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by the renunciation of the widow; that the interest of the minor was contingent upon the happening of certain events before the arrival of the time provided for distribution, and that none of the contingencies provided for had arrived, although the time for final distribution was at hand; that the minor had no legal interest in the estate, either real or personal, and was not entitled to participate in the distribution. Plaintiff in error was ordered, after the payment of all legal claims and after the payment to the widow of her one-third share of the personal property, to divide the remainder into two equal parts and pay the same to the son and daughter, who were decreed to be the legal owners in fee, as tenants in common, of all the real estate, subject to the interest of the widow; that plaintiff in error had no right, title or interest in the real estate.

There is very little controversy between counsel for the respective parties as to the proper interpretation of the will or as to the law applicable to the facts. The only controversy is whether or not the two adult children of the testator are entitled to the income during the continuance of the trust and during their respective lives. The will gave the trustee power to manage, sell, and transfer the estate during the life of the widow or so long as she remained unmarried. The power conferred upon the trustee was sufficient to vest in it the fee-simple title to the real estate, and a corresponding estate in the personal property, subject to, the provisions of the will. Easton v. Hall, 323 Ill. 397, 154 N. E. 216; People v. Emery, 314 Ill. 220, 145 N. E. 349; Churchill v. Marr, 300 Ill. 302, 133 N. E. 335; Emmerson v. Merritt, 249 Ill. 538, 94 N. E. 955. The trust was an active one, and was to continue during the life of the widow, or while she remained unmarried. Under the fourth and fifth clauses the two children of the testator, subject to the prior estates, took a base fee in the property, subject to termination by their respective deaths during the lifetime or prior to the remarriage of the widow. Lachenmyer v. Gehlbach, 266 Ill. 11, 107 N. E. 202; Boye v. Boye, 300 Ill. 508, 133 N. E. 382; Harder v. Matthews, 309 Ill. 548, 141 N. E. 442; Drager v. McIntosh, 316 Ill. 460, 147 N. E. 433; Corson v. Thornburn, 323 Ill. 338, 154 N. E. 144. As the trustee had the fee-simple title, the ultimate estate in fee to the two children was an equitable estate. Carpenter v. Hubbard, 263 Ill. 571, 105 N. E. 688; Nowlan v. Nowlan, 272 Ill. 526, 112 N. E. 259; Aloe v. Lowe, 278 Ill. 233, 115 N. E. 862. The renunciation by the widow did not accelerate the interests of the children, and their base fee did not become a fee absolute. Hasemeier v. Welke, 309 Ill. 460, 141 N. E. 176; Fowler v. Samuel, 257 Ill. 30, 100 N. E. 143, Ann. Cas. 1914A, 854; Wakefield v. Wakefield, 256 Ill. 296, 100 N. E. 275,

sions are conceded by the respective parties, and it is agreed that the fee-simple title after the renunciation remained in plaintiff in error, as trustee, until the death or marriage of the widow.

It is, however, contended both by the plaintiff in error and the adult remaindermen that the latter are entitled to the income from the estate during the continuance of the trust and during their respective lives. In support of this contention the following cases are cited: Hasemeier v. Welke, supra; Boye v. Boye, supra; Aloe v. Lowe, supra; Becker v. Becker, 206 Ill. 53, 69 N. E. 49. The guardian ad litem for the minor contends that the adult remaindermen are not entitled to the income; that the remaindermen are disappointed legatees and devisees, and are entitled to compensation by the sequestration of the estate relinquished by the renunciation of the widow. In support of this contention, section 79 of the statute on administration (Smith-Hurd Rev. St. 1927, c. 3, § 80) is cited, together with Wilbanks v. Wilbanks, 18 Ill. 17; Wakefield v. Wakefield, supra; and Schaffenacker v. Beil, 320 Ill. 31, 150 N. E. 333.

The cases cited by plaintiff in error and the adult remaindermen in support of the claim that the remaindermen are entitled to the income pending the time of the distribution do not sustain that contention. This is due partly to the fact that the provisions of the will in question are different from the provisions of the wills in the cases cited. In Hasemeier v. Welke, supra, it was held that, where children of the testator take a base fee under the will, and the widow renounces the will which gave her a life estate, a decree directing the shares of the children in the personal property to be turned over to them should require them to give bond to preserve such personal property against waste in case of their death before the death of the widow. In that case, however, there was no trust estate in fee which postponed the time of distribution to the date of the death or remarriage of the widow; therefore that case is not controlling or of very much value as authority upon the point in question. In Boye v. Boye, supra, the testator devised all his property to his wife for life, with directions to his executor to convert the property into cash at the death of the widow and distribute it to his children, the child or children of any deceased child to take the share of the parent. There was a provision that the share of one grandson should be held by the executor and the income, only, paid to him, together with such portion of the principal as might be needed for his care and education until he reached the age of 28 years, and it was held that this provision only authorized the payments to be made after the death of the life tenant. This case does not support the contention that the remaindermen were entitled to the income

(161 N.E.)

hold, however, that there can be no distribution prior to the time fixed in the will.

Section 79 of the statute on administration provides that, in all cases where a widow shall renounce the will and the legacies and bequests therein contained to other persons shall become diminished or increased, it shall be the duty of the court, upon settlement of the estate, to abate from, or add to, such lega

hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.

Reversed and remanded, with directions.

(329 Ill. 555)

cies or bequests in such manner as to equalize STUCKRATH v. BRIGGS & TURIVAS et al.

the loss sustained or advantage derived thereby. In Wakefield v. Wakefield, supra, it was held that, where a devisee or legatee having a right of election exercises such right, the court will take hold of that which is relinquished to compensate, as far as may be, the disappointed devisees, and equity will sequester the devise or bequest renounced, and apply it in place of the devises and bequests defeated. In Schaffenacker v. Beil, supra, it was held that, where a devise of a life estate in all the testator's property was renounced by the widow, and the remainder is contingent, the life estate should be sequestered and continued in force, to be managed by a trustee selected by the court during the life of the widow, so that the proceeds, with accumulations, may be paid to the devisees and legatees under the will. Under the will in this case, the widow was only entitled to the income from the trust estate for life, or until she remarried. Upon her renunciation, she became entitled to one-third of the personal estate and dower in the real estate. The trust estate was diminished to the extent of the value of the property received by her under her renunciation. The period of distribution was either the date of her death or the time of her remarriage. In the event of the death of Helen S. Friedstein, the daughter, prior to the time of distribution, her share went to her son. In case of the death of both remaindermen before the period of distribution, the entire trust estate went to the minor. The period of distribution of the trust estate was definitely fixed by the will. There could be no distribution prior to the time fixed. There was no provision in the will for distribution of either the corpus of the estate or the income therefrom to the remaindermen prior to the time specified in the will. It is impossible to determine prior to the time of distribution who will be entitled to the remainder of the trust estate. Under the provisions of the will and the facts in evidence, the remaindermen were not entitled to the income from the trust estate prior to the death of the widow or the time of her remarriage.

The decree of the circuit court was erroneous. It will be reversed, and the cause remanded, with directions to enter a decree in accord with the views herein expressed.

PER CURIAM. The foregoing opinion reported by Mr. Commissioner PARTLOW is

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without knowledge that contract was not signed by one who was to hold property, cannot be excused for failure to make payments on that ground.

Failure of one who was to hold property to sign contract of sale cannot justify purchaser in failure to make required payments, where he did not know that such person had not signed contract, but on contrary supposed that he had.

2 Contracts 41-Written contract is effective as to party accepting or acting on it without signing it.

in writing, it is effective as to him, even though Where party accepts or acts upon contract he does not sign it.

3. Evidence 441 (8)-Parol evidence of verbal agreement that purchaser should not have copy of sale contract held inadmissible as varying written instrument.

Parol evidence held not admissible to show verbal agreement that purchaser was not to have copy of sale contract, which agreement was made prior to execution of contract, on ground that it tended to vary terms of written instrument, where sale contract provided for payment "upon the delivery of this memorandum."

4. Specific performance 97(1) -Failure to give copy of contract to purchaser seeking specific performance after expiration of time for making payments held not to justify failure to make payments.

Failure to give purchaser copy of sale contract held not to justify delay or refusal to make payments required by such contract, so that purchaser could not enforce specific performance after expiration of time stipulated for making payments, where contract was available to any one financing purchaser.

5. Appeal and error 1058(1)-In suit for specific performance of land contract, error in excluding evidence that witness agreed to finance purchase held not reversible, in view of other evidence.

In purchaser's action for specific performance of sale contract, error in rejecting evidence that witness had agreed to supply neces sary funds to complete purchase held not reversible, where from entire evidence chancellor was justified in finding that purchaser had no one to finance him, even though offered evidence had been admitted.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6. Specific performance 100-Denial of specific performance held proper, In view of purchaser's delay in carrying out contract and increase in value of property.

Purchaser held not entitled to specific performance of contract to purchase land, in view of failure to carry out any portion of contract from date of first payment until time when he made tender and demanded deed, which was after expiration of time stipulated in contract, especially where property rose in value during such time.

7. Vendor and purchaser 86-Abandonment of written land contract may be deduced from circumstances.

Rescission or abandonment of contract in writing for sale of real estate may be deduced from circumstances or course of conduct clearly evincing abandonment without giving purchaser notice of forfeiture.

8. Specific performance 8-Party who has performed his part of land contract is entitled to specific performance as matter of right.

Where contract for sale of real estate is entered into with complete understanding and fairness on both sides, and party seeking specific performance has done what was required of him by contract and stands ready to perform part yet to be done, such relief will be granted as matter of right, where rights of third par

ties have not intervened.

9. Specific performance 16-Specific performance of land contract will not be given if inequitable.

Where, by reason of default, laches, or circumstances which appeal to good conscience of chancellor, enforcement of land contract would be inequitable, relief will be withheld.

10. Vendor and purchaser 86-Vendor could treat contract as abandoned, where purchaser failed to meet stipulated payments after notice that vendor would expect strict compliance with contract.

Where purchaser, after notice that vendor would expect strict compliance with contract, failed to meet payments on dates specified, vendor had right to treat contract as abandoned.

Error to Circuit Court, Cook County; Francis S. Wilson, Judge.

Suit by Carl J. Stuckrath against Briggs

& Turivas and others. A decree was entered dismissing the bill, and plaintiff brings error. Affirmed.

Winston, Strawn & Shaw, of Chicago (John C. Slade, George T. Evans, and Charles J. Calderini, all of Chicago, of counsel), for plaintiff in error.

Busby, Weber, Miller & Donovan, of Chicago (Harry P. Weber, George W. Miller, Merritt, Starr, and Donald J. De Wolfe, all of Chicago, of counsel), for defendants in er

ror.

STONE, J. This is a writ of error sued out of this court on March 5, 1927, to review

a decree of the circuit court of Cook county entered on March 11, 1925, dismissing plaintiff in error's bill for want of equity. The bill was filed to enforce specific performance of a contract for the sale of real estate, entered into between plaintiff in error and defendant in error Briggs & Turivas, a corporation.

The original bill was filed against Briggs & Turivas and John L. Hopkins as the signers of the contract. It charged that the contract had been executed in triplicate, but that the defendants refused to give complainant a copy notwithstanding his repeated demand for it, and also alleged that complainant was ready, willing, and able to perform at all times, but that said defendants had refused to perform. The defendants to the original bill answered, admitting the execution of the contract, and withholding a copy thereof from complainant, averring that this was done by agreement and consent of complainant. The answer ȧvers that complainant entirely abandoned and failed to carry out his part of the contract, and that the property was later sold to a syndicate. An amended bill was filed, which made all the parties of the syndicate additional parties defendant, set out the contract in hæc verba, and set out the complainant's dealings with the property prior to and leading up to the making of the contract, alleging a resulting trust for his benefit in one-half of the property, of which Briggs & Turivas had notice when they took title, and prayed that Hopkins be decreed to hold the legal title to the premises in trust for complainant under the contract of August 4, 1921, subject only to the payment by him of such sum as may be determined by the court to be due and payable, and that a decree for specific performance of the contract be entered.

The contract recites that Stuckrath agrees to purchase and Briggs & Turivas agrees to sell and convey to him its equity in the prem

ises described in the contract for the sum of $75,000, to be paid in the manner following:

"Upon the delivery of this memorandum of agreement, the said purchaser agrees to pay the last maturing note, secured by a trust deed dated November 15, 1919, and recorded January

28, 1920, as document No. 6724465 in the office of the recorder of deeds of Cook county, Illinois, to pay all interest on said note, secure the cancellation of the same and the interest notes thereto appertaining, and deliver the said canceled principal note and interest notes to Briggs & Turivas; to secure a proper and valid release from the lien of said trust deed of the following described premises:" (Describing approximately ten acres of the land first described in the contract.)

The contract also provided:

"The said purchaser further agrees to pay to Briggs & Turivas, upon the delivery of this memorandum, an amount of money equal to the difference between the amount paid by him up

(161 N.E.)

on said principal note and interest notes and the sum of $20,000. Briggs & Turivas agrees that, upon the payment to it of the said sum of money and the delivery to it of the said canceled principal note and interest notes and the recording of said release, to convey to the purchaser or his nominee the said premises described in said release deed. The said purchaser further agrees to pay to Briggs & Turivas at its office in Chicago, Illinois, on or before September 15, 1921, the sum of $25,000, with interest thereon from the date hereof at the rate of seven per cent. per annum, and on or before November 15, 1921, a further sum of

