tained by the evidence in the record, as already indicated. While it is true that the widow remained in possession of the premises by a tenant who was pasturing the premises, still, upon every interview with her by the city's committee or any representative she manifested at all times a complete willingness and desire to give possession to the city and to have it carry out the provisions of the will. She did say to them at various times that she preferred for them to wait until the end of the tenant's lease, but as year after year rolled around the city made no attempt to take possession at the end of the lease or at any other time or to make any bona fide effort to comply with the terms of the devise. There was no substantial performance or attempt at performance on the part of the city of the conditions required of it, and it is entirely clear from the record that it manifested no disposition or desire to attempt any substantial performance of the conditions until the year of 1916. The position of its mayor and its aldermen was to the effect that the city was not able to and not disposed to make any public expenditures to establish and improve Maguire Park.

The original bill was filed in this case almost four years after the will was probated. The first actual appropriation made by the city for the purpose of performing the conditions of the will was approximately seven years after the probate of the will, or in 1916, and no possession was ever taken by the city of the devised premises. The rule that certain acts shall be performed within a reasonable time requires that such reasonable diligence shall be exercised as under all of the then and subsequent existing circumstances may fairly be expected. (2 Pope's Legal Defenses, 1351.) What is a reasonable time is a question of law and fact, to be determined from a consideration of all the facts and circumstances of each particular case. (Green v. Old People's Home, 269 Ill. 134.) It must be inferred from the terms of the will that the testator intended that the city

should take possession within a reasonable time,-such time as would assure the possession, improvement and maintenance of the land in question as a free public park. (In re Pierpoint's will, 72 Vt. 204.) Plaintiff in error was authorized to acquire the land in question for the purpose of providing a public park, and was authorized to enclose, improve and maintain the same and regulate the use thereof by ordinance because the city of Macomb does not exceed 15,000 inhabitants and the land lay within four miles of its corporate limits. (Hurd's Stat. 1917, p. 530.) The city was authorized by statute to borrow money and levy and collect a general tax for the purpose of improving and maintaining such park in the same manner as for the purpose of purchasing and maintaining waterworks under the laws of this State and had the right to appropriate money for the same. No effort was made by the authorities, within such time as might be considered reasonable, to levy and collect a general tax for that purpose, and there never was any attempt to issue bonds for the purpose of making any improvements. No possession of the premises was taken or attempted by the city in its corporate capacity. Under all the circumstances of the case we think that a reasonable time had elapsed for the performance of the conditions precedent before plaintiff in error filed her original bill.

The law is well settled that where an executor or executrix is charged with duties which do not properly belong to such officer but to a trustee, such executor 'or executrix will be held to be a trustee. The testator in this case created a trust for charitable purposes and charged his wife by name with duties properly belonging to a trustee, and the fact that he merely designated her as executrix, without distinguishing the duties imposed upon her as trustee from her duties as executrix, does not amount to a failure to appoint a trustee. She was a trustee in fact. (Kemmerer v. Kemmerer, 233 Ill. 327; Welch v. Caldwell, 226 id. 488.) An order of the county court discharging her as executrix

(Starr v.

is void as to the unsettled portion of the estate. Willoughby, 218 Ill. 485.) The trustee in this case was vested with great discretion. She applied to a court of chancery for an order to sell the property and to apply the proceeds of the same to some charitable purpose. One of the oldest heads of chancery jurisdiction is the execution and control of trusts and trust funds. (Hopkins v. Granger, 52 Ill. 504.) Where great discretion is vested in the trustee the exercise of such discretion is subject to the control of a court of chancery. (Jones v. Jones, 124 Ill. 254; Welch v. Caldwell, supra.) Where the court obtains jurisdiction by reason of the trust it is empowered to determine all questions that might arise in the progress of the case and to do complete justice. (Strawn v. Jacksonville Female Academy, 240 Ill. 111.) The acceptance and ordinance in question were clouds on defendant in error's title, and she had a right to have them removed before she made a sale of the property. A semblance of title, either legal or equitable, which, if valid, would affect or impair the title but which can be shown by extrinsic evidence to be invalid, is a cloud on the title. (Glos v. People, 259 Ill. 332.) The trustee was required in this case to convey a fee. The fee, therefore, was conferred upon her by the will. The estate of a trustee in real estate is commensurate with the powers conferred by the trust and the purposes to be effected by it. (Welch v. Caldwell, supra; Kemmerer v. Kemmerer, supra; Lord v. Comstock, 240 Ill. 492.). Defendant in error is executrix and trustee under the will, and it is immaterial that the decree orders her to proceed as executrix although in the bill she is described as trustee, merely.

