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the making of the agreement by Emma Gullett. On the hearing the plaintiff in error offered to prove the agreement by her own testimony and that of her two sisters to each of whom a bequest of one dollar was made, but the court sustained an objection to the competency of these witnesses, and the correctness of this ruling is the only question which has been argued.
Since the children of Mrs. Gullett, except the complainant and her two sisters whom she offered as witnesses, were defending as devisees under the will of their mother, the complainant and her two sisters, whose interest was adverse to them, were incompetent to testify to anything occurring in Mrs. Gullett's lifetime, under section 2 of chapter 51 of the Revised Statutes. In Jones v. Abbott, 235 Ill. 220, a daughter filed a bill to set aside her father's will and have partition of his estate under a contract similar to that alleged here, whereby the father had agreed to allow his property to descend to his heirs under the statute. Another daughter of the testator, who was a devisee under the will and a party to the suit, was held incompetent to testify to anything occurring during the lifetime of her father because she was a party directly interested and the adverse party was suing as heir of the deceased person. That case was exactly similar to this, but the objection was there made by the complainant while here it is made by the defendants. This difference does not change the legal question, for the same rule which excludes the testimony of the defendants against the complainant suing as an heir also excludes the testimony of the complainant or any other party having the same interest against the defendants defending as devisees.
The plaintiff in error relies upon the case of Pigg v. Carroll, 89 Ill. 205, in which it was held that in a suit between heirs for partition and the adjustment of advances the statute excluding parties of record and in interest from testifying has no application, the title to the property involved belonging to the litigants and no attack having been made on the title of the ancestor. In Mueller v. Rebhan, 94 Ill. 142, it was further said in regard to this statute that it was intended to protect the estates of deceased persons from the assaults of strangers, and relates to proceedings wherein the decision sought by the party so testifying would tend to reduce or impair the estate, and does not relate to the relative rights of heirs or devisees, as to the distribution of an estate, in proceedings by which the estate is in no event to be reduced or impaired. These decisions have since been cited and approved many times but they have no application to the present case.
The object of the suit in Pigg v. Carroll, supra, was merely to adjust rights between heirs-at-law; no question as to the title or the right of the ancestor was involved; while here the object is to take the estate from the legatees and distribute it equally among the heirs-at-law and the right of the ancestor to make a will is directly attacked. As was said in Comier v. Comer, 119 Ill. 170, the parties litigant in Pigg v. Carroll, supra, and in subsequent cases on the same subject where parties were held to be competent witnesses in their own behalf, held a title derived from the same identical source and the litigation concerned property it was conceded belonged to the parties to the suit. In fact, all parties claimed by the same title. Here, while the titles come from the same source they are not the same but are inconsistent. The complainant and her two sisters claim by inheritance, the other defendants by purchase. The latter title the complainant seeks entirely to destroy by showing that the testatrix had no right to make the will. It has been held many times that a complainant in a bill against executors and devisees to set aside a will is not competent to testify in his own behalf in regard to occurrences in the testator's lifetime. (Brace v. Black, 125 Ill. 33; Taylor v. Pegram, 151 id. 106; Bevelot v. Lestrade, 153 id. 625; Pyle v. Pyle, 158 id. 289; Waugh v. Moan, 200 id. 298.)
In the latter case it is said that the fact that the contest was between the heirs of the deceased does not change the rule, and that the rule announced in Pigg v. Carroll, supra, and kindred cases, does not apply.
The witnesses by whom it was sought to sustain the bill were incompetent, and the decree will be affirmed.
The City of Chicago, Defendant in Error, vs. P. F. Pet
TIBONE & Co., Plaintiff in Error.
Opinion filed April 22, 1915.
1. MUNICIPAL CORPORATIONS—authority to pass any ordinance must be conferred by legislature. The authority of a city to pass any ordinance must be found in some act of the legislature, and any reasonable doubt as to the existence of such authority must be resolved against the right of the municipality to its exercise.
