but the court could not go beyond its power and the purchaser must take the deed and rely upon its covenants. The court, in considering the nature of an inchoate right of dower, in the case of Kauffman v. Peacock, 115 Ill. 212, said that whether it would ever become more than an expectancy would depend upon a fact which might never occur,-that the wife should survive the husband and become entitled to dower; and that the inchoate right is not property which can be measured, and does not become property until the death of the husband. In attempting to support the decree, counsel say that a computation can be made upon the basis of the mortality tables. Such tables are used more from necessity than because they are a reliable guide in fixing the probable duration of any individual life, being mere averages of many lives, but we know of no tables by which the value of an inchoate right of dower can be approximately estimated. If Cowan were dead and his wife surviving, mortality tables might be used as the best means of determining the value of her dower, but as they are both living, the chancellor would have to base his estimate on the supposition that she was to be the survivor, and if that could be done in any case, there is no evidence whatever in this record upon which even a surmise could be founded. It would be carrying the use of mortality tables to an unwarranted extent to apply them in such a case to determine substantial rights. There was evidence tending to prove that Mrs. Cowan refused to sign the deed, and if so, the court could only require the husband to convey and leave the purchaser to rely upon his covenants of warranty.

A reversal is also necessary because it was proved, and the court found, that the party who made the contract in fact and the only party in interest was Richard Curran, who was not a party to the suit. Pridmore, the real estate agent who made the sale, never saw Teresa Kane. She never saw the property, did not know the terms of the contract and did not advance the money deposited with Pridmore, nor offer the check of $2500 to him, nor tender the $9500 on the hearing.

None of the money belonged to her, and all that is claimed is, that she authorized the use of her name by Curran, the real purchaser, without the slightest interest in the contract or any expectation of interest in the property when conveyed. Curran signed her name to the contract, and the only authority he had was stated by him as follows: "I told her we were buying the corner and were using her name for it, and I would sign the contract and was it all right, and she said, yes, go right ahead; anything I wanted to do, do it." As a general rule, the only parties necessary in a suit for the specific performance of a contract are the parties to the contract, (Washburn & Moen Manf. Co. v. Chicago Galvanized Wire Fence Co. 109 Ill. 71,) and the fact that the purchaser is a trustee and pays the purchase money from a trust fund would not prevent enforcing specific performance of his contract. (Gibbs v. Blackwell, 37 Ill. 191.) But in this case Curran was the actual purchaser and made the contract, and the evidence showed that Teresa Kane had no interest in it, knew nothing about it or its terms or the property, and was not the real purchaser. The decree recites that the covenants were intended to be binding on Curran and be performed by him, and whatever performance there was was by him. He was not acting as agent for her in transacting her business, but was acting for himself. Here was one not a party to the suit, performing the contract, in part, in his own interest, and on the trial tendering $9500 as a performance of the remainder. Cowan is not attempting to hold her as one who is apparently the principal, but insists that she repudiated the contract and disavowed the authority of Curran. The suit is in equity, and the party having the substantial beneficial interest in the subject matter should be a party to the suit. (Elder v. Jones, 85 Ill. 384; Smith v. Brittenham, 109 id. 540.) The real matter in controversy is between Cowan and Curran.

Perhaps it would not be necessary to go further into the merits of the case if the parties in interest were before us, in view of the probability that the parties would not desire

a deed with covenants of warranty but without release of dower. Cowan, in his letters, gave as a reason for not executing the deed that his wife refused to join in it, and perhaps he might be willing to give such a deed as the court can require. But however that may be, we will not decide the merits of the controversy while the real party in interest on one side is not a party to the suit.

For the errors indicated, the decree is reversed and the cause is remanded to the superior court of Cook county for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.

EDWARD F. WOODMAN et al.

V.

THE ILLINOIS TRUST AND SAVINGS BANK, Exr. et al.

Opinion filed October 24, 1904.

I. TRIAL-motion to direct a verdict does not require weighing the evidence. On a motion to direct a verdict the real question is whether there is any evidence tending to support the material allegations of the declaration, and not whether, upon weighing the evidence, a verdict against the party making the motion would have to be set aside. (Language in Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, criticised.)

2. SAME-rule as to directing verdict in suit at law applies to will contest. In a proceeding in equity to contest a will upon the ground of undue influence or lack of testamentary capacity the same rule regarding directing a verdict applies as in a suit at law.

3. WILLS-old age and physical infirmity are not evidence of a want of testamentary capacity. To sustain a charge of want of sufficient mental capacity to make a will, something more than physical suffering, disease and old age must be shown.

4. SAME-anxiety to have a will made is not undue influence. Undue influence on the part of certain beneficiaries under the will is not established by proof that they were anxious to have the testator make a will of some kind in the expectation of being beneficiaries, there being no proof of any attempt to influence the testator to make any particular disposition of his property.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding.

HOLZHEIMER & CAHN, and RITSHER, MONTGOMERY & HART, (Z. HOFHEIMER, of counsel,) for plaintiffs in error.

PECKHAM, SMITH, PACKARD & AP MADOC, ELA, GROVER & GRAVES, and JOSEPH W. HINER, (ARTHUR W. UNDERWOOD, of counsel,) for defendants in error.

Mr. JUSTICE WILKIN delivered the opinion of the court:

This is a writ of error to the circuit court of Cook County to reverse a decree of that court dismissing a bill by plaintiffs in error against defendants in error to contest the last will and testament of James F. Woodman, deceased. The bill alleged that at the time of the execution of said will the testator was of unsound mind and memory and incapable of executing the instrument, and that he was unduly influenced in the execution of the same by certain of the defendants, John H. Woodman, Gordon O. Woodman, Frances E. Dunlevie and Agnes Craig being the principal beneficiaries therein. These and other parties, together with the executor, were made defendants, and they answered denying the allegations of the bill. An issue at law was made up as provided by the statute, and submitted to a jury, whether the writing produced was the will of the testator or not. The defendants introduced in evidence the certificate of the oath of the witnesses at the time of the probate of the will, and both parties offered oral evidence in support of and against the allegations of the bill. At the close of all the testimony, the trial court, on the motion of the defendants, instructed the jury that their verdict should be "that the instrument is the last will and testament of James F. Woodman, deceased," and a verdict being returned in obedience to that instruction, the bill was dismissed at the complainants' cost.

The only ground of reversal urged in this court is, that the court below erred in giving the peremptory instruction to find for the proponents of the will. Counsel for the re

spective parties do not disagree as to the fact that the same rule must be applied on that subject in this case as obtains upon trials in suits at law, and we have expressly so decided. (Thompson v. Bennett, 194 Ill. 57; Purdy v. Hall, 134 id. 298.) Notwithstanding the many decisions of this court defining that rule, it seems to be understood by counsel for the defendants in error that the court may properly take a case from the jury whenever it would feel compelled, upon weighing the evidence, to set the verdict aside if returned contrary to the views of the court. The correct rule is succinctly stated in Frazer v. Howe, 106 Ill. 563, as follows (p. 574): "It is not within the province of the judge, on such a motion, [a motion to withdraw a case from the jury,] to weigh the evidence and ascertain where the preponderance is. This function is limited strictly to determining whether there is or is not evidence legally tending to prove the fact affirmed,-i. e., evidence from which, if credited, it may reasonably be inferred, in legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence." This rule has been adhered to throughout the many subsequent decisions of this court, and while expressions may be found in opinions, as in Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, where it is said that "when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury but may direct a verdict for the defendant," capable of being understood as authorizing the court to withdraw a case from the jury, if, upon a consideration of all the evidence, it is convinced that a new trial would necessarily have to be granted if a verdict should be returned against the party asking the instruction, the expression in the case cited was used in repudiation of what is known as the "scintilla rule," and the correct rule would have been better stated without the expression, "that such a verdict, if returned, must be set aside." Of course,