held against him for $900; to Joseph Murphy he surrendered notes which he held against him to the amount of $300; to Sumner Hayes he surrendered notes which he held against him to the amount of $3,000; to Dr. Lauchner he surrendered a note which he held against him for $100. It does not appear but that all of these notes were collectible. He conveyed without consideration a small tract of land, about 10 acres, the value of which is not fixed by the record, to one George McClure. In May, 1904, he made a trip to Arkansas to examine some real estate which he owned there. He was absent one week, and J. C. Zink, of Clay county, accompanied him to assist in the inspection of the land. On their return Mr. Hudelson proposed to give to Zink a tract of land on Hoosier Prairie, in Clay county. Hudelson was then going to Sailor Springs, which was known locally as a health resort, and Zink told him to go there and rest awhile, and when he came back, if he wanted to do anything like that, Zink would see about it. Hudelson never renewed this offer, but he afterwards said to Zink that he (Zink) would be well taken care of and never allowed to suffer. Nothing was ever done in pursuance of this promise.

For several years prior to his death W. H. Dillman had been his attorney. He made his business headquarters at Dillman's office, in Louisville, and, both before and after the illness above mentioned, Dillman, who at the time of the trial of this case was 37 years of age, assisted him in the transaction of his business, which was principally that connected with loaning and collecting money. During the period of his life now under investigation he surrendered to Dillman a note for $600. He also held a note against Dillman for $2,800. After that note had been partly paid he traded it to Dillman for stock. He traded that note to Dillman for stock in a gold mine situated in the Wichita mountains. This stock Dillman, as executor, listed in his inventory as "doubtful." After his trip to Arkansas he traded the Arkansas land, which was 880 acres in extent, to Mr. Dillman. A deed was executed and Dillman gave his obligations for the land. Hudelson, for some reason which the record does not disclose, became dissatisfied with the arrangement before the transaction was finally closed, and with Dillman's consent the deeds and obligations were destroyed. Afterwards he wrote to Dillman, asking him to prepare another deed for the Arkansas land and to bring it over to Sailor Springs, where Hudelson then was, for execution. Dillman complied with the request, thinking, as he says, that Hudelson had concluded to carry out the trade the same as before, and, when he saw Hudelson at Sailor Springs, the latter asked whether he brought the deed. Dillman replied in the affirmative, and asked whether Hudelson desired to trade as he said

78 N.E.-38

he would. Hudelson said "No," and told Dillman that he had concluded to deed him the Arkansas land, and the conveyance was executed and delivered on that day. We think it apparent from the testimony of Mr. Dillman, who was called by appellees, that there was in fact no valuable consideration for this deed. While he says that Mr. Hudelson expressed gratitude for his kindness to him, and that he (Dillman) did not regard it as a straight gift, yet he also says that at that time he (Dillman) "had no particular bill against him; he seemed to think a good deal of me." This land cost Mr. Hudelson about $9,000, and the consideration expressed in the deed to Dillman is $12,000. It appears that Dillman had been compensated for his services to Mr. Hudelson otherwise than by the gifts and conveyances above mentioned.

During the period succeeding his illness it appears that Mr. Hudelson himself transacted considerable business. The record shows that during that period he drew and signed 12 checks on the Farmers' & Merchants' Bank, and that 19 other checks drawn on that bank were written by other persons at his request and signed by him, and that all were paid on presentation. This does not include a $5,000 check hereinafter mentioned. During that time he executed deeds, bonds for deeds, took notes, released mortgages, and with the assistance of Mr. Dillman managed financial affairs which amounted in the aggregate to many thousand dollars. Many of those with whom he dealt during that time were witnesses. Some of them were of the opinion that he was entirely competent to transact ordinary business. Others gave it as their opinion, based upon what they saw and ob served of him, that he lacked testamentary capacity. Among the latter were some of those in the active management of the bank in question. Part of the property given to Dr. Scaiefe was $5,000 in cash, which was transferred to him by a check on that bank. When that was presented the bank at first refused to pay it, making an indorsement thereon, signed by several of the directors, to the effect that the payment was refused, not on account of lack of funds, but because of Mr. Hudelson's mental condition. Later, after communicating with Mr. Hudelson, the bank paid this check. Medical experts testified both for proponents and contestants, and, as usual, testimony of those called for the will indicates that Mr. Hudelson had the requisite mental capacity while the testi- . mony of those called against the will tends to show that he lacked that capacity. A multitude of circumstances are recited by the various witnesses, many of which tend to establish a lack of testamentary capacity on the part of the deceased, and many others of which are entirely consistent with sanity.

