The only error relied upon by plaintiff in error for a reversal of the judgment of the circuit court is that that court erroneously found that the injury and death of the deceased were not the result of an accident arising out of and in the course of his employment.

The deceased was employed by plaintiff in error at its mine as a rock and slate-picker. His principal duties were to pick out the rock and slate from the coal as it passed through a chute leading from the coal mine to the railroad cars upon which it was being loaded. His location while performing that duty was on a seat at the top of the coal chute. The slack as it passed him dropped into the nearest car below, the egg coal into the second car, and the lump coal was carried by the chute into a car on the track farthest from him. The cars were standing upon an incline and were held in place by sprags or blocks, and when the sprags or blocks were removed the cars would move down the incline by their own weight. When one end of a coal car was filled the coal would pile up and fall off upon the ground if the car was not promptly moved so that the other end of the car could be filled. Other men were employed in the yards for the purpose of removing the sprags or blocks so as to permit the cars to make the proper movement to be filled and properly trimmed. They were known as cartrimmers and were paid for their work the union scale, and by defendant in error's agreement with the union no one was to do that work who did not receive that scale. In addition to his work as a slate and rock-picker the deceased drove the general manager back and forth from his home to the mine in his wagon and did the hitching and unhitching and was occasionally sent on errands to the town. He was not paid the union scale for his work. The secretarytreasurer and general manager of the plaintiff in error employed the deceased, and according to his testimony he was employed as a slate and rock-picker and for no other purpose except the odd errands as aforesaid. He told the de

ceased what his duties were when he was employed, and told the top foreman to warn him not to engage in the work of moving the cars. The evidence is positive and undisputed that the top foreman did warn him a number of times before his death not to leave his seat at the coal chute. or engage in the work of moving the cars at all. It was testified to by the top foreman and also by W. J. Smyth, and their testimony was corroborated by one of the cartrimmers, who testified that he heard the top foreman tell the deceased not to move or assist in moving the cars. On the day the deceased was killed it appears from the record that the car-trimmers got behind with their work or were not looking after their work of trimming and moving cars and that one of the cars was being overfilled at one end by the coal from the coal chute. The deceased left his seat and went down and removed some of the blocks or sprags under the car so that the car might move further down the incline and fill with coal at its other end. car was an extra wide car, and by reason thereof, while the car was moving down the incline, the deceased's head was caught between an upright or post of the coal chute and a standard of the coal car. His head was thus crushed and he died a short time thereafter.

This

There is no dispute about the facts. The deceased was not engaged in any part of his duty, under the evidence, at the time of the accident but was engaged in an act that he had been told not to do. It cannot be said, therefore, that his death arose out of and in the course of his employment. Dietzen Co. v. Industrial Board, 279 Ill. 11; Central Garage v. Industrial Com. 286 id. 291; Rainford v. Chicago City Railway Co. 289 id. 427.

It is contended by plaintiff in error that the top foreman saw the deceased on the ground just after he had taken the blocks or sprags from under the car and that he did not then warn or tell him not to engage in that work. The car was already then moving, and while the foreman

perhaps knew that deceased had removed the sprags, he was several feet away from him and it does not appear that a warning at that time would have saved the deceased.

As the deceased was not within the scope of his employment at the time of his injury the Industrial Commission had no jurisdiction to make an award for compensation. It is our duty to consider the evidence in the record which determines the question of jurisdiction. That evidence clearly shows that the deceased was outside of the scope of his employment and was not engaged in any duty for which he was employed or in any work incident thereto. The judgment of the circuit court is affirmed.

Judgment affirmed.

(No. 12817. Decree modified and affirmed.)

NOYES F. WATERMAN, Appellant, vs. GEORGE E. HALL et al.

Appellees.

Opinion filed February 18, 1920.

1. WILLS-undue influence must have operated at time will was executed-circumstantial evidence. Undue influence may be established by circumstantial evidence, but to invalidate a will the evidence must be such as to show that the influence was operative at the time the will was executed, and the circumstances must not only be consistent with the exercise of undue influence but they must also be inconsistent with the absence of such influence.

