The grounds upon which it is contended that a deed from the master in chancery would not convey a merchantable title to the appellant are, that the court had no jurisdiction to construe the will in the first chancery suit because no trusts were involved; that by the renunciation of the widow her life estate came to an end and the contingent remainder was defeated for want of a precedent estate to support it; and that the decree for partition failed to state where the fee to the undivided half of the premises not in the widow was then vested, and therefore did not determine the titles of the parties.

Courts of equity have always had power to construe wills, but prior to the passage of the act in force July 1, 1911, providing that such courts may hear and determine bills to construe wills notwithstanding no trusts or questions of trusts are involved therein, (Laws of 1911, p. 253,) it was not proper to exercise the power if no trust was involved. That was because the jurisdiction was a part of the control of courts of equity over trusts, and if only legal titles were involved there was a complete and adequate remedy at law, but a decree construing a will was not void and was binding until reversed on appeal or writ of error. (Parsons v. Millar, 189 Ill. 107; Miller v. Rowan, 251 id. 344.) The purpose of the first chancery suit was to have the court take hold of the interest relinquished by the widow and appoint a trustee to preserve it for the benefit of those who would become entitled to the remainder, and the construction of the will was only incidental to that purpose if it was involved at all. The decree was not void.

Counsel also seeks to apply the rule that in order to have a contingent remainder there must always be a particular estate to support it and the remainder must vest during the existence of the particular estate or at the instant of its determination. From that rule it is argued that the renunciation by the widow of the life estate devised to her left no precedent estate upon which the contingent remain

der could rest, and therefore it was destroyed. That rule does not apply to a case where a widow renounces the provision made for her in her husband's will, because the fact that she chooses to decline the provisions of the will in her favor does not destroy the will or render any part of the estate intestate, but under the statute legacies and bequests are to be equalized and the property not taken by the widow passes by the will. (McMurphy v. Boyles, 49 Ill. 110; Marvin v. Ledwith, 111 id. 144; Laurence v. Balch, 195 id. 626; Lewis v. Sedgwick, 223 id. 213; Dunshee v. Dunshee, 251 id. 405.) The widow having made her election, under the statute, to take one-half of the estate, she relinquished her life estate in the other undivided half, and the rule of equity is, that where a legatee or devisee, having a right of election, exercises the right, the court will take hold of that which is relinquished, to compensate, as far as may be, the disappointed devisees. Equity will sequester the devise or bequest renounced and apply it in place of the devises or bequests defeated. The rule is stated in Pomeroy's Equity Jurisprudence, (vol. 1, sec. 517,) as follows: "A court of equity will then sequester the benefits intended for the electing beneficiary in order to secure compensation to those persons whom his election disappoints. This rule is applied in many of the American cases cited below to elections made by widows in favor of their dower and against the testamentary provisions, whereby the interests of other devisees were disturbed. Such disappointed devisees are held entitled to compensation out of the benefits intended to be conferred by the will on the widow but which she had rejected,"-citing numerous cases. The same rule is stated in the American and English Encyclopedia of Law, (vol. II, 2d ed. 115,) and has been repeatedly applied by this court. (Wilbanks v. Wilbanks, 18 Ill. 17; Carper v. Crowl, 149 id. 465; Bell v. Nye, 255 id. 283.) The court in the first chancery suit sequestered the life estate in the undivided half of the property rejected by the widow and

appointed a trustee to take charge of it, and the income from it, until her death, which was in accordance with the law and within the jurisdiction of the court.

It is insisted that the court did not find the titles in the decree for partition, but while not strictly accurate in language the findings were sufficient. They were, that Agnes B. Wakefield was the owner of an undivided half of the property; that the other half was a contingent remainder, and that Louis O. Eddy had been appointed trustee therefor. There was no uncertainty as to whom the different parts of the property were to be set off. Even if there had been any error in the decree for which it might be reversed, the appellant, as a purchaser and not a party to the record, would be protected. Section 30 of the Partition act provides that conveyances in pursuance of sales shall operate as an effectual bar against all parties and privies to such proceedings and all persons claiming under them, and it has been held that a purchaser who is not a party to the record has a right to rely upon the decree and is not required to look beyond the question of jurisdiction. Denk v. Fiel, 249 Ill. 424.

Counsel for appellant contends that he is not subject to the general rule stated in Chandler v. Morey, 195 Ill. 596, that the purchaser at a judicial sale becomes a party to the sale and if he does not object to the report of sale is bound by it, and the reason given is, that his objection is not to anything contained in the report but that the proceedings antecedent to the sale were defective, and we have ignored that question and decided the case on its merits.

Finally, it is contended that if the appellant had no valid objection, still the court had no power to compel him to comply with the terms of the sale, but the only proper practice is to order a re-sale at the bidder's risk and hold him for any loss. The method insisted upon as the proper one has been followed in different cases and is proper, (Hill v. Hill, 58 Ill. 239,) but it has been frequently declared

that the court may summarily require the bidder to pay the amount of his bid, (Dills v. Jasper, 33 Ill. 262; Chandler v. Morey, supra;) and in the latter case the court quoted with approval a holding that a bidder may be compelled to complete his purchase by an order of the court and by its process for contempt, if necessary.

The order is affirmed.

Order affirmed.

THE VILLAGE OF ROSSVILLE, Appellee, vs. J. R. SMITH et al. Appellants.

Opinion filed December 17, 1912.

I. SPECIAL ASSESSMENTS-Section 56 of Improvement act does not prevent court from setting aside confirmation judgment during term. Section 56 of the Local Improvement act, which provides that the judgments of the court shall be final and subject to review only by appeal or writ of error, does not deprive the county court of power to set aside, alter or vacate a confirmation judgment during the term it is rendered.

2. SAME-statute authorizes proceedings to be heard at a law or probate term. Section 51 of the Local Improvement act authorizes a proceeding to confirm a special assessment to be heard either at a law or probate term of the county court.

3. SAME when the default by objectors is properly set aside. Where there is nothing in the petition or ordinance for a paving improvement to indicate that the improvement will infringe any patent, and the village authorities, upon inquiry being made of them, state that the ordinance does not call for a patented pavement and that there will probably be many bidders in competition for the work, whereupon the property owners waive objections and are defaulted, it is not error to open up the default, when it appears that there is only one bidder, and permit the trial of the question whether the work will infringe a certain patent.

4. SAME ordinance cannot require use of patented article obtainable from only one source. A municipal corporation cannot, in an ordinance for a local improvement to be paid for by special assessment, require the use of a patented article not purchasable in the market or material which can be obtained from only one person, firm or corporation, even though the owner of the patent

or the material agrees to furnish it at a fixed price to any contractor bidding; and although the ordinance does not show, on its face, that the article specified is patented or controlled by a single owner, that fact, if true, may be proved.

5. The court reviews the evidence in this case, and holds that the specifications call for the construction of a pavement which infringes a patent owned by a single concern, and that, as competition was thus prevented, the village had no power to pass the ordinance, regardless of proof of the reasonableness of the bid for the work.

APPEAL from the County Court of Vermilion county; the Hon. LAWRENCE T. ALLEN, Judge, presiding.

ACTON & ACTON, for appellants.

THOMAS A. GRAHAM, ARTHUR R. HALL, GEORGE A. RAY, and LINdley, PenwelL & LINDLEY, for appellee.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the

court:

This is an appeal from a judgment of the county court of Vermilion county confirming, over the appellants' objections, a special assessment for a street pavement. The petition was filed April 1, 1912, and on April 22, all legal objections having been waived, a default was entered and judgment was rendered confirming the assessment. On May 11 the appellants made their motion to set aside the order of confirmation and give them leave to file objections to the confirmation on the ground that the specifications contained in the ordinance require the construction of a wearing surface which cannot be constructed without infringing a certain patent known as the "Warren Bros. Company patent," and that on account of the existence of such patent no one but the patentee or his assigns can construct such pavement and there can be no free, open competition in the construction of the work, and the property owners will be deprived of their statutory right to put in the pavement for ten per cent less than the bid. On May 27