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tion the validity of the act and it was not possible for the court to consider a constitutional question as raised. In that case the objection was made by the party bringing the suit, but the court has repeatedly held that the right to question the constitutionality of a law under which an action is brought is waived by prosecuting an appeal from the judgment to the Appellate Court and submitting the case for review to a court having no authority to decide constitutional questions. (Indiana Millers' Mutual Fire Ins. Co. v. People, 170 Ill. 474; Barnes v. Drainage Comrs. 221 id. 627; Case v. City of Sullivan, 222 id. 56; Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. v. City of Chicago, 242 id. 178.) The failure to raise any objection to a proceeding amounting to an invasion of a constitutional right constitutes a waiver of the right, and if the Compensation act and all proceedings under it were void because in conflict with the State and Federal constitutions it was the right and duty of the plaintiff in error to avail itself of the objection at the first reasonable opportunity. Instead of doing that it furnished medical services, paid compensation under and by virtue of the act, appeared before the arbitrator and Industrial Commission and claimed the benefit of what it had furnished and paid, stipulated facts which were necessary to be proved by the applicant, and made no suggestion that the proceedings in any way invaded its constitutional rights. No question of public morals or public policy prevented the waiver of the objection to the statute, and the right being personal to the plaintiff in error, it must be held that it acknowledged the validity of the statute and any question as to its constitutionality was waived.

On the hearing before the arbitrator it was proved that the rock which fell struck the applicant on the back of the neck, head and shoulders; that no bones were broken; that he was in a hospital at St. Louis about a week and was at home six or seven weeks before he returned to work, on December 29, 1919, and had worked until the week of the

hearing, when he got into a fight and was discharged. He said that before he was injured he could load from fifteen to eighteen tons of coal a day and after he returned he could load seven or eight and sometimes ten tons, but the average was about eight or nine; that before the injury he received sixty-six cents a ton for loading and after he returned received seventy-five cents a ton; that he kept no record of his earnings or the amount of coal he loaded either before or after the injury; that he could not remember how much he worked after the injury, but he lost some time; that he did not know how many days he lost, but he thought about fourteen days when the mine worked, and that he suffered pain in his neck and shoulders. At the time of the hearing there were no physical changes in the applicant but there was pain on pressure, and the muscles of the neck and shoulder were bruised so badly in the injury that it took them a long time to heal. While the applicant stated what he could do before and after the injury, it was proved, and not questioned in any way or denied, that in fact he worked fifty-three days and six hours before the injury and received sixty-six cents a ton, amounting to $355.03, which showed an average of not exceeding ten tons per day. Before the injury his average earnings were $6.60 per day and after he returned to work they averaged $6.76 per day, but the rate was higher per ton after the injury. As the applicant kept no record of his earnings or the amount he loaded either before or after the injury and did not dispute facts proved as to such earnings, it is manifest that the competent evidence did not sustain the award for partial incapacity. The average earnings before the injury were stipulated to be $25.70, and the finding of $10.30 per week as the difference between what the applicant earned before the injury and what he earned or was able to earn afterward, taking into account the increased rate per ton, is not supported by competent evidence.

The judgment of the circuit court as to partial incapacity at $5.15 for 405 weeks is reversed and the cause remanded to the circuit court, with directions if the applicant shall move to have the cause remanded to the commission for further consideration and evidence it shall be so remanded.

Reversed and remanded, with directions.

(No. 14187.-Judgment affirmed.)

THE PEOPLE ex rel. C. W. Frazier, County Collector, Appellee, vs. THE Cleveland, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY, Appellant.

Opinion filed December 22, 1921.

This case is controlled by the decision in People v. Payne, 296 Ill. 483.

APPEAL from the County Court of White county; the Hon. ULYS PYLE, Judge, presiding.

