| Ill. | Sep 15, 1877
delivered the opinion of the Court:
The General Assembly of the State, in the revision of 1874, p. 307, see. 25, clause 5, authorized counties to erect and provide for a county insane asylum. Previous to that time, counties possessed no such authority; but they had the power to erect and maintain a county poor-house, and other necessary buildings in connection therewith, and to establish and maintain a farm for the employment of the poor. It was by virtue of the last named power that Cook county erected the building which it denominates an insane asylum, and for which, as such, it lays claims to the bequest in controversy.
This building is but a branch of the poor-house of Cook county, one in which are kept separately a particular class of its poor, the insane. True, it appears that some few paying patients have been admitted, but this was without authority of law. The bequest was not to any existing institution, but it was to an insane asylum which should be “organized, located and established” in the future, by virtue of some State or municipal authority, or some charter which should give to the institution a character of permanence and stability. As an institution, this so called insane asylum in Cook county was just as much “organized, located and established” a long time before the making of the will, as it was subsequently. Previous thereto, there were the separate buildings upon the poor-farm, in Avhich the insane poor Avere separately kept.
Subsequently to the will, there Avas only erected an additional building upon the poor-farm, and it called an insane asylum . It Avas but an enlargement of previously existing accommodations for insane paupers There Avas a formal location of the precise site of the building subsequently, but this did not meet the idea of. location as mentioned in the bequest. The language of the bequest contemplates an institution to be established under and by virtue of some “ authority ” to establish and maintain an insane asylum, and as before observed, counties, previous to 1874, had no authority in this regard.
Cook county was the home of the testator; the arrangements there for the care of its insane poor had existed for a long time previously, separate buildings being established and maintained for the purpose, and may reasonably be presumed to have been known to the testator when he made his will. If the so called insane asylum in Cook county comes within the intendment of the bequest, the inquiry naturally arises, why, then, was' not the bequest made to Cook county, for the use of its insane poor?
All the difference between now and then is, that the present building is larger and more expensive and commodious than the former one, and it is called an insane asylum. It is quite restricted in its character, being only for a particular class, the insane paupers of Cook county, and is really no more than a department of the poor-house. It was not changed in character by bestowing upon it the appellation of insane asylum. We are of opinion that it does not meet the requirements of the language of the bequest, and that it is not an institution of that character which was contemplated by the testator as an insane asylum.
And under the second clause of the bequest, too, we are of opinion the Northern State Insane Asylum would be entitled to it on the ground of priority. That clause provided, that in case an effort reasonably promising success should be made by some competent authority to establish an insane asylum, then the income of the property should go toward the erection of the buildings, and contemplating evidently that it should have the property itself upon being put in operation within the time specified.
The passage of the act of April 16, 1869, by the General Assembly, for the establishment by the State of the Northern insane asylum, constituted, we think, such an effort as is above named, entitling that institution to the income toward the erection of its buildings, and to the property itself, on going into operation, as it did, within the time limited. It was some time after the passage of this act when the county of Cook first conceived the project of erecting its so called insane asylum, and of thereby securing this bequest. The fact of the sooner completion of its building should not, we think, displace the priority gained by the other institution.
The decree will be reversed, and the cause remanded for further proceedings in conformity to this opinion.
Decree reversed