mage having died prior to the probate of the will, letters testamentary have been issued to another.

The court found the issues for the complainant in the partition suit and decreed partition of the said east 112 feet of lot 7, in block 16, between the appellees. The decree further found that L. V. Pike was a bona fide innocent purchaser for value of said lot 10, in block 16, and that the value of said lot 10 at the time of the death of Ann Eliza Terry was $10,000, and decreed that said Maggie A. Cassem, as executrix of the last will and testament of Randall Cassem, should pay to appellees the sum of $11,700 in due course of administration, being the value of said lot 10 at the time of the death of Ann Eliza Terry, together with interest thereon. In the will case the court found and decreed that the instrument established as the will of Richard Terry and admitted to probate in the probate court of Kane county on September 26, 1910, was the last will and testament of the said Richard Terry, deceased. Separate appeals were prayed and allowed from these decrees to this court, and the causes have again been consolidated here.

It is contended on the part of appellees that appellant, Maggie A. Cassem, as a remote grantee of an heir-at-law of Richard Terry, was not a "person interested," within the meaning of the statute providing for the contest of wills, and was, therefore, not authorized to maintain her bill to set aside the last will and testament of Richard Terry. Section 7 of the act in regard to wills provides that when any will shall be admitted to probate, any person interested may, within one year after such probate, contest the validity of the same by a bill in chancery. The words "any person interested," mean any person who has a direct, existing, pecuniary interest which will be detrimentally affected by the probate of the will. (McDonald v. White, 130 Ill. 493; Selden v. Illinois Trust and Savings Bank, 239 id. 67; see, also, Adams v. First M. E. Church, 251

id. 268.) Appellant, Maggie A. Cassem, had such an interest and had the right to file this bill. Her interest existed at the time the will of Richard Terry was admitted to probate, and it was a pecuniary interest which was vitally affected by the probate of the will. While she was not an heir-at-law or a devisee of Richard Terry, she was a remote grantee of an heir-at-law by virtue of conveyances made before the will was admitted to probate, and was such an interested person as was entitled to maintain this suit.

Dr. W. T. Patterson had removed to the State of Louisiana prior to the time this litigation arose and his deposition was taken in the partition suit. The bill for partition, among other things, set up the execution, loss and probate. of the last will and testament of Richard Terry. Dr. Patterson testified fully as to the circumstances surrounding the execution of the will, its attestation and the contents of the same. His deposition was read and considered upon the hearing of the consolidated causes, and appellant, Maggie A. Cassem, now contends that the same was not competent to be considered in the will case. The stipulation upon which the order consolidating the causes was based, and which was filed in the will case, provided that that case should be tried by the court without a jury and should be consolidated with the partition suit and the issues tried together by the court upon reasonable notice to both sides. The basis for the objection is, that this deposition was taken before the bill was filed in the will case and that no opportunity was had to cross-examine Dr. Patterson in the light of the issues presented in that case. The validity of the will of Richard Terry, as probated, was drawn in question by the pleadings in both suits. While it is true that the deposition of Dr. Patterson was taken before the filing of the bill in the will case, it is also true that it was taken before the above stipulation was entered into. The same attorneys represented appellant, Maggie A. Cassem,

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in the will case who represented her individually and as executrix in the partition suit. When the deposition of Dr. Patterson was read upon the hearing of the consolidated causes, no objection was made to this testimony being considered in the will case. Under these circumstances, and in view of the fact that one of the evident purposes of consolidating the causes was to avoid the expense of duplicating the testimony, it cannot now be urged that there was any error in considering this testimony in so far as it was applicable to the issues in each of the consolidated

causes.

It is urged that Randall Cassem was a bona fide purchaser without notice of the existence of the last will and testament of Richard Terry, and that for this reason the decree in the partition suit is erroneous. Prior to the death of Richard Terry, and for some time thereafter, Dr. Patterson was a practicing physician residing in the city of Aurora. He was the family physician of Richard Terry and was on intimate terms with him. He was also acquainted with Randall Cassem, a practicing attorney of the city of Aurora, whom he had employed on various occasions. Prior to the death of Richard Terry, Randall Cassem suggested to Dr. Patterson that Richard Terry should make his will. Dr. Patterson informed him that he had done so, and Cassem asked him what disposition he had made of his property. Dr. Patterson informed him that the will was a very short one; that he had left his wife a life estate in all of his property and had devised the remainder to his two grandchildren. After the death of Richard Terry and prior to the date of the first conveyance to Randall Cassem by Ann Eliza Terry, Randall Cassem requested Dr. Patterson to secure the will of Richard Terry and deliver it to him. Dr. Patterson informed him that he had no right to make any such disposition of Terry's will, and Randall Cassem thereupon offered Dr. Patterson a consideration if he would secure this will and turn the same

over to him. This Dr. Patterson refused to do and immediately communicated this circumstance to Ann Eliza Terry and insisted that the will be probated. The conveyances by Ann Eliza Terry to Randall Cassem followed. Thereafter, in October, 1892, Randall Cassem filed his petition in the county court of Kane county, setting up the death of Richard Terry, representing that he died seized of certain real estate, describing the real estate above mentioned, setting out the heirs, and representing himself to be a purchaser of the said real estate from the widow and heir, and that he believed the estate should be immediately administered upon for the proper perfection of the title to said real estate, and asked that he be appointed administrator. A photographic copy of this petition appears in the record and discloses that the same was prepared upon one of the printed blank forms ordinarily used in the probate courts of this State. In this petition, after alleging the date of the death of the deceased, the printed words, “leaving no last will and testament as far as your petitioner... know.. or believe..," were stricken out. The proof of death is made by the oath of Arthur Terry, the body of which appears in the handwriting of Randall Cassem, and it also omits to state that Richard Terry died leaving no last will and testament. Letters of administration were issued to Randall Cassem. The only testimony offered by appellant in her behalf in the consolidated causes was a letter dated May 12, 1888, and written by G. A. Dulmage, the executor named in the last will and testament of Richard Terry, to C. I. McNett, the scrivener of and one of the witnesses to said will. The letter discussed the necessity of probating Richard Terry's will, of the existence of which Dulmage was aware. That portion of the letter particularly relied on is the following: "Mrs. Terry thought that as all was willed to her for her use and disposal, and there was no debts but the doctor's bill and burial lot, perhaps she could get along without the expense of the probate court." This

letter was identified by McNett during his cross-examination, and appellees made no objection to its admission. It is not shown that Randall Cassem ever saw this letter or knew its contents or that he ever talked with Dulmage or McNett. But even if Dulmage had received the information from someone that Richard Terry had devised his property to his wife for her use and disposal, that could not overcome the positive testimony of Dr. Patterson and McNett as to the contents of the will or affect the testimony of Dr. Patterson that he told Randall Cassem what the contents of the will were and that the remainder of the property had been devised to the grandchildren. Randall Cassem was not a bona fide innocent purchaser without notice. He had notice of the rights of appellees and of their interest in this property. His conveyance of a part of the real estate to Pike and the devise to his wife of the remainder were in fraud of the rights of appellees, and they were entitled to recover as against Randall Cassem and his representatives.

It is insisted that the loss or destruction of this will was not sufficiently proven to permit appellees to prove the contents thereof. It was conclusively shown that prior to his death Richard Terry had executed a last will and testament and that that instrument was in existence and in the possession of Ann Eliza Terry after his death. One of two things then must be true at the present time: either this instrument has been lost or destroyed, or it is still in existence. It is argued there is no proof that sufficient search has been made for the instrument. Section 12 of the Wills act provides that any person who may have in his or her possession any last will and testament of another for safe keeping or otherwise, shall immediately upon the death of the testator deliver up said will to the county court of the proper county, and a penalty is provided for failure to do so. Appellees traced the will into the possession of Ann Eliza Terry. It will not be presumed that she destroyed