mainder of the amount due under the contract, to wit, the sum of $40,000; and said A. J. Bates made his applications for the patents in question as assignor of the said Consolidated Steel & Wire Company, and the patents (being those in controversy) were so issued to that company as assignee of said A. J. Bates. The Consolidated Company had paid but one-half ($40,000) of the purchase money for the said patents when it received the notice from the Bates Company that the latter corporation claimed the inventions and patents made or issued to said A. J. Bates, and paid the remainder of the purchase money ($40,000) after receiving such notice; and the appellant insists that, as the latter payment was made after due notice, the Consolidated Company cannot be regarded as a bona fide purchaser of the patents.

The rule seems to be that, if one otherwise entitled to be regarded as a bona fide purchaser has paid a part only of the purchase money before notice of the rights of others, he will be protected, in equity, to the extent of the payments made before the receipt of the notice, but not for any payments made thereafter, and will not be protected as a bona fide owner. 14 Am. & Eng. Enc. Law (2d Ed.) 293. Though recognizing the full force of the rule, it would not follow that a court of equity would enforce a specific performance in favor of the party serving such notice. As before remarked, the specific performance of a contract cannot be demanded as a matter of right, but is decreed within the judicial discretion of the court, and upon principles of justice and equity. We think the Consolidated Company, though not falling strictly within the category of bona fide purchasers, should not be required to surrender the patents in question to the Bates Machine Company, but that the Bates Machine Company, if it has any right of action in the premises, should be remitted to its remedy (legal or equitable, as it may be advised) against the said A. J. Bates or Robinson and the Standard Railroad & Farm Fence Company. It is not contended the Consolidated Company, when it entered into the contract to purchase the said patents and paid the sum of $40,000 on said contract, had any notice or knowledge of the claim of the Bates Machine Company to the inventive services and skill of the said A. J. Bates. The Consolidated Company at the same time, and clearly with full belief it had the right to do so, and without notice to the contrary, employed said A. J. Bates to complete and perfect the said machine and the said fence to be manufactured upon it, and to complete the invention for it, and the inventions and the patents thereon to be the property of said Consolidated Company. While the law inclines to the rule that an invention shall be the property of the inventor, yet a man of inventive mind may, for a consideration, legally contract to devote his skill and inventive genius to an in

vention to be the property of his employer when completed and patented, and under a specific contract to that effect the invention may, in equity, become the property of the employer. Manufacturing Co. v. Dice, 105 Ill. 649. Any other rule would deny inventors the full benefit of their peculiar gifts and powers.

The Bates Machine Company was, when the Consolidated Company made this contract, engaged, under a contract with Robinson or in fulfillment of an order given by Robinson, in building and making the machine in question to make the fence. The contract between the said A. J. Bates, Robinson, and the Standard Railroad & Farm Fence Company and the Consolidated Company, provided that said Robinson, A. J. Bates, and the Standard Railroad & Farm Fence Company should defray the expense of building the machine. The Bates Machine Company rendered bills for the work to Robinson, and received payments in checks, some of which were signed by Robinson individually, but many of such checks were signed by "The Standard Railroad and Farm Fence Company, by A. J. Bates." In presenting one of the itemized bills for the work to Robinson, before the contract was made with the Consolidated Company, the Bates Machine Company included a charge for the time of A. J. Bates. The superintendent of the Bates Machine Company was then informed that A. J. Bates was practically the owner of one-half of the capital stock in the Standard Railroad & Farm Fence Company, and was under obligations to render his services about the work without charge, and the result was that the time charged for his work was stricken out. A similar question arose after the contract was made between A. J. Bates, Robinson, and the Standard Company with the Consolidated Company. The time of A. J. Bates was included in bills or a bill rendered by the Bates Machine Company for work done for the Consolidated Company, and on complaint the item was stricken out of the bill. W. O. Bates, secretary and treasurer of the Bates Machine Company at the time of the hearing below, and prior to September 25, 1895, superintendent for said Bates Company, would not, on his examination as a witness, deny but that such charge was withdrawn because A. J. Bates was receiving an annual salary as the employé of the Consolidated Company, and that the company was entitled to his services by reason of such employment. The Bates Machine Company made no claim to any right or interest in the machine, or the fence to be manufactured thereon, until after the said A. J. Bates, as an employé of the Consolidated Company, had, in the plant of the Bates Machine Company, under the circumstances as aforesaid, constructed the machine, tendered it as completed, and until after the officers of the Consolidated Com

pany had been for some days engaged, in the works of the Bates Machine Company, in inspecting the workings of the machine in the actual operation of building the woven wire fence out of wire supplied by the Consolidated Company for the purpose.

