the husband was a competent attesting wit

ness.

6. The testimony of one subscribing witness and the certificate of the oath of the witnesses at the time of the first probate of a will are sufficient to make a prima facie case as to its validity in equity.

7. The court instructed, in suit to set aside will, that the burden of proof would be on proponents to establish its validity, but, having made a prima facie case, the burden would shift to the contestants, and, unless the evidence offered by the contestants overcame the prima facie proof, the will should be held valid. Held, that the instruction was technically inaccurate, since the burden does not shift in such case, but there was no cause for reversal.

Appeal from circuit court, McLean county; John H. Moffett, Judge.

Bill by John W. Slingloff and others against Mabelle Bruner and others. From a decree in favor of defendants, complainants appeal. Affirmed.

Tipton & Tipton, for appellants. Frank B. McKennan and McGlosson & Beitler, for appellees.

PHILLIPS, J. This was a bill in chancery, filed in the circuit court of McLean county, to set aside the will of Nicholas R. Slingloff, deceased. The bill charges lack of testamentary capacity on the part of the testator, and undue influence exerted upon him by the appellee Mabelle Bruner. Issues in chancery were made as provided by the statute, submitting to the jury the two questions of testamentary capacity and undue influence; and, upon the trial of the cause, a verdict was returned finding in favor of the validity of the will. A motion for new trial was overruled by the court, and a decree entered finding that the will in question was the will of Nicholas R. Slingloff, whereupon this appeal was prosecuted.

The principal reason urged by appellants for the reversal of the decree of the chancellor in this case is that the testator, at the time of the execution of the will in question, did not possess sufficient testamentary capacity to execute such will. Nicholas R. Slingloff was an unmarried man, aged about 39 years, who had resided most of his life in or near the village of Arrowsmith, in McLean county. The will in question bears date October 13, 1897. The testator died unmarried and without issue, on the 3d day of November of the same year. The testator had been for a number of years in poor health. About 19 years before his death, he received a severe injury to his side, which, as time progressed, necessitated three surgical operations,-two in Bloomington, and one in Chicago. This left him for a number of years prior to his death much reduced in strength and emaciated in appearance, and for some time previous to his death he was not physically capable of giving his personal attention to his business. He was a druggist, owning a one-half interest in a drug store in Arrowsmith, the other half interest of which was owned by George F. Lester, one of the appellees herein.

The three surgical operations mentioned haa all been performed in the winter and summer of 1897,-one in February, one in June, and the last one the 15th day of October, two days after the will in question was executed. The testator left, at the time of his death, his mother, two brothers, three sisters, and some nephews and nieces, all complainants in the original bill. By his last will and testament, the validity of which is questioned, he devised one-half of his interest in the drug store to his partner in business, George F. Lester, in consideration of the payment to his estate of $2,300; and, after the settlement of all his indebtedness, his estate, both real and personal, was to be divided equally between his mother and Mabelle Bruner. The latter was not related to him, but it is apparent from the record that he entertained for her feelings of affection, although it is not certain from this record that an engagement of marriage existed between them. She was with him most of the time during his last illness. The will in question was prepared by Hubert J. Thompson, an attorney, at the home of the testator, a short time before the performance of the last operation, which resulted in his death. It was witnessed by Thompson and David L. Snoddy, the husband of a sister of the testator, and these two parties and George F. Lester were the only ones present at the execution of the will.

