executrix named in the will as to whether it should be leased or sold. She resigning, no longer had a right to exercise the power of sale conferred by that clause, and the appointment of an administrator with the will annexed did not confer upon him the right to exercise the power to sell that was given by the provisions of that section to the executrix named in the will. Hall v. Irwin, 2 Gilm. 176; Nicoll v. Scott, 99 Ill. 529.

No provision is made for the vesting of these lands in any one. They are simply to be taken charge of by the executrix appointed under the will. No provision is made for the fee to vest in, or possession to come to, the heirs or any of the descendants at any time. Neither is there provision made that at a time in the future the proceeds of the lands, if converted into money, should be paid over to the heirs or their descendants. Hence this provision is one in which lands owned by the testator are to stand in perpetuity, to be rented by the executor or administrator of the testator. The intention of the testator is disclosed by the provision of the twenty-ninth clause of the will, that "in case of death or inability of said executor the judge shall, from time to time and for all time to come, appoint a good, suitable person as a successor." This is a declaration of an intention to create a perpetuity as to this land, on the part of the testator. Because of the resignation of the executrix named and the appointment of the administrator with the will annexed, the lots and lands included in the eighth clause are held by the administrator to be rented, and to collect the rents and divide the same, with no power in him to sell the lands without a decree of court. The debts having been paid, no right to sell would be conferred on him and no power to sell could be exercised by him.

Perpetuity is a limitation taking the subject matter of the perpetuity out of commerce for a period of time greater than a life or lives in being and twenty-one years thereafter. If, by any possibility, a devise violates the

rule against perpetuities it cannot stand. If there is a possibility that a violation of this rule can happen, then the devise must be held void. (Waldo v. Cummings, 45 Ill. 421; Post v. Rohrbach, 142 id. 600; Dedford v. Dedford, 26 Md. 176; Sears v. Putnam, 102 Mass. 6; Gray on Perpetuities, secs. 214, 369, 374.) Neither will the violation of the rule against perpetuities be tolerated when the property is covered by a trust, any more than when such violation actually appears in the creation of a legal estate. Courts of equity will not permit limitations of future equitable interests to transcend those of legal interests, which are upheld as executory devises and shifting and springing uses at law. Howe v. Hodge, 152 Ill. 252.

If it could be contended that by the eighth clause of this will the rents of the lands are devised to the persons named therein, and their heirs, absolutely, they to take the entire income, that would pass the land itself, for a devise of rents and profits, or the income of land, both at law and in equity, is a devise of the land. This rule is based upon the feudal law, under which the beneficial interest in the land consisted of the right to take rents and profits. It cannot be held that the rents and profits vested in the persons named in the eighth clause, and their heirs, forever, because the right of the heirs of Mary J. Mascall to take was dependent on her leaving children, heirs of the testator.

By the sixteenth clause of the will the dividend of ten shares of bank stock, or the interest derived from the proceeds, was to be forever used in caring for the family cemetery lot, and it is urged the provision of the twentyninth clause applies and has reference to the sixteenth clause, and not to the eighth. Inasmuch as the eighth clause does not provide for the vesting of the fee of the land at any time, or for the payment of the proceeds to any one at any time if the land should be sold, this latter contention cannot be sustained. The intention of the testator being disclosed by the provisions of the will, and

no time fixed for the lands or the proceeds derived from the sale of the same, included in the eighth clause of the will, to vest in any one, the rule against perpetuities is violated, and the lands included in that eighth clause became intestate, and were subject to partition by the legal heirs, and the demurrer to the bill was properly overruled. The decree of the circuit court of Henry county is affirmed. Decree affirmed.

GEORGE TORRENCE

V.

THE PEOPLE ex rel. W. E. Peabody.

Opinion filed December 22, 1897-Rehearing denied February 15, 1898.

The questions involved in this case are disposed of in the opinion rendered in the case of Hoover v. People ex rel. (ante, p. 182.)

APPEAL from the County Court of Christian county: the Hon. LYMAN G. GRUNDY, Judge, presiding.

