paid $75, being the doctor's bill above

Men

that Margaret Caples has paid $46.75 of Such indebtedness, being the funeral expenses paid by her, as aforesaid, and is liable under said agreement for the additional sum of $121.37 thereof. That the living expenses of James O'Neil and Eliza O'Neil up to September 1, 1910, were $132.95 in excess of the proceeds from that portion of the farm under Mary O'Neil's control up to that date, and that under the said agreement Margaret Caples should pay that sum to Mary O'Neil.

The

en-or about March 26, 1910, leaving a last will, tioned, and is liable, under said agreem ent, which has been duly probated, and in and for the additional sum of $93.13 thereof, and by which he devised all his property and es tate to his widow, Eliza O'Neil, as alleged in the supplemental bill filed herein. decree sets aside the deed in question, and declares the same to be null and void and of no force and effect, and orders the defendants to deliver up the said deed to the clerk of the court to be canceled. Margaret Caples and Patrick M. Caples have appealed from that decree, and urge as grounds for reversal: First, that the contract between Mary O'Neil and Margaret Caples was an independent and distinct transaction from that by which the real estate in question was conveyed by James O'Neil and Eliza O'Neil to Mary O'Neil and Margaret Caples, and that the terms and provisions of the contract were not the consideration for the deed; second, that appellant Margaret Caples had, at the time of the filing of the bill of complaint herein, complied with the contract in so far as she was required at that time; and, third, that the failure on the part of Mary O'Neil and Margaret Caples to comply with the contract, if there was any such failure, was not cause for setting aside the deed.

The conclusions of the master are that James O'Neil and Eliza O'Neil executed and delivered the deed in question, and that the same is valid and legal in all respects, and conveyed the premises therein described to Mary O'Neil and Margaret Caples, subject to the mortgage thereon and subject to the life estate reserved to the grantors; that the defendants Margaret Caples and Mary O'Neil have not complied with the agreement made by them, as aforesaid, under date of November 23, 1909, and that Eliza O'Neil is entitled to have said agreement performed according to the tenor thereof, as a part of the consideration for said conveyance; that the material facts alleged in the bill, except the allegation that the deed was never delivered, have been proven and are true; and that complainant is entitled to the relief of specific performance alternatively prayed in said bill, but is not entitled to have said Ideed set aside.

[1] While some of the testimony relating to the question whether the contract was independent and distinct from the deed was incompetent, the competent testimony discloses conclusively that the contract does express the true consideration for the execution of the deed. It is true some minor changes were made in the contract before it was executed by Mary O'Neil and Mrs. Caples, but it expressed the agreement which had been entered into between Mr. and Mrs. O'Neil and the two daughters. Such minor changes as were made in the contract before it was executed were acquiesced in and approved by the grantors in the deed. Appellee relies upon the provisions of the contract just as though the same had been embodied in and made a part of the deed itself, and she does so prop

should be considered as one, although the contract was not executed by the grantors in the deed.

The defendants Margaret Caples and Patrick Caples filed objections with the master to his report, which were overruled, and these objections were refiled as exceptions in the circuit court. The complainant filed no objections with the master, but filed exceptions to the report in court, excepting to the finding that said James O'Neil and Eliza | O'Neil executed and delivered the deed in question, and that the same is valid and legal in all respects, and conveyed the prem-erly, as under the proof the two instruments ises therein described to Mary O'Neil and Margaret Caples, subject to the mortgage and life estate, and to the finding of the master as to the delivery of the deed, also urging in her exceptions that the master should have included in his report a recommendation that the deed be set aside for want of delivery. After a hearing upon the report of the master and the exceptions thereto, the court entered a decree finding the facts substantially as the master had found them, but finding, in addition thereto, that by reason of the failure of the defendants to perform the agreement of November 23, 1909, above set forth, in the respects shown by the master's report, and by reason of their failure to operate the farm, the consideration for said deed has wholly failed, and the complainant is entitled to have said deed set aside. The court further found that James O'Neil departed this life testate, on