The proponents, in order to establish the validity of the will, offered the testimony of Hubert J. Thompson, whose evidence was that he was called to the house where the testator was lying ill, and received from him directions as to the disposition of his property, and that George F. Lester was present at the time, with other persons during a portion of the time. He testifies that he told the testator that he was called there, and, as he states, the testator said he wanted Lester to take his interest in the drug store at $2,300, and wanted a mortgage on his father's farm paid, and the interest thereon, and the expenses of his sickness, and the balance was to be equally divided between his mother and Mabelle Bruner. He states there was some conversation between the testator and himself as to whether a bill of sale of the drug store should be made, or whether the terms should be incorporated in the will, and it was put in the will, and the will drawn as directed by the testator, and read to him. He also directed who should be the executor, and said he wanted his partner to attend to his business, and be appointed executor. There was also offered the certificate of the oath of the witnesses at the time of the first probate. This evidence was objected to, and the objection overruled, and the complainants excepted. Certain letters were offered in evidence, which we apprehend to be in the handwriting of the testator, and extracts therefrom were read. These letters were addressed to Mabelle Bruner, one of the legatees. This was substantially

all the evidence offered by the proponents in support of the validity of the will.

The testimony of the attending physician, and of a consulting physician, who was called in, in the afternoon of the day on which the will was drawn, and who described the testator's physical condition and the fact of the frequent and long-continued administration of morphine to allay pain, was that, at the time of the execution of the will, the testator was incapable of transacting business or of reasoning on business matters; that his temperature was very high, which had a depressing effect on his brain, tending to cause an exhaustion and enfeeblement of the entire intellectual powers, with the physical. Eleven other witnesses were called who testified as to his physical condition. Many of these witnesses had, just prior to the time of the execution of this will, called at the house where the testator was lying, and from their testimony it is apparent he was at the time suffering great pain, and made no attempt to engage in conversation in any manner. Some of the testimony is based on the opinions of the witnesses as to his condition without conversation with him. Some testified they did not believe he was in a condition to transact business. Others found him suffering pain, and did not engage in conversation, and say he was effusive in his manner towards them, which caused them to reach the conclusion that he was in very poor condition, and unable to transact business. Others had but little conversation with him, and saw that he was in an enfeebled condition, lying quietly, and they formed an opinion that he was in a poor condition, and unable to transact business. Certain witnesses were called by the complainants as experts, who, on a hypothetical question stating his condition being put to them, testified that, in their opinion, he would not be in a condition to transact business. George F. Lester, who was appointed executor, testified that, at the time testator made the will, he did not think he was in a condition to transact any business or make a will.

This testimony as to the testamentary capacity of the testator, offered by the complainants, is exceedingly unsatisfactory and uncertain, as against the fact, clearly appearing, that the testator, when roused up, not only thoughtfully inquired of his partner if he would take his interest in the store at $2,300,-a matter on which they had previously conversed, and substantially agreed as to the terms, but also suggested the reciting in the will of the terms on which the store was to be taken by his partner, after discussing with the attorney who drew the will whether a bill of sale would be necessary. It appears, he also recollected and provided for the payment of a mortgage resting upon the farm of his father, and determined the description of the land, and caused the will to be drawn so as to express his intentions, and directed what was to be done with the

residue of his estate, and called attention to the fact that there was no executor appointed, saying that he desired his partner, George F. Lester, to be executor of his will. In a contested will, under the provisions of the statute, the verdict of a jury rests upon the same basis, and is to be treated by an appellate court in the same way, as the verdict of a jury in a common-law case, and should not be set aside by an appellate tribunal, unless it is manifestly against the weight of the evidence. Shevalier v. Seager, 121 III. 564, 13 N. E. 499; 125 Ill. 262, 17 N. E. 706; 145 III. 264, 33 N. E. 941; Lennen, 105 Ill. 56.

Moyer v. Swygart, Greene v. Greene, Buchanan v. Mc

Certain expert witnesses were called by the proponents of the will in rebuttal, and a hypothetical question was put to them, on which they based an opinion that the testator was competent to execute a will. A principle is that the proponents of a will should offer all their testimony in support of their contention that is matter in chief, in the first instance; and, after the contestants have closed their proof, the proponents may offer testimony only to the extent that it rebuts the testimony of their adversaries. This testimony offered in rebuttal was the opinions of witnesses as to the testamentary capacity of the testator, based on a hypothetical question, and should have been given in chief. While it was improper to offer it as evidence in rebuttal, still that fact, of itself, is not reversible error. Craig v. Southard, 148 Ill. 37, 35 N. E. 361. On contesting the validity of a will by a proceeding in chancery, under section 7 of chapter 148 of the Revised Statutes, the certificate of the oath of the witnesses at the time of the first probate should be admitted as evidence, and have such weight as the jury should think it may deserve, by express direction of the statute. It was not error to overrule complainants' objection to that evidence on that ground.