J. C. MCBRIDE, and D. M. SHARP, for appellant.

A. H. RANES, City Attorney, E. A. HUMPHREYS, State's Attorney, and JOHN E. HOGAN, for appellee.

Per CURIAM: A judgment was entered by the county court in this case against appellant for $180.04,-the aggregate of special taxes levied by the city of Taylorville upon separate lots of land owned by him and situated in different blocks. The report of the city clerk is in the same form as in the case of Hoover v. People ex rel. (ante, p. 182,) and the same questions are involved in the two cases. What is said in that case is equally applicable to this, and need not be repeated.

The judgment of the county court is reversed and the cause is remanded. Reversed and remanded.

MARILLA CLARK

V.

THE AMERICAN SURETY COMPANY.

Opinion filed December 22, 1897-Rehearing denied February 15, 1898.

1. EXECUTORS AND ADMINISTRATORS—statutory provisions concerning release of surety on administrator's bond must be complied with. The power of the county court to release the surety on an executor's or administrator's bond is derived wholly from the statute, and the statutory provisions in that regard (Rev. Stat. 1874, chap. 3, secs. 33, 35,) must be strictly complied with.

2. SAME-court cannot waive requirements of statute on releasing surety on administrator's bond. Under section 35 of the Administration act (Rev. Stat. 1874, p. 110,) the county court cannot release a surety on an executor's or administrator's bond without first requiring the executor or administrator to adjust his accounts and pay over the balance in his hands, and to file a new bond in such penalty and with such sureties as the court may approve.

3. SAME heirs not entitled to notice of surety's application for release. Notice of the application of a surety on an executor's or administrator's bond for his release need be given only to the executor or administrator, as the statute makes no provision for notice to heirs, creditors or other interested parties.

4. SAME-petition to release surety on administrator's bond must be by the surety. A petition to release the surety on an administrator's bond must be filed by the surety, and the court has no power to release such surety upon the petition of the administrator.

5. SAME-surety's consent to draft of order for release does not give court jurisdiction to release him. A draft of an order for the release of a surety on an administrator's bond, bearing the written consent of the surety to the entry of the order and filed by the administrator with his petition asking for the release of the surety, does not give the court jurisdiction to enter an order of release.

Clark v. American Surety Co. 66 Ill. App. 284, reversed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN GIBBONS, Judge, presiding.

CONSIDER H. WILLETT, (DANIEL WEBSTER, and LOUIS KARCHER, of counsel,) for appellant.

FREDERIC F. NORCROSS, for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court:

The question in controversy here is, whether or not the courts below erred in refusing to set aside certain orders of the probate court of Cook county, which orders were entered in the matter of the estate of Frederick M. Unger, deceased, approving a bond of the administrator and discharging appellee, the American Surety Company, from all further liability as surety on his former bond. About eighteen months after these orders were entered, appellant, one of the heirs of deceased, appeared in the probate court and entered her motion to set them aside, and from the order overruling her motion she appealed to the circuit court, where her said motion was denied also and her appeal dismissed. The Appellate Court affirmed the judgment of the circuit court, and she now prosecutes this her further appeal.

The facts are, in substance, as follows: Frederick M. Unger died intestate November 12, 1892, and his brother, August M. Unger, was on November 25, 1892, appointed administrator, and entered into bond for $10,000, with appellee as surety. July 18, 1893, the administrator filed his sworn petition in the probate court reciting these facts, and alleging that he had collected $5000, and that, pursuant to an arrangement he had made with his surety, he had deposited the money in a certain bank, and was unable to draw any of it out without the consent of the surety; that the only persons interested in the said estate, besides himself, as heirs, creditors or otherwise, were Mary Unger, his mother, and Marilla Clark, his sister, residents of Mansfield, Texas; that the interested parties were anxious to invest the money so that it would bear a greater rate of interest than it did in the bank, and that his surety refused to allow him to withdraw any money for that purpose. The petitioner prayed that the appellee be discharged and released as surety on his bond and