Mayer, testifies to the heirship; Margaretha Julia married the appellant's father, Reichardt; and Sabila Barbara married Rupprecht. Of the five daughters of the first marriage, Cathrina Mehl died leaving five children, who are part of the petitioners in this case. By his second marriage the father of Mrs. Rupprecht left one daughter, Anna Margaretha Schaetzler, who is still living and is the other petitioner. She is a half-sister to Mrs. Rupprecht. It appears that all the other sisters died without leaving issue, so that the estate of Mrs. Rupprecht passed, by descent, one-third to Louis Reichardt (Richard) as the sole representative of Margaretha Julia

Appellant's contention is that the right, under the statute, to appear and petition, is stricti juris, and insists that, since the right is given by the statute only, the remedy must be pursued in the manner provided by the statute. We cannot assent to this view. This statute is remedial, and its application, in a proper case, is intended to prevent a miscarriage of justice. But, even if the strict rules of construction insisted upon by the appellant be applied, there is nothing in the statute that can be reasonably construed to require that the petitioners should appear in person and petition, etc. Appellant's whole argument on this point proceeds on the assumption that the statute requires that the defendants petitioning shall appear "personally" in open court. We are unable to discover any reason for requiring the personal appearance of the petitioners before the court. If they come in and submit themselves to the jurisdiction of the court by filing a petition through a duly authorized agent and solicitor, they are before the court for all purposes that could be subserved if they were actually sitting in the courtroom. | Reichardt, and one-third to Anna MargaIt would often be very inconvenient, and sometimes wholly impossible, for petitioners to appear in person before the court. In the case at bar the petitioners reside fully 4,000 miles from the place where the court was being held. To require them to incur the expense and loss of time necessary to enable them to appear personally in court would be unreasonable, and more especially so in view of the fact that their presence in court would serve no useful purpose. The only matter that the court is concerned about is that the parties have submitted themselves to the ju

retha Schaetzler, the half-sister, and onethird to the children of Cathrina Mehl. The relationship of all of these parties to the deceased, Mrs. Rupprecht, is satisfactorily established by the depositions in the record, and is corroborated by the parish register of births and deaths, which was offered in evidence.

There are no other reasons urged for a reversal of this decree. The decree of the circuit court of De Kalb county will be affirmed.

Decree affirmed.

(244 III. 121.)

linquent special assessments for a street imPEOPLE ex rel. THOMPSON, County Treas-provement. From a judgment for relator. urer, v. HARPER et al. defendants appeal. Affirmed.

(Supreme Court of Illinois. Feb. 16, 1910.)

George W. Wilbur and Sherman C. Spitzer, 1. MUNICIPAL CORPORATIONS (§ 546*)-RIGHT for appellants. George A. Mason and Eu TO APPEAR SPECIALLY-MATTERS GOING TO MERITS "JURISDICTION OF PERSON"-"Ju-gene H. Dupee (Edward J. Brundage, Corp. RISDICTION OF SUBJECT-MATTER." Counsel, of counsel), for appellee.

The variance between an ordinance, for the paving of a street and the curbing of it with limestone, and the publication notice and de- CARTER, J. This in an application by linquent list, specifying an assessment for curb- the appellee for judgment and order of sale ing with wooden blocks and paving the street, goes to the merits, and can be raised, without a as to property of the appellants by reason special appearance questioning the jurisdiction of the alleged nonpayment of a special asof the court to render judgment and order of sessment for paving Diversey street from sale of property for nonpayment of a special Milwaukee avenue to Crawford (now Fortiassessment; for jurisdiction is authority to hear and decide a case, and "jurisdiction of the eth) avenue. The appellants filed an appearperson" means the authority obtained by serv-ance, which they insist was special, for the ice of a summons or other proper notice or by purpose of questioning the jurisdiction of the an appearance to render a personal judgment, and "jurisdiction of the subject-matter" is the court, asking that the cause be dismissed bepower to hear and determine cases of the gen- cause the improvement described in the puberal class to which the proceeding in question lication notice and delinquent list was a difbelongs (quoting 4 Words and Phrases, pp. ferent improvement from that described in 3855, 3886). the ordinance upon which the assessment was based. After a hearing in the county court, the objections were overruled and judgment entered. This appeal followed.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 546.*]

