the date of the filing of the petition, even though the land had been enhanced in value at that time by reason of the fact that the drainage canal was to be constructed. The same doctrine was laid down in the earlier case of Concordia Cemetery Ass'n v. Minnesota and Northwestern Railroad Co. 121 Ill. 199, where it was held that the taking and damaging are, in theory, done as of the date of the filing of the petition, and it is the value of the property as then presumably enhanced by the prospective benefits to result from the construction of the railroad which the owner is entitled to recover. The doctrine laid down in those two cases is quite different from that announced in this instruction. The doctrine announced in the two cases cited is based upon the theory that if the proposed work in constructing the canal and in building the railroad benefited all the lands in the vicinity, then the owner of the land sought to be taken for the bed of the canal or the right of way of the railroad was entitled to the benefit of such increase. This instruction is not based upon any such theory. The evidence does not disclose that this farm is adapted to form the site or location of any public institution except the one in contemplation. There is no claim that the re-location of the penitentiary on this site has affected or will affect the market value of any lands in that vicinity. This instruction plainly indicates that appellees may take advantage of the necessities of appellants. Such is not the law. It was error to give this instruction.

The fifth instruction given on behalf of appellees is as follows:

"The court instructs the jury that evidence of other sales should only be considered by them so far as a similarity exists between the lands sold at other times and the lands of the defendants, and if you believe, from your view of the farm of Elliott R. Giffin and the evidence of the witnesses, that the character and condition of the Jackson farm or the Dieter farm at the time they were sold

were not similar to the Giffin farm, and were so dissimilar to the Giffin farm on August 30, 1911, that such sales furnish no criterion of the value of the Giffin farm, then you are at liberty to disregard the evidence of such sales entirely in fixing the just compensation to which the defendants in this case are entitled."

Evidence of voluntary sales of other lands in the vicinity of and similarly situated to the land sought to be condemned is admissible to aid in determining the value of such tract. The value of such testimony depends upon the similarity of the land to that in question at the time such sales were made and the distance such lands are located from those sought to be condemned. Whether such other lands have sufficient similarity that evidence of the sales would aid the jury, must, of necessity, rest largely in the discretion of the trial judge. (St. Louis and Illinois Belt Railway v. Guswelle, 236 Ill. 214; Aledo Terminal Railway Co. v. Butler, 246 id. 406.) The court having passed upon the competency of this evidence and having admitted it, it was only within the province of the jury to consider it and give it such weight as they believed it to be entitled to. This instruction virtually authorized the jury to pass upon the competency of the evidence and should have been refused.

The ninth instruction given on behalf of appellees is as follows:

"The jury are instructed that it is your duty to allow E. R. Giffin, the owner of the land being condemned, just compensation therefor, and that just compensation means such a sum of money as will make him as well off after taking his property as he would have been if his property had not been condemned. In ascertaining such just compensation the jury should allow him the fair cash market value August 30, 1911, of the reversion in the land condemned, and add thereto the amount of rent that he would

receive from such land for the two years ending March 1, 1914."

This instruction should not have been given. It was no concern of appellants what proportion of the total damages awarded should be allowed to Elliott R. Giffin and what portion should be allowed to his two sons, as tenants. Where it becomes necessary for the jury to assess damages for separate interests in condemnation proceedings, it is the duty of the jury to first fix the fair cash market value of the entire property as between the petitioner and all the defendants, and then to divide the same according to the respective rights of the defendants. (Chicago, Burlington and Quincy Railroad Co. v. Reisch & Bros. 247 Ill. 350; Chicago and Northwestern Railway Co. v. Miller, 251 id. 58.) In this case there was no disagreement among the appellees as to the value of the leasehold interests of the two tenants. It was conceded by Elliott R. Giffin that

the leasehold interest of each of his sons was worth the sum of $640. Under this state of the record it was only incumbent upon the jury to determine the full cash market value of the property. The division of the amount so found among the appellees could then have been made by the court as well as by the jury. This instruction was improper and should have been refused.

The appellants complain of the giving of instructions Nos. 4 and 7 on behalf of appellees and of the refusal of their instruction No. 16. A consideration of these instructions discloses that Nos. 4 and 7 were properly given and No. 16 properly refused.

The sale of a farm known as the Jackson farm was testified to, and William Grinton, a witness for appellants, was not permitted to testify that this was a voluntary sale, and appellants complain of the exclusion of this testimony. The witness testified in detail to all the circumstances, which showed plainly that it was a voluntary sale. The questions to which objections were sustained called for the

conclusions of the witness, and the court properly sustained the objections.

Elliott R. Giffin was permitted, over the objection of appellants, to testify that he had made inquiry in the neighborhood in which he had lived, and other neighborhoods around the city of Joliet, with a view of purchasing a farm, and that he had taken the results of those inquiries into consideration in fixing the value of his farm. He had previously testified that the fair cash market value of his farm was $300 per acre. Appellants insist that the evidence in regard to the inquiries made was improperly admitted, for the reason that the price which various persons who may not have been desirous of selling their lands had fixed upon them did not tend to disclose the market value of lands in that vicinity. We do not perceive how the admission of this testimony was prejudicial to appellants. It may be conceded that it was not proper, but if it had any effect at all, it must have been to weaken the testimony of Giffin as to the value he placed upon his farm. Had appellants desired to take advantage of the fact that the witness had included an improper element in arriving at his estimate of the value of his farm, they should have made a motion to exclude his testimony as to value.

Other objections are urged to the rulings of the court upon the admission of evidence and to the rulings of the court in reference to remarks of counsel for appellees in the argument to the jury, but we perceive no error in any of the rulings complained of.

Appellants also assign for error that the compensation allowed is excessive, but as the cause must be reversed for a new trial we will not consider the point raised that the verdict was not warranted by the evidence.

For the errors indicated in the giving of instructions. Nos. 5, 8 and 9 the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

M. D. HULL, Trustee, Appellee, vs. FRED C. ENSINGER et al. (THOMAS E. FERGUSON et al. Appellants.) Opinion filed December 17, 1912-Rehearing denied Feb. 5, 1913.

1. WILLS—when remainder is contingent. Where the residue of testator's property is devised to a trustee to hold for a period of ten years after the death of the widow and at the expiration of such period the property to descend to and be divided among the testator's named children, "their heirs or the survivors of them, equally, share and share alike, the children or descendants of a deceased child, if any, taking the share of the parent or ancestor," etc., the remainder is contingent, as the persons to take cannot be known until the expiration of the trust. (Spengler v. Kuhn, 212 Ill. 186, followed.)

2. SAME when estate of trustee is a freehold estate. Where a will vests in a trustee, subject to a life estate in the homestead, the title to all of the testator's real estate until the full term of ten years from the death of the testator's wife shall have elapsed, the estate in the trustee is a freehold estate, and being a freehold estate at its creation it does not lose its character as such at the subsequent death of the testator's wife.

3. DEBTOR AND CREDITOR-a contingent remainder is not subject to sale under execution. A contingent remainder is not such an estate as can be sold on execution, and the purchaser at such sale acquires no title.

APPEAL from the Circuit Court of McLean county; the Hon. COLOSTIN D. MYERS, Judge, presiding.

HUFF, COOK & SLOTTOW, and E. E. DONNELLY, (THOMAS D. HUFF, and JOSEPH SLOTTOW, of counsel,) for appellants.

DAVID K. TONE, for appellee.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the

court:

The appellee, as trustee under the will of William F. Ensinger, filed in the circuit court of McLean county his bill for the construction of the will and the removal of