GEORGE P. BLISS

V.

SILAS E. SEELEY et al.

Opinion filed October 24, 1901.

1. WILLS-when recorded copy of foreign will does not operate as notice. Under section 9 of the act on wills and section 33 of the Conveyance act, an authenticated copy of a foreign will, although recorded in Illinois, does not operate as notice to third persons acquiring interests adverse to those of the devisees, where the certificate accompanying the will does not state that the will "was duly executed and proved agreeably to the laws and usages" of the State or country where the will was made.

2. SAME-when foreign will is not effective as against purchasers. A foreign will is not effective as against persons acquiring lands adversely to the devisees without actual notice, where no exemplified or properly certified copy of the will has been recorded in Illinois.

3. SOLICITORS' FEES—evidence must be preserved to sustain allowance in partition. To sustain an allowance of complainant's solicitor's fee as costs in partition, the evidence as to the value of the services must be preserved in the record, either by the recitals of the decree or in the certificate of evidence.

4. SAME-defense need not be successful to be of a substantial character. Under the statute allowing the court to apportion complainant's solicitor's fee in partition, if the rights of the parties are correctly set forth in the bill, unless some defendant shall interpose a good and substantial defense, the defense referred to need not be successful if of a substantial character, and not merely formal, frivolous or vexatious.

APPEAL from the Circuit Court of Shelby county; the Hon. SAMUEL L. DWIGHT, Judge, presiding.

This is a bill for the partition of one hundred and sixty acres of land in Shelby county, filed originally on September 3, 1900, by the appellee, Silas E. Seeley, against the appellant, George P. Bliss, and the following persons, to-wit: Absolom H. Kercheval, George A. Hall, Estella Denham, Caroline McDonald, James C. Hall, Dora A. Hall, Sarah S. Smith, Minnie Cloe, Etta B. Middleton and Mary Jane Pollock. The original bill prayed for a division of the lands between appellee, Silas

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E. Seeley, and the appellant, George P. Bliss, and Mary Jane Pollock, according to their respective interests.

On December 3, 1900, the appellant, George P. Bliss, filed a demurrer to the bill upon the ground that it did not appear therefrom that the complainant therein had any interest in or title to the premises described in the bill. The bill was amended, and as amended was again demurred to. The demurrer to the amended bill was sustained, and the bill was again amended not only by changing the allegation therein as to the nature of the complainant's interest in the property, but also by making Mary Jane Pollock a party complainant. To the bill as finally amended the appellant, George P. Bliss, filed a separate answer.

Subsequently, on January 1, 1901, one Annie E. Hall, who is shown by the record to have been the wife of Newton W. Hall, filed her petition asking to be made a party defendant to the bill, and claiming an interest in the premises under the alleged will of David William Hall hereinafter mentioned. Leave was finally given to Annie E. Hall, after her original petition had been stricken from the files by consent, and after she had filed an amended petition, to become a defendant in the cause, and to file an answer to the bill. Annie E. Hall did file an answer to the bill, setting up the interest claimed by her. Replications were filed to her answer and to the answer of George P. Bliss.

The bill was taken for confessed against all the defendants thereto except Bliss, Annie E. Hall and Mary Jane Pollock.

On March 7, 1901, a decree was rendered in the cause, ordering that partition be made between Silas E. Seeley, Mary Jane Pollock, Annie E. Hall and George P. Bliss, and appointing commissioners to make the partition, directing them to give to the said last named parties certain undivided interests in and to said premises, as therein mentioned.

The commissioners reported that the premises were not susceptible of division, and appraised the value of the same at $9000.00. Thereupon, upon the same day, a decree was entered for the sale of the property by a special commissioner therein named; and, by the terms of this decree, the solicitor of the complainant below, the appellee here, Silas E. Seeley, was allowed a fee of $500.00 for his services, and said allowance so made was directed to be taxed and paid as costs. Exception was taken by the appellant, Bliss, and appeal perfected to this court.

The only errors assigned in this case are assigned by the appellant, George P. Bliss. No errors or cross-errors are assigned by Newton W. Hall, or Annie E. Hall, or Mary Jane Pollock.

The facts in the case, as set up in the pleadings and proofs, and as shown by the report of the special commissioner and by the decrees of the court, are as follows:

On or about September 15, 1886, one James A. Hall was the owner of the one hundred and sixty acres in question, and on said last mentioned day died testate, leaving Caroline Hall, his widow, and David William Hall, Newton W. Hall, Estella Hall, Harriet A. Hall, Sarah S. Hall, Etta Belle Hall, Minnie Hall, James C. Hall, George A. Hall and Mary Jane Hall, his children and only heirs. By the terms of his will James A. Hall left all his property, both real and personal, to his widow, Caroline Hall, during her natural life, or as long as she should remain his widow; and, in case she should marry, bequeathed to her one-third part of all his estate. The will directed that, at the death of the testator's wife, should she remain his widow, his estate should be divided among ten of his children, including Bertie Hall, and excluding Mary Jane Hall, giving and bequeathing equal portions of his estate to them, share and share alike. By his will he gave to his daughter, Mary Jane Hall, the sum of $5.00. The will also provided that, in case his

wife, Caroline, should marry again, she should have onethird of all the testator's estate, both real and personal, and that the remainder thereof should be divided among his children above named, excluding Mary Jane Hall. Bertie Hall died without issue before the death of James A. Hall.

David William Hall, Newton W. Hall and Mary Jane Hall, above named, were the children of the testator by a former wife, and were not the children of Caroline Hall. All the other children above named were the children of Caroline Hall.

On or about April 25, 1887, David William Hall died at Pueblo in the State of Colorado. Upon the theory that he died intestate, he left, as his heirs-at-law, his brothers and sisters, being the nine children of James A. Hall above named, including Mary Jane Hall, and excluding Bertie Hall.

In July, 1888, Harriet A. Hall married one Absolom H. Kercheval, and afterwards, in June, 1889, died intestate and without children, and leaving, as her only heirs-atlaw, her husband, Absolom H. Kercheval and her eight brothers and sisters above named, being the children of James A. Hall then living.

Subsequently, Estella Hall married William Denham; Sarah S. Hall married Noble E. Smith; Minnie Hall married one Cloe; Etta B. Hall married William M. Middleton; and Mary Jane Hall married one Pollock.

In November, 1899, Caroline Hall, the widow of James A. Hall, married Thomas McDonald.

The bill, as originally filed, alleged that, on September 12, 1891, D. L. Colbert, sheriff of Shelby county, conveyed to complainant, Silas E. Seeley, all the undivided interest that Newton W. Hall had in and to the one hundred and sixty acres described in the bill. The bill, as finally amended, alleged that one John W. Ardery recovered a judgment against Newton W. Hall for the sum of $634.25 and costs, on which execution was issued on May

2, 1890, directed to the sheriff of Shelby county to execute; that, thereunder, the sheriff levied upon all the interest of Newton W. Hall in and to the lands described in the bill; that the lands were duly advertised for sale and struck off and sold to Ardery, to whom a certificate of purchase was issued by the sheriff; that Ardery afterwards assigned said certificate to Silas E. Seeley; and that, on September 12, 1891, the time of redemption having expired, the sheriff executed a deed to Seeley of all the interest of Newton W. Hall in and to said lands. The proceedings, showing the judgment against Newton W. Hall and the sale, were introduced in evidence. The sheriff's deed was also introduced in evidence.

On July 3, 1900, Absolom H. Kercheval and Linnie A., his wife, (being his second wife after the death of Harriet A., above named,) George A. Hall and Lola, his wife, Estella Denham and William, her husband, Caroline McDonald and Thomas, her husband, James C. Hall and Dora A., his wife, Sarah S. Smith and Noble E., her husband, Minnie Cloe, and Etta B. Middleton and William M., her husband, executed a deed to the appellant, George P. Bliss, conveying to him their interests in said one hundred and sixty acres, which said deed was recorded in the recorder's office of Shelby county on August 12, 1900.

The answer of the appellant, Bliss admitted the allegations of the bill substantially as above set forth, except that it denied that Seeley acquired any interest in the premises by virtue of the judgment, certificate of sale and sheriff's deed, above named. The answer also denied that the respective rights and interests of the parties in said bill were correctly stated therein, and denied that complainant was entitled to any relief.

In her petition to be made a party defendant to the bill, and in her answer to the bill, Annie E. Hall denied that David William Hall, the brother of her husband, Newton W. Hall, died intestate, and averred that, on or