said premises, to pay the residue of such rentals in equal shares to my son, Julius Keister, Matilda Keister, John L. Keister, Emma McDermot, Peter W. Keister, J. Norman Keister, Arthur G. Keister and Frank Keister, but if the said Matilda Keister is divorced from my son, Julius, or after his death shall marry again, she shall not receive any portion of such rentals, but such rentals shall be divided among the other persons in this item named, share and share alike, nor shall the said Matilda Keister ever receive any more than one-eighth part of the residue of such rentals, but if any of the children of said Julius and Matilda Keister shall die leaving children, the share of such deceased child shall be paid to its children, and if any of their said children shall die without descendants, the share of such deceased child shall be distributed equally among the other beneficiaries here in this item named, except to said Matilda Keister. After the death of my said wife and the said Julius Keister, and the death or marriage of said Matilda Keister, and when all of the above named children have reached the age of twenty-one years, the trust hereby created shall terminate and said lands in the item described shall vest in fee simple absolutely in the said now living children of my said son, Julius, and his present wife, Matilda, and their descendants, share and share alike, the descendants of any of said above named children taking the share of their parents."

It further appears from the bill that John F. Keister and Jacob S. Keller accepted the trust created by said item, took possession of the premises and acted as trustees until March 1, 1904; that Susan Keister and Julius Keister are both deceased; that John L. Keister, Emma McDermot, Peter W. Keister, J. Norman Keister, Arthur G. Keister and Frank Keister, who are all of the children of Julius and Matilda Keister, are living and are over twenty-one years of age, and that Matilda Keister is still living and unmarried.

The bill further sets out that after the death of Susan Keister and Julius Keister, Matilda Keister, by warranty

deed, conveyed all her interest in the said land in section 28 to one Edward A. Hanes and all her interest in said land in section 27 to one W. Frank Godwin; that each of the said six children above named, except Frank A. Keister, by warranty deeds conveyed to said Hanes an undivided one-sixth interest in the said land in section 28, and three of said children each conveyed to Hanes an undivided one-sixth interest in the land in section 27, the remaining three children conveying all their interest in the land in section 27 to Godwin; that afterwards Hanes, by warranty deed, conveyed to complainant, Joseph M. Brownback, who is the appellant here, an undivided five-sixths interest in the land in section 28 and an undivided one-half interest in the land in section. 27, John F. Keister and Jacob S. Keller, as trustees under the will of Peter Keister, and individually, conveyed to the complainant an undivided five-sixths interest in the land in section 28 and an undivided one-half interest in the land in section 27, and Frank A. Keister conveyed to complainant an undivided one-sixth interest in the land in section 28; that at the time of making the several conveyances above mentioned, each of said children, respectively, executed a bond to the purchaser of his or her interest, conditioned upon the execution and delivery of a quit-claim deed to such purchaser for the premises at the termination of the trust created by the will of Peter Keister, deceased.

The bill avers that by reason of the conveyances above set out the complainant became vested with the fee simple title in and to the land in section 28 and in and to an undivided one-half of the land in section 27, and entitled to the possession, rents, issues and profits thereof; that Peter W. Keister is in possession of the land in section 28 and James I. Keller is in possession of the land in section 27, and that both refuse to attorn to complainant or to recognize him as the owner of said land; that the said six children claim that the fee to the premises does not become vested in them until the happening of four contingencies, namely: the death of

Susan Keister; the death of Julius Keister; the death or re-marriage of Matilda Keister; the arrival at legal age of all of said children; and that inasmuch as only three of those contingencies have happened, said fee simple title has not become vested and will not become vested in them until the death or re-marriage of Matilda Keister, but that the complainant avers and insists that by reason of the conveyances by Matilda Keister to Hanes and to Godwin of all her right, title and interest in said premises, the remainder in fee thereby became accelerated and all her interest became merged in the fee, and that the fee thus vested in Hanes passed to complainant by the conveyance of Hanes to him.

