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on the land. To that end he devised to his four sons all his real estate, except the town residence, in fee simple absolute upon their compliance with the condition that his five daughters should receive their proportionate shares of their inheritance in money, at a valuation of $190 per acre. After making that general devise he devised 210 acres of the land in fee simple to his sons Jurko Remmers and Peter Remmers on their paying to the daughters the proportionate shares of their interest at a valuation of $190 per acre, and devised the remaining 200 acres in fee simple to his sons John Remmers and Henry Remmers upon their making like payments to the daughters at the same valuation. These devises were followed by this provision: “It is my will also that in the event of the death of any of my children before the death of my beloved wife, then the children, if there be any, of such heirs shall take the shares of their deceased parents in equal parts among them.” On September 8, 1916, appellants, Jurko Remmers and Bertha Remmers, his wife, entered into a written agreement with the appellee, Peter Remmers, whereby they agreed to sell and convey to the appellee the undivided one-half of the 210 acres devised to Jurko Remmers and Peter Remmers for $5025,—$525 of which was to be paid on the execution of the contract and the balance of $4500 was to be paid on December 1, 1916, when the appellants were to execute and deliver to the appellee a warranty deed conveying to him in fee simple, free from all incumbrances, the said undivided one-half of the lands, subject, however, to the life estate of Anna Remmers and payments to be made to the daughters under the terms of the will. The nature of the title to be conveyed was further defined as follows: “It is hereby understood and agreed that the interest hereby sold and contracted to be conveyed is an interest in fee simple absolute, free and clear of all incumbrances, except the life estate of said Anna Remmers and the payments above mentioned to be made under the terms of the will."
Anna Remmers, the widow, is still living, and Jurko Remmers and Peter Remmers each had several children when the will was written, and the children are still living. The appellee refused to comply with the contract on the ground that the title of Jurko Remmers was not an absolute title in fee simple, and the appellants filed their bill in this case in the circuit court of Piatt county to compel him to specifically perform the contract. The appellee demurred to the bill, and the demurrer was sustained and the bill dismissed for want of equity at the cost of appellants.
By the will the remainder in the lands in question after the life estate of Anna Remmers was devised to the appellant Jurko Remmers and the appellee, Peter Remmers, subject to the payment in money to the five daughters of their proportionate shares in the land at a valuation of $190 per acre, but in case either of the sons should die previous to the termination of the life estate the share of the deceased son was to go to his children. A will in no respect different from this one, so far as the question involved is concerned, was construed in Lachenmyer v. Gehlbach, 266 Ill. II, where it was decided that the testator's children took a vested remainder, subject to the executory devise, upon the happening of the contingency upon which the same was limited during the continuance of the life estate. There was, a like decision in Ashby v. McKinlock, 271 Ill. 254, where there was a devise of land by language sufficient to vest the fee simple title in the devisee, Martha Isabella Kerr, but a subsequent clause of the will provided that if she should marry and leave no issue then the estate was to go to the brothers and sisters of the testator or their children. In each of those cases the specific performance of a contract of the devisee to convey a good title to the prentises was denied. The remainder vested in Jurko Remmers will be subject to the executory devise over to his children in case of his death during the continuance of the life estate. Any conveyance by him will carry with it the limi
tations which will become effective upon his death before the termination of the life estate, and he cannot convey an estate in fee simple in accordance with the terms of the contract.
The court did not err in sustaining the demurrer and dismissing the bill, and the decree is affirmed.
(No. 11536.— Judgment affirmed.) THE PEOPLE ex rel. L. E. Vautrin et al. Appellants, i's.
W. D. Madison et al. Appellees.
Opinion filed October 23, 1917. 1. SCHOOLS—the legislature may authorise organisation of high school district without any petition or vote. The legislature may authorize the organization of high school districts out of compact and contiguous territory without requiring a petition for that purpose or a vote of the people on the question.
2. CONSTITUTIONAL LAW—when curative statute may be enacted. Where there is no constitutional prohibition the legislature may validate by a curative act any proceeding which it might have authorized in advance.
3. SAME-When a curative act is not local or special law'. Classification for purposes of legislation cannot ordinarily be based entirely upon existing conditions; but this rule does not apply to curative legislation, and if the act applies to all cases in the same situation it is not subject to the objection that it is a special law because it applies only to existing conditions.
4. SAME--curative act of 1917, validating organisation of high school districts, is a valid lace. The curative act of June 14, 1917, in so far as it purports to legalize the organization of certain high school districts therein described, is a valid enactment and is applicable to all high school districts coming within its terms, although the organization was attempted under the invalid act of 1911.
5. SAME-legislature cannot direct what judgments shall be entered in pending actions. The legislature may enact statutes and change the law, but the application of the law to particular cases is a judicial function, and the adjudication as to what orders shall be entered in pending actions is the exercise of judicial power, which belongs to the courts and not to the legislature.
6. APPEALS AND ERRORS—the Supreme Court will dispose of case according to law then existing. If the right of the plaintiff to file an information in the nature of quo warranto is taken away by statute while the action is pending on appeal, it is the duty of the Supreme Court to decide the case according to the law then in force and not according to the law as it was when the decision of the lower court was rendered.
APPEAL from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding.
ERNEST J. HÆNDERSON, State's Attorney, and TicheNOR, TODD & Wilson, for appellants.
THOMAS KENNEDY, for appellees.
Mr. JUSTICE Dunn delivered the opinion of the court:
On December 30, 1916, the State's attorney of Woodford county presented to the circuit court, and asked leave to file, an information in the nature of quo warranto in the name of the People of the State of Illinois, on the relation of L. E. Vautrin and others, against W. D. Madison and six other persons, charging them with holding and executing without title or right the offices of president and members of the board of education of an alleged township high school district known as High School District No. 121, and requiring them to show by what warrant they claimed to hold and execute such offices. A rule was entered requiring the defendants to show cause by the first day of the next term why leave should not be granted. The defendants appeared at the next term and filed affidavits in opposition to the petition, and on April 9, 1917, leave was denied and the relators appealed.
During the pendency of the appeal the General Assembly passed, with an emergency clause, “An act to legalize the organization of certain high school districts," which was approved by the Governor on June 14, 1917. This act provided, among other things, that in all cases where a
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majority of the inhabitants of any contiguous and compact territory voting on the proposition have voted at any election called for the purpose by a county superintendent of schools in favor of the organization of such territory into a high school district, and when, at a subsequent election similarly called and held, a board of education has been chosen for such district, each such election was thereby made legal and valid and such territory was thereby declared legally and validly organized and established as a high school district and a valid and existing school district and body politic and corporate of this State for the purpose of establishing and maintaining a high school. The board of education acting for each such district was declared to be the duly constituted corporate authority thereof, and all acts and proceedings theretofore done, had or performed by each such district, and the persons from time to time elected and acting as the board of education thereof, such as were authorized to be done, had or performed by school districts or boards of education thereof by the general School law of this State, were declared to be legal and valid in all respects.
The petition for leave to file the information shows that the attempted organization of the high school district was under the act of 1911, which was held unconstitutional in People v. W'cis, 275 Ill. 581. The organization was therefore void. No authority of law existed for the organization of a high school district except that derived from section 85 of the general School law and the following sections. Organization of high school districts was, however, a lawful purpose. We may take judicial notice of the fact that many attempts were made to organize high school districts under the law of 1911, and from the unconstitutionality of that law it necessarily follows that the boards of education of those districts, in levying taxes, equipping and conducting high schools and incurring indebtedness for such purposes, were acting without authority of law. The General Assembly, in view of this situation, deemed it best for