The instrument in controversy was executed on February 4, 1904. By it Mr. Hudelson

It is sufficient if he understands the actual disposition which he is making of his property at the time." We think the last sentence in this instruction apt to mislead the jury. By instruction No. 19, however, given at the request of appellants, the jury were instructed that if the deceased, at the time of executing the will, "knew what he was doing and executed it as his will, understanding its nature and effects, and had sufficient mind and memory," etc., then the jury should find the paper in dispute to be his will. We think this instruction stated the proposition embodied in the last sentence of the first instruction, and stated it in unobjectionable form. Several other instructions given laid down the correct rule for determining the testamentary capacity of the deceased. There was, therefore, no error in the refusal of appellants' first instruction.

Appellants' tenth instruction, as requested, reads as follows: "The court instructs the jury that if you believe, from the evidence, that the said William H. Hudelson did, prior to the making of the will in question, make other wills, the provisions of which are in substantial conformity to the will in question, then it is your duty to take into consideration the fact of the execution of such former wills, if any are proven, together with all the other facts and circumstances proved on the trial." The court modified it by striking out the words italicized, and gave it as modified. Appellants' sixteenth instruction was one of the same character, advising the jury that, if the deceased, before executing the paper in question, "had expressed any fixed purposes and intentions regarding the disposition of his property, approximating very nearly to the provisions of the will which is contested, then the jury should consider such expressed purposes and intentions, if such appear from the evidence; and, if the jury find that such expressed purposes and declarations of the testator are in accordance with the provisions of the will in question, then such declarations should be weighed by the jury in determining the question of sanity," etc. The court modified this instruction by striking out the italicized words, and gave the instruction as modified. Complaint is made of both of these modifications. These instructions should both have been refused, for the reason that they did not confine the jury to the consideration of prior wills executed and purposes and intentions expressed at a time when the deceased was conceded to be competent to make a will. The substance of the language stricken out of the tenth instruction, however, is found in the seventh given by the court at the request of the contestants, where the jury are told that the fact, if it be a fact, that the deceased "had formerly made other wills substantially like the one in controversy may be considered by you upon the question of mental capacity," but that such fact would not be conclusive, etc. The lan

guage stricken out of the sixteenth did not change its meaning, as the jury were advised by that instruction, as given, that it was proper to consider the expressed purposes and declarations of the testator which were "in accordance with the provisions of the will in question."

Complaint is also made of the action of the court in giving certain instructions requested by appellees. The first of these is appellees' No. 3, which advises the jury that any impairment of the mental faculties, or dementia, "which destroy testamentary capacity as defined in these instructions, disqualifies a person from making a will, even though it has not reached the stage of absolute imbecility." It is said that this instruction is misleading as to the legal test of competency to make a will, and that by this instruction mere old age or any impairment of the mental faculties is sufficient to render one incompetent. We think this a misapprehension. The instruction merely advised the jury that the lack of testamentary capacity disqualifies, even though the incapacity does not amount to absolute imbecility. By propositions of law given for the appellants the jury were fully advised that neither illness, age, physical weakness, nor mental weakness rendered the deceased incapable of making a will, unless the mental weakness left the testator without the testamentary capacity defined by the instructions.

