text:
    L. S. Holderman et al. v. Edward C. Gray.

      Filed at Springfield

      October 31, 1889.

    1. Tbtjst—whether a trust exists—sufficiency of proof. In this case, the evidence showed that a party bought and paid for certain town lots, and had a conveyance therefor made to his wife, who was not shown to have paid any part of the consideration. She, being in very poor health and expecting not to live, united with her husband in a deed to a friend of the latter, the deed expressing $1000 as the consideration, but the evidence showed that the grantee paid nothing. There was proof that the grantee agreed, at the time of the conveyance, to hold the lots in trust, and in case of the wife’s recovery he would reconvey to her, or, in the event of her death, to the husband. There was no change of possession, and the husband continued to occupy the premises for many years thereafter, and paid all taxes thereon and exercised acts of ownership up to the death of the grantee, some twelve years after the date of the deed. It was also proved that the grantee admitted that the lots belonged to the husband, and he wrote two letters to the latter, stating that he would convey the property to him or to any one as he might direct, which letters were lost: Held, that the proof was sufficient to sustain a decree establishing a trust in the grantee, and requiring his heirs to convey to the grantor, his wife having died.
    2. Witness—competency—a party to the suit, against heirs. On bill against the heirs-at-law of a deceased person, to compel them to execute a deed for land, on.the ground that their ancestor held the land in trust for the complainant, the latter is not a competent witness to prove the trust.
    Appeal from the Circuit Court of Ford county; the Hon. Alfbed Sample, Judge, presiding.
    This was a bill in equity, brought by Edward C. Gray, against L. S. Holderman and George H. Edwards, and others, heirs-at-law of Charles H. Wyman, (alias Edwards,) deceased, to enforce a conveyance of lots 1, 2, 3 and 4, block 60, in Mix’s addition to Paxton.
    It appears from the testimony heard on the trial, that the lots originally belonged to'James-Mix, who sold them, by contract for deed, to J. R. Francis. Francis tranferred the contract to Shepardson, and in 1867 Shepardson sold the contract to Edward C. Gray, the complainant. Gray at once took possession of the lots, and subsequently paid the balance of the purchase money, and on March 2, 1871, James Mix conveyed the property to Frankie Y. Gray, wife of complainant. On the 10th day of December, 1875, Frankie Y. Gray and complainant conveyed the lots to Charles H. Wyman. At the time this conveyance was made, complainant and his wife had no children. The wife was in poor health, and it is contended by the complainant that the deed was executed in pursuance of an agreement entered into between himself, his wife and Wyman, that Wyman was to hold the title to the lots in his name, and in the event that Frankie Y. Gray recovered her health, the deed was to be returned, but if she died, then Wyman was to convey to the complainant, or to such other person as he might dire.ct.
    The answers of defendants admit the conveyance of the premises by Mix to Frankie V. Gray; deny that any agreement of any kind was made by and between said complainant and said Charles H. Wyman, alias Austin L. Edwards, as charged in the bill of complaint; deny that said conveyance was made to Wyman upon the trusts in the bill mentioned, or upon any trust or confidence whatever; aver that if any such agreement as mentioned in said bill, or any such trust between complainant and the said Wyman, existed, the same was not manifested by any writing signed by said Wyman, and the same was void under and by virtue of section 9, chapter 59, of the Revised Statutes of Illinois, and the respondents rely upon the defense of such statute as fully as if specially pleaded.
    The complainant filed a replication to the answers, and on the hearing, on the pleadings and evidence, the court rendered a decree in favor of the complainant, as prayed for in the bill, to reverse which the defendants appealed.

      Mr. J. B. Mann, for the appellants:
    The appellee was incompetent to testify, and without his testimony the decree is without support.
    The recital in the deed of the payment of $1000 raises a presumption against the allegation of a voluntary conveyance, and such allegation' must be proved by evidence of a clear and convincing-character. 2 Washburn on Beal Prop. 619.
    The presumption of a valuable consideration being wholly unrebutted, no trust in favor of appellee can be established except by a written declaration signed by the grantee, when the defense of the Statute of Frauds is interposed.
    As to the pretended letter referred to by Earl, enough appears to show its utter worthlessness as a declaration or admission of trust. As to the application of the Statute of Frauds, see Steere v. Steere, 5 Johns. Ch. 1; Lawson v. Lawson, 117 Ill. 98; Stevenson v. Crapnell, 114 id. 19.
    Doubtless cases may be found in which it has been held that where one procures a deed to be made to him by one and his wife, with the agreement that he is to convey the same to another, or to one of the grantors, such agreement is not within the Statute of Frauds. But such eases have no application to the one at bar, for the reason that the allegations of the bill are, that appellee procured Wyman to take a deed, and the title was to be held by him in trust, to reconvey to Mrs. Gray if she recovered her health, and in the event of her death, to hold the same in trust for the appellee. The principle involved in the ease at bar is identical with that in Stevenson v. Crapnell, supra.

    Mr. Thomas F. Tipton, for the appellee:
    If a party obtains title to real property, with the understanding that he is to hold the title for the grantor, this is sufficient to raise a trust in favor of the latter, and this fact may be proved by parol. 2 Washburn on Resal Prop. (3d ed.) 451; Dennis v. McCagg, 32 Ill. 429; Morgan v. Clayton, 61 id. 35; Strong v. Shea, 83 id. 575; Switzer v. Stiles, 3 Gilm. 529; Wright v. Gay, 101 Ill. 233; Brophy v. Lawler, 107 id. 284; Roller v. Spillman, 13 Wis. 33.
    If a party assumes, voluntarily, a confidential relation toward another, he can not thereafter do any act for his own gain at the expense of that relation. Allen v. Jackson, 122 Ill. 571; Kerr on Fraud and Mistake, (Bump’s ed.) 151-179; Reed v. Peterson, 91 Ill. 295.
    In such case a trust arises by construction of law. Allen v. Jackson, 122 Ill. 571; Perry on Trusts, (1st ed.) 166; Kerr on Fraud and Mistake, (Bump’s ed.) 150; Beach v. Dyer, 93 Ill. 295; Doyle v. Wiley, 15 id. 576; Trotter v. Smith, 59 id. 240; Tiffany & Bullard on Trusts, 113, 115, 120.
    The deed being executed for the sole purpose of placing the title in appellee on the death of Frankie Y. Gray, the case is .not affected by the Statute of Frauds. Henschel v. Mamero, 120 Ill. 660; Allen v. Jackson, 122 id. 567; Wright v. Gay, 101 id. 241; Fishback v. Gross, 112 id. 209.
    When the title to land is received by a party by reason of .a confidential relation, and under such circumstances that he ought not, according to the rules of equity, to hold and enjoy the beneficial interest of such property, courts of equity will raise a trust by operation of law, and will decree a conveyance. Reed v. Peterson, 91 Ill. 295; Allen v. Jackson, 122 id. 567.
    A contract within the Statute of Frauds is binding on the parties, and can only be avoided by invoking the statute. The right to plead the Statute of Frauds is a personal right, and -does not extend to heirs and assigns. Kelly v. Kendall, 118 Ill. 650; Insurance Co. v. Gordon, 20 Bradw. 566; Mitchell v. King, 77 Ill. 462; Hughes v. Lumsden, 8 Bradw. 185; Brown on Statute of Frauds, sec. 135.
    As to all the facts occurring after the death of Wyman, and .also as to the loss of the letters and the search for them, see 1 Wharton on Evidence, secs. 151, 476; Wade v. Wade, 12 Ill. 89; 47 N. Y. 289.
   Mr. Justice Craig

delivered the opinion of the Court:

The deed from Frankie V. Gray and complainant to Charles H. Wyman recites a consideration of $1000 as paid for the lots, but it is not shown by the evidence that any consideration was in fact paid by Wyman for the deed, and we think it is apparent, from an examination of all the evidence, that no consideration ever passed from Wyman for the property. Wy-man never went into the possession of the property, but the possession remained in complainant after the deed was executed, as it did before. Wyman paid no taxes on the property after the deed was made to him, but the complainant, each year after the making of the deed, paid the taxes, as he had done from the time he made the purchase, in 1867. Wyman exercised no acts of ownership over the property, and when spoken to in regard to it, referred parties to the complainant. Wyman at one time owned certain lots in the same locality where these lots are situated, and after he had sold them, and while he held the deed to the property in controversy, he declared that he had “got clear of the last piece of property he owned in Paxton.” Indeed, Wyman never, at any time after the conveyance to him, during a period of nearly twelve years before his death, treated the property as a person would who owned it; and while there may be some doubt in reference to the true nature of the contract between Wyman and complainant when the deed was made, we think it is apparent that Wyman paid nothing for the property, and did not receive the deed as a purchaser.

