the decree and remanded the cause for further proceedings in the court below, "which will afford the appellant the right to the accounting prayed for in his bill of complaint." (202 Ill. App. 563.) The cause was re-instated in the circuit court, and upon a hearing a decree was entered sustaining the bill and complainant's right to an accounting. The account was stated by the court and defendants were decreed to pay to the complainant $4194.38, and defendant Noah C. Bainum was ordered to convey to complainant an undivided one-third interest in sixteen lots described. From that decree this appeal is prosecuted direct to this court on the theory that a freehold is involved.

In support of the alleged partnership complainant set out in his bill an agreement entered into on February 21, 1906, between himself, Noah C. and Charles A. Bainum and J. S. Sweeney, wherein it was agreed by the parties to purchase of Bernard S. Landes, of Mt. Carmel, Illinois, cer'tain real estate, consisting of thirty or more acres, for $460 per acre; that complainant was to furnish the money to pay for the land and the other parties would give him their promissory note for their part of the purchase money. For convenience of the parties the title was to be taken in the name of Noah C. Bainum, who was to hold it as trustee. It was further agreed that the land, when purchased, should at once be surveyed and platted into lots and become a part of the city of Mt. Carmel and the lots at once offered for sale upon such terms as the parties might thereafter agree upon. Out of the money first arising from the sale of the lots all expenses of platting and selling were to be paid and other money arising from the sale was to be applied on the note given complainant, and the balance one-sixth each to Charles A. Bainum and J. S. Sweeney and two-sixths each to Noah C. Bainum and the complainant. The agreement provided that Noah C. Bainum should have charge of the platting of the land and of the sale of the lots and was to receive ten per cent of the gross amount of sales for his ser

vices and that of any assistants he might employ. The land was platted into 215 lots, and at the time the decree appealed from was entered all of them had been sold except sixteen.

The pleadings did not, within the meaning of the statute and constitution, put in issue a freehold. The issues made by the pleadings were whether a partnership existed and whether complainant was entitled to an accounting of the partnership assets. Part of the assets was lots, but when a partnership is formed for the purpose of buying real estate not to hold permanently but to sell for a profit, as between the partners it is in equity regarded and administered as personal property. It is treated as assets and stock in trade of the partnership. (VanHousen v. Copeland, 180 Ill. 74; Speyer v. Desjardins, 144 id. 641; Morrill v. Colehour, 82 id. 618.) The principal issue made by the pleadings was whether a partnership existed between the parties in the enterprise. The result of finding in favor of complainant on that issue was that he had an interest in the partnership property, but that was incidental to the main issue and his right to an accounting. The bill did not pray that complainant be decreed to have an interest in real estate and that defendants be ordered to convey it to him. The bill was predicated on the claim that the purchase of the land, platting into lots and selling the lots were a partnership enterprise in which complainant was a partner and as such entitled to an accounting. If his rights in these respects were established by proof, it did not result, within the meaning of the law, that one party gained and the other lost a freehold, for in equity, between the partners, the sixteen unsold lots were to be regarded and administered as personal property, and the lots might as well have been ordered sold and the proceeds distributed among the partners, the same as the other money on hand. They were assets of the partnership, and the right of complainant to an interest in them, if the partnership was established, was of the same character as his right to an interest in the other as

sets of the partnership and considered and treated as personalty, to be disposed of and distributed among the partners.

In our view the appeal should have been taken to the Appellate Court for the Fourth District, and the cause is therefore transferred to that court. Cause transferred.

(No. 13061.-Reversed and remanded.)

JOSEPH W. BERRY VS. MARY EGAN, Appellee.—(Henry F. BERRY et al. Appellants.)

Opinion filed February 18, 1920.

1. DEEDS when burden is on donee occupying fiduciary relation to prove mental capacity of donor. Where the donor is of a weak or enfeebled intellect strong evidence is required to remove the presumption of undue influence arising from a fiduciary relation, and the burden is on the donee occupying such relation to prove both the fairness of the transaction and the mental capacity of the grantor.

2. SAME when housekeeper occupies fiduciary relation to the grantor. Where a grantor is of a weak intellect and relies upon his housekeeper to look after his business transactions a fiduciary relation exists, and the housekeeper, to whom the grantor has deeded his land, must show that no undue influence was exercised in obtaining the deed.

3. SAME-opinion of a non-expert witness on mental capacity must be based on facts. A non-expert witness will be permitted to express his opinion as to the mental capacity of a person only after he has detailed facts and circumstances upon which his opinion is based.

4. SAME―when former decree in partition suit is binding in suit to set aside deed. A decree in a partition suit which is not questioned or appealed from is final, and in a subsequent suit to set aside the deed of one of the parties to the partition an order in the decree of the partition suit that a certain claim shall be a lien on the share of the grantor is binding in the suit to set aside the deed.

APPEAL from the Circuit Court of Sangamon county; the Hon. F. W. BURTON, Judge, presiding.

CLINTON L. CONKLING, and BARBER & BARBER, for appellants.

C. F. MORTIMER, JOHN W. SHEEHAN, JOHN P. FLOOD, and OSCAR J. PUTTING, for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court: This is an appeal from a decree of the circuit court of Sangamon county denying the relief sought by a bill filed by appellants, as heirs-at-law of Joseph W. Berry, deceased, to set aside a deed made December 8, 1917, conveying about 175 acres of land in Sangamon county to Mary Egan, the appellee. The bill alleged that said land was worth about $45,000. The original bill was filed March 20, 1918, by the next friends of Joseph W. Berry. He died about a month thereafter, and an amended and supplemental bill was filed May 6, 1918, by appellants, as heirs-at-law. Both the original and supplemental bills alleged that on or about December 8, 1917, Joseph W. Berry, being then the owner of the land in question and being a feebleminded person, was by reason of unsoundness of mind incapable of managing and caring for his estate and unable to protect himself from the undue influence of Mary Egan to execute the purported deed of December 8 conveying the land to her. The bill also alleges that on February 9, 1918, she prevailed upon him to execute a purported five-year lease to her covering part of the same land, provided that she pay as rent for the cultivated land one-half of the grain and garden truck and as rent for 30 acres of pasture land one-half of the money from the sale of butter and eggs, the landlord to pasture his own animals free and furnish feed for all stock and poultry raised on the premises. The bill prays that both the deed and the lease be set aside and held to be void because of the undue influence of appellee and the lack of mental capacity of Berry to execute the same. After the issues were settled the case was referred to a master in chancery, who took and reported the proofs, and found that the deed and lease were made for a valuable consideration and were not executed as the result of undue influence; that Berry was

of sufficient mental capacity and understanding to execute the sale; that the estate under the lease expired at Berry's death. The chancellor overruled exceptions to the master's report and entered a decree in accordance with the findings thereof. This appeal followed.

Counsel for the parties sharply disagree on many points as to what the testimony shows with reference to the issues involved. It is therefore necessary for a fair consideration of these questions to set out the evidence in the record at some length.

The deceased, Joseph W. Berry, was born and had lived all his life in Sangamon county, a few miles east of Springfield, near Dawson. In 1898, when forty-seven years of age, he married a widow, Kate R. Dawson, who lived on the farm left her by her husband, a short distance south of Dawson, Berry then owning and living on farm land a short distance north of Dawson. On April 26, 1915, Mrs. Berry died intestate, leaving no descendants but leaving her husband and a niece and a nephew as her heirs. On May 13, 1915, Berry was appointed administrator of her estate after consultation with Circuit Judge Elbert S. Smith, then in active practice as an attorney in Springfield. Attorney Smith testified in this proceeding that in attempting to investigate the condition of the wife's estate he found very difficult to ascertain any accurate details from Berry; that he seemed to have a poor memory and lacked comprehension of the affairs as to his wife's estate; that after considerable trouble Smith found that at the time of the wife's death one of the Springfield bankers held a note executed jointly by Mrs. Berry and her husband for over $20,000, and that there was another note of $2000 signed by the same parties to Amaziah Ratcliff, each bearing seven per cent interest. Mrs. Berry owned at her death some 370 acres of land. After her death, while Berry was administrator, this land was divided in court by partition proceedings, and on November 10, 1917, 175 acres of the same

it