is not more definitely settled is that the plaintiff can avoid all risk by taking out a summons and simultaneously filing an affidavit for attachment in aid reciting the pendency of the action. By this means he gains all the advantage of original attachment, although his demand may be one enforceable by attachment only when this is a proceeding in aid. As a matter of fact, it was the faulty endeavor to follow just this sort of procedure which gaye rise, in the present case, to the question debated on the petition for rehearing. In any event, there seems to be no good reason for extending to the plaintiff, just because his action has been already commenced, any wider remedy by attachment than he would otherwise be entitled to. The fact of the pendency cannot increase the plaintiff's insecurity, on the one hand, or, on the other, afford better assurance of the validity of his claim. Inasmuch as the separation contemplated by the statute has virtually broken down in practice, nothing is served by its formal continuance but the ends of complication. A distinction between original attachment and attachment in aid, as pieces of procedural mechanism, is natural and inevitable, but there is no room for any distinction as to the kinds of claim which they may be respectively used to enforce. Both original attachment and attachment in aid should be available, under proper safeguards in cases of unliquidated as well as liquidated claims, and the plaintiff's right to the form of provisional execution here involved should be measured by precisely the same criteria in the one and the other of the two modes of proceeding.

R. W. M.

RIGHTS OF A SURVIVING HUSBAND IN THE WIFE'S PERSONAL ESTATE. The case of Zakroczymski v. Zakroczymski 303 Ill. 264, 135 N. E. 398, decides that a surviving husband is entitled to claim one-third of his deceased wife's personal estate remaining after payment of debts, whatever testamentary disposition of her estate she may make. If she makes no provision at all for him in her will, he may claim this interest (together with dower in her lands) without any act of renunciation (there is nothing for him to renounce). If she makes some provision for him in her will, then he must renounce that provision, in compliance with Sections 10 and 11 of the Dower Act, if he desires to claim his dower and "thirds," and, in the absence of such renunciation, his right to dower and "thirds" is barred by the testamentary provision.

In the early case of In re Taylor's Will, 55 Ill. 252, it was held that a surviving wife was entitled to one-third her deceased husband's personal estate, after payment of debts, together with dower in his lands; that she could not be deprived of these interests by any testamentary disposition he might make of his estate except by a testamentary provision in her favor not renounced by her; and that in the absence of such a provision she could claim these rights without any act of renunciation. This case went on "a sort of common law" of this state for the benefit of surviving wives, deduced from the general course of legislation beginning with the Northwest

Ordinance, and Section 10 of the Dower Act and its predecessors. Section 10 was at that time applicable only to surviving wives. In 1874, when the husband's curtesy estate was abolished, and a dower right (the same as that of the wife) substituted, Section 10 was amended so as to be equally applicable to surviving husbands and wives. Some other changes were also made. In Lawrence v. Balch 195 Ill. 626, it was held that the present Section 10 gave a surviving husband an absolute right to dower and to one-third the wife's personal estate. The husband in that case claimed the entire personal estate (the wife leaving no issue), and it does not appear that his right to one-third was disputed.

In the instant case the question arose squarely, and was fully considered, and the same result reached in the Lawrence case was reached by a majority of the court, two judges dissenting. The majority proceed upon a construction of the present Section 10. They consider that the changes made, beyond including the surviving husband with the surviving wife in the benefit of the act, are immaterial upon the question involved. They accordingly hold that the legislature in re-enacting Section 10 must be deemed to have re-enacted it in view of the construction of the former section in Taylor's Will case. Stress is also laid upon the fact that this construction has been universally regarded as settled law, citing Lawrence v. Balch, supra; Richardson v. Trubey 240 Ill. 476; Bennett v. Bennett 282 Ill. 266. The dissenting opinion attempts to distinguish In re Taylor's Will, supra, on the differences between Section 10 as it then stood and the present Section 10. The later cases above referred to are said not to have decided the question involved, and the language therein sustaining the views of the majority to be only dicta.

The majority opinion seems entirely sound. The changes made in Section 10 after the case In re Taylor's Will, supra, are not such as to indicate any intention by the legislature to obviate the construction placed on the former act in that case. Whether the expressions of the court in the later cases were dicta or not, they indicate clearly that the court deemed the present section should be construed in the same way as the former section. And the legal profession has universally accepted these utterances as announcing the settled law. It would be most unfortunate to disturb law involving property rights seemingly so well settled. That danger is obviated by the present decision.

