In the case at bar the possible interests of after-born children of Esther C. Smith are identically the same as the interests of her four living children. In the proceedings of the circuit court of Kane county resulting in the decrees of 1912 and 1915, the living children of Esther C. Smith did not declare in the pleadings that the interests of the children of Esther C. Smith yet to be born were the same as their interests, but they declared that the title to the land in question vested in them in fee simple, subject only to the life estate of Esther C. Smith, and that after-born children of Esther C. Smith had no interest whatever in said. lands. By the pleadings the interests of the living children of Esther C. Smith were made to appear adverse to the interests of children yet to be born to her, and so the doctrine of representation does not apply. This principle of equity cannot be used by a part of a class to destroy the interests of another part of the same class who are not made parties to the suit. When tenants in common and life tenants seek by proceedings in equity to have their interests in lands defined and set off where persons not in esse may have some interest in said lands, it is a reasonable and wholesome requirement for a court of equity to hold that the bill shall clearly and specifically set out the interests of all the parties in the premises, including those of the remainder-men not in esse, and that the decree of the court shall designate the interests of such remainder-men not in esse and definitely fix their interests in the premises before they shall be bound by any decree which extinguishes or seeks to extinguish their title to the real estate. (Baker v. Baker, 284 Ill. 537.) The decrees were not binding upon the remainder-men not in esse. The finding of the chancellor that possibility of issue was extinct in Esther C. Smith is clearly Nature has fixed no certain age, by years, at wrong. which child-bearing capacity in a woman shall begin or end. The law recognizes the possibility of issue in all adult women, and the single fact that terminates the ability to

bear children is death. Hill v. Sangamon Loan and Trust Co. 295 Ill. 619.

The living grandchildren of Esther C. Smith, executory devisees under the will of David Sholes, deceased, were made parties defendant to the bill filed in 1910 and the bill filed in 1914. Their interests were set forth in the bills, with the further allegation that their interests were a cloud on the title of the living children of Esther C. Smith, and praying that the title be confirmed in said children of Esther C. Smith. A guardian ad litem was appointed for the minor grandchildren, who was supposed to represent them and all others of that class and to bring forward all defenses that could be presented. Under the doctrine of representation hereinbefore discussed we must hold that the decree is binding on all the grandchildren of Esther C. Smith, including those who were made parties defendant and those yet to be born.

It is contended by appellee that David W. Sholes and Ernest C. Sholes, sons of David Sholes, deceased, were necessary parties to the proceedings had in 1910 and 1914 for the reason that the property devised by the sixth clause of testator's will would descend as intestate property to the heirs-at-law of the testator in the event that Esther C. Smith died without issue surviving her. This contention is not sound. In the absence of a contrary indication of testamentary intent, a devise of a life estate with a remainder to a class of persons not named but described will vest the remainder at the testator's death in the persons then comprising the class, the right of enjoyment only being postponed. (Schaefer v. Schaefer, 141 Ill. 337; Grimmer v. Friederich, 164 id. 245; Knight v. Pottgieser, 176 id. 368.) As we have said, when the testator died the fee to the lands devised by clause 6 of his will vested immediately in the living children of Esther C. Smith. The fee having passed from the testator, as it did by clause 6 of his will, it can not again return to him or his heirs. If a remainder-man

dies before Esther C. Smith dies, and leaves a child or children living at the time of the death of the life tenant, the interest of the remainder-man is divested and the fee passes to his surviving child or children by executory devise. If the remainder-men die before Esther C. Smith dies, and leave no child or children, the interests of the remaindermen will not be divested and the fee will pass to their heirs. (Kales on Estates and Future Interests,—2d ed.— sec. 597.) If David W. Sholes and Ernest C. Sholes should in any event take this property as heirs, they will take it as heirs of the remainder-men or executory devisees and not as heirs of the testator. The sons of the testator were not necessary parties.

Appellant contends that the unborn children of Esther C. Smith are made parties defendant by the description "unknown owners" and "unknown devisees." Section 7 of the Chancery act provides that in suits to obtain title to lands, if there be persons interested in the same whose names are unknown, it shall be lawful to make such persons parties to such suits or proceedings by the name and description of "unknown owners" or "unknown heirs or devisees" of any deceased person. This statute refers to persons in being and does not refer to possible persons that may never be born.

January 6, 1915, Esther C. Smith and William M. Smith, her husband, Alice J. Carlisle and Harry N. Carlisle, her husband, Lydia E. Oakley and Clifford Oakley, her husband, conveyed by warranty deed, in consideration of $25,000, the property in question to John Weberpals, appellant. This deed was recorded March 4, 1915. On the doctrine of chances appellant will probably never be disturbed in his title, and yet the title is a doubtful one and the chancellor properly denied specific performance.

The decree of the circuit court is affirmed.

Decree affirmed.

(No. 14082. Decree affirmed.)

ROSA JUSTI, Appellee, vs. DORA P. HOERICH et al.

Appellants.

Opinion filed October 22, 1921—Rehearing denied Dec. 14, 1921.

SPECIFIC PERFORMANCE-what must be shown by defendant setting up defense of delay in returning abstract. A defendant in a suit for specific performance who sets up the defense that the abstract of title was not returned to her within ten days from its delivery to the vendee's attorney, as provided by the contract making time of the essence, must prove that the third party with whom she left the abstract in the absence of the vendee's attorney from his office was authorized to receive the same, otherwise it is proper to reckon the ten days from the time the vendee's attorney actually received the abstract.

APPEAL from the Superior Court of Cook county; the Hon. CHARLES M. FOELL, Judge, presiding.

BERTRAM H. MONTGOMERY, for appellants.

THOMAS J. GRAYDON, for appellee.

Mr. JUSTICE THOMPSON delivered the opinion of the

court:

This appeal is prosecuted from a decree of the superior court of Cook county directing specific performance of a contract for the sale of a flat-building situate at 4831 North Ridgeway avenue, Chicago, by which appellant Dora P. Hoerich agreed to sell and Rosa Justi, appellee, agreed to buy the property.

There is no dispute regarding the terms of the contract nor the title to the property. The sole question before us is whether appellee complied with the following provision of the contract: "A complete merchantable abstract of title *** brought down to date*** shall be furnished by the vendor within a reasonable time. *** The purchaser or his attorney, if an abstract or copy be furnished, shall

within ten days after receiving such abstract deliver to the vendor or his agent (together with the abstract) a note or memorandum in writing, signed by him or his attorney, specifying in detail the objections he makes to the title, if any, or if none, then stating in substance that the same is satisfactory." The contract contained a further provision that "time is of the essence of this contract and of all the conditions hereof."

The vendor, Mrs. Hoerich, one of the appellants, was directed to deliver the abstract of title to John P. McDonald, attorney for appellee. About noon, August 19, 1919, twenty-one days after the contract was made, Ernest A. Hoerich, husband of the vendor, acting for her, appeared at McDonald's office with the abstract of title. McDonald was out of the city and his stenographer was on her vacation. Andrew Rost, an attorney who leased space from McDonald, was in his office at the time, and in reply to Hoerich's inquiry advised Hoerich that McDonald was out. Hoerich asked Rost if he could leave the abstract with him, and Rost took it and signed a receipt presented to him by Hoerich, signing McDonald's name by himself. Rost took the abstract into McDonald's office and found it unoccupied and McDonald's safe locked. He returned to his office with the abstract and locked it in his safe. August 20 McDonald returned to his office but nothing was said regarding the abstract. August 25 McDonald inquired if an abstract had been left for him during his absence, and Rost then took the abstract from his safe and delivered it to McDonald, who examined it on the 28th. Appellee's son came to McDonald's office on that day and McDonald told him that the title was all right, and the former called by telephone the office of Frank A. Sevick, the broker who represented Mrs. Hoerich and at whose office the transaction was to be closed, and talked with a man regarding the closing of the deal. The man with whom he talked said that Mrs. Hoerich's attorney would be out of the city over Labor