the same, but the natural presumption to be indulged, and especially in view of the insistence of Dr. Patterson that the will should be probated, is, that she delivered the same to the probate court as the statute provides. The clerk of the probate court of Kane county was called and testified that although he had made a careful and exhaustive examination of the records and files in his court, and particularly of the places in which wills were accustomed to be kept, he was unable to find there any last will and testament of Richard Terry. This, at least, was sufficient to make a prima facie case of the loss of the will.

It is next contended that the contents of the will of Richard Terry were not proven with that degree of certainty required in cases where wills have been lost or destroyed. No copy had ever been made of the will, and it was necessary to rely upon the memory of those who had read it and knew its contents. Patterson and McNett testified that they remembered clearly the substance of the will, and while they did not pretend to give the exact language in which it was couched, they agreed that the testator had devised all of his property to his wife during the period of her natural life and had devised the remainder to his two grandchildren, the appellees. Terry had talked repeatedly with Dr. Patterson concerning the making of his will, and Patterson had attempted to draft the same for him before McNett was employed. While it is true that twenty-two years had elapsed between the time of the execution of the will and its admission to probate, this will was a very simple one in its provisions, and there is nothing improbable in the fact, as testified to by both of these witnesses, that they were able to recollect with certainty the substance of the will. It was not necessary that they be able to testify to its exact language, and the testimony of these witnesses was sufficient to establish the contents of the will. In the will case the burden was upon appellees, as proponents, to prove that the instrument in question was

the last will and testament of Richard Terry. By two witnesses it was proven that the will was executed and properly attested; that the testator at the time was of sound mind and memory; that the contents of the will were as established by the probate court, and, by one witness, that the will was still in existence for at least three weeks after the death of Richard Terry. This testimony stands uncontradicted.

It is urged that the court erred in admitting in evidence the order of the probate court admitting the will to probate, and a number of the decisions of this court are cited to the effect that this is not competent evidence and its admission in a doubtful case is error. These are all cases in which the cause was submitted to a jury and a different situation was presented than here. Where the issues are tried by the court without the intervention of a jury, the decree will not be reversed if there is sufficient competent evidence in the record upon which to sustain it.

It is finally urged that on account of the laches of appellees they are now estopped to claim the ownership of the land now in the possession of appellant, Maggie A. Cassem, or remuneration for that sold by Randall Cassem in his lifetime to Pike, the basis for this claim being, that during all the years succeeding the death of their grandfather, in 1888, down until after the death of their grandmother, in 1908, appellees have stood by and without objection witnessed the purchase of this property by Randall Cassem and his possession of the same and the placing thereon of valuable improvements by him. By the will of Richard Terry, his wife, Ann Eliza Terry, was given a life estate in these premises and was entitled to the possession. The possession of real estate by the tenant for life is not adverse to the remainder-man but is in legal contemplation the possession of the remainder-man. The remainder-man has no right of action for the possession until the death of the life tenant, and the Statute of Limitations will not

begin to run until the right of action accrues. (Mettler v. Miller, 129 Ill. 630; Weigel v. Green, 218 id. 227; Hollenbeck v. Smith, 231 id. 484; Schroeder v. Bozarth, 224 id. 310.) If the life tenant conveys to a third party by warranty deed, with the intention of passing the absolute title, and the grantee supposes the fee is being conveyed, such grantee will, in fact, hold adversely to the world, but he cannot avail himself of the rights of adverse possession, as against the remainder-man, during the lifetime of the life tenant. Such possession becomes adverse to the remainder-man only upon the death of the life tenant; (Mettler v. Miller, supra;) and this is true even though the possession of such grantee be coupled with the payment of taxes and the making of improvements. (Weigel v. Green, supra.) During the lifetime of their grandmother the appellees had no right of action for the possession of these premises, and while they cannot now recover that portion of the premises sold to Pike, they can recover the fair cash market value of the same at the time of the death of Ann Eliza Terry from the estate of Randall Cassem, as he. acquired the same with a full knowledge of the rights and interests of appellees. Appellees were under no obligation to assert any rights, as against Randall Cassem or his devisee, during the lifetime of their grandmother, or to advise Randall Cassem of their claim to the remainder in the premises under the last will and testament of their grandfather. Randall Cassem already had knowledge of that fact and of all the circumstances surrounding the making of the will and the fact of its existence after Richard Terry's death. Under these circumstances appellees had the right, as against Randall Cassem and his representatives, to institute proceedings to recover possession of the property at any time after the death of Ann Eliza Terry and before the running of the Statute of Limitations.

The decree of the circuit court in each of the consolidated cases is affirmed. Decrees affirmed.

JOSEPH KENNEDY et al. Defendants in Error, vs. GEORGE A. NEEVES, Plaintiff in Error.

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

I. APPEALS AND ERRORS—when alleged error in overruling motion for continuance is waived. Alleged error in overruling a motion by the defendant to continue the case for three weeks because of his sickness is waived, where defendant's counsel, when the case was called for trial, more than two weeks after the motion was overruled, waived a jury and made no objection to proceeding with

the trial at that time.

2. CONSTITUTIONAL LAW-constitutionality of Municipal Court act, as a whole, is not open for review. The question of the constitutionality of the Municipal Court act, as a whole, is not now an open one. (Richter v. Burdock, 257 Ill. 410, followed.)

WRIT OF ERROR to the Municipal Court of Chicago; the Hon. C. A. WILLIAMS, Judge, presiding..

GEORGE A. NEEVES, JR., and Leland K. NeevES, for plaintiff in error.

CHARLES S. MCNETT, for defendants in error.

Mr. JUSTICE FARMER delivered the opinion of the court:

Defendants in error, as plaintiffs, recovered in the municipal court of the city of Chicago a judgment against plaintiff in error for $814. On the trial plaintiff in error raised the question of the validity of the Municipal Court act, and a writ of error was sued out of this court to review the judgment.

The cause of action was a promissory note given by plaintiff in error to defendants in error for $761.50. The matters and transactions which resulted in the giving of the note were as follows: Plaintiff in error owned a large tract of farm land in Kankakee county, Illinois, upon which he was, in the years 1909 and 1910, having work done which caused the employment of a number of men. Sam

uel S. Swan was employed by plaintiff in error as superintendent or foreman of the work and resided in a house on the land. Plaintiff in error resided at Evanston. Defendants in error were merchants conducting a general store at Morocco, near the land. In the latter part of August or first of September, 1909, plaintiff in error called on defendants in error at their store and told them about the land he owned near there; that he was having ditching and other improvements done on the land and that Swan was his overseer. He expressed a desire to have Swan buy goods from defendants in error on his (plaintiff in error's) account, the bills to be settled by him every thirty days. He introduced Swan to defendants in error and had him give them his signature so that they might recognize orders given by him in case he should give any. Thereafter defendants in error furnished goods to Swan, and to others employed on plaintiff in error's land upon orders of Swan, until some time in December, 1910. Statements of the amounts of the monthly bills, not itemized, were made to plaintiff in error and he made payments from time to time until June, 1910, the total payments made amounting to a little more than $1000. Defendants in error continued furnishing goods to Swan, and to others on his orders, until about the middle of December. The bill then amounted to $761.50. In January, 1911, one of defendants in error went to see plaintiff in error in Chicago and requested payment. Plaintiff in error could not pay the bill at that time and gave his note for it, which is the note sued on. that time said defendant in error gave plaintiff in error an itemized statement of the bill, but plaintiff in error claims he did not examine it before giving the note. He claims he examined it afterwards, and discovered a large amount of goods had been furnished Swan, or to others on his orders, which were not of the character authorized to be sold him by the arrangement between plaintiff in error and defendants in error, and he also claimed he then discov