Ill.) * * # (148 N.E.) 320-Trial of issue submitted in will contest is governed by same rules as govern trial of issue at law before jury. Trial of issue required to be submitted to jury in will contest is governed by same rules as govern trial of an issue at law before a jury. 4. Appeal and error 520(1)—At law, motions made in cause, to become part of record, must be incorporated in bill of exceptions signed by judge. ings if in the employment of the same employ- 3. Wills At law, motions made in cause, to become part of record, must be incorporated in bill of exceptions signed by judge. Motion for 5. Appeal and error 520(4) continuance, and affidavits and papers on which based, must be brought up by bill of exceptions. Motion for continuance in suit at law, and affidavits and papers on which it is based, must be brought up by bill of exceptions, in order to merit review of trial court's action on mo The record shows that during the year preceding the injury defendant in error had been engaged by plaintiff in error on fifteen different jobs. It is conceded that he did not put in his whole time in the employment of plaintiff in error. The record does not tion. disclose that persons in the same class of employment as defendant in error were employed by plaintiff in error in the same location, nor is there evidence of the earnings arising from neighboring employments of the same kind during the year. Defendant in error testified that his income amounted to $2,400 per year. There was no attempt to 6. Exceptions, bill of 38-Failure to file bill of exceptions at term at which ruling on motion for continuance was made held to preclude consideration. Failure to file bill of exceptions at term at which ruling overruling motion for continuance was made held to preclude consideration of such ruling. Whether testatrix was of sound mind and memory held question for jury. qualify his testimony in that particular 7. Wills 324 (2)—Whether testatrix was of and there is no other evidence in the record sound mind and memory held for jury. on that matter. It is not shown that at 90 cents per hour he could not have earned $2,400 in a year of 300 work days allowed by the statute. The evidence does not show the number of hours he put in. He testified that he earned that amount. We are unable to say that the Commission did not correctly compute the award. There is no error in the record, and the judgment of the circuit court will be firmed. Judgment affirmed. af 8. Wills 53 (1)—Exclusion of papers written prior to execution of contested instrument held not error. Exclusion of papers written five years before execution of will, contested on ground of mental incapacity, held, not error. 9. Evidence 370 (4)—When hospital records are admissible stated. A hospital record is admissible on the DE YOUNG, J., took no part in this de- same basis as books of account, and before cision. (317 Ill. 561) KIMBER v. KIMBER et al. (No. 16129.) (Supreme Court of Illinois. June 18, 1925.) 1. Appeal and error 544 (1)-Procedure by which case reaches its place on trial calendar Is not part of proceedings in course of trial. Procedure by which case reaches its place on trial calendar is not included in issues presented by pleadings, and hence is not part of proceedings in the course of the trial, as respects necessity for bill of exceptions. 2. Evidence 42-Supreme Court may not take judicial notice of rules of practice of superior court. Supreme Court may not take judicial notice of rules of practice of superior court. it can be admitted in evidence all persons who make entries in it are required to testify to their correctness. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 12. Wills 322-Admission or exclusion, on [ rebuttal, of documents not introducible in chief, held largely within trial court's discretion. Admission or exclusion, on rebuttal, of documents not introducible in chief, held largely within trial court's discretion. 13. Wills 54(5)-When prior will of testatrix is not admissible, on issue of soundness of mind and memory when executing contested will, stated. A prior will of testatrix is not admissible, to show that she was of sound mind and memory at the time of the execution of a contested will, unless the provisions of the two are in substantial conformity, and the former will was executed when testatrix is conceded to have been of sound mind and memory. 14. Wills 322-Proponent must offer in chief all evidence relating to issue of testamentary capacity. In will contest, proponent must offer in chief, not only evidence making prima facie case, but all other evidence relating to issue of testamentary capacity. 15. Wills 322-Exclusion of testimony of witnesses as to soundness of mind of testatrix, offered as rebuttal, held not abuse of discretion. Exclusion of testimony of witnesses as to soundness of mind of testatrix, offered as rebuttal, held not abuse of discretion, where the testimony would merely have been corroborative of appellants' case in chief. 