Under the law as now established, a surviving husband or wife may in all cases claim, as of right, dower in the lands and one-third of the personal estate (after payment of debts) of a deceased spouse dying testate.

If the will of the deceased spouse contains no provision in favor of the surviving spouse, the surviving spouse can, if there are issue, claim no more (except homestead and widow's award where those rights exist). If the will makes a provision for the surviving spouse the provision must be renounced (under Sections 10 and 11 of the Dower Act) if dower and one-third the personal estate are to

be claimed. If the deceased husband or wife dies testate and without issue the surviving spouse may, on taking the steps prescribed by Section 12 of the Dower Act, elect to have in lieu of dower and "of any share in the personal estate which he or she may be entitled to take with such dower" one-half of all the real and personal estate remaining after payment of debts. If the will makes provision for the surviving spouse, the election under Section 12 cannot be made unless he or she has previously renounced (under Sections 10 and 11) the provisions of the will in his or her favor: Gullett v. Farley 164 Ill. 566; Richardson v. Trubey 240 Ill. 476. But if the will makes no provision for the surviving spouse, no previous renunciation is necessary (or possible) to the election to take under Section 12. (Cases last cited and Lawrence v. Balch, supra.)

L. M. G.

PROPERTY-ESTATES-RULE IN SHELLEY'S CASE.-In the cases of Bunn v. Butler 300 I11. 269, 133 N. E. 246, and Churchill v. Marr 300 Ill. 302, 133 N. E. 335, within the requirement of the rule in Shelley's case that the limitation over must be to heirs or heirs of body in its signification as a limitation, in order for the rule to apply, and that the rule does not apply where the limitation singles out particular individuals or particular members, it was held that the words, "the heirs of the body of Henry Wirt Butler, surviving him," and "surviving heirs of my children," are words of purchase and so not within the rule.

In that connection, it is interesting to note that the words, "to Hally Haight and to his heirs in fee simple" (Haight v. Royce 274 Ill. 165-169); to the heirs of A forever (Greenough v. Greenough 284 Ill. 419); to his lawful heirs (Wilson v. Harrold 288 Ill. 392); to the heirs at law of A, reserving a life estate in A (Dubois v. Judy 291 Ill. 242-344); to her heirs if any (Sellers v. Rike 292 Ill. 476); to husband and wife for life, and after death of both, to heirs at law of wife to be shared according to the laws of descent then in force (Hallenbaugh v. Smith 296 Ill. 562, 563), were held to come within the operation of the rule. On the other hand, the words, in fee simple to heirs of body (Benson v. Tanner 276 Ill. 595); and, at the end of twenty years to their descendants per stirpes (Randolph v. Wilkinson 294 Ill. 523), were held not to come within the rule, as being to a special class.

Of the two principal cases, that of Churchill v. Marr 300 Ill. 302 contains also another problem. There the provision of the will was that the children receive the rents and profits for life, and as to any that died without children, the executors were to collect the rents during the lives of the surviving children, and on the death of the last child, were to sell the real estate and distribute the proceeds "among the surviving heirs" of the children. Thus it appears that the estates were equitable, but the will provided for a conversion of the real estate, and the limitation over to their heirs was of personalty. That being true, the rule announced by such cases as Car

penter v. Hubbard 263 Ill. 580; Nowlan v. Nowlan 272 Ill. 528; Wilson v. Harrold 288 Ill. 392, to the effect that the rule applies where both the life estate and the limitation are equitable, does not apply, as the rule does not operate in case of personalty; Smith v. Smith, 254 Ill. 493; Belleville Bank v. Aneshaensel 298 Ill. 295-298. E. M. L.

DIVORCE REMARRIAGE-STATUTORY PROHIBITION-RIGHTS OF FOREIGN INCIDENCE.-The validity of a marriage after divorce was again raised in the Illinois Supreme Court in the case of Stevens v. Stevens 304 Ill. 297, 136 N. E. 785.

Following the Act of 1905 forbidding marriage after divorce, the case of Wilson v. Cook 256 Ill. 460 decided that where the divorce was in Illinois and a marriage contracted outside of Illinois within the prohibited period by citizens of Illinois who go outside of the state for the purpose of avoiding the prohibition of the statute, that the marriage is invalid.

