which assent was given by the grantors. Sterling then told Sellers that he would take the deed to Bloomington and have it stamped and recorded, and no objection or protest was made to his having it stamped and recorded. Sterling also told the grantors distinctly that the deed would have to be delivered to one or the other of the trustees before it would take effect, and also told Sellers he could deliver it to the trustees after it came back to him. This is positively all that was said on that occasion upon the question of delivery or at any time thereafter by the grantors. Three other persons testified on this subject: George M. Sellers, Mary E. Bonnett and Miss Mary West, the last named having lived there with the family a good many years and was twenty-six years old when she testified in this case. Miss Bonnett and Miss West were hostile witnesses against Sellers and the other parties complainant to his bill. They both corroborate Sterling and Sellers in their testimony that there was nothing further said upon the question of delivery of the deed other than testified to by Sterling. They contradict Sterling and Sellers upon some points in their testimony with reference to what Sellers said about the binding effect of the deed, the two women in substance testifying that when Sterling took the acknowledgment of the deed he held it up and said to them, "This deed will always stand; I will take it to Bloomington and have it recorded." Miss Bonnett testified that there was no reply by any of the grantors and that that statement was made by Sterling. Sellers did testify positively that he never delivered that deed to anyone and that he did not know how it got out of his possession, and there is nothing in the record contradictory of his statement except the bare fact that the deed was found in the box of William M. Keys, one of the grantors, after his death. The testimony further shows that after the deed was recorded and after the death of Mrs. Keys, Sellers continued to live at the homestead with Keys until they had a misunderstanding some six

months later, and that Miss Bonnett continued to live with Sellers at the homestead until she and Sellers also had a misunderstanding. The evidence clearly shows that Keys must have taken possession of this deed and placed it in his box at the bank without any knowledge or consent of Sellers. It is also equally clear that Mrs. Keys never delivered or directed a delivery of this deed to her husband or to the trustees and that Miss Bonnett did not do so. Miss West positively testified that Mrs. Keys was a very sick woman when the deed was executed, and that she was absolutely unable to talk at the time it was executed and died five days later. The deed is indorsed by the recorder, and his certificate thereon shows that it was filed for record June 2, 1900, at 4:35 o'clock P. M. Mrs. Keys' death occurred June 5, 1900, and while it does not definitely appear when the deed was returned from the recorder's office, it is quite clear that Mrs. Keys never saw it after its execution and made no direction as to its delivery, and no other suggestion was made for delivery by any of the grantors, or by anyone in their presence, except the one made by Sterling, and that suggestion was not carried out. There was no delivery of the deed either to the life tenant, Keys, or to any one of the trustees, and Keys' possession of the same was without authority of any grantor other than himself. In an express trust no title vests in the trustee unless he expressly or by implication accepts the trust or in some way assumes its duties and liabilities. McFall v. Kirkpatrick, 236 Ill. 281.

George M. Sellers and the heirs of William M. Keys, appellees, are all represented in this appeal by the same counsel. There is no intimation in their brief and argument that there was any intention by Sellers to contend, as against the heirs of William M. Keys, that Lizzie R. Keys acquired but a life estate in the farm lands under the second assignment of cross-errors. We take it that this assignment was to be insisted on only as against the trustees.

The deed of George M. Sellers to Lizzie R. Sellers (afterwards the wife of William M. Keys) was to her "during her natural life, and at her death to her heirs, if any." We think it is clear that the grantee in this deed took a fee simple title under the rule in Shelley's case, which is an absolute rule of law that overrides the intention of a testator in a will or a grantor in a deed. Under that rule, if an estate for life is granted by any instrument and in the same instrument a remainder is limited, either mediately or immediately, to the heirs of the life tenant, the life tenant takes the remainder as well as the life estate; and there is always a strong legal presumption that the word "heirs" is used in its technical sense, as denoting the whole of the indefinite line of inheritable succession. (Carpenter v. Hubbard, 263 Ill. 571.) The only ground for contention that a life estate, only, is granted by this deed is the simple fact that the word "heirs" in the clause above quoted is followed by the words "if any." There are no other words used in the deed explanatory of the word "heirs," and we are not disposed to hold that the word "heirs" meant children simply by reason of the addition of the words "if any," and particularly in view of the further fact that George M. Sellers, the grantor, paid one-half of the rent to William M. Keys for the land so conveyed up to the time of his death and never questioned the fact that he had conveyed to his daughter the fee simple title to said land. His interpretation of the deed shows his actual intent in making the deed, and we do not think that his actual intent is any way different from the legal intent that he is presumed to have had under said rule of law.

