provision, that nothing contained in the will a power to dispose of the fee subsequent limshould deprive the devisee of the right and power to sell and convey the lands in fee simple, had that effect. If the intention of the testator in that provision was merely to give the devisee power over the estate, the limitation over would not be defeated, since the power to dispose of the fee annexed to a lesser estate does not enlarge the estate. Walker v. Pritchard, 121 Ill. 221, 12 N. E. 336; Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558, 37 Am. St. Rep. 135; Griffiths v. Griffiths, 198 Ill. 632, 64 N. E. 1069; Williams v. Elliott, 246 Ill. 548, 92 N. E. 960, 138 Am. St. Rep. 254. [3] This rule is illustrated by numerous cases where it has been held that a power of sale added to a life estate does not defeat a limitation over, although nothing may be left at the termination of the life estate. Henderson v. Blackburn, 104 Ill. 227, 44 Am. Rep. 780; Kirkpatrick v. Kirkpatrick, 197 Ill. 144, 64 N. E. 267; Bergman v. Arnhold, 242 Ill. 218, 89 N. E. 1000; Powers v. Wells, 244 Ill. 558, 91 N. E. 717; Bevans v. Murray, 251 Ill. 603, 96 N. E. 546; Burke v. Burke, 259 Ill. 262, 102 N. E. 293; 23 Ann. Cas. 424, note. There is no logical ground upon which it can be held that a power to convey a fee does not enlarge a life estate into a fee, but does have that effect upon some other estate less than a fee. [4] The devises to Cordelia K. Forbes and Caroline C. Forbes not being of estates in fee simple, but of estates subject to a condition, no absolute power of disposition, freed from the limitations over, can be implied from the language used. This is important in determining the meaning of the testator in the clause relating to the power to sell and convey in fee simple, which is expressed in the form of a limitation to something that has gone before. The testator did not mean that the executory devise should not deprive the devisee of a power to sell and convey in fee simple, which had been given, since no such power had previously been given, either expressly or by implication. Even if there had been a devise of a fee without condition, and nothing further, a limitation over by way of executory devise would have been valid. Ackless v. Seekright, Breese, 76; Friedman v. Steiner, 107 Ill. 125; Summers v. Smith, 127 Ill. 645, 21 N. E. 191; Ducker v. Burnham, supra; Bradsby v. Wallace, 202 Ill. 239, 66 N. E. 1088. The power to convey a fee simple is an ordinary incident of every fee-simple estate, but there must be something more than a mere devise in fee simple to defeat a limitation over by way of an executory devise. It is not correct to say that this must always be by conferring a power in addition to the estate devised, but it must appear expressly or by fair implication that the devisee may dispose of the estate devised in his uncontrolled discretion. Neither is it correct to say that in every case where there is itations are defeated. In Markillie v. Ragland, 77 Ill. 98, Friedman v. Steiner, supra, Hamlin v. United States Express Co., 107 Ill. 443, and Koeffler v. Koeffler, 185 Ill. 261, 56 N. E. 1094, there were devises which by their own terms, if not qualified by any subsequent provision, would have vested feesimple estates in the devisees, and in each one the devise was construed as subject to subsequent conditions or limitations, although in each case there was a power to dispose of the fee and vest in the purchaser a fee-simple title. In Markillie v. Ragland, supra, the court said that if only the first clause of the devise were considered a fee simple passed to the widow, and if the devise had stopped there no one would contend that a fee did not pass, but that the fee was subject to several important limitations contained in the will. In Friedman v. Steiner, supra, the devise was to the testator's wife and unto her heirs and assigns forever, to the total exclusion of any and all person or persons whatsoever, but on account of subsequent conditions qualifying the devise it was held it did not give the wife a fee-simple estate. The other cases cited are of the same character. In Burton v. Gagnon, 180 Ill. 345, 54 N. E. 279, the opinion of three judges rested on two grounds: First, that the attempt to ingraft an executory devise or limitation over upon the fee was void; and, second, that the remainder was barred by a decree in a partition suit. The fourth judge did not consent to the construction placed upon the will, and his concurrence necessarily rested on the second proposition, that the appellants were barred by the decree in the partition suit. In the case of Williams v. Elliott, supra, there was a devise in fee simple to the testator's niece, subject to no condition or limitation, but with a provision that if she should not dispose of the estate by will or otherwise, and should die without issue, seised of the estate, it should go to others. That was not a case where there was a condition annexed to the devise making the estate devised less than a fee simple, but with a power to dispose of the fee. case where the devisee could dispose of the estate devised to her in her own discretion, either by deed or will, and the decision is not authority for the proposition that a devisee having less than a fee-simple estate, who can convey the fee by virtue of power, right, or authority, becomes invested with the fee by virtue of such power. In this case the devise to Cordelia K. Forbes was not, in terms, of an estate in fee simple, but of a fee subject to a condition, and which would be terminable upon the happening of the condition. The provision that nothing