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(148 N.E.) the bond of the individual executor was Appellee replies that the question has not waived, and the executors were empowered been properly preserved for review; that, to to sell, incumber or otherwise dispose of the enable this court to pass upon the question, estate.

a bill of exceptions preserving it should have The instrument was admitted to record as been filed at the term at which the ruling. the last will and testament of Sarah A. upon the motion for a continuance was made; Clarke, deceased, by the probate court of and that the preservation of the question in Cook county on April 18, 1922. Thereafter a general bill of exceptions made at a subGeorge A. Kimber, the son, filed his bill of sequent term, after the conclusion of the complaint in the superior court of Cook trial, is of no avail. county to set aside the alleged will, upon the [1-5] The procedure by which a case reachgrounds of undue influence and the want of es its place on the trial calendar is not intestamentary capacity. The cause was sub- cluded in the issues presented by the pleadmitted to a jury, which returned a verdict ings, and hence is not a part of the proceedthat the instrument was not the will of sings-in the course of the trial. This court Sarah A, Clarke. Answers to special inter- cannot take judicial notice of the rules of rogatories were also asked, and the jury practice of the superior court. Anderson v. found that Sarah A. Clarke was not of sound McCormick, 129 Ill. 308, 21 N. E. 803; Sixby mind and memory at the time she executed v. Chicago City Rallway Co., 260 I11. 478, 103 the instrument, and that its execution was N. E. 249, Ann. Cas. 19140, 539. All written procured by undue influence. A decree was motions made in a chancery suit are parts entered in accordance with the verdict. of the record, without being preserved or From that decree the Home Bank & Trust incorporated in the certificate of evidence Company and J. Henry Krause, as executors (Young V. Jameson, 307 Ill, 71, 138 N. E. and trustees, prosecute this appeal.

228); but, where the statute requires a quesThe first contention of appellants is that tion of fact to be submitted to a jury, the the clerk, without an order of the trial court, practice in an action at law applies, and the erroneously placed the cause on the chancery trial of an issue so submitted on the contrial calendar, and that the court erred in test of a will is governed by the same rules denying appellants' motion for a continuance. as the trial of an issue at law before a jury On February 7, 1924, counsel for appellants (Mayville v. French, 246 Ill. 434, 92 N. E. made a motion to continue the cause, on the 919; Johnson v. Farrell, 215 Ill. 542, 74 N. ground that it had been improperly placed E. 760; Tucker v. Cole, 169 Ill. 150, 48 N. E. on the trial calendar. The motion was over- 440). At law, motions made in a cause, to ruled, an exception was taken, and the trial become a part of the record, must be incorbegan on the same day. Rule 5 of the su- porated in a bill of exceptions signed by the perior court of Cook county provides that: judge. Ferris v. McClure, 40 Ill. 99; Young "When any chancery case is at issue, upon

V. Jameson, supra. A motion for a continnotice and motion of either party, the case may

uance in a suit at law must be brought up be ordered placed on the trial calendar of the by a bill of exceptions, or it will not be re chancellor to whom said case has been as- viewed; and the same rule applies to the signed, and such cases be called for trial in affidavits and papers upon which the motion the order in which they are placed on said cal- is based. 3 Ency. of Pl. & Pr. p. 394, note 2, endar, unless otherwise ordered.”

and p. 396. See, also, Bartling v. Thielman, From affidavits made in support of the 183 Ill. 88, 55 N. E. 677. motion for a continuance it appears that on [6] While the trial in the instant case was September 14, 1923, one of appellants coun- had at the February term, it was at the sel was notified by counsel for appellee that March term that the decree was entered, on September 17 he would move, before Hon. the appeal allowed, and the time for filing Denis E. Sullivan, judge of the superior the bill of exceptions fixed. On May 19, court, that the cause be placed on the trial 1924, at the May term, the bill of exceptions calendar; that the attorney so notified failed was signed. No time was asked or allowed to appear at the time fixed, but afterwards at the February term for filing a bill of exascertained that the only order the court had ceptions to preserve for review the ruling on entered on that day was one appointing a the motion to continue. An exception to guardian ad litem for certain defendants; that ruling should have been incorporated in that thereafter, pursuant to the request of a bill of exceptions at the term the ruling some person representing appellee, the clerk was made, or an extension of time for that placed the cause on the chancery trial cal- purpose should have been obtained. Whethendar without notice to opposing counsel; er the ruling could be appealed from is imand that the first notice appellants' counsel material. The bill of exceptions should have had of what had been done was a short time been taken upon the question in apt time to before the cause was reached on the call

, preserve it for review. People v. May, 276 when it was too late to procure the attend- 111. 332, 114 N. E. 685; Finch & Co. v. Zenith ance or depositions of material witnesses Furnace Co., 245 Ill. 586, 92 N. E. 521; Vilthen in California,

lage of Franklin Park v. Franklin, 228 11.