In view of the conclusion at which we have arrived under the assignments of error already considered, it is not necessary to consider the other errors assigned by the parties. The decree of the circuit court is therefore affirmed. Decree affirmed.

(No. 13157.-Reversed and remanded.)

THE PEOPLE OF the State of ILLINOIS, Defendant in Error, vs. CHARLES F. EMMEL, Plaintiff in Error.

Opinion filed April 21, 1920.

I. CRIMINAL LAW-definition of confidence game. The confidence game may be defined as any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler.

2. SAME-form of transaction is immaterial in practice of confidence game. In a prosecution for obtaining money or property by means of the confidence game, if the transaction is, in fact, a swindling operation it is immaterial how the confidence has been acquired or that the transaction assumes the form of a lawful contract, if the confidence is used to enable the person in whom it is reposed to obtain the property of his victim and is used with that intent.

3. SAME-one may be convicted of the confidence game although confidence has been acquired by a long course of honest dealing. Where one has acquired the confidence of another, whether suddenly and by falsehood or by a long course of honest business dealing, and has made use of that confidence to obtain the other's property with the intention of cheating him out of it, the person so obtaining the property may, under the statute, be convicted of obtaining the property by means of the confidence game.

4. SAME mere acceptance of another's property with intent to convert to one's own use does not constitute confidence game. A trusted agent who, without any action on his part to induce the offer, accepts securities voluntarily offered to him to be collected or sold or to be kept safely, is not guilty of obtaining them by means of the confidence game, even though he may have intended to convert them to his own use if he got them, as he had done nothing to procure them with that purpose in view.

5. SAME when instruction as to confidence game is not erroneous. In a prosecution for obtaining securities by means of the confidence game, an instruction stating that if the jury believe the papers were delivered to the defendant at his request and because of confidence reposed in him and that he "procured" said papers with the purpose and intent of converting them to his own use they should consider such facts in determining his guilt is not erroneous, as the word "procure" implies action on the part of the defendant to bring about the delivery of possession to him.

6. SAME-in a prosecution for confidence game, evidence may show property was obtained from owner's agent. In an indictment for the confidence game it is sufficient to allege that the property obtained was either that of the general owner or of the agent in possession, and it is sufficient to prove that the confidence game was practiced either on the owner or the agent.

7. SAME what evidence of other transaction is not admissible in prosecution for confidence game. In a prosecution for obtaining notes and mortgages by means of the confidence game, evidence that the defendant, nearly five years before the finding of the indictment, borrowed money of the same person who is the alleged victim of the confidence game and gave a forged note as collateral security, tends to prove the crime of forgery and is not admissible.

8. SAME-contradictory instructions should not be given. Contradictory instructions should not be given, as it cannot be presumed that the jury will know which instruction should be accepted as the law.

WRIT OF ERROR to the Circuit Court of Fayette county; the Hon. THOMAS E. FORD, Judge, presiding.

J. G. BURNSIDE, and F. M. GUINN, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, Will P. WELKER, State's Attorney, and FLOYD E. BRITTon, (June C. SMITH, of counsel,) for the People.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the

court:

Charles F. Emmel was found guilty in the circuit court of Fayette county in manner and form as charged in an indictment which charged him in three counts with obtaining from Lisetta Springer her money and property of the value of $5000 by means of the confidence game. He was sentenced to an indeterminate term of imprisonment in the penitentiary and has sued out a writ of error to reverse the judgment of conviction.

Lisetta Springer was a widow who had lived in Vandalia for thirty-five years. Her husband had conducted a bakery. during his lifetime, and after his death she, with her three