tate and with the labor and difficulty attending its settlement, enjoys peculiar means of knowledge for determining what was the proper amount of compensation to be made. to the administratrix for her services. When such judge, in view of all the circumstances, has exercised his judgment in the matter and determined what is the proper compensation to be allowed to the administratrix for her services, this court will not change the amount unless the amount fixed is against the manifest weight of the evidence. (Askew v. Hudgens, 99 Ill. 468; Griswold v. Smith, 214 id. 323.) The administratrix's fee is a proper expense of administration and is therefore a proper deduction. People v. Tatge, 267 Ill. 634.

It is also contended by the Attorney General that because the regular 1918 taxes were not fixed in amount and were not due and payable until long after the death of deceased no deduction should be made on account thereof for the purpose of determining the amount of the estate subject to inheritance tax. He contends that "for the purpose of the inheritance tax real and personal property taxes should not be deducted unless the decedent died subsequent to the time the books are delivered to the collector." Paragraph 302 of the chapter on revenue (Hurd's Stat. 1917, p. 2482,) provides that all property subject to taxation shall be listed with reference to the ownership thereof on the first day of April in each year and that the owner of such property on the first day of April shall be liable for the taxes for that year. Paragraph 347 of the same chapter provides that taxes upon real property shall be a prior and first lien on such real property from and including the first day of April in the year in which the taxes are levied. Paragraph 254 of the same chapter provides that the taxes assessed upon personal property shall be a lien upon the personal property of the person assessed from and after the time the tax books are received by the collector, and paragraph 346 provides that the county clerk shall deliver the

books to the collector on the second day of January following the year in which such taxes are levied. In the case of personal property tax there is a personal liability for the taxes, and this liability is independent of the tax lien. Therefore an action may be brought against the tax-payer for the taxes, whether there is or is not a lien in existence. The real property passed directly from deceased to appellee, but it passed subject to the lien for the taxes for the year 1918. As only the beneficial interests passing from the deceased to the heir are subject to the inheritance tax, we think the real estate taxes were clearly deductible. By paragraph 6 of the chapter on revenue the administratrix was required to list the personal property of her father's estate. Since this property was owned by her father on the first day of April, 1918, she was required to list the property then owned by him as the property of the estate. Personal property does not pass directly from the deceased to his next of kin, so all that appellee will take is what may be coming to her from the estate on its distribution after settlement. The administratrix is regarded by the statute in matters of taxation as the legal owner and possessor of the property after her appointment and until the property is distributed and is therefore made personally responsible for the taxes. Appellee was personally liable as administratrix of her father's estate for the personal property taxes assessed against his estate for the year 1918, and the amount paid by her for such taxes was an expenditure of the administratrix and never passed to her as next of kin of deceased, and therefore this amount was not subject to the inheritance tax. The New York cases cited by the Attorney General are of no assistance, because they construe a statute wholly different from the revenue laws of this State. The county court properly deducted this item in arriving at the value of the estate subject to inheritance tax.

It is further contended by the Attorney General that the county court erred in allowing as a deduction the sum of

$15.12 on account of a transfer tax assessed by the State of Wisconsin. This transfer tax imposed by the laws of Wisconsin is a tax not on the property of the estate but on the right to succeed to such property by the next of kin or heir-at-law of the deceased. It is a tax which the person who inherits is liable to pay and is not a debt or charge against the decedent or the estate. Neither the decedent nor his estate owed the State of Wisconsin anything, and the payment by the administratrix of the tax due that State by herself as next of kin of decedent was the payment of a debt or charge against her as an individual, the same as the payment of the inheritance tax of this State. The county court erred in making this deduction. In re Gihon's Estate, 169 N. Y. 443, 62 N. E. 561; People v. Palmer's Estate, (Colo.) 139 Pac. 554.

Anna M. Ballans also prayed an appeal from the order of the county court fixing said tax at the sum of $2163.37, for the reason that the court fixed the tax at the rate of two dollars for each $100 of the whole value of said estate subject to taxation, instead of one dollar for each $100 of the value of such property on the first $100,000 and two dollars on each $100 of the value in excess of $100,000. She did not perfect her appeal but seeks to have the question reviewed by cross-errors.

