by any one, and respondent's testimony leads to the conclusion that the agents of the government had abandoned the idea of collecting the judgment because they had no sufficient evidence to convict Barber of the crime for which he was indicted. We can see no good reason why those two aged witnesses should be considered as perjurers by their testimony, and they are if their testimony in this case is false. They were separated before testifying, at respondent's request, and no discrepancy appears in their evidence. The exceptions of respondent are overruled as to this count.

court for $1,000 against said sureties. On shows that. the judgment never has been paid notice to Reardon of said judgment Reardon saw the respondent about it, and again, as he had when said bond was executed, the respondent assured Reardon that he would look after it and save him harmless; that the respondent thereafter, verbally and in writing, represented to Reardon that he (the respondent) would be compelled to pay about $1,100 to settle the amount due, and that he had gotten all the money together except about $300, and asked Reardon to procure for him that sum so he might settle the matter; that finally the respondent represented to Reardon that he had gotten all the money together except $200, and Rear[2, 3] The second count charges that in don thereupon, at the respondent's request, 1912 Hannah Sorenson retained respondent about June 1, 1906, gave him $200 upon the as an attorney to bring suit to annul, the representation that it was to be applied on marriage of her son, Harry Sorenson, after said judgment with enough more in the re-she had stated the facts concerning said matspondent's hands to pay off the judgment; ter and had been advised by him upon said that said representations were false; and statement and he had agreed at a total cost that neither said sum, nor any part thereof, of $50, including his attorney fee, to prosewas ever applied or paid on said judgment, but was retained by the respondent and converted to his own use, and no part of said judgment was ever paid by the respondent. The charges in this count are sustained by the testimony of Reardon, a man of the age of 79 years, and of Mrs. Marion Josephine

Reardon, his wife, who is 69 years old. Their testimony was positively denied by the testimony of the respondent, who testified very positively that he never got that sum, or any other sum, of money from Reardon to pay on that judgment, and those three were the only witnesses on that charge. The Reardons are corroborated by three letters written to Reardon by the respondent. The first, of date March 8, 1906, reads as fol

lows:

"It is going to cost me nearly $1,100 to settle that bond and costs. I have $700 on hand and can scrape another hundred soon. I wish, if possible, that you would see your friend Mr. Clark and try to get $300 for ninety days. I will sign the note and guarantee to pay it within that time so that it will never trouble you nor cost you a cent. I would like to close the matter up quickly. My fees from cases that will be settled within the next sixty days will amount to over $1,000. Try to help me out and let me hear from you."

No note was signed by respondent, but the Reardons testified that they paid him $200, and no note was asked of him, and that he never has repaid the money, although a written demand was made on him for it January 25, 1915. A few circumstances are referred to by respondent which he claims corroborate him; that Reardon waited for about 9 years before making demand for his money or any noise about it; that he made no note as mentioned in his letter; that no receipt was taken for the money, and he was never sued for it. The evidence of respondent proves one point in the case, and that is that he did not, at the time, have the $700 spoken of in his said letter. The evidence also

cute said suit; that in accordance with their agreement she advanced him the sum of $25, for which he then gave her his receipt and agreed to wait for the remainder of said

sum until a decree was entered in the cause; that he failed to file said suit at any time, and in response to repeated inquiries falsely represented to her that the reason said cause did not come up for trial was because the courts were so busy; that she continued to call on him from week to week for to be put off by him by one excuse or anothsix or eight months, and that she continued er until she was finally compelled to, and did, employ another attorney; that being advised that no suit had been begun, she notified

respondent thereof, and demanded a return of her money by him, and that he failed to repay her her money, but retained it, and never has repaid it or in any way looked after such suit. The commissioner in his findings recites the evidential facts which support the charge in this count in every particular, and then adds:

"For aught that appears from the evidence (respondent) may have supposed that the minority of the son was an adequate ground for a dissolution of the marriage. Upon further inquiry, that the young wife was about to become a however, according to his testimony, he learned mother, and thereupon he concluded not to commence a suit for dissolution of the marriage. all or any part of the $25 does not appear." Whether he should have returned to the mother