If, then, there was no consideration for the deed, the next question to be determined is, whether WymaWheld the property in trust for complainant. The contract for the lots was purchased, in the first instance, by complainant, in 1867. This is shown by Shepardson, who testified that he sold the contract to E. G. Gray, and he paid for the same. Shepard-son assigned the contract to complainant. It is true that Gray subsequently assigned the contract to Frankie Y. Norton, whom he subsequently married; but there is no evidence that she paid anything for the assignment, and we do not regard the assignment to her of any special importance. After a due consideration of all the evidence, we think it fair to conclude that complainant purchased the property, and owned it when the conveyance was made to Wyman. The complainant testified that Wyman paid nothing for the property, and that he held it in trust, to be conveyed to him, or to such person as he might direct. He also testified, that he received two letters from Wyman after the deed was executed, in which Wyman wrote, over his own signature, that in case complainant’s wife recovered, he was to convey the property back to her, but if she died, then he was to convey to complainant, or to any other person as complainant might direct.

If this evidence was competent, it might, in connection with the other facts proven, authorize the court to render the decree. But it is said that the defendants interposed their defense as heirs of Charles H. Wyman, deceased, and under the statute the evidence of complainant is inadmissible. Under the terms of our statute" we do not think that the evidence of complainant was admissible. But excluding complainant’s evidence, he established substantially the same facts by the witness Earl. Earl, as he testified, had two conversations with Wy-man, in which the latter stated how he held the title to the lots, and he testified that he saw and read the two letters which complainant testified were written by Wyman. It is said this witness is not to be believed ;° but he was not impeached, and so far as this record shows his evidence is reliable.

It appears that the sheriff called on the complainant with executions, and demanded property, and that complainant told the sheriff that he had no property, and this admission, it is insisted, is strong evidence that complainant had no interest in the property in controversy. If the defendants had interposed the defense that complainant had,conveyed this property for the purpose of defrauding creditors, such evidence might have an important bearing in the decision of the ease; but that defense was" not relied upon, and we do not regard the declaration made to the sheriff, under the circumstances, as of controlling importance. We do not, however, regard it necessary to enter upon a close analysis of all the evidence introduced on the trial, but we are inclined to hold, after due consideration of the evidence, that it is sufficient to sustain the decree.

The decree will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Henry Shaw et al. v. Mary A. Schoonover.

      Filed at Springfield

      October 31, 1889.

    1. Limitations—adverse possession—character of possession required. Adverse possession of land, to defeat the legal title, must have been hostile in its inception, and so continue uninterruptedly for twenty years. During that period there must be a continuous assertion or claim of ownership hostile to all others.
    2. The possession must be of such a character as to clearly show that the occupant claims the land as his own, exclusively. A merely permissive possession is not sufficient. So long as the possessor declares that he holds in subordination to the better title, the possession will be regarded as held by consent, and the Statute of Limitations will not begin to run.
    3. Witnesses—competency—party against those defending as heirs. On bill by one of the heirs of a deceased person, who was a married woman, for the specific performance of a parol agreement of the ancestor to convey a tract of land, against the other heirs-at-law, neither the complainant nor her husband is a competent witness to prove the parol contract.
    4. Specific performance—verbal agreement to convey land—of the proof required. A verbal contract respecting land will not be specific-. ally enforced unless it is established by clear and conclusive proof. When the bill is not only for the enforcement of a parol contract, but the contract, if enforced, will make a different distribution of the property of a deceased person, the evidence relied on to" establish it is looked upon with jealousy, and should be weighed in the most scrupulous manner.
    Appeal from the Circuit Court of Fulton county; the Hon. John C. Bagby, Judge, presiding.
    Mr. D. Abbott, and Mr. H. W. Masters, for the appellants:
    Possession, to defeat the legal title, must he hostile, and continue uninterruptedly for twenty years. Bolden v. Sherman, 101 Ill. 483.
    While color of title is not necessary, still such possession is not sufficient unless accompanied by a claim of ownership. Weber v. Anderson, 73 Ill. 439; Kerr v. Hitt, 75 id. 57.
    The first and only witness put on the stand by the complainant in the cross-bill, to prove the alleged agreement of gift, was Jacob Schoonover, the husband of complainant, to the testimony of whom objection was made by defendants, and which was overruled, and he was permitted to testify.
    The complainant in the cross-hill seeks to enforce a specific performance of an alleged verbal agreement made with her father, Robert Shaw, in his lifetime, against the defendants in the cross-bill, who are heirs of the said Robert Shaw, deceased, and have answered, denying such contract, and defend as heirs, which brings them clearly within the provisions of section 2 of the chapter entitled “Evidence,” Starr & Curtis’ Stat. page 1072. Crane v. Crane, 81 Ill. 165 ; Warrick v. Hull, 102 id. 280 ; Treleaven v. Dixon, 119 id. 548; Comer v. Comer, id. 171.
    No such case is made as will warrant the court in divesting the appellants of their title in this farm, as heirs of Robert Shaw, deceased. Clark v. Clark, 122 Ill. 388; Insurance Co. v. Rink, 110 id. 538.

      A specific performance will be withheld when it does not subserve justice. Railroad Co. v. Reno, 113 Ill. 39.
    Specific performance is not a matter of right, but of sound judicial discretion, as may appear equitable under all the facts and circumstances of the case. Beach v. Dyer, 93 Ill. 295; Woods v. Evans, 113 id. 186; Hatfield v. Willey, 105 id. 286.
    Clear and satisfactory proof is required to enforce specific performance to convey land. Barley v. Edmunds, 64 Ill. 125 ; Allen v. Webb, id. 352.
    Mr. W. S. Edwards, and Messrs. Gray & Waggoner, for the appellee:
    The reversal of a decree will not be justified on the ground that the evidence does not sustain it, although this court might be better satisfied if the finding had been otherwise. Long v. Fox, 100 Ill. 51; Coari v. Olsen, 91 id. 273;
    The question whether the finding of facts should be sustained or set aside, does not depend upon the number of witnesses testifying on each side upon the disputed points. The number of witnesses may be on one side, while the decided weight of evidence may be on the other. Bishop v. Busse, 69 Ill. 403.
    Although the evidence may not be entirely satisfactory, still if it tends to sustain the issue, and the circuit judge, who saw the witnesses on the stand, and had facilities for determining the weight of the evidence which this court does not possess, is satisfied with the verdict, and refuses to set it aside, this court will not disturb it. Ferry Co. v. Higgins, 72 Ill. 518.
    The litigation is concerning the separate property of the wife of Jacob Schoonover, and he is a competent witness to testify to the facts detailed by him. Mueller v. Rebhan, 94 Ill. 147; Pigg v. Carroll, 89 id. 205; Long v. Long, 19 Bradw. 388; Ebert v. Gording, 116 Ill. 221.
    . It has been repeatedly held by this court, that where a father gives land to his child by parol, and the child moves upon the land and makes thereon valuable improvements, the contract stands upon the same basis as a bargain and sale for a valuable consideration, and equity will compel a conveyance-of the legal title. Langston v. Bates, 84 Ill. 524; Bright v. Bright, 41 id. 97; Wood v. Thornly, 58 id. 464; Kurtz v. Hibner, 55 id. 514.
   Mr. Justice Magruder

delivered the opinion of the Court:

Robert Shaw died intestate in Fulton County on February 8, 1888, seized in fee of about 360 acres of land in that county, and leaving, as his heirs at law, eleven children, six sons and; five daughters. This is a bill filed, on July 3, 1888, in the Circuit Court of Fulton county, for the partition of said lands, by five of the children, of whom the appellant Henry Shaw is. one, against the widow of the deceased, and six of the children, of whom the appellee, Mary Ann Schoonover, is one, and also against Jacob Schoonover, the husband of appellee-Default was taken against all of the defendants, except appel-lee, and her husband, and John W. Shaw, who answered.