2. MUNICIPAL CORPORATIONS (§ 547*)—SpeCIAL ASSESSMENTS-ENFORCEMENT.

On an application for judgment and order of sale of property for a delinquent special assessment for a street improvement, the delinquent list stands as a declaration and the publication notice as process, and they must agree; and where they agree the court has jurisdiction of the persons of the owners of the property, and may decide questions raised by the objec

tions of the owners.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 547.*]

3. MUNICIPAL CORPORATIONS ($ 550*)-SPECIAL ASSESSMENTS-ENFORCEMENT.

The statutory requirements as to the publication notice and delinquent list in local improvement proceedings must be strictly complied with.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1259; Dec. Dig. 8 550.*]

4. MUNICIPAL CORPORATIONS ($ 550*)-SPE

CIAL ASSESSMENTS - ENFORCEMENT — VARI-
ANCE.

Local Improvement Act, § 67 (Hurd's Rev. St. 1908, c. 24, § 573), and Revenue Act (Hurd's Rev. St. 1908, c. 120) §§ 182, 188, relating to judgment and sale for delinquent special assessments, do not require that a description of the improvement shall be set out in the publication notice and delinquent list, and the part of a publication notice and delinquent list which attempts to describe the improvement may be stricken out as surplusage, where the variance between the ordinance for the local improvement and the publication notice and delinquent list does not mislead; the improvement provided for in the ordinance not being different from that advertised.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1259; Dec. Dig. § 550.*]

Appeal from Cook County Court; Lewis Rinaker, Judge.

Application by the People, on the relation of John R. Thompson, County Treasurer, against R. C. Harper and others, for judgment and order of sale of property for de

On

The publication notice and the judgment. sale, and redemption record specify an assessment "for curbing (with wooden blocks), filling, and paving Diversey street," etc. the hearing appellants introduced the original ordinance, which provided, among other things, that the street should be "curbed with best quality of limestone curbstones," etc. It is insisted by appellants that there is a variance as to the curbing between the said ordinance and the publication notice and delinquent list. It is argued that this variance must be raised by a special appearance questioning the jurisdiction of the court. We cannot so hold. Jurisdiction is authority to hear and decide a case. People v. TalSuperior Court, 234 Ill. 186, 84 N. E. 875. madge, 194 Ill. 67, 61 N. E. 1049; People v.

Counsel for appellants argue that this variance defeats the jurisdiction of the court as to the persons of appellants. Jurisdiction of the person is generally understood to mean the authority, obtained by the service of a summons or by other proper notice, or by an appearance, to render a personal judgment. 17 Am. & Eng. Ency. of Law (2d Ed.) p. 1063; 4 Words and Phrases, p. 3885, and cases cited. On a hearing of this character "the delinquent list stands as a declaration and the notice as process, and they must agree." Smythe v. People, 219 Ill. 76, 76 N. E. 82; Wiggins Ferry Co. v. People, 101 Ill. 446. As we have seen, the notice and delinquent list contain the same description as to the curbing. It is not claimed thatthere is any variance between them. The notice gave the court jurisdiction of the persons of appellants. To decide the question raised by the objections required the court to hear and decide whether the improvement

advertised was that provided for in the ordinance. The court could only decide this question upon the theory that it had jurisdiction of the persons. Nicholes v. People, 165 Ill. 502, 46 N. E. 237; Ladies of Maccabees v. Harrington, 227 Ill. 511, 81 N. E. 533. There is no basis for an argument that the court did not have jurisdiction of the subject-matter; that is, the power to hear and determine cases of the general class to which the proceedings in question belong. Bostwick v. Skinner, 80 Ill. 147; Figge v.

(244 III. 138.)

STAFFORD et al. v. READ et al. (Supreme Court of Illinois. Feb. 16, 1910.) 1. WILLS (§ 440*) - CONSTRUCTION - INTEN

TION.

