a life estate. But, if we read the words "her minor heirs" as "her minor children," it is still clear there was no intention that the minors should take immediately, because it is expressly stated that, in case of the death of either of them without issue, the property right shall revert back to the surviving children. If the intention had been to vest an interest in the lands in the minor heirs with their mother, Susan Bowles, as tenants in common with her, as is contended by complainants, the conveyance would have been to them, without any reference to the future, whereas the language used clearly shows that, as to them, it was only to take effect in the future,-the future period meant clearly being the death of the mother,-and vest the title in the children then living, or if any should be then dead, leaving issue, in such issue. If it be said there is a lack of clearness in the use of the terms employed, still we are of the opinion that the phrase, "in case of the death of either of the heirs without issue," as used in the deed, means the death of either of such minor heirs (or children), without issue, before the death of Susan Bowles; that by the words "property right," in the connection in which they are used, the grantor meant the right which such child would have at its death in the property, subject to the prior estate of Susan Bowles, the mother-in other words, its interest in the remainder. We see no legal reason why effect cannot be given to that intention when the proper time arrives. This view does not, however, sustain appellants' bill. Counsel insist that on this bill they are at least entitled to a partition of the lands, subject to the life interest of Susan Bowles. The bill seeks no such relief, as, manifestly, it could not at this time. Who will be entitled to take the property at the death of Susan Bowles, if the construction we place upon it be the correct one, can only be determined at her death. One or more of these complainants, or the defendant Susie H. Parrott, may then be dead, without issue, in which event his, her, or their interests would, under the terms of the deed, vest in the survivors, and hence the rights or interests of the respective parties cannot be determined now; and so, in any view of the case, the decree of the circuit court was proper. It will accordingly be affirmed. Decree affirmed.

BARDELL et al. v. BRADY et al. (Supreme Court of Illinois. April 21, 1898.) WILLS-ESTABLISHMENT TESTIMONY OF EXECUTOR COMPETENCY-REVOCATION - RIGHT TO OPEN AND CLOSE-EVIDENCE-ESTOPPEL. 1. Under the statute prohibiting a party interested from testifying in a civil action when an adverse party sues as devisee, unless when called as a witness by such adverse party, a devisee suing to establish a will cannot call the executor named in the will to testify on his behalf, though the executor is made a party defendant.

2. Where devisees sue to establish a will, and the heirs file a cross bill to establish a revocation thereof, it is within the discretion of the court as to which party shall be permitted to open and close the case.

3. Devisees offering a will and probate thereof in evidence are not thereby estopped to deny its validity, where they offered it so that it might be before the court in passing on a request to have it set aside.

Error to circuit court, Champaign county; Edward P. Vail, Judge.

Bill by Anna Brady and others against Melissa Bardell, and Francis M. Wright, as executor of the will of Solomon Nox, deceased, and others, to establish a will dated in 1890. and to set aside a revocation dated in 1892. Certain defendants filed a cross bill, making the complainants and said executor parties defendant, to set aside the will of 1890. The executor filed an answer to the cross bill, disclaiming all interest except that he is executor of said will. Judgment for complainants, and all the defendants to the original bill except the executor bring error. Reversed.