The bill sets up various defects in the title to the premises, which existed prior to the ownership of Peter Keister, and avers that they are clouds upon the title of complainant. The prayer of the bill is that the court remove the clouds from the title; correct and reform certain defective conveyances specifically mentioned in the bill; construe the will of Peter Keister, deceased, and the trust thereby created; decree that complainant has an absolute fee simple title in and to all the said land in section 28 and in and to an undivided one-half interest in the said land in section 27; declare the trust created by the will of Peter Keister terminated; decree that complainant is entitled to the possession of the premises last mentioned and entitled to collect the rents and profits thereof; that all defendants be barred from claiming any right, title or interest in and to the premises, and for general relief.

After the demurrer to the bill, which had been interposed by Matilda Keister and her six children above mentioned, had been sustained, appellant moved the court for leave to file a supplemental bill setting up the fact that since the commencement of this suit he had obtained possession of the premises and that the same are now in his possession. His motion was overruled and leave denied.

The errors assigned are the action of the court in sustaining the demurrer and dismissing the bill for want of equity, and in refusing leave to complainant to file the supplemental bill.

HUGH CREA, and HUGH W. HOUSUм, for appellant:

Estates created by will will be regarded as vested rather than contingent, unless a contrary intention is apparent. Boatman v. Boatman, 198 Ill. 414; Clark v. Shawen, 190 id. 47; Harvard College v. Balch, 171 id. 275; Strode v. McCormick, 158 id. 148.

A remainder is vested if, by words of express limitation, it is to take effect on the determination of a preceding particular estate and the person to take it is in being and ascertained. Harvard College v. Balch, 171 Ill. 275.

The doctrine of acceleration as announced by the Supreme Court is: If there be a gift to A for life and to B in remainder, the estate in remainder takes effect from and after the determination of the particular estate, whether that estate be determined by revocation, death, incapacity of the devisee to take or by his refusal to take, or by any other circumstance, the remainder being only postponed in order that the life estate may be given to A. Blatchford v. Newberry, 99 Ill. 11; Dee v. Dee, 212 id. 355; Billings v. People, 189 id. 475; Mills v. Newberry, 112 id. 130; Slocum v. Hagaman, 176 id. 539.

Where two estates of different quality are conveyed to one person the lesser estate becomes merged in the greater. Field v. Peeples, 180 Ill. 382; Curtis v. Hollenbeck, 92 Ill. App. 34; Talcott v. Draper, 61 Ill. 56.

FINN & MCINTOSH, for appellees:

A contingent remainder is where the estate in remainder is limited to take effect to a dubious and uncertain person or upon a dubious or uncertain event, so that the particular estate may chance to be determined and the remainder never

take effect. Chapin v. Crow, 147 Ill. 219; Kingman v. Harmon, 131 id. 173; Williams v. Esten, 179 id. 267; Haward v. Peavey, 128 id. 430; Strode v. McCormick, 158 id. 142; Bates v. Gillett, 132 id. 287; Furnish v. Rogers, 154 id. 569.

The doctrine of acceleration does not apply to contingent remainders. Theobald on Const. of Wills, 450; Gerry v. Hadley, I Ch. Div. 653; Carrick v. Errington, 2 P. Wms. 361; Augustus v. Seabolt, 3 Metc. (Ky.) 156.

A party who desires to file an amended pleading should prepare it and submit it to the court. He is not entitled, as of right, to an order giving him leave, in advance, to file it before it has been drafted. McFarland v. Claypool, 128 Ill. 397; Wolverton v. Taylor & Co. 157 id. 495.

There are only two cases in which a party may file a bill to quiet title or remove a cloud: First, when he is in possession; and second, when he claims to be the owner and the lands in controversy are unimproved and unoccupied. Gage v. Abbott, 99 Ill. 366; Lundy v. Lundy, 131 id. 138; Gage v. Curtis, 122 id. 520.

Mr. JUSTICE SCOTT delivered the opinion of the court:

By the terms of the fifth item of the will of Peter Keister a particular estate was carved out of the fee, to continue until the death of Susan Keister and Julius Keister, and the death or re-marriage of Matilda Keister, and the arrival at legal age of all the grandchildren of the testator named in the will. Upon the happening of these contingencies the particular estate was to determine, and the remainder to go to such of the grandchildren, being children of Julius Keister and Matilda Keister, as should be then living and the descendants of such as should be then dead, share and share alike, the descendants of any deceased child to take the share that their parent would have been entitled to had such parent survived the termination of the particular estate.

The first question which arises upon this record is whether the remainder was vested or contingent.