Dallagher, a certain parcel of land on Bartlett street, in Lowell, with a double cottage thereon, the entire lot being described by metes and bounds,-"unto the said James, Ellen, and Eliza Dallagher, their heirs and assigns." After the description of the premises followed these words: "It is understood that James D. is to have No. 70, and Ellen and Eliza No. 72, in said cottage; to have and to hold the above-granted premises, with all the privileges and appurtenances thereto belonging, to the said grantees, their heirs and assigns, to their use and behoof forever." If the words, "It is understood that James D. is to have No. 70, and Ellen and Eliza No. 72, in said cottage," are omitted, it is plain that the grantees took as tenants in common, and each owned one undivided third in the entire estate. And we are of opinion that these words are too uncertain and ambiguous to change the result. These words might as well refer to occupancy as to the legal title. The report sets forth many facts to show the probable intention of the parties, but, whatever their intention may have been, we are of opinion that the words above quoted are not sufficient to give a title in fee to James Dallagher in one-half of the land. Decree affirmed.

JARVIS v. SEELE MILLING CO.1 (Supreme Court of Illinois. April 21, 1898.) EASEMENT.

From 1867 to 1875 one had maintained and owned a mill pond and dam for running his milling property, which caused a separate tract of land also owned by him to be in part overflowed. The entire property having been mortgaged, in 1875 the mill property was first sold under foreclosure, the deed of which described the property by metes and bounds, without the word "appurtenances." Afterwards the land embracing the portion overflowed was sold under foreclosure to plaintiff. The right to dam the pond gave the mill its principal value. Held, that the purchaser of the mill property thereby obtained an easement in the overflowed land, as an appurtenance to the mill.

Appeal from circuit court, Madison county. Trespass by Nanny J. Jarvis against the Seele Milling Company. From a judgment for defendant, plaintiff appeals. Affirmed. John G. Irwin, for appellant. Travous & Warnock, for appellee.

WILKIN, J. This is an action of trespass begun in the circuit court of Madison county by appellant against appellee. The, declaration alleges: First, that defendant, the Seele Milling Company, by means of a dam, caused water from a mill pond to back upon and overflow certain lands of plaintiff; and, second, that defendant, in reconstructing an old dam, raised it higher than before, causing the water to overflow more of plaintiff's land than formerly. Defendant pleaded the 1 Rehearing denied June 13, 1898.

general issue, and by stipulation all matters relevant as a defense were to be introduced in evidence under that plea. By agreement of counsel a jury was waived, and the case heard by the court. The issues were found for the defendant, and judgment rendered against plaintiff for costs. Plaintiff appeals to this court.

It appears that in 1852 a mill was built on a lot adjoining that now owned by plaintiff, and a dam was constructed, which caused the water in a small stream to overflow the latter property. The mill and the overflowed land belonged at that time to separate owners, but in 1867 the title to both lots became united in Thomas Thorp and John Carney, owners in common. In 1870 they mortgaged the entire property to secure a loan of $15,000. Subsequently the mortgage was foreclosed, and in that proceeding the lands were sold in separate lots. The mill property was sold first, to Frank Bauer; and, failing to bring the amount of the debt, the property described in the declaration, which included the overflowed land, was also sold, to one Cabanne, from whom plaintiff derives her title thereto. Defendant gets title to the mill property by mesne conveyances from Bauer. The dam continued to be used for mill purposes until in 1897, when it was partially destroyed by a freshet. At this time notice was given by plaintiff to defendant not to rebuild the dam; she claiming that the only right the mill company or its predecessors then had, or ever had, to dam the water in the stream and cause it to overflow her land, was by the simple acquiescence of herself and her predecessors, and defendant's right was no more than a revocable parol license. The dam was rebuilt, and plaintiff brought this suit in trespass.

The contention of appellant is that the owners of the mill property had acquired no right, by prescription, to overflow her land, and that they had no such right, under their deed, as an appurtenance to the mill. Upon the trial of the case, plaintiff sought to prove (and, we think, established the fact) that, up to the time the mill property and plaintiff's lot became united in Thorp and Carney, the owners of the mill had no right to overflow the other property, but had merely the tacit consent or permission of the owners thereof. But the question now is, did the sale, under the mortgage, of the mill property, being part of the whole mortgaged premises, under the circumstances that the owner of all the property from 1867 to 1875 had maintained the mill pond and dam for milling purposes, give the purchaser an easement in the overflowed land, as an appurtenance to the mill property? Appellee contends that it did. True, the deed, pursuant to the foreclosure proceedings, described the property by metes and bounds, without the word "appurtenances"; but it has been held that "where one grants a mill or other improvement, for the enjoyment of which an easement is used over

or upon other lands belonging to the grantor, such easement passes by the grant, as an appurtenance to the thing granted." Hadden

