taken from the records of the war department at Washington, D. C. The purpose of introducing these records was to prove the effect that the water coming from the sanitary district channel had produced upon appellee's lands. Instructions Nos. 12, 13 and 14 given on behalf of appellee refer to these records, and the substance of the instructions is, that if the jury believe, from a preponderance of all the evidence, that the appellee had made out her case and was entitled to recover, they should find the verdict for her, notwithstanding the maps, and marks and figures thereon, and gauge readings, might be contrary to the preponderance of the evidence. In other words, the instructions advise the jury that this evidence coming from the records of the war department was not conclusive; that it was simply evidence to be considered in connection with all the other evidence of the case in arriving at a verdict. The criticism made upon these three instructions is, that they, in effect, take from the consideration of the jury the evidence referred

We do not agree with this view. While the records. referred to were competent testimony and entitled to consideration, yet they are not incontrovertible proof of the facts recited.

It is also said by appellant in its argument upon these instructions that they invade the province of the jury, and, in effect, advise the jury that the evidence referred to is not entitled to any weight. In our opinion the instructions were not subject to this construction. Appellee was apparently apprehensive that the jury might be inclined to give undue weight to these official documents and to disregard all other evidence in the record that did not agree therewith, and it was evidently to meet this possible view that the instructions in question were given. No witness testified to the accuracy of these official records, nor is there any statute, so far as we are advised, that makes them conclusive of the matters contained therein. The evidence shows that a part of these records were made, in the first instance, un

der the authority of the Illinois and Michigan canal commissioners, by employees of the State of Illinois, and were afterwards copied by employees of the Federal government and made a part of a report to Congress in connection with an investigation made for the purpose of determining the feasibility of a deep waterway from Lockport to St. Louis. Conceding that records thus made are competent evidence they are not absolutely conclusive of the matters therein contained, and it was not improper for the court to so advise the jury, which is the effect of the instructions complained of.

Appellant complains of statements made by counsel for appellee in the opening statement and in his closing argument to the jury, and also of repetitions of certain questions to witnesses after the court had sustained objections to the questions. Some of these complaints are not wholly unfounded. Appellant interposed objections, and they were sustained by the court and counsel were admonished to keep within the rules of legitimate argument. The rulings of the court upon these objections were proper. Had the court overruled the objections and permitted the improper line of argument to stand before the jury with the approval of the court, a somewhat different question would be presented. While we are not prepared to say that misconduct of counsel might not be so flagrant as to warrant a reversal notwithstanding the rulings of the court were correct, we do not regard the case at bar as one of that character, and while we cannot approve the action of counsel for appellee in every respect, we do not think that it was so prejudicial as to require a reversal of a judgment which is otherwise free from error.

Finding no reversible error in this record the judgment of the circuit court is affirmed. Judgment affirmed.

Gertrude ELLIOTT, Appellant, vs. GOODIE J. PRATER et al.

Appellees.

Opinion filed October 28, 1913.

HUSBAND AND WIFE-when presumption that conveyance was a gift is rebutted. Where land upon which the husband and wife reside is conveyed to the wife by the grantor, who had previously contracted to convey it to the husband, it will be presumed the conveyance was made by the husband's direction or with his consent and that it was intended as a gift or advancement to the wife; but this presumption is rebutted by proof that the husband continued in possession and control of the property, improved it, paid the taxes and used the income, and that the wife paid nothing, exercised no control over the property, and stated in conversations with third persons that she did not own the property but that it belonged to her husband.

APPEAL from the Circuit Court of Christian county; the Hon. A. M. ROSE, Judge, presiding.

W. B. MCBRIDE, for appellant.

TAYLOR & TAYLOR, for appellees.

Mr. JUSTICE FARMER delivered the opinion of the court: Appellant, Gertrude Elliott, filed her bill in the circuit court of Christian county for the partition of 120 acres of land therein described. The bill alleges the land was owned in fee by Anna P. Goodrich, who died intestate December 24, 1905, leaving surviving her a husband, Charles F. Goodrich, and as her children and only heirs-at-law William A. Goodrich, Goodie J. Prater and appellant. The bill alleges appellant became the daughter of Anna P. Goodrich and her husband by adoption by order and decree of the county court of Christian county in 1891, in a proceeding by said Anna P. and Charles F. Goodrich for the adoption of appellant. The bill alleges that upon the death of Anna P. Goodrich the other two children and appellant each in

herited an undivided one-third of the premises, subject to the right of the surviving husband; that in March, 1907, William A. Goodrich died testate, and by his will devised all his interest in said lands to his father, who died testate May 21, 1909, and by his will devised all interest he owned in the premises sought to be partitioned, to Goodie J. Prater, subject to the life estate of his widow, he having married again after the death of Anna P. Goodrich. The bill alleges appellant is still the owner of the undivided onethird interest inherited from her adoptive mother and that Goodie J. Prater is now the owner of the undivided twothirds of said premises, and prays for partition and an accounting for rents and profits. The answer of defendants was also in the nature of a cross-bill and was so considered and treated by court and counsel at the hearing. Defendants denied that Anna P. Goodrich was the owner, at the time of her death, of the land sought to be partitioned, or that she had any interest therein except that she held the naked legal title in trust for Charles F. Goodrich, who was the equitable owner thereof. They also denied that appellant was the adopted daughter of Anna P. and Charles F. Goodrich, and aver that the proceedings in the county court set up and relied upon by appellant to establish her claim of adoption were void and of no effect, for the reason that the county court had no jurisdiction to enter said order and decree. It appears from the averments of the answer that after the death of Anna P. Goodrich, the son, William A., and the daughter, Goodie J. Prater, made conveyances of all their interest in the 120 acres of land to their father, Charles F. Goodrich, and he conveyed to them each 60 acres, in severalty, of said premises, subject to a life estate in himself. The conveyances of the son and daughter to their father are alleged to have been made for the purpose of quieting the grantee's title by vesting in him the legal as well as the equitable title. By the will of William A. Goodrich, who died before his father, he de

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vised his lands to his father, and the father devised them upon his death to the daughter, Goodie J. Prater, who claims she thereby became the owner in fee simple of the whole of said 120 acres of land.. The answer avers that the appellant, never having been adopted by the Goodrichs, took no interest in the land upon the death of Anna P. Goodrich. As the answer prayed some affirmative relief it was treated as a cross-bill and as such was answered by appellant. Her answer denies that Anna P. Goodrich held the title to the land as trustee for her husband, and alleges that Goodie J. Prater and the widow of Charles F. Goodrich are estopped from denying the validity of the adoption proceedings and from asserting that Anna P. Goodrich held the title to the land in trust for her husband. The cause was heard before the chancellor, and he found that Goodie J. Prater is the sole owner, in fee simple, of the premises sought to be partitioned, subject to the rights of Anna M. Goodrich, the widow of Charles F. Goodrich, in a portion thereof, and declaring that appellant, Gertrude Elliott, had no right, title or interest to or in said premises or any portion thereof, and dismissing the bill at her cost. She has prosecuted this appeal from that decree.

The first question to be determined is whether Anna P. Goodrich was the owner of the land at the time of her death, or whether she was a trustee, holding the title in trust for her husband. There is no controversy in the testimony as to how the title was acquired. In 1888, and prior thereto, the father of Charles F. Goodrich owned a farm of 240 acres in Christian county, of which the 120 acres in controversy were a part. In the year 1888 he entered into an agreement with Charles F. to convey to him the premises sought to be partitioned, for $40 per acre. At the same time he entered into a similar agreement with another son to convey to him the other 120 acres of the farm. No cash payment was made by Charles F. and no deed was made, but a bond or other writing was given