occurred April 13, 1891,-a period of 18 years. They lived during all these years in the city of Chicago, and deported themselves as husband and wife. Curtis E., Sr., survived Johannah but about a year, and died April 20, 1892. The appellees Curtis E., Jr., and Bessie L. Howison were born to them after the celebration of the marriage. Prior to the celebration of the marriage both parties thereto had been previously married. Mary J., the wife of said Curtis E., Sr., by the prior marriage, whom he had separated from in the state of Massachusetts, was then living and undivorced, as he well knew. Gottlieb Schoeninger, the husband of said Johannah, was then in fact living some where in the state of Pennsylvania; but it seems to be well established she had been informed, and upon reasonable grounds believed, that he was dead, and in good faith believed she had full right to enter into the marriage relation. On December 27, 1875, Mary J., the legal wife of said Curtis E., Sr., departed this life at her home in the state of Massachusetts; and within a few months thereafter appellee Nathan S. Robinson came from Massachusetts to Chicago and informed said Curtis E., Sr., and said Johannah, that said Mary J. was dead. Gottlieb Schoeninger, husband of said Johannah, survived until the 13th day of May, 1890, at which date he died at Nazareth, Pa. He had entered into marriage with another woman in 1870 at Easton, Pa. The fact that said Schoeninger was living at the time of their marriage in McHenry county never reached either said Curtis E., Sr., or said Johannah. Both died resting under the belief which they entertained at the time of the celebration of the marriage between them in McHenry county in 1873,-that he had died previous thereto.

The cohabitation of said Curtis E., Sr., and said Johannah was meretricious in its inception. The celebration of the marriage contract between them in 1873 in McHenry county did not change their adulterous relation, for the reason that the said Curtis E.. Sr., had, as he well knew, a legal wife. They, however, continued to live together as husband and wife for nearly 16 years after the death of said Mary J., the wife of said Curtis E., Sr., and for about a year after the death of Gottlieb, whose death removed the only impediment to their legal marriage. Their children, Martha, Curtis E., Jr., and Bessie, the appellees, were treated and acknowledged by both parents as true and lawfully begotten children during all those years.

Sections 2 and 3 of chapter 39 of our statutes, entitled "Descent" (Hurd's Rev. St. 1899, p. 653), are as follows:

"Sec. 2. An illegitimate child shall be heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person, and take, by descent, any

estate which the parent would have taken, if living.. * Second. The estate, real and personal, of an illegitimate person, shall descend to and vest in the widow or surviving husband and children, as the estate of other persons in like cases. Third. In case of the death of an illegitimate intestate, leaving no child or descendant of a child, the whole estate, personal and real, shall descend to and absolutely vest in the widow or surviving husband. Fourth. When there is no widow or surviving husband, and no child or descendants of a child, the estate of such person shall descend to and vest in the mother and her children, and their descendants-one-half to the mother, and the other half to be equally divided between her children and their descendants, the descendants of a child taking the share of their deceased parent or ancestor. Fifth. In case there is no heir as above provided, the estate of such person shall descend to and vest in the next of kin to the mother of such intestate, according to the rule of the civil law. Sixth. When there are no heirs or kindred, the estate of such person shall escheat to the state, and not otherwise.

"Sec. 3. An illegitimate child, whose parents have intermarried, and whose father has acknowledged him or her as his child, shall be considered legitimate."

The law raises the presumption that Gottlieb, the legal husband of said Johannah, was the father of her children. The presumption is not, however, conclusive, but is rebuttable. It appeared in the proof that there was no possibility of access to the mother on the part of the said Gottlieb at the time of the conception of either of these appellee children. In the course of nature, he could not have been the father of either of them. In such state of case, the presumption cannot prevail. 1 Greenl. Ev. § 128, note "c"; 3 Am. & Eng. Enc. Law (2d Ed.) 876, 877. The said Curtis E., Sr., was properly regarded by the chancellor as the father of the appellees Martha J. Ruprecht, Curtis E. Robinson, Jr., and Bessie L. Howison.

The contention of the appellants is that if it be conceded that the said Curtis E., Sr., was the father of said appellees, they were at birth illegitimate; that they were begotten and born while their parents were living in a state of adultery, and for that reason said section 3 does not apply to them. The argument is that, at the common law, legitimation of children born out of wedlock was unknown, and that all legislation admitting illegitimate children to the right of succession, being in derogation of the common law, must be strictly construed, and hence that such legislation should not be construed to apply to children born of parents who at the time of the conception and birth of such children, in violation of their marriage vows and of the Criminal Code of the state, were living in a state of adultery.

