ged with his debts, and it may be appropriated in payment thereof in the manner provided by the Code. These provisions carefully prescribe the order of the payment of the debts, including funeral expenses and judgments docketed against the decedent in his lifetime, and prohibit preferences over others of the same class. The rights of creditors thus provided for attach to the real estate of the decedent immediately upon his death, and continue during the period of three years after the issuing of letters testamentary or of administration upon his estate. These rights which so attach are superior to those acquired by any devisee or legatee under the will. A solvent testator may undoubtedly make certain debts a charge upon a parcel of his real estate. He may devise a part of his real estate to a particular person upon condition that he pay the whole or a specified portion of his indebtedness, but an insolvent testator cannot prefer one creditor over another in such a way as to deprive the general creditors of their right to have his real estate sold and distributed among them after the personal estate has been exhausted. Redf. Surr. Prac. (5th Ed.) 554; Jessop, Sur. Prac. 956; Rice v. Harbeson, 63 N. Y. 493; Hogan v. Kavanaugh, 138 N. Y. 417, 34 N. E. 292; Rosseau v. Bleau, 131 N. Y. 177, 182, 30 N. E. 52, 27 Am. St. Rep. 578; Platt v. Platt, 105 N. Y. 488, 12 N. E. 22.

Section 2749 of the Code of Civil Procedure authorizes a sale of the real property of a decedent for the payment of his debts and funeral expenses, or for the payment of judgment liens existing thereon at his death, "except where it is devised, expressly charged with the payment of debts or funeral expenses, or is exempted from levy and sale by virtue of an execution, as prescribed in title second of chapter thirteen of this act." It is contended on the part of the appellant that this provision operates as a limitation upon the power of the surrogate to sell the real property of the decedent, and that, the mill property having been devised by the decedent, charged with the payment of the debts contracted on account of the mill, the appellant's claim is brought within this exception, and that the bank has the right to have the mill property reserved for the payment of its claim, and not sold for the benefit of the general creditors. We cannot adopt this construction. In this case the devise of the mill property was subject to the payment of certain specified debts, and not all of the debts of the testator. The debts or funeral expenses referred to in the provision undoubtedly mean all of the debts of the testator, and not a part thereof. A testator may provide for the payment of all of his debts and funeral expenses. He may make the same a charge upon his real estate, and give to his executor a power of sale for that purpose. He may devise his real estate upon condition that his debts

be paid, and if his devisee accepts the bequest he becomes liable therefor. If provision be made by will for the payment of debts, such provision should be followed, instead of the statute. That this is the meaning of the provision is evident from an examination of section 2759, subd. 4, which, among other things, provides that the decree for a sale can only be made when the property "was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge, or to execute the power, and that the creditor has effectually relinquished the same,"-manifestly intending that, if a testator has devised his property upon condition that his debts be paid, they should be paid as the will directs; but this requirement is not absolute; for, if the power of sale is void, or payment as directed is impracticable, resort may still be had to proceedings before the surrogate under the statute. Applying these provisions to the case under consideration, the appellant, having its claim expressly charged upon a specified parcel of real estate by the testator's will, could not apply to the surrogate's court for a sale, but would be left to its remedy under the will, unless it could show that the power of sale was not valid, or that it was not practicable to execute the power, etc. But we do not understand that these provisions have any application to the petitioning creditors whose claims have not been specifically charged by the devise upon the whole or any part of the testator's real estate.

The order should be affirmed, with costs.

PARKER, C. J., and O'BRIEN, BARTLETT, MARTIN, VANN, and LANDON, JJ.,

concur.

Order affirmed.

(192 11. 521)

TOWN OF KANE v. FARRELLY et al. (Supreme Court of Illinois. Oct. 24, 1901.) HIGHWAYS-LOCATION-GOVERNMENT CORNER

-SURVEY-WRITTEN CONTRACT-EVIDENCE

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EXPLAIN-DEDICATION-OBSTRUCTIONS

PENALTY-INSTRUCTIONS.

1. Where the petition, report of survey, and final order establishing a highway locate the point of commencement at a quarter section corner, and there is no proof to overcome the presumption that the governmental surveys are correct, the location of such point should be determined in accordance with the field notes of the government survey, under Hurd's Rev. St. 1839, p. 1685, c. 133, § 5, providing that surveyors shall make all surveys in accordance with the original surveys and the law of the United States governing surveys.