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591, 81 N. E. 1132. On this record we cannot, corroborated the first with reference to the review the action of the trial court in over- deformed condition of the pelvis, and added ruling appellants' motion for continuance. that the testatrix had a rigidity and an

[7] Seventeen witnesses testified in behalf ankylosis of the spine, that her bones were of the proponents of the instrument. It was brittle for lack of nutrition, and that she drawn by the secretary of the appellant was helpless at the time he saw her. Still bank, from directions which the testatrix another physician, who had treated the tesgave him after she had read the provisions tatrix, found that she had anæmia, a high of a prior will. Upon completion of the in- degree of arteriosclerosis, some congestion strument, she reviewed and approved it. in the upper part of both lungs, and a generBoth of the attesting witnesses were bankers. al senile condition. Her vital powers had They had assisted her in business transac- largely waned, and her condition, physically tions, and advised her with reference to in- and mentally, rapidly became worse to the vestments. One of them testified that she time his treatments ceased, and it was apknew when her notes would become due and parent from her speech and actions that her payable, and that she gave instructions con- brain was affected. cerning reinvestments. She came to the A fifth physician testified that he was unbank on crutches, accompanied by some per- able to complete a history sheet from the

The secretary and the attesting wit- information which she gave him; that he nesses believed that the testatrix was of had to repeat his questions to her; that there sound mind at the time she executed the in- were long delays in answers to simple ques. strument. Several witnesses had met her at tions; and that from his observations he bedinner on Thanksgiving and Christmas Days lieved she was suffering from senile demenin the year 1921. Some of these witnesses tia. Another physician testified that, from were present at the Thanksgiving gathering, her deformed and emaciated condition, he others on Christmas Day, and still others on concluded that she had suffered from osteoboth occasions. They testified that the tes- malacia, from which pyemia results, and tatrix took part in the conversation, singing, that pyemia, in his opinion, caused the par. and other entertainment, and that she re-alytic stroke which she had suffered in 1919. cited 10 or 12 verses of a certain poem, spoke He testified that he called to see the testatrix of a trip she had made to Europe in the on the day the will was drawn, and that she year 1920, and related other incidents of her then seemed to be confused and fatigued ; life. These witnesses expressed the opinion, that there were occasions when he visited based upon their observations of the testa- her that she did not answer questions; and trix, that she was of sound mind. A sister that it appeared that she had used narcotics. member of the Eastern Star, who had seen He was' of the opinion that she was of unher at different times, testified, that while sound mind. A seventh physician found a she was melancholy about her health, so far degenerated condition of the tissues, diabeas other matters were concerned she appear-tes, nephritis, an enlarged heart, valvular ed to be rational. Of two other acquaint- lesion, a large liver, and a large spleen. ances, one heard the testatrix recite the When he first saw the testatrix she weighed verses of the same poem, and the other re- about 180 pounds, but later her body, and garded her as a brilliant woman.

especially her bones, rapidly dehydrated, the On the part of the contestant 21 witnesses | latter to the extent that the blood supply testified. There was much evidence tending had been taken from them, and there was to show that the physical condition of the nothing left but shells. There was a large testatrix had degenerated and her mentality soft area on the right side of her skull, which become impaired. A Roentgenologist tes could be pushed in with the thumb or finger, tified that the X-ray pictures he had taken and toward the close of his treatments she of the testatrix, which were offered in evi- had a very pronounced paresis. She had dence, showed a general senile atrophy of suffered a stroke of apoplexy, was hard of the bones of the pelvis, the upper third of hearing, and almost blind. It was his opinboth femurs, and of all the bones in the ion she was mentally unsound. An expert skull, with a chronic inflammation of the in mental diseases was asked a hypothetical occipital bone, and partial destruction of its question purporting to embody the essential posterior portion, and that there was an ex- features of the testimony adduced by appel. tensive infection of certain of the bones and lee, and he gave it as his opinion that the a pathological fracture. Another physician person described in the question was of untestified that at the time of the testatrix's sound mind. death he found that she had a pus infection Among the facts and incidents related by of the right middle ear cavity, with subse different witnesses, constituting the bases quent pyemia. He enumerated a number of upon which they concluded that the testatrix the conditions of infection that existed, and was of unsound mind are the following: At gave it as his opinion that the cause of her times she failed to answer questions; her death was a purulent infection of the blood conversations were disconnected; she would stream, and that the conditions he found change from one subject to another abruptly, night affect the brain. A third physician and often could not carry on a coherent con

(148 N.E.) versation; she would drum with her hands, the physical infirmities of old age. Among and sing in the midst of a conversation with the witnesses who testified concerning them, another person; she mumbled in speaking, many were wholly disinterested in the rewas evasive in her answers, talked to herself, sult of the suit. The physicians, also, to a and made unresponsive and illogical replies large extent, corroborated each other, and to questions; she did not readily recognize their testimony cannot be ignored. The her friends and acquaintances upon meeting question whether the testatrix was of sound them; she was melancholy; she pretended to mind and memory was peculiarly one for the see, or thought she saw, animate bodies and jury, and in view of all the evidence we do inanimate things which had no existence, not feel justified in disturbing their verdict. and inanimate objects appeared to her to be [8] It is further contended by appellants moving or changing from one thing to an- that a certain letter, statement, and acother; she repeatedly exhibited hallucina- knowledgment, offered by them and excludtions and delusions in sight and hearing, and ed, should have been admitted in evidence. on one occasion chased an imaginary dog on the day after the testatrix died a letter from her porch; she believed in spirits, and and statement written by her, and an acthought the spirits of her former husbands knowledgment by her son, were found in her visited her; she objected to the operation vault at the bank. The letter is dated June of the hot-water system in her house, because 26, 1917, and is addressed to "My Dear Althe flow of the water in the pipes caused her fred." It opens with the assertion that it to feel that spirits were there; she thought is not written with any ill feeling, but comthe spirit of one of her deceased husbands plains of the treatment accorded her, and was in the bedroom in which he died, and charges that it caused her illness. Referfor that reason requested a prospective pur- ence is made to the statement, which was chaser of the house not to open the door to inclosed with the letter, and which purthat room; she thought the house was haunt- | ports to set forth items of money given by ed; she talked of going to California to learn the testatrix to her son, the last of which to dance, stated that she was a good dancer was on April 8, 1916. The sum of these items and singer, and on her voyage to Europe is $5,096.50. The son's acknowledgment is attempted to dance on the deck of the ship; that on April 8, 1916, the mother paid for on that trip she took no change of underwear bim a second mortgage of $1,300 and interand had no nightdress with her; she ap- est on a certain garage. Each of these papeared on the street in an unsightly condi- pers was written long prior to the execution tion and did eccentric things; at luncheon of the contested instrument, and for that she removed food from her plate and placed reason the trial court did not err in excludit on the tablecloth, and often changed her ing them. Jones on Evidence (3d Ed.) & 136. knife and fork from one hand to the other, 19, 10] The trial court admitted in eviand at one time, when she had ample food dence a certain hospital record, and it is before her, told the attending physician that insisted by appellants that it was incompeshe did not receive enough to eat.

tent, because some of the notations upon it A number of the foregoing facts and in- were made by internes and nurses, and not cidents were supported by the testimony of by the physician who testified concerning different witnesses. They included, in ad- the record at the time it was offered. Such dition to friends and acquaintances, the phy- a record is admissible, upon the same basis sicians who attended the testatrix, the nurse as books of account, and before it can be at the hospitál, a prospective purchaser of a admitted in evidence all persons who make house the testatrix owned, the person who entries in it are required to testify to their accompanied her to Europe, and a business correctness. Wright v. Upson, 303 Ill. 120, man who called to see her son. Many other | 135 N. E. 209. We have examined the hoseccentricities were related by other witness- pital record as it appears in the transcript es, but it is not necessary to enumerate them. of the record of this cause, and find that it

Appellants insist that the verdict and de- contains memoranda relating to the physical cree are contrary to the evidence. It is true condition, the findings from tests made, and that some of the acts of the testatrix, re a statement of the medical treatment given lied upon to show that she lacked testamen- the patient. Some of the data set forth in tary capacity at the time the instrument in the hospital record were included in the question was signed by her, may be the re- testimony of the physicians, and the rest sult, merely, as suggested by appellants, of related to matters which could not be prejdefective vision, impaired hearing, and ad- udicial. Appellants have not shown wherein vanced age. Isolated acts and parts of con- they were prejudiced by the admission of versations often appear abnormal, but when this record, and their contention with reconsidered in connection with the whole spect to it cannot be sustained. course of conduct, or the entire conversa [11] The appellants further contend that tion, prove to be normal. The acts and ut- the answer of Dr. Krohn, the expert in menterances of the testatrix, shown by this rec- tal diseases, to the hypothetical question ord, however, can scarcely be attributed to propounded to hiin, should have been strick

en, because the question was based, in part, , the provisions of the two are in substanupon incompetent, testimony. Two legatees, tial conformity, and the former will was Fannie Bashan, to whom $500 was bequeath- executed when the testatrix is conceded to ed, and Ruth Sbaw, a granddaughter, who have been of sound mind and memory. was given $1 by the contested will, testified Wright v. Upson, supra; Dillman v. Me to acts by and conversations with the tes- Danel, 222 Ill. 276, 78 N. E. 591, 113 Am. St. tatrix from which they concluded that she | Rep. 400; Nieman v. Schnitker, 181 III. 400, was of unsound mind. The hypothetical 55 N. E. 151; Kaenders v. Montague, 180 question propounded to Dr. Krohn included Ill. 300, 54 N. E. 321; Hill v. Bahrns, 158 the substance of a part of the testimony of Ill. 314, 41 N. E. 912. Neither of these conthese two witnesses, and he answered, stat- ditions obtained in respect to the former ing that the person described in that ques- will sought to be introduced in evidence. tion was, in his opinion, of unsound mind. [14, 15] Complaint is also made by appelLater counsel for appellants moved to strike lants that the trial court refused to permit out the testimony of these two legatees. Paul Rosenhouse and Nell Rosene to testify The motion was allowed. Counsel then sug- in their behalf on rebuttal. The offers made gested that the striking out of their testi- | disclose that their testimony concerned the mony would not cure the error of its ad- question of the soundness of mind of the mission, because the hypothetical question, testatrix, and would have been merely corand the answer thereto, were partially bas- roborative of appellants' case in chief, and ed upon that testimony. Associate counsel not in rebuttal of the evidence of appellee. then stated that the testimony of Dr. Krohn In a proceeding to contest a will, the propo. also would have to be stricken, because itnent must offer in chief, not only the evi. rested, in part, on the testimony of the two dence making a prima facie case, but also legatees; but no motion was made to that all other evidence relating to the issue of effect, nor was any action taken by the testamentary capacity. Donovan v. St. Jocourt.

seph's Home, 295 Ill. 125, 129 N. E. 1. There Appeļlee has assigned cross-errors upon was no abuse of the trial court's discretion the action of the trial court in striking out in sustaining appellee's objection to the ofthe testimony of the two legatees, asserting fered testimony of these two witnesses. that they were competent to testify, because

(16, 17] The issue of undue influence, it is they were called by the contestant as ad argued by appellants, should have been withverse parties. Neither of these two wit-drawn from the jury. There is evidence in nesses was an heir of the testatrix, or had this record which might justify the inferany direct interest in the event of the suit, ence that the execution of the will had been except to sustain the will. They were called procured by undue influence. The issue was by the contestant, the adverse party, and therefore properly submitted to the jury. testified against their interest. They were

Whether or not the evidence upon that issue competent, and their testimony should not

was sufficient to justify a verdict setting the have been stricken. Evidence Act, & 2; Wet- will aside it is unnecessary to determine. zel v. Firebaugh, 251 I11. 190, 95 N. E. 1085. The finding on the question of mental capacIt follows that the testimony of Dr. Krohn ity is decisive of this case. For that reason was properly admitted.

a reversal of the decree is not required, [12, 13] A former will, purporting to have

even if the evidence be held insufficient to been drawn by the testatrix, dated May 25, warrant a decree against the instrument on

Where a 1920, and certain letters, and statements of the ground of undue influence. investments, and of receipts and disburse will is contested on the grounds of mental ments, were found in another vault during inca pacity and undue influence, a decree setthe course of the trial, and appellants sought ting the will aside in accordance with the to introduce them

jury's verdict will not be reversed, where on rebuttal. They were excluded, and complaint is made of the there is evidence to support the finding of trial court's ruling While it is proper for a

mental incapacity, and a new trial will not be trial court to admit, on rebuttal, documents

allowed solely because the evidence does not which are competent, and which could not be dy v. West, 297 111. 238, 130 N. E. 709; Hol

sustain the charge of undue influence. Bunintroduced in chief, yet their admission or exclusion is a matter largely within the land v. People's Bank, 303 Ill. 381, 135 N, E.

717. court's discretion. Huffman v. Graves, 245 Ill. 440, 92 N. E. 289. The excluded papers giving of the twelfth instruction, which was

[18, 19] Appellants finally complain of the range in date from July 31, 1918, to May

as follows: 25, 1920. We have examined them as they appear in the record and are convinced that

"If the jury believe from the evidence that, the court did not abuse its discretion in ex- although Sarah A. Clarke had sufficient capacity cluding them. Moreover, a prior will of a life, yet that with regard to subjects connected

to attend to the ordinary business affairs of testatrix is not admissible to show that she with the testamentary disposition and distribuwas of sound mind and memory at the time tion of her property and the natural objects of of the execution of a contested will, unless her bounty she was of unsound mind, and

(148 N. E.) dent told Endres that he was in need of said deposits made. It was presented by '90, and Endres said that he had only respondent on the hearing before the commis'It $S50, and would loan that amount to sioner, together with the bank book. Re"ondent. Endres was a clerk in a storage spondent admits that his possession of this 'se, earning a salary of $40 a week. He paper was an oversight on the part of Enpreviously been in business and had sold dres. He was collecting the payments from the The commissioner very properly found that of his business, and his savings from his the relation of attorney and client in this rk, together with the payments that he transaction did not exist between respond

received from the sale of his business, ent and Endres. She also found that the mounted to $857, which was deposited in his weight of the evidence is to the effect that -vings account in a bank. The next day the transaction amounted to a loan from one ter this conversation, respondent went to friend to another. It is true that respondent le place where Endres worked, and Endres is supported in his testimony by Stamps as ive him a withdrawal order for $850. Re- to the character of the transaction concernpondent signed and gave Endres this paper: ing the three amounts, of $50 each, placed in Feb. 17, 1922. Received of Louis Endres the hands of respondent by Endres. It is 50. Due on demand.” Respondent took | also true that Endres is entirely supported ne withdrawal order and obtained the $850. by the very strong circumstance that re

According to the testimony of Endres, at a spondent was in possession of his bank book, ater time, about April, 1922, as a matter of in which was placed the paper evidencing onvenience, his place of work being a con- the receipt of the $850. Respondent's testisiderable distance from his bank, he asked mony does not satisfactorily account for his respondent to deposit $50 in his savings ac- possession of this bank book, although it is mount for him. Respondent said that he would supported by Stamps. We cannot agree with Andres then gave him his bank book and the the commissioner that there is no evidence $50 to deposit for him. Thereafter, on two to show that respondent “fraudulently conother occasions, he gave respondent $50 for verted" the three sums of $50 each to his deposit, with a like request that he deposit own use. The evidence points strongly that said sums in the Greenebaum Sons Bank & way, notwithstanding the testimony of reTrust Company, where his deposit account spondent and Stamps. was. None of these sums were ever deposit. Respondent's action in this matter deed by respondent, and he did not return to serves very severe censure. He has maniEndres the bank book until the hearing be- fested no disposition to pay back the amount fore the commissioner, although Endres made due Endres, but puts himself in the attitude repeated demands on him for it. After many of positively refusing to pay it; his only exrequests for his bank book, Endres went to cuse for his unwillingness being the fact that the bank and found that respondent had not this complaint was made to the Chicago Bar made the deposits, amounting to $150, that Association. Respondent seems to ascribe this he had requested him to make. Nothing proceeding as evidence of malice on the part further was done by Endres about the pay- of Endres, inspired by the fact that the close ment of the $850, or the $150, for several relations between him and the respondent's months, except that he often asked respond- sister had been broken off. It seems to us ent for the bank book and that he deposit the conduct of respondent in securing the the $150 in the bank. Endres finally had a

loan might just as aptly be interpreted as an meeting with him and demanded the pay attempt by him to take advantage of Endres ment of the $850 and the $150. Respondent by reason of such relations with his sister, then made out two judgment notes, for $150 His refusal to pay Endres on the ground and $850, dated February 22, 1922 (the day aforesaid is simply inexcusable. The whole respondent had obtained $850 from Endres), transaction on the part of respondent is aland gave these notes to him. Endres took together inconsistent with common honesty the notes, but thereafter wrote to respond- and decency as between one citizen and anent that he did not intend to accept them in other, and is entirely inconsistent with the settlement of the account.

conduct expected from an attorney and counThe testimony of respondent, which is sup- selor at law, who holds the license of this ported by the testimony of Stamps, is that court to practice his profession. Endres was to loan him $1,000, and that the [2] It is the general rule that an attorney giving to him of the $50 on three different at law will not be disbarred for misconduet occasions was to make up the $1.000 after in- not in his professional capacity. Neverthecluding the $850 previously loaned to him. less there are exceptions to this rule, and Respondent has never repaid any of the $1,- this court has held that there may be mis000. It also appears that the paper sign- conduct of an attorney in his private capaced by respondent acknowledging receipt of ity so gross as to require his disbarment. the $850, which he had given Endres, was People v. Appleton, 105 III. 474, 44 Am. Rep. in the bank book which Endres turned over 812. to bim for the purpose of having the afore It is charged in

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