Complainants objected to the admission in evidence of the letters shown, which had been written by the testator to one of the legatees, Mabelle Bruner, and the reading of extracts therefrom. The letters in their entirety were offered, but all of the letters were not read. Where a letter is offered in evidence, particular parts of which are desired by the party offering the same to go before the jury, he may read that part of the letter to the jury, and is not required to read the whole letter. The other party has the right to read the entire letter, if he so desires. These letters were properly admissible as evidence to show the relations existing between the legatee and the testator. The affections of the latter for the former may be shown, as the presumption is in favor of the validity of the will when the person provided for therein is one with whom the testator has maintained intimate and affectionate relations during his life. Harp v. Parr, 168 Ill. 459, 48 N.

E. 113. These letters, showing the affection and intimate relations existing between the testator and the legatee Mabelle Bruner, were properly admitted in evidence; and the reading of extracts therefrom by the proponents of the will, and their failure to read the whole of the letters, was not error, as the contestants had the right to read the other parts of the letters if they so desired, as the whole of the letters were in evidence before the jury.

David L. Snoddy, one of the subscribing witnesses to the will, was the husband of Sarah E. Snoddy, one of the contestants; and, although not called as a witness in this proceeding, the certificate of the oath of the witnesses at the time of the first probate and he was one--was admitted in evidence; and it is insisted by contestants that this was error, the contention being that the evidence of the husband could not be received as against the wife. The principle is that the competency of a witness to a will, like evidence of the capacity of the testator, is tested by the status of the witness at the time the will was executed. The weight of modern authority is in favor of the proposition that the competency of a witness attesting a will is to be tested by a state of facts existing at the time of the attestation, and not by the state of facts existing at the time the will is presented for probate, nor by the state of facts existing at the time when interested persons may, by a bill in chancery. seek to contest the validity of the will. Fisher v. Spence, 150 Ill. 253, 37 N. E. 314. By this will the testator sought to dispose of his property and effects of every character, making his mother and Mabelle Bruner the legatees, and making Lester the executor. The complainant Sarah E. Snoddy, although a sister of the testator, was not named in the will in any capacity. He sought to dispose of his property by devising it, and leaving nothing to descend to an heir; and, so far as the will was concerned, Sarah E. Snoddy had no interest as legatee or heir, nor did she appear as executrix. Her husband, David L. Snoddy, was therefore a competent witness at the time of the attestation of the will, and at the time it was admitted for probate. The statute expressly provides that the certificate of the oath of the witnesses on the first probate of a will is competent evidence on a contest of the will in a court of chancery. The only way in which David L. Snoddy is connected with this record is as a witness. We are of the opinion, therefore, that it was not error to admit the certificate of his oath in evidence, and that he was a competent attesting witness to the will.

It is urged that the testimony of one subscribing witness and the certificate of the oath of the witnesses at the time of the probate are insufficient to make a prima facie case as to the validity of the will. The general rule in this country is that a will may be established by only one of the attesting witnesses, if he can testify to a compliance with

