dam and not by the defendant the plaintiff could not recover for such part, and the court so instructed the jury. There was no controversy that the effect of building the dam was to permanently raise the water, and the evidence offered had no tendency to show whether the damages now claimed resulted from the dam or from the defendant's acts. It only showed that if they resulted from the dam they had been released, and that was immaterial. The depositions, so far as they related to the value or condition of the land or the amount of the damages, were too remote in time to be admissible.

The court admitted in evidence, over the defendant's objection, certain paragraphs from the seventeenth annual report of the United States geological survey. These relate to the flood stage of water in the Desplaines river. They do not purport to be based upon measurements and are not officially authenticated in any way. They are only the estimates of the persons who are stated in the report to have made them and are hearsay, which should not have been admitted.

Complaint is made of each of the eight instructions given on behalf of the plaintiff, but none of them except the fourth were materially wrong when considered in connection with all the instructions in the case. The criticism of the fourth instruction, which authorizes the finding of damages for washing or eroding the land when there is no allegation or proof of "washing or eroding," is just. The jury were fully instructed by twenty-three instructions asked by the defendant, covering eleven pages of the printed abstract, which covered any other defects in the plaintiff's instructions.

It is argued that three instructions asked by the defendant which were refused should have been given. Instruction 48 was a cautionary instruction, which told the jury they should dismiss from their minds all personal feeling and sympathy which might have been aroused by the ap

pearance in court of the widow and children of the plaintiff's intestate. In view of the argument made by the counsel for the plaintiff it should have been given. Instructions 61 and 62 were based upon the hypothesis that though some crops grown on the land before 1900 cannot now be grown, yet the land has a value for growing other and different crops. The evidence in regard to growing other and different crops had been excluded,-wrongfully it has been held, but still excluded, and instructions based upon such evidence were properly refused.

The land involved lies in five different sections. One tract of 130 acres is entirely separate from the rest and a mile away. The remainder is divided by the river and the lake into five separate pieces detached from one another. One of these five tracts consists of the south half of the south-west fractional quarter of section 2, the south-east quarter of the south-east quarter of section 3, and the fractional north half of section 10, all in township 15, north, range 10, east of the fourth principal meridian. The other three pieces were separate tracts in the south-west quarter of section 3, the north-east and the south-east quarters of section 9, and were all situated north and west of the lake and of the river. In accordance with the provisions of section 79 of the Practice act the defendant asked the court to require the jury to answer the following special interrogatories in regard to each tract:

"What number of acres lying [here describing it,] have been depreciated in their fair cash market value since January, 1900, by reason of the acts of the defendant charged in the declaration or some count thereof?"

"What has been the depreciation in the fair cash market value of the land as it was on January 17, 1900, and shortly prior thereto, of the plaintiff's interest in the tract of land lying [here describing it,] by reason of the construction and operation of the channel of the Sanitary District of Chicago, as charged in the declaration or some count thereof ?"

The court refused to submit these interrogatories. It was not error to do so. The plaintiff's cause of action was single, for the damage to all the land. The defendant could not split it up and compel a finding according to government subdivisions or other artificial or natural divisions of the land, in regard to the damage to each. The special interrogatory which a party has a right to require the jury to answer is restricted to those ultimate facts upon which the rights of the parties directly depend. A special interrogatory is not proper unless some answer responsive thereto would be inconsistent with some general verdict that might be returned upon the issues in the case. (Illinois Central Railroad Co. v. Scheffner, 209 Ill. 9; Chicago Exchange Building Co. v. Nelson, 197 id. 334; Chicago and Northwestern Railway Co. v. Dunleavy, 129 id. 132.) The interrogatories do not refer to any facts determinative of the rights of the parties or any issue in the case. The answers to them could only affect the amount of the damages and have no application to the cause of action or any element of it except the amount of damages.