16. Wills 324 (3)-Submission of issue of undue influence held justified. Submission of issue of undue influence held justified, where there was evidence which might justify inference of undue influence. Instruction that, if testatrix was so far influenced by unsoundness of mind as to be unable rationally to comprehend nature and effect of will, "and was thereby led to make the will as she did." jury must find against will, held not to assume testatrix was induced to execute the instrument in question. Appeal from Superior Court, Cook County; Timothy D. Hurley, Judge. Bill by George A. Kimber against Marie Elizabeth Kimber and others to set aside will. From an adverse decree, the Home Bank & Trust Company and another, as executors and trustees, appeal. Affirmed. Cheney & Peterson, of Chicago (David G. Robertson, of Chicago, of counsel), for ap pellants. Wyman; Hopkins, McKeever & Colbert, of Chicago (Vincent D. Wyman, Charles E. Carpenter, and Austin L. Wyman, all of Chicago, of counsel), for appellee. DE YOUNG, J. Sarah A. Clarke, a widow 70 years of age, died at Chicago on January 25, 1922. She had been married three times. George A. Kimber, a son by her first marriage, was her only child and heir at law. On December 14, 1921, while temporarily residing at the home of Thomas G. Perkins and Nellie Perkins, his wife, in Chicago, she executed an instrument which purported to be her last will and testament. By this instrument she gave to her son a lot in Rosehill Cemetery; to Alfred C. Clarke, the brother of her deceased husband, a vacant half lot in Forest Home Cemetery; to Marie E. Kimber, the wife of her son, George, $1; to Ruth Kimber, her granddaughter, $1; to Thomas G. Perkins, her mandolin and $3,000; to Nellie Perkins, the wife of Thomas, her cedar chest, with its contents, and $1,000; to Clara Povett, her packing case, with its contents, and $1,000; to Fannie Bashan, $500; to Jack Ward, the son of Florence and Ernest Ward, $500; to Mrs. Richardson, $1,000; and to the Home Bank & Trust Company and J. Henry Krause, as trustees, $23,000 for the following purposes: (1) To pay to her son, George A. Kimber, during his life, the net income from $20,000; (2) to pay to her grandson, John E. Kimber, when 30 years of age $3,000 with its accumulations; and (3) to divide upon the death of her son the same $20,000, and, in case her grandson should not attain the age of 30 years, the sum of $3,000, with its accumulations, equally between John Morris, her brother, Jane Morris, the widow of her deceased brother, David, and Lydia Field and Martha Field, her sisters, all of Birmingham, England, and Thomas A. Morris, her brother of Chicago. The instrument authorized the trustees to make investments and reinvestments in their discretion, and to manage, sell, convey, lease, or incumber the trust estate, or any part 19. Trial 296(2)-Instruction on issue of thereof, the same as the testatrix might do, mental incapacity held not prejudicial error. if living. It gave the residue of the estate Instruction on issue of mental incapacity held not prejudicial error, in view of instruc- to the brother, sisters, and sister-in-law beJ. Henry tions given in behalf of appellants, fully in-fore mentioned, in equal parts. forming jury on subjects of requisite capacity Krause and the Home Bank & Trust Comto make will and the burden of proof. pany were nominated executors, surety upon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (148 N.E.) the bond of the individual executor was waived, and the executors were empowered to sell, incumber or otherwise dispose of the estate. The instrument was admitted to record as the last will and testament of Sarah A. Clarke, deceased, by the probate court of Cook county on April 18, 1922. Thereafter George A. Kimber, the son, filed his bill of complaint in the superior court of Cook county to set aside the alleged will, upon the grounds of undue influence and the want of testamentary capacity. The cause was submitted to a jury, which returned a verdict that the instrument was not the will of Sarah A. Clarke. Answers to special interrogatories were also asked, and the jury found that Sarah A. Clarke was not of sound mind and memory at the time she executed the instrument, and that its execution was procured by undue influence. entered in accordance with the verdict. From that decree the Home Bank & Trust Company and J. Henry Krause, as executors and trustees, prosecute this appeal. Appellee replies that the question has not been properly preserved for review; that, to enable this court to pass upon the question, a bill of exceptions preserving it should have been filed at the term at which the ruling. upon the motion for a continuance was made; and that the preservation of the question in a general bill of exceptions made at a subsequent term, after the conclusion of the trial, is of no avail. [1-5] The procedure by which a case reaches its place on the trial calendar is not included in the issues presented by the pleadings, and hence is not a part of the proceedings-in the course of the trial. This court cannot take judicial notice of the rules of practice of the superior court. Anderson v. McCormick, 129 Ill. 308, 21 N. E. 803; Sixby v. Chicago City Railway Co., 260 Ill. 478, 103 N. E. 249, Ann. Cas. 1914D, 539. All written A decree was motions made in a chancery suit are parts of the record, without being preserved or incorporated in the certificate of evidence (Young v. Jameson, 307 Ill. 71, 138 N. E. 228); but, where the statute requires a question of fact to be submitted to a jury, the practice in an action at law applies, and the trial of an issue so submitted on the contest of a will is governed by the same rules as the trial of an issue at law before a jury (Mayville v. French, 246 Ill. 434, 92 N. E. 919; Johnson v. Farrell, 215 Ill. 542, 74 N. E. 760; Tucker v. Cole, 169 Ill. 150, 48 N. E. 440). At law, motions made in a cause, to become a part of the record, must be incorporated in a bill of exceptions signed by the judge. Ferris v. McClure, 40 Ill. 99; Young v. Jameson, supra. A motion for a continuance in a suit at law must be brought up by a bill of exceptions, or it will not be reviewed; and the same rule applies to the affidavits and papers upon which the motion is based. 3 Ency. of Pl. & Pr. p. 394, note 2, and p. 396. See, also, Bartling v. Thielman, 183 Ill. 88, 55 N. E. 677. The first contention of appellants is that the clerk, without an order of the trial court, erroneously placed the cause on the chancery trial calendar, and that the court erred in denying appellants' motion for a continuance. On February 7, 1924, counsel for appellants made a motion to continue the cause, on the ground that it had been improperly placed on the trial calendar. The motion was overruled, an exception was taken, and the trial began on the same day. Rule 5 of the superior court of Cook county provides that: "When any chancery case is at issue, upon notice and motion of either party, the case may be ordered placed on the trial calendar of the chancellor to whom said case has been assigned, and such cases be called for trial in the order in which they are placed on said calendar, unless otherwise ordered." From affidavits made in support of the 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; and that the first notice appellants' counsel had of what had been done was a short time before the cause was reached on the call, when it was too late to procure the attendance or depositions of material witnesses then in California. er the ruling could be appealed from is immaterial. The bill of exceptions should have been taken upon the question in apt time to preserve it for review. People v. May, 276 111. 332, 114 N. E. 685; Finch & Co. v. Zenith Furnace Co., 245 Ill. 586, 92 N. E. 521; Village of Franklin Park v. Franklin, 228 II. deformed condition of the pelvis, and added that the testatrix had a rigidity and an ankylosis of the spine, that her bones were brittle for lack of nutrition, and that she was helpless at the time he saw her. Still tatrix, found that she had anæmia, a high degree of arteriosclerosis, some congestion in the upper part of both lungs, and a general senile condition. Her vital powers had largely waned, and her condition, physically and mentally, rapidly became worse to the time his treatments ceased, and it was apparent from her speech and actions that her brain was affected. A fifth physician testified that he was unable to complete a history sheet from the information which she gave him; that he had to repeat his questions to her; that there were long delays in answers to simple questions; and that from his observations he believed she was suffering from senile dementia. Another physician testified that, from 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 overruling appellants' motion for continuance. [7] Seventeen witnesses testified in behalf of the proponents of the instrument. It was drawn by the secretary of the appellant bank, from directions which the testatrix another physician, who had treated the tesgave him after she had read the provisions of a prior will. Upon completion of the instrument, she reviewed and approved it. Both of the attesting witnesses were bankers. They had assisted her in business transactions, and advised her with reference to investments. One of them testified that she knew when her notes would become due and payable, and that she gave instructions concerning reinvestments. She came to the bank on crutches, accompanied by some person. The secretary and the attesting witnesses believed that the testatrix was of sound mind at the time she executed the instrument. Several witnesses had met her at dinner on Thanksgiving and Christmas Days in the year 1921. Some of these witnesses 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 parand 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 verses of the same poem, and the other regarded her as a brilliant woman.. On the part of the contestant 21 witnesses testified. There was much evidence tending to show that the physical condition of the testatrix had degenerated and her mentality become impaired. A Roentgenologist testified that the X-ray pictures he had taken of the testatrix, which were offered in evidence, showed a general senile atrophy of the bones of the pelvis, the upper third of both femurs, and of all the bones in the skull, with a chronic inflammation of the occipital bone, and partial destruction of its posterior portion, and that there was an extensive infection of certain of the bones and a pathological fracture. Another physician testified that at the time of the testatrix's death he found that she had a pus infection of the right middle ear cavity, with subsequent pyemia. He enumerated a number of the conditions of infection that existed, and gave it as his opinion that the cause of her death was a purulent infection of the blood stream, and that the conditions he found might affect the brain. A third physician When he first saw the testatrix she weighed about 180 pounds, but later her body, and especially her bones, rapidly dehydrated, the latter to the extent that the blood supply had been taken from them, and there was nothing left but shells. There was a large soft area on the right side of her skull, which could be pushed in with the thumb or finger, and toward the close of his treatments she had a very pronounced paresis. She had suffered a stroke of apoplexy, was hard of hearing, and almost blind. It was his opinion she was mentally unsound. An expert in mental diseases was asked a hypothetical question purporting to embody the essential features of the testimony adduced by appellee, and he gave it as his opinion that the person described in the question was of unsound mind. Among the facts and incidents related by different witnesses, constituting the bases upon which they concluded that the testatrix was of unsound mind are the following: At times she failed to answer questions; her conversations were disconnected; she would change from one subject to another abruptly, and often could not carry on a coherent con (148 N.E.) 1 vault at the bank. The letter is dated June 26, 1917, and is addressed to "My Dear Alfred." It opens with the assertion that it is not written with any ill feeling, but complains of the treatment accorded her, and charges that it caused her illness. Reference is made to the statement, which was inclosed with the letter, and which purports to set forth items of money given by the testatrix to her son, the last of which was on April 8, 1916. The sum of these items is $5,096.50. The son's acknowledgment is that on April 8, 1916, the mother paid for him a second mortgage of $1,300 and interest on a certain garage. Each of these pa 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 of the hot-water system in her house, because the flow of the water in the pipes caused her to feel that spirits were there; she thought the spirit of one of her deceased husbands was in the bedroom in which he died, and for that reason requested a prospective purchaser of the house not to open the door to that room; she thought the house was haunted; she talked of going to California to learn to dance, stated that she was a good dancer and singer, and on her voyage to Europe attempted to dance on the deck of the ship; on that trip she took no change of underwear and had no nightdress with her; she appeared 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, [9, 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 were made by internes and nurses, and not by the physician who testified concerning the record at the time it was offered. Such a record is admissible, upon the same basis as books of account, and before it can be admitted in evidence all persons who make entries in it are required to testify to their correctness. Wright v. Upson, 303 Ill. 120, 135 N. E. 209. We have examined the hospital record as it appears in the transcript of the record of this cause, and find that it contains memoranda relating to the physical condition, the findings from tests made, and a statement of the medical treatment given the patient. Some of the data set forth in the hospital record were included in the testimony of the physicians, and the rest related to matters which could not be prejudicial. Appellants have not shown wherein they were prejudiced by the admission of this record, and their contention with respect to it cannot be sustained. A number of the foregoing facts and incidents were supported by the testimony of different witnesses. They included, in addition to friends and acquaintances, the physicians who attended the testatrix, the nurse at the hospitál, a prospective purchaser of a house the testatrix owned, the person who accompanied her to Europe, and a business man who called to see her son. Many other eccentricities were related by other witnesses, but it is not necessary to enumerate them. Appellants insist that the verdict and decree are contrary to the evidence. It is true that some of the acts of the testatrix, relied upon to show that she lacked testamentary capacity at the time the instrument in question was signed by her, may be the result, merely, as suggested by appellants, of defective vision, impaired hearing, and advanced age. Isolated acts and parts of conversations often appear abnormal, but when considered in connection with the whole course of conduct, or the entire conversation, prove to be normal. The acts and utterances of the testatrix, shown by this record, however, can scarcely be attributed to [11] The appellants further contend that the answer of Dr. Krohn, the expert in mental diseases, to the hypothetical question propounded to him, should have been strick |