locked and incapable of moving freely; that in consequence he experienced difficulty in speaking and articulated with hesitation; that during the time the will was being talked over he had a slight convulsion, and to relieve him the doctor gave him a few whiffs of chloroform, but all the witnesses present at the execution of the will testified that his mind was clear at the time, and there is no positive proof of any kind that any undue influence was used by anyone to obtain its execution.

The evidence shows, without contradiction, that in cases of lockjaw the mind is usually clear until death; that the convulsions incident to the disease are muscular, the patient suffering no particular pain except when the convulsions are actually present; that the locking of the jaws is peculiar to the disease, death being caused by the contraction of the throat muscles, the patient thereby smothering to death. The two nurses who were witnesses were in no way related to the testator or any of the parties in this litigation and were not made beneficiaries under the will. His attending physician testified that he had given the patient morphine about six hours before, but that in his opinion there were none of its effects present at the time the will was made.

There is a dispute in the record as to the value of the estate Dowdey left, appellants claiming that it was worth $40,000 while appellees contend that it was worth less than $30,000. He had contracted to purchase a house and lot in Rock Island worth about $2000 and he owned two pieces of real estate in Geneseo. What kind of property he owned other than this real estate does not appear clearly from the record. Under the will in question he left the real estate in Rock Island and Geneseo to his housekeeper, Mrs. Torrence, gave $2.50 to each of his five children, and the balance of his property he left to his niece, Helen Palmer, the daughter of his sister and of W. H. Palmer, who drew the will. He appointed Helen Palmer as executrix without bond.

Eight witnesses testified on behalf of the contestants and eight for the proponents of the will. No attempt was made by the contestants to question the mental capacity of the testator, and no evidence of any character was offered which showed directly positive fraud or undue influence in the execution of the will. If any evidence in the record tended to show fraud or undue influence it arose simply from such legal inferences as may be drawn from the fact that the father of one of the chief beneficiaries drafted the will and that the two chief beneficiaries were in an adjoining room at the time the will was drafted and executed and that the testator was seriously ill at the time. The evidence on behalf of proponents tended to show that in the last years of his life the testator did not feel kindly to his children because they had gone with the mother instead of remaining with him, and the testimony of several of the witnesses is to the effect that he said in their presence that he did not intend to leave any of his property to his children. The evidence also tends to show that his sister, Mrs. Palmer, was on very friendly terms with him and had visited with him often on his farm in northwestern Iowa and that he was with her more frequently than with any of the other relatives. The evidence on the part of the contestants tended to show that he had spoken in his last years in a way to indicate that he was on friendly terms with some, at least, of his children, and was very sorry that he had sold the farm and thus had been compelled to separate from his son Charles, who was living with him on the farm. One or two of the witnesses for contestants also testified that Mrs. Torrence took charge of some of Dowdey's business affairs during his last sickness and refused to follow his advice as to what was to be done with certain papers he had left with her and in other ways indicated that she did not carry out his wishes. Counsel. for appellees in their brief state that Mrs. Torrence and the testator had lived together, before his death, as husband and wife. We find

in the record no positive evidence indicating this relation between them. It is true that Mrs. Torrence was sometimes called Mrs. Dowdey, and they apparently lived together as the only persons in the house in Geneseo and in Rock Island, as well as on the houseboat. There is evidence, also, of one witness that on the day he went to the hospital Helen Palmer was visiting the testator at the houseboat and she asked him what he was going to do with his property after his death, and the witness did not hear the testator make any answer. There is testimony, also, that Mrs. Torrence stated, after he went to the hospital, that she was going to try to see that the property was left to her and the niece, Helen Palmer.

There is considerable discussion in the briefs as to whether or not Palmer, who drew the will, was a lawyer. There can be no question from the record that he was sent for by someone from Rock Island after the testator was attacked by lockjaw, and that he came with the intention of talking with the testator about drawing a will and did draft the will and was present at its execution. Whether he was a regular practicing lawyer or not we do not deem material as to any of the issues of this case.

There is also some discussion in the briefs as to whether the children were notified of their father going to the hospital and of the operation, and counsel for appellees argue that there was an attempt made by the beneficiaries under the will to keep from the children knowledge of their father's condition. . Dowdey's sister testified positively that immediately after the operation she notified his divorced wife of the fact by letter and requested her to notify the children; that she wrote to the divorced wife instead of the children because she did not know the latter's addresses, and that she notified the divorced wife thereafter of his serious condition after the attack of lockjaw, with a similar request to notify the children. None of the children, however, came before the father's death, although the record

shows that the son Harry came after his father's death and took the remains back to the old home in Iowa for burial. We find no basis in the record to justify the argument of counsel for appellees that any of the beneficiaries under the will, or those who were present during the testator's last sickness, endeavored to keep any of his relatives or friends away from him during the last sickness.

Counsel for the appellants argue that the evidence of two witnesses was improperly admitted as to the financial condition of the testator's children. These two witnesses, Mr. and Mrs. Vandamore, had lived as neighbors to testator in Iowa and he had boarded with them for a time in Geneseo. This court has held that the financial condition of the heirs-at-law of a testator is admissible only when proof is made that the testator knew of their condition. No proof was attempted to be made in this case that the testator knew the financial condition of his children, and the evidence that the children were practically without property should not have been admitted. Kern v. Meyer, 264 Ill. 560; O'Day v. Crabb, 269 id. 123.

It is also contended by appellants that the court erred in permitting Mrs. Pearl Stafford, a former neighbor of the testator and who visited him in the hospital two days before his death, to testify, over objection, that she did not think he was able at that time to attend to ordinary business. It has long been the settled doctrine of this court that the capacity to transact ordinary business is not the true rule to govern when deciding whether the testator has sufficient mental capacity to make a will. The real question is whether, at the time the will was made, the testator had sufficient mind and memory to remember who were the natural objects of his bounty and to recall to mind his property and make disposition of it understandingly, according to some plan formed in his mind. (Coleman v. Marshall, 263 Ill. 330; Ring v. Lawless, 190 id. 520; Taylor v. Cox, 153 id. 220; Sinnet v. Bowman, 151 id. 146.) Counsel

for appellees concede that the ability to transact ordinary business is not the proper standard, but say that the same questions were asked of other witnesses by counsel for appellants, and that therefore appellants were not injured by Mrs. Stafford answering this question. We cannot agree with the argument that because improper evidence has been admitted on behalf of one of the litigants without objection the same sort of evidence can be admitted on behalf of the opposing party when objection is made to its admission.

Counsel for the appellants object to several instructions given on behalf of appellees, and we will here discuss instruction 6 given for appellees, which involves the question we have just been considering. That instruction reads:

"You are instructed that if it appears, from a preponderance of the evidence, that at the time the will in question was made J. H. Dowdey was on his death-bed, racked with pain and disease and feeble in mind and body from such sickness, and had not sufficient understanding and intelligence to transact his ordinary business affairs at the particular time he signed the purported will and to comprehend the transaction then in question, the nature and extent of his property and to whom he was giving the same, then he had not sufficient capacity to make a will, and you will find by your verdict that the writing produced is not his will."

It may be conceded that the testator was hardly in position, because of his bodily infirmities, to be able to transact his ordinary business affairs, as that phrase is ordinarily understood. There was no proof offered in this case of mental incapacity or feebleness of mind. On the contrary, all the evidence before us indicates that he was mentally bright until his death. While it is true the instruction connected the statement of inability to transact ordinary business affairs with his ability to comprehend the transaction in which he was engaged at the time he executed the will, the instruction directed a verdict partly on a basis of elements which were improper, and also completely ignored