The judgment includes an amount for attorney's fees, to which the appellant objects both because the statute which allows the attorney's fees is unconstitutional and the amount allowed by the court is excessive. We have held the statute constitutional in Sanitary District v. Ray, 199 Ill. 63, and Miller v. Sanitary District, 242 id. 321, and we adhere to those decisions. The appellant introduced no evidence as to the services rendered or their value but submitted the case on the showing made by the appellee. The amount ($4125) seems to us to be large, but since the judgment is to be reversed the attorney's fee falls with the judgment, and it is unnecessary now to express an opinion as to whether it is excessive or not.

The judgment is reversed and the cause remanded to the circuit court for a new trial.

Reversed and remanded.

HARLAN P. MCNAIR, Plaintiff in Error, vs. Charles T. MONTAGUE et al. Defendants in Error.

Opinion filed October 28, 1913-Rehearing denied Dec. 4, 1913.

1. WILLS-when grandson does not take a vested estate with right of possession postponed. Where a testator devises all of his property to his son in trust, a provision that the trustee shall hold one-half of the estate in trust for the benefit of the testator's grandson until he shall attain the age of fifty years, when it shall be vested in him or his legal heirs, the trustee to have the exclusive privilege of making the division of the property, and, if he becomes satisfied that the grandson is capable of handling the portion of the estate intended for him, to invest him with such portion or any part thereof, does not give the grandson a fee with the right of possession postponed but the fee is in the trustee.

2. SAME when a trustee takes the fee simple title. Where a testator devises his entire estate, both real and personal, to his son as trustee, with full power to sell, convey or convert the same as his judgment might dictate, the estate and its proceeds to be held in trust for the purposes specified, the trustee must take a title sufficient for the exercise of his powers, and takes, therefore, a fee simple title.

3. SAME-direction to devisee to execute a will devising estate to trustee will not be construed to mean a naked trust. Where a testator, after devising all of his estate to his son as trustee, provides that the son shall have one-half of the estate for life but directs that the son shall make a will providing that in case of his death before the testator's grandson attains the age of fifty years all of the estate left by the son shall go to said grandson "or his trustee," the word "trustee" will not be construed as meaning a trustee of the naked legal title, but will be held to authorize the son to name a trustee to carry out the terms of the trust.

4. TRUSTS when sole power to make division is in a court of equity. Where a will devises one-half of the testator's property to a trustee, who is to have the exclusive privilege of making the division of the property, but the trustee dies before making such division, the only power to make the division is in a court of equity, there being no authority given the trustee to appoint a successor in trust.

WRIT OF ERROR to the Circuit Court of Coles county; the Hon. WILLIAM B. SCHOLFIELD, Judge, presiding.

260 - 30

VAUSE & HUGHES, ANDREW L. CHEZEM, and H. A. NEAL, for plaintiff in error.

CRAIG & KINZEL, for defendants in error.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The plaintiff in error, Harlan P. McNair, who had been named as trustee under the wills of Truman W. Montague and Joel A. Montague, filed his bill in the circuit court of Coles county against the defendants in error, Charles T. Montague and others, asking the court to appoint him trustee under said wills and fix his bond and seeking the aid of the court in construing the wills and in the execution of the trusts. Susan C. Montague, widow of Joel A. Montague, filed a cross-bill, which was dismissed on her motion. Charles T. Montague answered the bill and filed a cross-bill, and the cause was heard on the original bill and cross-bill and answers and replications. The court adopted the construction of the wills insisted upon in the cross-bill, removed Harlan P. McNair from the position of trustee under the will of Truman W. Montague and appointed another trustee. A writ of error was sued out of this court, and the record is here for review.

Joel A. Montague was the only son of Truman W. Montague, and had an only son, Charles T. Montague, one of the defendants in error. On August 20, 1897, Truman W. Montague made his will, and the provisions material to this controversy are as follows:

"Second-After payment of such debts, if any, I desire that my entire estate, both real and personal, of whatever character, shall be held in trust by my only son, Joel A. Montague, for the following purposes: That after paying all taxes, debts and claims against my estate, the income on the entire estate, both real and personal, shall go to my son, Joel A. Montague, for his own personal use