contained in the will should deprive her of the right and power to sell and convey the lands devised to her, or any part thereof, in fee simple, was intended by the testator to It was a confer a power over the estate, and the power [in the municipal court of Chicago to recover not being exercised, the limitation over took $4,000 upon a benefit certificate issued by the effect upon her death without surviving issue. North American Union to Robert Pold, The decree is reversed, and the cause is in which his wife is named as the benefiremanded to the circuit court, with directions ciary. Upon a trial in the municipal court to enter a decree finding the title to the lands without a jury, a judgment was rendered devised to Cordelia K. Forbes, and not dis- against the defendant below for $336.72, posed of by her, to be in the appellants, in which was the aggregate amount of the payaccordance with the views herein expressed. ments of the deceased member to the morReversed and remanded, with directions. tuary and reserve fund of the order. The defendant admitted its liability to pay the above sum, and pleaded a tender thereof, and brought that amount into court for the benefit of the plaintiff. The plaintiff below sued out a writ of error from the Appellate Court for the First District, and that court affirmed the judgment below and granted an appeal and a certificate of importance, under which the plaintiff below has brought the record to this court for further review. (261 III. 433) POLD v. NORTH AMERICAN UNION. (Supreme Court of Illinois. Dec. 17, 1913. Rehearing Denied Feb. 16, 1914.) 1. Insurance (§ 788*)—Mutual BENEFIT ASSOCIATION-CONTRACTS-POWER TO MAKEFORFEITURE OF BENEFITS. Under the general power of a mutual benefit association to make contracts for death benefits with its members, the power existed to insert a clause for forfeiture of benefits in case of suicide by the member; such clause having been authorized by a by-law regularly adopted by the association. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1956; Dec. Dig. § 788.*] 2. INSURANCE (§ 788*)-MUTUAL BENEFIT AsSOCIATION-POWERS-STATUTES. Under Laws 1893, p. 130, prescribing powers conferred on mutual benefit associations, such an association had power to provide for forfeiture of benefits in case of suicide by the member, whether sane or insane. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1956; Dec. Dig. § 788.*] The facts which are either admitted by the pleadings or established by the testimony are, in substance, as follows: Appellee is a fraternal beneficiary society organized under the laws of Illinois for the purpose of making provision for the payment of benefits in case of disability and death, or either, resulting from disease, accident, or old age of its members. On February 16, 1898, Robert Pold became a member of appellee and obtained a certificate by which appellee promised to pay out of its mortuary fund to Johanna Pold, wife of the member, the sum of $4,000 in ac 3. INSURANCE (8_719*)—MUTUAL BENEFIT SO-cordance with the provisions of the laws gov CIETIES- BY-LAWS - BENEFITS FORFEI erning said fund, upon satisfactory proofs of Where a mutual benefit certificate was ac- the death of said member, provided that said cepted subject to the provision that the insur-member is in good standing in the association ed would comply with, and that the benefits should be subject to, all laws, rules, and usages then in force or that thereafter might be enacted, and the association thereafter properly adopted a by-law providing that in case of a suicide of a member, he should forfeit all right to benefits, but that the beneficiary should receive a sum equal to the amount paid by the member to the mortuary fund, it was binding on the member, and, he having died from suicide, his beneficiary could only recover the amount actually paid into the mortuary fund, notwithstanding the original charter of the society, providing that it was organized to establish a benefit fund from which a death benefit should be paid on the death of a beneficiary member in good standing, etc. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719.*] Appeal from Appellate Court, First District, on Error to Municipal Court of Chicago; Edward A. Dicker, Judge. Action by Johanna Pold against the North American Union. Judgment for plaintiff (180 Ill. App. 448) for less than relief demanded, and she appeals. Affirmed. George F. Barrett, of Chicago, and Edmund S. Cummings, of Chicago, for appellant. Robert S. Iles, of Chicago, for appellee. VICKERS, J. Johanna Pold, widow of Robert Pold, brought an action of assumpsit at the time of his death. One of the conditions written into the certificate obligated the member to comply with all the laws, rules, and regulations governing the said North American Union or "that may hereafter be enacted to govern the same, all of which said laws, rules and regulations are also made a part of this contract." The certificate sued on contains the following indorsement: "I accept this certificate and agreement on the conditions hereinabove named and assent thereto and agree to comply therewith. Robert Pold." The medical examiner's blank introduced in evidence contains the following: "If accepted as a member I agree to comply with, and that my membership and all interests of the persons entitled to such benefits shall be subject to, all laws, rules and usages now in force in the order or which may be hereafter adopted by it. Robert Pold." At the time Robert Pold became a member of the society a by-law was in force which provided that if any member shall die by his own hand or act, sane or insane, his