In her answer to the bill, appellee sets up, that, as to a; certain 80 acre tract, part of the premises sought to be partitioned, she had been in possession of it for more than 20 years under claim of ownership, and she pleaded the 20 years” statute of limitations against the prayer of the bill for a partition of said 80 acres. She also filed a cross-bill, setting up, that, in 1867, her deceased father made an agreement with her, that, if she would move upon the 80 acre tract and live-upon it, and make improvements upon it, he would convey it. to her, and that she agreed to do so, and did do so, and that, she has been in possession of it ever since, claiming to be-owner; and further alleging, that the deceased in his life time, and his heirs since his death, have failed to make her a deed-The cross-bill prays that a commissioner be appointed to make a deed in accordance with said agreement, etc.

The ten other children answered the cross-hill admitting appellee’s occupancy since 186.8, but denying that any such agreement was ever made, or that her possession has been adverse, or that she has occupied the 80 acres under claim of ownership, or that she has made any other improvements than such as were necessary for her own benefit and convenience; and averring that, in March, 1868, the deceased agreed verbally with appellee that she should occupy the tract, and make such improvements as she liked for her own comfort, in consideration that she would pay the taxes as rent for the land; that no time was fixed for the occupancy to continue; that she went into possession and has ever since been in possession under said arrangement, and has enjoyed the rents and profits and paid the taxes; that she thereby became'a tenant at will, or from year to year, of the deceased, etc.; and that she and defendants are tenants in common as heirs, etc.

The Circuit Court found the issues in favor of appellee, and rendered a decree in accordance with the prayer of the •cross-bill.

Adverse possession sufficient to defeat the legal title must be hostile in its character and in its inception, and so continue uninterruptedly for twenty years. (Turney v. Chamberlain, 15 Ill. 271; Bolden v. Sherman, 101 id. 483). Twenty years’ adverse possession of land, under a continuous assertion of ownership, hostile to all others, will constitute a bar to a right of entry. (Kerr et al. v. Hitt, 75 Ill. 51). If the owner permits the occupation of his land for a period of 20 years by-a party asserting ownership, he is barred by the statute. (Weber v. Anderson, 73 Ill. 439). The possession must be of such a character as to clearly show that the occupant claims the land as his own exclusively. (Ambrose v. Raley, 58 Ill. 506). A permissive possession is not sufficient. The possession must have been originally taken or subsequently held with an intention to claim the .premises as owner. So long as the possessor declares that he holds in subordination to the better title, the possession will he regarded as held by consent. (Angell on Limitations, (6th ed.) sec. 384.)

Was the possession by appellee hostile in its character and under an exclusive claim of ownership ? We think not.

Cyrus Bishop testifies: “Mrs. Schoonover has claimed to be owning this place during the time she has lived there;” William Swearingen testifies: “She treated it, I suppose, as her own—always heard them say it was their farm;” Elias Shaw says: “They treated it as their own—run it and managed it * * * She said he had given it to her;” John Shaw says: “Since father’s death she has claimed this land— never claimed it before that I know of;” Mrs. Morgan says: “I think she claimed to be the owner of the land—think she claimed her father had given it to her;” John Cramblet testifies : “She treated it as I would my own farm so far as appearances are concerned.” Robert LaMaster says: “Never heard her make any claim—have treated it as their own so far as I could see.”

The foregoing, with the exception of the evidence of Jacob Schoonover which will be referred to hereafter, is all the testimony going to show an assertion of ownership by appellee. If it stood alone, it might be sufficient, when taken in connection with the admitted fact, that she was in the occupancy of the 80 acres for 20 years before the filing of this bill, to make the bar of the statute complete. But there is testimony of a clear and conclusive character, that she occupied the land by permission of her father and in subordination to his title.

Peter Shaw, John Barker and Rebecca Barker swear, that appellee went to her father’s house in Missouri in 1884 to see him about this farm, and that, while she was there, they were present at a conversation between her and her father, in which she asked him to deed her the 80 acres, and he refused, saying “he hadn’t an 80 apiece for them” and “it would be more than her share;” that she then asked him to deed her one 40 and she would give him $2000.00 for the other 40, but he told lier that she and her husband should buy a farm with their money, and let the rest of the children have a show. Eebecca Shaw swears that in 1886 she was at appellee’s house, and appellee told her that they could only live on the land during her father’s life-time, and that she would have bought the farm of her father in 1884, but he asked $60.00 an acre for it, which was more than it was worth. Abram Weaver, Dan. Harris, Alexander Shaw and Henry Shaw testify, that there was a meeting of the heirs at Henry Shaw’s house on April 17,1888, at which appellee and her husband were present; that appel-lee and her husband made no claim to own the farm, but made offers for its purchase, and, no purchase being agreed upon, said they would pay what rent was 'right; that her husband offered $4000.00 which was not considered enough; that, when he spoke about “paying cash rent,” she said: “By God, pay grain rent, Jake.” One or more of these witnesses say, that it was three weeks after this meeting before appellee set up her claim of ownership.

John Taylor swears that he met appellee and her husband after the meeting of April 17, 1888, and they told him they had offered $4000.00 for the land, and that the heirs wanted them to pay rent, and that they asked witness whether he thought rent could be collected of them. John Berry swears that about May 1, 1888, he saw appellee and her husband, and something- was said about said meeting, and her husband said he would give $55.00 per acre for the land.

Bessie Ford swears, that in 1884 she heard appellee say, that she wished she had a piece of land to build a house upon— "“heard her say she was living on her father’s land.” Henry 'Shaw says: “I have frequently heard her say it was Daddy’s land.” Mr. Barclay swears that, in March, 1888, he heard •appellee say she. was willing to take the land at $4000.00; and that she never claimed the land belonged to her.

One witness swears, that he heard appellee once say that, if her father would furnish the tile, they would tile the place. George Morgan testifies that the land was called the old man’s land after Schoonover went there. Elizabeth Morgan swears, that appellee told her “she was living on her father’s farm,” and called it her father’s farm, and that she heard appellee say “they were keeping up the taxes for the use of it.”

Eight witnesses swear, that they heard appellee say at different times that she and her husband were allowed the use of the farm in consideration of their paying the taxes and keeping up the improvements. Several of them swear that they heard her say so a great many times.

Several of the other heirs occupied lands of their deceased father upon the same terms upon which the 80 acres in question were occupied by appellee. One of them testifies as follows: “She (appellee) told me, if I would hold the farm I was living on, that her (she) and Mr. Schoonover would swear that Daddy gave it to me.”

As to the verbal agreement set up in the cross-bill, the evidence does not satisfy us that any such agreement was ever made. The only witness, who testifies to it is Jacob Schoonover, one of the defendants below and husband of the complainant below. Objection was made to his testimony. c. The objection was over-ruled, and exception was taken. He was not a competent witness. His wife was not suing, as heir, for her inheritance. She was claiming to be the owner of the 80 acres by another title than that acquired under the statute of descents. The real defendants in the suit were her brothers and sisters, who were adverse parties, defending as the heirs of their deceased father, Bobert Shaw. She being herself incompetent as a witness, her husband was also incompetent under the rule laid down in Treleaven v. Dixon, 119 Ill. 548 and Way v. Hcvrriman et al. 126 id. 132.

One witness testifies that he once heard the intestate say he had told appellee she should have the land if she would move upon it. Three others say, that some eight or ten years before the time of giving their evidence they heard the intestate say he intended, or expected, or was going, to give the farm to appellee. The testimony of the four last named witnesses is all the .proof there is of the alleged agreement. This testimony, besides being overborne by the evidence, which has already been referred to, and by much more in the record that might be referred to, is of the kind that was condemned by this Court in Bailey v. Edmunds, 64 Ill. 125 and Clark v. Clark, 122 id. 388.

The cross-bill in this case is a bill to enforce the specific performance of a parol contract for the conveyance of real estate. Specific performance is not a matter of right, but of sound judicial discretion. A verbal contract respecting land will not be enforced unless it is established by clear and conclusive proof. (Woods v. Evans, 113 Ill. 186; Wallace v. Rappleye et al. 103 id. 229; Clark v. Clark et al. supra). Such proof is wanting here.

■ Moreover, the contract sought to be enforced in this case is not only a parol contract for the conveyance of real estate, but it makes a different distribution of the property of a deceased person from that provided by law. “The evidence relied upon to establish such a contract is looked upon with jealousy, and should be weighed in the most scrupulous manner.” (Wood v. Evans,supra).

The decree of the Circuit Court is reversed, and the cause is remanded to the Circuit Court with directions to dismiss the cross-bill, and to proceed under the original bill in accordance with the views herein expressed.

Decree reversed.


author: Mr. Justice Bailey

text:
    H. H. Harris v. The People of the State of Illinois.

      Filed at Springfield

      October 31, 1889.

