children of the testatrix affords no basis for construing the words "heirs-at-law" to mean other than the class who would answer that description upon the death of Gilbert Hubbard, Sr. While the will provides first for a life estate in Gilbert Hubbard, Sr., and thereafter for life estates in each of the three children of the testatrix, this does not clearly indicate that the testatrix contemplated the death of her husband before that of her three children and that she meant thereby to exclude them as heirs-at-law of her husband. It is possible that by these provisions and by the addition of the spendthrift trusts in said clause 5 she had in mind to insure to each of her children the absolute enjoyment of a life interest in her estate notwithstanding any disposition her husband might make of the equitable interest in remainder.

It is also urged that the fact that the testatrix provided for distribution of part of the principal to the two sons under certain conditions is indicative of her intention to exclude her children as heirs-at-law of Gilbert Hubbard, Sr. We see no difference, in principle, between this situation and that presented in Kellett v. Shepard, supra. The special provision for the sons would not affect the application of the rule in Shelley's case, as it is not essential to the application of the rule that the estate of the ancestor and the estate of the heirs be of the same quantity. Bails v. Davis, supra.

It is finally insisted that the language used in the will, "but this trust shall not continue longer than until the decease of the last survivor of my children, when the said estate, and all accumulations thereof, shall forthwith vest. in the heirs-at-law of my husband, Gilbert Hubbard," is conclusive that the testatrix used the words "heirs-at-law" as referring to a class answering that description at the time of the death of the survivor of her three children, which, it is assumed, would be subsequent to the death of Gilbert Hubbard, Sr. No significance can well be given

*

to the devise of all accumulations of the estate to the remainder-men, as there was no trust for accumulations. As counsel for appellant suggests, the word "accumulations," with reference to the ultimate gift to the heirs-at-law, "seems to have been merely the draughtsman's love for the excessive use of language." The words, "when the said shall forthwith vest in the heirs-at-law of my husband," do not clearly indicate that any other class is referred to than those who would answer that description at the time of the death of Gilbert Hubbard, Sr. They undoubtedly refer to the time when the remaindermen shall come into the enjoyment of the estate and receive its benefits.

estate

There is nothing in the will, when examined as a whole, to indicate that the words "heirs-at-law" were employed in any unusual sense. These words having been used in their technical sense, the rule in Shelley's case applies, and Gilbert Hubbard, Sr., was given by the will not only a life estate but also the equitable estate in remainder.

The decree of the circuit court is reversed and the cause remanded, with directions to enter a decree in conformity with the views herein expressed.

Reversed and remanded, with directions.

Mr. JUSTICE VICKERS, dissenting:

I do not concur with the majority opinion in so far as it holds that the rule in Shelley's case has application to the situation presented by this record. The fundamental rule to be observed in the construction of wills is to so construe the instrument as to give effect to the intention of the maker of the will. This rule, in my opinion, is erroneously made to give way in order to apply the rule in Shelley's case. It is held that the words "heirs-at-law of Gilbert Hubbard" mean those persons who at the time of his death answered the description of his heirs-at-law. If this be the correct interpretation of the will then the application of the rule in

Shelley's case is not improperly made, but I am of the opinion that there is in the context of this will language which clearly indicates that the words "heirs-at-law" cannot be given their technical meaning and held to include those persons who at the death of Gilbert Hubbard answered that description. The language of the will clearly indicates that the testatrix did not intend that the estate in remainder should vest, under clause 3 of the will, until after the death of the last survivor of her children. The language in said paragraph which to my mind conclusively shows this intention is as follows: "But this trust shall not continue longer than until the decease of the last survivor of my children, when the said estate, and all accumulations thereof, shall forthwith vest in the heirs-at-law of my husband, Gilbert Hubbard, unless," etc. The word "when," although used as a conjunction, retains its adverbial sense of time and qualifies the dependent clause which it introduces, "the said estate, and all accumulations thereof, shall forthwith vest in the heirs-at-law of my husband, Gilbert Hubbard," and is equivalent to saying, "when the last survivor of my children shall die, then or at that time all of the estate shall vest in the heirs of my husband." Such is the recognized meaning of the word "when." (See Int. Dict.) This interpretation of the will is rendered more certain by the use of the word "forthwith" in the clause of the will under consideration. This word means, at once; immediately. The rule in Shelley's case cannot apply to the will before us, in my opinion, since its context clearly shows that the word "heirs" does not refer to those persons who answered that description at the time of the death of the life tenant. Johnson v. Askey, 190 Ill. 58; Bond v. Moore, 236 id. 576; Smith v. Winsor, 239 id. 567; Etna Life Ins. Co. v. Hoppin, 249 id. 406; Winter v. Dibble, 251 id. 200.

