filed this bill against the grandson named in the fifth clause, and his guardian.

One of the causes for demurrer alleged was, that it appears from the bill that no joint tenancy, tenancy in common or in co-parcenary exists between the complainants and defendants. The fifth clause of the will devised the legal title of the undivided one-fourth of the real estate to Charles Hamill until Eldon Hamill should attain the age of twenty-one years, unless the real estate should be sold before that time. No power of sale was given to the trustee and he was not required to convey the title. In case the grandson lived to be twenty-one it was directed that the real estate should become his property in fee simple. In case he died before attaining the age of twenty-one it was directed that the undivided one-fourth of the real estate should be divided amongst the heirs of the testator's body in accordance with the laws of descent of the State of Illinois. So far as the fifth clause is concerned, the devise given by it is absolute, and since the widow is dead the grandson has a fixed, equitable right to have the rents and profits of the undivided one-fourth of the real estate paid for his benefit, until he shall have attained the age of twenty-one years, to his guardian. This right is a present vested interest in the land. The trust, however, is limited to the time when the grandson shall attain the age of twenty-one or shall die before that event. In either case the legal estate is disposed of by clauses 6 and 7 of the will, in the one event to the grandson, in the other to the testator's heirs. The important question to be determined is whether the devise to the grandson contained in the sixth clause of the will is vested or contingent. The language, “in case my said grandson lives to attain the age of twenty-one years," is in the form of a condition precedent and indicates that the element of futurity is annexed to the substance of the gift of the property. But there are two circumstances which prevent this construction. The

gift of the income indicates the intention that the devise shall vest at once. (Mettler v. Warner, 243 Ill. 600; Carter v. Carter, 234 id. 507; Armstrong v. Barber, 239 id. 389; Cropley v. Cooper, 19 Wall. 167.) Though time be annexed to the substance of the gift and not merely to its payment, yet if the income, by way of maintenance or otherwise, be given to the devisee, the devise is vested unless other circumstances appear to prevent the vesting. Provencher's Appeal, 67 Pa. St. 463; Tucker v. Bishop, 16 N. Y. 402.

The severance of the subject matter of the devise from the rest of the estate for the benefit of the beneficiary by the creation of a trust and the direction to pay the rents and profits to him indicates the intention of the testator that the estate shall vest at once, and the devisee shall have the estate at all events and wait only for payment until he shall have reached the required age. Bennett v. Bennett, 217 Ill. 434; Warner v. Durant, 76 N. Y. 133; Middleton's Estate, 212 Pa. 119; Bowman v. Long, 23 Ga. 242; Nelson v. Pomeroy, 64 Conn. 257; Hooker v. Bryan, 140 N. C. 402.

The rule is established that a devise of real estate to one when he shall attain a certain age, with a devise over dependent upon the first devisee's death before attaining that age, or without issue, or under any similar condition, is not subject to the condition precedent that the devisee shall attain the age fixed but creates a vested estate, subject to a condition subsequent by the happening of which it may be divested. (Doe ex. dem. Hunt v. Moore, 14 East. 601.) The rule is thus stated in Jarman on Wills (vol. I, 6th Am. ed. p. 778): "Where a testator devises lands to trustees until A shall attain the age of twenty-one years, and if or when he shall attain that age then to him in fee, this is construed as conferring on A a vested estate in fee simple, subject to the prior chattel interest given to the trustees, and, consequently, on A's death under the prescribed age the property descends to his heir-at-law, though

it is quite clear that a devise to A if or when he shall attain the age of twenty-one years, standing isolated and detached from the context, would confer a contingent interest, only." The same doctrine is announced in 2 Redfield on Wills, 224, and was applied in the cases of Lunt v. Lunt, 108 Ill. 307, and Illinois Land and Loan Co. v. Bonner, 75 id. 315.

Eldon Hamill has a vested estate in the undivided onefourth of the land, subject to be defeated by his death before his majority. Such an estate is subject to partition. Askins v. Merritt, 254 Ill. 92; Pitzer v. Morrison, 272 id. 291.

The court erred in sustaining the demurrer to the bill, and its decree will be reversed and the cause will be remanded, with directions to overrule the demurrer.