The foregoing conclusion of the commissioner is very apparently an erroneous conclusion of law, as it is unwarranted by the evidential facts found and recited by the commissioner. The facts found and recited, as aforesaid, were not objected to in any way by relator or respondent. The relator argues that the facts found and recited sustain the second count. The respondent has filed no brief or argument, except that in the abstract he has supplemented his exceptions

under the first and third counts with a few lines of argument. Under this showing of the record the court must hold that the evidence sustains the second count. Where the commissioner states all the facts correctly, but is mistaken as to the legal consequences of those facts, it is not necessary for the dissatisfied party to except to such conclusions. Hurd v. Goodrich, 59 Ill. 450; Clavey v. Schnadt (No. 10610) 112 N. E. 360. Whether or not the respondent correctly understood the law of the case he agreed to bring, or whether or not the son desired the suit brought, or whether or not respondent learned the wife was soon to become a mother were not facts demanding an accurate determination from the evidence in order to correctly determine whether or not respondent is excused from deceiving his client into believing he had brought the suit and in refusing to bring it, or repay her her money on demand after she learned he had not brought

the suit.

(272 Ill. 613)

HARTRICK et al. v. HARTRICK et al. (No. 10551.)

(Supreme Court of Illinois. April 20, 1916.) 1. WILLS 164(1)-CONTEST-EVIDENCE. In suit to contest a will on the ground of undue influence, the files of the county court in the matter of an insanity inquest instituted missible in evidence to refute the charge that it against testator by part of his children were adwas undue influence that led testator to leave the bulk of his property to the two of his sons who had assisted him in the insanity matter, and to for making such disposition of his property. sustain the reasons testator assigned in his will

[Ed. Note.-For other cases, see Wills, Cent Dig. §§ 403, 407, 408, 413; Dec. Dig. 164(1).] 2. WITNESSES 140(7)-COMPETENCY-INTER

EST IN WILL.

In suit to contest a will, testator's daughter, offered as a witness by the contestants, who would take more on intestacy than she would under the will, was properly excluded from testifying.

Cent. Dig. §§ 605, 606; Dec. Dig. 140(7).]

[Ed. Note.-For other cases, see Witnesses,

3. TRIAL

ISSUES.

253(8)-INSTRUCTIONS-IGNORING

In suit to contest a will, where the jury were instructed that, as bearing on the mental capacity of testator, they might consider the protion stating that the only question for the jury visions of the will, the part of a single instructo try was whether the writing offered was the deceased's will, and whether at the time of its execution he was of sound mind, was not erroneous, as excluding from the jury's consideration, as bearing on the mental capacity of the testator, the provisions of the will. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 620; Dec. Dig. 253(8).] 4. DEEDS 110-CONSTRUCTION-QUESTION

FOR COURT. made by testator to two sons prior to execution In a will contest, the construction of deeds, of the will, was for the court, not for the jury.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 255, 293; Dec. Dig. 110; Trial, Cent. Dig. § 326.]

[4] The third count is similar in all respects to the second count. It is supported by the evidence of Bessie B. Lassers, who testified that in 1911 she employed respondent on a contingent fee to prosecute a suit for her minor son against the Lill-Robinson Coal Company for an assault on him by a driver for the coal company; that he agreed to bring the suit, and told her that it would be necessary for her to pay $13 to him to defray court costs of filing the suit, and that she accordingly paid that sum to him; that he failed to institute the suit, and led her to believe that said suit had been instituted, and that she did not learn that it was not instituted until October, 1914; that she then demanded that he repay the money paid him, but he failed to do so, and converted the same to his own use. He stated upon the hearing before the commissioner that he would refund the money to her, and also the $25 he received from Mrs. Sorenson. He has finally paid both these sums after the evidence was taken in this case. The $200, however, he refused to pay to Reardon unless he would sue for the same and recover In suit to contest a will, where there was therefor a judgment. Respondent did not no evidence that testator was insane in refdeny that he received the $13 from Mrs. Las-lusions in reference to the objects of his bounty, erence to his property, or entertained insane de sers, and admitted he did not bring the suit, an instruction that every person having suffiand that he failed to repay her the money cient mental capacity to transact the ordinary when she demanded payment of it, but business affairs of life is competent to make a will was not erroneous, on the ground that tesclaims that he told her to bring in her retator might have had sufficient capacity to transceipt, showing she had received it, and that act his affairs and yet be without sufficient cathen he would pay her. We think the evi- pacity to make a will, if he was insane with refdence sustains this count, and respondent's tion of his property and the natural objects of erence to the subjects connected with the disposiexceptions are overruled as to this count.

