CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ILLINOIS.

Maggie Adelia CASSEM, Appellant, vs. KATE TERRY PRINDLE et al. Appellees.

Opinion filed February 20, 1913-Rehearing denied April 2, 1913.

1. WILLS-remote grantee of heir has a right to file bill to contest will. A remote grantee of an heir-at-law under a conveyance made by the heir before the probate of a will which, if valid, will destroy the grantee's title, has such an interest in the will as entitles her to file a bill in chancery to contest its validity.

2. SAME-when devisees under a lost will are entitled to partition. Where a will giving a life estate in land to the testator's wife, with remainder to his grandchildren, has disappeared and has not been probated, one who obtains title to the land from the testator's son and the widow, with full knowledge of the will and the grandchildren's rights thereunder, is not a bona fide purchaser, and when the will is subsequently probated as a lost will the grandchildren are entitled to partition as against the wife of such grantee, to whom he devised the property at his death.

3. SAME when devisees are entitled to recover value of land, with interest. Where part of the land obtained by the grantee of an heir and the widow, with knowledge that the fact of the existence of a will leaving the remainder in fee in the land to the testator's grandchildren was being concealed, is sold by him to an innocent purchaser for value the latter will be protected, but upon the probate of the will as a lost will the grandchildren are entitled

to recover from the estate of the fraudulent grantee the value of such land at the time of the death of the life tenant, with interest.

4. SAME meaning of the words "any person interested," used in section 7 of Wills act. Section 7 of the Wills act, giving the right to file a bill in chancery to contest a will to "any person interested," means any person who has a direct, existing, pecuniary interest which will be detrimentally affected by probate of the will.

5. SAME when objection to a deposition because of no opportunity of cross-examination cannot be upheld. Where the stipulation upon which an order consolidating a partition suit and a suit to contest a will is based provides that the case shall be tried without a jury, and the contestant is represented by the same counsel in both suits, in each of which the validity of the will is put in issue by the pleadings, the contestant cannot insist, on appeal, that a deposition of a subscribing witness, taken before the stipulation was entered into and admitted without objection to its being considered in the will case, was not admissible for the reason that it was taken before the will case was begun and without opportunity for cross-examination by the contestant.

6. SAME what makes a prima facie case that the will was lost. Clear proof of the execution, attestation and contents of a will, and that the will was last seen in the possession of the widow some weeks after the testator's death, justifies the presumption that the widow performed her duty under the law and delivered the will to the probate court, and such proof, coupled with the testimony of the clerk of the probate court that he has made diligent search among the files and records of his office and has been unable to find the will, makes a prima facie case that the will has been lost.

7. SAME-witnesses testifying to the contents of lost will need not give its exact language. To establish the contents of a lost will it is not essential that the subscribing witnesses, by whom it is sought to make the proof, shall be able to repeat its exact language, and it is sufficient if they are able to recollect with certainty the substance of the will, which is a very simple one.

8. SAME when alleged error in admitting order of the probate court in evidence will not reverse. In a consolidated cause, consisting of a bill for partition and a bill to contest a will, alleged error in admitting in evidence the order of the probate court admitting the will to probate will not reverse, where the cause was tried by the chancellor without a jury and there is sufficient competent evidence of the validity and contents of the will to sustain the decree.

9. LACHES when failure of the remainder-men to assert rights does not constitute laches nor raise estoppel. Remainder-men are not obliged to assert their rights against the grantee of the life

tenant before the death of the life tenant notwithstanding the grantee's deed purports to be a conveyance of the entire title, and the facts that during the life tenant's lifetime they do not assert any rights against the grantee nor seek to prevent him from making valuable improvements do not constitute laches nor raise an estoppel, where he had knowledge of the existence of their rights when the deed was made.

10. SAME-grantee of a life tenant does not hold adversely to remainder-men until the life tenant's death. The grantee of a life tenant, even though he supposes he has the fee as the deed purports to convey, and retains possession, pays the taxes and makes improvements, does not hold his possession adversely to the remainder-men until the death of the life tenant puts the Statute of Limitations in operation.

APPEAL from the Circuit Court of Kane county; the Hon. DUANE J. CARNES, Judge, presiding.

BOTSFORD & MCCARTHY, (RUSSELL & MCNERNEY, of counsel,) for appellant.

C. F. IRWIN, R. S. EGAN, JOHN M. RAYMOND, and JOHN K. NEWHALL, for appellees.

Mr. JUSTICE COOKE delivered the opinion of the court:

On the 12th day of October, 1910, Kate Terry Prindle, one of the appellees herein, filed her bill in the circuit court of Kane county for the partition of certain real estate therein described between her sister, Laura Terry Hunt, (also one of the appellees herein,) and herself, title to said premises being claimèd by virtue of the last will and testament of Richard Terry, the grandfather of the appellees, executed March 17, 1888, and admitted to probate in the probate court of Kane county on September 26, 1910, as a will which had been lost or destroyed after the death of the testator. Thereafter, on July 28, 1911, Maggie A. Cassem, the appellant herein and one of the defendants to the partition suit, filed her bill in the circuit court of Kane county to contest the said last will and testament of Rich

ard Terry, deceased, which had been so admitted to probate on September 26, 1910. By stipulation a jury was waived in the will case and the causes were consolidated in the circuit court and were heard together.

On the hearing it was shown that Richard Terry, the grandfather of appellees, died April 1, 1888, leaving surviving him his wife, Ann Eliza Terry, and his son, Arthur Terry, as his only heirs-at-law. The appellees were daughters of the said Arthur Terry and at that time were thirteen and fifteen years of age. On or about March 17, 1888, Richard Terry employed C. I. McNett, an attorney residing in the city of Aurora, to draw his last will and testament, and the same was executed by him on that date in the presence of McNett and Dr. W. T. Patterson, then of Aurora, who subscribed the same as witnesses. The will was left in the custody of Richard Terry, who on that occasion requested Dr. Patterson to see that the same was filed for probate after his death. About three weeks after the death of Richard Terry, Dr. Patterson called upon Ann Eliza Terry, the widow, and requested her to deliver to him the will in order that he might file the same for probate, as he had promised the testator. The will was produced at that time but was not delivered to Dr. Patterson, as Mrs. Terry expressed a desire to consult with her son, Arthur, before delivering the same to him. This is the last time Dr. Patterson ever saw the will, and the last time, so far as is shown by the proof, that the instrument was seen by anyone. This particular instrument was never filed for probate. Richard Terry died seized of lot 10 and the east 112 feet of lot 7, in block 16, of the original town of Aurora, Kane county, Illinois. On April 20, 1888, Arthur Terry and his wife by quit-claim deeds conveyed the said real estate to the said Ann Eliza Terry, and on July 26, 1889, she, in turn, conveyed by warranty deed said lot 10, in block 16, to one Randall Cassem, an attorney who resided in the city of Aurora, the expressed consideration

being $100. On February 4, 1890, Ann Eliza Terry also conveyed by warranty deed to said Randall Cassem the remainder of the real estate of which her husband died seized, being the east 112 feet of lot 7, in said block 16, subject to an encumbrance of $900, the expressed consideration being $3500. On October 22, 1897, Randall Cassem and said. Maggie A. Cassem, his wife, conveyed by warranty deed to one L. V. Pike said lot 10, in block 16, and said Pike immediately thereafter went into actual possession of said premises, and from that time has been in the continuous and exclusive possession of the same and has occupied the same as his homestead. On November 14, 1909, Randall Cassem died testate, leaving appellant, Maggie A. Cassem, his widow and sole devisee under a last will and testament, in which said Maggie A. Cassem was also appointed executrix. Ever since February 4, 1890, the said east 112 feet of lot 7, in block 16, have been in the possession of the said Randall Cassem and his devisee, Maggie A. Cassem, and have been occupied by them during all of that time as a homestead. Arthur Terry died May 1, 1905, and the said Ann Eliza Terry died December 12, 1908. As has been stated, the last will and testament of said Richard Terry was established and admitted to probate in the probate court of Kane county on September 26, 1910, upon the petition of appellees, who represented that the same had been lost or destroyed since the death of said Richard Terry. By said last will and testament so established and admitted to probate, said Richard Terry devised and bequeathed to his wife, Ann Eliza Terry, for and during her natural life, all of his property, both real and personal, of which he should die seized, and at her death he devised and bequeathed the same to his grandchildren, Kate Terry (now Kate Terry Prindle) and Laura Terry, (now Laura Terry Hunt,) the appellees herein. G. A. Dulmage, a resident of the city of Chicago, was appointed executor.

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