2. SAME-undue influence must overcome testator's will. Advice, argument or persuasion will not vitiate a will made freely and from conviction although such will would not have been made but for such advice, but the influence which will invalidate a will must be such as to destroy the freedom of the testator's will and make his act more the offspring of another's will than of his own.

3. SAME what tends to show absence of undue influence. The fact that the person charged with having procured the execution of a will by the exercise of undue influence cannot derive any benefit from the will is a strong circumstance tending to show the absence of undue influence.

4. SAME-proof of undue influence in other transactions is immaterial. In the absence of evidence showing the exercise of undue influence in the execution of the will, proof of the exercise of undue influence in other transactions is immaterial.

5. SAME―what newly discovered evidence is not ground for a new trial to contest will. Where the execution of the will is admitted in a will contest case and the only questions at issue are the mental capacity of the testator and the exercise of undue influence, newly discovered evidence tending to show only that the will was not executed on the date which it bears and was not then attested has no tendency to prove the issues and is not ground for new trial.

6. SAME when the cross-complainant should not be made an original complainant by decree. Where the original bill seeks to set aside a will and certain deeds executed by the testator, a defendant corporation which has filed a cross-bill insisting that the will shall stand but praying that the deeds be set aside should not be made a party complainant to the original bill by a decree which sustains the will and dismisses the original bill as to the original complainant, as said defendant may prosecute its cross-bill and get all the relief it would obtain under the original bill.

APPEAL from the Circuit Court of Cook county; the Hon. M. W. PINCKNEY, Judge, presiding.

SHEPARD, MCCORMICK, KIRKLAND, PATTERSON & FLEMING, (PERRY S. PATTERSON, and DWIGHT P. Green, of counsel,) for appellant.

WILSON, MOORE & MCILVAINE, (N. G. MOORE, of counsel,) for appellees.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the

court:

Arba N. Waterman died on March 16, 1917. On July 21, 1909, he had signed an instrument which purported to be his will and was probated as such on July 25, 1917, in the probate court of Cook county. It consisted of eleven paragraphs, the first of which gave all his property to his wife and the tenth nominated her as executrix without bond. All the other paragraphs were based on the condition that

the testator survived his wife, and paragraphs 2 to 8, inclusive, provided for the payment in that event of various legacies to different individuals, schools and other public institutions. Subject to all the other provisions of the will, the ninth paragraph devised the residue of the estate to the Chicago Avenue Church, located at the corner of Chicago and LaSalle avenues, founded by Dwight L. Moody. Paragraph II nominated Louis C. Ehle executor in case of the death of the testator's wife or her inability to act. Afterward, on May 8, 1916, six deeds were filed for record purporting to have been executed by Arba N. Waterman on June 2, 1915, conveying to Carleton Hudson a large amount of real estate. The testator's wife died in his lifetime, before the execution of these deeds. He had no children and his only heir was his half-brother, Noyes F. Waterman. On October 25, 1917, Noyes F. Waterman filed a bill to contest the will on the ground of mental incapacity of the testator and the undue influence of Carleton Hudson, making all the legatees named in the will and the residuary devisee, the Moody church, defendants. The bill charged that the deeds to Hudson were fraudulent and he was made a defendant to the bill, which prayed that not only the will, but the deeds also, should be set aside. Answers were filed by various defendants denying the allegation of unsoundness of mind and undue influence, and the Moody church also filed a cross-bill praying for an injunction against the prosecution of other suits to set aside the will which had been begun by some of the parties defendant in the present. suit, claiming under an alleged prior will of Arba N. Waterman, and for a decree setting aside the deeds to Hudson. The court ordered an issue to be submitted to the jury whether the instrument in question was the last will and testament of Arba N. Waterman. During the trial the contestant's counsel stated that he did not rely on want of mental capacity of Judge Waterman as a ground for setting aside the will, but that his mental and physical condi