[2] In determining whether the chancellor erred in setting aside the deed because of the default of the grantees therein it is necessary to determine whether the provisions of the contract, when read into the deed, constitute covenants or conditions subsequent. The agreement to pay the interest on the mortgage indebtedness, taxes, insurance, the outstanding indebtedness of the grantors, and all funeral expenses or other debts and liabilities left by either of them, is clearly in the nature of a covenant. In cases involving deeds with provisions similar to this we have refused the relief here sought. In Gallaher v. Herbert, 117 Ill. 160, 7 N. E. 511, a father conveyed a tract of land to his son in consideration of love and affection and the payment to him by the son

[3] But even if the last-mentioned portion of the contract be construed as a condition subsequent, and not as a covenant of the deed, there is nothing disclosed by this record which entitles appellee to the relief granted. No claim is made by appellee that she has not been furnished the necessaries of life and all her living expenses. She offered in evidence a statement of account by Mary O'Neil showing receipts from that portion of the farm controlled by her under the contract, and also her expenditures for groceries and other living expenses. disclosed that Mary O'Neill had paid all the living expenses, and that there was owing to her from her sister, Mrs. Caples, a balance of $132.95, being the excess of the expenses over the proceeds from the farm. The bill does not allege that the grantees are in

This statement

of $200 a year as long as he should live, and they themselves deem necessary, and that the further consideration that the son should the grantees shall pay for the same. There not sell or convey the premises during the is nothing in the language employed in the life of the father. The son failed to make contract which indicates that it was intended the annual payments, and incumbered the that the conveyance should be made upon a land by a mortgage and by suffering judg- condition subsequent. In the construction of ments to be entered against him. The father deeds, courts will always incline to interpret filed a bill to have the conveyance set aside the language as a covenant rather than as a because of the son's failure to comply with condition. Board of Education v. Baptist the provisions of the deed, but we held he Church, 63 Ill. 204; Gallaher v. Herbert, was not entitled to that relief, and reversed supra. the decree of the lower court, with directions to enter a decree against the land for the past-due installments, and for a lien on the land for the future installments. In Calkins v. Calkins, 220 Ill. 111, 77 N. E. 102, the grantor sought to have a deed set aside because of the failure of the grantee to pay a cash consideration of $1,000 and a mortgage of $1,000, which by the terms of the deed he had assumed and agreed to pay. The circuit court granted the relief prayed for, but its decree was reversed by this court, with directions to dismiss the bill. It was there held that the failure of the grantee to pay the cash consideration of $1,000 was not ground for canceling the deed, and that the failure to pay the mortgage assumed could not affect the conveyance of the land, and that in case the grantors were compelled to pay the mortgage indebtedness they would have a remedy over against the grantee, and could default in failing to provide appellee with resort to the land for reimbursement. Under the comforts and necessaries of life, but althe holdings in those cases appellee could leges that Mrs. Caples has failed to contribpursue her remedy at law against the gran-ute her proportion of the living expenses, tees in the deed if she were compelled to pay the taxes, interest. on the mortgage, or the outstanding debts, or funeral expenses of her husband, or she could resort to the land for reimbursement by a proper bill in equity. The master found that Mrs. Caples had paid the taxes and the interest on the mortgage due in 1910, and that she and Mary O'Neil had paid a part of the outstanding debts and funeral expenses of James O'Neil. It is not claimed that appellee has been called upon or compelled to pay any of the amounts which Mrs. Caples was obligated to pay by the terms of the contract. But whether this be true or not, a court of equity will not afford the relief sought under this provision of the contract. The further agreement to pay for necessary repairs to be made upon the farm and to pay the grocery bills and other living expenses of Mary O'Neil and the grantors is more in the nature of a covenant than of a condition, as it is really an agreement for the payment of money for specific purposes. It is not the ordinary agreement usually found in such instruments for the care and maintenance of the grantors. It necessarily implies that the grantors have the right to incur such living expenses and such expenses for repairs upon the farm, as

and seeks to have the deed set aside on that and other grounds, or to compel contribution from her. While, under the contract, appellee is entitled to have her living expenses paid, it is a matter of no concern to her whether they are paid by one or both of the grantees. Neither is she concerned in the adjustment of accounts between her daughters.

Having had her living expenses paid by Mary O'Neil, appellee has no ground for complaint in that regard.

The liability of the grantees to pay the sums they are obligated to pay by the terms of the contract is not measured, as appellants contend, by the amount of the proceeds from the farm, except as to amounts required to be paid by Mary O'Neil for living expenses. By the terms of the contract Mrs. Caples has made herself personally liable to pay the sums therein specified to be paid by her, without regard to whether she receives sufficient proceeds from the farm with which to pay them.

Appellee is not entitled to the relief prayed for. The decree of the circuit court is reversed, and the cause remanded, with directions to dismiss the original and supplemental bills for want of equity.

Reversed and remanded, with directions.

(257 111. 538.) PEOPLE v. REILLY.

(Supreme Court of Illinois. Feb. 20, 1913.) 1. INDICTMENT AND INFORMATION (8 101*) SUFFICIENCY DESIGNATION OF PERSON IN

JURED INITIALS.

Even if the full Christian name of a third party, necessary to the description of a crime, should be given in the indictment, the court will not presume from the indictment alone, without proof, that letters are merely initials rather than the full Christian name of the party designated.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 272-277; Dec. Dig. § 101.*]

2. NAMES (8 2*) — INITIALS - "CHRISTIAN

NAME.'

The Christian name may consist of a single letter or letters.

[Ed. Note.-For other cases, see Names, Cent. Dig. § 1; Dec. Dig. § 2.*

For other definitions, see Words and Phrases, vol. 2, p. 1149.]

3. INDICTMENT AND INFORMATION (§ 101*) REQUISITES-DESIGNATION OF PERSON IN

JURED.

The object in naming the injured person in a criminal prosecution is for the purpose of identity, so that the accused cannot be tried again for the same offense.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 272-277; Dec. Dig. § 101.*]

4. CRIMINAL LAW (§ 1137*)—APPEAL-PARTY ENTITLED TO ALLEGE ERROR-PARTY INVITING ERROR.

Where accused, tried for an assault upon one "M. C. Connors,' requested instructions referring to the person assaulted as M. C. Connors, he cannot raise the question of a variance between the proof and the name, as found in the indictment.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.*]

Error to Appellate Court, Second District, on Error to Circuit Court, Jo Daviess County; Oscar E. Heard, Judge.

Michael Reilly was convicted of an assault with a deadly weapon with intent to inflict bodily injury, and on a judgment of the Appellate Court, affirming the conviction. he brings error. Affirmed.

Louis Greenberg, of Chicago, for plaintiff in error. W. H. Stead, Atty. Gen., Frank T. Sheean, State's Atty., of Galena, and Thomas E Gill, of Springfield (Franklin J. Stransky, of Savannah, of counsel), for the People.

CARTER, J. Plaintiff in error, Michael Reilly, was indicted and tried in the circuit court of Jo Daviess county, and found guilty of an assault with a deadly weapon with intent to inflict bodily injury, where no considerable provocation appeared. He was sentenced to the county jail for 100 days, and fined $100 and costs, and ordered committed to the county jail until said fine and costs were paid. He sued out a writ of error from the Appellate Court for the Second District, where the judgment of the circuit court was

The only question raised on this record is that the indictment under which Reilly was tried is insufficient to support the conviction, because it describes the person injured as "M. C. Connors." The authorities are not all agreed as to the use of an initial for the Christian name of a party in an indictment in a criminal case, whether he be the defendant, the complaining witness, or any other individual that it may be necessary to name in describing the offense. Nothing is found in this record indicating that the prosecuting witness, Connors, had any other Christian name than "M. C."