It is insisted by appellants that the first instruction for the proponents was error. That instruction states that the burden of proving the testamentary capacity of the testator is primarily upon the proponents, and they are required to show, by a preponderance of the evidence, that the instrument offered in evidence was signed by the testator, or by some person in his presence by his direction, and that, in his presence and by his direction, it was attested by two or more witnesses; and when the testimony of the subscribing witnesses is given in, or the oath of the subscribing witnesses is attached to, the writing, and offered in evidence, the competency of the testator, and the fact of so signing and attesting, are established by the evidence, and a prima facie case is made out; and the bur den of proof then shifts to those who seek to contest the validity of the will, and, unless the evidence offered by the contestants overcomes the prima facie proof thus made, the will must be held valid. The burden of proof does not shift on the trial of a bill coutesting a will, and this instruction was technically inaccurate. The jury are to determine from the whole evidence whether the instrument offered was the will of the testator. While the instruction is technically inaccurate, it is apparent it could not have misled the jury, and is not cause for reversal.

Appellants say in their brief: "Other of proponents' instructions are objectionable. The court refused several instructions asked by complainants that should have been giv en." They do not point out which of proponents' instructions are objectionable, or any objection thereto, nor show wherein there was error in the reversal of instructions. This general objection thus made in the brief does not present for our consideration which of the eleven instructions given for proponents was erroneous, or why the refusal of the six instructions was error.

The evidence of the proponents of the will, standing alone, was sufficient to authorize this verdict; and the evidence of the contestants is so unsatisfactory that we are satisfied the verdict should not be disturbed. We find no reversible error in this record, and the decree of the circuit court of McLean county is affirmed. Decree affirmed.

(175 Ill. 480)

CAYWOOD v. FARRELL. (Supreme Court of Illinois. Oct. 24, 1898.) GARNISHMENT-APPEAL FINDING OF FACT-Sur

FICIENCY.

Defendant sold land. and, after part payment, gave a bond for deed. The vendee, be

ing unable to comply with his contract, canceled it, and gave a quitclaim back to defendant. Defendant was afterwards garnished by the vendee's creditors. Judgment against defendant was reversed in the appellate court, whose only finding of facts was that "it does not appear from the evidence that [garnishee] was indebted in any sum to [vendee] when the writs of garnishment were issued, nor at any time afterwards before the rendition of the judgment in garnishment proceedings." Held, that the finding included all ultimate facts in controversy, and was sufficient, under Prac. Act, § 87, which provides that if the final determination, as the result of the findings of fact "concerning the matter in controversy,' is different from the findings of the court below, the appellate court shall recite in its judgment "the facts as found," which shall be conclusive as to all matters of fact in controversy.

Error to appellate court, Third district.

Garnishment proceedings by James Caywood, for the use of others, against Felix G. Farrell. From a judgment of the appellate court reversing a judgment for plaintiffs, they bring error. Affirmed.

R. W. Mills, for plaintiffs in error. W. P. Callon, for defendant in error.

PHILLIPS, J. James Caywood, as the nominal plaintiff, for the use of certain judgment creditors, garnished defendant in error. On trial in the circuit court, judgment was entered against defendant for $1,028.23, which judgment was reversed by the appellate court, with the following finding of facts: "The court finds that it does not appear from the evidence that the said Felix G. Farrell was indebted in any sum to said James Caywood when the writs of garnishment were issued, nor at any time afterwards before the rendition of the judgment in garnishment proceedings." The error assigned on the prosecution of this writ of error is that the appellate court did not make "a sufficient special finding of facts." It is urged such order states a mere conclusion from the facts, which is said not to be in compliance with section 87 of the practice act, which provides that if the final determination of the cause, as the result, wholly or in part, of the finding of the facts "concerning the matter in controversy," is different from the finding of the court below, the appellate court shall recite in its final order or judgment "the facts as found," and such judgment shall be final and conclusive as to all matters of fact in controversy in such cause. This section has been construed to mean: (1) "That the facts recited should include the facts concerning any material issue submitted to the trial court." Insurance Co. v. Scammon, 123 Ill. 601, 14 N. E. 666; Morris v. Wibaux, 159 Ill. 627, 43 N. E. 837. (2) That such facts should be recited and set forth as in decrees in chancery. Tibballs v. Libby, 97 Ill. 552; Neer v. Railroad Co., 138 II. 29, 27 N. E. 705. (3) The facts to be so recited are to be ultimate, and not evidentiary, facts; that is, they may be "conclusions of fact," "or, in other words, infer