beneficiary or beneficiaries shall receive one-half of the face value of the certificate. Afterward, and prior to the death of Robert Pold, the with by-laws "now in force or hereafter enacted." This case has been followed in Fullenwider v. Royal League, 180 Ill. 621, 54 N. E. 485, 72 Am. St. Rep. 239, Baldwin v. Begley, 185 Ill. 180, 56 N. E. 1065, and Scow v. Royal League, 223 Ill. 32, 79 N. E. 42. [3] The suicide by-law of this society is not void because contrary to the provisions of the charter of the association. The amendment of the by-law forfeiting all benefits in case of suicide of the member was properly adopted by appellee. That provision being in full force at the time of the death of Pold by suicide, there is no liability under the certificate except to repay the amount of his contributions to the mortuary fund. This amount was paid into court for the benefit of appellant. above by-law of the society was amended, so | sage, where his contract requires compliance that at the time of the death of Pold the bylaw provided that if a member shall die by his own hand or act, either sane or insane, such death shall forfeit any and all rights and claims to the amount agreed to be paid on his death and specified in the benefit certificate of such member, and the beneficiary shall receive and be paid in lieu thereof a sum equal to the amount actually paid by such member to the mortuary and reserve fund of the order, unless it is otherwise provided in and by the benefit certificate of such member issued prior to the taking effect of this section. It is admitted that Pold died by suicide from gas poisoning on March 31, 1908. Under the original charter of the society the object of the association was defined to be "to establish mortuary benefit funds, from which shall be paid, upon the death of a beneficiary member in good standing," etc., and by the fifth clause it was provided that "upon the death of a member in good standing there shall be paid to his beneficiary or beneficiaries the sum specified in his benefit certificate." The judgments of the municipal court and of the Appellate Court for the First District are affirmed. 1. Judgment affirmed. (261 Ill. 437) KUH et al. v. O'REILLY et al. An agreement for construction by complainants of a wall of their building on the fendants, it to "be and remain a party wall," line dividing their premises from those of deand defendants to have the right at any time to join to and use any part of it, on payment of wall as they may use, requires the wall to be half the value, at that time, of so much of the solid, and does not, in the absence of provision therefor, allow complainants to construct and maintain windows in it till such time as defendants desire to use it. [Ed. Note. For other cases, see Party Walls, Cent. Dig. §§ 24-41; Dec. Dig. § 8.*] 2. PARTY WALLS (§ 8*)-BUILDING AGREEMENT RIGHT TO VIOLATE. [1.2] Appellant first contends that under the above provisions appellee bound itself absolutely to pay the beneficiary, upon the death of the member, the amount named in the benefit certificate upon the sole condition that he should have died a member of the society "in good standing." It is argued that Pold had paid all assessments made upon him and was in good standing in the society at the time of his death, and that his good standing was not impaired by his suicide, and this contention, to the extent that suicide does not impair the good standing of a member, is well established by authorities. Royal Circle v. Achterrath, 204 Ill. 549, 68 N. E. 492, 63 L. R. A. 452, 98 Am. St. Rep. 224, and cases there cited. Appellant's argument seems to be that since the charter of the society provided for the payment of death benefits in all cases where the member was in good standing at the time of his death, there was no power in the society to make the payment dependent upon any condition that did not affect the good standing of the member at the time of his death. Under its general power to make contracts for death benefits with its members, the power existed to insert a clause of for-3. feiture of the benefits in case of suicide by the member when such clause was authorized by a by-law regularly adopted by the association. We have no doubt that this power could be exercised under the laws of 1893 (Laws 1893, p. 130). In Supreme Lodge Knights of Pythias v. Kutscher, 179 Ill. 340, 53 N. E. 620, 70 Am. St. Rep. 115, this court held that a by-law forfeiting claims for the death of a member of a benefit society by suicide or intoxication is reasonable and binding upon a member joining before its pas The fact that, till election of the other to wall, constructed by one of the adjoining ownpay half its cost and use it, title to a party ers on the dividing line, under agreement of the owners providing for the paying of half of its mains in the builder does not give him right, value by the other when he elects to use it, retill such election, to violate the agreement, requiring him to build and maintain a solid wall by making openings in it. Cent. Dig. §§ 24-41; Dec. Dig. § 8.*] APPEAL ANd Error (§ 747*)—REVIEW-NE- Complainants only bringing error on the judgment for them being affirmed in part and reversed in part by the appellate court, defendants, not assigning cross-errors, though in their brief asserting error in the part of the judgment affirmed, are to be deemed as admitting its correctness. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dec. Dig. § 747.