eases, had never treated the testator. To him, steadily declined, can be held to show delu. was propounded a hypothetical question, em- sions on his part, yet they occurred so long bodying the substance of the testimony ad- after the execution of the will that they can duced, and he was asked whether he had have no persuasive effect upon the question an opinion as to the mental condition of the of his testamentary capacity in July 1916. testator on July 15, 1916. He answered that he did not have "a very clear opinion one way or the other." The testator entered the hospital early in the year 1919, approximately 21⁄2 years after he had executed his will, and remained there continuously until he died. Several nurses testified to facts and observations concerning the testator while he was a patient there. They said that he occasionally entered the halls improperly and insufficiently clad; that he cried, stamped upon the floor, pounded the bed, threw dishes across the room, talked incoherently, and refused to talk to visitors or to allow his temperature to be taken; that once he screamed about his money, because he thought some person was after it; that at another time he saw a lot of tin dippers and drinking cups playing about the room; that he thought the doctors would poison him; that because there was an electric bell at his bed by some diabolical machine he would be electrocuted; that he would not allow a male nurse who was in attendance to enter the room because he thought the nurse would kill him; and that he had to be moved because he objected to the fire escape light. [1] A review of the evidence convinces us that the testator did not lack testamentary capacity at the time he executed the will. His health was impaired for a considerable period before his death, but in the year 1916, so far as as the record shows, he was in full possession of his mental faculties. No fact or circumstance was shown to the contrary. His letters written at that time do not show any mental derangement or testamentary incapacity. They contain complaints and criticisms such as a person in his situation would naturally make, but they also contain observations upon existing conditions and current events which evince keen discrimination. The medical testimony, too, is consistent with the testator's testamentary capacity. While one physician, Dr. Fringer, testified that syphilis might produce unsoundness of mind, yet he admitted that it was unlikely to do so. He further testified that he had seen nothing to cause him to believe the testator insane, and that the testator had always acted rationally and sensibly in his presence. There was no testimony by any witness that the testator's mind had been actually affected by the disease. The only evidence which tends to show that he lacked testamentary capacity is that which relates to the period when he was a patient in the hospital. That period began 22 years after he had executed the will and continued about 19 months, until his death. Even if his departures from normal expression and conduct during his long stay in the hospital, while his health [2, 3] Before the will was drawn, the testator prepared a memorandum containing the substance of the will he proposed to make. He took this memorandum to A. T. Lindgren, a fellow-member of his church and secretary of a building association, sought his advice, and requested him to draw the will. After discussing the matter with the testator, Lindgren found the task too complicated and suggested that he employ a certain lawyer to draw the will. The suggestion was followed, the will was drawn in Lindgren's absence, and after it had been executed the testator placed it in a vault in Lindgren's office for safe-keeping. The plaintiffs in error contend that Lindgren procured the execution of the will by undue influence. The charge cannot be sustained. The testator had the right to seek advice from a third person, even though he was not a lawyer. There was nothing in the relationship between the testator and Lindgren which made it a fiduciary one. Nor does the record disclose the exercise of undue influence over the testator by Lindgren or by any other person. [4] No attempt was made by the plaintiffs in error to show that the testator intended to make a will different from the one he did make, or that he regarded his relatives with that affection which might create an inference or presumption that he would necessarily consider them the objects of his bounty. He left neither widow nor descendant, and his will carried out his deliberate and expressed purpose to leave the major portion of his estate to the church he had long attended. He did not ignore all his relatives, for he devised a house and lot to some of them, bequeathed certain chattels to a niece, and the residue he gave to his brother. Heirs, as such, have no vested right to the testator's estate, and a testator of sound mind, and acting freely, may make any lawful disposition of his property he sees fit to make. Marshall v. Moon, 311 Ill. 605, 143 N. E. 399; McGrady v. McGrady, 298 Ill. 129, 131 N. E. 251. [5] The plaintiffs in error argue that in a will contest the statute requires the issues of testamentary capacity and undue influence to be submitted to a jury, and that the trial court erred in directing a verdict sustaining the will. When a motion is made to direct a verdict in a will contest the practice is the same as in actions at law, and the party resisting the motion is entitled to the benefit of all the evidence in its most favorable aspect to him, and of all presumptions that may reasonably be drawn therefrom. The question presented by a motion to direct a verdict in such a case is whether there is any evidence fairly tending to prove the cause of action (145 N.E.) or fact affirmed. Yess v. Yess, 255 Ill. 414, 99 N. E. 687; Lloyd v. Rush, 273 Ill. 489, 113 N. E. 122. If the evidence, with all the inferences that reasonably can be drawn from it, is not sufficient to support a verdict for the contestants, so that if such a verdict were returned it would have to be set aside, then the trial court may direct a verdict. [6] Complaint is made that certain lay witnesses were permitted to testify that, in their opinion, the testator was sane, without requiring them to detail sufficient facts and circumstances as the basis of their opinion. All of these witnesses had been acquainted with and had observed the testator, and they, with other witnesses, stated ample facts and circumstances from which the jury could form their own opinion of the testator's mental capacity. The evidence was competent. Austin v. Austin, 260 III, 299, 103 N. E. 268, Ann. Cas. 1914D, 336. [7] Finally, complaint is made that the trial court erred in excluding evidence tending to compare the conduct of the testator when he was alleged to be insane with a time when he was sane. There was no proof that the testator was insane when the will was executed; hence the evidence was properly ex cluded. The record discloses no evidence fairly tending to show that the testator was of unsound mind, or that the will was procured by the exercise of undue influence, and it is otherwise free from prejudicial error. The decree of the circuit court is therefore affirmed. Decree affirmed. (314 Ill. 326) SYKES CO. v. INDUSTRIAL COMMISSION et al. (No. 15859.) (Supreme Court of Illinois. Oct. 28, 1924. Rehearing Denied Dec. 4, 1924.) 1. Master and servant 385(12)-Compensation for complete loss of use of hand not sustained, unless normal use has been entirely taken away. While incapacity to use need not be tantamount to actual severance of the hand, yet to sustain judgment for complete loss thereof evidence must show that normal use of hand has been entirely taken away. 2. Master and servant 385(12)-Employé, losing fingers, held not entitled to compensation for "complete loss of use of hand." Employé, who sustained loss of fingers of left hand, but who did not lose any part of thumb, or sustain any injury to palm or back of hand, held not entitled to compensation for complete loss of use of left hand, within Workmen's Compensation Act, § 8, par. (e), cls. 17, 12. Farmer and Stone, JJ., dissenting. Error to Circuit Court, Cook County; Harry M. Fisher, Judge. Proceeding under the Workmen's Compensation Act by Albert Vollendorf, employé, for compensation for injuries, opposed by the Sykes Company, employer. From a finding of the circuit court, increasing compensation allowed employé by arbitrator and affirmed by Industrial Commission, employer brings error. Judgment reversed, and award affirmed. Gallagher, Kohlsaat, Rinaker & Wilkinson, of Chicago, for plaintiff in error. Hart E. Baker, of Chicago, for defendant in error. HEARD, J. This is a writ of error to the circuit court of Cook county to review a judg ment of that court in the matter of an award of the Industrial Commission of Illinois, brought to the circuit court by certiorari. An application was made for compensation for injuries sustained by defendant in error, Vollendorf, while in the employ of plaintiff in error, arising out of and in the course of such employment. Proper notice was given and demand made. It is admitted that first aid, hospital and medical services were furnished, and that the applicant received from the plaintiff in error $14 per week for 7 weeks, the period of temporary total incapacity. The arbitrator found that the applicant's annual earnings preceding the injury were $1,716, or a weekly wage of $33; that that the applicant was entitled to the further sum of $14 per week for a period of 100 weeks, as provided in paragraph (e) of section 8 of the Workmen's Compensation Act as amended (Smith-Hurd's Rev. St. 1923, c. 48, § 145), for the reason that the injuries sustained caused the loss of the first, second, third, and fourth fingers of the left hand; that $98 had been paid on account of the injury, and that the applicant was entitled to $84, the amount of compensation that had accrued from September 9, 1922, to October 17, 1922, the remainder of the award to be paid in weekly payments, commencing one week from the last-mentioned date. The Industrial Commission affirmed the arbitrator's findings. On the case being taken to the circuit court, that court made a finding that the applicant had sustained the permanent and awarded him 50 per cent. of his average complete loss of the use of his left hand, and weekly wages during 150 weeks. The question in dispute is the nature and extent of the disability. The arbitrator's statement in the record as to the condition he found upon examination of the applicant's hand is that the first, second, third, and fourth fingers were amputated, the first, second, and third being amputated midway between the hand and the proximal phalanx, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and the small finger at the proximal joint; | FARMER and STONE, JJ. (dissenting). that the thumb has no restriction of motion; If we are able to comprehend the facts in that there are no marks, lacerations, scars, this case it is in direct conflict with Mark or any other evidence of injury in the palm | Mfg. Co. v. Industrial Com., 286 Ill. 620, 122 of the hand, nor to the back thereof. The N. E. 84. The injury to the employee in this circuit court based its decision upon the case is even greater than the injury to the same condition, but held that there was a employee in that case. Here the employee complete loss of the use of the left hand, in- lost all four fingers of the hand very near to stead of applying the rate applicable to the the hand, while in that case only three finseparate fingers as mentioned in section 8. gers were amputated. The index finger was crushed and stiffened, but was not amputated, and the court sustained an award for total loss of the use of the hand. In our judgment an award should have been sustained in this case for loss of the use of the hand. The only provisions of the statute as to the loss of fingers, directly applicable here, are found in clause 7 of paragraph (e) of section 8, which provides that in no case shall the amount received for the loss of more than one finger exceed the amount provided for the loss of a hand; clause 12 of paragraph (e) of said section, which not only provides for the loss of a hand, but also for the permanent and complete loss of its use; and clauses 1, 2, 3, 4, 5, 6, and 7, which provide, separately, for the loss, or loss of use, of the whole or part of the thumb or fingers. (314 III. 127) RICHTER et al. v. SCHUETT et ux. (No. 15131.) (Supreme Court of Illinois. Oct. 28, 1924. Rehearing Denied Dec. 3, 1924.) 1. Chattel mortgages ~79 'Mortgagor's knowledge of amount of note secured and items represented thereby held shown. Evidence held sufficient to show that mak [1] The only question involved in this case is whether or not by the accident in question defendant in error sustained a complete loss of the use of his left hand. While the in-ers of note secured by chattel mortgage sought capacity to use need not be tantamount to an actual severance of the hand, yet to sustain a judgment for the complete loss of the use of the hand the evidence must show that the normal use of the hand has been entirely taken away. Mark Mfg. Co. v. Industrial Com., 286 Ill. 620, 122 N. E. 84; Ballou v. Industrial Com., 296 Ill, 434, 129 N. E. 755. [2] This case differs from Mark Mfg. Co. v. Industrial Com., supra, in which case the Industrial Commission found that there had been a complete loss of the use of the hand, and in reviewing the award this court found that there was evidence in the record from which the arbitrator and the commission might reasonably have arrived at the conclusion that there was a complete loss of the use of the hand. In the present case there is no dispute as to the extent of defendant in error's injuries in the evidentiary facts, which consist almost exclusively of a finding of the arbitrator based upon his personal physical examination of defendant in error's hand. There is no evidence in the record as to what extent the hand has been used since the accident, nor is there any expert or other evidence as to its incapacity for use. Defendant in error did not lose any part of the thumb, or sustain any injury to sustain any injury to the palm or back of the hand, and must necessarily retain a partial use of the hand. The evidence failing to show a complete loss of the use of defendant in error's hand, the judgment of the circuit court is reversed, and the award of the Industrial Commission is confirmed. Judgment reversed; award confirmed. to be foreclosed knew that it was given for $1,000, $500 for saloon fixtures, etc., and $500 for license, and not for only $500 for fixtures. 2. Sales 51-Vehdor and purchaser 43 (2)-Buyers of lot, saloon fixtures and license, by continuing business after discovery of fraud, cannot resist payment of purchasemoney notes. Buyers of lot, saloon fixtures, and license, having affirmed or acquiesced in fraud by continuing saloon business over seven months aftdefeat collection of purchase-money notes and er discovery of fraud, without objection, cannot mortgages. DUNCAN, C. J. On September 5, 1918, appellants, Charles Richter and Frances Richter, his wife, and Charles J. Wolf, trus For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) tee, filed their bill in the circuit court of Cook county to foreclose a trust deed on real estate known as 2731 West Lake street, in Chicago (herein referred to as the Lake street property), to secure a note of John Schuett and Bertha Schuett, his wife, appellees, for $1,000, and also to foreclose a chattel mortgage on certain personal property, etc., used for saloon purposes and located in the Lake street property, given to secure another note of the Schuetts for $1,000. The Schuetts on January 18, 1922, filed an amended answer and an amended cross-bill. Complainants filed their answer to the amended cross-bill, and issues were joined. By their cross-bill appellees prayed for the cancellation of