longing to the other; and it is further agreed, that, if either should secure a divorce, that neither shall ask or receive any alimony of the other; and each party agrees to execute any deeds or papers necessary to convey a clear title, that the other may ask, to property owned by him or her, free of any further compensation than herein provided, in order that the spirit of this agreement may be carried out; and it is agreed that each may have free and untrammeled use and enjoyment of the property owned by them, respectively, with full power of incumbrance or sale without the other's consent. It is further agreed that, if said wife should agree to sell said real estate, she shall give said C. D. Smith the option to take it at the price she may finally agree to take of any other person. Witness our hands the day above written. Charles D. Smith. Mrs. Lizzie Smith." The common pleas sustained a demurrer to the petition, and dismissed the action. On error, the circuit court reversed the judg ment, and remanded the cause to the common pleas for further proceedings.

No question is raised as to the validity of the agreement; and it is well settled that such agreements, when reasonable, and fairly made and entered into, will be enforced. Nor is there any question that, but for this agreement, the widow, Lizzie Smith, would be the owner of the property, at law and in equity, under our statute of descents. The contention of the brothers and sisters is that by the language of the agreement, "and each party releases any and all claim of right, title, or interest, either vested or contingent, present or future acquired, belonging to the other," she is precluded now from the right to take or claim the property as the heir of her deceased husband, under the statute, and that she should be required to convey it to them. The only question that need be determined in this case is, as we think, whether by the above language she thereby waived the right to inherit such property as her husband might die seised of. If not, then it is not necessary to determine whether an agreement, for a consideration, to renounce an expectancy of inheritance, is valid or not. It has generally been held not to be the subject of a contract of any kind. Needles v. Needles, 7 Ohio St. 432, and authorities there cited. But, conceding the contrary to be true, what, then, is the proper construction of the language in the agreement just quoted? After carefully considering it in connection with the whole agreement, we are satisfied that it cannot be construed to include the wife's expectancy of inheritance under the statute to such real property as her husband died seised of and intestate. Broad as the language is, it falls short of this construction. It simply includes a "vested or contingent" title or interest in any of the property "belonging to the other"; that is, such an interest as cannot be affected by any disposition made of it, by will or otherwise,

by the one without the consent of the other. But an expectancy of inheritance by one of the property of another is not such an interest. It is regarded in law as a mere possibility, as it may be disposed of by the ancestor either by deed or will, as he may see fit, and is therefore neither a vested nor contingent right of any kind. A contingent right, of whatever nature, in any subject of property, is one so far fixed that it cannot be affected by the disposition of any one, subsequent to its creation, without the consent of the party affected. It may never take effect as a vested estate, for the contingency may never happen on which it is limited; hence it cannot and does not rest upon the uncertainty as to whether one who is the owner of the property in fee simple will exercise the power incident to his ownership, of disposing of his property as he sees fit, or not. Such an interest is not a contingent one, within the meaning of law, but a mere possibility, and in no way the subject of property.

It

There is nothing unfair or unreasonable in the construction given this agreement. gives full effect to what must be supposed to have been the object of both parties to it. They were dealing with respect to each other, and not with respect to others. Each de sired to secure the full dominion of the property allotted to himself or herself, and did so by this agreement. Each, by the agreement, acquired the right to dispose of the property given him or her to whoever either might see fit, without the consent of the other. This is seen more clearly from the stipulation that each should have the "free and untrammeled use and enjoyment of the property owned by them, respectively, with full power of incumbrance or sale without the other's consent." They were not then dealing for their heirs, or for any one else, but for themselves. Though, under the terms of the agreement, they lived separately, yet they chose to sustain, and did sustain, to the time of his death, the relation of man and wife. While he might have disposed of his property by will or by deed of conveyance to his brothers and sisters, yet he did not, but left it to descend as at law. How, then, can a court say that this, under the agreement, is contrary to his intention, and that his widow, to whom the property has desøended, shall be compelled to convey it to his brothers and sisters? They are simply volunteers, and have no rights with respect to the inheritance other than such as are derived from the law. Permitting the widow to take the inheritance under the statute does not violate a single term of the contract of separation. He enjoyed during his life the full dominion of his property, and that is all he stipulated for. He could, had he desired, in the exercise of this full dominion, have given the property to his brothers and sisters, but he did not. Hence, permitting the property to descend as appointed by the law can be a matter of surprise or injustice

lived separately is not a sufficient reason for supposing that he desired that his property should descend to his brothers and sisters, rather than to his wife. It is reasonable to suppose that he knew that he could dispose of his property by will as he saw fit, and that, from making no will, he purposely left it to descend to his wife. But it is not now material what he may have thought about it. The agreement contains no stipulation indicating that either renounced any right of inheritance in the property of the other. All that either renounced was any right or interest, vested or contingent, in the property of the other, that would restrain the latter in exercising full dominion over his or her portion of the property divided.

The case of Miller's Ex'r v. Miller, 16 Ohio St. 528, is relied on in support of the claim of the brothers and sisters. In that case it was decided that a postnuptial agreement, whereby the wife, for a fair consideration paid by the husband, relinquishes all claim to a distributive share of his personal estate in case she survives him, will be upheld and enforced in equity. The case is distinguishable from the one at bar in two important particulars: (1) The thing to be relinquished is specifically stated. It is, all claim to a distributive share of the husband's personal estate, should she survive him. In the case at bar there is no stipulation to renounce the possibility of heirship, could such a stipulation be made. (2) The interest renounced in that case is not a mere expectancy or possibility. The right of a wife to a distributive portion of her husband's personal estate, in case she survives him, cannot be defeated by the will of her husband. Doyle v. Doyle, 50 Ohlo St. 330, 34 N. E. 166. And there are many respectable authorities to the effect that it cannot be given away, in the lifetime of the husband, in fraud of her rights. Cases cited in Doyle v. Doyle, 50 Ohio St. 345, 34 N. E. 166. It is, then, such an interest of the wife in the personal property of her husband as that he cannot by will deprive her of it without her consent. With respect to such an interest, a contract by the wife to release it to her husband for a fair and reasonable consideration paid her might, with reason, be sustained against her, as was done in the above case. But this, as already pointed out, is not so in regard to the right of inheritance, which depends entirely upon the will of the ancestor. The judgment of the circuit court is reversed, and that of the common pleas affirmed.

HARTFORD DEPOSIT CO. v. PEDERSON. (Supreme Court of Illinois. Nov. 1, 1897.) TAKING CASE FROM JURY.

By subsequently putting in his evidence, defendant waives a motion made by him at the close of plaintiff's evidence to instruct the jury to find for him.

Appeal from appellate court, First dis Action by John Pederson against the I ford Deposit Company for personal inju A judgment for plaintiff was affirmed by appellate court (67 Ill. App. 142), and def ant appeals. Affirmed.

Burnham & Baldwin, for appellant. Warren Pease (W. S. Elliott, Jr., of cour for appellee.

CARTER, J. The appellate court ha: firmed a judgment for $3,000 in this against appellant, for a personal injury re ed by appellee by the falling of an elev owned and operated by appellant, in whic (appellee) was descending, as a passe from an upper story in appellant's buildin Chicago. Counsel undertook to preserve questions of law which have been argue this court by moving the trial court, at close of the plaintiff's evidence, to instruc jury to find for the defendant. This m was overruled, and the defendant then duced its evidence, and, at the close of all evidence (using the language of the bill of ceptions), "renewed the motion to take case from the jury on the plaintiff's test ny." No instruction directing the jury to the defendant not guilty was presented or ed. By electing to put in its evidence, the fendant waived its motion, made at the of the plaintiff's evidence, to instruct the to find for it on the case as made by the p tiff. Railway Co. v. Carey, 115 Ill. 115, E. 519. And after all of the evidence it clearly proper for the court to deny the tion, as made, "to take the case from the on the plaintiff's testimony." To raise question of the sufficiency of all the evide as a question of law, to sustain a ver against the defendant, the defendant sh have presented an instruction at the clos the evidence, and asked the court to giv to the jury, directing them to find the def ant not guilty. No such instruction was as See Swift v. Fue (in which case an opinion filed at the present term) 47 N. E. 761. A question urged here was preserved other than by this motion, the judgment of the pellate court must be affirmed. Judgmen firmed.

