the same in his possession; that by the will of June 15, 1908, Mattie R. Minard bequeathed certain legacies to her relatives, among others being a legacy of $500 to her niece, Mattie Raver, and one for the same amount to her nephew, Charles Raver. The prayer of the bill was that the will of June 20, 1901, which had been admitted to probate, be found and declared by the court to be null and void, and not the last will and testament of Mattie R. Minard, and that the same be set aside, and that the will of June 15, 1908, be declared to be the last will and testament of Mattie R. Minard, and to have been in full force and effect, as such, at the time of her death. Charles W. Minard, personally and as executor, answered the bill, denying the making of alterations in the will of June 20, 1901, and denying the execution of a subsequent will by Mattie R. Minard. A hearing was had before the chancellor, without a jury, and resulted in the entry of a decree finding the allegations of the bill to be true. The decree specifically finds, among other things, that the alterations appearing on the face of the instrument of June 20, 1901, were made by Charles W. Minard after the execution of the instrument by Mattie R. Minard, and that they were made without her knowledge or consent. It further finds that afterwards, and on or about June 15, 1908, Mattie R. Minard, in the presence of two attesting witnesses, and in all respects in accordance with the requirements of the laws of this state, executed her last will and testament, and that the same was in existence and in full force and unrevoked at the time of her death; that Charles W. Minard had this will in his possession when he caused the instrument of June 20, 1901, to be probated, but suppressed it, and did not file or deliver up the same to the probate court of Cook county. The decree finds that the instrument of June 20, 1901, is not and was not the last will and testament of Mattie R. Minard, and orders and adjudges that it, and the probate thereof, be set aside, and declared null and void. Charles W. Minard, personally and as executor of the last will and testament of Mattie R. Minard, has prosecuted this appeal to reverse the decree of the superior court. Upon the hearing before the chancellor proof was made that Charles W. Minard had, since the death of his wife, admitted to certain of her relatives that he had made the alterations in the will of June 20, 1901, while his wife was living, expecting to use it as a model for a new will, and that a new will was written in 1908, but was never properly witnessed. [1] The principal ground relied upon for reversal is that the superior court was without jurisdiction to adjudge the will of June 20, 1901, to be null and void, and to set aside the probate thereof, either upon the ground that the evidence established the existence of a subsequent will, the same not having been probated, or upon the ground that the former will had been altered by appellant without the knowledge or consent of the testatrix; such alterations not being a part of the instrument admitted to probate by the probate court of Cook county as the last will and testament of Mattie R. Minard. [2] In this state a court of equity has no jurisdiction to establish the existence of a lost or destroyed will, as that matter, as well as the probating of the will after it has been established, is within the exclusive jurisdiction of the probate court. Beatty v. Clegg, 214 Ill. 34, 73 N. E. 383. The other question raised by the bill was also one which could be determined only in the probate court. Whether spoliations have been fraudulently or innocently made, and what effect the same may have on devises or bequests to the one making the alterations, are questions to be determined on the application to admit the will to probate. This very matter was heard and determined by the court in the matter of the probate of this will, and, if appellees felt aggrieved at the order of the probate court, they should have appealed. The superior court was without jurisdiction to entertain the bill. The decree is accordingly reversed, and the cause remanded to the superior court, with directions to dismiss the bill. Reversed and remanded, with directions. (260 Ill. 138.) RHODES v. MEREDITH et al. (Supreme Court of Illinois. Oct. 28, 1913.) 1. DESCENT AND DISTRIBUTION (§ 69*)-GIFTS IN FRAUD OF HEIRS. portion thereof, without consideration, to anThe owner of certain land conveyed a other, who subsequently deeded it to the wife of the former owner, neither deed being put on record until after the owner's death, and no change having taken place in the possession. Later the owner entered into a contract to convey all the property, including that formerly deeded indirectly to his wife, to the lessee of the premises. The owner died before the time for the completion of the contract, and his widow, as his administratrix and individually, obtained a decree for specific performance against the lessee, and conveyed the property to him. The decree also determined the portion of the purchase price that was paid to the widow as administratrix, and that which belonged to her under the prior conveyance to her. The owner left no surviving children except an adopted daughter. This bill was filed by the brother of the deceased for partition of the land, he claiming that the conveyance to the wife was void for want of delivery, and that the daughter had never been legally adopted, and therefore that he and the other collateral heirs were entitled to the premises, subject to the widow's rights. Held, that there being nothing in the record to show that the deed to the wife was not deliverthe conveyance on the ground that it was made ed, the heirs of the owner could not attack without consideration, since the husband has a legal right to make suitable provision for his vife where there are no creditors to complain. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 208-212; Dec. Dig. § 69.*] 2. PARTITION (§ 17*)—RIGHT OF ACTION-TI TLE. Even though the deed to the wife was void it would not avail the heir in this proceeding, since the purchaser was entitled to the entire tract under his contract, and secured title thereto by the deed from the administratrix if the former deed by the husband was void, and, if not, through the deeds from the administratrix in her representative and individual capacities, and there could be no partition until after those conveyances were set aside. [Ed. Note. For other cases, see Partition, Cent. Dig. §§ 53-59; Dec. Dig. § 17.*] 3. CONVERSION (§ 11*)-CONTRACT FOR SALE OF REALTY. Under the doctrine of equitable conversion, the land is to be regarded as personalty at the time of the death of the owner, since equity will regard him as holding title in trust for the purchaser, and his interest consisted only of his right to receive the purchase money, and therefore the proceeds would all go to the widow if the proceedings for the adoption of the daughter were not legal, so the collateral heirs could not question the legality of those proceedings. [Ed. Note. For other cases, see Conversion, Cent. Dig. §§ 19-24; Dec. Dig. § 11.*] Appeal from Circuit Court, Kane County; Mazzini Slusser, Judge. Suit for partition by John F. Rhodes against Eliza L. Meredith and others. Decree for the defendants, and complainant appeals. Affirmed. W. M. Mercer, of Aurora, for appellant. Aldrich & Worcester, M. O. Southworth, and Fred C. G. Schmidt, all of Aurora, for appel lees. VICKERS, J. The circuit court of Kane county dismissed appellant's bill for partition for want of equity, and the record has been brought to this court by an appeal. The real estate involved formerly belonged to Joshua Rhodes, and all parties in interest claim, in one way or another, from him. Rhodes died in Kane county, Ill., December 19, 1910, leaving Addie M. Rhodes as his widow, and Martha Sheldon Rhodes, who claims to be his daughter by adoption. He also left John F. Rhodes, a brother, and a number of sisters and descendants of deceased sisters as his collateral heirs. On April 25, 1885, Rhodes and his wife, Addie M., conveyed a portion of the premises in controversy to Maria H. Severance, and within a few days thereafter Maria Severance reconveyed the same premises to Addie M. Rhodes. Neither of these deeds was recorded until the 10th day of January, 1911. No change was made in the possession of the premises in pursuance of these deeds. These conveyances were manifestly only resorted to as a means of transferring the title from Rhodes to his wife. On the 11th of August, 1910, Rhodes executed a contract of bargain and sale of the farm in controversy to A. D. Hanna for the sum of $25,725. The contract was in writing, and provided for the payment of $5,725 in cash March 1, 1911, and the execution of notes and a mortgage for the remainder. Rhodes covenanted to convey the premises by a good, merchantable title and surrender possession to the purchaser on that date. The contract of sale included that portion of the farm to which his wife claimed title under the unrecorded deed, as well as the remainder, the title to which was in the name of Rhodes. Hanna was in the possession of the farm under a lease at the time the contract of sale was executed, and the date fixed for the consummation of the sale contract was the date on which the lease, by its terms, would expire. After the death of Rhodes, his widow, as administratrix, filed a bill in equity to the May term, 1911, of the circuit court of Kane county, in which she recited the making of the contract with Hanna by her husband, and alleged that she, as administratrix and individually, was ready and willing to comply with its terms by executing a deed to Hanna conveying to him the entire premises upon compliance with the contract by him. The bill alleged that Martha Sheldon Rhodes was the legally adopted daughter of Joshua Rhodes, and entitled to inherit from him the same as a natural child. Hanna and the adopted daughter, then a minor 12 years of age, were made defendants to the bill. The prayer of the bill was that a decree for specific performance of said contract be granted, and that the court determine the amount that should be paid to the widow in her individual capacity and what portion she should charge herself with as administratrix. A decree was entered upon said bill, finding that the value of that portion of the farm to which the widow held title was $14,950, and that the residue was worth $10,775. A decree was entered for the specific performance of the contract. The widow was ordered and directed to make a deed to said Hanna to the whole of said premises upon his complying with the terms of the contract. Hanna complied with the contract and a deed purporting to convey to him the fee-simple title of the entire farm was executed, under which he claims to be the sole and exclusive owner of all the premises described in the deed. The decree granting specific performance of the contract, in pursuance of which the widow executed a deed to Hanna, has never been reversed or modified, and remains in full force and effect. On May 31, 1912, the appellant, John F. Rhodes, a brother of Joshua Rhodes, filed his bill in the case at bar for partition. Addie M. Rhodes (individually and as administratrix of Joshua Rhodes, together with his surviving sisters and the children of such as were dead). Martha S. Rhodes, and certain other persons who were in possession of some portion of the premises, were made parties defendant, fied and confirmed the sale by filing the bill to the appellant's bill. Briefly, the theory of for specific performance, in which she offerthe bill is that the deed from Joshua Rhodes ed to convey, and by procuring a decree unand wife to Maria Severance, and the deed der which she has actually conveyed, the from Maria Severance to Addie M. Rhodes, whole of said premises pursuant to the connever became operative for want of deliv- tract made by her husband. Hanna was ery in the lifetime of Joshua Rhodes; that entitled, under his contract, to the fee-simple Martha Sheldon Rhodes was never legally title to the entire farm, and this he obtained adopted as the daughter of said Jeshua and either by the deed made by Mrs. Rhodes as Addie M. Rhodes, and has no interest what- administratrix, or partly through that deed ever in his estate; that the contract for the and partly through her deed in her individsale of the premises involved, to Hanna, not ual capacity. In either event the title vesthaving been performed and a conveyance ed in him and his contract was satisfied. made prior to the death of Joshua Rhodes, said Rhodes was at the time of his death the legal owner of the farm in controversy, and having died intestate, leaving no child or children or descendants of such child or children, the land descended as real estate to appellant and the other collateral heirs of said Joshua Rhodes. Whatever of controversy may remain to be settled among the heirs of Joshua Rhodes, it must be held that Hanna is entitled to hold the land under his deed, unmolested by any of the conflicting claims to the purchase money. If, as we have sought to show, Hanna must at all events be held to be the exclusive owner of the real estate in controversy, this would be a complete defense to the prayer of appellant's bill for a partition. There can be no partition of this land among the heirs of Joshua Rhodes without setting aside the contract of sale, the decree for the specific performance thereof, and the deed made to Hanna in execution of the decree, and we see no grounds for disturbing either. [1, 2] There is nothing in the record to support the contention that the deed from Joshua Rhodes and wife to Mrs. Severance, and the deed from her to Mrs. Rhodes, were void for want of delivery. Mrs. Severance testifies that she paid nothing for her deed, and received nothing when she reconveyed to Mrs. Rhodes; that she held the deed from the time it was made until she reconveyed to Mrs. Rhodes. It is a fair and reasonable [3] Again, the situation presented by this inference from the evidence that Joshua record requires the application of the docRhodes intended to make a settlement upon trine of equitable conversion. That doctrine his wife by giving her the north 80 acres rests on the maxim that equity regards that of his farm, and that the conveyance to Mrs. as done which ought to be done, and the sitSeverance was merely a convenient means uation presented by this record is a fitting adopted to accomplish his purpose. That he illustration of the maxim. Under that rule had a legal right to make a suitable provi- real estate may, under proper circumstances, sion for his wife where there are no cred- be regarded, in equity, as personal property, itors to complain cannot be questioned. and personal estate may be regarded as real, Heirs and devisees who claim merely as vol- and transmissible and descendible as such. unteers have no right to attack such convey- Eaton on Equity, § 96; Haward v. Peavey, ance on the ground that it was voluntary 128 Ill. 430, 21 N. E. 503, 15 Am. St. Rep. and had the effect of decreasing the estate 120. When a valid, enforceable contract has to which they would be entitled upon the been entered into for the sale of real estate, death of the grantor, but so far as the rights as between the vendor and vendee equity reof Hanna and the collateral heirs are con- gards the vendee as the owner of the land cerned, they cannot be affected by the deter- and the vendor as the owner of the purchase mination of the question raised in respect to money, which is personalty. The vendor is the delivery of the Severance deeds. If the regarded as the trustee of the naked legal deeds were not delivered, then the title to title for the benefit of the vendee, and the the whole premises was in Joshua Rhodes vendee as the trustee of the purchase money at the time he made the contract of sale for the benefit of the vendor. Lombard v. with Hanna, and that contract entitled Han- Chicago Sinai Congregation, 64 Ill. 477; na to a deed for the whole of the premises Wright v. Troutman, 81 Ill. 374; Lewis v. upon compliance with its terms. If the deeds Shearer, 189 Ill. 184, 59 N. E. 580. Where were delivered and Mrs. Rhodes became the the owner of real estate thus enters into a owner of the north 80 acres prior to the ex- valid contract for its sale, the nature of his ecution of the contract with Hanna, while estate under the doctrine of equitable conshe did not sign the contract, she knew that version is changed, and the real estate will the sale had been made, was present at the be regarded as converted into personal proptime, and set up no claim under her unre- erty, and, in case of the death of the vendor corded deed, and made no objection to the before the contract is performed, it will be inclusion of the north 80 in the sale. Be-treated as assets in the hands of his personal side thus estopping herself as against Han- representative. 9 Cyc. 826; Keep v. Miller, na, who had no notice that she claimed any 42 N. J. Eq. 100, 6 Atl. 495; Williams v. der v. Luckenbach, 162 Pa. 18, 29 Atl. 295, [ err in dismissing appellant's bill, and its 296. decree will accordingly be affirmed. Decree affirmed. The cases of Wright v. Minshall, 72 Ill. 584, Covey v. Dinsmoor, 226 Ill. 438, 80 N. E. 998, 9 Ann. Cas. 31, and Adams v. Peabody Coal Co., 230 Ill. 469, 82 N. E. 645, do not establish any different doctrine. They were all cases involving the construction of wills. In each of them the testator had contracted to sell real estate which was also disposed of by the will. The doctrine of equitable conversion was not allowed to interfere with the clearly expressed intention of the testators. While the contracts for the conveyance of the real estate were sustained, the proceeds were treated as real estate, and passed as such to the respective devisees under the wills. The reason the doctrine of equitable conversion was not applied in those cases was that it would have defeated the intention of the testators as the same was gathered from the general context of the wills involved. But in the case at bar the vendor of the real estate died intestate. There is nothing here to prevent the full operation of the doctrine of equitable conversion. Applying that doctrine, Joshua Rhodes owned none of the real estate at the time of his death which in this proceeding is sought to be partitioned among his collateral heirs. Instead of the real estate, at the time of his death he owned the obligation of Hanna to pay the consideration, and this was personalty, and as such belongs to the administratrix, to be by her disposed of and distributed in due course of administration. It makes no difference whether Joshua ZEMAN v. WARD. (260 Ill. 93) (Supreme Court of Illinois. Oct. 28, 1913.) OF Under Hurd's Rev. St. 1911, c. 77, § 27, from the (judicial) sale of real estate of a 'deproviding that, "for the purpose of redemption ceased debtor,' any person whose claim shall have been probated and allowed against the estate" shall be considered a judgment creditor, and may have execution issued, and, upon redeeming, have the premises sold under his execution, a creditor may take advantage thereof, though his claim was for funeral expenses, and arose after the debtor's death; a "deceased debtor" within the statute meaning a debtor whose real estate has been sold at judicial sale, and who has subsequently died, and is not limited to those who were creditors in the debtor's lifetime. [Ed. Note.-For other cases, see Judicial Sales, Cent. Dig. §§ 115-117; Dec. Dig. § 59.*] 2. JUDICIAL SALES (§ 59*)-REDEMPTION BY CREDITORS-STATUTE-PROCEEDINGS. Rev. St. 1911, c. 77, § 27, to creditors of a The right of redemption given by Hurd's deceased debtor whose real estate has been sold at judicial sale is a creature of the statute, and, the statute not requiring the creditor to file a petition, or give notice, nor to show that the deceased's personal assets are insufficient to pay his claim, such procedure is unnecessary. [Ed. Note.-For other cases, other cases, see Judicial Sales, Cent. Dig. §§ 115-117; Dec. Dig. § 59.*] 3. JUDICIAL SALES (§ 59*)-REDEMPTION BY CREDITOR-FRAUD. 1911, c. 77, § 27, by a creditor of a deceased That a redemption under Hurd's Rev. St. debtor from a judicial sale of the debtor's real estate was made in pursuance of an agreement with and in the interest of the heirs of the debtor, whose time to redeem had expired, did not constitute fraud or invalidate the redemption. [Ed. Note.-For other cases, see Judicial Sales, Cent. Dig. §§ 115-117; Dec. Dig. § 59.*] 4. JUDICIAL SALES (§ 59*)—REDEMPTION BY CREDITOR-VALIDITY. Rhodes owned all of the farm or only a part and his wife the remainder. The contract was valid and enforceable, and the doctrine of equitable conversion applies to and converts whatever interests Joshua Rhodes had in the land into personal property. Under this view, the question whether Martha S. Rhodes is the legally adopted daughter of Joshua Rhodes becomes unimportant. If she be the adopted daughter, then the personal Where the heirs of M., whose time to reestate of her adoptive father would, under deem from a judicial sale to Z. of M.'s real estate had expired, procured W. to advance money the statute of descent, pass to her and the and redeem for them, and W.'s attorney had an widow. If she was not legally adopted, then execution issued under Hurd's Rev. St. 1911, c. Joshua Rhodes died leaving no child or chil- 77, § 27, on a claim against M.'s estate in fadren or descendants of such child or chil-vor of J., and later on the same day procured dren or descendants of such child or chil- an assignment of J.'s judgment, and effected dren, and the widow, in that contingency, redemption from the sale, and the premises were would be entitled to all of the personal property. In any view that can be taken of this question the collateral heirs can have no interest in the personal estate of Joshua Rhodes. The only persons now that can have any interest in the question in respect to the adoption of Martha S. Rhodes are the widow and Martha S. Rhodes, and neither of them is making any question as to the regularity and binding effect of the adoption proceeding. sold to W. under the execution, Z., whose right to a deed under the first sale had not matured, could not thereafter defeat the redemption and the second sale by paying off the execution under the J. judgment; his right being confined to the redemption money. [Ed. Note. For other cases, other cases, see Judicial Sales, Cent. Dig. §§ 115-117; Dec. Dig. § 59.*] Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge. Suit by Leopold Zeman against Charles W. Ward. From a decree for defendant, plainAffirmed. The circuit court of Kane county did not tiff appeals. D. T. Alexander and Munson T. Case, both of Chicago, for appellant. Oscar E. Leinen, of Chicago, for appellee. DUNN, J. This appeal is from a decree of the circuit court of Cook county dismissing a bill filed by the appellant for the purpose of having set aside a sheriff's certificate of redemption of certain premises from a sale made by a master in chancery, and a sheriff's certificate of sale of the same premises made pursuant to the redemption, and of obtaining other relief not necessary to be mentioned. The complainant's title rests upon a deed made pursuant to the master's sale, and the decree finds the deed invalid. The property in controversy belonged to Peter Joseph Muench, and was sold on July 9, 1909, by a master in chancery under a decree for the foreclosure of a mortgage. The certificate of sale was assigned to the appellant, and the master executed a deed to him on October 11, 1910. Peter Joseph Muench died on February 8, 1910. Administration was granted on his estate, and on April 6, 1910, a claim was allowed against his estate for $214.45 in favor of Adam Jaeger for funeral expenses. On October 7, 1910, a special execution was issued on this judgment pursuant to section 27 of chapter 77 of Hurd's Statutes, commanding the sheriff to sell the premises sold under the foreclosure decree upon redemption being made from that sale by Adam Jaeger. The amount required to redeem the premises having been paid to the sheriff, he issued a certificate of redemption to Adam Jaeger, and thereupon advertised the premises, and later sold them under the execution to Charles W. Ward, and issued to him a certificate of sale, showing that he would be entitled to a deed on January 15, 1911. These are the two certificates which the appellant seeks to have set aside. [1] The master's deed to the appellant of October 11, 1910, vested the title in him in fee simple, if the attempted redemption under the Jaeger claim was not valid; but, if the redemption was valid, the appellant has no interest in the premises. The redemption is assailed on various grounds. It is insisted that Jaeger was not such a creditor as might redeem under section 27 above referred to. That section declares that: "For the purpose of redemption from the sale of real estate of a deceased debtor, any person whose claim shall have been probated and allowed against the estate of such deceased debtor, shall be considered a judgment creditor, and for the purpose of enabling such creditor to redeem from such sale, it shall be lawful for the clerk of the court wherein letters testamentary or of administration were granted, to issue special execution to the sheriff of the proper county, commanding him, upon re the premises so sought to be redeemed, and like proceedings shall be had as upon other executions." It is argued that this section applies only in favor of one who was a creditor of the deceased in the latter's lifetime, and not in favor of one whose claim arose after the decedent's death, as was the case here, where the claim was for funeral expenses. It is insisted that a deceased debtor is necessarily one who was a debtor when he died, and this conclusion is arrived at from a construction of the phrase, "for the purpose of redemption from the sale of real estate of a deceased debtor." a deceased debtor." It omits all consideration of the next clause, "any person whose claim shall have been probated and allowed against the estate of such deceased debtor, shall be considered a judgment creditor.” The statute expressly provides for the allowance of a claim for funeral expenses against. the estate and for its classification. The deceased debtor is a debtor whose real estate has been sold at a judicial sale, who has subsequently died. Such is the case here, [2] It is argued that no petition was presented to the probate court for an execution to sell the premises, no notice was given to the heirs or other persons interested in the land, and no showing was made of the insolvency of the estate or the insufficiency of the personal assets to pay all claims against the estate. None of these things are required by the statute. The right of redemption is a creature of the statute. When the requirements of the statute are complied with, the right exists; when they are not complied with, the right does not exist. The statute does not make the right contingent upon the insolvency of the estate or the insufficiency of personal assets, and does not require a petition to the court or notice to any one. [3] Counsel for the appellant contend that the plan for the redemption is a fraudulent scheme devised for the purpose of enabling the heirs of Peter Joseph Muench to divest the appellant of his rights as a purchaser and secure the title to the premises for themselves. The appellant had no interest in the title until the expiration of 15 months from the sale, when he would become entitled to a deed. Until then his certificate was only personal property, and the title to the real estate remained in the heirs of Peter Joseph Muench. There is no doubt that the redemption was intended eventually to inure to the benefit of the heirs of Peter Joseph Muench. They procured the redemption to be made, and in so doing were guilty of no fraud or unfair conduct. As heirs of their father, their right of redemption expired in July, 1910. On October 4, 1910, they entered into a written contract with Charles W. Ward, whereby he agreed to advance the money necessary to redeem the real estate here involved, and other real estate, from sales |