the trust deed, chattel mortgage, and the notes, also of a deed from the Richters to appellees conveying the property mortgaged by the trust deed, and of a deed from the Schuetts to appellants conveying lots 12, 13, and 14, in block 1, in Marsh's subdivision of the southeast quarter of the northeast quarter of section 16, township 39 north, range 12 east, of the third principal meridian, situated in the village of Bellwood, Cook county, Ill., and herein referred to as the Bellwood property. On September 26, 1922, a decree was rendered in accordance with the prayer of the cross-bill and dismissing the original bill for want of equity. This is an appeal from that decree. The president of that bank, Charles J. Wolf, trustee under the trust deed, stated that he valued the property at that time, considering the improvements to be made, at not more than $1,500. He fixed the value of this property in March, 1917, at $1,750. The house, after it was improved, was insured for $1,500 by the Schuetts through Wolf, who testified that he had instructions not to insure property against fire loss for more than three-fourths of its value. The house burned down in 1918 and something over $1,400 was collected as insurance by the Richters, the then owners, before the foreclosure proceedings were begun. There is no further evidence in the record as to the value of the Bellwood property, except the value placed on it for the purposes of the exchange of the two properties by the Richters and the Schuetts. There was a mortgage on the property for $300, held by the Citizen's State Bank of Melrose Park, when it was traded to the Richters. The Lake street property is located in the middle of a block, just opposite Fairfield avenue where it runs into Lake street. Both the elevated and surface cars run in front of it. The lot is 25 feet by about 90 feet and has a two-story brick building on it which is the width of the lot and about 54 feet long. There is also a barn on the rear of the lot. The brick building has a cement basement under it which extends out under the sidewalk built over it, with iron and glass for light under the walk. The walk cost $700. The first story is a business room and the second story is a flat of seven rooms and a bathroom. There is a bake oven and a bakehouse in the basement for baking bread. The building has two plate glass show win In 1910 the Schuetts moved to Bellwood and purchased the Bellwood property, which contained about an acre and a half of land, for $800. They bought a small three-room house on an adjoining farm and moved it onto the Bellwood property. For this house, two horses, a cow, some hogs, and farm implements they paid $700. A few years later they improved the Bellwood property by add-dows in front and a front partition, with an ing to the house a second story and a summer kitchen at a cost of $1,100, according to the Schuetts. They also built a barn on the property at a cost of $300. This property is located about a mile from the principal part of the village of Bellwood, and there is no other residence near it. About 200 feet from the property is a business establishment which deals in secondhand brick and is known as "the dust factory." Dust from the factory flies over the Bellwood property and settles on clothes when washed and hung out to dry and on the grass. A creek runs near it, and in times of heavy rains the water stands on about a quarter of an acre of the land. Schuett and his relatives built the barn and the additions to the house on Sundays and at odd times. According to the Richters the house was set on railroad ties, the windows did not fit, and there were no locks on the doors. The house had a hole under it, called a basement, but was not cemented. At the time the Schuetts started to improve the Bellwood property, in 1912, they applied for a loan at the Citizen's State Bank of Melrose Park and were loaned $600. arch over the door opening into the saloon. The lot cost the Richters $1,500 in about 1890 and $200 more to clear up tax sales. They built the two-story brick building on the lot in 1891 at a cost of $4,200. The lot and building were incumbered by what is referred to as the Greenebaum & Sons building loan for $3,200 shortly after construction of the building. According to the testimony of the Richters the building was remodeled in 1913 by putting a steel ceiling in the saloon and installing electric lights in the building. A new hardwood floor was put on top of the old floor and new skylights were put in three rooms upstairs. The back porch was rebuilt, new waste pipes were put in the kitchen, a new bathtub, toilet, and washstand were put in, and also hardwood stairs. On March 19, 1917, when the Lake street property was traded by the Richters to the Schuetts, there was a $2,000 mortgage on the property, held by the Greenebaum Bank. The Richters claimed that this property had brought a rental of $50 per month previous to the last-named date. There is a very marked conflict in the evidence as to the state of the condition of this building and as to the market value of the Lake street property on March 19, 1917. The population in the neighborhood of the property was largely colored people, and some colored people lived next door to it. The evidence for the Schuetts is to the effect that the roof was in bad repair and leaked; that the plaster on the second floor was loose; that the floor of the first story was about worn out; that when it rained the basement became flooded; and that the general appearance of the property was aged and neglected. Two real estate dealers testified for the Schuetts that the value of the property was not to exceed $3,000 on the last date aforesaid, and that property in the neighborhood of the same general character had sold for less than $3,000. Two real estate dealers testifying for the Richters placed the value of the property at $5,000 or more. Charles H. Pfingsten, a real estate appraiser for the Greenebaum Sons Bank & Trust Company, which at the time of the transaction in question held a mortgage on the property for $2,000, testified that he inspected the property in July or August, 1917, with a view to ascertain its value for the purpose of renewing the loan to the Schuetts, and that he then valued it at $5,000, and that it was his opinion that that was the fair market value of the property in March, 1917. The Richters and the Schuetts entered into a contract on March 19, 1917, for the exchange of properties, whereby the Richters were to convey to the Schuetts the Lake street property in exchange for the Bellwood property. The Lake street property was deeded by the Richters subject to the $2,000 incumbrance. The Bellwood property was also conveyed to the Richters subject to the $300 mortgage on that property, but the Richters received, in addition to the Bellwood property, two cows, a lot of chickens, and other personal property, which the parties valued at $300, and in consideration of this personal property being transferred to them the Richters assumed the $300 incumbrance on the Bellwood property, and agreed to pay the same. At the time of the contract for the exchange of properties Mrs. Frieda Fendt and her husband occupied the Lake street property as tenants, having previously purchased the saloon fixtures and the personal property used in connection with the saloon from the Richters. There was at that time an unexpired saloon license, under which the Fendts were operating the saloon, that cost $2,400, $1,300 of which had been advanced to the Fendts by the Richters, as the Fendts were unable to advance all the money. Fendt had deserted Mrs. Fendt and she was running the saloon, and the Fendts were still owing the Richters a part or all of the $1,300 which they had advanced the Fendts. The understanding between the Richters and the Schuetts was that this sa loon license, which expired on May 1, 1917, was to be transferred to the Schuetts, or at least they were to be allowed to operate under that license until it expired, and it was so arranged. On the day of the exchange of properties Richter bought the saloon fixtures, and the personal property that went with them, of Mrs. Fendt and paid her therefor $500, less a small amount of rent and interest that the Fendts owed the Richters, and paid her by check a sum over $400. The Schuetts in their trade with Richter also bought the saloon fixtures, and the personal property that went with them, from the Richters for the sum of $500, and this $500 they were to pay is a part of the consideration for which the note, and the chattel mortgage securing it, were executed. The Schuetts received from Mrs. Fendt a bill of sale for the saloon fixtures, etc., on the day they exchanged property with the Richters. On the same day the Richters and the Schuetts went to the Citizen's State Bank of Melrose Park and had proper deeds drawn for the exchange of the properties, and the trust deed, chattel mortgage, and notes aforesaid, by Charles J. Wolf, the president of the bank, and executed them all before him as a notary public, except the chattel mortgage, which was acknowledged before a justice of the peace in Melrose Park. Afterwards Mrs. Fendt turned the saloon and the Lake street property over to the Schuetts, and the Richters took possession of the Bellwood property. By their answer and cross-bill the Schuetts admit the execution of the trust deed, the chattel mortgage, and the notes, but they attack their validity on the ground of fraud, and in their cross-bill pray for the rescission of the contract and the cancellation of the documents connected therewith. They also make the claim that there was a confidential relation existing between Richter and them of which he took advantage in the negotiation of the transactions, and that they trusted him implicitly and relied upon him completely, which facts he well knew, took advantage of the same, and by fraudulent representations swindled them out of their property. One of their contentions is that he told them the Lake street property was reasonably worth the sum of $7,000, but that in the deal he would value it at the sum of $5,000; that the saloon fixtures, etc., were reasonably worth $1,000, but that he would charge them only $500 for the same, and that in the exchange he would take their property at $3,000; that, as a matter of fact, in the deal the Lake street property was put in at the value of $5,500, the saloon fixtures at $1,000, the Bellwood property at $2,500; and that the documents were executed accordingly without their knowledge. Their other contention is that the Richters made fraudulent representations as to the value of the Lake street property and as to |