This case differs from People v. Schaefer, 266 Ill. 334. The question in this case is properly presented by crosserrors because there is but one ultimate question in the case, the amount of inheritance tax to be paid by Anna M. Ballans. There being but one item of tax involved here, the holding in People v. Vogt, 262 Ill. 170, is not applicable to the facts presented in the record before us.

The county court correctly fixed the tax at two per cent. The statute provides in plain language that "the rate of tax shall be two dollars on every one hundred dollars of the clear market value of such property received by each person, when the amount so received exceeds in amount the

sum of one hundred thousand dollars." (Hurd's Stat. 1917, p. 2500.)

The judgment of the county court will be reversed and the cause remanded for further proceedings consistent with the views herein expressed. Reversed and remanded.

(No. 13408.-Reversed and remanded.)

GEORGE A. HIMMEL et al. Appellees, vs. CHARLES E. HIMMEL et al. (JOHN A. MARSHALL et al. Appellants.)

Opinion filed October 23, 1920.

1. WILLS-intention of testator must prevail unless prohibited by law. The purpose of construing a will is to ascertain the intention of the testator and to give the same effect, and all rules of construction yield to that intention, which, when ascertained, will prevail unless prohibited by law.

2. SAME what may be considered in ascertaining testator's intention. In ascertaining a testator's intention the whole scope of the will is to be considered and every provision given due weight to ascertain the plan of the testator in the light of the circumstances surrounding him, his family and property at the time of making the will.

3. SAME meaning of the word "heir." The word "heir" in its primary meaning designates the person appointed by law to succeed to the estate in case of intestacy.

4. SAME "heirs" or "heirs-at-law" of testator are to be designated at his death unless contrary intention is manifested. Where a testator refers to his "heirs" or "heirs-at-law" as devisees of a remainder, the provision will be held to apply to those who are heirs of the testator at his death unless the intention to refer to those who shall be his heirs at a subsequent period is plainly manifested.

5. SAME-life tenant may be included in devise of remainder to testator's "heirs-at-law." Where a life estate is devised to one of several heirs-at-law of the testator with remainder to the testator's heirs-at-law, the life tenant is included within the term "heirs-atlaw" and is included in the devise of the remainder.

6. SAME-fact that life tenant is sole heir is not conclusive in ascertaining what heirs-at-law take the remainder. Where a life estate is devised with remainder to the testator's heirs-at-law, the fact that the life tenant is sole heir is not, alone, sufficient to post

pone the period of vesting the remainder until the death of the life tenant, although such fact may be considered in 'determining the nature of the remainder and the time when the heirs-at-law are to be ascertained. (Johnson v. Askey, 190 Ill. 58, explained.)

7. SAME when word "then" does not indicate time of ascertaining heirs-at-law. Where a testatrix, after devising a life estate to her son and only child, provides that if the life tenant shall die without leaving issue surviving him, "then it is my will that such real estate revert and go to my heirs as if no will had been made," the word "then" does not indicate the time of ascertaining the heirs-at-law of the testatrix but refers to the event upon the happening of which the legal heirs take the property.

8. SAME―when devisees of remainder, as heirs of testatrix, are ascertained at her death although life tenant is sole heir. Where a testatrix devises a life estate to her son and only child and provides that if the life tenant die without leaving issue surviving him "then it is my will that such real estate revert and go to my heirs as if no will had been made," the "heirs" of the testatrix will be ascertained at her death if no contrary intention is manifested in the will, and upon the death of the life tenant without issue surviving, his heirs, including his widow, will inherit the remainder through him as sole heir of the testatrix.

APPEAL from the Circuit Court of Tazewell county; the Hon. T. N. GREEN, Judge, presiding.

LYMAN LACEY, JR., and EDMUND P. NISCHWITZ, for appellant Sara E. Marshall.

HEYL & HEYL, for appellant John A. Marshall.

SMITH & SMITH, (WILLIAM A. Porrs, guardian ad litem, of counsel,) for appellees.

BROWN & BARNES, for Charles E. Himmel, Executor.

Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court:

Mary Marshall, a widow, fifty-four years of age, who was the owner of 671 acres of land in Tazewell county and residence property in the city of Havana and lots in a Chau

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