set aside and declared null and void and that the estate of the testator be distributed among his heirs according to the laws of descent. A demurrer to the bill was sustained and a decree entered dismissing the same for want of equity. The complainants have brought the record to this court by appeal.

The question presented is whether the desire and intention of a man who has made his will to revoke the same but who is prevented from doing so by the fraud or coercion of a party who will be benefited by the will not being revoked, are sufficient to justify a court of equity in decreeing the revocation of the will and setting it aside.

Section 17 of chapter 148 of Hurd's Statutes reads as follows: "No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law." Most, if not all, of the States of the Union, as well as England, now have similar statutes. The history of this legislation is referred to in section 244 of Page on Wills. Prior to the enactment of any legislation upon this subject in England, the question whether an intention to revoke a will was sufficient to constitute a revocation was considered by the courts, and the courts held that such an intention. was sufficient to effect a revocation. These decisions led to such uncertainty in the stability of wills and to such suspicion that wills were being defeated by perjury that an act was passed defining what was necessary to the revocation of a will by the testator in his lifetime, and, as above stated, the various States of this country have enacted similar legislation. It will be seen our statute provides that no

will or codicil shall be revoked otherwise than by burning, canceling, tearing or obliterating the same by the testator himself, or by someone in his presence and by his direction. and consent, or by some other will or codicil duly executed. Under similar statutes the courts of this country have practically uniformly held, and text-book writers also lay down the rule, that the mere intention to revoke a will, unaccompanied by any act of the testator to execute that intention, will not be sufficient to revoke the will, even though the execution of the intention was frustrated by the fraud and improper conduct of other persons. Slight acts of tearing, burning or canceling, with the purpose and intention of revoking a will, may be sufficient for that purpose, but the intention to revoke, unaccompanied by any of the acts of destruction required by the statute, is insufficient.

In section 255 of Page on Wills the author discusses the question whether the prevention of the revocation of a will by fraud of the beneficiaries is sufficient to justify a court in declaring a revocation under statutes providing what acts will be sufficient for that purpose, and says the weight of authority is that in the absence of any of the acts specified in the statute a will cannot be revoked by the intention of the testator alone, no matter by what deceit he was prevented from manifesting his intention. According to the author but three States (Connecticut, Georgia and Tennessee,) have decided a contrary view, but in some, if not all, of these States there was at the time of the decisions no statute specifying what acts were necessary to revoke a will. Mr. Page expresses the view that there ought to be provided by law some remedy in a case where the testator was prevented from revoking his will by actual coercion. Any such remedy, however, would have to be provided by statute.

The following are some of the authorities in point in support of the proposition that where there is a statute providing what acts will constitute revocation of a will,

proof of an intention to revoke, unaccompanied by any of the acts provided by statute, is not sufficient to revoke a will: Jarman on Wills, (4th ed.) 162; Gains v. Gains, 2 A. K. Marsh. 190; Blanchard v. Blanchard, 32 Vt. 62; Mundy v. Mundy, 15 N. J. Eq. 290; Clingan v. Mitcheltree, 31 Pa. St. 25; Kent v. Mahaffey, 10 Ohio St. 204; Hise v. Fincher, 10 Ired. 139; Delafield v. Parrish, 25 N. Y. 9; Graham v. Burch, 47 Minn. 171; Runkle v. Gates, 11 Ind. 95.

The decree of the circuit court sustaining the demurrer to and dismissing the bill for want of equity is affirmed. Decree affirmed.

EDWARD J. PHILLIPS, Appellee, vs. JACOB GLOS et al.-(D. ARNOLD and Lucy M. GLOS, Appellants.)

Opinion filed June 21, 1912.

1. EJECTMENT plea of not guilty is not a denial that the defendants claim title or interest. A plea of not guilty in an action of ejectment brought under section 7 of the Ejectment act for unoccupied premises is not a denial that the defendants claim title to or an interest in the premises, as that issue is raised in actions of ejectment by filing a special plea verified by affidavit.