S. F. White, Cunningham & Boggs, and J. L. Ray, for plaintiffs in error. Roy Wright, for defendants in error.

PHILLIPS, C. J. On the 5th day of September, 1890, Solomon Nox executed his will, by which he directed to be paid to a brother and a niece $1,000 each, to be paid out of his personal property only, and the remainder of his personal property and a life estate in all his real estate, 160 acres, he gave to Anna Brady for life, with remainder to her children. The will of September 5, 1890, was written by Francis M. Wright, who was named as executor. On the 26th day of January, 1892, said Nox executed and acknowledged in due form, in the presence of witnesses, who attested the same, a revocation of the will of September 5, 1890, this latter instrument only purporting to revoke the former will. Prior to April 10, 1895, Nox died; and on the latter date the will of September 5, 1890, was admitted to probate by the county court of Champaign county, and letters testamentary were duly issued to Francis M. Wright as executor, who accepted the trust. The January 26, 1892, revocation of the will was by the county court of Champaign county duly admitted to probate. On the 20th day of May, 1893, Anna Brady and others filed their bill of complaint in the circuit court of Champaign county, setting forth the death of Solomon Nox, his ownership of real estate, the execution of the will of September 5, 1890, and alleging the same to be the true will of said Nox; also setting forth the revocation of January 26, 1892, and the probate of the above said instruments. It was further alleged in said bill that Nox was not of sound mind and memory, and was incapable of executing a will by reason thereof, at the time of the execution of the instrument of January 26, 1892, and praying that that instru

The

ment, together with the probate thereof, be set aside, and the will of September 5, 1890, be held as the valid will of said Nox. To this bill the heirs of Nox, among whom are the plaintiffs in error and Francis M. Wright, as executor of the will of September 5, 1890 (whose rights and interests as such executor were fully and completely set forth and averred), were made parties defendant. plaintiffs in error filed their answer, admitting the death of Solomon Nox, the ownership of the property mentioned in the bill, and that the plaintiffs in error were heirs, but denying that at the time of the execution of the will of September 5, 1890, Nox was of sound mind and memory, and denying that at the time of the execution of the will of date January 26, 1892, he was not of sound mind and memory, but averring that at the latter time he was of sound and disposing mind and memory. The defendant Francis M. Wright did not answer, and a default was entered as to him. Certain of the defendants to the original bill filed a cross bill, averring the facts with reference to the execution of the two instruments above mentioned, and averring that at the time of the execution of the will of September 5, 1890, Solomon Nox was not of sound mind and memory, and that the same were so impaired as to render him incapable of making any just disposition of his estate; that he was of sound mind and memory at the time of the execution of the revocation; that Albert Brady was in possession of the real estate left by Solomon Nox. The cross bill made the defendants in error (complainants in the original bill) and Francis M. Wright, as executor of Solomon Nox, parties defendant; and it prayed that the will of September 5, 1890, and the probate thereof, be declared null and void, and set aside, and the estate be distributed among the heirs of said Nox according to law. The answer of the defendants in error was substantially the same as the averments of the original bill. The separate answer of Francis M. Wright to the cross bill was, in substance, that he was duly appointed executor of the will of date September 5, 1890, and that, as to any other matters charged against him, he disclaims any and all interest, except that he is executor of said last will and testament.

An issue was made, on which a jury was impaneled, who found that the instrument of date September 5, 1890, purporting to be the last will and testament of Solomon Nox, was his last will and testament, and that the instrument of date January 26, 1892, purporting to be the will of Solomon Nox, is not the last will of Solomon Nox. A decree was entered dismissing the cross bill, and finding that the writing executed by Solomon Nox of date January 26, 1892, was null and void, and of no force or effect, and the probate thereof was set aside, and further ordering and decreeing that the will dated September 5, 1890, and the probate thereof, be, and they

are, confirmed, and that the complainants in the cross bill and the defendants to the. original bill, excepting Francis M. Wright, executor, should pay the costs. The defendants to the original bill, except Francis M. Wright, sue out this writ of error, and assign error in permitting Francis M. Wright, executor under the will of 1890, to testify in support of the will under which he was acting; in permitting complainants in the original bill and defendants in error to open and close the case; in refusing to instruct the jury that the defendants in error were bound by and could not dispute the last will and testament of Solomon Nox, dated January 26, 1892, after they had offered the same in evidence, together with the probate thereof; and in permitting defendants in error and complainants in the original bill to recall Francis M. Wright in rebuttal, and examine him at length.

On a bill to contest the validity and probate of a will, the executor is a proper party (Campbell v. Campbell, 130 Ill. 466, 22 N. E. 620), and may be liable for costs, which may be adjudged against him in certain contingencies in the event the probate is set aside, and the will declared null and void (Shaw v. Moderwell, 104 Ill. 64; Moyer v. Swygart, 125 Ill. 262, 17 N. E. 450). Francis M. Wright was made a defendant to the original bill, and also a defendant to the cross bill, but was called as a witness by the complainants in the original bill and his co-defendants in the cross bill, and was permitted to testify over the objections of his co-defendants in the original bill and the complainants in the cross bill. By the provisions of sections 1 and 2 in regard to evidence and depositions in civil cases, no party to a civil action, or person directly interested in the event thereof, shall be allowed to testify therein when any adverse party sues or defends as executor, administrator, heir, legatee, or devisee, unless when called as a witness by such adverse parties so suing as defendants, and except in certain other cases named in the statute. The original bill was filed to set aside the revocation of the will of September 5, 1890, and to declare the will of 1892 valid; and although Francis M. Wright, the executor under the will of September 5, 1890, was made a party defendant, that fact did not make him adverse to the complainants, and it is immaterial whether he was made a complainant or a defendant. Courts of equity will disregard mere matters of form, and will look to the substance, and see on which side of the controversy the real interest of a party to the suit who is interested therein lies, and determine the competency of the witness from his interest in the case, regardless of the mere question of pleadings, when the question is as to his interest in the case. Were the rule otherwise, the effect and force of the statute could be evaded. Pyle v. Pyle, 158 III. 289, 41 N. E. 999. The interest of Francis M. Wright, as clearly appears from

the averments of the original bill, was in sustaining the will; and therefore his interest was with the complainants in the original bill, and, under the statute, he could not be called as a witness as against the defendants to that original bill, who were heirs of Nox, as his interest was hostile to them. It was error to allow him to testify as a witness under the original bill. Campbell v. Campbell, supra; Pyle v. Pyle, supra.

To the cross bill, the executor was made a co-defendant with the complainants in the original bill, and the complainants in that cross bill were suing as the heirs of Solomon Nox. The provisions of the statute are that any party to a civil suit or proceeding shall not be allowed to testify therein of his own motion or behalf, when any adverse party sues or defends as heir, unless when called as a witness by such adverse party, with certain exceptions. Wright does not come within any of the exceptions named, because, as to the cross bill, he was a necessary and proper party, and could not be called as a witness by his co-defendants to that cross bill. Lowman v. Aubery, 72 Ill. 619.

It is alleged that the court erred in permitting complainants in the original bill (defendants in error) to open and close the, case. The rule in this state is that the burden of proof is on the party affirming the execution and validity of the will, and consequently such party has the right to open and close the case. Bevelot v. Lestrade, 153 Ill. 625, 38 N. E. 1056; Moyer v. Swygart, supra; Tate v. Tate, 89 Ill. 42; Rigg v. Wilton, 13 Ill. 15. In this case the original bill sought to set aside the probate of the will of revocation of date January 26, 1892, and to declare the probate of the will of September 5, 1890, valid, and that the latter instrument is as the will and testament of Solomon Nox. The cross bill sought to set aside and declare invalid the will of September 5, 1890. In this case each party affirmed the execution and validity of a will, and it was in the discretion of the court, in such case, to determine which should have the right to open and conclude the case. There was not error in this ruling. It is next insisted that the court erred in refusing to instruct the jury that defendants in error were bound by and could not dispute the last will and testament of Solomon Nox, dated January 26, 1892, after they had offered the same in evidence, together with the probate thereof. One of the purposes of the original bill was to declare that will of revocation invalid by reason of want of testamentary capacity, and it was offered to the court for the purpose of having before the court the instrument and probate thereof which were sought to be set aside, and did not, because offered by the complainants in the original bill, constitute evidence which estopped them from denying the validity of the will and probate. There was not error in refusing this instruction.

The last point suggested as error, in permit

ting Francis M. Wright to be called as a witness to testify in rebuttal, is determined in what has already been said as to his competency as a witness. The error in permitting Francis M. Wright, an incompetent witness in the cause, by reason of his interest, and because of his being a party to the suit, to testify, renders a reversal of this case necessary, as there is sharp conflict in the testimony. The decree of the circuit court of Champaign county is reversed, and the cause remanded. Reversed and remanded.

FANNING v. FANNING et al. (Supreme Court of Illinois. April 21, 1898.)

LAW OF THE CASE.

After affirmance by the supreme court of a final decree of the circuit court, adjudging defendants G. and W. entitled to the rents of lands collected and to be collected by the receiver, and that he be discharged, and that thereupon said G. and W. be invested with possession of the lands, it is error for the circuit court to order the receiver to pay the money, and deliver possession of the land to G. alone.

Error to circuit court, Sangamon county; James A. Creighton, Judge.

In a case against George W. Fanning and William F. Fanning, in which a receiver had been appointed, an order was made for payment by the receiver to said George W. Fanning alone, and said William F. Fanning brings error. Reversed.

G. W. Smith, for plaintiff in error.

WILKIN, J. This litigation has been be fore this court on several previous occasions, the history of which will be found in the cases cited in Rogerson v. Fanning, 163 III. 210, 45 N. E. 124. A final decree in the circuit court of Sangamon county was approved February 19, 1895, the material parts of which, as affecting the present contention, are as follows: "It further appearing to the court that A. R. Gregory, who was heretofore, by the interlocutory decretal order of this court, on the application of complainants in the amended supplemental cross bill, ap pointed receiver to collect the rents and profits, etc., of the lands in controversy, has made his report to date, showing the amount of money in his hands after deducting expenses, commissions, etc., to be turned over to the parties entitled thereto, to be the sum of $1,202.20, and that the further sum of $603 is estimated to be paid by March 1, 1895; and it further appearing to the court that the defendants, George W. Fanning and William F. Fanning, are legally entitled tothe said sum of money: It is therefore ordered and adjudged by the court that said report be, and the same is hereby, approved, and that said A. R. Gregory, on or before the 10th day of March next, pay, or cause to be paid or turned over, to the clerk of this court, for the use of the said defendants, G. W. and William F. Fanning, the said sum of

$1,202.20, less his commissions, to be fixed by the court when the last payment is made, and that be pay such further sums as he may collect as soon as he collects the same; and he is hereby ordered to collect the same as soon as possible, taking said clerk's receipt therefor, and, upon the filing of said clerk's receipt with his said report, that he, the said A. R. Gregory, be discharged as such receiver, and that the said George W. and William F. Fanning, or their solicitors, upon leaving a proper receipt therefor with said clerk, shall be entitled to receive said sum of money from said clerk, and that the said George W. and William F. Fanning, upon the discharge of said receiver, be invested with the possession of the said lands as they were prior to the appointment of said receiver." This decree was affirmed in Rogerson v. Fanning, supra. On the 24th day of November, 1896, the cause being redocketed in the circuit court, the following order was made: "And now again this cause comes on to be heard on the filing in this court of the final order of the supreme court of the state of Illinois affirming the final decree of this court, at a former term thereof entered, by force of which judgment of affirmance said decree of this court stands and remains in full force and effect. And now again this cause coming on to be heard upon the final report of the receiver, A. R. Gregory, showing a balance in his hands subject to the order of this court of $1,637.86, in cash, together with a certain promissory note of one A. T. Fuller for $243, for rent due on the said lands, and the said George W. Fanning having indorsed said report as correct: It is therefore ordered by the court that said report of the receiver be, and the same is hereby, fully approved. And it is further ordered by the court that the said A. R. Gregory do, upon a presentation of this order, pay to W. P. Callon, the solicitor of said George W. Fanning, said sum of $1,637.86, and the note of A. T. Fuller for $243, for which he shall take the receipt of said W. P. Callon. It is further ordered by the court that said receiver, A. R. Gregory, shall deliver to said George W. Fanning the possession of the lands herein before in his possession, being described as follows [describing the lands in controversy], together with the lease for said lands expiring March 1, 1895. And it is further ordered that upon his presentation to this court of a receipt for said moneys, said note of A. T. Fuller and for said possession and lease accompanying the same, that the said receiver, A. R. Gregory, be fully discharged." On this order was indorsed a receipt to the receiver for the amount and note mentioned therein, signed by W. P. Callon, solicitor for George W. Fanning, and thereupon the cause was stricken from the docket. To reverse this order, plaintiff in error, William F. Fanning, prosecutes this writ of error, his contention being that under the final decree of the circuit court of February 19,

1895, affirmed by this court, it was error to order the receiver to pay the entire amount in his hands to George W. Fanning, or his solicitor, W. P. Callon, and to order the receiver to turn over the premises to him, thus ignoring the rights of plaintiff in error, as determined in said final decree.

No brief or argument has been filed on behalf of the defendant in error, George W. Fanning. We are of the opinion that the contention of plaintiff in error should be sustained. The order of November 24, 1896, will accordingly be reversed, and the cause remanded, with directions to the circuit court to enter a final order as to the payment of money in the hands of the receiver, and the delivery of the possession of the premises to and for the benefit of both George W. and William F. Fanning, as provided in the final decree of February 19, 1895. Reversed and remanded.

HYDE PARK THOMSON-HOUSTON LIGHT CO. v. BROWN et al. (Supreme Court of Illinois. April 21, 1898.) EASEMENTS-CREATION-MORTGAGES-FORE

CLOSURE-ORDER OF SALE.

1. The release by a mortgagee of part of the mortgaged lands does not pass, as appurtenant thereto, easements in the balance of the land created by the mortgagor subsequent to the mortgage, and without the knowledge of the mortgagee.

2. A decree on foreclosure of two parcels of land, over which the grantor has granted an easement, is proper, which directs a sale first of the premises retained by the mortgagor, and then of the remaining premises, and, if the aggregate amount bid for the land so offered in severalty be insufficient to satisfy the decree, then the lands, with all easements and other claims therein, shall be offered together, and, if the amount bid exceed the amount bid when offered in severalty, then the master may sell the lands together.

Appeal from appellate court, First district. Bill by Esther L. Brown and another against the Hyde Park Thomson-Houston Light Company to foreclose a mortgage. From a decree of the appellate court (69 Ill. App. 582) affirming a decree of the circuit court in favor of complainants, defendant appeals. Affirmed.

W. S. Johnson and J. S. Cummins, for appellant. Wilson, Moore & McIlvaine, for appellees.

PER CURIAM. The statement of facts and the opinion of the appellate court for the First district, by WATERMAN, J., are as follows:

"On June 24, 1890, for the consideration of $20,000, Esther L. Brown sold and transferred to James W. Johnson lots 12 and 13 in block 17 in Hyde Park, in the county of Cook and state of Illinois; the area covered by said two lots having a south frontage on FiftyThird street, next east of and adjoining the

right of way of the Illinois Central Railroad. At the time of the conveyance, Johnson paid on account of the purchase price the sum of $7,333.34, and gave to Mrs. Brown his two notes for the balance thereof; and, to secure the payment of said notes, said Johnson delivered to said Richard S. Thompson, trustee, a deed of trust dated June 24, 1890, conveying the said lots 12 and 13, which deed of trust is now being foreclosed. On June 25, 1890, James W. Johnson and wife sold and conveyed to the Thomson-Houston Electric Company the north seventy feet of said lots 12 and 13, and a right of way ten feet wide over and along the east side of lot 13, not conveyed. * * On March 30, 1891, the Thomson-Houston Electric Company sold and conveyed to the Hyde Park Thomson-Houston Light Company the north seventy feet of lots 12 and 13; also, the said right of way, ten feet wide, over and along the east side of said portion of lot 13, which is still owned by James W. Johnson. The deed contained the further provision that the part of the lots not conveyed should be resorted to primarily for the satisfaction of Mrs. Brown's trust deed. The right of way seems not to have been used at any time. On January 3, 1891, $3,666.66 was paid by Mr. Johnson to Mrs. Brown; and Richard S. Thompson, trustee, executed and delivered to said James W. Johnson a release deed, releasing the said north seventy feet of lots 12 and 13, together with all the appurtenances and privileges thereunto belonging or appertaining. All of the deeds and release deeds are duly acknowledged and recorded. Immediately after the purchase of the north seventy feet of said lots by the ThomsonHouston Electric Company, it commenced the erection of a large electric light plant, and completed the same about the month of December, 1890, and furnished lights to the public generally. Mrs. Brown continued to live in her old homestead, located upon a portion of one of the lots not conveyed by Johnson, until at some time in November, 1890. The north seventy feet of said lots is bounded on the west by the Illinois Central Railroad, on the north and east by improved lands of Mr. Porter and Mr. Gray, and on the south by the south eighty feet of said lots 12 and 13, which is still owned by said James W. Johnson. The appellant, the Hyde Park Thomson-Houston Light Company, and its predecessors in title, do not, and, so far as appears, never have owned any lands adjoining the said lots 12 and 13. The prayer of the complainant's bill in this cause is that the mortgage given by Johnson to secure Mrs. Brown be foreclosed, and that the south eighty feet of said lots 12 and 13 shall be sold at foreclosure sale. Complainant claims that if appellant, Hyde Park Thomson-Houston Light Company, has any right of way over said portion of the south eighty feet of said lots, such right is subordinate to the lien of the said trust deed, and should be devested by a sale under said trust deed, and that the property now covered by

said trust deed should be sold as is provided in the decree. The contention of appellant is: First, that Mrs. Brown agreed to release, not only the north seventy feet of said lots 12 and 13, but to release the east ten feet of lot 13, conveyed by James W. Johnson to the Thomson-Houston Electric Company, for a right of way; second, that by the terms of said release it does release the east ten feet of lot 13; third, that, when the north seventy feet was released, Mrs. Brown impliedly released the east ten feet of lot 13, as opened by Johnson as a street or right of way, that right of ingress and egress might be secured; fourth, that as the north seventy feet is so situated that there is no access except over the remaining portion of lots 12 and 13, or land of a stranger, a right of way passes, as a way of necessity, and such right is not subordinate to the lien of the mortgage, and that said right shall continue so long as the necessity exists, because Mrs. Brown has conveyed all her rights in the north seventy feet, and cannot compel the owner to trespass upon, or take by statute, or purchase lands of a stranger, for the purposes of a way; fifth, as James W. Johnson conveyed an interest in the east ten feet of lot 13, which interest is now owned by the appellant, the property should be sold in inverse order of alienation, -that is, the said east ten feet should be sold last, and the remainder of the property sold first, because, if it is sold as a whole, then the appellant would be deprived of his right of redemption.

"The controversy in this case turns upon the effect, considering the circumstances under which it was made, of the release deed executed by Richard S. Thompson of the north seventy feet of lots 12 and 13, together with all the appurtenances and privileges thereunto belonging or appertaining. At this time Mrs. Brown was under no obligation to do anything to aid appellant in obtaining or perfecting a claim to a right of way over lots 12 and 13 to Fifty-Third street. Her conveyance to Johnson, through which appellant derived title to the north seventy feet of these lots, was of the entire lots. Her purchasemoney mortgage from Johnson covered the property she conveyed. She was in no wise responsible for his conveyance of the north seventy feet of this property, or of a right of way along the east side of lot 13, and her rights as a mortgagee were not diminished thereby. Under these circumstances she consented to the execution by the trustee of the release deed, stating that thereby was released 'the north seventy feet of lots 12 and 13 (this release in no manner to affect the lien of said trust deed upon the remainder of the premises therein described), together with all the appurtenances and privileges thereunto belonging or appertaining.' If her intention and the understanding of Mr. Johnson were that the release should be, not only of the north seventy feet of these lots, but of a right of way over the south eighty feet of