after to defeat the intention of the board or the directors that made the levy. It was the positive duty of this school district, under section 12 of article 9 of the constitution, to make a levy for building purposes sufficient to pay the $3600 interest to fall due on the proposed bonds in July, 1921, and in January, 1922. No statute of the legislature can override the positive provisions of this section of the constitution making it the duty of a school board to make provision for the payment of its bonded indebtedness and interest as the same fall due. The board would be subject to mandamus proceedings if it should refuse to comply with such duty, and unless the school board in question had levied, as it says it intended to do, $3600 for the purpose of paying interest on the proposed bonds it would have had no money on hand to pay the interest in January, 1922, as a levy for 1921 would not put money into the treasury until long after that time. We have frequently held that the provisions of this section of the constitution are self-executing and that municipalities are bound thereby, notwithstanding the fact that a levy to satisfy such indebtedness will exceed the statutory limit fixed by the legislature.

What we have thus far said makes it unnecessary for us to discuss the further reasons urged by appellants as to the illegality of the levy for building purposes, as under no view of the case is it in excess of the actual needs of the district or in excess of any constitutional or statutory rate or limitation, so far as this record shows.

As to the levy for educational purposes little else need be said. The record evidence does not show that it was so excessive as to be considered fraudulent as to appellants or the other tax-payers in the district. This levy was for only $8000. The funds in the hands of the old treasurers were not so kept that it could be determined what part of the funds of the old district were held for building purposes, if any, and how much for educational purposes. School district No. 176 spent nearly $900 in employing its teachers

and conducting its school,-a situation which the board was powerless to remedy owing to the action of some of the objectors. The board did not know and could not determine whether any of the funds in the hands of the old districts would be available for its use when it made the levy. District No. 176 and this board paid out nearly $7000 for educational and building purposes in the district for the year 1920. The consolidated board contemplated purchasing carriages to convey certain school children to the school, which appellants have estimated from the evidence in the record would cost not less than $3000. Appellants contend, too, that these carriages could properly be paid for only out of the educational fund, and we are inclined to agree with them, although we are not deciding that question as it is not necessary. No contention is made that this expense is one that the board has no power to incur. Considering the levy at the time it was made, as we must, there is no basis in the record for the claim that the levy was intentionally excessive or so excessive as to be deemed fraudulent as to appellants. We must therefore sustain this levy as one that is legal and binding on the residents of the district.

It is contended by appellants that the board of education had intended to pay the expense of carrying the school children out of the building fund, and that such expense is not legally chargeable to the building fund. It was not incurred or paid out of either fund. The record does not support the conclusion that the levy for building purposes was to include this expense at the time the levy was made. The payment of this expense out of the building fund, or the intended payment thereof out of such fund, can only be considered as an intentional diversion of such fund for improper purposes. Such an intentional diversion of the fund cannot be obviated or reached by the objections in this case, as the remedy is in equity and no specific objections were made. People v. Bates, 266 Ill. 55.

Dec. '21.] THE PEOPLE v. C., C., C. & ST. L. RY. Co. 301

The conclusions that we have already reached make it unnecessary to further consider in detail the arguments and contentions of appellants against the legality of the levy of the school board, and for the reasons given the judgment of the county court is affirmed.

Judgment affirmed.

(No. 14306.-Judgment reversed.)

THE PEOPLE ex rel. Ed. R. Knecht, County Collector, Appellee, vs. THE Cleveland, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY, Appellant.

Opinion filed December 22, 1921.

This case is controlled by the decision in People v. Chicago and Eastern Illinois Railroad Co. (ante, p. 218.)

APPEAL from the County Court of Shelby county; the Hon. A. J. STEIDLEY, Judge, presiding.

George B. Gillespie, (LeonARD J. HACKNEY, W. C. & W. L. KELLEY, and GEORGE M. GILLESPIE, of counsel,) for appellant.

ROBERT I. PUGH, State's Attorney, and GEORGE B. RHOADS, for appellee.

Mr. JUSTICE DUNN delivered the opinion of the court:

This is an appeal from a judgment and order of sale for taxes rendered by the county court of Shelby county. The tax and the questions involved are the same as in the case of People v. Chicago and Eastern Illinois Railroad Co. (ante, p. 218,) and the decision will be the same.

The judgment of the county court will be reversed and judgment will be rendered here sustaining the objections. Judgment reversed.

(No. 14238.-Reversed and remanded.)

ELIZABETH CHURCHILL, Appellant, vs. ABIGAIL MARR,

Appellee.

Opinion filed December 22, 1921.

1. WILLS-statement of the rule in Shelley's case. If an estate of freehold is granted by an instrument and a remainder is limited by the same instrument, either mediately or immediately, to the heirs or heirs of the body of the person taking the freehold, by the name of "heirs" as a class, without explanation, the person taking the freehold estate takes also the remainder.

2. SAME meaning of the word "heirs." The word "heirs" indicates all those persons who upon the death of the immediate ancestor succeed to the estate from generation to generation.

3. SAME-rule in Shelley's case does not apply if word “heirs" is used as a word of purchase. If the word "heirs" is so limited in a devise as not to include the whole line of inheritable succession of the life tenant but only to designate the individuals who are upon his death to succeed to the estate and who are themselves to constitute the source of future descent the rule in Shelley's case does not apply, and the estate subsequent to the life estate takes effect as a contingent remainder to the heirs of the life tenant, as purchasers.

4. SAME―when devise to “surviving heirs" is not subject to rule in Shelley's case. Where a testator gives his wife the income from his estate for her life and provides that at her death the same shall go to his children until the last child shall have died, when the executor is to sell all the property and distribute the proceeds to "the surviving heirs" of his children, the rule in Shelley's case will not apply to give the children the fee, as the word "heirs" is not used to designate the whole line of inheritable succession in each child but only to designate the remainder-men who are to take at the death of the last surviving life tenant.

5. SAME-rule in Shelley's case does not apply where life tenant has interest only in income of estate. Where a testator gives his wife and children the income of his estate for their lives, with directions to the executors to collect rents and profits after the death of any child until the death of the last surviving child, when they are to sell the property and distribute the proceeds to the surviving heirs of the children, the children take no interest as life tenants in the land itself and the rule in Shelley's case has no application, as they have only a contingent equitable interest in the proceeds of the land as personal property.

6. SAME-when executors take an estate in fee. As trustees must take such estate as is necessary to enable them to perform the trust, executors who are required to manage and control the land of the testator and eventually to sell and convey it and distribute the proceeds take an estate in fee simple.

7. EQUITY-when a court of equity will appoint a trustee. A court of equity will not permit a trust properly created to fail for want of a trustee, and where for any reason a vacancy exists in the office the court will appoint a trustee where no other provision for the appointment exists.

8. SAME when court will appoint trustee under prayer for general relief although special relief must be denied. Where a bill prays for construction of a will and partition accordingly and asks for general relief a demurrer should not be sustained although the prayer for special relief cannot be granted, where the bill shows that the complainant is entitled to the appointment of a trustee to take the place of executors who have died prior to the expiration of the period provided in the will for the distribution of the estate.

APPEAL from the Circuit Court of Fulton county; the Hon. GEORGE C. HILLYER, Judge, presiding.

C. B. ADAMS, and W. S. JEWELL, for appellant.

BURNETT M. CHIPERFIELD, and CLAUDE E. CHIPERFIELD, for appellee.

Mr. JUSTICE DUNN delivered the opinion of the court: Charles B. Churchill died in August, 1893. He left a widow, a son and three daughters surviving. His will was admitted to probate and so far as is material to the questions in this case disposed of his property as follows: Besides certain personal property he gave to his wife the right to occupy his residence as long as she lived. He made the following devise to his son:

"To my son, Franklin S. Churchill, I give, devise and bequeath my homestead property, the same being the northwest quarter of section thirty-two (32) and twenty-two (22) acres out of the southeast corner of the northwest quarter of section thirty-three (33), all in Canton township, in the county of Fulton and State of Illinois, to have and