Lease, 248 id. 187, are relied upon to sustain this position, and they state that two municipal corporations cannot exercise jurisdiction over the same territory, for the same purpose, at the same time. In those cases, however, the controversy arose between the drainage districts and unwilling land owners over whom jurisdiction was sought to be acquired and exercised against their consent, or between contesting drainage districts. This case presents a different situation. By connecting the drains of this quarter section with those of the Hammond Mutual Drainage District and through them carrying the drainage of the land to that district's ditch, the land owner is deemed in law to have voluntarily applied to have the land included in the district. Appellant has obtained the benefit of the drainage of her land to some extent through the ditches of the district for which she has not paid, and to the extent that her land is benefited it ought to be assessed by the district. By the voluntary application to be included in the district the owner of the land is estopped to claim that the district was without authority to grant the application, include the land and assess it for the benefit it has received. By an application formally made by the owner and allowed, the land was annexed in 1887 to drainage district No. 3, and by another application made by the owner the same land was annexed in 1914 to the Hammond Mutual Drainage District. The owner could not complain that by his own act his land was included in two districts, and the relator, who is his successor in title, cannot complain. No conflict of jurisdiction has arisen between the two drainage districts. Each can make assessments only for the benefits conferred on the land by the drainage through the drains of that district. If any conflict of jurisdiction should arise between the two districts as to this land it can be determined when it arises. The judgment of the circuit court will be affirmed. Judgment affirmed.

Mr. JUSTICE FARMER, dissenting.

(No. 10814.)

Barbara R. KLEIN, Appellee, vs. T. Henry KLEIN et al. Appellants.

Opinion filed December 21, 1916-Rehearing denied Feb. 14, 1917.

1. DowER—a proceeding to assign dower is in the nature of a proceeding in rem. A proceeding against the heirs to assign dower is not one in personam but is in the nature of a proceeding in rem, although, when the lands are not susceptible of division and a jury has fixed the yearly value of the dower, the decree may run against the heirs and require them to pay yearly dower pro rata, according to their respective interests in the premises.

2. SAME-when decree should not be against the heirs. Where dower is allowed out of the net rents, issues and profits the decree should not be against the heirs or their representatives or assigns, but should be that the widow is entitled to receive, in her own right, one-third of the net rents, issues and profits as a tenant in common with the owners of the fee.

3. SAME-effect where dower is assigned out of rents and profits. Where dower is assigned out of rents and profits the widow is entitled to receive her one-third of all rents, issues and profits, but if there are no rents, issues or profits for any period then she is entitled to receive nothing while that condition continues.

4. SAME-effect where jury ascertains yearly value of dower. Where a jury is empaneled to fix the yearly value of dower, their estimate should not be based on the condition of the rents and profits at the time dower is assigned but should be based upon a consideration of the probable condition of the estate during the lifetime of the dowress, as the amount fixed by the jury remains unchanged, regardless of changes which may occur in the rents, issues and profits.

5. SAME when decree should not attempt to average rents and profits. In a proceeding to assign dower, where neither party asks for a jury but the cause is referred to the master in chancery to ascertain the widow's damages, and the parties acquiesce in the payment by the heirs to the widow of one-third of the net rents of property under lease, the decree should not attempt to average the rents and decree payment of the average in lieu of dower, but should provide that the widow shall have one-third of the net rents, issues and profits as collected each year.

6. SAME-decree should not require payment of one-third of the rents in advance. Where the widow is allowed one-third of the

net rents, issues and profits as dower, the decree should not require the payments to her to be made quarterly in advance, as her interest terminates at her death, which might occur before the termination of the quarter for which she had received her portion of the rents, in which case she would have received money to which the reversioners were entitled.

7. SAME what is not proper practice in assigning dower in the homestead property. In assigning dower to the widow in homestead property occupied by her, it is not proper practice to estimate the value of the premises, deduct $1000 for the homestead estate and allow five per cent on one-third of the remainder as dower, but in such case a jury should be empaneled to fix the yearly value of the dower interest.

8. SAME when allowance of a sum as damages for dower in homestead premises is error. It is error to decree to the widow $250 per year as damages for her dower in homestead premises, which have been occupied by her and been in her possession, and which, so far as the evidence shows, were non-productive, as she is entitled, until dower is assigned, to the exclusive possession of the homestead premises and to their whole profits.