In construing wills, effect should be given to the intention of the testator if it can be gathin violation of any rule of law. ered from the provisions of the will, and is not

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 956; Dec. Dig. § 440.*] 2. WILLS (8 440*)-CONSTRUCTION-LIMITATION OVER-ISSUE.

the testator intended a limitation over to take Where it clearly appears from the will that effect only in case the first taker died without issue surviving him, that intention will be given effect.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 956; Dec. Dig. § 440.*]

*

*

* and his brothers and sisters which he has or may have, shall die without issue, then the said land to revert to the said children before named and their heirs." Held, that the words "shall die without issue" were not intended to mean without issue or children surviving the first takers at the time of their death, but meant if they should die without having had issue or children born to them, and hence birth of issue at any time vested the estate, and defeated the limitation over.

Rowlen, 185 Ill. 234, 57 N. E. 195; 11 Cyc. 669, and cases cited; 4 Words and Phrases, 38S6, and cases cited. The jurisdiction of the trial court clearly extended over the class of cases to which this proceeding belongs. The objections did not raise a jurisdiction-3. WILLS (§ 545*)-CONSTRUCTION - LIMITATION OVER-"DIE WITHOUT ISSUE." al question but one that clearly went to the Under a will giving to six of testator's chilmerits. The statutory requirements as to dren an equal portion of the estate, and chargthe publication notice and delinquent listing them with legacies in favor of other children, unless they elected to share equally with must be strictly complied with. Gage v. the six, and providing that the six children and People, 188 Ill. 92, 58 N. E. 947; Smythe v. the others, if they elected to share, should make People, supra. Our attention has not been a payment of "$200 to be laid out in land for called, however, to any provision of the sisters which he has or may hereafter have, all and the brothers and my grandchild statute or decisions of this court which re- to share equally. * I also direct that the quire a description of the improvement, to shares of my daughters, if they die without chilbe set out in said notice or delinquent list. descendants, if they have any. If my grandson, dren, descend to their surviving sisters or their On the contrary, sections 182 and 188 of the revenue act (Hurd's Rev. St. 1908, c. 120) and section 67 of the local improvement act (Hurd's Rev. St. 1908, c. 24, § 573), which pertain to this subject, contain no such provision. This court has held that the law does not require such description to be set out in those documents (People v. Prust, 219 Ill. 116, 76 N. E. 68); hence that part of the publication notice and delinquent list which attempts to describe the improvement can be stricken out as surplusage, leaving not even a technical variance between said notice and delinquent list and the original ordinance. Then, too, the alleged error did not in any way affect the substantial justice of the tax, nor was it calculated to mislead. While the notice and delinquent list were not formally and technically correct, the object and intent of the law were substantially attained thereby, and no advantage, therefore, can be taken of the inaccuracies complained of. Gage v. People, 223 Ill. 410, 79 N. E. 158. Of course, had the improvement provided for in the ordinance been a different one from that advertised, the objection could properly be raised on application for judgment of sale. City of Chicago v. Nodeck, 202 Ill. 257, 67 N. E. 39, and cases cited. It is not claimed that the special assessment advertised is not actually the same improvement provided for in the ordinance. The objections were properly overruled.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1171-1176; Dec. Dig. § 545.*

For other definitions, see Words and Phrases, vol. 3, pp. 2059-2061.]

Appeal from Circuit Court, Piatt County; W. G. Cochran, Judge.

Suit by George W. Stafford and others against Whitley Read and others. From a decree dismissing the bill for want of equity, complainants appeal. Affirmed.

This was a bill filed by appellants for the partition of certain real estate described, and to set aside as a cloud upon the title of the complainants the will of Ann Maria Moore Read. Appellants claim title to the land under and by virtue of the provisions of the will of Thomas Stafford. The bill alleges that Thomas Stafford resided in Fountain county, Ind.; that he executed a will on or about the 13th of August, 1847, and a codicil to the said will August 31, 1847. The will and codicil are set out in the bill, and are as follows:

"In the name of God, Amen.-I, Thomas The judgment of the county court will be Stafford, of Fountain county, state of Indiaffirmed.

Judgment affirmed.

ana, do make and publish this my last will and testament, hereby revoking and making

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

void all wills by me at any time heretofore | hereafter have, all to share equally; and made.