provision for its disposition in case he died before her own death, shows that she contemplated that the son would outlive her, and negatives any supposition that she intended, by another devise to him, with a devise over in case he died without child or children, to provide against the contingency of his death occurring before

her own.

APPEAL from the Circuit Court of Cook county; the Hon. LOCKWOOD HONORE, Judge, presiding.

FRANCIS A. HARPER, for appellants.

BENJAMIN LEVERING, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

On September 30, 1898, Laura V. Crocker died leaving a last will and testament, by the third clause of which she devised to her three sons, Orsamus W. Crocker, Marlowe H. Crocker and Frank E. Crocker, a certain lot 6 in the city of Chicago, with this provision: "And in case of the death of either of my sons without child or children him surviving, I give and devise all of said lot six (6) to my other sons, their heirs and assigns, each an equal undivided part thereof, share and share alike." By the fourth clause she gave to her said son Orsamus W. Crocker her Masonic ring having thirteen emblems. On December 16, 1902, Orsamus W. Crocker and Cora Crocker, his wife, conveyed their share in lot 6 to William A. Shryer, who on December 20, 1902, re-conveyed to Cora Crocker. On August 6, 1905, Orsamus W. Crocker died without leaving a child or children surviving him. On October 2, 1905, Cora Crocker filed her bill in this case in the circuit court of Cook county setting up the foregoing facts and claiming to own onethird of said lot in fee and praying for a partition. Appellants, Frank E. Crocker and Marlowe H. Crocker, were made defendants, together with the owner of a mortgage

on the interest of Marlowe H. Crocker. Before any of the defendants appeared, the appellee, Arend VanVlissingen, by leave of court filed a supplemental bill, alleging that since the filing of the original bill he had purchased the interest of Cora Crocker in the premises and had become entitled to a partition. On June 15, 1906, appellants answered the supplemental bill, admitting the facts therein alleged and contending that the effect of the will was to give to Orsamus W. Crocker a determinable fee in lot 6, which came to an end at his death. The cause was heard on the pleadings, and a decree was entered finding that the appellants, Frank E. Crocker and Marlowe H. Crocker, and the appellee, Arend Van Vlissingen, were each the owners of an undivided onethird of the lot, and that the interest of the mortgagee was a lien for $200 on the share of Marlowe H. Crocker, and partition was ordered. An appeal to this court followed.

The question involved is whether the testatrix intended that Orsamus W. Crocker should take a fee simple estate if he survived her, or whether the devise over took effect on his death without issue after the death of the testatrix. The proper construction of like provisions in wills has been considered by this court in many cases, the most recent of which is Fifer v. Allen, 228 Ill. 507, and under the rules of construction adopted, Orsamus W. Crocker took a base or determinable fee, which came to an end at his death without a child or children surviving him, and the devise over to his brothers took effect. Aside from the rule of construction there is a provision in this will which shows that the testatrix contemplated the death of Orsamus W. Crocker as well after her death as before, and that provision is the gift of the Masonic ring without providing for any other disposition of the ring in the event of the death of Orsamus. The testatrix intended that he should have the ring absolutely, and the argument that she was providing against the contingency of his death in her lifetime for the purpose of preventing a lapse is not only contrary to the natural im

port of the words used, but the supposition that she had in mind the death of Orsamus in her lifetime is negatived by the bequest of the ring, which he was to have at her death. The decree is reversed and the cause is remanded, with directions to dismiss the bill.

Reversed and remanded, with directions.

WILLIAM B. CLOSE et al.

V.

D. H. BROWNE, Admr.

Opinion filed October 23, 1907-Petition stricken Dec. 4, 1907.

I. CONTRACTS-court will read contract in light of surrounding circumstances. In construing a written contract the court will read the instrument in the light of the circumstances surrounding the parties at the time it was made, so that the court may understand the language used in the sense intended by the parties.

2. SAME―when word "sale" will be regarded as used in its ordinary sense. The word "sale," used in a contract of employment to sell land, will be construed as used in its ordinary meaning of a transfer of property for money, where it appears that the commissions of the agent were graded in three classes, viz., where he found the purchaser himself and made the sale; where he assisted in making sale to parties sent to him by his employer or the latter's agents; and where the employer sought the agent's advice in accepting applications of prospective purchasers.

