the proper officer was the body having the duty of making the assessment at the time of making the return. The duty of the respondent was a continuing one and might be enforced by mandamus though the statutory period within which it should have been made had expired. (People v. Lueders, 287 Ill. 107; State Board of Equalization v. People, 191 id. 528.) Whether the proper officer would be bound by the return or obliged to accept or act upon it is a matter with which the respondent is not concerned. It was his duty to make the return without regard to the action which may be taken by the board of review.

The appellee contends that a compliance with the writ of mandamus would have the effect of incriminating or tending to incriminate him and subject him to the penalties imposed by the act for a failure to make the return in the month of May, and therefore, under the constitutional provision which protects all persons from being compelled in any criminal case to give evidence against themselves, he should not be obliged to make the return. The specific objection is stated by the appellee as follows: "If the court should issue a writ of mandamus commanding said Charles F. Kent to file a return to the board of review the return will automatically show the neglect of said Charles F. Kent to file the return in the month of May, as provided by section 30 of the act of 1869, and would, of itself, be sufficient proof to establish the action in debt and make him liable for penalties above set out." The return in obedience to the writ would not show that a return had not been made in May, and being made under compulsion would not constitute an admission that the return had not been made in May. Under the averments of the petition it is the legal duty of the appellee to make the return. If he had not admitted by his demurrer his failure to make the return the appellant would have been obliged to prove such failure. If it had been proved the appellant would have a right to the writ of mandamus. It is equally en

titled to the writ when the appellee by his demurrer admits the facts.

The petition shows a clear right to the writ. The court erred in sustaining the demurrer to it, and its judgment will be reversed and the cause will be remanded. Reversed and remanded.

(No. 14046. Decree affirmed.)

JACOB ROMER et al. Defendants in Error, vs. NORMA ROMER et al. Plaintiffs in Error.

Opinion filed December 22, 1921.

1. WILLS—when remainder vests at death of life tenant and is not cut down to base fee. Under a will providing that upon the death of the life tenant the "children then surviving, and the descendant or descendants of any deceased child," shall take the remainder per stirpes, the remainder will vest in fee at the death of the life tenant and is not cut down to a base fee by a subsequent provision that if any children die without issue surviving, the share of such deceased child shall go to the testator's heirs-at-law.

2. SAME-law favors vested estates. In doubtful cases the law favors that construction of a will which will give the first taker a fee simple.

WRIT OF ERROR to the Circuit Court of Logan county; the Hon. T. M. HARRIS, Judge, presiding.

LYMAN S. MANGAS, guardian ad litem, for plaintiffs in

error.

MCCORMICK & MURPHY, for defendants in error.

Mr. JUSTICE FARMER delivered the opinion of the court: This case comes to this court on writ of error to the circuit court of Logan county, where a decree was entered for the partition of certain real estate which comprised the property of Anton Romer, deceased.

Anton Romer lived in Logan county, Illinois, for several years and died testate in that county April 6, 1914. At the time of his death he owned a 134-acre farm and some residence property in Mt. Pulaski. He left surviving him his widow, Mary Romer, seven children, all of whom were married before this suit was begun and three of whom had children, and also four grandchildren, who were the children of testator's son Joseph, who died before the testator's death and before the will was executed. The testator made a will February 1, 1910. His widow, who under the will had a life estate in all of the testator's property, died February 8, 1920. In May, 1920, two of testator's sons filed a bill for partition of the lands in question, alleging that the seven surviving children and the four children of the testator's deceased son were now the owners in fee of the real property as tenants in common. The necessary persons were made defendants, including the children of testator's children, and a guardian ad litem was appointed for them. The court entered a decree for partition as prayed in the bill, and this writ of error is prosecuted by the minor defendants.

The second paragraph of the will gave the testator's wife all his real and personal estate for life. The construction of the third and sixth paragraphs is directly involved. Those paragraphs are as follows:

"Third-Upon the death of my said beloved wife I give, devise and bequeath unto my children then surviving, and the descendant or descendants of any deceased child or children, all the remainder of my estate, real, personal and mixed, to be divided among them share and share alike, per stirpes, the children or child or descendant or descendants of any deceased child or children to take the share his, her or their parent would take if then alive, subject to the other provisions of this my will.

"Sixth-If any of my said children shall die leaving no child or children surviving him, her or them at the time of his, her or their death, or descendant of a child or children

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surviving him, her or them at the time of his, her or their death, then it is my will that the share or portion of my estate hereby given to such child or children who shall so die leaving no child or children or descendant or descendants of a child or children him or her surviving shall go to and vest in my heirs-at-law."

The circuit court construed the estate and interest devised to testator's children and the children of his deceased son, Joseph, to be a contingent remainder, subject to vest as an indefeasible fee simple absolute, upon the death of the life tenant, in such of the children as survive her. The plaintiffs in error contend paragraph 6 of the will so qualifies paragraph 3 as to make the estate of the testator's children a base fee, which never could become indefeasible unless at their death they left descendants surviving, and in the event they left no such descendants then there was an executory devise over to testator's heirs-at-law; that, considering both paragraphs referred to, the meaning and intention of the testator was, that the estate devised the testator's children should not become an indefeasible fee simple at the death of the life tenant but should become such only at the death of the children leaving descendants; that the death the happening of which vested the fee simple in the children was not the death of the life tenant but the death of the children at any time, leaving no descendants. surviving.

The mere fact that paragraph 6 is separated by two intervening paragraphs from paragraph 3 is of no special significance. The two sections might well have been one, as they make final disposition of the estate and are to be read and considered together. When so considered their meaning seems to us clear that the devise to testator's children was of a fee simple absolute in such of them as survived the life tenant. If any of them died before the death of the life tenant, leaving children, such children should take the same estate and share their parents would have taken

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if living, but if any child of the testator died before the death of the life tenant, leaving no children or descendants of children, then its share should go to testator's legal heirs. When the contingency happened upon which the vesting of the fee depended it became an indefeasible fee in the children, not subject to be divested upon their death without leaving children or descendants of children surviving. This must be the construction given the will unless the language shows that the death referred to by the testator at which the fee simple absolute should vest meant a death at a later date than the termination of the life estate. (Lachenmyer v. Gehlbach, 266 Ill. 11; Sheley v. Sheley, 272 id. 95; Morris v. Phillips, 287 id. 633; Welch v. Crowe, 278 id. 244; Fulwiler v. McClun, 285 id. 174; Beaty v. Calliss, 294 id. 424; Whittington v. Hunt, 296 id. 133.) In Fulwiler v. McClun, supra, the rule was stated to be that "where the devise is not immediate but is of a future interest, to take effect in possession upon the termination of an intervening particular estate, as in the case of a devise of a life estate with remainder to another upon termination of the life estate. In such a case, unless the will shows that the testator intended to refer to a later date than the termination of the life estate, the rule is that the gift over will take effect if the contingency happens at any time during the existence of the particular estate, and death without issue means death without issue before the death of the life tenant."

There is nothing in the language of this will to justify construing it to mean that the death referred to, upon the happening of which the remainder in fee simple should vest, means death at a later date than the termination of the life estate. To our minds this seems clear. The devise made by the third paragraph of the will is to testator's children who survive the life tenant and to the children of his deceased son, to take effect in possession at the death of the life tenant. The gift was of both real and personal property. If the construction of the will contended for by