*1 4. PARTY WALLS (§ 8*)-RIGHT TO USE WITHOUT PAYMENT-VIOLATION OF AGREEMENT. Though complainants, building a party wall on the line between their property and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes that of defendants, under an agreement that | At the time of making said party wall condefendants might join to and use it on paying tract, complainants and Eugene O'Reilly half the value of the part they might use, had no right to make windows in it or extend projections beyond it, their doing so did not authorize defendants to use, without paying therefor, the part where there were no windows or projections. [Ed. Note.-For other cases, see Party Walls, Cent. Dig. § 24-41; Dec. Dig. § 8.*] 5. PARTY WALLS (§ 8*)-PAYMENT FOR USE. Under the provisions of the agreement, by which complainants built a party wall at their expense, that whenever defendants intend to join to and use it, they shall first pay to complainants half the value of the part of the wall they may use, such money becomes due when they proceed to join their building to the wall. [Ed. Note.-For other cases, see Party Walls, Cent. Dig. 88 24-41; Dec. Dig. § 8.*] 6. PARTY WALLS (§ 8*)-PAYMENT FOR USE INTEREST. The violation by complainants of the written agreement, under which they built a party wall by made openings in the upper part of it, not materially interfering with the use by defendants of the lower part of it, the part they elected to use, constitutes no ground in equity for denying interest on the sum defendants were to pay when joining to the wall, half the value of the part they might use. [Ed. Note.-For other cases, see Party Walls, Cent. Dig. 88 24-41; Dec. Dig. § 8.*] 7. PARTY WALLS ( 10*) — UNAUTHORIZED CHANGES-RESTORATION. Complainants having violated the agreement under which they built a party wall, by making openings in the upper part of it, defendants in a suit to require payment by them, in accordance with the agreement, of half the value of the lower part of the wall, which they elected to use, are entitled, under their crossbill for that purpose, to a decree requiring complainants to restore the wall to its original condition of a solid wall without openings. [Ed. Note.-For other cases, see Party Walls, Cent. Dig. 88 54-64; Dec. Dig. § 10.*] Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Willard M. McEwen, Judge. Suit by Abraham Kuh and others against Eugene O'Reilly, Jr., and others. On ap peal by defendants, decree for complainants was reversed in part, and the case remanded, by the Appellate Court (177 Ill. App. 271), and complainants bring error. Reversed in part, and remanded, with directions. Rosenthal & Hamill, of Chicago (Lessing Rosenthal and Leo F. Wormser, both of Chicago, of counsel), for plaintiffs in error. M. J. Dunne, of Chicago, for defendants in error. FARMER, J. This case comes to this court by writ of certiorari to review a judgment of the Appellate Court for the First District, reversing, in part, a decree of the superior court of Cook county, and remanding the cause to that court, with directions. Plaintiffs in error (hereafter called complainants) filed their bill in chancery in the superior court of Cook county, to enforce the provisions of a certain party wall contract. owned adjoining parcels of land in the city of Chicago. Defendants in error (hereafter called defendants) have succeeded to the title of Eugene O'Reilly to the lot or parcel of land owned by him at the time said contract was made. Defendants' land was at the northwest corner of the intersection of Van Buren and Franklin streets and faced 100 feet on Van Buren and 50 feet on Franklin streets. Complainants owned the land adjoining defendants' lot on the north and west. On March 3, 1892, the then owners of the lots entered into a written agreement, the material parts of which are as follows: "First-That the walls of said building facing the premises of said second party on the north and west ends of said east one hundred (100) feet of said lot one (1) shall be and remain a party wall, and shall be built upon the dividing line between the said premises of the said parties, and shall be of brick, with stone and metal and concrete foundations, * and said wall shall stand equally upon their respective parcels "Second-Said second party may join to and use said wall, or any part thereof, at any time after the same shall have been built, by first causing said wall to be of proper strength and thickness to sustain the weight which he intends that the same shall bear, and further by complying with the other provisions and covenants herein contained." "Fourth-In case said party wall, original, extended or restored, shall be totally or partially destroyed, or should it be necessary to repair the same or any portion thereof, either party hereto may repair or rebuild the same, and the expense of rebuilding or repairing shall be borne equally by the parties hereto, their heirs or assigns, as to so much of said wall as they may be using in common. "Sixth-Whenever said second party intends to join to and use said wall, original or restored, as hereinbefore provided, or whenever thereafter either of the said parties shall use any addition to said wall built by the other party, the one so using shall first pay to the other party, or those claiming under him or them, owners for the time being of the land of the party who built such wall or addition, one-half of the value, at that time, of so much of said wall or of such addition, including the foundations under the same, as he or they may use, and in computing the value of said wall or any addition thereto, the service of architects, and labor expended and performed in respect thereof, shall be taken account of and considered." Within a year after the making of said | the anchor rods through the wall with