$25,000, with interest thereon from the date hereof at seven per cent. per annum, and on or before March 15, 1922, an additional sum equal to the difference between the total sums theretofore paid to Briggs & Turivas under this agreement and the sum of $75,000, together with interest on such sum from the date hereof at the rate of seven per cent. per annum. Said purchaser agrees to pay all taxes and assessments levied upon or against the premises hereby contracted to be sold, after the year 1920, as and when the same become due and payable. The remainder of the property not conveyed by deed at the time of delivery of this agreement shall be deeded by Briggs & Turivas to John L. Hopkins, who is to hold the same for the benefit of the vendor and who shall give a deed for the same to the purchaser or his nominee upon the payment of the amounts herein specified to Briggs & Turivas by the purchaser and the complete performance of this agreement by said purchaser. Should the purchaser fail to perform this contract promptly on his part at the time and in the manner herein specified, this contract may, at the option of the vendor, be declared canceled and void, and all payments made hereunder shall thereupon be held to have been made in payment of the property theretofore conveyed by Briggs & Turivas to the purchaser or his nominee. It is understood that by this memorandum of agreement it is the intention of the parties hereto that Briggs & Turivas shall be paid by the said purchaser the sum of $75,000 net, together with interest until payment is made, for its interest in the said premises hereby contracted to be sold, and the said purchaser is to pay all costs and charges

incidental hereto. Time is of the essence of this contract and of all the conditions thereof."

The contract was dated August 4, 1921. Upon hearing before the chancellor on the amended bill and answers thereto, the bill was dismissed for want of equity.

Much of the evidence taken before the chancellor concerned plaintiff in error's dealings with this property before the date of the contract and the circumstances through which Briggs & Turivas took title thereto. These transactions involved the defalcations of Albert I. Lauer, who was associated with Briggs & Turivas, and who later confessed that he had embezzled money of the corporation, a portion of which was used to purchase this property. The land prior to the sale of the 10acre tract consisted of about 105 acres. That now involved consists of approximately 95 acres lying east of the right of way of the New York, Chicago, & St. Louis Railroad, in

the city of Chicago. It developed that Lauer's purchase of this property was at the request of plaintiff in error, and the title thereto was taken in the name of Fred W. Fuchs, Lauer's brother-in-law. Following the discovery of Lauer's defalcations, this property, with several other tracts of land held by Lauer, was transferred to Briggs & Turivas. Since plaintiff in error has stated in his brief that he here raises no question concerning the chancellor's findings concerning a resulting trust, but relies solely on his contract and his right to the specific performance thereof, it is deemed that he has abandoned that branch of the case, and the evidence taken thereon need not be considered further than may be necessary to a full consideration of his right to specific performance. The contract was prepared by Earl J. Smith, one of the defendants to the amended bill. He is an attorney at law associated with the firm of Hopkins, Starr & Hopkins, counsel for Briggs

& Turivas.

It appears from the undisputed evidence that from 1917 to 1920 plaintiff in error was employed as a salesman by Briggs & Turivas. About August 10, 1920, after the discovery of the defalcations by Lauer, plaintiff in error was called into the office of Briggs & Turivas and questioned concerning his relationship with this property and Lauer's shortage. He denied any knowledge of Lauer's defalcations, and counsel for defendants in error on the trial stated that it was not their purpose to attempt to show that he had anything to do with such defalcations. The property was transferred by Fuchs to Briggs & Turivas, and was held by that firm until it was noti'fied by the secretary of state that it was necessary that it dispose of the property. On June 4, 1921, plaintiff in error entered into a contract with the Niagara Radiator & Boiler Company to sell to it 10 acres off the northwest corner of this tract for $30,000, and he received a down payment of $3,000. He did not have title to the property, but made numerous offers to buy that tract from Briggs & Turivas, and also requested that he be allowed to subdivide the entire property. These propositions were refused by Briggs & Turivas. A few days prior to the date of the contract here involved, plaintiff in error proposed to buy the entire tract at $75,000, stating that he had a purchaser for the 10 acres at $20,000. Briggs & Turivas agreed to sell him the entire tract for $75,000 on condition that out of the sale of the 10 acres he pay a certain trust deed note of $14,000 and the balance of $20,000 to it and secure the release of the trust deed as to the 10 acres. The contract above set out was executed. It appears that a trust deed against the entire property, amounting to approximately $56,000, was held by parties known in this record as the "Curtis Estate." Plaintiff in error sold the 10 acres for $30,000. The purchaser, the Niagara Company, paid the Curtis estate the

sum of $14,549.27, being the amount of the last maturing note, and the balance of the $20,000 was delivered to Briggs & Turivas. The 10 acres so sold were thus taken out of the contract. Under the contract, plaintiff in error was to pay the sum of $25,000 on September 15, 1921, a like sum November 15, 1921, and a balance sufficient to make the total sum of $75,000 on or before March 15, 1922, and to pay all interest and accruing payments on the trust deed note, taxes, and assessments levied against the premises after the year 1920 as the same became due and payable. Time was made the essence of the contract. Plaintiff in error made none of these payments, and did nothing toward carrying out his part of the contract until May 5, 1923, when he tendered the sum of $115,000 and demanded a deed, which tender and demand were refused. On July 10, 1923, he filed his bill for specific performance.