[1, 2] Even if it should be held that the full Christian name of a third party, necessary to the description of a crime, should be given in the indictment, most authorities hold that the question whether letters are the full Christian name cannot be raised on the indictment alone, without proof. In Bishop's New Criminal Law (1895 Ed.), that author says (section 685): "If a single letter occupies the place for a name, doubtless the court cannot judicially discern that it is an initial instead of a name certainly it cannot know what is the name for which it stands. And there is no reason why the letter should not be deemed, in fact, a name, the same as are many letters. Hence if one is commonly designated by initials for his Christian and middle name, so that they indicate plainly who is meant, it is the doctrine to which the tribunals have been tending, and most of them have reached that such initials are adequate in the indictment." Lord Campbell, when an objection was made to certain papers in criminal proceedings because only the initials were given instead of the Christian name, remarked: “I do not know that these are initials. I do

not know that they [the persons referred to] were not baptized with those names." Re

gina v. Dale, 5 Eng. L. & Eq. 360. The court will not assume, without proof, that the letters are only initials. 14 Ency. of Pl. & Pr. 274; 10 Id. 506. The weight of authority agrees with Lord Campbell's holding that the Christian name may consist of a single letter or letters. There is no presumption that they are merely initials rather than the full name of the party designated. 29 Cyc. 269, and cases cited; 21 Am. & Eng. Ency. of Law (2d Ed.) 308, and cases cited; Joyce on Indictments, § 215; Eaves v. State, 113 Ga. 749, 39 S. E. 318; State v. Appleton, 70 Kan. 217, 78 Pac. 445; State v. Cameron, 86 Me. 196, 29 Atl. 984; Brown v. Common wealth, 86 Va. 466, 10 S. E. 745; Perkins v. McDowell, 3 Wyo. 328, 23 Pac. 71; Hinkle v. Collins, 113 Mich. 105, 71 N. W. 481; Tweedy v. Jarvis, 27 Conn. 42; Stratton v. McDermott, 89 Neb. 622, 131 N. W. 949, Ann. Cas. 1912C, 616; State v. Black, 31 Tex. 560. It has been stated by this court that

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

is a rule of pleading that the name of the person receiving the injury, when known, must be set out in the indictment, that the accused may know of what particular offense he is charged. But when the person is described by the initials of his Christian name, and he is as well known by that as his full name, the object of the rule is obtained, and no error is committed; and it is a question for the determination of the jury whether he was known in the community as well by that as his full name. In this case the jury so found upon the evi dence."

the "initial letter of the Christian name is and that the initials were not sufficient. It so commonly used that it is to be regarded, not as the name of some other person, but as an abbreviation of the Christian name of the person intended." Illinois Central Railroad Co. v. Hasenwinkle, 232 Ill. 224, 83 N. E. 815, 15 L. R. A. (N. S.) 129; Claflin v. City of Chicago, 178 Ill. 549, 53 N. E. 339. See, also, Wharton's Crim. Pl. & Pr. § 117. Counsel for plaintiff in error relies chiefly on Willis v. People, 1 Scam. 399, where the indictment alleged the goods to be the property of "T. D. Hawke and E. Dobbins, doing business in the town of Equality, under the style and firm of T. D. Hawke & Co." While it is assumed in that case, without discussion, that a man's Christian name cannot be an initial, the case was reversed on the ground that the evidence showed that the residence of the owners was known, and the least inquiry would have enabled the prosecution to have obtained and inserted the Christian names in full. Since that decision was rendered, this court has, in certain cases, laid down a doctrine on the question of initials that is not in harmony with the rules there laid down.