. Shoutz, 15 Ill. 581. The pond and dam in connection with the mill, as well as the mill itself, were contemplated by the parties to the mortgage, because it appears that such pond and dam gave the land its principal value, and the dam had been maintained and the pond used for such purpose for many years prior to the making of the mortgage. An "appurtenance" is defined to be "a thing used with, and related or dependent upon, another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant." 2 Am. & Eng. Enc. Law (2d Ed.) 521. It is true, a mere convenience is not an easement, but the right or privilege must be necessary or essential to the proper enjoyment of the estate granted. The question here is not, as assumed by appellant, whether the mill can be operated without the mill pond, but whether the use of the mill pond passed as a necessary appurtenant of the mill property. The deed or grant of conveyance need not contain the word "appurtenance," or similar expression, in order that appurtenances will pass thereby. Shelby v. Railroad Co., 143 Ill. 385, 32 N. E. 438; Morrison v. King, 62 III. 30. We think it clear that appellee has a right to the easement claimed, and its contention to that effect must be sustained. Appellant stands in no better position than her grantor, whose title was subject to the easement of the mill property.

On the question as to the new dam raising the water higher on the land of plaintiff than formerly, the evidence is uncertain, and somewhat conflicting. The new dam was wider, and the chute differently constructed, yet it appears the water is kept substantially at the same level as before. On all propositions of law submitted, the ruling of the trial court was in conformity with the views herein expressed. Its judgment will be affirmed. Judgment affirmed.

JENNINGS v. DUNPHY et al. (Supreme Court of Illinois. June 23, 1898.) CONSERVATOR'S SALE-POWER OF COUNTY COURT TO DISAPPROVE.

The county court has power to disapprove a conservator's sale made subject to approval, and order a resale of the property, where it appears that such resale is for the best interests of the estate, although the sale was regularly and fairly conducted, and the amount bid was a fair price for the property.

Error to Jersey county court; O. M. Slaten, Judge.

Petition of Richard Kiely, conservator of Charles M. Boyle, insane, for an order for the sale of realty owned by Boyle. The sale was had, and the property struck off to John Jennings. Mary D. Dunphy filed exceptions

to the conservator's report. The sale and the report were disapproved, and a resale ordered, and John Jennings brings error. Affirmed.

Geo. W. Herdman and Hamilton & Hamilton, for plaintiff in error. H. W. Pogue, Ed J. Vaughn, and Thos. F. Ferns, for defendants in error.

PHILLIPS, J. This is a writ of error to reverse a judgment of the county court of Jersey county disapproving a conservator's report of sale, and ordering a resale of the property. Richard Kiely, conservator of Charles M. Boyle, insane, has petitioned the court for an order for the sale of certain real estate owned by the said Boyle. A decree was entered in accordance with the prayer of the petition, and after due publication of notice a sale was had, which resulted in the property being struck off to John Jennings for $2,150. The property was sold subject to an incumbrance, which had been foreclosed, which, with taxes, costs, etc., aggregated $5,462 in amount. It appears that some 30 or more persons were present at the sale, but that the bidding was confined almost entirely to John T. Jennings, who was bidding for his father, John Jennings, and one John Dunphy, who was acting for his wife, Mary D. Dunphy. Two days after the sale, the conservator filed his report, and on the same day exceptions thereto were filed by Mary D. Dunphy, asking that the report be disapproved, and a resale ordered; offering and agreeing, in case of resale, to pay $400 more than the amount of the Jennings bid, and giving a bond, with sufficient sureties, for the due performance of her proposed agreement. The guardian ad litem of Charles M. Boyle thereupon filed his exceptions to the report, expressly making a part thereof the exceptions of Mary D. Dunphy. The conservator also asked for a disapproval of the report, and an order of resale. Jennings appeared, and asked for a confirmation of the report of sale. On the hearing of the exceptions, the court, as before stated, disapproved the report, and ordered the property resold.

