the spirit of her dead husband directed her to build it, and to build it at that particular place. She sent to Washington and brought hither an attorney to collect a claim against an estate perfectly solvent, and paid him the sum of five hundred dollars therefor, because she had been advised by the spirits, and was under the insane delusion that she was about to lose her money, or some of it, and it must be the Buckley money, and this, too, when she had an attorney here who had attended to her. business affairs for several years, and whom she had known much longer, and against whose honesty and integrity the finger of suspicion had never turned. So strong was the delusion, that she offered him five hundred dollars, to collect the same moneys, and when he assured her that the claim was safe and refused 37 her exorbitant offering, instead of listening to his advice and the voice of reason she blindly followed the behests of her delusion, in the manner so characteristic with persons afflicted with this form of insanity, and brought the Washington lawyer to her aid. The surrender of the mortgage to Clara Robinson, her dealings with Hainer, both of whom were mediums, evince her deranged condition whenever the circumstances offered an opportunity for her belief in spiritualism to become influential. Though highly moral, and absolutely pure in every thought and deed that sprang from her long life, through the influence of spiritualism she became an apologist for the debauchery of others and so acted as to belie every element of her purity and womanhood. A radical change takes place in the very essentials of her character. She had frequently expressed her aversion to a second marriage, and steadfastly adhered to her resolution until the pretended message from her husband came, and then, under the irresistible influence of her insane delusion, she assented, believing she had found one who espoused the doctrines so near to her heart, and who could revolutionize the world, eliminate misery and sorrow from the conditions of men, and, as it were, make earth a paradise."

It is also to be kept in mind that, in the view we have already expressed, the marriage in question was brought about and procured by Charles Orchardson in the accomplishment of his scheme and purpose to obtain possession of the property of Mrs. Merrick, and this fraud is to be taken into consideration in connection with the evidence of the mental incapacity of Mrs. Merrick at the time of the alleged marriage. Bishop, in his work on Marriage, Divorce, and Separation, volume 1, section 611, says: "The intellect may be very weak, not absolutely free

from derangement, while yet not to an extent disqualifying the person to contract matrimony, for the disorder or feebleness, to have this effect, must have reached a standard magnitude." And he adds, in section 612: "The cases 38 oftenest occurring are where partial insanity or great weakness of intellect is circumvented by fraud. Such a case was the Earl of Portsmouth's, who, being of weak and somewhat disordered mind, was led by the artifice of his trustee and solicitor, whose influence over him was great, into a marriage with the latter's own daughter. The marriage was declared void. And in another case of the like nature, a man of forty contrived to bring about between himself and a woman of seventy, a drunkard, with considerable property, which he sought to secure, a marriage without a settlement, or the knowledge of her friends. It also was adjudged void." And again, in section 613: "The two ingredients of fraud and insanity, thus blending, often in matrimonial causes produce by their united action a nullity which neither could alone effect." Lyndon v. Lyndon, 69 Ill. 43, is in harmony with this principle.

In the case of the man of forty intermarrying with a woman of seventy referred to above, which is the case of Browning v. Reane, 2 Phillim. 69, the evidence was to the effect that the woman was not only addicted to the excessive use of intoxicating liquors, but that she had been from childhood of very weak intellect. But the court does attach importance to the fact that the evidence disclosed that the marriage was procured by the man for the purpose of obtaining the estate of the woman, and in speaking of the weight to be given to the alleged fact of marriage it is said: From "merely pleading the fact of marriage the court could not expect much that was satisfactory. If the marriage was brought about by fraudulent confederacy there would be two descriptions of persons present at it-the parties confederating, and those whose presence was necessary and who might be deceived and imposed upon." This language, we think, is peculiarly applicable to the facts in this case as to the manner in which the empty ceremony of marriage was pretended to be celebrated.

39 In Foster v. Means, 1 Spear Eq. 569, 42 Am, Dec. 332, a marriage was held to be null and void between a man and woman on the ground of the mental incapacity of the man and the fraudulent procurement of the woman. In that case, as in Browning v. Reane, 2 Phillim. 69, the mental defect was from childhood, and while there was some evidence to the effect that

the man was capable of reasoning to a limited extent and comprehending some of the ordinary matters of life, the judgment avoiding the marriage was based upon the mental weakness, together with the undue influence exercised by the woman in the procurement of the marriage. In rendering the opinion, the court says, after speaking of the mental infirmity: "I have no doubt but that the complainant availed herself of this imbecility of mind and the natural instincts which might prompt him to marry, either to induce him to propose marriage or to propose it herself, with the expectation of securing his property to herself. There could have been no other motive on her part to enter into such a contract with such a man." So, here, it appears beyond cavil that Charles Orchardson entertained for this deluded old lady no single sentiment of affection or esteem, which must prompt every honorable marriage, and that he married for her money, and nothing else. "There could have been no other motive on his part to enter into such a contract with such a woman." Still less could Mrs. Merrick have entered into such a contract with such a man had not her reason been dethroned. No one will suffer by the decree below unless it be the wrongdoer himself. No right or interest of society demands that such a marriage should be upheld.

We think the chancellor rendered his decree in accordance with the law and the evidence upon both branches of the case, and it will accordingly be affirmed.

Decree affirmed.

Carter, J., took no part.