In Little v. People, 157 Ill. 153, 42 N. E. 389, in discussing the question of variance, where the indictment gave the name John F. Hinckley as the name of the person injured, while the name, as shown by the evidence, was J. F. Hinckley, this court said (157 Ill. 156, 42 N. E. 390): "The use of the initial leters in place of the full Christian name has become general among all classes of people, and a judgment of conviction, otherwise free from error, ought not to be reversed because in the evidence the Christian name of the owner of the property stolen was proven only to the extent of the initials. No question was raised on the trial that the witness J. F. Hinckley, who testified to the theft of the diamond from his person, was not the John F. Hinckley named in the indictment. There can be no reasonable doubt as to the identity, and it will be presumed that the John F. Hinckley named in the indictment and the J. F. Hinckley mentioned in the proof as the owner of the property are one and the same person."

[3] This court in that case said that the object in naming the injured person, in a criminal prosecution, was for the purpose of identity, so that the accused could not be twice tried for the same offense, and that is the reason laid down by all the authorities. No question is raised in this record of the identity of the complaining witness.

In Vandermark v. People, 47 Ill. 122, the indictment charged Vandermark and others with an assault upon D. R. Linville, with intent to commit murder. In discussing the question whether the initials of the prosecuting witness were sufficient in the indictment, this court stated (47 Ill. 124): "It is said that the full Christian name of the

Counsel for plaintiff in error has furnished a certified copy of the original indictment in the Vandermark Case, just referred to, and it there appears that the indictment specifies "D. R. Linville, whose full Christian name is to the grand jurors unknown." It is therefore insisted by counsel for plaintiff in error that the rule laid down in this decision, as just quoted, goes too far, in view of the form of the indictment in that case. We do not so think. While in the earlier cases the rule may have been otherwise, in this and other jurisdictions, we think, not only on principle, but by the great weight of authority, the rule now is that the court will not assume, without proof, that letters are only initials, and may not be the full and proper Christian names: This court, in discussing the identity of the party killed, whose name was given in the indictment as Wesley Johnson, held that the identity was established, although the witnesses only spoke of the Johnson killed as "Johnson, the barber." One of the reasons given by the court for holding that the person was properly identified was that the prisoner's counsel, in instructions asked of the court, referred to the person killed as "Wesley Johnson." Shepherd v. People, 72 Ill. 480. The question of identity came up under another indictment for the murder of one John Young, Jr., where the proof showed the murder of Johnnie Young, and this court held that the prisoner's counsel had asked for an instruction in which the person killed was referred to as John Young, Jr., and could not raise the question of variance between the proof and the indictment. Bonardo v. People, 182 Ill. 411, 55 N. E 519.

[4] Several instructions in this case were given on behalf of plaintiff in error referring to the person assaulted as "M. C. Connors." Under these authorities, no question can be raised on this record of a variance between the proof and the name as found in the indictment; hence the case of Aldrich v. People, 225 Ill. 610, 80 N. E. 320, is not in point on the vital question here.

Under any view as to the rule of law that should govern this question on this record, the judgment of the Appellate Court for the Second District should be affirmed.

(257 III. 551.) the latter claims title to such real estate, SEXTON V. MERCHANTS' LOAN & TRUST was ever delivered. CO. et al.

(Supreme Court of Illinois. Feb. 20, 1913.) 1. DEEDS (8 61*)-DELIVERY-SUFFICIENCY OF EVIDENCE.

A testator in his lifetime, before leaving for a trip abroad, gave a sealed package to a clergyman bearing an indorsement that it was to be opened only on his death, and that the contents were not a part of his estate, but were the property of the clergyman. He stated to the clergyman that, "This is yours," but did not disclose its contents. Upon his return home it was redelivered to him, and after his death was found to contain, in addition to a deed to his brother executed 18 years before, the testator's will and other deeds, notes, and miscellaneous papers, some of which were valueless. Held, that the testator had not clearly manifested an intention to part with all dominion and control over the deed, and to convey the land to his brother, and hence the deed never became effective.

[Ed. Note. For other cases, see Deeds, Cent. Dig. 88 140, 141; Dec. Dig. § 61.*] 2. DEEDS (8 54*)-DELIVERY-NECESSITY.