P. J. KOLB, and J. A. PEARCE, (L. J. HACKNEY, and H. N. QUIGLEY, of counsel,) for appellant.

Mr. JUSTICE THOMPSON delivered the opinion of the

court:

The question presented in this case is the identical question presented in the objection to the school tax in People v. Payne, 296 Ill. 483. Appellant contends that the decision rendered in that case was due to a misconception of the provisions of the statutes involved and urges that the decision be overruled. We have considered its argument on the question and adhere to the former decision.

The judgment of the county court of White county is therefore affirmed. Judgment affirmed.

(No. 14190.-Decree affirmed.)

JOSEPH B. POOL vs. Mary A. POOL et al.—(Edgar Pool et al. Appellants, vs. SARAH POOL et al. Appellees.)

Opinion filed December 22, 1921.

I. WILLS-intention to be given effect is that expressed in the will. The intention of the testator which is to be given effect when not contrary to law or public policy, is that intention which the testator has expressed by the language used in the will and not an intention he may have had in his mind but did not express.

2. SAME when surrounding circumstances may be shown in construing will. Surrounding circumstances may be shown to explain a latent ambiguity or to explain language which is of obscure or doubtful meaning, but this cannot be done for the purpose of changing or modifying the language of the will nor to supply omissions or deficiencies.

3. SAME when word "heirs" is used as a word of limitation— Shelley's case. Where a devise is made to a person and his heirs or his heirs and assigns the word "heirs" is a word of limitation unless superadded words make it a word of purchase, and the fee vests in the grantee by virtue of the common law rule, under which the word "heirs" denoted the quality of the estate granted, and not by virtue of the rule in Shelley's case.

sense.

4. SAME the word "heirs" is presumed to be used in technical While the word "heirs" is frequently used in other than its technical sense to designate a more restricted class than heirs generally, the word is presumed to be used according to its technical meaning, and will be given that meaning unless it clearly appears that it is not so used.

5. SAME when devise lapses and does not go to heirs of devisee. A devise to a person and "to his heirs and assigns forever" is a devise of the fee, and on the death of the devisee prior to that of the testator the children of the devisee will not be substituted for the devisee but the devise will lapse, where there is nothing in the will to indicate that the words were not intended to be used in their strict legal sense.

6. SAME when widow is not entitled to one-half the land covered by lapsed devise. A widow who renounces the will and elects to take one-half of the real and personal estate under section 12 of the Dower act, is not entitled, in addition, to one-half of the other half of the real property, all of which was devised in fee to the testator's brother, who died before the testator and whose devise therefore lapsed. (Sutton v. Read, 176 Ill. 69, distinguished.)

APPEAL from the Circuit Court of LaSalle county; the Hon. EDGAR ELDREDGE, Judge, presiding.

WOODWARD, HIBBS & POOL, for appellants.

BUTTERS & CLARK, and HANSON & JACOBSON, for appellees.

ARLEY MUNTS, for Mary A. Pool.

Mr. JUSTICE FARMER delivered the opinion of the court: This appeal is prosecuted from a decree in a suit for the partition of lands owned by John Pool in his lifetime, and involves the construction of his will and the determination of the rights of his widow and heirs-at-law.

John Pool died testate in June, 1919. He left a widow, Mary A. Pool, but no child or children or descendants of a child or children. His will was executed November, 1908, and is as follows:

"First-I desire all of my just debts and funeral expenses paid.

"Second-I empower my executor hereinafter named to cause to be erected a monument for myself and wife, not to exceed the sum of five hundred ($500) dollars.

"Third-I give, devise and bequeath to my brother, Henry Pool, in trust for my wife during her lifetime, all of my real and personal estate, or so much thereof as may be necessary for her care, support, etc., that is, the income from said real and personal estate.

"Fourth-After the death of my wife, Mary A. Pool, I give and bequeath to Elsie R. Miller, daughter of J. B. Pool, five hundred dollars, and to her heirs and assigns forever. To Grace M. Pool, daughter of George A. Pool, the sum of five hundred dollars, provided she is living at the time of the death of my said wife.

"Fifth-After the death of my said wife aforesaid, and the payment of the above legacies, together with her funeral

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