2. The petition, report of survey, and final order establishing a highway described the point of commencement as a quarter section corner, which was the southeast corner of de fendant's land. In surveying the road the surveyor located such corner 59 feet north of

the correct point as claimed by defendant and established by the government survey. She appealed from the order, and the appeal was settled by payment of damages and a written stipulation that after a reasonable time to remove her crops and fences the commissioners could "open up the proposed road as surveyed by" such surveyor. Held, in an action for pepalty for obstructing such road, that testimony that at the time of such settlement the parties agreed to adopt the location of such corner, and of said road on the ground as located by such surveyor, instead of the true location by governmental survey as described in the papers, was inadmissible, since there was ambiguity in the written contract, and it could not be varied by oral evidence.

no

3. Where, in a prosecution for penalty for obstructing a highway the location of which the parties had agreed to by written contract, the only dispute is as to the true location of such highway on the ground, testimony to explain such contract by showing that defendant agreed to a location different from that described is not admissible for the purpose of showing a highway by dedication.

4. Where, in a prosecution for obstructing a highway, there is no question as to the legality of any step taken, the only dispute being as to the location on the ground, plaintiff is not prejudiced by an instruction that the statutory requirement for the establishment of highways must be strictly complied with.

5. Where the purpose of a prosecution for obstructing a highway is to inflict a penalty. it is proper to instruct the jury that they should not convict the defendants unless able to say that the obstruction was placed within the limits of the highway.

Error to circuit court, Greene county; Robert B. Shirley, Judge.

Action by the town of Kane against Edmonia Farrelly and others. From a judgment for defendants, plaintiff brings error. Affirmed.

H. H. Montgomery and J. M. Riggs, for plaintiff in error. D. J. Sullivan, for defendants in error.

BOGGS, J.

This was an action by plaintiff in error to recover statutory penalties for obstructing a public highway. The defense was that no highway existed at the point where the alleged obstructions were found. The cause was before us at a former term. Farrelly v. Town of Kane, 172 Ill. 415, 50 N. E. 118. The facts then recited need not be here repeated, but it is necessary to a full understanding of the points involved that a fact not necessary to have been expressly stated, and therefore not found in the former opinion, should be made to appear, viz. that the agreement between the commissioners and the defendant in error Mrs. Farrelly was reduced to writing and formally signed by the contracting parties. The agreement is as follows: "State of Illinois, Greene County-ss.: Whereas, at a meeting of the three supervisors to hear an appeal from the decision of commissioners of highways of the town of Kane, in said county, said commissioners did agree with Edmonia Farrelly, said appellant, that they would pay her, the said Edmonia Farrelly, $100 and all costs by them made on said appeal, and the said Edmonia Farrelly, on her

part, did agree to pay all costs made by her on said appeal, including fees of said supervisors, and it being further agreed that the order of said commissioners of highways should be affirmed, it is therefore expressly agreed herein, in writing, that we, the undersigned, will carry out the terms above mentioned, and further agree that the above $100 shall be paid to said Edmonia Farrelly, or her attorney herein, on the 5th day of October, 1895, and on the payment of said $100, and a reasonable time to remove the crops and fences, which time is fixed at forty days from this date, said commissioners are given the privilege to open up the proposed road as surveyed by T. G. Capps, surveyor in said proceedings. Said Edmonia Farrelly agrees to remove said fences in said time. Dated this 23d day of September, 1895. William Fresh, N. H. Close, D. P. Stone, Highway Com'rs. Edmonia Farrelly." In pursuance of the judgment remanding the cause entered in this court the cause was redocketed in the circuit court for a new trial. new trial was had at the February term, 1900, of the circuit court of Greene county, and the verdict and judgment were in favor of the defendants in error. This is a writ of error to reverse that judgment.

Such

On the trial the plaintiff in error town contended it appeared from the face of the written agreement hereinbefore set out that the writing did not contain, and was not intended to contain, the whole agreement, and for that reason urged it was competent to prove a conversation between the parties which, as counsel for the town alleged, occurred immediately prior to the execution of the agreement. The petition for the road, the report of the survey made under the order of the commissioners by Surveyor Capps, and the final order of the commissioners establishing the road, described the road as beginning at the southeast corner of the northeast quarter of section 6, township 9 north, range 11, in Greene county, Ill. The defendant in error Mrs. Farrelly owned the southeast quarter of said northeast quarter of said section 6. One Michael Harrity owned the 40-acre tract immediately south of that of Mrs. Farrelly. There had long been a dispute between them as to the true location of the southeast corner of the said northeast quarter of said section 6, that being the southeast corner of Mrs. Farrelly's tract and the northeast corner of Mr. Harrity's land. They had, however, each built a fence along the disputed line to said southeast corner as it was claimed to be by Mrs. Farrelly. While the petition, the surveyor's report, and the final order of the commissioners specified the southeast corner of the said northeast quarter of said section 6 as the beginning point of the center line of the road, the road being of the width of 40 feet, or 20 feet on each side of said center line,the surveyor, Capps, had located the southeast corner of said northeast quarter of said

section 6 some 39 feet north of the location of the said southeast corner of said northeast quarter of said section 6 as contended for by Mrs. Farrelly, and as indicated by the fences maintained by Mr. Harrity and Mrs. Farrelly. The obstructions in question would be within the limits or the highway if the true corner of the said northeast quarter of section 6 is at the point as located by Surveyor Capps, but would not be within the highway if the corner is as claimed by the defendant in error Mrs. Farrelly. The only real question of fact in issue between the parties was as to the true location of the southeast corner of the said northeast quarter of said section 6 as established by the government survey. We think the preponderance of the evidence clearly supported the contention of the defendants in error on that point. H. M. Minton, county surveyor of Macoupin county, and Giles Reeder, county surveyor of Scott county, each surveyed the line and found the true corner to be as contended for by Mrs. Farrelly; and Surveyor Capps, on cross-examination, admitted that he had the government field notes before him when he made the survey, and if he had been governed by them would have established the corner where Mrs. Farrelly claimed it to be. Mr. Capps had also notes of a survey made by his predecessor in office, and erroneously accepted such notes as binding upon him because later in point of time than the government field notes. It is the duty of surveyors to "make all surveys

*

* in accordance with the original surveys and the laws of the United States governing surveys." Hurd's Rev. St. 1899, p. 1685, c. 133, § 5, entitled "Surveyors and Surveys." There was nothing in the proof tending to overcome the presumption that the field notes and plats of the governmental survey were correct. They should have been so accepted as correct. Ogilvie v. Copeland, 145 Ill. 98, 33 N. E. 1085.

The plaintiff in error town, however, contended that the defendant in error Mrs. Farrelly was willing to donate to the commissioners of highways, to be used as a public highway, the south 20 feet of her tract if the southern boundary of her tract as contended for by her should be accepted as the true line, and that she was willing that the highway should be located upon her land according to the actual survey made by Capps if the commissioners would pay her $100, and that the commissioners decided to pay her the $100, and that such was the agreement and contract between them. The plaintiff in error town therefore sought to introduce oral testimony to establish the conversation which, as it insists, occurred between Mrs. Farrelly and the commissioners immediately prior to the execution of the written agreement between them; but the court excluded such testimony, and such exclusion is here urged as for error. Counsel recognize the general

rule of evidence that a written contract, if unambiguous in its terms, cannot be varied, contradicted, or modified by parol evidence of conversations relating to the subject-matter of the contract, which occurred between the contracting parties before the execution of the contract, but they invoke an exception to the rule, noted in Steph. Dig. Ev. (May's Ed.) art. 90, pp. 142, 143, and in 2 Whart. Ev. § 1026, and in 7 Am. & Eng. Enc. Law (1st Ed.) p. 91, that a party is at liberty to prove the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. There is nothing in the circumstances of the case to justify the inference that the writing was not intended by the parties to be a complete and final statement of the whole agreement between them. When the case was before us on the former occasion we construed that portion of the instrument in which is set forth the agree ment on the part of Mrs. Farrelly giving the privilege to open the road "as surveyed by T. G. Capps, surveyor in said proceeding," to refer to the description of the road and the point of commencement thereof as given in the petition, the report of the survey, and the final order of the commissioners establishing the road, and not to a line of stakes which the surveyor had caused to be driven in the ground when he made the survey. This construction of the contract removed, every just ground of contention as to the proper meaning to be given to the instrument, for in all other respects the wording is too clear and unambiguous to demand interpretation or construction. We think the general rule that parol evidence is not admissible to vary, modify, or contradict a written agreement was properly applied by the trial court.

It is, however, contended that the evidence so excluded by the court, if admitted, would have tended to show a dedication by Mrs. Farrelly of the strip of land upon which she caused the obstruction to be placed to the highway commissioners for the purposes of a public highway, and it was for that reason erroneous to exclude it. The conversations sought to be proven were alleged to have taken place in the course of legal proceedings to establish a highway under the statute. When it was sought to prove such conversations, the plaintiff in error was attempting to prove, step by step, the proceedings necessary to the legal establishment of a highway, and we find nothing in the record to indicate that it was then the purpose or intention of the plaintiff in error to attempt to establish a road by dedication. The objection preferred to the admission of the evidence related solely to

the connection of the proof with the written agreement, and it was excluded upon the sole ground that it tended to vary or contradict the written agreement. The written agreement provided that the order of the commissioners establishing the road should be affirmed by the supervisors, and the further provisions thereof were entered into in view of the legal establishment of the highway under the statutory proceedings instituted by the commissioners. Counsel for plaintiff in error did not indicate to the court that the evidence had any other pertinency until after the cause had been heard and submitted to the jury, when an instruction defining dedication of land for a highway was asked to be given to the jury. The court was justified in passing upon the offered proof with reference, solely. to its admissibility under the general rule that parol evidence is not to be received to vary or contradict the terms of a written agreement. The contention on the part of the town was that a highway had been established by the commissioners of highways, by statutory proceedings, over the lands of Mrs. Farrelly at the point where she had constructed the fence which constituted the alleged obstructions, and not that she had dedicated the land for a road. Therefore the court did not err in giving instructions 2, 3, 4, 6, 8, and 9, given for defendants in error, and in refusing to give No. 15 asked by plaintiff in error.

The defendant in error Mrs. Farrelly did not question the legality of any step taken by the commissioners necessary to the legal establishment of a highway. Her contention was the highway, as shown to have been established by the description thereof in the petition, the report of the survey, and the final order, did not occupy the land where the fences had been constructed by her. Hence instruction No. 4, to the effect that the statutory requirements governing the establishment of highways must be strictly complied with, had no prejudicial effect. For the same reason instruction No. 11, which it is complained erroneously left the jury to determine whether the highway was lawfully laid out, without advising them as to the steps necessary to be taken in establishing a highway, could not have prejudiced the rights of the town.

The defendants in error were defending against the infliction of a penalty in the nature of a fine. The purpose of the prosecution was punishment. The jury should not, therefore, have returned a verdict convicting them unless they were able to say that the fences which it was alleged constituted the obstructions were placed within the limits of the highway. Such was, in substance, the direction of instruction No. 12, of which complaint is made, and the court did not err in giving that instruction.

The judgment must be and is affirmed. Judgment affirmed.

(192 111. 567) VAIL V. NORTHWESTERN MUT. LIFE INS. CO.1

(Supreme Court of Illinois. Oct. 24, 1901.) EVIDENCE-VARYING WRITTEN CONTRACTSAGENCY-ESTOPPEL.

1. Where a contract shows without ambiguity that the person executing it, though an agent, intends to bind himself, and not his principal, extrinsic evidence cannot be received to show that it was intended to bind the principal.

2. A principal is not estopped to deny its liability on an independent contract of its agent because in interviews with the person contracting with the agent, in regard to the proposed contract, it failed to disclose that the agency expired before the contract; it not appearing that it misled him as to the terms of the agency, or even knew he was ignorant of them. Appeal from appellate court, First district. Action by Henry S. Vail against the Northwestern Mutual Life Insurance Company. From a judgment of the appellate court (92 Ill. App. 655) affirming a judgment for refendant, plaintiff appeals. Affirmed.

Arnd & Arnd, for appellant. Hoyne, O'Connor & Hoyne, for appellee.

HAND, J. This is an action of assumpsit brought by the appellant in the superior court of Cook county against the appellee to recover, as commissions, 5 per cent. of the renewals of certain contracts of insurance placed with appellee. At the close of the plaintiff's evidence the court instructed the jury to return a verdict in favor of the defendant, upon which a judgment was rendered, which has been affirmed by the appellate court for the First district, and a further appeal has been prosecuted to this court. On the trial of the case an instrument in writing, bearing date January 2, 1888, also certain conversations had by appellant with the officers and agents of appellee, and certain letters written by appellant and the officers and agents of appellee, prior as well as subsequent to the execution of said instrument in writing, were offered in evidence and excluded by the court, and the ruling of the court in the exclusion of such testimony is mainly relied upon by the appellant for a reversal of this cause.

The instrument in writing offered in evidence is in the form of a letter addressed to the appellant, and signed, "Dean & Payne, General Agents for Illinois," containing proposition from Dean & Payne to accept all desirable life insurance which the appellant might wish to offer the appellee during the next five years, which insurance was to be placed through Dean & Payne with appellee, for which they were agents, the same to be approved and accepted by the appellee, and that under certain special conditions there should be paid to appellant, in addition to his cash commissions, a renewal commission of 5 per cent. on 10 renewals as same are paid to the company, "providing Dean & Payne, or either of them, receive said commission from said company," which was ac 1 Rehearing denied December 5, 1901.

cepted by the appellant. This instrument contains a number of provisions and conditions, and is quite lengthy and somewhat involved, but, when read as a whole, it clearly appears therefrom that it was a contract between appellant and Dean & Payne, and not between appellant and appellee, and that the relation which appellant bore to appellee was only that of a subagent under Dean & Payne. The terms of said agreement, being plain and unambiguous as to who was intended to be bound by it, cannot be varied, contradicted, or enlarged, as extrinsic evidence can only be introduced to explain the intention of the parties to a written instrument when from the instrument itself there is doubt as to the intention of the parties who should be bound thereby. In Railroad Co. v. Middleton, 20 Ill. 629, on page 634, the court say: "If, from the agreement itself, it clearly appears that the intention was to bind the agent and not the principal, the agent is held to be liable. But when, from the whole instrument, there is doubt whether it was the intention to bind the principal or the agent, courts have held that extrinsic evidence may be received to ascertain the intention." The court, therefore, did not err in excluding said testimony.

It is further contended that appellee is estopped from denying its liability because it knew that Dean & Payne's contract as general agents expired in August, 1894, and was silent as to that fact, while appellant's contract contemplated the payment of commissions on renewals for a period extending beyond that date. This contention, in effect, concedes that the contract in question was the contract of Dean & Payne, and not the contract of the appellee.

The essential elements of an estoppel in pais are wanting in this case. Not only does it not appear that appellee used means to deceive appellant or to conceal from him the facts in regard to its contract with Dean & Payne, but it does not even appear that it or its officers with whom appellant had interviews in regard to his proposed contract were aware of the fact that he was ignorant of the terms and conditions of Dean & Payne's general agency. When an estoppel is claimed by reason of silence or fraud, it must be silence when there is a duty to speak, and it must be a case of false representation, "with a fraudulent purpose and a fraudulent result." In Holcomb v. Boynton, 151 III. 294, 37 N. E. 1031, on page 300, 151 Ill., and on page 1033, 37 N. E., it is said: "As we understand the doctrine of estoppel in pais, it is based upon a fraudulent purpose and a fraudulent result. Before it can be invoked to the aid of a litigant it must appear that the person against whom it is invoked has, by his words or conduct, caused him to believe in the existence of a certain state of things, and induced him to act upon that belief." If appellant was ignorant of the terms of Dean & Payne's contract, it was his own

fault. A party claiming the benefit of an estoppel cannot shut his eyes to obvious facts, or neglect to seek information that is easily accessible, and then charge his ignorance to others. There is no evidence here justifying the conclusion that the appellee, or its officers or agents, willfully misled or imposed upon appellant in any way, or knew of his ignorance of anything bearing upon his action.

From an examination of this record, we are of the opinion that the contract in question was made with Dean & Payne, and that the doctrine of estoppel does not apply. The judgment, therefore, of the appellate court will be affirmed.

Judgment affirmed.

(192 III. 528)

HUGGINS et al. v. DRURY et al. (Supreme Court of Illinois. Oct. 24, 1901.) WILLS-MENTAL CAPACITY-BURDEN OF PROOF -EVIDENCE-SUFFICIENCY-QUESTION FOR JURY.

1. In a will contest, the introduction of the will and of the certificate thereto and the testimony of the subscribing witnesses prima facie establishes testator's competency, and that the will was signed and attested as required by statute; and the burden of proof is on those who impeach the validity of the will.

2. Contestants sought to set aside a will on the ground that testator was not of sound mind. It was alleged that he had an insane delusion with regard to one of his sons. The evidence showed that testator had made derogatory statements as to his son's character, and on occasions treated him with violence, and that testator had a violent temper. Specific acts of punishment of disobedient acts were shown, sometimes inflicted in a fit of temper. Testator had several times remarked that the son in question was not his son, but, to explain this, it was shown that the son had always behaved unnaturally towards his father, and was a source of much grief to him. Numerous witnesses testified as to the competency of testator. Held, that an instruction to find in favor of the validity of the will was proper. Appeal from circuit court, Whiteside county; W. H. Gest, Judge.

Suit by Mary J. Huggins and others against Mary Drury and others. From a decree in favor of defendants, complainants appeal. Affirmed.

This is a bill in chancery filed on March 20, 1900, by the appellants Mary J. Huggins and Thomas W. Huggins, her husband, and William W. Drury, against the appellees, Mary Drury, Lily A. Beeken, Ledon (or Lydon) R. Drury, Anna Grace Fassett, Walter C. Drury, Bessie May Dinneen, William Burton Drury, and J. Murray Eaton, executor of the last will and testament of Richard Drury, deceased, to set aside the will of the said Richard Drury upon the alleged ground that the testator was not of sound mind and memory when the will was made, "but, on the contrary, was in his dotage, and his mind and memory were so impaired as to render him wholly incapable of making any just and proper distribution of his estate." Default was entered against Mary Drury.