What duty or course of action should equity require to have been taken by the Consolidated Company on receiving the notice of July 7, 1896, that said Bates Machine Company claimed the right to the machine, ard the invention of the fence to be constructed by the machine? It had in good faith contracted for the machine and the inventions; had paid a large sum of money on the contract; had caused the work of making the machine and of planning and devising the invention of the fence to be carried forward by A. J. Bates, as its salaried employé, without objection or complaint on the part of the Bates Machine Company, though under circumstances well calculated to demand action on the part of the Bates Machine Company if it intended to advance any claim to the machine or the fence, or the patents thereon. When the notice was received an actual test of the machine was in operation, and the officers of the Consolidated Company were then, and for some days had been, at the works of the Bates Machine Company, superintending the work of the machine and the test thereof. No principle of equity or rule of law or morals would justify a decree declaring that it became the duty of the Consolidated Company to abandon the test then being made of the machine, refuse to make payment of the remainder of the contract price, and decreeing that the Consolidated Company should assign the patents afterwards obtained on the fence, and the machine to make the same, to the Bates Machine Company. The Bates Machine Company has no just grounds upon which to base a bill for a decree requiring the assignment of these patents to it. Whether it has cause of complaint and right of action against A. J. Bates in the premises is not within the purview of the pleadings and the evidence in the record.

The judgment of the appellate court is affirmed. Judgment affirmed.

(191 III. 461)

BLISS v. SEELEY et al. (Supreme Court of Illinois. Oct. 24, 1901.) WILLS RECORDING IN FOREIGN STATE-SUFFICIENCY OF RECORD-EFFECT AS NOTICEPARTITION-SUBSTANTIAL DEFENSE-ATTORNEY'S FEES-APPEAL.

1. Statute of Wills, § 9 (3 Starr & C. Ann. St. [2d Ed.] p. 4040), provides that all wills or authenticated copies thereof proven according to the laws of any of the United States, disposing of estates in Illinois, when accompanied by a proper certificate of execution, may be recorded in the latter state, and shall be good in like manner as wills executed therein. Section 33 of the act in regard to conveyances (1 Starr & C. Ann. St. [2d Ed.] p. 954) authorizes such record to be made in the office where deeds are

recorded, and provides that "the same shall be notice from the date of filing for record as in other cases." Held, that where a certified copy of a foreign will and of the proceedings for the probate thereof were not filed in Illinois until after a deed of the property to defendant, the latter was not chargeable with notice thereof, and took the property unaffected thereby, though the will was prior in date to defendant's deed.

2. The record in Illinois of a foreign will, accompanied by a certificate defective in not stating that the will was "duly executed and proved" according to the laws of the foreign state, is no notice, and will not prevail against a deed, though executed prior thereto.

3. Under Statute of Wills, § 9 (3 Starr & C. Ann. St. [2d Ed] p. 4040), authorizing the re cording of foreign wills, or authenticated copies thereof, in Illinois, and section 33 of the act concerning conveyances (1 Starr & C. Ann, St. [2d Ed.] p. 954), making such record notice of the existence of the will, a foreign will not so recorded is of no effect, as against a conveyance of the property, though admitted in evidence in partition proceedings.

4. Where no evidence as to the value of attorney's services appears in the certificate of evidence on appeal, and no facts in relation thereto are recited in the decree appealed from, an allowance of attorney's fees will not be sustained.

5. Where the defense to partition was based on a duly-executed foreign will, the effect of which when set up against a deed of the same property executed in Illinois was held good in the trial court, but the judgment was reversed on appeal, it was a substantial defense preventing the taxing of complainant's attorney's fees as costs in the proceedings, under the statute directing the apportionment of fees, unless some defendant shall interpose a substantial defense.

Appeal from circuit court, Shelby county; Samuel L. Dwight, Judge.

Bill by Silas E. Seeley against George P. Bliss and others for partition of 160 acres of land in Shelby county. From a decree entered on the report of commissioners ordering a sale of the property for division, and taxing complainant's attorney's fees as costs, defendant Bliss appeals. Reversed.