No question is made as to the regularity of the sale, nor is there serious contention that the amount bid was grossly inadequate. Indeed, the evidence showed that it was a fair price for the property, under the cir cumstances. The material question in this case is whether the county court has power to disapprove a conservator's sale made subject to approval, and order a resale of the property, where the sale has been regularly and fairly conducted, and the amount bid is a fair price, if it appears to the court that a resale of the property will be for the best interests of the insane person's estate. The case of Comstock v. Purple, 49 Ill. 158, is cited by counsel for plaintiff in error as sustaining the contention that the county court

It

In

had no power to disapprove the report of sale, in the absence of fraud, irregularity, or gross inadequacy of consideration. was there said: "Where a judicial sale has been fairly and impartially conducted, in the presence of numbers, and the bidding is spirited and lively, as in this case, something more than mere inadequacy of price should be shown, to justify a court in setting aside the sale." It appears, however, that the sale there sought to be set aside was made by the master in chancery under a partition decree, which specially authorized the master to make a deed on payment of cash in hand. The sale by the master was made in December, and a deed made to the purchaser, who in turn conveyed the property to third persons. The master's report was not filed until July of the following year. holding the court erred in not confirming the sale, it was said: "In this case a deed was actually made to the purchaser, the whole of the purchase money having been paid; and it was sought to take the bargain away from him, by proceedings carried on to a final order, without any notice to him. Such injustice is beyond comment." In the case of Hart v. Burch, 130 Ill. 426, 22 N. E. 831, it is said: "A sale by a master in chancery, or other person authorized to execute the decrees in chancery, is not, until confirmed, a sale, in the legal sense. 'Until then,' says Mr. Rorer (Jud. Sales, § 124), 'it is only a sale in the popular sense, and not a judicial sale. The chancellor has a broad discretion in the approval or disapproval of such a sale. The accepted bidder acquires, by the mere acceptance of his bid, no independent right to have his purchase completed, but is merely a preferred proposer until confirmation of the sale by the court as agreed to by its ministerial agent.'*** Confirmation is final consent, and the court, being in fact the vendor, may consent, or not, in its discretion." It is true, it has been held that the English practice of opening biddings at a master's sale, before confirmation of the report, on the offer of a reasonable advance upon the sum bid at the sale, does not obtain in this country (Ayers v. Baumgarten, 15 Ill. 444); but there seems to be a distinction between a sale by a master in chancery, and one by an administrator or conservator. The case of Bozza v. Rowe, 30 Ill. 198, was a bill for specific performance, to compel an administrator to execute a deed to the highest bidder at a sale sanctioned by the court. In holding that the sale by the administrator was within the statute of frauds, and could not be enforced in the absence of a memorandum of sale signed by him, it was said: "It is insisted that this sale is precisely the same as a master's, and that, as his need not be evidenced in writing, an administrator's may be enforced, although only verbal. If it be true that a master's sale need not be in writing, still it does not follow that the same

The mas

rule governs this class of cases. ter is the mere instrument of the court, acts under its directions, and is subject to its control. The master is employed to carry out the decree of the court, and his acts under the decree, when regular, are considered those of the chancellor. But, if he was not, still the biddings at his sale are not binding, and cannot be enforced, until approved by the court." It is also true that in the case of Conover v. Musgrave, 68 III. 58, it was said: "Public policy requires stability in all judicial sales, and they should not be disturbed for slight causes." But in that case a deed had been made to the first purchaser, who had conveyed to third parties. The irregularity there complained of was a mistake in the date on which the sale was advertised to occur. In holding that the sale should not be set aside, it is said: "Had the defendants in error, by their next friend, shown the facts now proved, on the coming in of the guardian's report, the court below would have ordered it set aside, and ordered a resale." The case last mentioned, and in fact all of the cases to which our attention has been called, where judicial sales have been upheld, arose upon a state of facts distinguishable from those of the case at bar. There the purchase money had been paid, a deed delivered to the purchaser, and in some instances the property had been conveyed to third parties. In all a considerable length of time, ranging from 6 months to 19 years, was allowed to elapse between the sale and the proceedings to set it aside. In many cases the purchaser had made lasting and valuable improvements. In the case at bar the decree directed the conservator to expose the land at public vendue, and to report the sale to the court, and upon approval, and record thereof, to execute a deed to the purchaser. The notice of sale followed the decree, stating the terms of sale to be "for cash in hand upon approval of sale by the county court." The power of the conservator was derived from the decree, and he could not sell otherwise than according to its terms. It was the primary duty of the court to watch over and protect the interests of the party whose unfortunate disability had rendered necessary the appointment of a conservator, and the sale of his property. Here the sale was ordered to be made subject to the court's approval. As soon as the report was filed, exceptions were presented, by which it was made to appear that a confirmation of the sale would result in a loss to the estate of Charles M. Boyle of at least $400. We are of the opinion that in this case the county court did not abuse its discretion in disapproving the report, and ordering a resale. Had the sale been approved, and a bill been subsequently filed to set aside the sale on the same grounds, a different question would have been presented. The bid being subject to the approval of the court, the bidder acquir

1. It is reversible error, in instructing a jury, to ignore a material issue.

2. Where error is assigned in the failure to instruct as to a material issue, and the evidence is not preserved in the record, it is sufficient to bring the assignment of error before the court for review if the bill of exceptions sets out that evidence was offered pro and con on the issue.

Error to circuit court, Montgomery county; Trueman E. Ames, Judge.

Suit by Nancy M. Costly and others against Abel A. McGowan and others. From a decree dismissing the bill, complainants bring error. Reversed.

Howett & Jett and Zink & Kinder, for plaintiffs in error. Lane & Cooper, for defendants in error.

WILKIN, J. This is a suit in chancery by plaintiffs in error against defendants in error, begun in the circuit court of Montgomery county, to set aside the last will and testament of Samuel B. McGowan, deceased. The bill shows that Samuel B. McGowan died testate January 31, 1897; leaving as his only heirs at law Nancy M. Costly, a sister, Abel A. McGowan, a brother, and several nieces and nephews, the children of a deceased sister. On February 9, 1897, his will was presented for probate in the county court of Montgomery county, and duly admitted to probate, and letters testamentary issued to Abel A. McGowan. The will devised the entire estate, real and personal (excepting five dollars to Nancy M. Costly, and two dollars each to the nieces, children of the deceased sister, all of whom are plaintiffs in error), to Abel A. McGowan, for life, and after his death the remainder to Mabel Edna McGowan, daughter of Abel A. McGowan, also a defendant in error. The bill attacks the validity of the will on the ground that at the time of its execution Samuel B. McGowan was not of sound mind and memory, and did not have sufficient testamentary capacity to make a will, and that it was executed as a result of undue influence practiced upon testator by Abel A. McGowan. The answer of Abel A. McGowan and Mabel Edna McGowan denied the allegations of the bill, both as to mental capacity and undue influence. The court submitted these two issues to a jury, which returned a verdict finding that the will offered in evidence was the will of Samuel B. McGowan. After overruling a motion for new trial, a decree was entered dismissing the bill for want of equity. From that decree complainants below prosecute this writ of error.

Numerous errors are assigned upon the record, but the only ground of reversal insisted upon is that the court below erred in giving certain instructions to the jury on behalf of the defendants. Those objected to are the first, eighth, and seventeenth of the series given at the instance of the proponents. The objection urged against them is that they limit the inquiry before the jury to the question of the mental capacity of the testator to make the will; ignoring entirely the issue, undue influence. The first instruction tells the jury: "The question to be passed upon by the jury is this: Was the mind and memory of the deceased, at the time of making the alleged will, sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will." The eighth instruction states what is necessary, under the law, to constitute testamentary capacity, and says: "If the jury believe from the evidence that when Samuel B. McGowan made the will in question he was able to remember who were the natural objects of his bounty, recall to his mind his property, and make disposition of it understandingly, according to some plan or purpose formed in his mind, he had testamentary capacity; and the jury will find that the will in question is the will of Samuel B. McGowan." The seventeenth states that the law presumes testamentary capacity until the contrary is shown, and, if the proof only makes the case doubtful as to whether the testator had such capacity, "then the general presumption in favor of sanity must prevail; and the jury will find that the will offered in evidence is the will of Samuel B. McGowan." That these instructions, tested by the issue made by the bill and answer, and submitted to the jury, are erroneous, admits of no question. Two issues were thus formed, and made up to be tried, while the instructions-especially the last two-inform the jury that, if they find one of those issues for the defendants, they should return a verdict that the paper purporting to be the I will of Samuel B. McGowan is his will. Nothing is better settled than that an instruction which ignores a material issue in a cause which is submitted to a jury for its finding is erroneous. It is true that every issue made by the pleadings is not necessarily submitted to the jury. The parties may always abandon an issue made by the pleadings on the trial; and, in this case, if it appeared that the complainants below offered no evidence to support the allegation of undue influence, it would not have been error for the court, in its instructions to the jury, to ignore that issue.

The plaintiffs in error have seen proper to bring the case to this court without preserving the evidence in the record, and it is insisted on behalf of defendants in error that it is therefore impossible for us to determine that the giving of these instructions was reversible error. It is stated in the bill

of exceptions: "The trial of this cause consumed a period of about nine days, where the evidence was contrary and conflicting. The court having submitted to the jury, as issues of fact, whether or not the testator, at the time of the execution of the will in question, possessed sufficient testamentary capacity to execute said will, and, second, whether or not said will was the result of undue and improper influence on the part of any of the defendants therein, the complainants, to maintain the issue on their part, offered evidence tending to show that the testator at the time of the execution of the said will was not possessed of sufficient testamentary capacity to execute a valid will; secondly, evidence tending to show undue and improper influence on the part of the defendant. Proponents of the will offered evidence tending to show that the testator was possessed of sufficient testamentary capacity, and also evidence tending to show that the said will was not the result of undue and improper influence. Whereupon, at the close of the evidence, the court gave to the jury, on behalf of the proponents of the will, the following instructions." This is sufficient to bring before us for review the assignment of error upon the giving or refusing instructions. Railroad Co. v. O'Keefe, 154 Ill. 508, 39 N. E. 606. Where legal questions alone, such as the giving or refusing of instructions, are intended to be raised on appeal or writ of error, it is proper for the bill of exceptions to state that the evidence tended to prove the facts upon which it is contended the giving or refusal of the instruction was improper. Nason v. Letz, 73 Ill. 371; Schmidt v. Railway Co., 83 Ill. 405. And in the latter case it was said: "It is only when the evidence is all preserved in the record, and we can see from it that the jury could have reached no other conclusion than they did, had the instructions and all of the rulings been correct, that we will affirm notwithstanding error may have been committed in giving or refusing instructions. In this case the bill of exceptions shows that the evidence was inharmonious. As only legal questions arising on the record are presented, we cannot presume the finding was right in despite of the error committed by the court on the trial of the case." That case must control this. There the bill of exceptions recites that the evidence upon the trial was conflicting on the issue of undue influ

ence.

The instructions objected to wholly ignored that issue. If the jury followed the last two, they gave no attention to the evidence bearing on that question. On the face of the record, therefore, manifest error appears; and defendants in error could only ask an affirmance of the decree below upon the ground that the error is harmless, for the reason that under the evidence the finding of the jury must have been the same had the error not intervened. They must show the error to be harmless, and on this record

they have not, and cannot do so. The decree below must be reversed. The cause will be remanded for another trial. Reversed and remanded.

DOBLER v. VILLAGE OF WARREN. (Supreme Court of Illinois. June 18, 1898.) MUNICIPAL CORPORATIONS-SPECIAL ASSESSMENTS

-TRIAL OF OBJECTIONS-COSTS.

Starr & C. Ann. St. p. 493 et seq., providing that the cost of making and levying a special assessment for improvements shall be included in the estimate by the commission appointed to estimate the cost of the improvement, and that the hearing of objections to the assessment shall be conducted as in other cases at law, and that the assessment on any tract may be diminished or increased according to the evidence adduced, does not confer authority to render either a personal judgment, or a judgment against the property of objectors, for the costs of the trial of their objections to the assessment.

Appeal from Jo Daviess county court; William T. Hodson, Judge.

Petition by J. F. H. Dobler and others, objecting to a special assessment made for putting in a system of water-main pipes in the village of Warren. From a judgment confirming the assessment, plaintiff Dobler appeals. Reversed.

W. Spensley, for appellant. W. H. Glasgow and D., T. J. & J. M. Sheean, for appellee.

CARTER, C. J. This is an appeal by J. H. F. Dobler, a lot owner, from a judgment of the county court of Jo Daviess county confirming a special assessment levied to construct and put in a system of water-main pipes in the village of Warren, in said county, under the act of the general assembly ap proved and in force April 15, 1873, which authorizes the making of such local improvements by special assessments. 1 Starr & C. Ann. St. p. 544. Many objections were filed by appellant and others in the county court, and a trial was had before the court and jury; and a verdict was rendered that the property was not assessed more than it was benefited, nor more or less than its proportionate share of the cost of the improvement. The court overruled the motion for a new trial, and entered judgment confirming the assessment, and also entered a personal judgment, for the costs which accrued on the hearing of the objections, against the objectors.

After a careful consideration of the case, we have come to the conclusion that no substantial error was committed in the proceedings, except in the judgment against the objectors for costs. The proceeding is one in rem, and not in personam; and, if any judgment for costs could be rendered in the county court in favor of the petitioner, it must be against the property assessed, and not against the owner. But we are unable to find that the statute makes any provi