3. PRINCIPAL And agent—limit of the rule that broker may recover though principal sells on different terms. The rule permitting a recovery of commissions by a real estate broker in case the principal sells to a purchaser produced by the broker upon terms different from those of the broker's contract, is limited to mere departures from the contract, such as reduction of price, extension of time of payment, etc., and does not extend to a transaction wholly different from the one contemplated by the brokerage contract.

4. SAME a broker is not without remedy if he renders services not contemplated by contract. A disposition of land wholly different from that contemplated by the contract between the owner and the real estate broker employed to sell the land does not entitle the

broker to recover upon the contract, but if the owner receives the benefit of the broker's services, rendered at the instance of such owner, he is liable upon a quantum meruit.

5. SAME what is not a "sale" such as entitles agent to commission. A transfer of a large tract of land, made to carry into effect a plan to organize a corporation and consolidate the interests of the owners of the land with the interests of an irrigation company, so as to enhance the value of the land by securing irrigation, is not a "sale" in the ordinary sense of that term, such as entitles a field agent of the land owners to commissions under his contract which contemplates ordinary sales, even though he rendered valuable services, at the instance of his employers, in effecting the consolidation, but he is entitled to recover upon a quantum meruit.

APPEAL from the Branch Appellate Court for the First District; heard in that court on appeal from the Superior Court of Cook county; the Hon. GEORGE A. DUPUY, Judge, presiding.

This was an action of assumpsit brought in the superior court of Cook county by Thomas Hinsley, now deceased, against the appellants, co-partners doing business under the name of Close Bros. & Co., of Chicago, to recover for services claimed to have been rendered by Hinsley, under a contract, in effecting the sale of 96,099 acres of land in the western part of the State of Kansas. Appellants were the agents of the owners of these lands, who lived in England. Under date of April 2, 1887, a contract was entered into between Hinsley and appellants whereby Hinsley was employed by appellants to act as their agent at Hartland, Kansas, for showing and selling lands along the line of the Atchison, Topeka and Santa Fe railway in south-western Kansas, to, reside on or near said lands, to negotiate sales and to forward to appellants applications of prospective purchasers, but without authority to execute contracts or to make conveyances. On December 10, 1888, another agreement, which superseded that of April 2, 1887, was made between appellants and Hinsley. It provided that Hinsley

should act for Close Bros. & Co. as their agent for showing and selling the Kansas lands; that he should negotiate sales, forward applications and receive binding money, but should not execute contracts or conveyances and should not show or sell lands, nor forward applications for the same, so as to cut or subdivide the sections disadvantageously. Hinsley agreed to use all reasonable diligence in finding purchasers and in making sales, and to act for the best interests of Close Bros. & Co. in all matters confided to him during his agency. As compensation for such services Close Bros. & Co. agreed to pay Hinsley commissions, as follows: First, on sales made to purchasers found by him and effected by, through or under his personal efforts, without assistance from other parties or from Close Bros. & Co., twenty-five cents an acre; second, on sales of lands sold by Close Bros. & Co. or by their other agents, through the assistance of Hinsley, ten cents an acre; third, on all sales made by Close Bros. & Co. or their agents resident along the line of the railway in south-western Kansas, without the assistance of the second party but under his advice, five cents an acre. The agreement went into effect January 1, 1889, and could be terminated by either party on giving one month's notice in writing. Hinsley was not to be entitled to any commissions on sales consummated after the expiration of one month from the giving of such notice.

The evidence shows that the lands were arid and that Hinsley soon discovered that they could not well be sold unless some means of irrigation was provided. The Amity Land and Irrigation Company, a Colorado corporation, owned certain lands and certain water rights in Colorado, including a ditch some seventy-six miles long, which extended from a point on the Arkansas river, in Colorado, to within about six miles of the Kansas State line. Hinsley learning of this ditch, and having been directed by appellants to be on the watch for any irrigation ditches that could be extended to the Kansas lands, during the spring of 1894