This is a bill for the partition of 160 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 II. 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 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 $9,000. 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 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 160 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 hi widow, his estate should be divided

among 10 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. The will also provided that, in case his wife, Caroline, should marry again, she should have one-third 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 at law 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 D. Seeley, all the undivided interest that Newton W. Hall had in and to the 160 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 160 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 about April 10, 1885, David William Hall died testate, and left a last will and testament, by the terms of which he devised all his interest in the estate of his father, James A. Hall, deceased, to her, the said Annie E. Hall, in consideration of money furnished to him by her during his two years' sickness. Her petition and answer also

alleged that on March 12, 1900, the will of David William Hall was proven, and admitted to probate in the probate court of Hitchcock county, Neb., and that by the terms of said will she became the owner of all the interest of David William Hall in the lands sought to be partitioned. When the testimony was taken before the special commissioner, to whom the cause had been referred to take the evidence and report conclusions, the solicitor of Annie E. Hall introduced in evidence what purported to be a transcript of proceedings in the probate court of Hitchcock county, Neb., in the matter of the estate of David William Hall, deceased, exemplified and certified to by C. W. Shurtleff, county judge, and clerk and custodian of the records in said Hitchcock county. These proceedings recite that on February 16, 1900, Newton W. Hall filed a petition in the county court of Hitchcock county in the matter of said estate, setting up that David William Hall died at Pueblo, Colo., April 25, 1887, and left no widow or children, and certain persons as his heirs, and praying for the admission of said will to probate. The proceedings further show that notice was given by publication for three successive weeks, and that a hearing was had by said probate court of Hitchcock county on March 12, 1900, on which date an order was entered admitting said will to probate. This will bore date April 10, 1885, and by its terms David William Hall willed "my interest, right, and title of my share of my father's estate in Shelby county, Illinois, to

Annie Hall, the wife of Newton Hall, for money furnished me during two years' sickness." The will purported to be signed by two subscribing witnesses living in the town of Stratton, in Hitchcock county, Neb. To the will was attached a certificate, signed by C. W. Shurtleff as county judge for the county of Hitchcock, aforesaid, and dated December 10, 1900. This copy of the will of David William Hall, together with the proceedings above mentioned, and the certificate thereto attached, was recorded in the recorder's office of Shelby county on December 17, A. D. 1900, several months after the present suit for partition was begun. Counsel for Annie E. Hall also introduced in evidence a will of David William Hall, exactly the same in terms as the will last above mentioned, but dated April 10, 1887, instead of April 10, 1885, which was witnessed by the same two subscribing witnesses, and to which was attached a similar certificate by the county judge; said certificate, however, being dated November 12, 1900, instead of December 10, 1900. The will dated April 10, 1887, purported to have been admitted to probate in the county court of Hitchcock county on the same day, to wit, March 12, 1900, on which the will of April 10, 1885, was probated; but the said will of 1887, together with the certificate thereto attached, was never recorded in Shelby county either in the probate or county court of said county or in the recorder's office of said county. The special commissioner, to whom the cause was referred, found that David William Hall died intestate, and refused to consider the will of David William Hall as vesting any interest in Annie E. Hall. Upon the trial of this cause in open court, after objections had been filed to the special commissioner's report before him, and had been overruled, and after the date of the report had been changed from February 9, 1901, to February 11, 1901, and after exceptions had been filed to the report and its findings by Annie E. Hall, counsel for Annie E. Hall offered in evidence still another copy of what purported to be a will of David William Hall, deceased, dated April 10, 1885, and the proceedings alleged to have taken place in the probate court of Hitchcock county, Neb., upon the probate thereof, together with a new certificate, signed by C. W. Shurtleff, judge of the probate court of said Hitchcock county, dated February 16, 1901. These last proceedings and the copy of the will were the same as those first introduced by counsel for Annie E. Hall, except that there was a new certificate, which certified that said will was duly executed and proven in said probate court of Hitchcock county, agreeably to the laws and usages of the state of Nebraska, and that said certificate was in due form of law, as required by the statutes of the United States and of the state of Nebraska. This last copy of the will, and of the proceedings for its probate, and of the certificate attached to it, were never recorded either in

the probate or county court of Shelby county or in the recorder's office of said county.

Cunningham & Boggs and Walter C. Headen, for appellant. E. A. Richardson, Chafee & Chew, and Wm. H. Craig, for appellees.

MAGRUDER, J. (after stating the facts). 1. The first question presented by the record in this case relates to the validity or invalidity of the deed executed to the appellant, Bliss, on July 3, 1900, and recorded on August 12, 1900, as affected by the will of David William Hall, alleged to have been admitted to probate in Hitchcock county, Neb., on March 12, 1900. Upon the assumption that David William Hall died intestate, his heirs were his brothers and sisters named in the statement preceding this opinion, as he died unmarried, and without children; and by the deed of July 3, 1900, all the interest which David William Hall had in the premises when he died, except the interests which passed at his death to his brother Newton W. Hall and his sister Mary Jane Hall, was conveyed to the appellant, Bliss. In other words, upon the assumption of intestacy, Bliss obtained by his deed whatever interest in the property owned by David William Hall at the time of his death passed to his heirs, except that which was inherited by the brother and sister last above named. If, however, the will of David W. Hall, alleged to have been made in Nebraska, is a valid instrument, and is in force as against the deed made to Bliss, then whatever interest David William Hall owned in the land at the time of his death passed to Annie E. Hall, the devisee in his will, and the deed to Bliss conveyed to him none of the interest which may have been owned by David William Hall when he died. The material inquiry, therefore, is whether any interest that may have been owned by David William Hall at the time of his death passed by the deed in question to Bliss, or whether the will of David William Hall is so far valid as to make such deed of no effect so far as it attempted to convey such interest. There is nothing in the alleged will of David William Hall, or in the proceedings for its probate in Nebraska, which appeals to our favorable consideration. The will, as presented at one time, purports to bear date on April 10, 1885, and, as presented at another time, purports to bear date on April 10, 1887. David William Hall died in Colorado on or about April 25, 1887. But the will claimed to have been left by him was not presented for probate until the 16th day of February, 1900, nearly 13 years after the death of David William Hall. No explanation is given of this long delay, or of the whereabouts of the will in the meantime. The proof tends to show that David William Hall resided in the state of Kansas, and yet the proceedings for the probate of his will were taken in the state of Nebraska. The petition to the county court

of Hitchcock county in Nebraska, asking for the probate of the will, was signed and presented by Newton W. Hall, the husband of Annie Hall, who was the sole devisee in the will. Upon the trial of the cause, sections 140-143 of the laws of the state of Nebraska (Comp. St.) relating to the probate of wills were introduced in evidence. Said section 141 provides that: "If no person shall appear to contest the probate of a will at the time appointed for that purpose, the court may, in its discretion, grant probate thereof on the testimony of one of the subscribing witnesses only, if such a witness shall testify that such will was executed in all the particulars as required in this chapter, and that the testator was of a sound mind at the time of the execution thereof." Said section 142 provides as follows: "If none of the subscribing witnesses shall reside in this state at the time appointed for proving the will, the court may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will, and, as evidence of the execution of the will, may admit proof of the handwriting of the testator, and of the subscribing witnesses." It appears from the order entered on March 12, 1900, admitting the will to probate, that Newton W. Hall made affidavit that both of the subscribing witnesses to the will, who, in their lifetime, had lived in Hitchcock county, Neb., were dead; and Newton W. Hall, although the husband of the sole devisee in the will, swore that the signature thereto was the signature of David William Hall. His signature was also sworn to by one other witness, named Edwin Wilson. Wilson and Newton W. Hall swore that David William Hall was of sound mind and memory in the fall of 1885, and also in the fall of 1886, although the will was made before either of those dates, to wit, on April 10, 1885. Neither Wilson nor Newton Hall, the only witnesses sworn upon the probate of the will, testified to the handwriting of the subscribing witnesses to the will, nor was there any testimony as to the signatures of the subscribing witnesses.

While the circumstances thus referred to justly subject the will and the proceedings for its probate to suspicion, we are not prepared to say that it should be rejected as a valid will on account of these suspicious circumstances alone. But we are of the opinion, for the reason hereinafter stated, that such will should not prevail against the deed made to the appellant, Bliss, so far as such deed purported to convey the interests of the brothers and sisters of David William Hall, and others holding under them, who signed said deed. Section 9 of the statute of this state in regard to wills provides that: "All wills, testaments and codicils, or authenticated copies thereof, proven according to the laws of any of the United States, or the territories thereof, or of any country out of the limits of the United States, and touching or