with this stream, and it is upon the theory that this stream constitutes a main ditch or common outlet for all the lateral ditches that appellants petitioned to have the district formed. Section 76 does not authorize the formation of a district by user under such circumstances. It is only in cases where the complete system of drainage voluntarily constructed consists of artificial ditches constituting a continuous line or line and branches that this section authorizes the formation of a drainage district. A stream or watercourse still in a state of nature cannot be described or considered as a ditch constructed by the voluntary action of adjoining land owners; nor is the situation at all altered by reason of the fact that the adjoining land owners may have drained their lands by connecting their tile or open ditches with such natural stream or water-course. Appellants complain of the findings made by the county court in the order dismissing the petition, on the ground that they are not a proper part of the order and will operate as a bar to the filing of another petition in the future, and insist that the order should have been one simply dismissing the petition. The order is one dismissing the petition, and the finding that the land owners had not by voluntary action constructed ditches which form a continuous line being amply supported by the evidence, was a proper finding upon which to base the order. This judgment should, and will, operate as a bar to the filing of another petition under the conditions existing at present. The finding that the estimated cost of the particular improvement proposed by the commissioners would exceed the benefits will not bar the formation of a drainage district including or comprising these same lands under some other section of the statute. The judgment of the county court is affirmed. MARGARET HATHAWAY et al. Appellees, vs. William A. Cook et al. Appellants. Opinion filed February 20, 1913-Rehearing denied April 3, 1913. 1. DEEDS-recording of a deed raises a presumption of delivery. The recording of a deed raises a presumption of delivery, but such presumption is not conclusive and may be rebutted by proof. 2. SAME-parol evidence is admissible to show intention of the parties concerning delivery. Delivery of a deed is essential to its complete execution, but the question of delivery is largely a matter of intention, and for the purpose of showing such intention parol evidence is admissible. 3. SAME when deed is a present grant of a future estate. A deed containing a provision that it is not to take effect until after the death of the grantor will be sustained as a present grant of a future estate if the deed has actually been delivered to the grantee in the lifetime of the grantor. 4. SAME fact that deed is found in grantee's possession raises a strong presumption of delivery. The fact that a duly executed deed is found in the possession of the grantee raises a strong presumption that it has been delivered, and such presumption can only be overcome by clear and convincing evidence. 5. HOMESTEAD husband must join wife in deed to him though she reserves life estate. A deed to homestead premises from the wife to the husband must be joined in by the husband in order to pass title to the homestead estate even though the wife reserves a life estate in herself, and if not so joined in, the deed conveys only the excess in value over the homestead estate, and the latter descends to the wife's heirs and may be partitioned. 6. APPEALS AND ERRORS-when party cannot complain of incompetent evidence. Where no objection is made to the competency of an administrator to testify on behalf of the complainants and most of the incompetent evidence given by him is drawn out, on cross-examination, by defendants' counsel, the latter cannot, on appeal, complain of such evidence. APPEAL from the Circuit Court of Champaign county; the Hon. SOLON PHILBRICK, Judge, presiding. RAY, DOBBINS & DOBBINS, (ROY C. FREEMAN, guardian ad litem,) for appellants. HENRY I. GREEN, WILLIAM G. PALMER, and FRANK T. CARSON, for appellees. Mr. JUSTICE CARTER delivered the opinion of the court: This is a bill filed by appellees in the circuit court of Champaign county asking to set aside a certain deed from Ann Jane Cook to Washington Cook, her husband, and to partition the forty acres of land described therein among the heirs of said Ann Jane Cook. Washington and Ann Jane Cook lived together for many years on the land in question. It was conveyed to her by the Illinois Central Railroad Company in 1872. On April 12, 1884, she signed and acknowledged a quit-claim deed to the forty acres to the said Washington Cook, reciting that it was made for the express and only purpose of correcting a former deed, which appears to have been executed on August 7, 1879. Said quit-claim deed contained the following clause: "It being understood that this deed is to go into effect upon the death of the grantor, Ann Jane Cook." It was dated August 7, 1879, (the same as the erroneous one,) and acknowledged April 12, 1884, and thereafter filed for record April 25, 1884. Mr. and Mrs. Cook continued to occupy the premises as their homestead until their respective deaths, she dying January 9, 1910, intestate, and he dying about a year later, testate. His will was dated in 1895, and by it he gave his wife the rents and profits of all the real estate and personal property during her lifetime, and after her death said real estate was to go to testator's son William A. Cook for his lifetime and then to said William's four children. All the personal property, except the household furniture, was given, on Mrs. Cook's death, to the three daughters of the testator and the other son, George Cook. Washington Cook appears to have owned other real estate besides the forty acres in question. The will did not describe any particular land. The evidence was taken before a master in chancery, who reported that the deed in question was never delivered, and that as the land described was a homestead and the deed was made directly between husband and wife, said deed did not pass title to the homestead even if delivered; that the forty acres descended to the heirs-at-law of Ann Jane Cook, and that the deed should be set aside as a cloud and the land partitioned as prayed for in the bill. The court entered a decree in accordance with the master's findings. Appellees contend that this deed was never legally delivered but was intended by the grantor to be only in the nature of a testamentary disposition of her property, to be retained by her until after her death, and was therefore void. They further insist that it was recorded without her knowledge and consent. Ernest Lorenz testified that he had been for many years in the mercantile business in Dewey, a small town near where the Cooks lived, being a notary public and about the only business man in the place; that he had also been sheriff, justice of the peace, assessor and post-master; that Mr. and Mrs. Cook brought the instrument in question to his store, for acknowledgment, stating that they wanted the deed so fixed that if she died first Mr. Cook would get the land, and if he died first the deed was not to be good; that it was not to be recorded; that he advised them that it would be better to put the deed in some person's hands to hold, suggesting James R. Wilson. It appears that it was not placed in Mr. Wilson's hands but was filed for record a few days after it was acknowledged. It was offered in evidence, and bore on the back, in pencil, the words, "Return this to Washington Cook, Dewey, Ill.," which Mr. Lorenz testified was in his handwriting but that he had no recollection as to when and how he placed this writing on the deed; that he was postmaster at the time and frequently addressed letters and endorsed instruments that were to be sent to the recorder. This deed was found after Mr. Cook's death in a desk in the house on the land in question. The key to this desk appears to have been kept by Mr. Cook, although his wife had unlocked the desk at various times and placed papers therein. J. F. Sperling, a tax assessor, testified that when he went, after Mrs. Cook's death, to assess the property of Mr. Cook, the latter said: "Fred, that forty acres is in mother's name; mother is dead and gone now, and I want that changed back to my name;" that the witness replied that he did not have the authority to do so. It is clear from the testimony that what Mr. Cook wanted was that the name be changed on the assessor's books. Thomas Ogden, the tax collector, said that Mr. Cook told him that the land in question belonged to his wife and three other tracts belonged to Mr. Cook; that the latter usually gave him the money for the taxes; that he did not remember whether Mrs. Cook ever gave him any. C. W. Somers, a neighbor, testified that Mr. Cook told him the deed was made in his wife's name to protect her if he died first. V. A. Birkey stated that Mr. Cook told him the forty acres belonged to his wife. L. A. Smyers, an attorney, who formerly resided at Rantoul, a city not far from the Cook land, testified that the deed in question was in his handwriting but he did not recollect definitely the circumstances as to its being drawn up. The appellant William A. Cook and two of his sisters, who are appellees, testified before the master with reference to the deed and how their father and mother understood its effect. As William A. Cook was executor and defendant in the lower court and his sisters were complainants, their testimony, under ordinary circumstances, could not properly be considered except as to matters occurring after Mr. Cook's death. (Hurd's Stat. 1911, chap. 51, sec. 2, p. 1156.) William A. Cook testified, without any objection being made to his competency, as to many matters occurring before the death of either his mother or his father, indeed, most of this evidence was brought out on cross-examination by counsel for appellees. They cannot now object to the |