IAGO v. IAGO.

(Supreme Court of Illinois. Nov. 1, 1891 DIVORCE-DECREE AGAINST INSANE DEFENDA

WRIT OF ERROR-BY WHOM PROSECUTED. 1. Where defendant in a divorce suit is ins and a decree is rendered against him fo cause committed before he became insane, next friend may prosecute a writ of error to verse the decree.

2. It is not essential that the person that resented defendant as guardian ad litem on trial should appear as next friend in the wri

error.

Appeal from appellate court, First dist: This was a bill in chancery filed in the cuit court of Cook county by Selina Iago,

fendant in error, against Bernard Iago, her husband, for divorce. It appeared to the circuit court that the said Bernard Iago was insane, whereupon the court appointed one H. T. Aspern as guardian ad litem for the defendant. Such proceedings were had in the circuit court as that a decree of divorce was entered in favor of the wife, the defendant în error. On the application of the husband, by Annie Brock, his next friend, a writ of error to reverse the decree was sued out in the appellate court of the First district. On motion of the defendant in error, the writ was dismissed (66 Ill. App. 462); hence this appeal. Reversed.

Haley & O'Donnell, for appellant. F. A. Denison and J. E. White, for appellee.

BOGGS, J. The ground of the motion to dismiss was that the plaintiff in error was an insane person at the time the writ of error was sued out, and, by reason of such insanity, was incapable to elect whether he would remain married or become single, and no one can elect for him. It seems well settled that the right to sue for an absolute divorce is a personal right, and requires the intelligent action of the injured party, for which reason it has been frequently held that a guardian or next friend of an insane person cannot maintain a suit for absolute divorce for his ward. It is also well settled in this state that a writ of error is a new suit. The reasoning of the appellate court is that an insane person, being incapable in law to institute and maintain a bill for divorce, is likewise incapable to mantain a writ of error for the purpose of questioning the regularity and legality of a decree of divorce entered against him in a proceeding instituted after he became insane. We are unable to assent to this view. Actions for divorce may be instituted against insane defendants for a cause of divorce committed before the period of insanity. When such an action is begun, a court of equity, in view of the peculiar duty of such courts to protect the personal and property rights of lunatics, will appoint some discreet and proper person to conduct the defense. The power possessed by courts of equity to provide that such defense shall be made is not exhausted by the appointment of a conservator ad litem or next friend to defend in the trial court, but may be exercised in courts of review, and further defense of the action for divorce prosecuted by any remedy provided by law whereby reversal of a decree of the trial court may be obtained. A writ of error is a new suit, but at the same time, when brought to review a decree for divorce, is but a step in defense of the relief sought to be obtained by the complainant in the original bill. In Bradford v. Abend, 89 Ill. 78, a bill in chancery filed by the conservator of an insane wife to set aside a decree of divorce was entertained by the cireuit court, and its decree vacating a decree

of divorce was affirmed by this court. It is true that in that case the bill for the divorce was filed in the name of the wife, while she was insane, and that the principle that an insane person cannot maintain a bill for divorce was applied by this court, in support of the decree of the circuit court, in vacating the decree for divorce. But it is further true that the insane wife was equally incapable of electing whether she would remain married or single as was the plaintiff in error in the case at bar, yet the aid of the court against the decree of divorce was fully recognized and enforced. In the case cited the ground of attack upon the decree could not be availed of in a writ of error, and for that reason resort was had to an original proceeding in the trial court. Had such ground been apparent from an inspection of the record, no reason is perceived why the relief might not have been had through the medium of such writ. Though an insane person may be incapacitated from maintaining an action for divorce, still it by no means logically follows that no legal remedy can be availed of to remove a decree of divorce entered against the person so unfortunately afflicted.