9. SAME-on petition for assignment of dower petitioner is not entitled to solicitor's fees. On petition for assignment of homestead and dower the petitioner is not entitled to have her solicitor's fees taxed as part of the costs, as the provision of the act of 1869 allowing such course was repealed by implication by the revision of the Partition act in 1874. (Gehrke v. Gehrke, 190 Ill. 166, followed.)

APPEAL from the Circuit Court of Cook county; the Hon. JAMES S. BAUME, Judge, presiding.

EDWARD J. KELLEY, and JOSEPH H. MUHLKE, for appellants.

CHARLES L. WOOD, and E. F. MASTERSON, for appellee.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the

court:

On February 28, 1914, Henry P. Klein departed this life in the city of Chicago, intestate, leaving him surviving appellee, Barbara R. Klein, his widow, and appellants,

T. Henry Klein, Joseph H. P. Klein, Andrew Fred B. Klein and Agnes Klein, (also known as Sister Marie Aileen,) as his heirs-at-law. He died seized and possessed of three tracts of land in the city of Chicago, which for convenience will be designated as the Halsted street, the Clark street and the Belmont avenue properties. He resided on the Belmont avenue premises at the time of his death. On March 5, 1914, the widow served a written demand on the heirsat-law to set off her dower and homestead in the property. Appellants neglected to comply with such notice, and on October 10, 1914, she filed her petition in the circuit court of Cook county praying that dower and homestead be assigned to her in the premises in the manner and according to the provisions of the statute in such case made and provided or that an allowance of a lump sum be made to her in lieu of dower. Appellants answered, admitting appellee was entitled to dower and homestead and that the same had not been assigned to her, but denying any claim or demand had been served upon them to assign or set off such dower and homestead. Replications were filed to the answer, and the cause was referred to a master in chancery to take the proofs and report the same, together with his conclusions as to the law and facts. The master made his report finding appellee was entitled to dower in each of the tracts of land in controversy and to a homestead in the Belmont avenue property, but that she was not entitled to be allowed and have taxed as a part of the costs in the case her reasonable solicitor's fees incurred in the proceedings, and recommended that a decree be entered substantially as prayed in the petition. Each party filed exceptions to the master's report, which were overruled on the hearing, and a decree was entered allowing appellee dower in each of the three pieces of property and a homestead in the Belmont avenue property but disallowing her claim for solicitor's fees. Both parties prayed and were allowed appeals from the decree. Appellants alone have perfected their appeal to this court.

Appellants have assigned as error that the court erred (1) in averaging the rents for a period of years and allowing dower to the complainant based upon such average; (2) in decreeing a homestead to complainant when, in fact, she had her homestead without interruption and hindrance from appellants; and (3) in allowing damages for dower in the homestead property for a period of time when the same was in the exclusive control of the petitioner. Appellee has assigned as cross-error the refusal to tax reasonable solicitor's fees as a part of the costs of the proceeding.

It appears from the pleadings and proofs, in addition to the facts hereinbefore stated, that appellee was married to Henry P. Klein and that he was seized and possessed of the property above mentioned during coverture; that she is entitled to dower in the same, and that she had served a proper demand for assignment of dower on the heirs and that dower had not been assigned to her; that the Halsted street property is under lease for a period of ninetynine years from July 1, 1911, at an annual rental of $2750 for the first five years and of $3000 for the balance of the term, the lessees covenanting to pay all taxes and assessments of every kind and nature imposed upon it during the term of the lease, the rent to be paid in advance, in equal quarterly installments on the first days of January, April, July and October in each year; that the Clark street property is under lease from June 1, 1913, to May 31, 1923, at a rental of $250 per month to and including May, 1918, and of $325 per month during the remainder of the term, payable in installments on the first day of each month; that the Belmont avenue property is not under lease but was occupied by the deceased and appellee as a homestead, and appellee has since remained in the possession and occupancy thereof, its fair cash value being stipulated to be $16,000. It was further stipulated upon the hearing that the property in controversy was not susceptible of partition or division without material injury to the parties in interest; that