this will cannot be said to be an inofficious one as regards the wife and the son. It was a rational act rationally done, according to the solicitor's evidence. The respondent's reasoning is, in my opinion, fallacious. This testator must have been insane, he argues, because, though under the belief of his wife and son's heinous criminality, yet he did not disinherit them altogether, but left them a considerable portion of his estate. But there is, in that theory, no compatability between the efficient cause and the effect. It is petitio principii, it is assuming that the will was made because of that delusion. Now that is the very question to be determined. And I cannot but help thinking that if it were that delusion that had guided the mind of the testator when he made this will, he would not have given a cent to his wife and to his son. If he had disinherited them altogether, they would be justified in contending that it was an insane delusion that had influenced him to do so. But I cannot see that they can base such a contention on the ground that he left them a portion of his estate. What he left them, it is true, is less than what he had left them by the first will, but that he left them anything at all, that he appointed his wife one of the executors, that he appointed her guardian to his infant children, seems to me utterly irreconcilable with the proposition that he was, at that time, acting under the impulse of hatred or of vengeance and under the impression that he had suffered a most grievous tort at their hands."

While an unnatural or unjust disposition of property does not evince insanity (see the note to Morgan v. Morgan, 13 Ann. Cas. 1037), it may afford some evidence that a delusion of the testator as to a relative who was disinherited by the will was effective in producing the will. Evans v. Arnold, 52 Ga. 169.

A delusion of a testator will not be deemed to have effected his will unless it was entertained by him at the time the will was made. In re Merriman, 108 Mich. 454, 66 N. W. 372; Stull v. Stull, 1 Neb. (unofficial) Rep. 380, 389, 96 N. W, 200; Philadelphia Trust, etc. Co. v. Drinkhouse, 17 Phila. (Pa.) 23, 41 Leg. Int. 164.

It requires a very strong case to induce a court to set aside a will at the instance of persons not heirs-at-law at the time the will was made on the ground that the testator entertained towards them an insane aversion, though by an unlooked for casualty they have become the heirs. Cleveland v. Lyne, 5 Bush (Ky.) 383.

Infirmity from old age does not render a person incapable of making a will unless it has so far impaired the testator's mind that he is incapable of understanding his business at the time he is engaged in making the will. Same.

To sustain an allegation of want of testamentary capacity, something more than mere physical disease and old age on the part of the testator must be shown. Insane Delusion.

An "insane delusion" which will render one incapable of making a will is a belief in a state or condition of things in the existence of which no rational person would believe, or a belief in something impossible in the nature of things, or impossible under circumstances surrounding the individual, and which refuses to yield either to evidence or

reason.

[See note at end of this case.] Same.

Prejudice of the testator against a relative is not ground for setting aside a will unless it can be explained upon no other ground than that of an insane delusion.

[See note at end of this case.] Unequal Division as Indicating Incapacity.

The unequal division of property among his heirs does not itself justify a finding of want of testamentary capacity, as the testator has the right to dispose of his property as he thinks best.

[See 13 Ann. Cas. 1044.] Same.

Unequal disposition of property is a circumstance which the jury may consider in connection with other evidence in passing on the mental capacity of the testator. Ancestral Insanity Presumption.

It cannot be presumed that the testator is insane merely because his father was insane, as, until the disease manifests its presence, its existence cannot be inferred in the mind of the person in question.

Belief in Spiritualism and Witchcraft. The fact that a person believes in witchcraft, clairvoyance, spiritual influences, presentiments of the Occurrences of future

22

events, dreams, mind-reading, and the like does not show testamentary incapacity as a man's belief cannot be made a test of sanity.

[See Ann. Cas. 1914C 1049; Id. 1915D 573.] Excitability as Evidence of Incapacity.

The fact that testator shed tears when conversing about his deceased daughter, or grew excited when talking about business affairs that were troubling him, does not in itself prove testamentary incapacity. Disease as Evidence of Incapacity.

Hardening of the arteries is no proof of testator's mental incapacity without a showing that it actually did affect the mind. Test of Testamentary Capacity.

A person who is capable of transacting ordinary business is capable of making a valid will.

[See generally Ann. Cas. 1915A 362.] Same.

To incapacitate the person from making a will, the derangement must be of that character which renders him incapable of understanding the effect and consequences of his act; it must be a want of capacity which prevents him from understanding the relation of cause and effect in ordinary business matters.

Foolish Conduct as Evidence of Incapacity.

That an old man, a widower 72 years of age, after his daughter's death, proposed marriage to two different women, is not very strong proof of unsoundness of mind, especially where he was unhappy with his home life with his son-in-law.

Evidence of Incapacity Insufficient.

In a will contest, a finding that a testator 72 years of age was wanting in testamentary capacity held against the great weight of the evidence. Evidence No Change in Testator's Condition Observed.