2. Same-a city cannot compel employer to require fire drills. Neither clause 63, 66 nor 78 of section i of article 5 of the Cities and Villages act authorizes a city to pass an ordinance requiring an employer to train his employees to avoid dangers from fire by means of fire drills and to equip his building with a fire alarm system for such drills, nor is such authority otherwise vested in the city by the legislature.
WRIT OF ERROR to the Municipal Court of Chicago; the Hon. ROBERT H. Scott, Judge, presiding.
FYFFE, RYNER & DALE, for plaintiff in error.
John W. BECKWITH, Corporation Counsel, and AlBERT J. W. APPELL, Prosecuting Attorney, (Roman G. Lewis, of counsel,) for defendant in error.
Mr. JUSTICE COOKE delivered the opinion of the court:
Plaintiff in error, P. F. Pettibone & Co., was found guilty in the municipal court of Chicago of a violation of sections 47 and 53 of an ordinance creating a bureau of fire prevention and public safety, and was fined $100 and costs. The validity of these two sections of the ordinance being involved and the trial judge having certified that in his opinion the public interest required that the cause be taken directly to this court, plaintiff in error has sued out a writ of error from this court to review the judgment of the municipal court.
It is contended that said sections 47 and 53 of the ordinance in question are unconstitutional on the grounds that the city council of the city of Chicago did not have the power to pass them, that they are unreasonable, and that they take away property without due process of law.
Said section 47 is, in part, as follows: "Fire drills, in what buildings required.—Fire drills shall be conducted according to rules, methods and regulations prescribed by the chief of fire prevention and public safety in buildings and portions of buildings of the following classes :" Here follow eight subdivisions or clauses of the section defining the various classes of buildings in which fire drills of employees and school children are required to be conducted by the person, firm or corporation occupying or in charge of such buildings. It is conceded that the six-story building used by plaintiff in error as a stationery, printing and engraving establishment comes within one of the classes enumerated in this section and known as Class I. Section 48 of the ordinance must be referred to in order to make section 53 intelligible. That section provides that except in Class 8 buildings, which are school buildings having a seating capacity for more than one hundred students, every person, firm or corporation occupying or in charge of any building thereinbefore required to have fire drills shall organize from among the employees of his or their respective building a fire brigade of such number of persons as may be necessary to carry out the purposes of the provisions of the ordinance during the hours such building is open for general use, and that such fire brigade shall
drill regularly, not less than once in each month, in a manner prescribed by the chief of fire prevention and public safety, and also perform test drills whenever required by the chief of fire prevention and public safety or his duly authorized representatives. Said section 53 is as follows:
“Sec. 53. Fire alarm system—where required.—A fire alarm system, as hereinafter specified, shall be installed in every building hereinbefore required to have fire drills, subject to the approval and supervision of the chief of fire prevention and public safety: Provided, however, that in Class 2a buildings, and in buildings equipped with automatic sprinkler systems or equipped with automatic fire alarm systems, only such a fire alarm system shall be required as may in the judgment of the chief of fire prevention and public safety be necessary to facilitate the work of the fire brigade maintained in such types of buildings."
In the view we take it will be necessary to discuss only the first ground urged for reversal. The authority of the city council to pass any ordinance must be found in some act of the legislature. Such authority is always strictly construed, and any reasonable doubt of its existence must be solved against the right of the municipality to its exercise. Seeger v. Mueller, 133 Ill. 86; City of Chicago v. M. & M. Hotel Co. 248 id. 264; City of Chicago v. Mandel Bros. 264 id. 206.
Defendant in error insists that it was granted power to pass said sections 47 and 53 of the ordinance by clauses 63, 66 and 78 of section 1, article 5, of the Cities and Villages act. These clauses of that statute are as follows:
"Sec. 1. The city council in cities, and the president and the board of trustees in villages, shall have the following powers:
“Sixty-third—To prevent the dangerous construction and condition of chimneys, fire-places, hearths, stoves, stove-pipes, ovens, boilers, and apparatus used in and about any building and manufactory, and to cause the same to