Counsel cite, as in support of their position, 2 Pingrey, Real Prop. 1143; 1 Rap. & L. Law Dict. 118, tit. "Bastardy"; and Sams v. Sams' Adm'r, 85 Ky. 396, 3 S. W. 593. But we think the weight of authority, as well as by far the better reason, is opposed to this view. Carroll v. Carroll, 20 Tex. 731; Hawbecker V. Hawbecker, 43 Md. 516; Blythe v. Ayers, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40; Schouler, Dom. Rel. 226; Ives v. McNicoll (Ohio Sup.) 53 N. E. 60, 43 L. R. A. 772, 69 Am. St. Rep. 780; Sutphin v. Cox, 1 West. Law Month. 90. The rule of the common law was that every bastard, whether the fruit of adulterous, incestuous, or other manner of intercourse not sanctioned by wedlock, was deemed to be of kin to no one, and therefore not capable of inheriting from any one, nor of having heirs, except of his own blood, who could inherit from him. Blacklaws v. Milne, 82 Ill. 505, 15 Am. Rep. 339; Stoltz v. Doering, 112 Ill. 234; 4 Kent, Comm. (13th Ed.) 445; 3 Am. & Eng. Enc. Law, 892. The common law of England recognized no mode of legitimating bastards, except by a special act of parliament. 4 Kent, Comm. (13th Ed.) note 4 to page 445; 3 Am. & Eng. Enc. Law (2d Ed.) p. 896. In the absence of statutory enactments, the common-law rule would be the law in Illinois. Stoltz v. Doering, supra. The rule visited the sins of the parents upon the unoffending offspring, and could not long survive the truer sense of justice and broader sense of charity that came with the advancing enlightenment and civilization of the race. Sections 2 and 3 of our statute of descent were enacted for the purpose of obviating the undue severity of the common law, and of erecting a rule more consonant with justice to an innocent and unfortunate class. Section 2 of the act relates to the capacity of illegitimates to inherit, and to the capacity of others to inherit from them. It abrogates the common-law rule that an illegitimate is the child of nobody, and could not take property by inheritance even from its own mother. Section 3 was adopted for the purpose of providing a mode by which the same class of persons referred to in section 2 illegitimates-could be legitimated. The same words ("illegitimate child") are used in both sections; and we know of no rule of construction, and certainly there is no reason, requiring that a different meaning should be given to the words in one section from that given them in the other. Section 3 enables parents to intermarry when they may legally do so, and acknowledge their offspring born prior to the legal celebration of their union; and we do not see the force of the reasoning that would so restrict the meaning of the section as to exclude from its operation parents, one or the other of whom has violated his or her marriage obligations in the procreation of the child. The child of such parents is not less innocent or unoffending than the child

of parents who were unmarried at the time of the copulation, and the ground upon which the insistence is based that a distinction should be made that the child shall be punished for the sins of the parents-shocks every sense of justice and right. The degree of moral or criminal delinquency of the parents does not enter into consideration in construing the section. See Brewer V. Blougher, 14 Pet. 178, 10 L. Ed. 408; Blythe v. Ayers, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40. It was not the legislative intent to exclude from the benefits of said sections 2 and 3 any illegitimate person. It follows, then, that said appellees Martha J. Ruprecht, Curtis E. Robinson, Jr., and Bessie L. Howison were properly regarded by the chancellor as the offspring of the said Curtis E., Sr., deceased, and that, though illegitimate by birth, they were legitimated and became his legal heirs if the legal relation of husband and wife afterwards existed between their parents, and the said Curtis E., Sr., acknowledged them as his children. That he did so acknowledge them cannot be the subject of controversy. He was to them a kind and indulgent father, and the record abounds in proof of acts and words of his which placed all question of his acknowledgment of them as his children beyond doubt or debate.

There was no proof that marriage vows were celebrated between said Curtis E., Sr., and said Johannah, in accordance with the requirements of the statute with relation to marriages, except the marriage in McHenry county. The McHenry county marriage was illegal, for said Curtis E., Sr., at that time had a living wife, and said Johannah a living husband. The connection between them was in its inception meretricious, and the presumption of their innocence and morality was at once rebutted. The

presumption is that a cohabitation meretricious in its inception continues meretricious; but that the evil purpose of the parties subsequently changed, and that the cohabitation lost its wrongful character and became matrimonial in intent and character, may be shown by proof, direct or circumstantial. It may be here noted, as a distinction between this cause and that of Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737. 2 Am. St. Rep. 105, that in the latter case Lewis married Zerelday Cacey with full knowledge that he was then the husband of a living wife, and never thereafter obtained information that this impediment to a lawful union with Zerelday had been removed by the decree of divorce granted to his legal wife in Kentucky, but that his cohabitation with Zerelday remained always meretricious so far as he was concerned; and for that reason it was held that the presumption that a legal marriage was celebrated between said Lewis and said Zerelday after the granting of the decree of divorce did not arise. The formal statutory celebration of