WILLS-INSANE DELUSION-SPIRITUALISM.-A will is invalidated by an insane delusion, when it is the result of the delusion, but not otherwise: Notes to Haines v. Hayden, 35 Am. St. Rep. 579; In re Cline's Will, 41 Am. St. Rep. 854; Thomas v. Carter, 170 Pa. St. 272; 50 Am. St. Rep. 770. Belief in spiritualism does not of itself show insanity, unless it amounts to a monomania: Connor v. Stanley, 72 Cal. 556; 1 Am. St. Rep. 84, and note. A man may be of sound mind in regard to his dealings in general while he is under an insane delusion, and whenever it appears that his will was the direct offspring of his partial insanity or monomania, which was the cause of the disposition made by him of his property, and that without it such disposition would not have been made, it should be disregarded: Thomas v. Carter, 170 Pa. St. 272; 50 Am. St. Rep. 770. For monographic note on Insane delusions see note to People v. Hubert, 119 Cal. 216, ante p. 80.

MARRIAGE-CAPACITY AND CONSENT-CEREMONY-INSANE PERSONS.-The essentials of a valid marriage are capacity and consent: Voorhees v. Voorhees, 46 N. J. Eq. 411; 19 Am. St. Rep. 404; without them, a ceremony is of no consequence: Roszel v. Roszel, 73 Mich. 133: 16 Am. St. Rep, 569. The marriage of an insane person is void, for want of mental capacity to contract: Note to

State v. Setzer, 2 Am. St. Rep. 293; Harrison v. State, 22 Md. 468; 85 Am. Dec. 658. A void marriage is good for no legal purpose, and its invalidity may be proved at any time, in any court, and by any person: Cartwright v. McGown, 121 Ill. 388; 2 Am. St. Rep. 105. This rule applies to the marriage of an insane person: Note to State v. Setzer, 2 Am. St. Rep. 293. If a person, non compos, has been induced by another to marry only for the purpose of securing his property, the marriage is void: Foster v. Means, 1 Spear Eq. 569; 42 Am. Dec. 332.

POWERS

BIGELOW V. CADY.

[171 ILLINOIS, 229.]

EXERCISE OF, BY AN ADMINISTRATOR SUCCEEDING AN EXECUTRIX WHO RESIGNS.-If an executrix resigns, she no longer has a right to exercise a discretionary power, conferred by the will, to sell land, and the appointment of an administrator, with the will annexed, does not confer upon him the right to exercise the power to sell that which was given by the provisions of the will to the executrix named therein.

DEFINITIONS.-PERPETUITY is a limitation, in an instrument, taking the subject matter of the perpetuity out of commerce for a period of time greater than a life or lives in being and twentyone years thereafter.

DEVISE-WHEN VOID AS CREATING A PERPETUITY.-— A devise is void if there is a possibility that a violation of the rule against perpetuities can happen, whether it creates a legal or a trust estate.

DEVISE-WHEN VOID AS CREATING A PERPETUITY.— A devise in trust, providing how the proceeds of any lands sold shall be disposed of, but which makes no provision for the vesting of the fee in any one, at any time, and which does not fix any time when such proceeds shall be paid to any one, is void, as creating a perpetuity.

DEVISE-CLAUSE SHOWING AN INTENT TO CREATE A PERPETUITY.-An intent to create a perpetuity is manifested by a clause of a devise in trust, which provides for the appointment of trustees "for all time to come."

Bill for partition, brought by the appellant, Hiram Bigelow, administrator, against Anna Cady and others.

N. F. Anderson, for the appellant.

John P. Hand, for the appellees.

230 PHILLIPS, C. J. This was a bill for partition, filed in the Henry county circuit court. The bill alleges that Richard Mascall died on September 18, 1888, leaving a last will and testament, which was duly admitted to probate in the county court of Henry county, Illinois (a copy of which is made part of the bill), and that he left surviving him his widow, Mary J. Mascall, and three children as his heirs at law, who are appellees herein. The bill also alleges that the debts and legacies have been paid,

and that the appellees are the owners in fee of the lands sought to be partitioned, comprising several hundred acres and numerons town lots. To the bill a demurrer was interposed, which being overruled the administrator excepted thereto and proseentes this appeal.

The controversy in this case arises upon the construction of certain paragraphs of the will, and whether a perpetuity is treated. The contention of the appellees is that a perpetuity was created, and therefore, as to the lands included within the clause of the will which created a perpetuity, such lands and town lots became intestate property.

The eighth paragraph of the will is as follows:

"Eighth. It is my will and desire that all the land and town lots that I may own at my death (that I have not otherwise bequeathed), in Illinois, Minnesota, or Nebraska, or any other real estate wherever it may be, if there be any, it shall be taken charge of by the executrix or executor, as the case may be, shall either rent or sell the property, leaving that to the judgment of the executrix or executor. In either case, after paying taxes, and other repairs, and reasonable compensation for so doing, then the balance, if there be any, if rented and collected, then each year shall be equally divided as follows: one-fourth to my daughter Anna Cady, one-fourth to my daughter Martha M. Bristol, one-fourth to my son, James P. Mascall, 231 and onefourth to my wife, Mary J. Mascall. If any lands or lots should be sold, the money is to be put to interest as soon as it can be done conveniently. It is left to the judgment of the executrix or executor. When the interest is collected it shall be equally divided between my four heirs above mentioned in this paragraph, after paying all taxes, and reasonable compensation for

doing. In case of death of either of the four above named beirs it shall go (their share) to the heirs of the deceased heir, if they have any; if not, it shall be equally divided between my remaining heirs above mentioned, and their heirs forever, share and share alike. If my wife, Mary J. Mascall, dies leaving no heir of mine, then her share (one-fourth) shall go to my heirs and their heirs forever, share and share alike."

By the twenty-ninth clause of the will it is provided:

"Twenty-ninth.-I hereby make, appoint, and constitute my aid wife, Mary J. Mascall, executrix of this my last will and testament, without bonds. At the death, or in case of disability, of the said Mary J. Mascall, in either case the judge of the probate court of Henry county, Illinois, shall appoint some good,