are,

See,

ences drawn from the subordinate or evidentiary facts." "Ultimate facts * when considered with reference to the facts or evidence by which they are established or proved, but the logical results of the proofs, or, in other words, mere conclusions of fact" (Brown v. City of Aurora, 109 Ill. 165); as, in an action for negligence, a finding that the plaintiff did not use ordinary care to avoid the injury, or that the defendant was not guilty of willful or wanton injury (Rogers v. Railroad Co., 117 Ill. 115, 6 N. E. 889); or, in an action for fraud, a finding that the evidence does not show fraud (Hayes v. Insurance Co., 125 Ill. 626, 18 N. E. 322). also, Siddall v. Jansen, 143 Ill. 537, 32 N. E. 384. It is clear that the appellate court, on finding the facts differently from the lower court, is only required to recite in its order or judgment of reversal the ultimate facts in issue as made by the pleadings, or the conclusion of such ultimate fact or facts from the evidentiary facts. Such recital of ultimate facts must include or cover all the material issues made by the pleadings vital to determine a right of recovery. In an action for negligence, for fraud, or for money claimed to be due, these are, respectively, the ultimate facts in such cases, and a finding of such facts by the appellate court is sufficient under the statute, conclusive on this court, and not subject to revision. Railroad Co. v. Pennell, 110 Ill. 435; Williams v. Forbes, 114 Ill. 167, 28 N. E. 463. The finding of the appellate court, as set out in this record, was of an ultimate fact, and sufficient, under the statute, if it covered or included all the ultimate facts "concerning the matter in controversy."

The only matter in controversy in this case of garnishment was whether Farrell was indebted to Caywood, either expressly or impliedly. The facts, in brief, are: Farrell, on December 21, 1892, sold to Caywood certain land, and gave a bond for a deed on the making of certain payments, reserving the title to the land and to the crops raised thereon, to secure the payment of interest and principal. In June and July, 1894, two judgments were obtained against Caywood; and, by virtue of executions issued thereon, a levy was made on the crops raised on said land, which crops Farrell claimed and replevied, and on trial recovered judgment for the same April 10, 1895. October 26, 1894, Caywood, not being able to comply with his contract, by agreement with Farrell canceled the con tract, and, as it had been recorded, quitclaimed the land back to Farrell. On January 15, 1895, Farrell sold the land to George W. Chittick. Farrell was garnished by the judgment creditors of Caywood; when, the record does not state, but does state the garnishee summons, etc., was omitted from the record by agreement.

The claim is made that a statement of the account between Farrell and Caywood shows the former was indebted to the latter on Oc

tober 26, 1894, when the quitclaim deed was made, in the sum of $1,028. Farrell and Caywood both deny such indebtedness, and so testified in the court below. The appellate court found, and recited in its order or judgment, the ultimate fact that Farrell was not, at the time of the service of the garnishee process or thereafter, indebted to Caywood. Complaint is made of this conclusion or finding of the ultimate fact. It is said: "The conclusion is not the controlling fact. It is the fact or facts found which lead the court to that conclusion." In this, counsel are in error, as this court has several times held the conclusion from the evidentiary facts is all that is necessary. It is said, however, Farrell and Caywood might have fraudulently settled. If that was made an issue, necessarily the finding of the fact that there was no indebtedness would include it. It is also suggested that after the creditors obtained judgment, which became a lien on Caywood's equity in the land, Caywood could not convey away his interest, to their detriment. If so, that is immaterial in this case. If such interest could not be so sold, then it is there yet. If Farrell did not give or owe Caywood anything for such interest at the time of the service of this process, or thereafter, then, of course, there was nothing to reach on that account. Had Caywood, in order to get out of the contract, sold his interest in the land to some third person, in consideration solely that such person should assume his contract, certainly such person would not be liable to garnishment merely because Caywood had paid something on his contract to Farrell. The finding of the appellate court, therefore, having included all the ultimate facts in controversy, its judgment is conclusive, and not a matter for review in this court. The judgment of the appellate court is affirmed. Judgment affirmed.