It is not essential that the same person who represented the insane party as guardian ad litem in the circuit court should appear as next friend in a writ of error. Ames v. Ames, 148 Ill. 321, 36 N. E. 110. True, as suggested, the insane person has not capacity to consent to a change of the representative, but it is within the power of the court to appoint or accept another person to act in that capacity. Rev. St. 1893, "Lunatics," c. 86, § 13.

We think no sufficient reason appeared for dismissing the writ. The judgment of the appellate court is therefore reversed, and the cause remanded to that court, with directions to overrule the motion. Reversed and remanded.

BARNES et al. v. NORTHERN TRUST CO. (Supreme Court of Illinois. Nov. 1, 1897.) LANDLORD AND TENANT-ATTORNMENT-PLEADING AND PROOF-PARTNERSHIP-DISSOLUTION -EVIDENCE-ADMISSIONS.

1. Attornment by the lessee is unnecessary to the right of the assignee of the lease to recover under Rev. St. c. 80, § 14 (2 Starr & C. Ann. St. [2d Ed.] p. 1497), providing that "the assignee of the lessor of any demise * ** shall have the same remedies by entry, action, or otherwise for the nonperformance of any agreement in the lease or for the recovery of any rent ** * as [his] lessor might have had."

2. Though attornment by the lessee is alleged in the declaration, in an action for rent by the lessor's assignee, it need not be proved, the right of recovery being complete without attornment.

3. Though the lessor give his consent to the assignmert of the lease by the lessee, and accept the assignee as his tenant, and receive rent from him, the original lessee is not thereby released from payment of rent, unless the lessor has accepted the surrender of the lease, and released him.

4. Payment by a partner, after dissolution of the partnership, of rent due under a pre-existing partnership lease, is not the creation of a new partnership obligation, but the payment of a debt due from the former partnership.

5. On the question of a person's liability for rent under a lease it is immaterial what motive induced him to make certain payments thereof.

6. Where testimony was introduced tending to show negotiations for purchase of the leased premises by the tenant, the erroneous exclusion of unsigned drafts of contracts showing such negotiations was harmless.

7. Where a letter written by defendant in answer to one received by him from plaintiff is put in evidence, defendant may introduce plaintiff's letter, and hence he cannot complain of the admission of his answer without the letter received by him.

Appeal from appellate court, First district. Assumpsit by the Northern Trust Company against Charles J. Barnes and others. From a judgment of the appellate court (66 Ill. App. 282) affirming a judgment for plaintiff, defendant Charles J. Barnes appeals. Affirmed.

This is an action of assumpsit, brought by the appellee against Charles J. Barnes, the appellant, and Alfred C. Barnes, Henry B. Barnes, Edward M. Barnes, Richard S. Barnes, and William D. Barnes, partners doing business as A. S. Barnes & Co. Of the defendants, the appellant, Charles J. Barnes, was the only one who was served with summons, and the only one who appeared and defended the suit. This action, and seven other suits consolidated with it, were brought to recover for rent due for 11 months upon a lease made to the defendants by one Henry Schuttler, dated January 9, 1890, of the premises known as 258 and 260 Wabash avenue, in Chicago, for a term of 4 years and 10 months, commencing March 1, 1890, and ending December 31, 1894, at a monthly rental of $1,000. The lease was signed: "Henry Schuttler. [Seal.] A. S. Barnes & Co. [Seal.] By Charles J. Barnes. [Seal.]" On November 26, 1890, the lease was assigned by Schuttler to the appellee, and a written assignment of that date was indorsed upon the lease in the following words, to wit: "For value received, I hereby assign all my right, title, and interest in and to the within lease to the Northern Trust Company of Chicago, and direct that all rents thereunder be paid to said trust company. Witness my hand and seal this 26th day of November, A. D. 1890. Henry Schuttler. [Seal.]" The eight causes were consolidated by agreement, and tried as one action. The jury returned a verdict in favor of plaintiff for $11,800. Motion for a new trial was overruled, and judgment was entered upon the verdict. This judgment has been affirmed by the appellate court. The present appeal is prosecuted from such judgment of affirmance.