    1. Cbiminal law—presence of prisoner in court—necessity therefor— presumption. In all criminal cases requiring any punishment higher than a fine, whether in treason, felony or misdemeanor, the defendant must be personally present in court throughout the trial and at the time sentence is pronounced, and this must affirmatively appear by the record. A failure in this respect will not be aided by those presumptions which ordinarily obtain in support of judgments of courts of general jurisdiction.
    2. Same—error after verdict—sentence in absence of prisoner—reversal and remandmerit for proper judgment. Where the assignments of error in no way question the verdict in a criminal case, or any of the proceedings anterior to the verdict, but allege merely that sentence was improperly pronounced in the absence of the prisoner, it will only be necessary to reverse and set aside the proceedings back to the point where the error was committed, and remand the cause for a proper judgment.
    3. Same—calling on defendant before sentence. The court is not disposed to hold, however, that it is essential that the trial court, before pronouncing sentence, shall inquire of the defendant whether he has anything further to say why the judgment of the court should not then be pronounced.

    4. Bill op exceptions—whether necessary—to preserve motion for new trial, etc. The only mode in which a motion for a new trial, and the ruling of the court thereon, can be preserved in the record, is by bill of exceptions; and when there is no bill of exceptions, the record furnishes no evidence of which this court can take notice that a motion for a new trial has been made or decided. The fact that the clerk may have copied into the transcript what purports to be a motion for a new trial, will not avail.

      Writ oe Error to the Circuit Court of Macon county; the Hon. James E. Hughes, Judge, presiding.
    Mr. John J. Rea, for the plaintiff in error:
    In cases of felony, at arraignment and all subsequent proceedings in the case, the accused must appear in person. 1 Archbold’s Crim. Pr. and Pl. 351; Sperry’s case, 9 Leigh, 623; Sailer v. State, 1 Harr. 357; Dunn v. Commonioealth, 6 Barr, 384.
    A court can not award corporal punishment against a defendant, such as imprisonment in the penitentiary, unless he be personally present in court when such sentence is passed. Bishop’s Crim. Proc. sec. 275; Brooks v. People, 88 Ill. 327; People v. Winchell, 7 Cow. 525; Son v. People, 12 Wend. 344.
    Where the personal presence of the defendant is necessary in point of law, the record must show such appearance, either affirmatively or by such a state of facts as would necessarily imply the personal presence of the defendant. Bishop’s Crim. Proc. secs. 275, 1180; Dyson v. State, 26 Miss. 362; State v. Matthews, 20 Mo. 55; Scaggs v. State, 8 S. & M. 822; State v. Cross, 27 Mo. 332; Safford v. People, 1 Park. Cr. R. 476; Sperry v. Commonwealth, 9 Leigh, 623.
    Mr. George Hunt, Attorney General, and Mr. J. R. Mills, for the People:
    When the record shows the presence of the defendant when the trial is commenced, it will be presumed, in the absence of a contrary showing, that he was present till its close and judgment rendered. Schirmer v. People, 33 Ill. 276.
    The defendant has the right to be present, but he may forfeit that right by his own misconduct. Sahlinger v. People, 102 Ill. 341; Ross v. State, 20 Ohio, 33.
    In the absence of anything showing to the contrary, it will be presumed the trial court did its duty. Dougherty v. People, 124 Ill. 557.

       This rule does not apply on writ of error from the Supreme Court. Fielden et al. v. The People, 128 Ill. 595.

       While it is the better practice to call upon the defendant to say why he should not be sentenced, yet the omission to do so is no ground for reversal in any case. Gannon v. The People, 127 Ill. 507.

   Mr. Justice Bailey

delivered the opinion of the Court:

At the September term, 1887, of the Circuit Court of Macon county, the plaintiff in error was indicted by the grand jury for the crime of forgery. At the January term, 1888, of said court, he was duly arraigned and pleaded not guilty. On the 8th, 9th and 10th days of October, 1888, those being days of the September term, 1888, of said court, he was tried by a jury, who found him guilty, and fixed the term of his imprisonment in the penitentiary at six years. It affirmatively appears from the transcript of the record, that in the foregoing proceedings, up to and including the verdict, the plaintiff in error was present in court, both in person and by attorney.

The record contains no bill of exceptions, but the clerk has copied into the transcript a paper purporting to be a motion by the defendant’s counsel for a new trial, and appearing, from the indorsement thereon, to have been filed October 13,1888. The. order containing the sentence of the court was entered October 25, 1888, that also being one of the days of said September term, and recites as follows: “And now on this day came the People by the state’s attorney, and the defendant by his attorneys, and the motion made by the defendant at a former day of this term for a new trial of this cause being heard and duly considered, is by the court overruled,” and sentence of the court was thereupon pronounced in accordance with the verdict of the jury. The assignments of error are all based upon the fact that the record fails to show affirmatively, that the defendant personally appeared in court at the time the motion for a new trial was heard and decided, and the sentence of the court was pronounced.

It has been a well established rule of the common law from an early period, that a prisoner accused of a felony must be arraigned in person and must plead in person, and his personal appearance is required throughout the trial, and at the time sentence is pronounced. As said by Mr. Chitty: “Although a defendant accused of a misdemeanor may be found guilty in his absence, this can never be done in capital felonies, but it is necessary that he should personally attend, and it should so appear on the record.” 1 Chit. Grim. Law, 414. A leading authority on this question is Rex v. Harris, 1 Ld. Raym. 267, Comb.. 447, Holt, 399, Skin. 684, in which it was held by Lord Holt, that a judgment can not be given against any man in his absence for a corporal punishment.

The same rule has been generally adopted in this country. Mr. Bishop, in discussing the question in its relation to the imposition of sentence, says: “Where the offense is a misdemeanor of a kind punishable by fine, or, though by fine and imprisonment, where a fine only is imposed, the doctrine seems pretty plainly to be, that it is within the discretion of the court to render judgment in the defendant’s absence. But if there is to be imprisonment, or any other punishment higher than a fine, whether in treason, felony or misdemeanor, the 'defendant must be personally present. 1 Bishop’s Grim. Proceed. sec. 275. This doctrine is supported by the following decisions: People v. Winchell, 7 Cow. 525; Rolls v. The State, 52 Miss. 391; Hooker v. Commonwealth, 13 Gratt. 763; Sperry v. Commonwealth, 9 Leigh, 625 ; Hamilton v. Commonwealth, 16 Pa. St. 129; Prine v. Commonwealth, 18 id. 103; Peters v. The State, 39 Ala. 681; Gibson v. The State, id. 693 ; Graham v. The State, 40 id. 659; Andrews v. The State, 2 Sneed, 459; Smith v. The People, 8 Col. 457; State v. Davenport, 33 La. Ann. 231.

The fact that the defendant to a prosecution for a felony was present, during the trial and at the imposition of sentence, must be shown affirmatively by the record. A failure in this respect will not be aided by those presumptions which the law ordinarily raises in support of the judgments of courts of general jurisdiction. This apparent exception to the general rule may perhaps be attributed to an abundant tenderness for the right secured by the Constitution to the accused to be confronted by the witnesses against him, and to be heard by himself and counsel, but however this may be, it seems to be well supported by the authorities. The rule that to sustain a judgment of conviction for a felony, the* record must affirmatively show that the prisoner was personally present in court when sentence was pronounced against him, is sustained by most of the authorities above cited, and also by the following cases: ,Scaggs v. The State, 8 Smedes & Marsh. 722; State v. Cross, 27 Mo. 332; State v. Matthews, 20 id. 55; Dyson v. The State, 26 Miss. 362; State v. Revells,,31 La. Ann. 387; State v. Smith, 31 id. 406.

The case before us is clearly distinguishable from Shirmer v. The People, 33 Ill. 276. There the record showed no interval between the arraignment of the prisoner, the trial, verdict and judgment, the whole proceeding appearing to have taken place on the same occasion, and in consecutive and continuous ■order, and it appearing that the prisoner was present, as he necessarily must have been, at the arraignment, it was held that his presence during the whole proceeding down to the moment sentence was passed upon him was a matter which might fairly be implied. In the present case the sentence was mot pronounced until fifteen days after the conclusion of the trial, and no inference as to the presence of the prisoner in ■court at the date of the sentence can be drawn from the fact that he was in court at the time of the trial and verdict.