In a will contest in which it was claimed that testator did not have testamentary capacity, a witness may state that he had observed no change in testator, and that he was, on the day the will was executed, the same as he was any other day the witness ever saw him.

1

Testamentary Capacity – Comprehension of Estate "Without Prompting." An instruction in a will case basing mental capacity on understanding the nature and extent of ins property "without prompting" is erroneous, where there is no evidence that he was prompted.

Same.

An instruction on testamentary capacity that if testator was of sound mind he had the right to cut off his grandchild, as only heir at law, and had the right to give his property to persons who would not have been heirs at law had he died without a will, but if he did not possess a sound mind or memory then he had no right to cut her off and give his property to persons not his heirs, is erroneous as having a tendency to permit the jury to decide whether the will was just or unjust as to the various relatives. Instruction Not Warranted by Evidence.

Where at the time a testator made a will there was no evidence that he was suffering from mental derangement, anger, or jealousy, an instruction based on those facts is erro

neous.

Appeal from Circuit Court, Shelby county: JETT, Judge.

Action to contest will. Mary E. Carnahan, plaintiff, and Nathan Hamilton, executor, defendant. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. REVERSED.

Whitaker, Ward & Pugh and Steidley & Crockett for appellant.

William H. Ragan and George B. Rhoads for appellee.

[509] CARTER, J.-This was a bill filed by appellee, Mary E. Carnahan, to contest the will of her grandfather, Payton A. Bond, of whom she was the only heir-at-law. After an answer and replication were filed an issue of fact was submitted to the [510] jury as to whether the instrument in question was the last will and testament of Payton A. Bond, deceased. The jury found in the negative. A motion for new trial was overruled and a decree entered in accordance with the verdict. Thereupon this appeal was prayed.

The will was executed on April 4, 1910, at which time Bond was seventy-two years of age. He lived until May, 1913. His wife died some fifteen years previous and he never afterward re-married. At the time of his wife's death they had one child living, Julia Ann. After his wife died Bond lived on his farm in Shelby county with said daughter, Julia Ann, and her husband, William Carnahan, until her death, January 25, 1910. She left surviving two children, one of whom was appellee, then fifteen months old, and the other a baby just born and who died within At the time a few days after its mother. of making the will Bond had three sisters living and one sister deceased, who left surviving her several children and descendants of deceased children. Very shortly after the will was executed Bond took a trip to Okla

return he lived with one of his sisters in the city of Pana, Christian county, Illinois, until the time of his death. At the time the will was made he owned 160 acres of land in Shelby county, upon which he and his son-inlaw were then residing, besides some personal property. Some time thereafter he purchased a house and lot in Pana, which he continued to own until the time of his death. By his will he gave his grand-daughter, appellee herein, $100 and all his household goods and effects. To his sisters then living, and the heirs of the deceased sister, he gave the 160-acre farm, the will further providing that all other personal property, goods and chattels should go to the heirs heretofore mentioned. The will contained no residuary clause as to real estate, and consequently the house and lot that he afterward acquired in the city of Pana would descend to his granddaughter, appellee herein.

[511] The bill averred that Payton A. Bond, the testator, was of unsound mind and memory at the time of the execution of the will; that at that time he was suffering from insane delusions and therefore did not possess testamentary capacity. Upon the trial of the case appellant produced forty witnesses who testified they were acquainted with the testator, and that in their opinion he was capable of transacting ordinary business affairs and understood the nature of his property and the natural objects of his bounty, relating various conversations they had had with him during the last few years of his life. Among this number of old acquaintances and neighbors,-farmers, physicians and bankers,--most of them having known him all the way from ten to fifty years, and many testified their acquaintance had been of an intimate nature. On behalf of appellee thirteen witnesses were introduced, the majority of them relatives of her father. Most of these thirteen witnesses testified they had seen and talked with Bond near the time he executed the will, and that at that time they did not think he was of sound mind and memory or had sufficient mental capacity to transact ordinary business, or was able mentally to understand the extent of his property or who his relatives were. It is apparent, however, from the testimony of at least one or two of these witnesses, that they were not certain on this point. The allegations of the bill admit, and it is conceded in the briefs of appellee, that subsequent to the execution of the will the testator took care of and transacted his business. The theory of counsel for appellee is that mental incapacity existed at the time of the execution of the will by reason of delusions, jealousy and sickness, from which he subsequently recovered though he never fully regained his ordinary health.

Appellant contends that the verdict is manifestly against the great weight of the evidence. Appellee contends that this question cannot be raised in this court as no motion was made at the close of all of the evidence asking for a [512] peremptory instruction, citing in support of this contention Dowie v. Sutton, 227 Ill. 183, 81 N. E. 395, 118 Am. St. Rep. 266. That case was brought to this court by way of the Appellate Court. What was there said about the failure to give a peremptory instruction being a waiver of the question as to whether there was sufficient evidence to support the verdict has no bearing on a case like this, brought here directly from the trial court. In that case the court cited Long v. Long, 107 Ill. 210, where it was said the rule is well settled by the previous decisions of this court that in will contests like the present "the finding of the jury is conclusive unless clearly against the weight of evidence [citing authorities], and in this respect they are put upon the same footing with cases at law. Such being the case, it would seem to follow-and we so hold the finding of the Appellate Court in conformity with the verdict of the jury is conclusive upon all questions of fact. Ordinarily the finding of the facts by the Appellate Court, in a chancery proceeding, is not conclusive on this court, but this class of cases, under the construction given to our statute, does not fall within the general rule, but such cases are treated in this respect, as we have already seen, as actions at law." This case was properly brought directly to this court because a freehold was involved. In all cases of this kind thus brought here this court has always reviewed the evidence regardless of whether a peremptory instruction was asked of the trial court, and has reversed such cases when in the judgment of the court the verdict of the jury was clearly and manifestly against the weight of the testimony.

The physician who attended the testator at the time of his death had known him for about ten years and testified that he had hardening of the arteries, and that this condition, in the three or four years before his death, had gradually grown worse; that he had poor circulation, generally, but mostly complained of pain in his feet; that his death was caused by gangrene, beginning in one of his feet, which condition was superinduced by hardening of the arteries; [513] that a man of the age of the testator at that time who has been active in his life is more or less troubled with hardening of the arteries. We judge from the record that the testator had been in fair health most of his life. There is evidence tending to show that he had an attack of la grippe in December, 1909, and remained in bed until near the middle of February; that he was troubled at the

same time with piles and fistula; that on this account he was unable to attend either the funeral of his daughter on January 25, 1910, or that of the new-born child four days later. We think the weight of the evidence shows that he was up and around during the month of March that year, going on business or otherwise to Pana, Assumption and other near-by places. There is some evidence on the part of appellee that during this time he complained that his head troubled him. Two days after the will was drawn Dr. Martin, who had treated him in the preceding January for the "grip," testified he was called from Tower Hill to treat him; that on April 6 in question he found him in bed with a high temperature and apparently suffering intensely, and that the cause was an abscess just over the nose, in the forehead; that he saw him later, on April 25, and the abscess had broken and he was practically recovered. He testified, also, that he noticed that the testator's arteries were hardening, and other conditions arising from old age. This is substantially all the testimony in the record bearing on the testator's physical condition during the last three or four years of his life. So far as the record discloses he was in fair health, considering his age, after April, 1910, until his final sickness, which lasted only a few days.

In the forenoon of April 4, 1910, testator left his farm, where he was residing with his son-in-law, William Carnahan, and walked to the home of a neighbor, Joseph Kelly, living about three miles and a half away, where he had the will in question drawn by Kelly. Charles Simmons, another neighbor, who lived about a mile south of the Bond home, [514] testified that he had met the testator going to Kelly's, and the two, having been acquainted for years and having often transacted business together, stopped and had quite a visit; that during the conversation Bond asked Simmons if he had seen Kelly pass there that morning, stating that he was going to Kelly's to have his will made; that he was going to take a trip out west and might meet with an accident or might get sick, and he wanted his business matters fixed up before he went away. Simmons further stated that after they parted testator went on toward Kelly's home. Joseph Kelly, who drafted the instrument here in question, died in May thereafter. His wife testified that the testator came to their house the morning of April 4 and talked with her husband about making his will. The witness had known testator all his life and talked with him on that day. Her husband and testator sat down at a table to write the will, Mrs. Kelly leaving the room. After the will was written, some time that afternoon, Bond left to get someone to witness it, and

came back with Isaac Lockwood and George W. Simpson, who signed as witnesses. Mrs. Kelly further testified that in her conversation with testator he spoke of his sisters and said they were always good to him and that he wanted to leave something to them, and also spoke of his grand-daughter (appellee herein) in a friendly way; that he said nothing while he was there to indicate that he was angry with any of his relatives. Lockwood and Simpson were plowing in a field about a quarter of a mile from Kelly's house when the testator asked them to witness his will. They consented and walked with him to Kelly's, where the will was signed and witnessed. They talked with him in a general way from the field to the house, and both testified that he showed no anger at the time the will was signed or at any time that day when they saw him. Both of these witnesses had known him for years. Mr. and Mrs. Kelly, Lockwood and Simpson were the only ones present with testator in the house at the time the will was signed and witnessed. [515] The three that were living all testified that they believed him to be of sound mind and memory at that time, and that he was able to transact the ordinary business affairs of life and understood what property he owned, who were his heirs and the natural objects of his bounty. Charles Simmons testified that testator on that or the next evening came to his house and drank a cup of coffee at the supper table, remaining there, visiting, some twenty or thirty minutes. Simmons and Simpson saw him frequently between the time the will was drawn and the date of his death, and both testified that they thought he had testamentary capacity at all of their interviews. Many farmers who lived near Bond, and a number of merchants and business men who had known him and met him before, about the time and after the will was drawn, all testified substantially to the same effect,-that in their judgment he was a man of sound and disposing mind and memory. The physician who attended him during his last illness testified that in his judgment Bond's mental condition was such in 1910, and until his death, that he was able to transact ordinary business affairs, understand what property he owned and who were his relatives. He stated on cross-examination that a person having hardening of the arteries was sometimes affected thereby so that he might be predisposed to irrational likes and dislikes. There was, however, nothing in the testimony of this witness that indicated that he was of the opinion that the testator was predisposed in this way. Dr. Martin, to whose testimony we have heretofore referred with reference to treatment for an abscess on April 6, 1910, stated on direct examination for appellant that in his judgment, in the