Appellees' instruction No. 4 reads as follows: "The court instructs the jury that the capacity to comprehend a few simple details, if the estate be small, might qualify a person, in that case, to intelligently dispose of his property by will, while 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 the same mental capacity may be wholly insufficient to the intelligent understanding of the business requisite to the making of a valid will." It is said that this violates the law laid down in the case of Yoe v. McCord, 74 Ill. 33, where it was said that one grossly ignorant or of very limited mental capacity, if otherwise of sane mind, may make any instrument, however complex it may be, and be bound thereby, and where this court approved the rule as held in Delafield v. Parish, 25 N. Y. 9, "that the question is, had the testator, as compos mentis, capacity to make a will; not, had he capacity to make the will produced." This view has not been followed by the later authorities where the question of sanity is involved. In Campbell v. Campbell, 130 Ill. 466, 480, 22 N. E. 620, 623, 6 L. R. A. 167, it is said: "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." To the same effect are Campbell v. Campbell, 138 Ill. 612, 28 N. E. 1080, and Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837. Unless the person whose testamentary capacity is questioned had, 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, he did not possess the sound mind and memory required by the statute. The business in which he was then engaged was that of disposing of his property by the instrument in writing which is attacked, and it is manifest that he could not understand that business unless he had sufficient mental capacity to understand the effect of that particular instrument upon his property.

Instructions numbered 5 and 18 for appellees advised the jury that they might take into consideration, in determining the question of mental capacity, any inequality of distribution or unreasonableness of the provisions of the will, and the reasonableness of the will with reference to the amount of the testator's property and the situation and condition, financially, of his relatives. Evidence was introduced which showed that the deceased had knowledge of the situation and condition, financially, of some of his relatives. Instructions were given at the request of appellants which embodied the same propositions as contained in the two here criticised, except that in those given at the request of appellants the jury were not directed to consider the reasonableness of the will with reference to the situation and condition, financially, of his relatives. We have held that in cases of this character, "intrinsic evidence of the will itself, arising from the unreasonableness or injustice of its provisions, taking into view the state of the testator's property, family, and the claims of particular individuals, is competent and proper for the consideration of the jury." McCommon v. McCommon, 151 Ill. 428, 38 N. E. 145; French v. French, 215 Ill. 470, 74 N. E. 403. The financial condition of the testator's relatives falls within the language quoted. At the request of the appellants the jury were instructed that the next of kin had no legal or natural right to the estate of the deceased; that the law of the land gives to each person the power to make such final disposition of his estate by his last will and testament as he may choose; and that the owner of property having the requisite mental capacity has the power to disinherit his heirs and leave his property to charitable and educational objects, and that, if he does so, the validity of his will is not thereby affected. The instructions, as a series, correctly stated the law bearing upon the subjects touched by appellees' instructions numbered 5 and 18, now under consideration.

The objections made to instructions 2, 15, and 17, given at the request of appellees, are disposed of adversely to the contention of appellants by what has already been said.

Appellees' instruction No. 14 reads as follows: "The court instructs you that in determining whether or not a man is of sound mind and memory, he should be compared with himself and not with others. His manner, talk, and actions at a time when it is alleged he was not of sound mind and memory should be compared with his manner, talk, and action at a time when his sanity was not questioned." It is said that this instruction is misleading, from the fact that before Mr. Hudelson was sick, in the winter of 1902-03, he was a strong and vigorous man, above the average in point of intelligence; that thereafter he was physically ill; and that the jury were given to understand by this instruction that, if they found physical and mental changes, they should consider the allegations of insanity, or want of mental capacity, established. It seems impossible that the jury could have given any such meaning to this instruction. We think the objection is without merit.

Instruction No. 19 given for appellees reads: "The court instructs the jury that, when witnesses are otherwise equally creditable, and their testimony otherwise is entitled to equal weight, greater weight and credit should be given to those whose means of information were superior, and also to those who swear affirmatively to a fact rather than to those who swear negatively or to a want of knowledge." The giving of this instruction, in our judgment, was harmless. The witnesses who testified that in their opinion the deceased was sane, the witnesses who testified that in their opinion he lacked testamentary capacity, the witnesses who testified to facts and circumstances from which an inference of sanity might be drawn, the witnesses who testified to facts and circumstances from which an inference of mental unsoundness might be drawn, the expert witnesses who testified, in response to a hypothetical question, that he was sane, and the expert witnesses who testified, in response to a hypothetical question, that he was of unsound mind, were all witnesses who gave affirmative or positive evidence. Frizell v. Cole, 42 Ill. 362. If, as contended by appellants, this instruction directed the jury to give undue weight to the testimony of those who swore affirmatively, appellees did not thereby obtain any greater advantage than did appellants, because all the witnesses of both parties who testified to material matters were witnesses who swore affirmatively. This is not a case where there is a dispute as to whether or not a certain thing transpired. Counsel have not pointed out, nor have we observed in reading the testimony a single instance where witnesses have sworn that a certain event occurred, and other

witnesses, present at the time, testified that the event did not occur or that they did not notice that it occurred.

One respect in which appellants deem the instruction harmful is this: "Witnesses for the appellees testified that, at the times when they observed the deceased, the left corner of his eye was drawn down and his mouth was drawn down on the left side of his face; that his eyes had lost their natural expression and had a glazed and staring appearance; and that his conversation indicated failing mental powers. Witnesses who testified for appellants, on the other hand, testified that they observed the deceased; that the left corner of his eye was not drawn down; that his mouth was not drawn down on the left side of his face; that his eyes did not have a glazed and staring appearance; and that in their conversation with him there was nothing to indicate failing mental powers. Appellants contend that, within the meaning of this instruction, their witnesses just referred to would be regarded by the jury as those who gave negative testimony, and those who testified for appellees in reference to these matters would be regarded by the jury as those who gave affirmative testimony. The testimony of appellees' witnesses and the testimony of appellants' witnesses did not relate to the same times and conversations. There was therefore no conflict between them, and those who testified for appellants could not be regarded as witnesses swearing negatively, when considered in connection with those who testified for appellees in regard to the matters just mentioned. It is apparent from this record that the deceased was stronger, both physically and mentally, at some times than he was at others, and the difference in the testimony which has just been noted is perhaps explainable by this fact. If witnesses for appellants and witnesses for appellees, and the deceased, had all been present on the same occasion, and witnesses for appellees had testified that the peculiarities and failings of the deceased which we have last above mentioned existed and were observed by them on that occasion, and witnesses for appellants had testified that on that occasion those peculiarities and failings did not exist or that they did not observe them, then argument of counsel for appellant bearing on this instruction would be entitled to weight. This is a case where there is practically no dispute in reference to events and transactions. The conflict is in regard to the inference that is to be drawn from those events and transactions.

Upon consideration of all the instructions given, we conclude that appellants have no just cause of complaint on account of the action of the court in stating the law to the jury.

No assignments of error other than those which we have discussed in this opinion have

Where the holders of liens on mortgaged property are made codefendants to a, suit to foreclose, the existence and priority of their several liens and their right to distribution of any surplus arising on a sale of the property may be determined on their answer, without the filing of a cross-bill.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, § 1330.] 3. JUDGMENTS JUDICATA.

ISSUES DETERMINED

RES

Where, in a suit to foreclose a mortgage, certain lien claimants were made codefendants and answered, claiming a right to any surplus arising on sale of the property, but no issue as to the validity of their liens was presented or determined, it being impossible to know in advance of a sale that there would be any surplus, the decree in the foreclosure suit establishing such liens was not res judicata as between such codefendants.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 1259.]

Appeal from Circuit Court, Cook County; C. M. Walker, Judge.

Bill by Mary J. Gouwens against Rollin A. Gouwens and others. From a decree dismissing the bill for want of equity, complainant appeals. Reversed.

John C. Trainor, for appellant. I. T. Greenacre, for appellees.

CARTWRIGHT, J. In the year 1898 two judgments were recovered against John J. Gouwens, who was then the owner of certain lots in the city of Chicago, upon which the judgments became liens. One judgment was in favor of Rollin A. Gouwens, and the other in favor of Anton Steinbach. In 1901 appellant, who is the wife of John J. Gouwens, acquired title to the lots, and executions were afterward issued on the judgments and levied on the lots, and they were sold by the sheriff. Appellant then filed her bill in this case against part of the appellees, the judgment creditors, the sheriff, and the purchaser at the sheriff's sale, asking the court to cancel the levies, sale, and certificate of sale as a cloud upon her title. The ground upon which she asked relief was that the judg ments were not liens at the time of her purchase of the lots, for the reason that the executions which were issued within one year