James H. Lomax owned an undivided twothirds, and George Lomax an undivided onethird thereof. But the court, after finding a conveyance and sale by Robert D. Lomax of his interest to James H. Lomax, found that partition and division ought to be made of the same between James H. Lomax, George Lomax, and Maria Lomax, one-half thereof to James, one-fourth to George, and one-fourth thereof to Maria Lomax. The present appeal is prosecuted from the decree, so rendered.

In order to sustain the decree entered by the court below, it will be necessary to hold that the testator made a mistake and devised land in section 24, instead of land in section 14, and that, as he owned no land in section 24 and made no devise of land in section 14, the land in section 14 passed as intestate estate under the residuary clause to the three sons, and the widow took no interest thereon. But if this court can hold that the testator, or the scrivener who drew his will, made a mistake in writing section 24, instead of section 14, then the land in section 14 passed equally to the widow and the three sons together, so that her interest would be an undivided one-fourth. We are unable to see why this case does not come within the doctrine announced in Kurtz v. Hibner, 55 Ill. 514, 8 Am. Rep. 665, and reindorsed in Bingel v. Volz, 142 Ill. 214, 31 N. E. 13, 16 L. R. A. 321, 34 Am. St. Rep. 64; Williams v. Williams, 189 Ill. 500, 59 N. E. 966, and Vestal v. Garrett, 197 Ill. 398, 64 N. E. 345. In Kurtz v. Hibner, supra, a testator devised a "tract of land situate in the town of Joliet, Will county, Illinois, and described as follows: The west half of the southwest quarter, section 32, township 35, range 10, containing eighty acres, more or less," and "all that part or parcel of land described as the south half of the east half of the south quarter, section 31, in township 35, range 10, containing forty acres, more or less"-and it was held that parol evidence was not admissible for the purpose of showing that the testator intended to devise land in different sections from those mentioned in the will, and that the draftsman of the will by mistake inserted the wrong numbers. In that case proof was offered that the testator, at the time of his death, owned but one 80-acre tract, which was in section 33, instead of section 32. Evidence was also offered that the testator by mistake inserted the word "one" after the word "thirty," instead of the word "two," thus devising land in section 31, instead of section 32. This evidence was excluded, and the court, in sustaining the ruling, said (page 519 of 55 Ill. [8 Am. Rep. 665]): "The law requires that all wills of lands shall be in writing, and extrinsic evidence is never admissible to alter, detract from, or add to the terms of a will. To permit evidence, the effect of which would be to take from a will plain and unambiguous language and insert other language in lieu thereof, would violate

the foregoing well-established rule. For the purpose of determining the object of a testator's bounty, or the subject of disposition, parol evidence may be received to enable the court to identify the person or thing intended. In this regard the evidence offered afforded no aid to the court. The devise is certain both as to the object and subject. There are no two objects-no two subjects.” So, in the case at bar, parol evidence cannot be introduced for the purpose of showing that a mistake was made by writing "section 24" in the will, instead of "section 14." It is well settled that equity will not entertain a bill to reform a will under the guise of an attempt to construe the will. The terms of the devise here are on their face clear and unambiguous, being a devise of land in section 24. The language describes a tract of land, and one which is capable of being readily identified; and, if the testator had owned it, it would have passed by the terms of the will.

In some cases it has been held that a latent ambiguity arises when extrinsic evidence is applied to such a devise as this, and that such evidence may be resorted to for the purpose of explaining the ambiguity and showing what land the testator intended to devise. It should always be the object of the court to arrive, if possible, at the intention of the testator; but "the intention to be sought for is not that which existed in the mind of the testator, but that which is expressed by the language of the will. While, in attempting to construe a will, reference may be made to surrounding circumstances, for the purpose of determining the objects of the testator's bounty or the subject of disposition, and with that view to place the court, so far as possible, where it may interpret the language used from the standpoint of the testator at the time he employed it, still the rule is inflexible that surrounding circumstances cannot be resorted to for the purpose of importing into the will any intention which is not there expressed." Bingel v. Volz, supra. As will be seen by reference to the cases above mentioned, and also to the cases of Decker v. Decker, 121 Ill. 341, 12 N. E. 750, and Huffman v. Young, 170 Ill. 290, 49 N. E. 570, this is not a case where so much of the description as is false may be stricken out, so as to leave enough in the will, interpreted in the light of surrounding circumstances at the time it was made, to identify the premises devised. Williams v. Williams, supra. It was said in Bingel v. Volz, supra, as follows (page 225 of 142 Ill., page 16 of 31 N. E. [16 L. R. A. 321, 34 Am. St. Rep. 64]): "Doubtless if there were repugnant elements in the description employed in the devise in question, and if the description, after rejecting a repugnant element, were complete in itself, so as to accurately and sufficiently describe the land intended to be described, that rule of construction might be adopted. But we are unable to see, and the ingenuity

