(Seidschlag v. Town of Antioch, 207 Ill. 280.) In this case the records of the county board which show it concurred with the report of its committee recommending that the proposition of the commissioners of highways of the town of Norwood Park to vacate the road across the Townsend tract on condition that a new road should be established over the strip of ground in controversy be accepted, and the subsequent report showing that the highway commissioners of the town of Norwood Park had proceeded to vacate the other road, and the act of the county commissioners in going to the place in question and participating with the highway commissioners of the town in laying out the new road, and the continued and uninterrupted use of the same by the public as a highway since that time, we think sufficiently show an intention on the part of the county to dedicate the strip of ground in controversy as a public highway. While there is no record evidence, other than that above mentioned, of the laying out of such highway, it further appears that the records of the highway commissioners of the town of Norwood Park have been lost, so that they could not be produced upon the hearing and satisfactory proof made as to what they contain with reference to this matter. But we do not deem formal record proof of the laying out and acceptance of such highway by the highway commissioners of Norwood Park township necessary in this case.

The evidence further shows that as soon as the highway was laid out the commissioners of the township proceeded to grade the same and otherwise improve it as one of the highways of such township, and that ever since that time it has been worked, maintained and cared for by such highway commissioners the same as any other public highway in the township and the expense of such maintenance borne by that township, and during all of the time it has been in general use as a public highway of such township. While it is true that it has been more particularly used by those

bringing produce to the Dunning Institution, it has nevertheless been open for the use of all who desired to pass that way and to the public generally. The test is, not how many persons actually used the highway but how many had a free and unrestricted right in common to use it, and where the evidence shows that a road is open as a public highway and has been known and used as such in common by all the people for the statutory period, this will constitute it a public highway. The facts that a road is recognized by the authorities of the township as one of its public highways and worked the same as other roads in the township and has been continuously in use by the general public, strongly indicate that it is one of the public highways of such township. Under our statute the continued and uninterrupted use of land as a highway for the statutory period, in the absence of proof to the contrary, will be presumed to have been under a claim of right, and will create a prescriptive right in favor of the public in such highway without further proof of acts of recognition on the part of the authorities. "Where the statute expressly says that use of a road as a highway by the public for a certain number of years makes it a public highway, we cannot see why such use is not evidence of as high a character as are acts of recognition by the town authorities. Where the public pass more or less frequently for the statutory period over a highway as often as they have occasion to pass in that direction, and where the amount of travel considered with reference to the surrounding circumstances shows that the public exercise the right of using the land as and for a highway, such user authorizes the presumption of a grant or the presumption that the road was laid out by competent authorities." Township of Madison v. Gallagher, supra.

There can be no question, under the evidence in this case, but that ever since the road was surveyed and laid out the same has been supervised and maintained by the highway commissioners of the town of Norwood Park un

der a claim of right as one of the public highways of that township, and also that during all of the time since it was laid out the land has been used as a highway under a claim of right by the public, and that such use has been continuous and uninterrupted and with the full knowledge of the owners of the land in question. In Village of Middletown v. Glenn, 278 Ill. 149, we held that the use by the public of a strip of land as a highway for a period of fifteen years constitutes the same a public highway, and that where the same was bounded on one side by a hedge fence for more than twenty years such fence was properly held to be the boundary line of such road. In Hansen v. Green, 275 Ill. 221, we held that where the evidence showed there was a regular traveled road across a tract of land used by the public generally whenever they saw fit, for a sufficient length of time to establish a public highway over it, it was not necessary to show that anyone made public proclamation of a claim of right to use such highway but that such fact might be shown by circumstances. In this case we have the use of land in controversy as a public highway for a period of more than twenty-five years. The record evidence of an intention to dedicate land for highway purposes in consideration of the vacating of another highway, together with acts of the public authorities in laying out the highway and grading, maintaining and improving the same as one of the highways of such town for a like period of time, coupled with the general and uninterrupted use of the same as a public highway by all who desired to pass that way for more than twenty-five years, is, we think, under the circumstances, sufficient to establish it as a highway.

For the reasons given the decree of the circuit court must be reversed and the cause remanded to that court, with directions to enter a decree granting to appellants the relief prayed for in their bill and making the temporary injunction granted permanent.

Reversed and remanded, with directions.

(No. 11481.-Decree affirmed.)

MABEL A. READ, Appellee, S. RICHARD ADAMS et al.— (EDWIN F. HEMPSTEAD et al. Appellants.)

Opinion filed October 23, 1917.

1. WILLS--when provision in will devises a fee under section 13 of Conveyances act. Under section 13 of the Conveyances act, if an estate is devised to a named person without the use of words theretofore necessary to transfer an estate of inheritance, such person will take a fee simple estate of inheritance unless it appears from the will by express words or by construction or operation of law that a less estate than a fee is limited.

2. SAME-when a devise of homestead with power of sale is a devise in fee simple. Where a testator devises to his wife "the homestead where we now reside," (describing the same,) "she to have full power to sell all or part of said lots as she thinks best," the words "where we now reside" do not limit the devise to a life estate; nor does the clause giving the power of sale limit the estate to less than a fee, where there is nothing in the rest of the will to indicate such an intention.

APPEAL from the Circuit Court of Henry county; the Hon. FRANK D. RAMSAY, Judge, presiding.

N. F. ANDERSON, and ROBERT C. MORSE, for appellants.

ALBERT E. BERGLAND, for appellee.

Mr. JUSTICE DUNCAN delivered the opinion of the court: Mabel A. Read, appellee, filed her bill in the circuit. court of Henry county for the partition of lot No. 3 and the north half of lot No. 4, in block 13, in the original town (now city) of Galva. She charged in her bill, in substance, that Jennie Hempstead died intestate May 7, 1913, seized in fee simple of said premises, leaving surviving her the appellee, her niece, and the following named persons, nephews and nieces and descendants of nephews and nieces, as her only heirs-at-law, to-wit: Richard Adams, Henry Adams, Allen Adams, Alice Stebbins, Florence Clark Byrns,

Laura Elizabeth Clark, William C. Clark, Jennie Clark Hunt and Florence W. Byrns; that said Jennie Hempstead obtained title to said premises in her lifetime from her husband, Oscar A. Hempstead, under the provisions of his will, executed December 2, 1911, and duly probated after his death; that the said Oscar A. Hempstead died testate, seized in fee of said premises, January 4, 1912, leaving him surviving Jennie Hempstead, his widow, and Edwin F. Hempstead, Winifred Stowell and Josephine Irish, his children and only heirs-at-law; that said Josephine Irish died after the death of her said father; that said Jennie Hempstead was the second wife of Oscar A. Hempstead, and that she left no children or descendants of children, no father or mother and no brothers or sisters her surviving. The above named heirs of Jennie Hempstead (except appellee) and said Edwin F. Hempstead and Winifred Stowell, and others who made no contest against appellee, were made parties defendant to the bill. The appellants, Edwin F. Hempstead and Winifred Stowell, answered the bill, denying that Jennie Hempstead was the owner and seized in fee of said premises at the time of her death, and denying that the appellee and the other heirs of Jennie Hempstead owned any interest in the premises, as heirs of Jennie Hempstead or otherwise. They also set up in their said answer the claim that they are the owners in fee simple of said premises as the only heirs of their father and also by the provisions of his will, and aver that their father was the owner in fee simple of said premises at the time of his death. Appellee filed a formal replication to the answer. All the other defendants made default. The issues were submitted to the master in chancery for proofs and findings. The master found the issues for appellee and that she was entitled to a decree for partition of said premises among the heirs of Jennie Hempstead, deceased. Objections were filed to the master's report and findings by appellants, which were overruled and exceptions were pre