killed, about one hundred feet away from the dwelling, though it had been cautioned by its mother not to do so. It had been absent from home some fifteen minutes at the time of the accident. The 472 evidence was to the effect that he was an ordinarily obedient child; that his parents were laboring people and had only one other child, a thirteen year old daughter, who was attending school. To the contention on behalf of defendant below that the evidence established negligence per se, the court say: "If the term 'negligence' signified an absolute quantity or thing, to be measured in all cases in accordance with some precise standard, much of the difficulty which besets courts in the solution of this class of cases would be at once dissipated. But, unfortunately, it does not. Negligence is not absolute, but is a thing which is always relative to the particular circumstances of which it is sought to be predicated. For this reason it is very rare that a set of circumstances is presented which enables a court to say, as a matter of law, that negligence has been shown. As a very general rule it is a question of fact for the jury-an inference to be deduced from the circumstances; and it is only where the deduction to be drawn is inevitably that of negligence that the court is authorized to withdraw the question from the jury. The fact that the evidence may be without conflict is not controlling, nor even necessarily material. Conceded facts may as readily afford a difference of opinion as to the inferences and conclusions to be drawn therefrom as those which rest upon conflicting evidence, and if there be room for such difference the question must be left to the jury: Beach on Contributory Negligence, sec. 163; Schierhold v. North Beach etc. R. R. Co., 40 Cal. 447; Van Pragg v. Gale, 107 Cal. 438, 40 Pac. 555. Within these principles the evidence of this case cannot be said to establish negligence per se. Parents are chargeable with the exercise of ordinary care in the protection of their minor children, and whether the conduct of the mother, for which plaintiff is to be held responsible, in permitting the deceased child to be out of her sight for a period of from fifteen to twenty minutes without satisfying herself of its whereabouts, was, under all the circumstances, a 473 want of ordinary care, was, we think, a fairly debatable question." Schierhold v. North Beach etc. R. R. Co., 40 Cal. 447, Meeks v. Southern Pac. R. R. Co., 56 Cal. 513, 38 Am. Rep. 67, Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. E. 108, Slattery v. O'Connell, 153 Mass.

94, 26 N. E. 430, and Creed v. Kendall, 156 Mass. 291, 31 N. E. 6, are to the same effect.

It is said that in the Massachusetts cases, supra, facts wereshown such as pecuniary circumstances, condition of health, etc., of the parents, whereas here nothing of the kind appears. It is true that in Chicago v. Major, 18 Ill. 349, 68 Am. Dec. 553, and perhaps the decisions of other courts on the question of parental care in keeping their children off the streets of cities, allusion is made to the fact that the parents of many children in large cities are laboring people and in limited circumstances, unable to employ nurses and servants to attend their children. Such facts do not, however, determine the right of the parent to suffer children to go upon the street, but the question decided in such cases is, that it is not negligence per se for them to do so. It certainly cannot be said, as a matter of law, that it is negligence per se for a wealthy or healthy parent to permit his infant child to be upon a publicstreet where he knows it is exposed to danger, but that it is not such negligence if the parent be sick or poor, depending upon his daily labor for the support of himself and family, and the weight of authority, we think, is clearly against any such discrimination: Fox v. Oakland Consolidated St. Ry. Co., 118 Cal. 55, 62 Am. St. Rep. 216, 50 Pac. 25, and cases there cited.

If, in this case, the plaintiff had simply permitted her child to be upon this street unattended, and it had been injured or killed through the negligence of the defendant company, and she had brought an action for that injury, it is clear that under the authorities the question whether she was guilty of such contributory negligence as would defeat her action would have been a question for the jury. Can it be said, as a matter of law, that she exercised a less degree of care in this case? It is true that nothing was shown tending to prove her inability to 474 keep constant watch over her child or to employ others to do so; but did she so far fail to exercise reasonable care in restraining it from being exposed to danger that a court can say, as a matter of law, that she was guilty of contributory negligence? As before stated, her own evidence shows that she held the child by the hand, and that it slipped away from her only for a moment and that she immediately pursued it. Can the court say, as a matter of law, that she was bound to hold the child in her arms, or hold it by the hand, or keep her eyes on it, constantly while upon the street?

"When facts are unchallenged, and are such that reasonable minds could draw no other inference or conclusion from them than that the plaintiff was or was not at fault, then it is the province of the court to determine the question of contributory negligence as one of law, and when the case is all against the plaintiff there may properly be a nonsuit; but in the language of Mr. Field, 'to justify a nonsuit on the ground of contributory negligence the evidence against the plaintiff should be so clear as to leave no room for doubt, and all material facts must be conceded or established beyond controversy'": Beach on Contributory Negligence, secs. 447-449; Chicago etc. R. R. Co. v. O'Connor, 119 Ill. 586, 9 N. E. 263; Hoehn v. Chicago etc. Ry. Co., 152 Ill. 223, 38 N. E. 549; Wabash Ry. Co. v. Brown, 152 Ill. 484, 39 N. E. 273; Chicago etc. R. R. Co. v. Ptacek, 171 Ill. 9, 49 N. E. 191.

It seems to us clear beyond controversy that all reasonable persons would not say, under the facts showing the conduct of this mother prior to the time that her child got upon the street-car track, that she was guilty of negligence that very many would consider her reasonably careful. The question was, therefore, one of fact and proper to be submitted to a jury. She had a right reasonably to presume that if the child for the time escaped from her and became exposed to danger others would not negligently injure it, and, seeing it suddenly 475 so exposed, she had the right, and it was her duty not only to the child but to the defendant itself, to make all reasonable efforts to rescue it from that danger.