Charles L. Easton, for appellant. Dupee, Judah, Willard & Wolf, for appellee.

MAGRUDER, J. (after stating the facts). The rent under the lease appears to have

been paid by defendants to the lessor, Henry Schuttler, for the months of March and April, 1890. In June, 1890, the firm of A. S. Barnes & Co. turned over their business to a corporation, known as the American Book Company. It is not shown positively in the testimony that the American Book Company was merely the incorporation of the firm of A. S. Barnes & Co., organized by the same parties, as stockholders and directors, who theretofore composed said firm; but, after the transfer of the business of the firm to the corporation, Charles J. Barnes was the manager of the corporation, the American Book Company. It would appear that the American Book Company was either the assignee or subtenant of the firm of A. S. Barnes & Co. The monthly payments of rent to Schuttler before November 26, 1890, the date of the assignment of the lease by Schuttler to appellee, and the monthly payments of rent after the date of the assignment to appellee, from May, 1890, to May, 1893, inclusive, were made by the American Book Company. The checks for such monthly payments were signed by the American Book Company, by Charles J. Barnes, manager. The monthly payments of rent from May, 1893, to January 1, 1894. were made to the appellee, the Northern Trust Company, by Charles J. Barnes. It would appear that the American Book Company ceased to occupy the premises after May or June, 1893. During a part of the period from May, 1893, to January, 1894, appellant leased the premises from week to week to one Topakyan. On February 8, 1894, appellant, Charles J. Barnes, leased the premises from March 1, 1894, to December 31, 1894, to one Thein, and collected some rent from him. All the questions of fact in the case are settled by the judgments of the appellate and circuit courts. It is claimed by appellant that certain errors were committed by the trial court in the giving and refusal of instructions and in the admission and exclusion of evidence. We do not deem it necessary to set forth the instructions in full, nor to call attention to the objections made to them except in a general way.

1. The instructions asked by appellant which were refused, and of the refusal of which complaint is made, proceeded upon the theory that, after the assignment of the lease was made by the original lessor, Henry Schuttler, to the appellee, the Northern Trust Company, it was necessary to show an attornment by the lessees to appellee, the assignee of the lease, in order to make the lessees liable for rent according to the terms of the lease. If such attornment was neces sary, then there was error in refusing the instructions asked by appellant. The third of appellant's refused instructions expressly covered the question of attornment. All the refused instructions of appellant were impliedly framed upon the theory that attornment was necessary, because they predicated the right of the defendant to a ver