5. WILLS 330(1)-CONTEST-INSTRUCTION. tion to unsoundness of the mind as a disease of In a will contest, reference by an instructhe brain was not erroneous.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 779; Dec. Dig. 330(1).] 6. WILLS

his bounty.

330(1)-CONTEST-INSTRUCTION.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

show testator was mentally competent, was not | paign county, alleging that Henry Hartrick

erroneous.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 776; Dec. Dig. 329(3).]

was insane and praying that the question of his alleged insanity be inquired into. The names of six of the plaintiffs in error were,

8. WILLS 330(1)-CONTEST-INSTRUCTION. among others, attached to the petition as In a will contest, an instruction, simply witnesses by whom the insanity of Henry stating that the mere fact that a person is of Emma Webster, great age creates no presumption against his Hartrick could be proven. mental capacity to make a will, was not errone the remaining plaintiff in error, a daughter, ous, as directing the jury to ignore testator's resided in the state of California and took no age in determining his mental condition. active part in these proceedings. The county

[Ed. Note. For other cases, see Wills, Cent. court appointed a commission, consisting of Dig. 779; Dec. Dig. 330(1).]

Dr. James M. Bartholow and Dr. W. F. Burres, to examine Henry Hartrick. The examination was made, but no formal report was made to the court, as Hartrick employed an attorney and an order was then entered that the cause be tried by a jury. A jury was impaneled and testimony heard, but the cause was continued from time to time during the last illness of Mrs. Hartrick, and after her death was dismissed.

During these proceedings Julius Hartrick and Guy Hartrick espoused the cause of their

father and rendered him such assistance as they could in defending against the charge of insanity. After the proceedings had been dismissed, Henry Hartrick made the will in question. Before executing the instrument he employed a number of physicians to examine him with reference to his mental condition and to advise him whether he was of sound or unsound mind. While the proceedings were pending in the county court on the petition to have Hartrick adjudged insane, Dr. Frank P. Norbury, a specialist in mental and nervous diseases, who at that time was superintendent of the State Hospital for the

COOKE, J. This writ of error was sued out to review the decree of the circuit court of Champaign county in a suit to contest a will, finding the instrument purporting to be the last will and testament of Henry Hart-Insane at Kankakee, was employed to exrick, deceased, to be his will and dismissing

the bill.

amine Hartrick. After these proceedings had been dismissed, and before the will was drawn and executed, Hartrick went, unaccompanied, from his home in Urbana to Kankakee, a distance of 70 miles, to submit to a further examination by Dr. Norbury to determine whether he had sufficient mental capacity to transact his business and to make a will disposing of his property. He was ex

by Dr. Harold E. Singer, a specialist in mental and nervous diseases, who was also connected with the State Hospital for the Insane at Kankakee.

Henry Hartrick executed the instrument in question on August 1, 1911, shortly after the death of his wife. He died in 1913, at the age of about 84 years, and the instrument was duly admitted to probate as his will. He left surviving him nine children, five sons and four daughters, seven of whom are plaintiffs in error here, and the remain-amined by Dr. Norbury at that time, and also ing two, Julius Hartrick and Guy Hartrick, are defendants in error. A few days before he executed his will he conveyed 120 acres of land in Champaign county to his son Julius and 120 acres to his son Guy, reserving a On the trial 31 nonexpert witnesses and 8 life estate in all of said land. At that physicians testified on behalf of the protime he owned 325 acres of farm land and ponents that Henry Hartrick, at the time he a homestead in the city of Champaign. executed the instrument in question, and at The record does not disclose how much per- all times, was of sound mind and memory. sonal property he had or whether there The nonexpert witnesses were from all walks was any indebtedness. The farm land was of life. Among them were men and women shown to be worth from $200 to $225 per who were intimately acquainted with the tesacre and the city property to be worth tator and many of them had known him for $10,000. Shortly prior to the death of Mrs. years. Each physician who testified had had Hartrick, in 1911, George M. Hartrick and an opportunity to personally examine the tesMinnie E. Black, two of the plaintiffs in tator about the time he made the will with error, children of Henry Hartrick, filed a view of determining his mental condition, their petition in the county court of Cham- and one of them had been the physician who

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

had attended him for at least two years prior ster, who resided in California, assisted in to the time of his death.

For many years the testator had been afflicted with a cancer. To stop the ravages of the disease surgery was resorted to, and the testator's right eye and practically the whole of his right cheek had been removed prior to the time the will was executed. It is the contention of contestants that the cancerous growth had invaded and affected the brain tissue, but the record is devoid of proof of any such condition.

The two physicians who were appointed by the county court as a commission to examine the testator at the time the insanity inquiry was pending in the county court testified that at that time they found him to be of unsound mind. One of these physicians testified that he met Hartrick some time afterwards, when he appeared perfectly sane. Another physician, who examined him at the same time, also testified that at that time he was of unsound mind. Three nonexpert

witnesses testified that the testator was of unsound mind, one of these being a near neighbor in the city of Urbana, one a sister of Mrs. Hartrick, and one a minister who for five years had been the pastor of the church in Urbana of which the testator had been a

member.

The testimony is voluminous, and it will serve no good purpose to review it in detail. It is sufficient to say that the testimony on behalf of proponents that the testator was of sound mind and memory is so conclusive that there can be no question of the correctness of the verdict of the jury so far as the weight of the evidence is concerned.

the prosecution of the petition. He then stated that for that reason he desired to make such a disposition of his property as would give a preference to his sons Julius and Guy. By his will he then bequeathed to his three sons other than Julius and Guy the sum of $2,000 each and made the same a charge upon his real estate. To his daughter Mrs. Webster he bequeathed the sum of $3,000, and to each of his other three daughters he bequeathed the sum of $1,000, making all these sums a charge upon the real estate. He then devised the remainder of his farm lands to his sons Julius and Guy and his homestead in the city of Urbana to Guy. The personal property was bequeathed to Julius and Guy, and they were made the executors of the will. The files of the county court in the matter of the insanity inquest were properly admitted in evidence to refute the charge of undue influence, and also to sustain the reasons the testator assigned in the will for making this disposition of his property.

While the

[2] Emma Webster was offered as a witness on the part of the contestants, and upon the objection of proponents the court refused to permit her to testify. Mrs. Webster, being one of the children of the testator and not being called to testify against her interest, was not a competent witness. record does not disclose the value of the personal property, it does show that the real estate devised consisted of 84 acres of farm land, worth from $200 to $225 per acre, and the homestead property in the city of Urbana, worth at least $10,000. While, at the lowest

valuation placed upon the farm land, Mrs. Webster would receive about the same under the will as she would if this were intestate property, we are not bound by the lowest valuation placed upon this land for the purpose of determining this question. But one witness testified to the value of this property, and he placed the value of the farm land at from $200 to $225 per acre; the plain inference being that the real value was somewhere between those two figures. The court properly refused to permit Mrs. Webster to testify.

[1] Proponents offered in evidence the petition of George M. Hartrick and Minnie E. Black, filed in the county court, to have their father adjudged insane, and the list of witnesses submitted by the petitioners and filed in the county court to prove the averments of their petition. It is contended that the admission of these files of the county court was improper. The bill charged lack of testamentary capacity in the testator, and also that the execution of the will had been procured by the undue influence of Julius Hartrick and Guy Hartrick. While the issue of undue influence was withdrawn from the The contestants sought to impeach Dr. Norjury, it was not until the close of the whole bury by asking him, upon cross-examination, case, and after this evidence had been offered if he had not received a communication from and admitted. As a preface to his will the an attorney in Newton, Iowa, describing a testator recited the fact that he had former- party who had been afflicted with almost the ly made a will, reciting the provisions of same physical ailments that the testator had the same, to which he had added two codicils. been afflicted with, and stating that one of the He then recited the fact that his son George children of this party got possession of him, and his daughter Minnie had filed the afore- and thereafter he made a will by which this said petition in the county court of Cham-child acquired practically the entire estate, paign county charging that he was insane; and if he did not, in response to that letter, that during the pendency of that proceeding offer his services at the rate of $100 per day nis sons Julius and Guy were the only ones to show circumstances by which the will of his children who gave him any comfort or could be set aside. The court, upon objection assistance; that all the other children, with of proponents, would not permit the witness the exception of his daughter Emma Web- to answer the question. It is insisted that