[1, 2] Plaintiff in error bases his ground for reversal on the claim that Briggs & Turivas breached the contract in two particulars: First, by refusing to give him a copy of it; and, second, by failing to have John L. Hopkins sign the contract. His argument is that, while he made no payments as specified in the contract, he was not required to do so until he received a copy of the contract, signed by Hopkins; that refusal to give him a copy of the contract prevented his financing the purchase of the property; that he had made arrangements with a Blue Island bank to finance the contract when he could produce it; that, since Hopkins was to hold the property for the benefit of Briggs & Turivas, to be turned over to plaintiff in error, or any one nominated by him, upon making the payments specified in the contract, Hopkins should have signed it; and that his refusal or failure to do so justified the delay of plaintiff in error in making payments under it. As to this last contention, it may be noted that in the original bill plaintiff in error alleged that Hopkins had signed the contract. Hopkins' failure to do so can therefore scarcely be said to be a justification for the failure of plaintiff in error to make the required payments, as it is apparent from the original bill that he did not know that Hop kins did not sign the contract, but, on the contrary, supposed that he had. That supposed ground, therefore, requires no further consideration. The evidence shows that the deed was made to Hopkins, and he took title in accordance with the terms of the contract and held it until February, 1922, when, on resolution of the board of directors of Briggs & Turivas that he do so, he retransferred the property to the corporation. Where a party accepts or acts upon a contract in writing, it is effective as to him, even though he does not sign it. Broderick v. Driscoll, 301 Ill.

Ill. 623, 23 N. E. 431; Ames v. Moir, 130 Ill. 582, 22 N. E. 535.

[3, 4] Defendants in error, in replying to the contention of plaintiff in error that he was entitled to a copy of the contract, say, and their evidence is, that it was understood and agreed prior to the execution of the contract that the plaintiff in error was not to have a copy of it; that Briggs & Turivas and Hopkins knew that he was without financial responsibility, and they refused to give him a copy of the contract, which might be recorded, or, as they characterized it, “peddled around." We are of the opinion, however, that the contract shows that a copy of the same was to be delivered to plaintiff in error. The language in it, "upon the delivery of this memorandum of agreement the said purchaser agrees to pay the last maturing note," etc., and the language regarding the balance after sale of the 10-acre tract, "the said purchaser further agrees to pay to Briggs & Turivas upon delivery of this memorandum, an amount," etc., so shows. The contract was executed in triplicate. Under this construction of the contract parol evidence of a verbal agreement that plaintiff in error was not to have a copy, which agreement was made prior to the execution of the contract, was inadmissible, as it tended to vary the terms of the written instrument. Armstrong Paint Works v. Can Co., 301 Ill. 102, 133 N. E. 711; Linn v. Clark, 295 Ill. 22, 128 N. E. 824; Chicago Auditorium Ass'n v. Fine Arts Building, 244 Ill. 532, 91 N. E. 665, 135 Am. St. Rep. 316; 5 Wigmore on Evidence, § 2430; 1 Greenleaf on Evidence (16th Ed.) § 275. However, plaintiff in error completed the contract as to the 10 acres without demanding a copy of the contract, and thereby waived the right to a copy prior to such completion. Whether failure to deliver a copy of the contract before performance of the balance of it justified the delay indulged by plaintiff in error in offering to make payment depends upon the circumstances. His counsel argue that a copy of the contract was necessary in order to complete financial arrangements. Plaintiff in error testified that he made demand for a copy of the contract, or asked Earl J. Smith if he was going to give him a copy, and that he was told "No," and that Hopkins told him that he was not to get a copy because Turivas did not want him to have one. In this he is disputed by the testimony of witnesses for defendants in error, who testified that it was understood that he was not to have one, that he at no time requested that a copy be delivered to or shown to any one who was considering financing him, and that he at no time stated that any one was ready to finance his purchase of the property by delivery of the contract. Smith testified that a few days after the date of the

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