Thereafter, in Powell v. Powell 282 Ill. 357, it was decided that where the divorce was in Indiana and the marriage in Illinois within one year, the marriage was valid because the divorce was not granted for any ground specified in Section 1 of the Illinois Divorce Act, but the fair conclusion to be drawn therefrom is that if the divorce had been for one of the grounds of Section 1 of the Illinois Divorce Act, that the marriage would be invalid.

The Stevens case goes one step further in that neither the divorce nor marriage took place in Illinois. In the last named case William Stevens died intestate in Illinois. Eliza J. Stevens filed a bill praying for the assignment of homestead and dower, and onehalf of the premises subject thereto. It appeared that she was formerly the wife of John Hayes, and by a decree in Arkansas she was divorced from Hayes in 1912 on the ground of desertion. Later, in 1912, Eliza and William Stevens, both residents of Illinois, applied for the issuance of a license in Illinois. The clerk refused to issue a license, evidently on the ground of the divorce. Thereupon Eliza and William Stevens went to Indiana and were married, this marriage being within one year after the divorce in Arkansas.

The contention for the validity of the marriage apparently was based upon the ground that the Arkansas divorce was not for any cause set out in Section 1 of the Illinois Divorce Act, but the court did not follow this contention, as the ground for divorce was substantially that provided by the Illinois statute. The court refers to the case of Wilson v. Cook supra, as authority for deciding that the marriage was invalid, as contrary to the prohibition of the statute, and therefore that Eliza was not entitled to homestead and dower.

In the case of Wilson v. Cook supra, the court had before it the following elements: Both parties were citizens of Illinois; the divorce was in Illinois; the marriage was within the prohibited period, and the marriage outside of Illinois was for the purpose of. avoiding the prohibition of the Illinois statute.

In the Stevens case both parties were citizens of Illinois; the marriage was within the prohibited period and was contracted outside of Illinois for the purpose of avoiding the prohibition of the statute, but the divorce was not granted in Illinois as in the Wilson case, nor was the marriage celebrated in Illinois, as in the Powell

case.

The Stevens case goes far in giving effect to the prohibition of the statute. The marriage was valid under the law of Indiana, and as a result, the only ground for the court to declare the marriage invalid, was the fact that the parties were citizens of Illinois and went out of the state for the purpose of avoiding the prohibition of the Illinois statute. The rule that a marriage, valid where contracted, will be held valid in Illinois, yields to the exception where the marriage is in violation of the expressly declared public policy of Illinois and the parties are residents of Illinois. Having jurisdiction of the parties, as residents of Illinois, the court determines the validity of the marriage as a status in Illinois.

In both the Wilson case and the Stevens case the element of a marriage outside of Illinois to avoid the prohibition of the Illinois statute was present. Is the law the same if this element is eliminated? This is not an express element of the Uniform Marriage Evasion Act of 1915, which provides residence as the test. So far as the wording of this Act is concerned, no evidence is necessary of evasion, but residence and the statutory prohibition are sufficient to constitute an evasion. However, the Stevens case is a decision under Section la of the Divorce Act, and it may be necessary to prove that the Illinois residents intentionally evaded the statute by going out of the state to be married. If this proof is necessary, very slight evidence would seem to be sufficient. As to the Wilson case, see ILL. LAW REV. VIII 61 and ILL. LAW REV. XI 102.

H. C. L.

ASSOCIATIONS-MASSACHUSETTS TRUST.-The case of Malley v. Howard 281 Fed. 363 presents an interesting question. That question, involved in four cases decided by the judges of the Circuit Court of Appeals of the First District, was whether the plaintiffs were associations having a capital stock represented by shares within the meaning of the Act of 1916, which levies a tax on associations "now or hereafter organized in the United States for profit and having a capital stock represented by shares," and the Act of 1918, which includes associations under the term corporation. The plaintiffs are what are commonly known as Massachusetts trusts and an attempt was made by the government to bring them within the meaning of the term "associations" used in the acts of Congress above referred to.

The Circuit Court refers to the case of Eliot v. Freeman 220 U. S. 178, where the question was whether or not the so-called Massachusetts trusts came within the language of the Act of 1909, which used the phrase "now or hereafter organized under the laws of the United States." The court then states that it agrees with the government's contention that the history of the legislation shows