Nor does this case come within the principle laid down in Sahlinger v. The People, 102 Ill. 241. There the prisoner, after the trial was entered upon, voluntarily abandoned the ■court room and refused to appear, and it was held that he would be regarded as having waived the right to be present, and that the court was under no obligation to stop the trial, but was at liberty to proceed in his absence to final judgment. In this case nothing whatever is shown as to the reason why ihe prisoner was not in court at the time sentence was pronounced, and there is nothing therefore upon which a waiver of his legal right to be present in person can be based.

It necessarily follows from what has been said that there is error in the record, and it" remains to be seen how such error may be corrected so as to restore the defendant to all the rights of which he has thereby been deprived. The errors assigned call in question, first, the hearing and decision of the motion for a new trial, and, second, the imposition of sentence, without the personal presence of the defendant. It is doubtful, to say the least, whether, in prosecutions for felonies, the argument and decision of a motion for a new trial is a proceeding which necessarily requires the personal presence of the accused. The decisions on this question are not altogether harmonious, but it is held by various courts whose opinions are usually accorded a high degree of consideration, that his personal presence is not essential between the verdict and judgment, upon the presentation and disposition of motions involving a discussion of mere questions of law, and among these are included motions for a new trial. In many cases where his personal presence is insisted upon, the rule seems to be enforced, not by way of -protecting the right of the accused to be heard, but with a view of securing the custody of his person so that he may be forthcoming in case the decision is against him. It was in accordance with this principle that the Supreme Court of Massachusetts held, in Commonwealth v. Costello, 121 Mass. 371, that in a prosecution for forgery, the personal presence of the defendant at the decision of the motion for a new trial was not necessary, when the defendant was in custody. In discussing the principle involved the court say: “When the defendant is already in custody, it has never been the practice in this Commonwealth to require his presence at the making, the hearing or the decision of a motion in his behalf for a new trial. When he is not in custody-, the court will not entertain such a motion in his absence, not because he has a right to be present, but because he has no right to be heard without submitting himself to the control of the court, so that he may be committed in case the motion should be overruled; or, as was said by Lord Hardwicke, in a ease which, like this, was an indictment for forgery, ‘the court may be sure of him,’ before they intimate any opinion upon his motion.”

In State v. Jefcoat, 20 South Car. 383, which was a prosecution for murder, the court say: “The right of the accused to be present at every stage of the trial is one that has long existed, and is especially guaranteed by the present Constitution of this Sta,te; but a motion for a new trial, or in arrest of judgment, is no part of the trial. That must necessarily have terminated before such a motion could be made, and we are not aware of any authority, or any reason, which establishes the right of the accused to be present at the hearing of such motion. In England, it has been held that such motion can not be made by the accused unless he is present before the court, for the reason, as was said in one of the cases, that the court may be sure of him, before he will be heard by counsel on such motion. But this was a rule for the benefit of the government, and not for the accused; and it is at least doubtful whether such a rule has generally prevailed in America.” In State v. Harris, 32 La. Ann. 118, which was a prosecution for manslaughter, the same doctrine is laid down. See also, Jewell v. Commonwealth, 22 Pa. St. 94; State v. Clark, 32 La. Ann. 558; State v. David, 14 South Car. 428; People v. Ormsby, 48 Mich. 494; Rolls v. The State, 52 Miss. 391.

We do not find ourselves under the necessity, however, of deciding the question here suggested, as the record before us is not so framed as to properly present it. There being no bill of exceptions, the motion for a new trial, if one was in fact made, does not appear to have been preserved in the record. According to the practice which has been uniformly observed in this State the only mode in which a motion for a new trial and the rulings of the court thereon can be preserved in the record is by bill of exceptions, and where there is no bill of exceptions, the record furnishes no evidence of which this court can take notice that a motion for a new trial was made or decided. Gill v. The People, 42 Ill. 321; McClurkin v. Ewing, id. 283; Daniels v. Shields, 38 id. 197; Nason v. Letz, 73 id. 371. The fact that the clerk has seen fit to copy into the transcript a document which purports to be a motion for a new trial can in no way avail the defendant. Such document is not thereby brought within the range of our judicial observation. So long then as it does not appear in any mode of which we can take cognizance that any motion for a new trial was made or decided, it is plain that all assignments of error based upon the fact that the defendant is not shown to have been personally present at the argument and decision of such motion must necessarily fail.

The only error in the record of which the defendant can complain consisting as it does of the imposition of sentence upon him in his absence, it will only be necessary, in order to purge the record of that error, to reverse and set aside the proceedings back to the point where the error was committed, without disturbing any of the anterior proceedings. None of the assignments of error attempt to assail the verdict or any proceeding prior to the verdict, and there is no occasion therefore for awarding a venire facias de novo.

The case of Martin v. Barnhardt, 39 Ill. 9, is in point. It there appeared that no error had intervened prior to the verdict, and that the verdict itself was sufficient to sustain a judgment, but that no sufficient judgment had been rendered. Upon that state of the record it was held, that all that was necessary to do in order to correct the error was, to reverse the judgment and ^remand the cause with leave to the plaintiff to move for a proper judgment on the verdict, it being deemed unnecessary to award a venire facias■ de novo.

In Cole v. The State, 5 English, 318, which was a prosecution for an assault with intent to murder, the verdict was delivered in the presence of the defendant, the irregtilarity complained of consisting simply in pronouncing sentence in his absence, and it was held that the consequence would not necessarily be the awarding of a new trial, but only a reversal of the judgment and a remanding of the cause, with instructions to the trial court to proceed to pronounce judgment in accordance with the verdict, after having inquired of the defendant whether he had anything further to say why the judgment of the court should not then be pronounced.

In Kelly et al. v. The State, 3 Smedes & Marsh. 518, which was an indictment for the murder of a slave, it did not appear that the prisoner was present at the time of pronouncing sentence, and the judgment was further defective in not setting forth the time from which the commencement of the imprisonment should date, and it was held that, for those errors, the judgment should be reversed without disturbing the verdict, and the cause remanded with instructions to pronounce judgment in accordance with the verdict, after having inquired of the defendant as above stated.

We are not disposed to hold, as seems to have been held in the two cases last cited, that it is essential to the validity of the sentence that the defendant should be inquired of as there stated, but on the authority of those decisions, as well as the other cases above cited we hold that the judgment must be reversed with instructions to the Circuit Court to pronounce sentence upon the defendant, in accordance with the verdict, the defendant being for that purpose personally present in court to receive such sentence.

Judgment reversed.


author: Mr. Chief Justice Shope

text:
    Ruth Campbell et al. v. George W. Campbell et al.

      Filed at Springfield

      October 31, 1889.

    1. Witnesses—disclaimer by party—as executor and trustee—competency—on contest of will. A testator named one as his executor and also devised to him certain lands in trust. On the probate of the will. the executor appointed in the will refused to act as such, whereupon an administrator with the will annexed was appointed. On bill filed to contest the will, making the executor a party defendant, he filed a written disclaimer of the trust, and on his motion the bill as to him was dismissed: Held, that before his disclaimer of the trust the executor and trustee appointed in the will was a proper party defendant, but after such disclaimer he ceased to have any interest in the litigation and was properly dismissed from it, and became a competent witness in the case.
    2. Same—competency of witness—presumption—burden of proof. The presumption being in favor of the competency of a witness, the burden is upon the objector to show that he is incompetent to testify, by reason of interest or otherwise. A witness will not be excluded on the ground of interest, if the question of his'interest is in doubt.
    3. Same—interest of a proposed witness—in what way determined. The law affords two modes of determining the interest of a witness in the result of the suit: ' First, by examining him on his voir dire; and second, by extrinsic evidence. The true test of the competency of a witness is, will he gain or lose by the decree or judgment sought?
    4. On bill to contest a will, the complainant called three witnesses, who had been made defendants in the suit, and had suffered a default to be taken against them, to prove the incapacity of the testator. They were all devisees under the will. The court, without determining whether the proposed witnesses would gain or lose by a decree setting aside the will, excluded their testimony: Held, that the court erred in excluding the testimony of those witnesses without first having ascertained on which side their interest lay. In such case the mere fact that they were heirs of the testator did not establish their incompetency, or show they would take a greater share as heirs than as devisees.
    - 5. • Testamentaba capacita—in-what it shall consist. Competency to make a will does not exist unless the party making it has reason and understanding sufficient to comprehend the act. The alleged testator must not only be able to answer familiar and usual questions, but he must have a disposing memory, so that he is able to make a disposition of his property with understanding and reason, or according to a fixed judgment or settled purpose of his own. He "must have that degree of recollection that will enable him to look about the property he has to dispose of, and the person or persons to whom he wishes to devise it, or who are the objects of his bounty.
    ^"6. To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken, unimpaired and unshattered, by disease or otherwise, or that the testator be in full possession of all his reasoning faculties. If the testator be in a dying state, he has capacity, if, when his attention is aroused, his mind acts clearly and with discriminating judgment in respect of the act to be done and its relations.
    7. A man may be competent to make a disposition of his property by will where it is simple and easy of comprehension, and at the same time be incompetent to make a will which involves a very large estate, and the consideration of the natural claims of a large number of relatives.
    8. On the trial of the issues on a bill to contest a will, the court, on behalf of the proponents of the will, instructed the jury that the fact, if proved, that the testator was, at the time of the execution of the paper, physically unable to look after his affairs or property, or that his mind was" impaired by age or disease, if not to the point of lunacy or absolute imbecility, did not take from him the legal capacity to make a will: Held, that the instruction was erroneous, as adopting too low a standard of testamentary capacity.
    9» The true inquiry in every case is, did the alleged testator have, at the time of making his will, such mind and memory as enabled him to understand the business in which he was then engaged, and the effect of the disposition made by him of his property. If he had, he must be taken as having the sound mind and memory required by the statute. But all degrees of impairment of the mental faculties, or dementia, whether senile, or produced by other causes, which destroy his mental capacity, will disqualify, whether the mind has reached the stage of absolute imbecility or not.
    Writ of Error to the Circuit Court of Jersey county; the Hon. George W. Herdman, Judge, presiding.
    Mr. William Brown, and Mr. J. S. Carr, for the plaintiffs in error:
    Dr. C. W. Enos, being the executor named in the will, and being specifically charged in the bill with fraudulent action in obtaining the pretended execution of the will, was properly made a defendant. Being interested in the object of this suit, he was a necessary party. Story’s Eq. Pl. 76, 76 a.