Reversed and remanded, with directions.

THE CITY OF BELLEVILLE, Appellee, vs. WILLIAM MITCHELL, Appellant.

Opinion filed April 20, 1916.

1. SPECIAL ASSESSMENTS-the power of the city council to pass improvement ordinances. The power of the city council to pass im- . provement ordinances must be reasonably exercised, and the reasonableness of such ordinances is a question to be decided by the court in view of all the circumstances and conditions.

2. SAME―burden of proving that an ordinance is unreasonable rests upon objectors. Where an improvement ordinance does not indicate, on its face, that it is arbitrarily unjust and oppressive, the -burden of proving its unreasonableness, under existing conditions, rests upon the objectors.

3. SAME-when amendment of verdict as to one property owner does not affect its validity as to other parties. Where the verdict of the jury reducing the assessments of several objectors is several as to each of them, the fact that after the jury is discharged the court amends the verdict in order to make a similar reduction in the assessments of four objectors who had been omitted does not affect its validity as to the others, even though this action of the court is erroneous.

4. SAME-change of venue does not vacate any of the proceedings had in the cause previous to the change. A change of venue does not vacate any of the proceedings had in a cause before the change was granted, though the judge may use his discretion as to setting aside previous orders if good reason is shown for doing so.

5. SAME-commissioner who made assessment cannot be called upon to impeach it. The commissioner who made the assessment cannot be called upon by the objectors to impeach his official act by answering questions designed to show that he did not investigate, deliberate and decide in the manner required by law.

APPEAL from the County Court of St. Clair county; the Hon. JOSEPH B. MESSICK, Judge, presiding.

lant.

KEEFE & SULLIVAN, and JOHN E. HAMLIN, for appel

L. N. PERRIN, City Attorney, (A. H. Baer, of counsel,) for appellee.

Mr. JUSTICE DUNN delivered the opinion of the court:

The city of Belleville filed its petition in the county court of St. Clair county for the confirmation of a special assessment to pay the cost of the improvement of Main street (formerly known as the St. Clair county turnpike or rock road) from the north line of the right of way of the Southern railway to the northwestern limits of the city, by grading, curbing and paving the roadway. A commissioner was appointed, who filed an assessment roll, estimating the sum of $48,427.26 as the amount of public benefits which was apportioned to the city of Belleville and $240,666.74 which was apportioned to the property benefited. The appellant, together with numerous other property owners, filed objections. A hearing was had on the legal objections, and they were overruled. Afterward a trial of the objections to the amount of benefits and the proportionate share of the cost of the improvement was had by a jury. The verdict returned on the first trial was set aside by agreement,

and on the application of the objectors a change of venue was granted from the judge. A second trial was had before another judge, a verdict was returned, and after overruling a motion for a new trial judgment of confirmation was entered, from which William Mitchell, one of the objectors, has appealed.

The first question argued by the appellant is the reasonableness of the ordinance, but in the condition of the record we are unable to consider that question. The power of the city council to pass ordinances must be reasonably exercised, and the reasonableness of the ordinance is a question for the decision of the court in view of all the circumstances and conditions. (Hawes v. City of Chicago, 158 Ill. 653.) The present ordinance does not indicate, on its face, that it is arbitrarily unjust or oppressive. It is only by the introduction of evidence showing the existing situation and conditions that the alleged unreasonableness of the ordinance can be made to appear, and the burden of showing such conditions rests upon the objectors. The objection that the ordinance is unreasonable is a legal objection, and section 48 of the Local Improvement act provides that all objections, except the objections that the property will not be benefited to the amount assessed against it and that it is assessed more than its proportionate share of the cost of the improvement, may be set down for a separate hearing. This was done, and all legal objections were disposed of before the trial of the objections as to the amount of the assessment and the proportionate share. Upon the hearing of these objections no bill of exceptions was taken preserving the evidence which was heard. In the middle of the common law record containing copies of various papers filed in the cause is contained what appears to be the testimony of two witnesses together with a stipulation of counsel, but these are not authenticated by the certificate of the judge, as a bill of exceptions or otherwise. We cannot look to them as indicating the proceedings which occurred on