years 1909, 1910 and 1911, testator was competent to transact the ordinary affairs of life and understood the extent of his property, who were his heirs and the natural objects of his bounty. He stated on crossexamination that on April 6, 1910, when he treated testator for this abscess, he did not think testator was in condition to transact ordinary [516] business, and that from what the testator said to him then and what he saw, the condition he found him in was one that in his opinion had existed for several days. We do not understand this witness' testimony as stating, as contended by counsel for appellee, that he (the doctor) thought testator lacked testamentary capacity at that time, but only that he was in such pain then that witness would not say he was in a condition to transact ordinary business.

There was nothing in the testimony of any of the forty witnesses who testified for the appellant, except that of Dr. Martin, to which we have just referred, that could in any way be construed as indicating that the testator was not of sound and disposing mind and memory at or about the time the will was executed or at any other time, or that there was anything in his actions or talk that in the slightest degree indicated that he was possessed of an insane delusion or harbored an unreasonable jealousy against any of his relatives or friends. It would serve no useful purpose to set out in detail the testimony of all these forty witnesses. They are all in substantial accord upon the issue here involved.

Mrs. Alta Rowley, who was a niece of William Carnahan, appellee's father, lived in testator's family from the time of his daughter's death, in January, 1910, until June after the will was executed. She was at that time seventeen years of age and unmarried. She testified that she thought testator was not of sound mind from February to June of that year; that she did not mean that he was of unsound mind at all times, but that he had spells, and when he had these spells he was not of sound mind; that usually he talked naturally, just as anyone else would, but would get worked up and nervous at times. The witness further testified that while she worked there Bond proposed marriage to her; that she advised him to get someone older than she was, and he replied she was his choice; that he would only live a few years, and if she married him she would have a [517] home after he was gone and could take someone younger; that he never talked to her about marriage but this once; that she overheard him ask Mrs. Halbrook, who was then living there, to marry him.

Mrs. Mary Halbrook (now Mrs. Carnahan, the wife of appellee's father), testified that

from February 20 to April 4, 1910, testator was not of sound mind and memory, did not understand what property he owned or its value or who his relatives were; that she had known the testator as long as she was old enough to remember, and that she was keeping house for him and Carnahan, with the assistance of the witness last referred to, after Mrs. Carnahan's death until she married Carnahan, in June of that year. She testified that the testator proposed marriage to her in March, 1910; that during that conversation he asked her if she would drop one of her admirers and marry him; that if she would do that she would have a home the rest of her days. She testified that during that or another conversation on the subject he asked her whether she was engaged to Oscar Pope or William Carnahan, saying it was all right if she was going to marry the former but he did not want her to marry Carnahan; that he stated that if she did not marry him he would change his will and go out west; that when she refused him he became sullen and remained in that condition for several days; that during these talks about marriage he would sometimes cry and seem quite excited; that the last conversation he had with her about this matter was April 4, 1910; that she did not see him again until late that evening. Mrs. Carnahan further testified that when Bond came home after the will was drawn he was taken sick in the night, and the next morning Dr. Martin was called and treated him for the abscess heretofore referred to. The witness further stated that during her conversations with the testator he had talked about some money he said his father had buried on the old home place by a stump, and that he had dug for this money and believed he would be able to find it. The witness further [518] testified that she had been married three times and that she had been divorced from her second husband; that shortly before the testator had proposed to her she had been engaged to Oscar Pope, but had broken that engagement prior to her talks with the testator.

William Carnahan, the father of appellee, testified that he believed that when the testator left home on the morning of April 4, 1910, he knew what he was talking about and had sense enough to know who his relatives were and what property he owned. He testified that after the testator's daughter's death he (the witness) told Bond he did not know what he was going to do with appellee; that he did not see how he could take care of her and keep the home; that he had about decided to put her in an orphanage; that testator broke down and cried and said to the witness to get somebody to come and keep house; that he did not want the child