      Enos being originally a proper party defendant, was not a competent witness. Hurlbut v. Meeker, 104 Ill. 542.
    The witnesses Rachel Williamson, Mary A. Sweeney and Genevieve Smith were all competent witnesses. The true test of the competency of these witnesses was, would they gain or lose by a decree sustaining the will. McClure v. Otrich, 118 Ill. 320.
    Equity views not so much their position on the record, as their interest in the subject matter of the litigation. In this case, these witnesses, being defendants, were prima facie competent, and before excluding them the court should have ascertained their real interest. Corderey v. Hughes, 6 Bradw. 404.
    Instructions should be based on the evidence as applied to the issues to be tried. Mitchell v. Town of Fond du Lac, 61 Ill. 174; Means v. Lawrence, id. 137; Weaver v. Rylander, 55 id. 529; Holcomb v. Davis, 56 id. 413.
    Each party to a suit has a right to have the law accurately stated when the evidence is conflicting. Railroad Co. v. Maffit, 67 Ill. 431.
    Where instructions given are liable to confuse the jury, it is -error. Railroad Co. v. Larmon, 67 Ill. 68.
    Instructions given to the jury, which relate to matters not in issue, are erroneous. Wallard v. Worthman, 84 Ill. 446; Bartlett v. Cunningham, 85 id. 22.
    Messrs. Chapman & Slaten, and Messrs. Morrison & Whitlock, for the defendants in error:
    Dr. Charles W. Enos was not a proper party. He was not interested in the subject matter in litigation, and should not have been made a party. The fact that he was named as the ■executor, and that the will made provision for vesting the title to certain property in the executor, in trust, did not vest in him any interest, in any legal sense, until he qualified, and inasmuch as he declined to qualify, he was not a proper party, and it was correct to grant the motion to dismiss as to him. Frye v. Bank of Illinois, 5 Gilm. 336.
    Enos was a competent witness, and this was true without regard to the fact that he was named as one of the defendants, because he had no interest in the result of the litigation. He could neither make nor lose, no matter what was the result of the contest. McClure v. Otrich, 118 Ill. 320; Walker v. Dement, 42 id. 276.
    Neither Mary A. Sweeney, Rachel C. Williamson nor Genevieve Smith were competent witnesses against defendants in error. They were nieces of the testator, and sisters of some of the complainants in the bill. They had each been made defendants, and, it is true, stood on the opposite side of the record. But did this afford the true test ? They stood upon the record with defendants in error, but they had each made default, and their interest in the result of the suit was with the complainants in the bill. In fact, each had confessed the allegation in the bill contained.
    Mrs. Williamson was asked a question as to the mental capacity of Mr. Neely to make a will. To this, objection was made and sustained, but no exception was taken to the ruling. She was then asked if she remembered a conversation with the testator, in March, after the will was executed, and objection was sustained to this, and exception taken. This is the only exception to any ruling of the court upon her evidence. What Mr. Neely may have said after the will was executed was not competent evidence to overthrow the instrument, and the ruling was right. Hurd v. Brown, 41 Ill. 121; 25 id. 616; Alexander v. Crosthiwaite, 44 id. 359; Bragg v. Gaddes, 93 id. 39.
    The fifth instruction given by the court, for the defendants in error, is the only one called in question by counsel in their brief. We may therefore assume, we suppose, that all other instructions are admitted to be correct. This instruction was drawn from the opinion of this court, as expressed by Mr. Justice Scholfield in the case of Kimball v. Cuddy, 117 Ill. 232.

      The instruction is taken as nearly literally as it could be drawn from that opinion, having due reference to the parties, etc. English v. Porter, 109 Ill. 285; Willemin v. Dunn, 93 id. 511; Brown v. Riggin, 94 id. 560; Trish v. Newell, 62 id. 196; Roe v. Taylor, 45 id. 485; Rutherford v. Morris, 77 id. 397 ; Meeker v. Meeker, 75 id. 265; Bible Society v. Price, 115 id. 623.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This was a bill in chancery, by Euth Campbell and others, heirs-at-law of Joshua Neely, deceased, to set aside his will, upon two grounds,—want of. testamentary capacity of the deceased, and that undue influence had been practiced by Charles W. Enos and others, to induce the testator to execute the supposed will.

By the will, Dr. Enos was appointed executor, and also trustee, in respect of some of the land devised, and given large discretionary powers in respect of the application of the proceeds of the estate devised to him in trust. He reftised to qualify as executor, and after this bill was filed, made and filed a written disclaimer of any interest in the estate, or any part thereof, which would be affected by or be dependent upon the maintenance or setting aside of such supposed will; and afterwards filed his motion, in writing, to dismiss the bill as to him, for the reason that the bill showed he had no interest in the subject matter in litigation, in this, that the bill stated he was appointed executor by said will, and that on probate thereof he refused to act in that capacity, and that thereupon one Bowman was appointed administrator of the estate of Joshua Neely, with the will annexed, and for the further reason that he had filed his disclaimer, setting forth that he had no interest in the matter in controversy. The motion was allowed, and the bill dismissed as to said Enos, and this action of the court is assigned for error.

If Enos had qualified as executor, he would have been a necessary party to the bill. His refusal to qualify, and the appointment of an administrator, removed his interest as executor. But being a trustee of certain lands, and taking the legal title thereto under the will, he wa's a proper party defendant before his disclaimer. By the will, certain lands were devised to Enos in trust, to apply the net income therefrom to the support of John Harper for life, and after his decease, for the support, education and comfort of Rebecca Welch, and her daughter, Nancy B. Welch, with power of sale; and also another tract of land, in trust, to apply the net income among William H. Smith and four children, Mary Welch, - Bridget Minard, Alexander Welch and Gallant H. Boswell, and $50 per annum to William Richard Neely, Richard Quinn, Jr., as he might deem just and equitable. Enos never having accepted the trust, or assumed to exercise the .power conferred, had the right to disclaim the same, as he did, and thereafter ceased to have any interest in the estate or the litigation concerning the will. Lewin on Trusts, 195, 197; Hill on Trustees, 221.

This view also disposes of the second error assigned,—that Enos was permitted, against the objection of complainant, to testify as a witness. By his refusal to act either as executor or trustee under the will, he ceased to have any interest in the subject matter in controversy, and became a competent witness for either party.

It is next assigned for error, that the court refused to allow contestants to examine, as witnesses, Rachel 0. Williamson, Mary Sweeney and Genevieve Smith, who were all defendants to the bill, and had suffered the same to be taken as confessed as to them. It is said they were nieces of the testator and sisters of some of the complainants.

