(Michael v. Marshall, 201 Ill. 70,) nor does it ordinarily apply to gifts from a parent to a child. To place the burden of proof upon one standing in a confidential relation to show the absence of fraud or undue influence in the making of a will, such person must be shown to have been directly connected in some manner with the making of the will. In re will of Barry, 219 Ill. 391.

The facts that Joseph Yess, who occupied a fiduciary relation to his mother, was the active agent in having the will prepared; that he procured its preparation by his agent, who was a stranger to his mother; that he and his agent, alone, were present with her when it was drawn; that she was the dependent party and he the dominant party, and that he profited substantially by the will, are circumstances tending to show the exercise of undue influence. (Weston v. Teufel, 213 Ill. 291; Leonard v. Burtle, 226 id. 422; England v. Fawbush, 204 id. 384.) Though the provision for Joseph in this will is the same as in the former will, there is evidence that the former will also was prepared at the instance of William and Joseph at a lawyer's office, and that they, alone, were present with the lawyer and their mother when it was explained to her and executed. It is not intended to intimate whether or not these circumstances have been explained or modified by other circumstances shown by the evidence. That is a question to be determined by the jury from a consideration of all the evidence and by the court upon a motion for a new trial. In reviewing the action of the court complained of, we do not weigh the evidence, we can look only at that which is favorable to the appellants. From that view the issue of undue influence should have been submitted to the jury, and the court erred in withdrawing it from their consideration.

The decree is reversed and the cause remanded,

Reversed and remanded.

THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY VS. ADA S. GARRETT et al.-(JENNIE HENRY et al. Appellees, vs. PRISCILLA BOOTH WALSH et al. Appellants.)

Opinion filed October 26, 1912.

1. LACHES-laches may be used as a defense independently of Statute of Limitations. Laches may be used as a defense independently of the Statute of Limitations, and the question whether the defense shall be sustained depends largely upon the particular circumstances of each case.

2. SAME-doctrine of laches applies even to trustees or guardians. The doctrine of laches is a defense to an action based upon alleged misconduct of a guardian where more than forty years have passed since the transactions in question, during which time most of the witnesses having knowledge of the facts have died, public records have been burned and documents lost, and where the evidence produced is so unsatisfactory that the granting of relief would rest largely upon conjecture.

3. GUARDIAN AND WARD-what tends to show that the guardian was not negligent. The fact that the adult owners of the equity of redemption quit-claimed their interests to the purchaser at the foreclosure sale instead of redeeming, tends to show that the guardian of the minor owners was not negligent in failing to redeem for his wards, particularly where the price paid was some four times the amount of the encumbrance and was a fair price for the land at that time.

4. SAME what does not render sale to a guardian void. The fact that the purchaser of land at a foreclosure sale, who paid the fair value of the land, bought for the purpose of selling it at the same price to the guardian of the minor owners of the equity of redemption, does not render the transaction void but only voidable at the suit of the interested parties, brought within a reasonable time after acquiring knowledge of the facts.

VICKERS, J., dissenting.

APPEAL from the Superior Court of Cook county; the Hon. THEODORE BRENTANO, Judge, presiding.

DAVID M. BALL, and E. W. ADKINSON, for appellants.

SAMUEL H. TRUDE, for appellees.

Mr. JUSTICE CARTER delivered the opinion of the court:

In a condemnation proceeding filed in the superior court of Cook county in 1907 by the Chicago and Northwestern Railway Company against various owners of property included in the site now occupied by its new Chicago city passenger depot, the jury assessed the damages for the benefit of the owners of certain premises which for the purpose of this case may be described as No. 38 West Randolph street, at $22,000. All persons supposed to be interested in said property were made defendants, but before a finding was made by the court as to the owners, said $22,000 was in February, 1909, paid, by agreement, into the county treasury of Cook county for the benefit of the owners and parties interested, as thereafter to be ascertained. Appellees do not appear to have been made parties to the condemnation proceedings but filed their intervening or cross-petition on July 24, 1909, claiming that they were entitled to a part of said $22,000 fund. The controversy herein arises between the different claimants to said fund, appellants claiming as the heirs of Daniel Booth, deceased, while the appellees claim as the heirs of Joseph J. Kendrick, deceased, who owned the property prior to its being obtained by Booth. The trial court found that the heirs of Daniel Booth held title to an undivided third of the premises in trust for the use of appellees, and that the latter were entitled to one-third of the $22,000 deposited by the railway company with the county treasurer, and onethird of certain rents received by said Booth and his heirs, less such deductions as might thereafter be found proper.

The facts as shown by the record are, in substance, as follows: Joseph J. Kendrick died intestate May 7, 1857, seized of the premises in question, clear of encumbrance. On the front of the lot was a tavern kept by Kendrick and the family lived in a building at the rear. Kendrick left a widow, Mary Ann Kendrick, and one adult daughter, (who afterwards married a man by the name of Barker,)

and four minor children: Adeline Louise, who afterward married a man by the name of Meyer; Eliza Jane, who afterward married one Jackson; Joseph Henry Kendrick and George W. Kendrick. Daniel Booth was a farmer and justice of the peace, residing in the town of Jefferson, Cook county. He appears to have been an intimate friend of the Kendrick family and to have transacted considerable business for them. The records of Cook county having been burned during the great fire, the details concerning the management, control and transfer of this lot prior to October, 1871, are uncertain. There were introduced on the trial a copy of an abstract covering certain years, a private memorandum book of Daniel Booth, a few scattered documents with reference to the guardianship proceedings, and some oral testimony. From these it appears that Daniel Booth acted as administrator of the Kendrick estate, or at least performed the duties ordinarily performed by an administrator, and also acted as an agent in renting, and collecting the rents for, the property for the adult heirs and as guardian of the minor heirs. From the abstract in question it appears that August 16, 1859, he, as guardian of the four minor heirs, joined with the adult heir (Mrs. Barker) and the surviving wife of Kendrick, (who having re-married was then Mrs. Boedecker,) together with the husbands of the last two named, in giving a mortgage on the premises in question to James Booth. The amount secured by this mortgage does not appear. In Daniel Booth's account book there is a charge against him for "Booth, $460," which may or may not have been received on this mortgage. This item is not dated but appears in the accounts for the year 1860. A credit in this book dated December 21, 1860, reads: "Paid to J. Booth, principal and interest, $521.30." At nine per cent interest this would be slightly more than would be due on the mortgage if the principal had been $460, and at ten per cent a little less. A note introduced in evidence, dated July 10,

1866, indicates that money was then drawing nine per cent, and the amount found due in the foreclosure hereinafter mentioned indicates that the interest rate of that mortgage was ten per cent. The record does not show any release of this earlier mortgage. December 21, 1860, Daniel Booth, as the guardian of the minor heirs, united with the adult parties that joined in the earlier mortgage to give another mortgage to James Booth on the property in question to secure $900. The account book does not show a charge for this amount, but we find no reason from the record to assume that the money derived from the mortgage, except the minors' share, was paid to Daniel Booth. The accounts in the book in question do not purport to be an account of the guardianship estate, and we might infer that the guardianship matters were kept in another account, as there is an item in this account book, "By settlement in favor of guardian, $228.92," without any details as to what constituted that settlement. The items in the account book mainly concern rent and repairs on the property, which Booth would necessarily look after, if at all, so far as the adult owners were concerned, as agent and not as administrator. There are some documents and items in the record referring to the guardianship, but no connected series of accounts from which it is possible to make up a balance or tell what was actually done by the guardian as to the minors' share in this property. On December 11, 1863, James Booth filed a bill in the superior court of Cook county to foreclose the later mortgage. January 13, 1864, a guardian ad litem was appointed and five days later a decree of foreclosure entered, the amount found due being $1179. A master's sale was had in February, 1864, and a deed dated May 27, 1865, and filed for record shortly thereafter, was given for the premises in question to James Booth. The sale was for $4600. It must be presumed from this record that this purchase price was paid to the master and distributed by him to those who were entitled