diet upon a discharge or release of the original lessees by the original lessor, Henry Schuttler, and ignored any question of such release by the appellee, as assignee of the lease from such original lessor. The question is thus presented whether, under our statute as it now exists, attornment by the lessee to the assignee of the lessor is necessary in order to make the lessee liable to the assignee for the rent. In Fisher v. Deering, 60 Ill. 114, we held that at ancient common law a lease, like any other agreement or chose in action, was not assignable, so as to give the assignee an action against the tenant; that, by 32 Hen. VIII. c. 34, § 1, the assignee of the reversion became invested with the rents, and where the tenant attorned to him he might maintain an action of debt to recover subsequently accruing rents; that although the assignment of the reversion created a privity of estate between the assignee and the tenant, still it required an attornment to create such a privity of contract, even under 32 Hen. VIII., as would authorize the assignee to sue for and recover rent in his own name; and that 32 Hen. VIII. c. 34, § 1, was adopted prior to the fourth year of James I., and was applicable to our condition, and was in force in this state. Since the decision in Fisher v. Deering, supra, was rendered, the legislature, in 1874, enacted what is now section 14 of chapter 80 of the Revised Statutes, in relation to landlord and tenant. 2 Starr & C. Ann. St. (2d Ed.) p. 1497. Said section 14 is as follows: "The grantees of any demised lands, tenements, rents, or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry, action or otherwise, for the non-performance of any agreement in the lease, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor might have had, if such reversion had remained in such lessor or grantor." We are of the opinion that the enactment of said section 14 dispenses with the necessity of an attornment, and abrogates the rule announced in Fisher v. Deering, supra. It was so held by the appellate court of the Third district in Howland v. White, 48 Ill. App. 236, where it was said: "All leases, except leases at will, may be assigned if there is no restriction in the lease itself (12 Am. & Eng. Enc. Law, 1029), and the assignee of a lease is granted, by said section 14 of chapter 80 of the Revised Statutes, the same remedies, by action or otherwise, for nonperformance of any agreement in the lease for the recovery of rent or other causes of forfeiture, as the lessor might have had while the owner of the lease; and attornment must, we think, be hereafter deemed unnecessary to vest the assignee of the lease with the full rights of his assignor, the original lessor." In Thomasson v. Wilson, 146 Ill. 384, 34 N. E. 432, on 48 N.E.-3

the trial of an action of forcible entry and detainer before the court without a jury, the defendant submitted, and asked the court to hold as the law of the case, certain propositions, which were refused; and the first of said refused propositions was as follows: "The plaintiff cannot, as the devisee or grantee of the lessor of Annestine Laddness, maintain this action, without showing an attornment from said lessee, Annestine Laddness, to said plaintiff." In that case, in commenting upon this refused instruction, we said: "The court determined correctly in refusing to hold the first proposition submitted to be held as the law of the case, for the reason that the same right of entry, by action or otherwise, is given by the statute to the grantee of the lessor as the lessor might have had." Here the appellee is the assignee of the lessor, Henry Schuttler. As such assignee, the appellee has the same remedy by action for the recovery of the rent as its lessor might have had before the assignment to it. Hence an attornment by the lessees, constituting the firm of A. S. Barnes & Co., was unnecessary to the right of the appellee to recover. It follows that there was no error in refusing the instructions asked by the appellant, which held directly and indirectly that such attornment was necessary. The declaration alleges that "the Northern Trust Company accepted the said assignment, and the said defendant's attorned to said trust company, plaintiff, and for several months paid rent to said plaintiff according to the terms of said lease." It is claimed that, inasmuch as an attornment was thus alleged in the declaration, it was necessary to prove the allegation so made. But an attornment was unnecessary, and need not have been alleged or proved. The cause of action stated in the declaration was complete without it. It was, therefore, surplusage, and may be disregarded. Surplusage comprehends whatever may be stricken from the record without destroying the right of action or the charge, on the one hand, or the defense on the other. Gould, Pl. (5th Ed.) pp. 499, 500. The rule that the proof must correspond with the allegation applies only to such allegations as are material in themselves, or, being unnec essary, are yet so interwoven with those which are material, as to make the latter depend upon them. The rule does not apply where the allegation may be stricken out entirely, as surplusage, without impairing or changing the legal effect of the declaration. Where unnecessary allegations are made in the declaration, which are foreign and irrelevant to the cause, they will be rejected as surplusage, and need not be proved. Burnap v. Wight, 14 Ill. 302; Higgins v. Halligan, 46 Ill. 173; Insurance Co. v. Kellogg, 82 Ill. 614; Sundmacher v. Block, 39 Ill. App. 559.

2. Appellant complains of two instructions given for the plaintiff. These instructions announced in general terms the doctrine that,