Delivery is essential to the validity and operation of a deed.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 116; Dec. Dig. § 54.*]

3. DEEDS (§ 56*)—DELIVERY-ESSENTIALS.

It is essential to delivery of a deed that the grantor shall absolutely part with all dominion and control over the instrument.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 117-123, 125; Dec. Dig. § 56.*] 4. DEEDS (8 200*)-DELIVERY-EVIDENCE-AD

MISSIBILITY.

In an action involving the question of whether a deceased grantor parted with control over a deed in delivering it to a third person, a memorandum made by him, while listening to the argument of a cause to which he was a party, involving the question of what was essential to the delivery of a deed, offered to show that he knew what was necessary, was properly excluded, since what he did, and not what he knew, would control.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 601; Dec. Dig. § 200.*]

Appeal from Superior Court, Cook County; Charles A. McDonald, Judge.

ers.

Hubert E. Page and Willard C. McNitt, both of Chicago (Hollett, Sauter & Henkel, of Chicago, of counsel), for appellant. Musgrave, Oppenheim & Lee, of Chicago, for appellee Anna L. Sexton. McCulloch & McCulloch, of Chicago, for appellee Merchants' Loan & Trust Company. P. E. O'Neil, for guardian and guardian ad litem of Patrick Joseph Sexton.

Patrick J. Sexton in his lifetime owned the premises, which were known as No. 1340 Michigan avenue, having purchased them in 1884, and occupied them as his family residence until his death, on October 28, 1903. He left a large amount of real and personal property, which he disposed of by his will executed on June 26, 1902, in which he devised and bequeathed to his wife, the appellee, such interest in his estate as she might be entitled to under the laws of the state of Illinois. The appellant, John M. L. Sexton, is a brother of Patrick J. Sexton, and claims to be the owner of the premises by virtue of a warranty deed conveying them to him for an expressed consideration of $33,000, executed by Patrick J. Sexton and his wife, the appellee, dated August 25, 1885, but not delivered until August 8, 1903, when the appellant claims it was delivered by Patrick J. Sexton to Rev. Hugh P. Smyth for the use and benefit of the appellant. There is no dispute in the testimony. The only question is whether the delivery of the package containing the deed to Father Smyth was a sufficient delivery to vest the title in the grantee.

[1] On August 8, 1903, Patrick J. Sexton left Chicago for a trip abroad. He told the Reverend Hugh P. Smyth, who was a clergyman living in Evanston and a relative of Sexton, and had been intimate with him and the Sexton family for many years, that he wanted to see him before leaving. Father Smyth answered that he would be at the train to see Sexton off, and went there 10 or 15 minutes before train time. Sexton there handed him a package folded in brown paper, sealed with sealing wax, and having these words written on the wrapper, in Sexton's handwriting: "Rev. Hugh Smyth, Evanston.

This package to be opened only on the death of Patrick J. Sexton. Nothing conAction by Anna L. Sexton against the tained herein are part of the estate of PatMerchants' Loan & Trust Company and oth-rick J. Sexton. They are the property of From a decree in favor of plaintiff, de- Fr. Smyth, who understands my wishes." fendant John M. L. Sexton appeals. AfSmyth had been told nothing about the packfirmed. age or its contents. A day or two before, Sexton had brought a package of papers, with rubber bands around it, to his secretary, and asked him to put some heavy paper around it and seal it. This was done. Sexton wrote the above indorsement on the wrapper, and this was the package he handed to Smyth. Sexton, when handing Smyth the package, said: "This is yours. I will write you from the other side"-but did not disclose the contents of the package. Smyth DUNN, C. J. This appeal is from a decree took the package home with him and put it for the assignment of dower in certain real in his safe, where it remained until Sexton's estate in Cook county to the appellee, Anna return, when Smyth took it to Sexton's house L. Sexton, and the only question necessary and handed it back to him. After Sexton's to be decided is whether the deed from Pat- death Mrs. Sexton gave it to his secretary, rick J. Sexton to the appellant, under which | Mr. Jacobs, telling him that Sexton said she *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes