sion affirmed that decision. On certiorari, ed, and, such being the case, he was not dethe decision of the Industrial Commission pendent upon his father for support, and the was set aside by the circuit court, which father was under no legal obligation to supcourt found deceased left surviving him port him. In the absence of emancipation Louis Bertucci, a minor son, whom he was the father is under legal obligation to supunder legal obligation to support, and award-port his minor children. Panther Creek ed compensation in the amount of $3,750, | Mines v. Industrial Com., 296 Ill. 565, 130 N. payable in weekly installments. This court E. 321. In that case, and in Iroquois Iron granted this writ of error to review the Co. v Industrial Com., 294 Ill. 106, 128 N. judgment of the circuit court. E. 289, 12 A. L. R. 924, the court also considNo controversy exists as to the death of ered the question of emancipation. In the deceased arising out of and in the course of last-mentioned case the court said, in subhis employment with plaintiff in error, nor stance. that, when a child who'is physically as to the amount of compensation payable, and mentally able to take care of himself if claimant is entitled 'to any compensation. voluntarily abandons the parental roof and The only question presented for our consid-leaves its protection and influence and goes eration is whether, under paragraph (a) of section 7 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1923, c. 48, § 144), deceased "was under legal obligation to support" his minor son, Louis Bertucci. out to fight the battle of life on his own account, the parent is no longer under legal obligation to support him; also, when a minor enlists in the military service of this country, he ceases to be a part of his father's family, and puts himself under the control of the government, and is consequently emancipated so long as this service continues. When a minor is fully emancipated, the relation of parent and child is on The facts developed upon the hearing were that Louis Bertucci quit school when he was about 16 years old, while living at his father's house, and worked at different intervals in one or more of the coal mines near Taylorville, Ill. His father furnished him a parity with the relation existing when board, clothes, and necessaries of life, and such child becomes of age. In this case the Louis turned over all the wages he earned to facts were not disputed, and the proof his father. Louis was trip rider at mine 58 showed the minor son entered the military for a while in 1919, at $5 per day. On May service for a 3-year period when he was 16 5, 1919, Louis, with his father's consent, en-years and 6 months of age. Had he relisted for 3 years in the army, and attend-mained in the army for the full period of ened the aviation school at Rantoul to get an listment he could not have returned to his education. While there he drew $30 a father's house till May, 1922, about 2% month, which he collected and used without months after his father's death. He actualobjection from his father, and he also ob-ly remained in the service almost 2 years tained free board, room, and clothing. His and 3 months, making the boy 18 years and father sent him $5 or $10 every 2 weeks or 9 months of age when discharged from the SO. A reduction was authorized in the army, army. At this age he returned to the old and upon application made by Louis he was home place, where his father was living with discharged therefrom on July 27, 1921, after the minor son's sister and her husband. The about 2 years and 2 months' service. He son lived there with his father for seven went back to where his father was, and they months prior to his father's death, and durboth lived in the old home place with one of ing that period of time the proof shows the bis sisters and her husband. Louis tried to father paid the minor son's board, bought get a job as trip rider at one of the mines his clothing, and supported him. During the upon his return home from the army, and existence of the military service of the misaid he was able to do that kind of work. nor son parental authority was unquestionLater, about September, he broke a small ably suspended, but not entirely annihilated. bone in his foot while at a skating rink, and Iroquois Iron Co. v. Industrial Com., supra, was laid up for about 6 weeks. During the and notes to that case in 12 A. L. R 928. In time he was at home after being in the army other words, the emancipation of the minor he did no work and earned no money. His son was effective during the time he was acfather supported him, bought his clothing, tually in the service, but, when he returned and paid his board during the entire period. home during his minority, after being disThe son was at home seven months before charged from the army, he again became his father died. This proof was presented subject to parental control, and was not chiefly by Louis Bertucci and two of his sis- emancipated. The only proof in the record ters. However, no part of their testimony shows the father was, in fact, supporting was contradicted. him when his death occurred, and under the state of the record we think the conclusion of the circuit court was correct. [1, 2] It is the contention of plaintiff in error that the Industrial Commission had a right to properly infer that Louis Bertucci The judgment of the circuit court is afwas able, at the time of his father's death, firmed. to support himself, or had been emancipat- Judgment affirmed. (314 Ill. 407) LEEMON v. LEIGHTON. (145 N.E.) (No. 16268.) (Supreme Court of Illinois. Dec. 16, 1924.) 1. Wills 290-Will retained by testator not found after his death presumed to have been destroyed with intent to revoke will. Where will retained by testator cannot be found after his death, the presumption of law is that he destroyed it with intent to revoke the will; but such presumption can be rebutted by proof to the contrary. istence, unrevoked, at the time of the death of Mrs. Howard, or, if not in existence at that time, had been destroyed without her knowledge or consent. An alleged copy of the will is attached to the petition and made a part thereof, and the petition prays that the will be admitted to probate as a last will. The probate court of Cook county denied probate of the will, and Leemon appealed from the judgment to the circuit court. The cause was heard in that court and a judgment and order entered denying admission of the will to probate. From the judgment of the cir 2 Wills 297 (1)—Declarations of testator at variance with will not competent to invali-cuit court Leemon has prosecuted an appeal date or modify it. Declarations of a testator after execution of will at variance with its provisions are not competent to invalidate or modify the will in a suit to contest its validity. 3. Wills 297(4)-Declarations of testatrix held competent to prove destruction of will. Declarations of testatrix that she had destroyed will of which she had retained possession held competent to prove destruction. 4. Wills 306-Evidence held to prove destruction of will by testatrix with intent to revoke it. Evidence held to prove destruction of will by testatrix with intent to revoke it. 5. Wills 306-Evidence held insufficient to prove intent to make revocation dependent on efficiency of subsequent will. to this court. The evidence shows Mrs. Howard was a widow and was about 60 years old at the time of her death, March 12, 1922. She lived Her nearest relative and only heir at law in a building in Chicago which she owned. husband and child lived a few blocks from was a sister, Tillie Leighton, who with her Mrs. Howard. Previous to her death Mrs. Howard had been seriously ill for some months. Probably realizing she had not much longer to live, she had her physician, Dr. Hiskey, on December 2, 1921, begin the draft of a will for her. The paper the doctor wrote was signed by Mrs. Howard, the doctor, and Esther Larson. The instrument was not a legal will and was never completed. Subsequently Leemon was sent for and Evidence held insufficient to prove that tes-prepared a will, which was duly executed and tatrix in revoking will by destroying it intended witnessed and was dated December 2, 1921. to make revocation depend on efficiency of sub- On or about December 10 she executed a codsequent will. icil revoking paragraph 4 of the will, which gave Sarah Prevost $2,000, to be held in trust by the executor and paid out during the next five years after the death of testatrix for the education of Sarah Prevost. In February, 1922, Frank A. Leighton, husband of Mrs. Howard's sister, Tillie, prepared another will for her making a different disposition of her property, or some of it, from that made by the will prepared by the appellant, which is called the Leemon will. That instrument was dated February 13, was signed by Mrs. Howard and only one witness, Mabel Clark, and when the paper was found after Mrs. Howard's death her signature and that of the witness had been cut off. It is undisputed that Mrs. Howard made only one valid will, and that was the Leemon will. Appeal from Circuit Court, Cook County; John A. Swanson, Judge. Petition by Harry C. Leemon for probate of will of Margaret Howard, opposed by Tillie Leighton. From judgment denying admission of will to probate on appeal from probate court, the petitioner appeals. Affirmed. Harry C. Leemon, of Chicago (Roy C. Merrick, of Chicago, of counsel), for appellant. Ashcraft & Ashcraft, of Chicago (E. M. Ashcraft and Norman L. Olson, both of Chicago, of counsel), for appellee. In the partial draft of a will by Dr. Hisk FARMER, J. Harry C. Leemon filed a petition in the probate court of Cook county for the probate of an instrument alleged to be a copy of the last will of Margaret How-ey, one or two of the provisions are similar ard, who died March 12, 1922. Deceased was a widow, and the petition alleged she left real estate of the value of $35,000 and $2,000 personal property A sister, Mrs. Tillie Leighton, survived her as her only heir at law. The petition alleged Mrs. Howard duly made and declared her last will and testament December 2, 1921, and December 10 duly made and declared a codicil to said will; that the will and codicil were in ex to those of the Leemon will. The Leemon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes death was to go to the Hospital for Incurables in Chicago. But that instrument never was a valid will. [1] Appellant's material contention is that the Leemon will was never destroyed by the testatrix, or if she did destroy it she did not do so with the intention to revoke it. Appellant argues that the evidence warrants the conclusion that Frank A. Leighton, whose wife was Mrs. Howard's only heir, destroyed the will; and if that position is not sustained, it is argued the destruction of the will was connected with the making of another will, warranting the inference that she meant the revocation to depend upon the sufficiency of the new will, and intended if the new will failed the original will should remain in force. The Leemon will, after its execution, was kept in possession of the testatrix, and the presumption of law is, when possession of the will is retained by the testator and after his death it cannot be found, that he destroyed it with intent to revoke the will. That presumption is subject to be rebutted by proof showing the contrary. That rule of law is not disputed, and upon that branch of the case the disputed question is whether the testimony, to support appellant's contention that Leighton secured the will immediately after Mrs. Howard's death and destroyed it, is sufficient to overcome the presumption. We shall not attempt to set out the evidence. That for appellant tended to show Leighton had an opportunity to procure and destroy the will immediately after Mrs. Howard's death; that Mrs. Howard a number of times shortly before her death spoke of the will appellant had written as if it was still in existence; and, further, that it was to the interest of Leighton's wife that her sister die intestate. On the other hand, Leighton, who was called as a witness by appellant, testified he did not destroy the will, that he never saw it after Mrs. How ard's death, that he saw it when he at Mrs. Howard's request attempted to prepare a will for her, but left it in her custody and has never seen it since. was incompetent. Upon that proposition this court said in Holler v. Holler, 298 Ill. 418, 131 N. E. 663: "The declarations of a testator after the execution of his will are admissible, in the event of its loss, to show that it had not been canceled. (In the matter of Page, 118 Ill 576.) Under the same circumstances they are admissible to show that the loss or destruction was in accordance with the testator's purpose." The declarations of a testator, after execution of his will, at variance with its provisions, are not competent to invalidate or modify the will in a suit to contest its validity. Waters v. Waters, 222 Ill. 26, 78 N. E. 1, 113 Am. St. Rep. 359; Martin v. Beatty, 254 Ill. 615, 98 N. E. 996. The reason for the rule under those circumstances does not apply to proof of statements of the testator, in whose possession the will was retained, and where the will cannot be found after his death, that he had destroyed it. Such proof supports the presumption of the law that the will was destroyed by the testator. [4] There is no proof in this record of the existence of the will after Mrs. Howard's death. There was testimony of a possible opportunity Leighton had to get the will after her death, but the testimony was insufficient to sustain the charge, standing alone, and much less so in view of the other testimony we have above referred to. It is true Leighton's wife was benefited by her sister dying intestate. Mrs. Howard made one will and made some attempt to make two others. She was 60 years old and realized she could not recover her health. No two of the attempted wills were alike, and the proof is abundant that she expressed great dissatisfaction with the Leemon will, and two witnesses testified she said, in connection with her expression of dissatisfaction with that will, which was the only valid will she executed, that she had destroyed it. That the will was destroyed we must accept as a fact, for it has never been found or produced, and under the authorities of Holler v. Holler, supra, St. Mary's Home v. Dodge, 257 Ill. 518, 101 N. E. 46, Griffith v. Higinbotom, 262 Ill. 126, 104 N. E. 233, Ann. Cas. 1915B, 250, and cases cited in the opinions, we are bound to Flora Benson testified she was a frequent visitor to Mrs. Howard from December, 1921, until her death; that Mrs. Howard told wit-hold, under the state of this record, the will ness about March 1 that appellant had drawn a will for her but it was very unsatisfactory and that she had put it in the stove and destroyed it. Pauline Morse testified she worked at intervals for Mrs. Howard two years before her death; that late in February, 1922, Mrs. Howard talked to her on two occasions about having made a will called the Leemon will, and said she had destroyed it and intended making another will. [2, 3] Appellant objected to proof of statements made by testatrix that she had destroyed her will and insists that testimony was destroyed by Mrs. Howard in her lifetime for the purpose of revoking it. [5] Appellant contends that if it be conceded Mrs. Howard destroyed the so-called Leemon will, the inference is warranted that she meant the revocation of that will to depend upon the efficiency of the so-called Leighton will to make a different disposition of her property, and as the execution of the Leighton will was never completed the revocation of the Leemon will failed. Counsel cite many authorities, mostly English cases, in support of the rule of dependent relative revocation, and admit that rule has never (145 N.E.) FARMER, J. Plaintiff in error was convicted in the county court of Franklin county, fined, and sentenced to imprisonment at the state farm. The information under which he was convicted contained five counts. The first three charged him with unlawfully selling intoxicating liquor; the fourth charged him with the unlawful possession of intoxicating liquor with intent to sell the same for beverage purposes, and the fifth count charged him with the unlawful keeping and main been applied in this state in case of an entire will, but cite Wolf v Bollinger, 62 Ill. 368, Hesterberg v. Clark, 166 Ill. 241, 46 N. E. 734, 57 Am. St. Rep. 135, and Schmidt v. Bauermeister, 279 Ill. 504, 117 N. E. 49, as applying the rule in cases of an attempted revocation of a part of a will, such as erasing the name of one devisee and substituting the name of another. If the rule contended for were recognized in this state, it could not be applied under the proof in this case. There is no evidence to support an inference that the revocation of the will depend-taining of a common nuisance. He was tried ed upon the efficiency of a new one. The testatrix was dissatisfied with the disposition made of her estate by the Leemon will and destroyed it. She said she would make another will and requested Leemon to write one for her. She also requested her brotherin-law, Leighton, to prepare one for her, and he made an attempt to do so; but there was no indication that she meant the revocation to be ineffective if the new will did not make a valid disposition of her estate. by a jury, found guilty under each count of the information, and after the court overruled a motion for a new trial and in arrest he was sentenced to pay a fine of $100 under each of the four counts, and was sentenced to be committed under the fifth count to the Illinois state farm for a period of one year. It was further ordered and adjudged by the court that, at the expiration of the sentence to the state farm, if plaintiff in error had not paid the fine assessed against him and the costs, he should remain committed to the state farm until he had worked out the fine and costs at the rate of $1.50 per day This writ of error was sued out of this court on the claim that the constitutionality of a statute or statutes is in volved. The constitutional questions sought to be raised are that sections 3 and 33 of the Prohibition Act (Laws 1921, pp. 683, 697) provide for punishment for unlawfully selling intoxicating liquor and also another penalty for the unlawful possession of the same liquor, and it is argued this is twice putting a defendant in jeopardy for the same offense and is unconstitutional; also, it is asserted the act establishing the state farm is unconstitutional, in that it contains subjects not embraced in its title. [1, 2] It does not appear from the abstract that any constitutional question was raised in the trial court. We have repeatedly held that, to give this court jurisdiction to review a judgment of conviction for a misdemeanor, the validity of the statute must have been in some way presented to the trial court for decision and an exception preserved to the court's ruling. People v. Pierce, 296 Ill. 327, 129 N. E. 764; People v. Rawson, 278 Ill. 654, 116 N. E. 123; Cummings v. Error to Franklin County Court; S. M. People, 211 III. 392, 71 N. E. 1031; Earll v. Ward, Judge. Cattani Ugo was convicted of violations of Prohibition Act, and he brings error Cause transferred to Appellate Court. People, 73 Ill. 329. The record, as abstract- The R. E. Smith, of Benton, for plaintiff in asserted, so far as shown by the abstract, érror. Edward J. Brundage, Atty. Gen., Roy C. Martin, State's Atty., of Benton, and George C. Dixon, of Dixon, for the People. is in the assignment of errors, which are entitled, "In the Appellate Court of the State of Illinois, Fourth District, to the October term, A. D. 1924." This is not disputed by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes plaintiff in error, but in his reply brief he Jacob Schug and A. S. Langille, both of asserts the motion to quash and in arrest | Chicago (John L. Ward, of Chicago, of counsel), for plaintiff in error. sufficiently raised the constitutional question. In neither of those motions, both of which were in writing, was the court apprised of any claim of plaintiff in error that any constitutional question was involved or that the validity of any statute was challenged. We are of opinion this writ of error should have been sued out of the Appellate Court for the Fourth District, and the cause will be transferred to that court. Cause transferred. 1. Criminal law ~1119(3)—Alleged prejudicial remarks of court held not sufficiently shown in abstract. Supreme Court will not explore record to find alleged errors, and alleged prejudicial remarks of court will not be reviewed, where abstract does not show questions and remarks of court complained of. 2. Criminal law 1035 (3)-Comment of court cannot be complained of on appeal, in absence of objection. Conduct of court in asking: "Is counsel going to let everything go in? I am here to rule on objections, if they are made"-cannot be complained of on appeal, where no objection is made at time. 3. Criminal law 656(1)—Extensive introduction of incompetent evidence held to justify court's suggestion for objection. Long recital of incompetent evidence without objection by opposing counsel held to justify court in asking, "Is counsel going to let everything go in?" 4. Criminal law 11702 (2)-Question calling for opinion of expert witness held not prejudicial, where answer was not expression of opinion. Question calling for opinion of expert witness on question of penetration held not prejudicial, where answer was not expression of witness' opinion. 5. Criminal law 470-Expert witness may not express opinion on ultimate fact in issue. Expert witness may not express opinion on ultimate fact in issue. Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Virgil L. Blanding, of Springfield (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People. STONE, J. Plaintiff in error was convicted of the crime of forcible rape on Theresa Snoy. He brings the cause here for review. The errors complained of here are prejudicial remarks by the court, admission of incompetent evidence, and that the verdict of guilty is contrary to the evidence. [1] One of the remarks of the court claimed to be prejudicial, counsel in their briefs say, was made during the examination of the complaining witness; that counsel was endeavoring to have the witness fix a certain time, and, the witness having answered that the time inquired about was on Sunday, the court asked, "After this man-after this happened; is that it?" that again the court said to the witness, "Tuesday you fell down and had this trouble with this man?" and the answer was, "Yes;" that again the court asked, "When did this thing happen-that you had trouble with the man?" These remarks are claimed to be prejudicial. The abstract does not show the questions and remarks of the court complained of. This court has repeatedly held that it will not explore the record to find errors to sustain assignments of error. People v. Marshall, 309 III. 122, 140 N. E. 842; People v. Armour, 307 Ill. 234, 138 N. E. 661. [2, 3] Counsel for plaintiff in error also contend that the court committed prejudicial error by its remarks during the examination of Mathilde Palmquist, a witness for the defendant. During her direct examination the court stated to the state's attorney: "Is counsel going to let everything go in? I am here to rule on objections, if they are made." To this the state's attorney replied: "All right, your honor; I thought that I would let them have it all." The abstract shows no objection was made to this statement, and therefore such question cannot be raised now. Moreover, the court was justified in asking such a question, for the reason that the witness was indulging in a long recital of incompetent evidence, and the state's attorney should, in the interest of orderly trial, have interposed an objection, though he doubtless thought the speech of 6. Rape 51(1)-Evidence held to sustain the witness was not tending to injure the conviction. Evidence held to sustain conviction. state's cause. Much space is devoted in the briefs to the necessity for the exercise of the greatest care Error to Criminal Court, Cook County; on the part of the trial court in its remarks George Fred Rush, Judge. in the presence of the jury, lest it give an impression that the court favors one side or the other. Numerous cases are there cited. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |