sale to the court within ten days, and that upon the approval of the sale the trustee execute a deed to the purchaser. Out of the proceeds of the sale the trustee was ordered to pay all costs and expenses, pay $1000 to James C. Martin, and pay one-half the remainder to each Robert A. Martin and Sarah F. Martin, administratrix. James C. Martin has prosecuted this appeal from that decree, and says in his brief the errors assigned may be disposed of by determining (1) whether Andrew Martin disposed of all his estate and property by will, and (2) whether the doctrine of equitable conversion of the land into personal property applies.

It would seem to necessarily follow that if the correct construction was given the will by the circuit court the doctrine of equitable conversion applies. The familiar and fundamental rule which governs in the construction of a will is, that it must be so construed as to give effect to the intention of the testator when such intention is not in violation of any rule of law or of public policy. The intention of the testator is to be determined from the language of the entire will, considered in the light of the facts and circumstances surrounding the testator, his family and property, at the time of making the will. (Hawhe v. Chicago and Western Indiana Railroad Co. 165 Ill. 561; Hoffner v. Custer, 237 id. 64; Mills v. Tecl, 245 id. 483; Wallace v. Foxwell, 250 id. 616; Strickland v. Strickland, 271 id. 614.) The surrounding circumstances at the time the will was made appear from the stipulation of facts above set out. The land was first devised to the widow so long as she remained unmarried. At her death the will directed that the land be sold. That was the plainly expressed intention of the testator and was not dependent upon James C. Martin surviving the widow. When her estate terminated the land was to be sold and converted into money. While it is not plainly so expressed in the will, the necessary implication is that the $1000 Robert and George were

required to pay James was to be paid out of the proceeds of the sale. There is nothing in the will to indicate that the testator intended that Robert and George should pay that bequest out of their individual means, or that the land was to be considered intestate property and descend to the three sons equally and the bequest to James made a charge against the shares of Robert and George. The will explicitly says if James is not living at the termination of the life estate the proceeds of the sale (the previous direction to sell is not repeated in this connection) shall be divided equally between Robert and George. It is beyond question that the testator intended the land to be sold at the death of the life tenant. Any other construction would be in conflict with the clearly expressed intention of the testator. It seems equally clear that he intended James should be paid $1000 therefrom and that Robert and George should have the remainder. The whole provision disposing of the land after the death of the widow is contained in one sentence. The will was written by a justice of the peace, and while the sentence is awkwardly arranged, no reasonable construction can be put upon it except that the testator intended the land to be sold at the death of the life tenant, and after James, if living at that time, was paid $1000 the remainder should be divided equally between Robert and George, and if James pre-deceased the life tenant the whole of the proceeds should be equally divided between them. That the testator intended to dispose of, and thought he had disposed of, the land by his will is made manifest by the last sentence of clause 3, which provides that if the widow should marry, all her right and interest should cease and the land "be sold and divided as above directed in case of her decease." It would be absurd to say the direction that the land "be sold and divided" did not mean that it was to be sold and the proceeds of the sale divided. How had the testator "above directed" that the proceeds of the sale be divided? Equally between Robert and George if James was not living, but if

he was alive he was to be paid $1000 and the remainder should go to Robert and George. While the first part of the devise of the remainder does not explicitly say that after paying James the $1000 the remaining proceeds shall be divided between Robert and George, that is the necessary implication from all the language of clause 3, and only by giving it that construction can effect be given the intention of the testator. A devise by implication will be sustained though not made by the will in formal language, when the probability of the intention of the testator to make the gift is so strong that a contrary intention cannot be supposed. Connor v. Gardner, 230 Ill. 258, reported in 15 L. R. A. (N. S.) 73, where an exhaustive note will be found; O'Hearn v. O'Hearn, 114 Wis. 428; Post v. Hover, 33 N. Y. 599.

The construction given the will by the chancellor, and which we think was correct, is further strengthened by the presumption of law that where a man dies testate it will be presumed he intended by his will to dispose of all his property and leave no part of his estate intestate. Unless this presumption is rebutted by the provisions of the will or evidence showing a contrary intention it will be given effect. It will not be permitted to cvercome the expressed intention of the testator appearing from the language of the will, but it will be applied and acted upon where it will give effect to his intention. Hayward v. Loper, 147 Ill. 41; Greenwood v. Greenwood, 178 id. 387; Eyer v. Williamson, 256 id. 540; Wixon v. Watson, 214 id. 158.

Under the construction we have given the will the sons of the testator did not take the land by the devise but took the proceeds of its sale, and the doctrine of equitable conversion applies. Greenwood v. Greenwood, supra; Lash v. Lash, 209 Ill. 595; Dorsey v. Dodson, 203 id. 32; Baker v. Copenbarger, 15 id. 103.

The decree of the circuit court is affirmed.

Decree affirmed.

THE TOWN OF CORTLAND, Appellee, vs. ENNIS LARSON,

Appellant.

Opinion filed June 22, 1916.

I. MUNICIPAL CORPORATIONS-what is not within the grant of power with reference to intoxicating liquor. The power of a town or city to "regulate, prohibit or license the selling of" intoxicating liquor does not include power to make it an offense to receive, keep or use intoxicating liquor at a club or other place for individual, personal use as a beverage, only, where there is no element of selling, giving away or otherwise disposing of the liquor as a device to evade the law; nor does it include the power to make it an offense to maintain or assist in maintaining a club where intoxicating liquor is received or kept as a beverage by the individual members for their personal use, only.

2. SAME-town or city cannot prohibit person from receiving or using intoxicating liquor. There is no law in Illinois which prohibits a person from receiving, keeping or using intoxicating liquor for private consumption, when such receiving, keeping or using is done in such a manner as not to interfere with the rights of others and there is no intoxication or disturbance; and a city, town or village has no power to enact an ordinance prohibiting such receiving, keeping or using.

3. SAME a club cannot be used as a means of evading laws or ordinances against sale of liquor. A club, or assembly of individuals as a club or association, cannot be used as a means of evading and violating the provisions of the Dram-shop law or Local Option law or ordinances of municipal corporations prohibiting or licensing the sale of intoxicating liquor.

4. SAME-police power does not authorize ordinance prohibit ing possessing and using intoxicating liquor. The police power of a city, town or village does not authorize an ordinance prohibiting a person from receiving, keeping or using intoxicating liquor as a beverage where no question of an unlawful selling or giving away is involved, as intoxicating liquor is property, and the police power does not justify an arbitrary interference with the property and privileges of citizens.

5. SAME a city cannot arbitrarily declare a thing a nuisance. The power delegated to municipal corporations to determine what are nuisances does not include the power to declare something a nuisance which is not a nuisance per se or recognized by the common law or the statutes as a nuisance, and does not extend to declaring every place to be a nuisance where intoxicating liquor

is received, kept or used as a beverage, irrespective of the manner of such use.

6. SAME what is not within the power of the State or a city. It is not within the power of a municipal corporation or the State to regulate the private life or conduct of a citizen in the use of his property in matters in which he, alone, is affected and others are not necessarily affected.

APPEAL from the County Court of DeKalb county; the Hon. WILLIAM L. POND, Judge, presiding.

ALSCHULER, PUTNAM & JAMES, for appellant.

J. E. MATTESON, and C. D. ROGERS, for appellee.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the

court:

The appellant was convicted in the county court of DeKalb county of a violation of sections 2 and 3 of a municipal ordinance of the town of Cortland and was fined $25 for the violation of section 2 and $30 for the violation of section 3. Propositions of law which were submitted by the defendant and refused by the trial court raised the question of the constitutionality and validity of the ordinance under which the defendant was convicted. He has appealed directly to this court on the ground that the validity of the ordinance is involved, the trial court having made the necessary certificate.

The sections of the ordinance involved are as follows: "Sec. 2. Whoever shall within said corporate limits, directly or indirectly, keep or maintain by himself or by associating or combining with others, or shall in any manner aid, assist or abet in keeping or maintaining, any clubroom or other place in which any intoxicating liquor or spirituous, vinous, malt or fermented liquor, in any quantity whatsoever, is received or kept for the purpose of use, gift, barter, exchange or sale as a beverage, or for distribution or division among the members of any club or as