The trial court construed the will in such a way as to give appellant the full benefit of all the provisions thereof designed to confer upon her any rights in this estate. There

is not an intimation in any part of the will that appellant shall have any interest other than a life estate. In my opinion she is entitled to nothing more. The decree of the circuit court of Cook county properly disposed of this controversy, and it should be affirmed.

A. W. ZIEGLER et al. Appellees, vs. R. T. GILLIATT et al.

Appellants.

Opinion filed June 16, 1914.

APPEALS AND ERRORS—when question of the validity of an order organizing drainage district is not presented. Where there is no appeal or writ of error brought to review a final order organizing a drainage district, the question of the validity of such order is not presented on an appeal from a subsequent assessment proceeding, under sections 60 and 61 of the Levee act, to correct an irregularity in the original assessment roll in failing to notify a land owner of the hearing on the original assessment roll.

APPEAL from the County Court of Lawrence county; the Hon. JASPER A. BENSON, Judge, presiding.

F. C. MESERVE, and S. J. GEE, for appellants.

GEORGE W. LACKEY, and MCGAUGHEY & TOHILL, for appellees.

Mr. JUSTICE CARTER delivered the opinion of the court:

This is an appeal from a judgment of the county court of Lawrence county confirming a special assessment for benefits against the lands of appellants and others in the Ambraw River Drainage District. Preliminary steps for the organization of this district under the Levee act were taken in the county court in September and October, 1909, and three commissioners appointed, the cause being continued from term to term until July 18, 1910, when a final

order was entered establishing the district. Afterwards, September 17, 1910, the commissioners filed their assessment roll in said court and gave notice to persons interested as to the time for empaneling a jury to assess benefits and damages. Emma E. D. Gant owned the land here in question at the time of the organization of this district. She was a non-resident, living in Indiana. A proper notice was given to her as a non-resident, under the statute, as to the organization of the district, but the notice to her was not given, as required by statute, of the hearing on the assessment roll. After that original assessment roll was confirmed she conveyed the lands here in question,—about two hundred acres, to appellants This assessment proceeding was instituted in the county court under sections 60 and 61 of the Levee act, to correct the irregularities in the original assessment roll in failing to notify Emma È. D. Gant. Appellants, as the present owners of the land in question, appeared in court at the December term, 1913, and objected to this assessment upon the ground, among others, that the district was not legally organized. The trial court overruled the objections, and on a hearing before the jury the assessment was confirmed and judgment entered accordingly.

The sole question urged here is whether the district was legally organized. The order organizing the district. was final under section 16 of the Levee act, and no appeal or writ of error was taken from that order. An appeal is purely a statutory right and must be exercised in accordance with the statute. (Anderson v. Steger, 173 Ill. 112.) This appeal only brings up for review the proceedings to levy this assessment on the lands here in question. (Hurd's Stat. 1913, chap. 42, sec. 61, p. 942; Drummer Creck Drainage District v. Roth, 244 Ill. 68, and cases cited; Ellguth v. Ellguth, 250 id. 214; Lantz v. Lantz, 261 id. 194. See, also, Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Drainage District, 213 Ill. 83.) So far as we