heads contract, complainants erected on their south and east lines, dividing their and defendants' property, a wall seven stories high, which was part of a seven-story building erected upon complainants' lot. The wall erected on said division lines was a substantial, solid wall throughout its length and height, and was constructed according to the terms of the agreement. In 1901 complainants, over the protest and objections of defendants, cut six large openings through the wall, placed large windows therein, and attached to the side of the wall, over defendants' premises, hinges upon which they placed iron window shutters which extended and swung over de fendants' premises. Complainants also made an opening in the wall, and placed therein a large steam exhaust pipe, which projected one and one-half or two feet over defendants' premises, from which steam and vapor were expelled. Complainants also placed anchor rods through said wall, with heads about 16 inches in diameter and extending some 4 inches over the premises of defendants. Defendants afterwards, being desirous of using a part of the party wall as a part of a building they proposed to construct upon their lot, notified complainants to remove the anchor rods, steam pipe, window shutters and hinges, and to close the window openings and reconstruct the wall as it was originally constructed. Defendants also notified the complainants of their intention to erect a building on their lot, and that, unless complainants restored the wall to its original condition, defendants would use part of it as a part of their structure, without paying onehalf the value of the part so used. Complainants did not comply with this demand of defendants, and shortly thereafter defendants began the construction of a four-story building, and, in so doing, used so much of the party wall as was necessary, but refused to pay complainants anything for the part so used, and thereupon complainants brought this suit. The bill, after setting out the ownership of the premises, the party wall agreement, and the construction of the wall by complainants, alleged that defendants were violating the agreement by using a part of the wall without paying for it. The bill prayed that the defendants be decreed to pay one-half the value of the part of the wall used and proposed to be used by them; that the amount, when ascertained, be decreed to be a lien upon defendants' premises; and that defendants be enjoined from using the wall without paying one-half the value of the part used by them. Defendants answered the bill, admitting the agreement, but alleging the wall was not a solid wall, as required by the agreement, but contained a number of windows and openings over defendants' premises, which prevented the wall from being a party wali, and further set up the placing of projecting four inches over the premises of defendants, also that a steam exhaust pipe projected about two feet over the said premises, from which were emitted steam and vapor, making loud and disagreeable noises. The answer further averred that, by reason of the openings in the wall, defendants' premises were exposed to great danger of fire from complainants' building; that said openings prevented said wall from being a party wall; that complainants were trespassers, and had no right to contribution for any part of the value of the said wall; that papers and rubbish were thrown out from complainants' building over and upon the roof of defendants' building, and that defendants were entitled to compensation for damages by reason of the matters set up in the answer. Defendants also filed a cross-bill, praying that complainants in the original bill be enjoined from interfering with the use of the wall by defendants, and that complainants be ordered and decreed to make the wall solid by closing all openings therein adjoining and overlooking defendants' premises, and that they be ordered to remove the projections that encroached upon defendants' premises. Complainants answered the crossbill, and the cause was heard before the chancellor. The decree found that the wall stood equally upon the land belonging to complainants and defendants; that several years after it was built complainants cut six openings through the wall for windows, without the consent and against the objections of defendants; that said windows were more than 15 feet above that part of the wall used by defendants, and did not interfere with the construction of their building. The decree found that the window sills, iron window shutters, steam pipe, iron bolts and heads, projecting from the wall over and upon the premises of defendants, constituted trespasses that should be removed by complainants, but that defendants were not entitled to any other relief under their cross-bill. The decree ordered defendants to pay complainants $5,034.48, which the chancellor found to be the value of one-half of that part of the wall used by defendants, together with $2,208.21 interest, that being 5 per cent. per annum on the amount found due complainants from the 20th day of June, 1901, within 20 days, and that, in default of payment, the premises of defendants be sold to satisfy said sum. Defendants prosecuted an appeal to the Appellate Court, and that court held that the superior court erred in refusing to grant the prayer of the crossbill that complainants be required to fill the openings in the wall where the windows were placed, and restore the wall to its original condition by making it a solid wall throughout its entire length and height, and in allowing interest upon the amount fixed as the value of that part of the wall used by de |