On the whole record we find no reversible error, and the judgment of the appellate court will be affirmed.

THE DOCTRINE OF COMPARATIVE NEGLIGENCE has never been recognized in Minnesota: Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 70 Am. St. Rep. 341, 74 N. W. 166; or in Missouri: Hurt v. St. Louis etc. Ry. Co., 94 Mo. 255, 4 Am. St. Rep. 374, 7 S. W. 1.

CONTRIBUTORY NEGLIGENCE.-THE BURDEN OF PROOF as to contributory negligence is on the defendant, unless the plaintiff's own evidence establishes it: Pullman etc. Co. v. Adams, 120 Ala. 581, 74 Am. St. Rep. 53, 24 South. 621. Compare Bartram v. Sharon, 71 Conn. 686, 71 Am. St. Rep. 225, 43 Atl. 143.

NEGLIGENCE RESCUING ANOTHER.-The law has so high a regard for human life that it will not impute negligence to an effort to preserve life unless made under circumstances which constitute rashness: See the monographic note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 849; Maryland Steel Co. v. Marney, 88 Md. 482, 71 Am. St. Rep. 441, 42 Atl. 60. It is not contributory negligence in a mother to attempt to rescue her child from an approaching train, although she may have negligently allowed it to go on the track: Donahoe v. Wabash etc. Ry. Co., 83 Mo. 560, 53 Am. Rep. 594.

LANCASTER v. LANCASTER.

[187 Ill. 540, 58 N. E. 462.]

WILLS-DEVISE TO A CLASS.-A DEVISE to the legal and direct descendants, "the heirs of their bodies begotten and their heirs," is limited to the "heirs of the bodies" of the ancestors named, and only those of that class who are living at the testator's death will take.

WILLS-DEVISE TO A CLASS-WHEN TAKES EFFECT.-When there is a simple devise to a class, and the will neither expressly nor by necessary implication fixes a time when the devisees are to be ascertained or when the division is to be made, the law will fix such time at the testator's death, that being the time when the will first speaks.

WILLS-DEVISE TO A CLASS-WHO TAKE.-When a devise is to a class, the death of one member of the class before the testator will not cause a lapse of any part of the gift, but those of the described class who survive the testator will take the whole.

WILLS-DEVISE OF LIFE ESTATE WITH REMAINDER. A will devising a life estate to one, with a remainder "to heirs of her body begotten, after her death," gives the first devisee a life estate, and upon her death the "heirs of her body" living at the death of the testator will take, not as her heirs generally, but by virtue of the original gift to them as a class, to be ascertained when the will should take effect.

Follett W. Bull and Louis Grollman, for the guardian ad litem.

Hamline, Scott & Lord, Frank E. Lord, and Gwynn Garnett, for the appellee Lancaster.

William Prescott, for the appellee William Wallace.

Smith, Helmer, Moulton & Price, for the other appellees.

842 WILKIN, J. This is a proceeding in chancery by Robert H. Lancaster, one of the devisees under the will of Nimrod Lancaster, in the superior court of Cook county, to partition certain lots and tracts of land, and adjust encumbrances thereon, described in the bill, as a part of the estate of Nimrod Lancaster, deceased, late of Chicago, who died testate on June 14, 1895.

543 The will, which is the basis of the claim of the respective parties to the lands in controversy, was executed in July, 1890, and is as follows:

"Chicago, July, 1890.

"Know all persons by these presents, That I, Nimrod Lancaster, of the city of Chicago, do hereby make my last will and testament, and that I am firm in body and sound in mind.

"Item first-I will that all my estate, both real and personal, shall be divided into four equal parts.

"Item second-I give and bequeath to the legal and direct descendants the heirs of their bodies begotten and their heirs -of my eldest brother, William P. Lancaster, and his wife, Mary Lancaster, (now both deceased,) the one-fourth part of my estate so divided as above mentioned.

"Item third-I give and bequeath to the legal and direct descendants the heirs of their bodies begotten and their heirs— of my brother Robert P. Lancaster, and Amanda Lancaster, his wife, (now both deceased,) the one-fourth part of my estate so divided as above mentioned.

"Item fourth-I give and bequeath to the heirs of their bodies begotten, and their heirs, of my sister, Sallie Wallace, and her husband, Thomas Wallace, (now both deceased,) onefourth part of my estate so divided as above mentioned.

"Item fifth-I give and bequeath to my sister-in-law, Mrs. Edmonia P. Guard, (now living at Cleves, Ohio,) to herself during her lifetime and to heirs of her body begotten, after her death, one-fourth part of my estate so divided as above mentioned.

"Item sixth-It is my will, and I so bequeath, that my friend, William A. Barton, and his wife, Harriet Barton, shall remain in and occupy, free of rent, the house (2941 Wabash ave.) they now have, for ten years after my death.

"NIMROD LANCASTER."

"Item seventh-I do hereby constitute and appoint Mrs. Mary Phipps, my niece, and her husband, William C. Phipps, my executors, to execute this my last will and testament.

"November 23, 1891."

The petitioner is one of the "heirs of the bodies" of Robert P. and Amanda Lancaster, designated in item 3.

Upon the hearing below there was no controversy as to the description of property sought to be partitioned, the encumbrances or the right to partition, but the contest 544 arose as to the proper construction to be placed upon the second, third, fourth, and fifth items of the will, and several interpretations were insisted upon in the court below by the respective parties, but one of which, as stated below, is urged here. The decree there rendered was in conformity with the prayer of petitioner as to the interpretation and construction of the will, finding, in effect, that under each clause the devisees who took the estate were the persons who, at the time of the testator's death,