of counsel has been unable to point out, any way in which that rule of construction can be applied, so as to work out the result sought to be attained. ** If it be admitted that there are repugnant elements in this description, it is impossible to see what repugnant element can be rejected, so as to leave a description which will apply to the land which the appellant claims." In the case at bar, if we reject the words "section 24," or the figures "24," nothing remains to indicate in what section the land in question lies. The correction of the description, by the insertion of "14" in the place of “24," requires not only that the figures "24" should be stricken out, but that the figures "14" should be inserted. As was said in Bingel v. Volz, supra, this "involves more than construction. It requires reformation, and in this state at least courts of equity have persistently refused to entertain bills to reform wills."

For the reasons above stated, we are of the opinion that the decree of the court below is erroneous; and accordingly it is reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

(218 111. 636)

HEYMANN v. HEYMANN. (Supreme Court of Illinois. Dec. 20, 1905.) 1. MARRIAGE-COMMON-LAW MARRIAGE.

Statement of a man to a woman: "I give you my word of honor we can stay man and wife. I am your husband, and I am satisfied"with an assurance, in answer to her expressed doubts, that no other ceremony was necessary, followed by cohabitation, constitutes a marriage at common law.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Marriage, §§ 12, 13, 16.] 2. SAME EVIDENCE.

Evidence of a contract of marriage per verba de præsenti, followed by living together as husband and wife, is strengthened by the fact that both parties at the time were competent to marry and that no illicit relations had existed between the parties.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Marriage, § 87.]

Appeal from Appellate Court, First District.

Bill for separate maintenance by Jennie Heymann against Albert Heymann. Defendant appeared and answered. A replication was filed to the answer, and upon a hearing of the cause the court entered a decree in favor of complainant. Defendant took an appeal from the decree entered by the superior court of Cook county to the Appellate Court for the First District. The Appellate Court has affirmed the decree, and the present appeal is prosecuted from such judgment of affirmance. Affirmed.

Charles L. Swanson (William J. Stapleton, of counsel), for appellant. D. B. Brillow, for appellee.

MAGRUDER, J. In deciding this case the Appellate Court expressed the following views:

"Appellee contends in her bill and by her own testimony, supported by the testimony of several witnesses and a sworn schedule made by appellant, that there was a marriage contract between appellant and herself per verba de præsenti, followed by cohabitation and living together as husband and wife for a period of six years. Appellant, on the other hand, denies any such contract. He denies any intimate relations with appellee, and claims that his presence in the same house or apartment with her was as a roomer or boarder. The issue here is whether the parties were married, no ceremony having been performed. Appellee avers in her bill that she was married to appellant in August, 1896, without a marriage ceremony. In her testimony appellee says that in April, 1896, appellant, having rented a furnished room of her for some time previous thereto, and being about to go to Lake Geneva, where he had an engagement as a musician, proposed marriage to her; that she postponed the matter until he should return from Lake Geneva; that he wrote to her from Lake Geneva repeatedly, and sent her money in letters to rent a flat, and requested her to give up keeping boarders. In accordance with his suggestions she rented a flat at the corner of Wood and Division streets, in Chicago, and moved into it; that appellant returned from Lake Geneva in August, 1896, and the subject of marriage was again talked over between them. In the course of the conversation, and in answer to appellee's question as to the form of marriage in this country, appellant stated to her that it was not necessary to get married, conveying to her the impression apparently that no marriage ceremony was necessary. He said to her: 'I give you my word of honor we can stay man and wife. I am your husband, and I am satisfied.' Appellee then said that they would have to go to a judge, and appellant replied that his word was better than a judge's word. Appellee stated that she knew what marriage was in the old country, but that she supposed what he said was true; that he promised her to be her husband, and she consented. This was the substance of their conversation. Thereupon they occupied the same bed that night, and lived together as husband and wife for six years, until appellant left her.

"The testimony of appellee is supported by five or six witnesses, who testify to various facts and circumstances tending to show that appellant and appellee lived together as husband and wife, treated each other openly as husband and wife, and spoke of each other as sustaining that relation, and that they were so regarded by those who knew them. Within a year after the time appellee claims the contract of marriage was made, a suit was commenced and a judg

ment was recovered therein against appellant and appellee in favor of A. Bernstein before a justice of the peace of Cook county for $52.75 and costs. An execution was issued thereon and placed in the hands of Phil C. Menard, a constable of Cook county, for service. On June 18, 1897, appellant executed and made affidavit to a schedule, which was given to the constable holding the execution. In this schedule he sets forth the household goods and wearing apparel of himself and Jennie Heymann, his wife, and calls appellee his wife several times, describing her as 'Jennie Heymann, née Oney, his wife.'

"Appellant denies the conversations in regard to marriage, and that he lived with appellee as her husband at any time. He denies that he ever held her out or introduced her as his wife, and states that he never occupied the same room with her, and that his only relation with her at any time was as a roomer or boarder. In regard to the schedule which he made to the constable, he says that appellee advised him to go to an attorney whom she had seen, and that he went with her to the office of Mr. Knaus, who advised him that the only way he could get out of paying an unjust debt was to sign the paper which was presented to him; that thereupon he signed it, stating to Knaus that appellee was not his wife; and that he did not know that he swore to her being his wife in the schedule. [Counsel for appellant admit, however, that sexual relations did exist between appellant and appellee, saying in brief: "It may be urged by counsel for appellee that appellant has denied sexual relations with appellee. This is untrue. While it appears from his testimony that he denied occupying the same room and bed with her, the denial was in every instance coupled with the qualify words 'as husband and wife.'"] Appellant introduced the evidence of several witnesses, who testified that they knew appellee during the period appellant was rooming with her as Mrs. or Miss Oney, and never heard appellant address her as his wife, and that appellant introduced her as Mrs. Oney. Two of the landlords of appellee testified that she rented premises of them, giving the name Mrs. Oney. On the evidence thus briefly outlined, appellee contends that there was a common-law marriage, and appellant insists that there was no marriage, and that the evidence does not show a marriage.

"To enter into an analysis or full discussion of the evidence here would extend this opinion beyond reasonable limits. We have studied carefully the evidence contained in the record, and we think it preponderates in favor of the contention of appellee that there was a marriage contract between appellant and appellee per verba de præsenti, which was immediately followed by cohabitation as husband and wife. There is no

question in the case of the capacity of the parties to enter into the marriage relation. Nor is there any contention that the parties were living in a meretricious state before August, 1896, the date of the marriage contract and the cohabitation that followed it. While appellant has denied substantially everything that appellee and nearly every witness on her behalf testified to, his evidence does not go to the extent of showing that they at any time lived together in clandestine sexual intimacy. No doubt, therefore, is thrown upon the marriage contract, as testified to by appellee, by reason of the contract having been entered into through the door of a previous illicit intercourse. The proof in this case brings it clearly within the law, as announced by our Supreme Court in Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737, 2 Am. St. Rep. 105, and the authorities there cited. In the above case it is said: 'While our statute prescribes certain formalities to be observed in marriages, and certain steps to be taken to preserve the evidence of their celebration, it does not declare a marriage void which is legal at the common law, merely because not entered into in accordance with its provisions. Port v. Port, 70 Ill. 484. A marriage is a civil contract made in due form, by which a man and woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge towards each other the duties imposed by law upon such relation. Each must be capable of assenting, and must in fact consent to form this new relation. If a statute forbids the solemnization of marriage without a license, still, in the absence of a clause of nullity, the marriage will be good, though no license was had.' No particular form of words is necessary to constitute a common-law marriage. If what is done and said evidences an intention by the parties to assume the marriage status, and the parties thereupon enter into the relation of husband and wife, that is sufficient, whatever may be the form of expression used. Stewart on Marriage and Divorce, § 86. The clear preponderance and weight of the evidence show all the necessary legal elements of a marriage, as contemplated by the law of this state. This was the view and conclusion of the learned chancellor, who heard the witnesses and observed their character and manner of testifying. His conclusions upon the evidence are entitled to weight. The decree of the superior court accords with the law and the facts of the case, and must be affirmed."

We concur with the views above expressed in the opinion of the Appellate Court, and accordingly the judgment of the Appellate Court is affirmed.

Judgment affirmed.

Any variance between the allegations of a bill and the evidence before the master must be raised by objections or exceptions to the master's report, in order to have that question reviewed on appeal.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1221.]

Appeal from Appellate Court, Second District.

Bill by Grant C. Stebbins against Joseph Armstrong. Decree for complainant, and defendant appeals. Affirmed.

Appellee filed a bill for an accounting in the circuit court of LaSalle county, alleging, in substance, that on December 10, 1897, appellee and appellant, Joseph Armstrong, entered into a general copartnership to raise money and purchase judgments which were liens on the property of one Matthew White, and make certain judgments then owned by them in their own right or as assignees, they to advance certain moneys and borrow certain moneys at the bank on their joint note, any amount recovered in satisfying judgments, whether owned by them in their own right or as assignees, to be divided, four. ninths to appellee and five-ninths to appellant; further alleging that said copartnership was carried on for a period of three years; that a large amount of judgments were purchased and redemptions made thereunder, and a large amount of money received by appellant; that appellant redeemed a certain tract of land by virtue of said agreement, and retains the title in himself, appellee alleging that the same is their joint property, and that appellant has refused to come to an accounting with appellee; prays an accounting may be had, and land redeemed by appellant be decreed to be copartnership property, concluding with a general prayer for relief, etc. The answer of appellant denies every allegation of the bill, and alleges that on December 10, 1897, appellant and appellee entered into an agreement that after that time they would make redemptions under certain judgments then owned and controlled by them, appellant to furnish fiveninths and appellee four-ninths of the money for that purpose, and the profits to be divided in like proportions; that appellee wholly failed to perform his part of said agreement, etc., and that March 2, 1899, appellant and appellee stated their mutual accounts, and agreed upon a balance due of $550, which appellant paid appellee in full settlement of all claims and demands to that date; also alleges that appellee has been guilty of laches. The cause was referred to the master in chancery, to take proofs and make report both of findings of fact and of law. The master found that the complainant was entitled to relief prayed for in said bill, and that defendant was justly indebted to com

plainant in the sum of $730.51, with interest at the legal rate thereon from February 26, 1903, to the date of filing the bill. Objections were filed to the master's report by appellant, which stood as exceptions in the circuit court by agreement of parties. The chancellor sustained the finding of the master, and entered a decree accordingly, from which an appeal was prosecuted to the Appellate Court, where the judgment of the circuit court was affirmed, and a certificate of importance granted to this court.

Browne & Wiley, Huttman, Butters & Carr, John H. Armstrong, and I. I. Hanna, for appellant. H. M. Kelly, for appellee.

RICKS, J. (after stating the facts). The facts in the case, as disclosed by the record, are substantially as follows: It appears that in the spring of 1895 one Matthew White failed. Judgments were entered against him in favor of various parties, among them being two in favor of appellee, and two in favor of R. S. Parker & Co. Appellant's son, B. S. Armstrong, was a member of the firm of R. S. Parker & Co., and the owner of an undivided one-half interest in the Parker & Co. judgments. White's property was all taken under foreclosure proceedings, and there seemed to be little left for anybody. Benjamin Armstrong, who was at that time residing in Chicago, began a correspondence with appellee, with the view of going together and making some arrangements to redeem the White land from the foreclosure sales, and after there had been some correspondence with them in reference to the matter, Benjamin Armstrong had his father, the appellant, meet Stebbins, and gave his father full power and authority to make any deal with Stebbins that appellant desired. After appellant and appellee had talked the matter over, it was agreed to form a partnership, and use their own judgments and any other judgments they could buy or use in any manner to redeem, and to make as much as they could by such redemption; with the understanding that, regardless of whose judgments might be used, they would share the profits and the proceeds of the amount recovered on a four-ninths and fiveninths basis, appellant to get five-ninths and appellee four-ninths. Pursuant to this agreement, appellant and appellee went to the National City Bank, and borrowed $5,000, giving their joint note, and made redemption of a certain tract of land which had been sold under mortgage. The evidence discloses that at the time of the first redemption appellee did not have a sufficient amount of money with which to make the redemption, and was informed by Armstrong that it would make no difference; that he would put up the amount required above the $5,000 for that redemption, and Stebbins could send him his part of the money in the near future. The redemption was

made under the Benjamin Armstrong judg. ment. They next entered into an agreement with R. S. Parker that he should assign to them the judgment held by him, on the condition that they give him one-third of what they recovered on the judgment. They then redeemed a 255-acre tract from one Allen, who had foreclosed a mortgage, and the amount required to redeem this 255acre tract was $5,872.34. In their negotiations to obtain the Parker judgment, both the parties actively participated; appellee having gone to Chicago for that purpose. In this transaction they also used the $5,000 that was gotten from the bank on their joint note. After making the redemption of the 255-acre tract, it was put up for sale, and bid in by another party, who paid the Parker judgment, together with costs and interest, and $500 in addition, to be applied on a judgment in favor of appellee, on an agreement that they would not again redeem from that sale. The amount, as shown, that was realized under this transaction was $3,148.88. Appellant took the profits under these judgments and retained them, and refused to account to Stebbins. It appears that afterwards appellant and appellee entered into a written agreement on the 18th of March, 1898. The contract was solely in reference to money realized out of a 327-acre tract of land sold March 18, 1898, and the manner in which the money was to be distributed. It was entirely distinct from the transactions had under the verbal agreement.

It is first insisted that there is a variance between the allegations of the bill and the proof, and that therefore it was error to enter the decree as entered by the chancellor. No objection or exception to the master's report raised any question of variance as to the allegations of bill and proof, which was necessary in order to have that question reviewed in this court. McAuliffe v. Reuter, 166 Ill. 491, 46 N. E. 1087; Crone v. Crone, 170 Ill. 494, 49 N. E. 217.

Appellant contends that there was no partnership relation existing between them concerning the transactions in which $5,000 was borrowed at the bank; but the evidence discloses that both parties signed the note at the bank, and that appellee paid the interest on the note at two different times, and the money was afterwards used in other transactions in which there was no question but that both parties were interested. The master found, as a matter of fact, that appellee was interested in the second transaction, and that appellant should account to him for the profits realized out of the same. The record discloses that appellee is sustained by all the documentary evidence produced, which consists of various letters written by appellant, and is also corroborated by disinterested witnesses. We think the record fairly discloses that there was a partnership existing between

them in reference to the transaction, and while certain money was sent appellant by appellee shortly after the contract was entered into, to apply on the first redemption, it was returned, with instructions to retain it, and obtain other money for the purpose of making other redemptions; and from appellant's letters it was apparent that he had secured sufficient money to carry the deal through on his own accord, yet there was nothing said in the letters that would lead appellee to believe that appellant had changed his mind in reference to allowing appellee his share of the profits that might be realized out of the transaction. The master and chancellor refused to allow appellee any benefit or share of profit in the first transaction, and, as he assigned no cross-error, we are not called upon to consider it.

Appellant insists, further, that a settlement was had of all their transactions, in which he paid appellee $550 in full settlement of all their controversies; but the evidence discloses that the settlement was in fact a settlement only of a single transaction had under a written contract between them, entered into on March 18, 1898, and in which the transaction in controversy was not mentioned, and nothing was said or done by either party to lead appellee to believe, or that should satisfy a court, that it was a settlement of all matters between them.

After a careful examination of the record, we are of the opinion that the decree of the circuit court is equitable between the parties and sustained by the evidence. Other propositions raised by the answer of appellant are not argued, and therefore considered waived. The judgment of the Appellate Court is therefore affirmed. Judgment affirmed.

(36 Ind. App. 536)

HARRINGTON v. HARRINGTON.

(No. 5,514.)

(Appellate Court of Indiana, Division No. 2. Nov. 17, 1905.)

DIVORCE TEMPORARY SEPARATION - CROSSCOMPLAINT.

Act Feb. 28, 1903 (Acts 1903, p. 114, c. 48), provides for separations from bed and board for a limited time. Section 3 provides that obtaining such a temporary separation shall not bar a suit for absolute divorce by either party. Section 4 (page 115) makes the practice and proceedings the same as in case of absolute divorce. Burns' Ann. St. 1901, § 1052, provides that in a divorce suit the defendant may file a cross-complaint for divorce. Held that, in an action for temporary separation, the defendant may file a cross-complaint for absolute divorce, though the act of 1903 makes no provision for filing cross-complaints.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Divorce, § 11.]

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Kate Harrington against Thom