1. Deceased and the brother of defendant exchanged angry words in a depot, and went out to the edge of the depot platform. As deceased went out, defendant came into the depot, but immediately went out again. Some one was seen back of deceased and between him and the depot. The fatal shot was fired from behind. Defendant told the coroner that he was only about four feet away when the scuffle began on the platform between his brother and deceased, and that the shot came from behind. The wound was powder-burned, and no other person was shown to have been near the parties. Defendant afterwards said that he heard his brother and deceased quarreling, and that he had "a right to help his brother." The only help the brother received

was from the person who fired the shot. Defendant had a revolver of the caliber of the one with which deceased was shot, and a few days before had remarked that if deceased "monkeyed with him he would throw a ball at him." No weapon was found on deceased, and there were no signs of a scuffle between him and defendant's brother. Defendant ran away from the depot after the shooting, and was not seen again that night. Held to sustain a conviction of murder.

2. An instruction that malice includes not only anger, hatred, and revenge, "but every other unlawful and unjustifiable motive," is not subject to the objection that the words quoted broaden the instruction to include every motive, whether or not growing out of the evidence in the case on trial.

3. An instruction stating that the intent in the indictment must be shown by positive_testimony, or may be inferred from all the facts and circumstances shown by the evidence, and further stating "that if you believe from the evidence, beyond a reasonable doubt, that the firing of the revolver was the act of defendants as alleged in the indictment, and that it was done deliberately, and was likely to be attended with dangerous consequences, the malice or intent to make out the case as charged will be presumed," is not objectionable as failing to require the intent to be shown beyond a reasonable doubt.

4. Giving an instruction that, if a person kills another in self-defense, it must appear that his danger was such that the killing of the other was "absolutely necessary," which followed the words of Cr. Code, § 149, is not error where the jury were further instructed that: "Actual or real danger is not indispensable to the defense of one's relatives. Persons threatened with danger, or their relatives, must judge from appearances, and determine therefrom the actual state of things surrounding them or their relatives. If such persons act from honest fears, induced by reasonable evidence, they are not responsible for a mistake as to the extent of danger." And where the jury were further instructed, they must consider the instructions as one entire series, since the combined instructions fairly present the law to the jury so as not to mislead them.

5. An instruction that no provocation by words only, addressed to the person killing, or to another in his presence, however opprobrious, will reduce an intentional killing to manslaughter, and, though opprobrious epithets were used by deceased to defendant W. in defendant B.'s presence, yet if defendants immediately, or soon thereafter, revenged themselves by the use of a dangerous weapon, in a manner likely to cause the death of deceased, and did thereby cause his death, then defendants are guilty of murder, and the jury ought so to find, "unless they shall further believe that said killing was reduced to manslaughter, or was justifiable on other grounds, or by other than the use by deceased of such opprobrious language," is not objectionable as directing the jury to find defendants guilty of murder, instead of allowing them to pass on the question whether defendants were guilty of murder or manslaughter.

6. An instruction which recited certain facts, which, if believed by the jury, must have excluded every possible element of manslaughter or self-defense, and further stated that if the jury believed that defendant was present, and knew his brother was not in danger of his life, nor in danger of receiving great bodily harm, and that, knowing said facts, defendant interfered with a "deliberate mind and formed design to kill deceased, and did, with a revolver, shoot deceased, then defendant is guilty of murder." is not objectionable, as confining the jury to the crime of murder, where the jury were, in other instructions, told that they could find defendants guilty of murder or of manslaughter,