marriage between said Curtis E., Sr., and said Johannah indicated that it was their desire that their subsequent connection should be matrimonial. They in good faith, so far as this record discloses, at the time of the marriage believed that Johannah was a widow and might lawfully marry; but Curtis E., Sr., at least, knew that he then had a living wife, and could not lawfully enter into another marriage union. In 1875, about two years after this formal marriage, Mary J., the wife of said Curtis E., Sr.. died; and within a few months thereafter said Curtis E., Sr., and Johannah were advised that said Mary J. was no longer living. They then believed that there was no impediment to their legal union as husband and wife. There is no direct proof that they subsequently entered into a statutory marriage, but their actions, conduct, and their cohabitation and repute, were foreign to and inconsistent with any relation other than that of husband and wife; and there can be no doubt but that after the death of said Mary J. the cohabitation between said Curtis E., Sr., and said Johannah was matrimonial in the intent and belief of both of them. Their actions, life, and repute from thenceforth during the remainder of their lives were those of husband and wife. The impediment to that legal relation was removed May 13, 1890, by the death of said Gottlieb, the husband of said Johannah. There is no proof on the question whether they were or were not advised of his death. They believed that he was dead when they were married in McHenry county, in 1873, and, so far as the record discloses, were never advised to the contrary. Johannah lived nearly a year after the death of Gottlieb, and died April 14, 1891, and said Curtis E., Sr., survived Johannah but about one year. It was lawful after the death of Gottlieb for them to enter into the marriage relation. They believed that their cohabitation was matrimonial, and intended that it should be so; and the presumption of marriage from cohabitation apparently matrimonial became applicable to their relations as husband and wife, in aid of the legitimacy of their children.

The chancellor found "that the said Curtis E. Robinson, Sr., and Johannah Robinson lawfully intermarried at some time between May 13, 1890 (the date of the death of Gottlieb Schoeninger) and April 14, 1891; that both before and after such intermarriage, and until his death, the said Curtis E. Robinson, Sr., continuously acknowledged the said Curtis E. Robinson, Jr., Martha J. Ruprecht (formerly Robinson), and Bessie L. Howison (formerly Robinson), and each of them, as his legitimate children." This finding is amply supported by the proofs. They were during that period living in their residence on Wabash avenue. The acts of each towards the other were those of husband and wife; and to said Martha J., Cur

tis E., Jr., and Bessie L., their children, who were members of the family, they deported themselves as father and mother. Their whole life was inconsistent with any other relation than that of husband and wife. A few months after the death of said Gottlieb Schoeninger, they, with the appellee children, visited the relatives of the husband, in Massachusetts. Curtis E., Sr., introduced Johannah to his kindred as his wife, and the appellee children as their children. He manifested parental pride in the children, was anxious that the appellee daughters should exhibit their proficiency in music to his kindred, and declared his satisfaction that through appellee Curtis E., Jr., his name would be perpetuated. A family reunion was held at the house of his brother Nathan S., at which Curtis E., Sr., Johannah, and the appellee children attended as a family. Johannah manifested a sympathetic feeling for some of the relatives of Curtis E., Sr., and made them gifts of money and other articles; and when she and said Curtis E., Sr., returned to their home in Chicago they brought with them the mother of Curtis E., Sr., an aged woman, who lived with them in their home on Wabash avenue, as a member of their family, during the remainder of her life. They also invited Nathan S. Robinson and his daughter Eunice to visit them in Chicago. The invitation was accepted, and they were entertained as relatives in their home on Wabash avenue. A pew was rented in the South Park Avenue Church, and Curtis E., Sr., and Johannah attended services together there. Deeds were executed conveying to them property as husband and wife, naming them as such, and they uniformly treated and called each other husband and wife. Curtis E., Sr., applied for letters of administration on the estate of Johannah, declaring under oath therein that he was her widower. He received an engrossed copy of resolutions passed by a lodge of which he was a member, extending sympathy and condolence on the death of his wife, and he brought such copy home to the children. He directed her name, as Johannah Robinson, to be engraved upon the plate of her coffin, and an inscription to be engraved on her monument in which she was declared to be his wife, and caused to be published an obituary notice of her death, naming her as "Johannah, beloved wife of C. E. Robinson." A common-law marriage was thus established, and such marriages are valid in this state. Port v. Port, 70 Ill. 484; Elzas v. Elzas, 171 Ill. 632, 49 N. E. 717. The finding of the chancellor that said Curtis E., Sr., and said Johannah were lawfully married after the death of said Schoeninger, and that said Curtis E., Sr., acknowledged each of the appellee children as his children, was abundantly sustained by the proofs. The appellee children were properly regarded by the chancellor as the legitimate children and

legal heirs of said Curtis E. Robinson, Sr. The decree of the circuit court is affirmed. Decree affirmed.

CARTWRIGHT and HAND, JJ., dissent.

(180 Mass. 61)

FREEMAN v. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 12, 1901.)

EXCEPTIONS-WITNESS FEES-ADVERSE RUL

ING OF LAW.

Where a petitioner excepted to a refusal to allow the fees of his witness on appraisal of land, such exceptions do not show any ruling of law adverse to the petitioner.

Exceptions from superior court, Suffolk county; Franklin G. Fessenden, Judge.

Petition by one Freeman against the city of Boston for recovery of damages for land taken. At the trial witnesses for the petitioner gave evidence as to the appraisal of the land. After verdict, petitioner moved for an allowance of their fees, which the court denied, and petitioner excepted. Overruled.

Harrison Dunham, for petitioner. M. Babson, for city of Boston.

PER CURIAM. It does not appear that there was any ruling of law adverse to the petitioner.

Exceptions overruled, with double costs.

(180 Mass. 55)

WILLIAMSON v. McGRATH. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 12, 1901.) TITLE-EXAMINATION-FEES OF COUNSEL CONSTRUCTION OF CONTRACT.

*

*

An application for a loan on real estate reciting that the applicant agrees "to pay to the counsel * his charges for the examination of the title," etc., does not constitute a contract as between the counsel and the applicant, so as to entitle counsel to sue thereon for his services.

Exceptions from superior court, Suffolk county; John A. Aiken, Judge.

Action by William C. Williamson against Mary McGrath to recover compensation for services in examining a title to real estate. Judgment for defendant, and plaintiff brings exceptions. Overruled.

There was evidence that the defendant was the owner of the parcel of real estate, and was desirous of placing a mortgage of $26,000 on the same, and had applied to one Cornelius Herlihy for said loan, and said Herlihy had agreed to accept said mortgage; that said Herlihy had called on the plaintiff, and informed him of his intention to take said mortgage, and told the plaintiff to look up the title, and desired the plaintiff to send for the defendant and have her agree to pay all expenses incident to the placing of said mort

gage and for the examination of the title to said estate; that thereupon the plaintiff wrote to the defendant asking her to call on him in relation to said transaction, and in response thereto the defendant did call on the plaintiff, and signed the following applica tion for a loan:

"Application for a Loan. June 30, 1900. The undersigned hereby applies to Cornelius Herlihy, of Boston, for a loan of $26,000 for a term of five years, on promissory note signed by Mary McGrath, widow, with interest at the rate of seven per cent. on six thousand dollars, and on the balance five per centum per annum, payable semiannually, secured by first mortgage, with power of sale and insurance clauses, of real estate described as follows: [Then follows a description of the real estate, not material.] In consideration of this proposition being entertained by Cornelius Herlihy, I promise and agree to pay interest on said sum from the date of the acceptance of said loan; also to pay to the counsel appointed by them his charges for the examination of the title and for conveyancing, and also all expenses of recording, and also to pay him a commission of $300.

ber

"Mary X McGrath, Applicant. mark.

"Witness:

Wm. H. Smith." -And the defendant left with the plaintiff the deeds and other documents of title necessary to said examination, and the plaintiff then performed the services sought to be recovered for. The plaintiff asked the court to rule that the above application, and especially the clause therein which reads, "I promise and agree to pay the coun

sel appointed by them his charges for the examination of the title and for conveyancing," constituted a contract between the plaintiff and the defendant on which the plaintiff was entitled to recover, but the court refused so to rule, and found for the defendant; to which ruling and refusal to rule the plaintiff excepts, and asks that his exceptions be allowed.

John F. Sullivan, for plaintiff. Chas. Farran, for defendant.

PER CURIAM. The ruling asked was that, as matter of law, the written application, or one clause of it, constituted a contract with the plaintiff. The question whether, on the facts, a contract might be found to have been made between the plaintiff and defendant on the terms of that clause is not open. We have to do only with the construction of the written paper. It is quite plain that the ruling asked could not be made. The written promise must be read as made to Herlihy. The whole document is addressed to him in terms, and the consideration contemplated as the inducement of the promise is to move from him. Exceptions overruled.

(168 N. Y. 390) PEOPLE ex rel. PUMPYANSKY v. KEATING, Highway Com'r.

(Court of Appeals of New York. Nov. 12, 1901.)

MANDAMUS-OBSTRUCTIONS ON HIGHWAYNEWS STANDS.

1. A citizen and resident of the city of New York may maintain an application for a peremptory writ of mandamus commanding the commissioner of highways of the city to remove a stand for the sale of newspapers from a street of said city.

2. Laws 1897, c. 378, §§ 1608-1610, declare that the charter is not a new enactment, but a continuation of the consolidation act and its amendments, and that omission therefrom of any of the previous acts relating to or affecting the municipal corporations thereby consolidated shall not be a repeal thereof. Held, that the omission from the charter of the provisions of the consolidation act (Laws 1882, c. 410, as amended by Laws 1896, c. 718), authorizing the common council to grant permits for the erection and maintenance of news stands under stairways of elevated railroad structures, did not operate as a repeal of such provisions, and the common council had power to enact an ordinance providing for and regulating the erection of such news stands.

3. An application of a citizen of the city of New York for a peremptory writ of mandamus to compel the commissioner of highways to remove a news stand under a stairway of an elevated railroad structure will be denied, where the encroachment by such news stand on the sidewalk used by the public is very slight and only in part.

Appeal from supreme court, appellate division, First department.

Application by the people, on the relation of David Pumpyansky, for a writ of mandamus against James P. Keating, commissioner of the department of highways of the city of New York. From an order of the appellate division (71 N. Y. Supp. 97), reversing an order denying the writ and commanding defendant to remove a booth or stand for the sale of newspapers from the southwest corner of Sixth avenue and Twenty-Third street, defendant appeals. Reversed, and order of special term affirmed.

John Whalen, Corp. Counsel (Theodore Connoly and Chase Mellen, of counsel), for appellant. Otto H. Droege, for respondent.

BARTLETT, J. Two questions are presented by this appeal: (1) Has the relator, merely as a resident and citizen of the city of New York, a right to maintain this proceeding? (2) Has the municipal assembly power to grant such licenses as the one in question?

We agree with the appellate division that the relator is entitled to maintain this proceeding as a citizen; he seeking to enforce a right in which the general public is interested, to wit, that the streets of the city shall remain unobstructed and unincumbered. People v. Collins, 19 Wend. 56; People v. Board of Sup'rs of Sullivan Co., 56 N. Y. 249; Chittenden v. Wurster, 152 N. Y. 345,

40 N. E. 857, 37 L. R. A. 809. The relator makes no claim to a special interest, or to enforce a private right.

As to the remaining question, whether the municipal assembly had power to grant this license, the answer depends upon a construction of the consolidation act, read in connection with the Greater New York charter. The booth or stand in question was erected under a license of the municipal assembly issued on October 4, 1900, authorizing its maintenance for the period of one year. The statutory.situation at that time was as follows: By section 86 of the consolidation act the common council was given certain powers to make ordinances, and by subdivision 3 of this section to regulate the use of sidewalks. The legislature (Laws 1896, c. 718) amended this subdivision by adding thereto these words: "And also to grant permits for the erection of booths and stands in or on the space immediately underneath the steps of stairs leading to and from the elevated railroad station, and within the curb line, for the sale of newspapers and periodicals. Provided, however, that no booth or stand, nor any projection therefrom, shall be erected which is wider than the width of the stairs under which it is placed, or which extends along the sidewalk a greater distance than to a point where the under surface of the stairs is not over seven feet. from the level of the sidewalk." The Greater New York charter, which took effect January 1, 1898, confers (by section 49) upon the municipal assembly power to establish, modify, amend, or repeal ordinances, etc. Subdivision 3 of that section read as follows at the time the license in question was granted: "To regulate the use of streets, highways, roads, public places and sidewalks by foot passengers, animals, vehicles, cars, motors and locomotives, and to prevent encroachments upon and obstructions to the same, and to authorize and require their removal by the proper department; but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof, during the erection or repairing of a building on a lot opposite the same, nor shall they permit the erection of booths and stands within stoop lines, except for the sale of newspapers, periodicals, fruits and soda water, and with the consent in such cases of the owner of the premises." It will be observed that the subdivision quoted omits the addition to subdivision 3 of section 86 of the consoli dation act, made by chapter 718 of the Lawg of 1896, above quoted.

It is the contention of the relator that thi omission indicates an intention on the part of the legislature to deprive the municipal assembly of the power to enact an ordinance authorizing the granting of permits for the erection of stands or booths under the stairways of the elevated railroad company. The