Rachel C. Williamson testified that she was at George Campbell’s house, who was one of the proponents of the will, some time prior to the making of the will, and that said George then said, in reference to Mr. Neely’s making the will, “I had better go on licking—I am going to have him make a will; ” that she asked, him if he thought Neely was in condition to make a will, and he said he -was; that she told said George that he had better make her equal with him, or she would swear that he was not. She was then asked whether or not, when the will was made, the testator had sufficient mental capacity to make a will. This was objected to by the proponents of the will because she was an heir-at-law of said Neely, and a party interested adversely to the proponents, and the court sustained the objection. She further testified there were three heirs of the original branch of the Neely family; that she was a niece of Joshua Neely, and had four brothers and three sisters,— that is, there were eight in her branch of the Neely family. She was then asked this question: “Do you remember the conversation you had at the house of Joshua Neely, with Uncle Joshua Neely and your brother William Campbell, in March after the making of the will?”—which was objected to, and the court sustained the objection, upon the ground of the incompetency of the witness to testify.

It will be seen that this witness was a niece of the testator; that said testator, Joshua Neely, had three brothers and sisters, and that upon his dying intestate, his estate would descend to such brothers and sisters, or their children. This would entitle this witness, as heir-at-law of Joshua Neely,—he having died without issue,—to one twenty-fourth part of his estate, after the payment of the debts and expenses of administration. It was stipulated that the debts of the estate amounted to between $10,000 and $12,000. By the will, one hundred acres of land was devised to this witness for life, with remainder to her heirs. The land thus devised is claimed to be worth $4500. The court, however, refused to permit any inquiry to be made as to her interest for or against the will.

In Stewart Rapalje on Law of Witnesses, (page 293, sec. 171,) it is said: “It is a well settled rule that the competency of one offered as a witness to testify in the case will be presumed, and the party objecting to his competency must state the grounds of his objections.” And on page 299, (sec. 177,) it is said: “The presumption being in favor of competency, the burden is upon the objector to prove that one offered as a witness is incompetent to testify, by reason of interest or otherwise. Thus, to exclude a witness on the ground that his testimony, if admitted, will tend to protect him from claims against him, it must first be ■ shown that there is at least a prima facie case of liability against him, and that he is exposed to certain danger from such claims. The objector must point out to the court the ground of incompetency. The witness will not be excluded on the ground of interest if the question of his interest is in doubt.” In section 174 of the same work it is said: “Objection to the competency of a witness having been made, the question of competency must be decided, no matter how difficult it may be to determine as to his interest or want of interest. To reject him in such a case, without deciding the question, is error, and to admit him is equally erroneous.”

The law affords two modes of determining the interest of a witness in the result of a suit: First, by examining him on his voir dire; and second, by extrinsic evidence. The true test of the competency of these three witnesses is to be determined by ascertaining whether they would gain or lose by a decree setting aside the will. Being defendants, they were prima facie competent to testify on behalf of the contestants, and before excluding them, the court should have ascertained their real interest. It devolved upon the party objecting to show the court that their interest was with the party offering them as witnesses, if that fact did not otherwise appear. If they would not gain by having the will set aside, they were competent, otherwise they were not. The will, which was before the court, showed that they were devisees thereunder, and without further evidence on the subject, their evidence at least would appear to be adverse to the contestants and in favor of the proponents of the will. The fact, if conceded, that they were heirs-at-law of the testator, would not, of itself, establish their incom-petency, or show that they would take a greater share as heirs than as devisees.

Mary Sweeney testified that there were seven of her family, representing one-third of the estate as heirs-at-law of Joshua Neely, so that, as heir-at-law, she would be entitled to the one twenty-first part of the estate of the deceased. She also testified that the land she lived on,—being a part of that devised to her,—was worth from $3000 to $4000, and that another tract devised to her was worth $1000. Without any further inquiry as to her interest, the court sustained the objection to her competency, and the same ruling was made, substantially, as to witness Genevieve Smith. The contestants, to show the real interest or competency of these witnesses, proved by Bowman, the administrator, that the value of the estate was from $75,000 to $80,000, and that the value of the land devised to Mary Sweeney was $4280. This and the other proofs showed that her share in .the estate, as heir, was about $3430, which would indicate that she was called to testify against her interest, and therefore competent. After this proof, contestants recalled Mrs. Sweeney, and asked her if she wanted the will set aside or not; whether she had any conversation with Joshua Neely in the fall before the will was made; whether she had any conversation with him in reference to any fear of those that were around him, and whether, in that connection, he expressed any fear to the witness, of his life. The court sustained objections to each of these questions, and refused to allow the witness to testify, on the ground of her in-. terest. .We think there was error in holding these witnesses incompetent to testify, without proof that their interest was with the contestants. In other words, the court should have ascertained their interest, and if they were called to testify against such interest, they should have been permitted to testify.

The giving of the fifth instruction for the proponents is also assigned as error. The portion of the instruction of which complaint is made is that part which states that the fact, if proved, that Joshua Neely was, at the time of the execution of the paper, physically unable to look after his affairs or property, or that his mind was impaired by age or disease, if not to the point of lunacy or absolute imbecility, did not take from him legal capacity to make said will. By section 1 of the Statute of Wills, “every male person of the age of twenty-one years, and every female of the age of eighteen years, being of sound mind and memory,” is given the power to dispose of his or her property by will. The expression, “sound mind and memory,” has been held by this court to mean nothing more than “sound and disposing mind,” and is equivalent to the term “sanity.” Yoe v. McCord, 74 Ill. 33; Dickie v. Carter, 42 id. 377; Andrews v. Black, 43 id. 256.

Competency to execute a will does not exist unless the alleged testator has reason and understanding sufficient to comprehend such act. Delafield. v. Parish, 25 N. Y. 22; Marquis of Winchester's case, 6 Coke, 23; Combes’ case, Moore, 759; Herbert v. Lowe, 1 Ch. 12; Mountain v. Bennett, 1 Cox, 353;. Swinbourne on Wills, part 2, sec. 4.

In the Marquis of Winchester’s case, it is said: “It is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory,- so that he is able to make a disposition of his lands with understanding and reason, and that is such a memory which the law calls sane and perfect memory.”

In Mountain v. Bennet, 1 Cox, 353, it is said: * * * “If a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient soundness and discretion to regulate his affairs in general, yet if such dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind.”

In Greenwood v. Greenwood, 3 Curt. App. 2, Lord Kenyon said, in his charge to the jury: “I take it, a mind and memory competent to dispose of his property, when it is a little explained, perhaps may stand thus: Having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wished to dispose of it. If he had a power of summoning up his mind so as to know what his property was, and who-those persons were that then were the objects of his bounty, then he was competent to make his will.”

In Marsh v. Tyrrell, 2 Hagg. 122, Sir John Nioholl said: “It is a great but not an uncommon error to suppose that because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect, sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law—and it is the rule of common sense—is far otherwise. The competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case.” See, also, Blewett v. Blewett, 4 Hagg. 419; Boyd v. Ely, 8 Watt, 70; McTaggart, v. Thompson, 14 Pa. St. 149; Brown v. Torrey, 24 Barb. 583; Hall v. Hall, 18 Ga. 40.

In Shropshire v. Reno, 5 J. J. Marsh. (Ky.) 91, the court said that “the testator had not a disposing mind, or that if he even had, it was not in a disposing state. He was not entirely superannuated, nor was he absolutely stultus or fatuus, but all the facts combined tend to show that he had not a sound memory nor sufficient mind, nor a mind in a proper state of disposing of his estate with reason or according to any fixed judgment or settled purpose of his own,”

In Clark v. Fisher, 1 Paige, 171, Chancellor Walworth said: “The general principles of law in relation to the capacity of a person to make a will are well understood. He must be of sound and disposing mind and memory, so as to be capable of making a testamentary disposition of his property with sense, and judgment, in reference to the situation and amount of such property, and to the relative claims of the different persons who are or might be the objects of his bounty.”

