Opinion of the Court.

The executors sold the real estate, paid off the debts, and made a settlement of their accounts with the proper court, by which it appeared there remained in their hands upwards of thirty-six hundred dollars to be distributed agreeably to the will. His widow having subsequently married, a bill was filed by her and her husband against the executors, claiming therein a right to the entire fund. And the court so held. The words of the will were, "it is my will that the money aforesaid go to my heirs," and the court said the law determines who are a man's heirs, and this left that portion of the estate not specifically disposed of by the will, to the statute of descents and distribution to designate the heirship, precisely as though no will had been made. The fact that a provision had been made for the wife by the will did not prevent her from being an heir.

In the case before us, no provision was made for the widow, nor was there any specific devises or bequests contained in it. The testator directed his debts to be paid, and the remainder to be distributed to his heirs at law according to the statute of this State.

These cases are in point, and go to show that such a direction as that contained in this will is equivalent to a devise or bequest to those who would take the estate under our statute of distributions if the estate was intestate.

It seems to us quite evident, from the will itself, that such was the intention of the testator. Leaving, besides his wife, a father, mother, brothers and sisters, he did not wish to create causes of dissatisfaction by specific devises or bequests, and believing the statute made a fair disposition of an estate situated as his was, he determined that it should be disposed of by the statute, and in this view he could have had no other object in making the will than the designation of persons who should administer the estate without giving the bond required under statutory appointment. The estate, so far as the disposition. of it is concerned, is intestate. This, evidently, was the intent of the testator. He had no purpose to make a testamentary

Opinion of the Court.

disposition of his estate. That he intended should be distributed as if it were intestate estate, and being so, there can be no dispute, that under the statute the widow succeeded to the whole of it. There being no provision in the will for her benefit, there was nothing she could renounce. It is to all intents and purposes, an intestate estate.

But it is urged by the plaintiffs in error that this section is repealed by the act of February 11, 1847, entitled, "an act to amend an act concerning wills."

They claim not that it is in terms repealed, but by implication only.

That act consists of six sections, the first of which provides for widows, living in this State, of persons whose estates are administered upon in this State, that they shall be allowed in all cases in exclusion of creditors, as their sole and exclusive property forever, necessary beds, etc., enumerating various kinds of property useful in the maintenance of a family.

The second section provides, in addition to the above, widows of persons who have or may die intestate, shall be entitled to one-third of the personal estate of their deceased husbands, after the payment of debts, as their property forever. The third section provides the duties of the appraisers, in regard to each article of specific property.

The fourth section gives the widow the option to take other property in lieu of that specified in the first section. Section five repeals certain sections of other acts, and section six is as follows: The word "dower," as used in the forty-sixth section of the one hundred and ninth chapter of the Revised Statutes, entitled "Wills," shall be construed to include a saving to the widows of persons dying intestate, of one-third of the personal estate forever, after the payment of debts. Sess. Laws, 168.

It is very apparent, we think, that this act is treating of a widow entitled to dower, not as an heir under the forty-sixth section, under which the claim in question is presented. The only subject before the legislature, when this amendatory act

Opinion of the Court.

was passed, was, the rights of a widow as such. It was not designed to abridge her rights as an heir under the statute of descents, but to enlarge her dower rights. The reference in the sixth section to the word "dower," as used in the fortysixth section, goes to show, that it was the widow's dower the legislature was providing for, and not an attempt to deprive her of an inheritance as provided in that section. To say this is done, not directly, but by fair implication, is saying what the acts themselves, when the subject matter of them is considered, will not justify. The acts are not upon the same subject, and if the rule be, as it undoubtedly is, that a subsequent act on the same subject, will not be held to repeal a former act by implication, unless the new act contains provisions contrary to, or irreconcilable with, those of the former act, with much more force and propriety may it be argued that a subsequent act, not on the same subject, shall not be construed to repeal a former act by mere implication. The subject of the act of 1847, is the widow's dower. The subject of the act of 1845, is not dower, but inheritance, subjects having no connection with each other. To say, therefore, because there may be an inconsistency between such acts, one repeals the other, would be going further than the canons on construction of statutes allow.

But this court, in the cases cited, of Sturgis v. Ewing, Tyson v. Postlewaite, and McMurphy v. Boyles, all decided since the passage of the act of 1847, have determined the forty-sixth section to be in full force and effect, and its repeal is not now an open question. No intention is manifested in that act, to in erfere in any way with the law of descents.

We have not deemed it necessary to go over the ground so ably and so fully explored by counsel in the cause, contenting ourselves with an examination of cases cited in which the principal question has been discussed and decided.

Our conclusion is, that as there is nothing in the will calling for a particular or special construction to be placed upon the term "heirs at law," as used in the will, it must be interpreted according to its strict, technical import; that heirs at

52 ΤΟ 150 426

Syllabus. Statement of the case.

law are such as are made so by the statute, and are the person or persons on whom the law casts the estate in case of intestacy; that the widow of the testator is within the contingencies specified in the statute, and is the heir at law to this estate; that the estate in question is an intestate estate, and that the forty-sixth section of the act making the widow heir to the whole personalty has not been repealed.

The decree of the circuit court is affirmed.

Decree affirmed.

CHARLES A. HILL

v.

EDWARD W. CRANDALL.

1. CONTEMPT-what constitutes. While a justice of the peace was hearing a motion for a continuance of a cause pending before him, an attorney in the cause, in resisting the motion, addressed to the justice this language: "You can fine and be damned." The attorney was held to have been guilty of contempt in open court, for which the justice should punish him.

2. SAME to whom the warrant should be addressed. A proceeding for a contempt is in the nature of a criminal proceeding, and when a person is guilty of contempt in open court, before a justice of the peace, the justice may direct his warrant for the arrest of the offender to the sheriff of the county.

WRIT OF ERROR to the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

This was an action of trespass, brought in the court below by Hill against Crandall. The first count in the declaration alleged that on the 21st day of August, A. D. 1868, at the county of Will aforesaid, the said Edward W. Crandall, then and there being a justice of the peace in and for said Will

Statement of the case.

county, then and there, without any authority of law, issued a certain writ against the body of said plaintiff, as follows:

The People of the State of Illinois to the Sheriff of said county:

Whereas, on the 19th day of August, A. D. 1868, while Edward W. Crandall, one of the justices of the peace in and for said county, was engaged listening to a motion made before him for a continuance of a cause then pending at his office in Joliet, wherein Jacob Powles was the plaintiff, and Isaac Noabes the defendant, Charles A. Hill, attorney for the said plaintiff, did wilfully and contemptuously resist said motion after the court had given him, the said Charles A. Hill, notice that the said motion had been granted, and being ordered by the said justice to cease, refused to do so, and said that the said justice could "fine and be damned." And whereas, the said Charles A. Hill was forthwith called upon by the said justice, and required to answer for said contempt, and to show cause why he should not be convicted thereof, but did not make any defense except to deny the jurisdiction of the said justice, and did not make any apology for his said conduct, and whereas the said justice did thereupon convict the said Charles A. Hill of said contempt, and adjudge and determine that he pay a fine of five dollars, and that he be committed to the common jail of said county until he pay the said fine, or until he be discharged by due course of law: We therefore command you, the said sheriff, to take the said Charles A. Hill and deliver him to the keeper of the common jail of said county, together with this warrant; and you, the said keeper, are hereby required to receive him into your custody in the said jail, and him there safely keep until he pay the said fine, or until he shall be discharged by due course of law. Hereof fail not at your peril.

Given under my hand and seal this 21st day of August, A. D. 1868.

E. W. CRANDALL J. P. [SEAL.]