The court properly decreed the acceptance and ordinance to be clouds upon the title and correctly decided the merits of the case, and its decree is therefore affirmed. Decree affirmed.

(No. 13364.-Reversed and remanded.)

GEORGE DENEEN et al. Defendants in Error, vs. TIMOTHY J. DENEEN et al. Plaintiffs in Error.

Opinion filed June 16, 1920.

1. COSTS-specific items cannot be taxed as costs without statutory authority. The right to costs is not a common law right but rests upon and is limited by statutory provisions, and specific items cannot be taxed as costs without express statutory authority.

2. DRAINAGE-commissioners' expenses cannot be taxed as costs on petition to abolish district. In an order abolishing a drainage district on the petition of a majority of the land owners, as provided in section 44 of the Levee act as amended in 1919, the expenses of the commissioners in employing an engineer and attorneys, and other incidental expenses and fees, cannot be taxed as costs, as the statute merely provides that the petitioner shall “pay all court costs."

3. SAME when constitutionality of statute is involved. Courts do not entertain objections to the constitutionality of a statute unless the objection is made by one whose rights have been in some way affected, but the objection that a statute to abolish a drainage district on petition of the land owners impairs the obligations of contracts will be entertained where the commissioners, who have entered into contracts for the district, are parties to the proceeding to abolish it and represent parties whose contract rights will be affected.

4. CONSTITUTIONAL LAW—what contracts are protected by constitutional provision against impairing their obligations. The constitutional provision against laws impairing the obligations of contracts prohibits any law which impairs the obligations of contracts binding the parties to perform their agreement, whether the contract is executed or executory; and it is not only private contracts that are protected but also contracts made by the State with individuals and by municipalities or corporate agents of the State with individuals.

5. SAME-franchise to corporate agent of State is not protected by provision against impairing obligations of contracts. A legislative grant to a municipal or quasi municipal corporation for the exercise of some share of governmental powers in a locality does not constitute a private contract between the State and the corporation, and, unlike franchises granted to engage in business which might properly be transacted by a private corporation, such a franchise is not contractual in its nature nor protected by the constitutional

guaranty against laws impairing the obligations of contracts, but the legislature may amend or revoke such a franchise at its pleasure.

6. SAME-extent to which section 44 of Levee act, as amended in 1919, for abolishing drainage districts, is unconstitutional. The provision of section 44 of the Levee act, as amended in 1919, for abolishing drainage districts on the petition of a majority of land owners, is unconstitutional in so far as the order of court abolishing a district impairs the obligations of lawful contracts which the drainage commissioners have already entered into and by which they have incurred expenses authorized by statute to be paid by subsequent assessments.

WRIT OF ERROR to the County Court of McHenry county; the Hon. CHARLES P. BARNES, Judge, presiding.

M. A. CARMACK, R. F. MARSHALL, and D. T. SMILEY, for plaintiffs in error.

PAUL J. DONOVAN, (E. H. WAITE, of counsel,) for defendants in error.

Mr. CHIEF JUSTICE CartwrigHT delivered the opinion of the court:

Cane Creek Drainage District of the towns of Dunham and Marengo, in the county of McHenry, was organized by order of the county court and the plaintiffs in error were appointed commissioners. They went upon the lands of the district and formed a plan for drainage and reported the same with the report of the engineer employed by them. Their report was confirmed by the court, and afterward a petition was filed by defendants in error, owners of lands included in the district, praying that the whole system of proposed works should be abandoned and the district abolished and that the court should enter an order according to the prayer of the petition upon the payment of court costs. The commissioners appeared and filed their written motion to strike the petition from the files on the ground that the act under which it was filed was unconstitutional and void