As to the government it may not be a common carrier within the legal significance of that term, but it is nevertheless engaged in interstate commerce. In the case at bar the defendant in error was, without question, at the time of this accident a common carrier engaged in transmitting from one State to another freight and merchandise for hire. It was also engaged in interstate commerce in transporting the mails for hire. That being true, Lane, as its employee, in carrying the mail from defendant in error's train to the Illinois Central train was engaged in interstate commerce, as was also the Illinois Central Railroad Company, which transported the mail after it was delivered to it by him. The latter company was also a common carrier, and its trains were doing an interstate business in the transporting of freight and merchandise.

Our conclusion is that the Federal statute applies to this case, and therefore, under all the decisions on that subject, excludes any action under our State statutes. The Federal statute provides that every common carrier by railroad, while engaged in commerce between any of the several States or territories, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, his or her personal representatives. "The true test of employment in such commerce in the sense intended is, was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" (Shanks v. Delaware, Lackawanna and Western Railroad Co. 239 U. S. 556.) We are supported in our conclusion in this case by two very strong and well reasoned cases rendered by the California and Massachusetts Supreme Courts, viz., Zenz v. Industrial Accident Com. 176 Cal. 304, and Lynch v. Boston and Maine Railroad Co. 226 Mass. 522.

Upon the second phase of the question we cannot agree with plaintiff in error's contention that Lane had completed

the task of delivering the mail to the Illinois Central depot, and that what he was intending to do at the time he was killed, or his next task, was the business in which he was then engaged. He had not returned to his employer's depot when he was injured. His return trip was as much an incident to and a part of his work of delivering the mail for the Illinois Central train as was his trip to that train. Kusturin v. Chicago and Alton Railroad Co. 287 Ill. 306. The judgment of the circuit court is affirmed. Judgment affirmed.

(No. 13314.-Cause transferred.)

ALBERT ZIMMERMANN et al. Appellants, vs. PATRICK H. DAWSON, Exr. Appellee.

Opinion filed October 23, 1920.

APPEALS AND ERRORS-leasehold estate for ninety-nine years is not a freehold. A leasehold estate for ninety-nine years, or for any number of years, is not a freehold but is a chattel real and a part of the personal estate of a decedent, and an appeal from a decree denying specific performance of an agreement to convey such an estate cannot be taken directly to the Supreme Court.

APPEAL from the Superior Court of Cook county; the Hon. DENIS E. SULLIVAN, Judge, presiding.

JOSEPH A. WEBER, for appellants.

HENRY FRANKFURTER, for appellee.

Mr. JUSTICE DUNCAN delivered the opinion of the court: Appellants, Albert Zimmermann and Elizabeth Zimmermann, filed a bill in the superior court of Cook county December 8, 1918, against Patrick H. Dawson, as executor and as an individual, to compel the specific performance of an alleged agreement to convey a leasehold interest in certain city lots known as Nos. 512, 514, 516, 518, 520 and 522

South Kedzie avenue, in Chicago, situated at the northwest corner of Harrison street and Kedzie avenue. An answer was filed to the bill and on a hearing the court dismissed the bill for want of equity, and this appeal was perfected to this court.

The averments in the bill are, in substance, that James J. Tracey in his lifetime and at the time of his death, October 10, 1918, was the owner of the leasehold estate, which was for a term of ninety-nine years, beginning November 1, 1909, and expiring October 31, 2008; that the deceased left a last will and testament, which was duly admitted to probate by the probate court of Cook county, and that on November 25, 1918, letters testamentary were duly granted to Patrick H. Dawson, who was named as executor in said will; that by the provisions of the will Dawson, as executor, was given full power and authority to sell and convey by quit-claim or warranty deeds any and all real estate held and owned by the deceased at the time of his death; that a short time prior to his death the testator, Tracey, made and executed to Dawson a quit-claim deed to all his interest in the ninetynine year leasehold; that Dawson continued to act as executor of said estate, and on September 12, 1919, entered into an agreement with appellants to sell the leasehold estate to them for the sum of $22,000, and that pursuant to said agreement appellants paid to the executor the sum of $1000 on the contract of sale; that thereafter Dawson sought to evade the agreement and as executor sought to sell the leasehold interest under an order of the probate court of Cook county and refused to comply with his agreement with appellants, and that appellants had at all times been ready and willing to comply with the agreement of purchase. Appellee by his answer admitted the ownership by the testator in his lifetime of the leasehold interest and the making of the will as alleged in the bill, and that he became executor and has continued to act as such under the will, as alleged; that the testator before his death executed

and delivered a quit-claim deed to him to the premises, and that as a member of the firm of P. H. Dawson & Co., real estate brokers, he negotiated with appellants for the sale of the leasehold interest, but alleged that the same was to be sold through the probate court, and that the sum agreed on ($22,000) was the amount that appellants were to bid on the property, and that the $1000 paid to him was not received by him as earnest money on the sale; that on presenting the matter to the probate court that court directed that the leasehold be sold as personal property, and that the court refused to allow the executor to accept the bid of appellants and directed that the leasehold be sold at public auction and entered an order to that effect. Appellee denies that any contract was executed with appellants for the sale of the leasehold estate and avers that he is about to proceed to sell the same through the probate court and that he believes that a larger sum may be obtained than the sum of $22,000. Appellee also sets up the Statute of Frauds and claims it as a defense to the bill. A mere formal replication was filed to the answer.

Appellee has made the claim in this court that this court has no jurisdiction of this appeal. This court has no jurisdiction unless a freehold is involved. It is clear from the

pleadings as above set forth that no freehold is involved in this case. While an estate for life is a freehold, an estate for years, even if it be for a thousand years, is not a freehold. (2 Blackstone's Com. 143.) Such a leasehold as the one here involved has been held to be a chattel real and reckoned as part of the personal estate. Thornton v. Mehring, 117 Ill. 55.

This court having no jurisdiction, it is ordered that the cause be transferred to the Appellate Court for the First District. Cause transferred.

(No. 13409.-Cause transferred.)

EDITH LAMONT WHEELER CALDWELL CHAPMAN et al. Appellants, vs. THE NORTHERN TRUST COMPANY, Trustee, Appellee.

Opinion filed October 23, 1920.

I. WILLS-when freehold is not involved in bill against trustee to carry out decree construing will. A freehold is not involved in a bill against a trustee to require it to carry out the provisions of a decree construing a will and directing the payment of the net income of a trust estate to the complainants, where the sole issue is whether the trustee is justified in refusing to obey the decree on the ground that it is not protected against the setting aside of the decree within three years by parties who were served by publication, only.

2. FREEHOLD when a freehold is involved. A freehold is involved only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate or where the title to a freehold is so put in issue by the pleadings that the decision necessarily involves a decision of that issue.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN P. McGOORTY, Judge, presiding.

FISHER, BOYDen, Kales & Bell, (Albert M. Kales, ROSWELL B. MASON, FRANCIS H. BOHLEN, and WILLIAM K. Oris, of counsel,) for appellants.

JUDAH, WILLArd, Wolf & REICHMANN, for appellee.

Mr. JUSTICE FARMER delivered the opinion of the court: This is an appeal from a decree of the circuit court of Cook county dismissing on the hearing a bill filed by appellants to require the Northern Trust Company, trustee, to carry out and put into immediate effect certain provisions of a decree entered by the circuit court of Cook county in a proceeding to construe the will of Louisa G. Bigelow and declare the rights and interests of the parties under said will.

The facts and circumstances out of which this litigation arose are substantially as follows: Louisa G. Bigelow died.