2. SAME when court may direct a verdict for plaintiff under section 7 of Ejectment act. One who acquires title to unoccupied premises to which other persons claim title or interest under tax deeds is not obliged to take possession and file a bill to remove the tax deeds as clouds but he may bring ejectment under section 7 of the Ejectment act, and if he proves title the court may direct a verdict in his favor as against the defendants, who file a plea of not guilty but do not dispute the title.

APPEAL from the Circuit Court of Cook county; the Hon. SAMUEL C. STOUGH, Judge, presiding.

JOHN R. O'CONNOR, for appellants.

WILLIAM GIBSON, for appellee.

Mr. JUSTICE FARMER delivered the opinion of the court:

This is an action of ejectment brought by Edward J. Phillips against Jacob Glos, D. Arnold and Lucy M. Glos for lots 1 and 10, block 3, Summerdale Park, a subdivision in section 7, township 40, north, range 14, east of the third principal meridian, Cook county. The suit was brought under section 7 of the Ejectment act, for unoccupied premises. Jacob Glos filed a disclaimer and the suit was dismissed as to him. D. Arnold and Lucy M. Glos filed pleas of not guilty. A jury was empaneled and the evidence heard. At the conclusion of the testimony the court, on motion of plaintiff, instructed the jury to return a verdict in his favor. A motion to set aside the verdict and for a new trial was overruled and judgment rendered in favor of the plaintiff upon the verdict. To reverse that judgment the defendants, D. Arnold and Lucy M. Glos, have prosecuted this appeal.

That plaintiff proved title in himself of record is not denied. Defendants offered in evidence certain tax deeds, but as no preliminary proof entitling them to admission was offered they were not admitted, and no complaint is made of this ruling of the court. There was no proof that anyone had been in possession of the lots since 1887. The plaintiff, called as a witness by the defendants, testified the premises were unoccupied at the time the suit was begun and that there was nothing to have prevented him from taking possession at that time.

Appellants say the principal ground upon which they rely for a reversal of the judgment is that the evidence was insufficient. This claim is based upon the testimony of appellee that the premises were unoccupied when the suit was begun. Appellants insist that they were only theoretically vacant and unoccupied for the purpose of bringing an ejectment suit under section 7 of the Ejectment act, and thus avoiding the necessity of filing a bill to remove the tax deeds as clouds upon the title and reimbursing the holders

for the taxes paid by them. Section 7 of the Ejectment act authorizes bringing an action of ejectment for unoccupied premises against any person claiming title thereto or some interest therein. Appellants do not deny claiming title to or some interest in the premises, and on the trial offered a tax deed or deeds as evidence of such title or interest. The plea of not guilty is not a denial that the defendant claims title to or an interest in the premises. That issue is made in actions of ejectment by filing a special plea verified by affidavit. (Hurd's Stat. 1911, chap. 45, secs. 21, 22.)

Appellants contend that as appellee could have entered into the possession of the premises before and at the time he brought the suit, the case is to be considered as if he had been in possession and had vacated for the purpose of enabling him to begin an action of ejectment instead of filing a bill to remove cloud from title. There is no proof whatever that appellee was ever at any time in possession of the premises. So far as disclosed by the evidence the lots were vacant and unoccupied when appellee acquired title to them and he never at any time took possession of them. He was not required to do so, but was authorized by the statute to bring ejectment against any person claiming title to them while they were thus vacant and unoccupied. True, he might have taken possession and then filed a bill to remove cloud, but he was not obliged to do so. The only question to be determined in the case was one of title. Appellee's title was proved and was undisputed by any evidence in the record. We think the court properly directed a verdict for appellee, and that the judgment is abundantly warranted by the evidence.

We think there was no abuse of discretion in the ruling of the court denying appellants leave to file additional pleas during the progress of the trial. Glos v. Patterson, 209 Ill. 448.

The judgment is affirmed.

Judgment affirmed.