The question presented by the fifth instruction is, whether the mind of the testator, when impaired by age and disease, must be impaired to the point of lunacy or absolute imbecility to deprive him of testamentary capacity, or to render him of ■unsound mind and memory, or to deprive him of a disposing mind. Absolute imbecility implies a total want of reason and an utter loss of memory. The language of the instruction is to be understood in its ordinary sense and acceptation. An ■“imbecile” is defined by Webster as one destitute of strength, either of body or of mind,—weak, feeble, impotent, decrepit. Imbecility is defined as the quality of being imbecile,—feebleness of body or mind. The word “absolute, ” in respect of the sense in which it is used in the instruction, is defined as completed or regarded as complete,—finished, perfect, total,—and the synonyms are, perfect, total, and complete. There are many degrees in the weakness of mind before reaching total, or perfect, or absolute imbecility,—that is, before reaching utter and complete destitution of reason or rationalty; and it must be apparent to every one, that a man, before reaching this point, may be incapable of comprehending the extent or nature of his property, or of claimants upon his bounty, and of making a rational selection among them. The rule stated in Buswell on Insanity (see. 365) is, that “to constitute a sound and disposing mind it is not necessary that the mind should be unbroken, unimpaired, unshattered by disease, or otherwise, or that the testator should be in full possession of his reasoning faculties. So if the testator be in a dying state, he has capacity, if, when his attention is aroused, his mind acts clearly and with discriminating judgment in respect of the act to be done, and its relations. Thus, it is held that one may be competent to make a codicil, changing in two or three particulars the dispositions previously made by him in his will, although he might be incompetent to perform acts requiring-the exercise of greater intellect or judgment, as, to make an entirely new disposition of his property.”

In note 1, Jarman on Wills, (p. 28,) it is thus stated: “The question is not so much what was the degree of memory possessed by the testator, as, had he a disposing memory? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it and the objects of his bounty,—in a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will ?” See authorities there cited.

The author from whom we have before quoted,—Buswell on Insanity,—at section 363 says: “Thus it is evident that a correct understanding of the act done must include an intelligent comprehension of its surrounding circumstances, and of-its direct consequences and probable results. So, to constitute a sound disposing mind, the testator must be able, not only to understand that he is, by his will, disposing of his property, but he must also have capacity sufficient to comprehend the extent of the property devised and the nature of the. claims of others upon him.”

In Converse v. Converse, 21 Vt. 168, it is held, that if the testator, when he made his will, was capable of knowing and understanding the nature of the business he was then engaged. in, and the elements of which the will was composed, and the disposition of his property as therein provided for, both as to the property he meant to dispose of by his will and the persons to whom he meant to convey it, and the manner in which it was to be distributed, then he possessed a sound and disposing mind.

The same rule has, in many cases, been substantially adopted by this court. In Roe v. Taylor, 45 Ill. 485, we said: “An understanding of the nature of the business about which the. testator was engaged, and of the kind and value of the property devised, and of the persons who were the natural objects of his bounty, and of the manner in which he wished to dispose of his property,—all these were evidence of the possession of testamentary capacity, unless, as the court very properly said, the testator was affected with some morbid or insane delusion as to some one of those objects of his bounty.” See, also, Trish v. Newell, 62 Ill. 196, Yoe v. McCord, 74 id. 33, Carpenter v. Calvert, 83 id. 62, American Bible Society v. Price, 115 id. 623, and Freeman v. Easly, 117 id. 317, where the same rule, in effect, is announced. We also said in Meeker v. Meeker, 75 Ill. 260 : “It is a rule of law that a person who is capable of transacting ordinary business is also capable of making a valid will.” If he is capable of buying and selling property, settling accounts, collecting and paying out money, or borrowing and loaning money, he must usually be regarded as capable of making a will. See Lilly v. Waggoner, 27 Ill. 395; Myatt v. Walker, 44 id. 485; Rutherford v. Morris, 77 id. 397; Trish v. Newell, supra; Brown v. Riggin, 94 Ill. 560; English v. Porter, 109 id. 285; Bice v. Hall, 120 id. 597; Schneider v. Manning, 121 Ill. 376. As to the capacity to make a deed of land, see Lindsey v. Lindsey, 50 Ill. 79; Wiley v. Ewalt, 66 id. 226; Willemin v. Dunn, 93 id. 511; Miller v. Craig, 36 id. 109.

In Yoe v. McCord, supra, we said: “In 1 Bedfield on Wills, 123, 124, the author states that ‘the result of the best considered eases upon the subject seems to put the quantum of understanding requisite to the valid execution of a will, upon the basis of knowing and comprehending the transaction, or, in popular phrase, that the testator should, at the time of executing the will, know and understand what he was about.’ This last mode of the expression of the doctrine is intelligible to a jury, and embodies about the whole rule on the subject, so far as can profitably be given to a jury. * * * When the court undertakes to inform them what amount of mental capacity a man must have to know and understand what he is about, it is futile, and tends rather to mislead than to afford any practical aid to the jury.”

We. have also given sanction to the doctrine that a man may not be competent to make a will of one kind, owing to the nature and extent of the estate, when he may be competent to make one less complicated. Trish v. Newell, 62 Ill. 196. See, also, Buswell on Insanity, secs. 362-365 ; Beach on Wills, 175.

It follows, as a natural consequence, that if a man may make a valid will which is simple and easy of comprehension, and yet be incapable of making one which involves, as here, a very large estate, and the consideration of the natural claims of a large number of relatives upon him, the rule laid down in the fifth instruction can not be a correct exposition of the law. Absolute imbecility incapacitates the party from making any kind of a will, even the simplest in form. This court has condemned an attempt on the part of the trial court to inform the jury what quantum of mental capacity must be retained to enable the party to make a valid will. In Trish v. Newell, supra, we said: “We are unwilling to adopt so low a standard (of the capacity to make a will) as that approved in Stewart v. Lispenard, 26 Wend. 255, that wills of persons of the lowest degree of mental capacity are to be sustained if there is a glimmer of reason.” It is true that in Blanchard v. Nestle, 3 Denio, 37, mainly on the authority of the Lispenard case, the doctrine that mere imbecility, however great, would not invalidate the will of the testator, provided he was not an idiot or a lunatic, is affirmed. But it is to be remarked that the ease of Stewart v. Lispenard was subsequently overruled in Dela-field v. Parish, 25 N. Y. 9, and is no longer to be regarded as an authority.

The capacity to comprehend a few simple details, may, in one case, suffice to enable the party to intelligently dispose of his property by contract or will, while in another case, if the estate be large, requiring the remembrance of many facts and the comprehension of many details, and the disposition to be made is complicated, the same mental capacity may be wholly insufficient to that intelligent understanding of the business requisite to the making of a valid will. If, in the latter case, the party, because of weakness of intellect, is incapable of understanding and remembering the nature and extent of his property, and the disposition he wishes to make of it, he has reached that stage of imbecility which disqualifies him, in the particular case, to make a valid will, but his imbecility has not necessarily reached totality, and is not necessarily absolute, for although, from the complicated character of the business he is endeavoring to transact, he is unable to comprehend it, or the effect or result of his act, yet if his affairs were less complicated he might intelligently comprehend them, and make rational disposition of his property. As before said, absolute imbecility would necessarily mark a stage in the malady where there was perfect inanition,—when all mental vigor was lost, and the person affected would be incapable of exercising memory, or the processes of reason, however slight, and therefore incapable of making any will, however simple in its details. Something more is required to give testamentary capacity than mere passive memory.

The true inquiry, in every case, therefore is, did the person whose testamentary capacity is questioned, have, at the time of making his will, such mind and memory as enabled him to understand the business in which he was then engaged, and the effect of the disposition made by him of his property. If he did, he was possessed of the sound mind and memory required by the statute; and all degrees of impairment of the mental faculties, or dementia, whether senile or produced by other causes, which destroy this testamentary capacity, will disqualify, whether it has reached the stage of absolute imbecility or not. The inquiry is to be made in view of the circumstances of the particular ease, and a determination reached by a consideration of the nature and character of the business performed, under all the attendant conditions and circumstances. In this view, the question of the mental capacity of the testator to make the writing alleged to be his last will and testament, should be submitted to the jury. Yoe v. McCord, supra; Trish v. Newell, supra.

It is, however, urged, that the doctrine of the instruction is justified by expressions used in argument in a late case determined in this court. This is probably true; but upon examination it will be found that the principle contended for was wholly unnecessary to the determination then reached. The case referred to by counsel does not profess to overrule or modify in the least the rule announced in the many cases previously decided by this court, and to which we have referred. It frequently happens that principles unnecessary to the decision of the case áre announced, which may be proper in argument, but which, when embodied in an instruction to a jury, would be improper or misleading. We are of opinion, however, that the instruction under consideration, in the respect indicated, does not announce a correct rule,—and especially is this so in view of the circumstances of this case,—and was improperly given.

For the error in this regard, and in excluding the testimony of witnesses called by contestants, for the reasons before stated, the decree of the circuit court must be reversed and the cause remanded, which is done.

Decree reversed.