the court erred in not permitting the witness to be thus impeached. Defendants in error contend that the circumstances as detailed in the letter to the witness were materially different from those developed on the trial in this case and for that reason the objection was properly sustained. There is no proof in this record that the sons Julius and Guy got possession of their father or that they exercised any control over him. In that respect, at least, the case as stated by the Iowa attorney to Dr. Norbury differed from the facts adduced on this trial. We do not deem it necessary to analyze this proposition carefully, as without the testimony of Dr. Norbury the sanity of the testator was abundantly established, and the jury could have come to no other conclusion than that he was of sound mind at the time he made his will.

instruction is capable of no other construction than that it referred to the time of the making of the will.

[6] By the fourteenth given instruction the jury were told that every person who has sufficient mental capacity to transact the ordinary business affairs of life is competent to make a will, and it is insisted that this was error, for the reason that the testator might have had sufficient capacity to attend to the ordinary business affairs of life, and yet at the same time be without sufficient capacity to make a will, if he was insane with reference to the subjects connected with the testamentary disposition of his property and the natural objects of his bounty. There is not a scintilla of evidence in this record that the testator was insane in reference to the property which he possessed, or entertained insane delusions in reference to the [3] The action of the court in giving and objects of his bounty. It is true that he was displeased with the attitude of six of refusing various instructions is assigned as error. It is complained that the fifth given his children at the time he was charged in instruction on the part of the proponents the county court with being insane; but is bad, for the reason that it assumes the there is no proof whatever that he entertainexecution of the will, is silent as to whether ed any delusions in this respect, and it it was properly attested, and excludes from could not seriously be contended that his disthe jury, as bearing upon the mental capac-pleasure at this action on the part of his ity of the testator, all consideration of the reasonableness or unreasonableness, justice or injustice, propriety or impropriety, of the will. It is nowhere denied that Henry Hartrick executed the will, and it is abundantly proven that it was properly attested, and no contest is made on that point. In other instructions given on behalf of contestants the jury were told that, as bearing upon the mental capacity of the testator, they might consider the provisions of the will. That part of the fifth instruction given which stated that the only question for the jury to try was, Is the writing offered the will of the deceased, and was he, at the time of executing the same, of sound mind? does not exclude from the consideration of the jury the provisions of the will.

[4] By the eighth instruction given on behalf of the proponents the court correctly told the jury that the construction of the two deeds introduced in evidence, being the deeds made to the sons Julius and Guy prior to the execution of the will, was for the court and not for the jury, and that these deeds do not convey the whole interest of Henry Hartrick in the lands described but reserved to him a life estate.

[5] It was not error by the ninth instruction to refer to unsoundness of the mind as a disease of the brain.

The objection that the tenth given instruction does not specify with definiteness the time when the testator must be of sound mind and memory, and that the jury might from this instruction consider it enough if the testator was shown to be of sound mind and memory at any time, is not tenable. This

children was unreasonable or unnatural.

[7] It is complained that the eighteenth given instruction is erroneous, for the reason that it ignores the rule that in the first instance the burden of proof is on the proponents to show that the testator was mentally competent to make a will. While this is true, and the instruction does not recognize this rule, it was warranted because of the method pursued in the presentation of the evidence on the trial of this cause. ponents put in their whole case in the first instance, and under this situation it was not necessary that this instruction should state the rule mentioned.

The pro

[8] The nineteenth given instruction does not tell the jury to absolutely ignore the age of the testator in arriving at their conclusion as to his mental condition, but simply states that the mere fact that a person is of great age creates no presumption against his mental condition.

What we have already said in reference to the fifth given instruction disposes of the objection made to the twenty-fifth instruction given.

[9] The instructions as given correctly and fully stated the law to the jury. A large number of instructions was given on each side. Complaint is made that the court erred in refusing to give five of the instructions offered on the part of the contestants. We have carefully examined these instructions and find no error in their refusal. The competent parts of these instructions were given in other instructions in the series.

The decree of the circuit court is affirmed.
Decree affirmed.