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 Shaw, a granddaughter, who have been of sound mind and memory. was given $1 by the contested will, testified Wright v. Upson, supra; Dillman v. Mcto 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 Ill. 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. Later counsel for appellants moved to strike out the testimony of these two legatees. The motion was allowed. Counsel then suggested that the striking out of their testimony would not cure the error of its admission, because the hypothetical question, and the answer thereto, were partially based upon that testimony. Associate counsel then stated that the testimony of Dr. Krohn also would have to be stricken, because it rested, in part, on the testimony of the two legatees; but no motion was made to that effect, nor was any action taken by the court. Appellee has assigned cross-errors upon the action of the trial court in striking out the testimony of the two legatees, asserting that they were competent to testify, because they were called by the contestant as adverse parties. Neither of these two witnesses was an heir of the testatrix, or had any direct interest in the event of the suit, except to sustain the will. They were called by the contestant, the adverse party, and testified against their interest. They were competent, and their testimony should not have been stricken. Evidence Act, § 2; Wetzel v. Firebaugh, 251 Ill. 190, 95 N. E. 1085. It follows that the testimony of Dr. Krohn was properly admitted. [12, 13] A former will, purporting to have been drawn by the testatrix, dated May 25, 1920, and certain letters, and statements of investments, and of receipts and disburse ments, were found in another vault during the course of the trial, and appellants sought to introduce them on rebuttal. They were excluded, and complaint is made of the trial court's ruling While it is proper for a trial court to admit, on rebuttal, documents which are competent, and which could not be introduced in chief, yet their admission or exclusion is a matter largely within the court's discretion. Huffman v. Graves, 245 Ill. 440, 92 N. E. 289. The excluded papers range in date from July 31, 1918, to May 25, 1920. We have examined them as they appear in the record and are convinced that the court did not abuse its discretion in excluding them. Moreover, a prior will of a 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 [14, 15] Complaint is also made by appellants that the trial court refused to permit Paul Rosenhouse and Nell Rosene to testify in their behalf on rebuttal. The offers made disclose that their testimony concerned the question of the soundness of mind of the testatrix, and would have been merely corroborative of appellants' case in chief, and not in rebuttal of the evidence of appellee. In a proceeding to contest a will, the proponent must offer in chief, not only the evidence making a prima facie case, but also all other evidence relating to the issue of testamentary capacity. Donovan v. St. Joseph's Home, 295 Ill. 125, 129 N. E. 1. There was no abuse of the trial court's discretion in sustaining appellee's objection to the offered testimony of these two witnesses. [16, 17] The issue of undue influence, it is argued by appellants, should have been withdrawn from the jury. There is evidence in this record which might justify the inference that the execution of the will had been procured by undue influence. The issue was therefore properly submitted to the jury. Whether or not the evidence upon that issue was sufficient to justify a verdict setting the will aside it is unnecessary to determine. The finding on the question of mental capacity is decisive of this case. For that reason a reversal of the decree is not required, even if the evidence be held insufficient to warrant a decree against the instrument on the ground of undue influence. Where a will is contested on the grounds of mental incapacity and undue influence, a decree setting the will aside in accordance with the jury's verdict will not be reversed, where there is evidence to support the finding of mental incapacity, and a new trial will not be allowed solely because the evidence does not sustain the charge of undue influence. Bundy v. West, 297 II, 238, 130 N. E. 709; Holland v. People's Bank, 303 Ill. 381, 135 N. E. 717. [18, 19] Appellants finally complain of the giving of the twelfth instruction; which was as follows: "If the jury believe from the evidence that, although Sarah A. Clarke had sufficient capacity to attend to the ordinary business affairs of life, yet that with regard to subjects connected with the testamentary disposition, and distribution of her property and the natural objects of her bounty she was of unsound mind, and (148 N.E.) dent told Endres that he was in need of 200, and Endres said that he had only it $850, and would loan that amount to ondent. Endres was a clerk in a storage se, earning a salary of $40 a week. He previously been in business and had sold He was collecting the payments from the e of his business, and his savings from his rk, together with the payments that he received from the sale of his business, mounted to $857, which was deposited in his vings account in a bank. The next day #ter this conversation, respondent went to he place where Endres worked, and Endres ve him a withdrawal order for $850. Remondent signed and gave Endres this paper: Feb. 17, 1922. Received of Louis Endres 50. Due on demand." Respondent took the withdrawal order and obtained the $850. According to the testimony of Endres, at a Pater time, about April, 1922, as a matter of Fonvenience, his place of work being a considerable distance from his bank, he asked respondent to deposit $50 in his savings acount for him. Respondent said that he would. Endres then gave him his bank book and the $50 to deposit for him. Thereafter, on two other occasions, he gave respondent $50 for deposit, with a like request that he deposit said sums in the Greenebaum Sons Bank & Trust Company, where his deposit account was. None of these sums were ever deposited by respondent, and he did not return to Endres the bank book until the hearing before the commissioner, although Endres made repeated demands on him for it. After many requests for his bank book, Endres went to the bank and found that respondent had not made the deposits, amounting to $150, that he had requested him to make. Nothing further was done by Endres about the payment of the $850, or the $150, for several months, except that he often asked respondent for the bank book and that he deposit the $150 in the bank. Endres finally had a meeting with him and demanded the payment of the $850 and the $150. Respondent then made out two judgment notes, for $150 and $850, dated February 22, 1922 (the day respondent had obtained $850 from Endres), and gave these notes to him. Endres took the notes, but thereafter wrote to respondent that he did not intend to accept them in settlement of the account. The testimony of respondent, which is supported by the testimony of Stamps, is that Endres was to loan him $1,000, and that the giving to him of the $50 on three different occasions was to make up the $1.000 after including the $850 previously loaned to him. Respondent has never repaid any of the $1,000. It also appears that the paper signed by respondent acknowledging receipt of the $850, which he had given Endres, was in the bank book which Endres turned over to him for the purpose of having the afore said deposits made. It was presented by respondent on the hearing before the commissioner, together with the bank book. Respondent admits that his possession of this paper was an oversight on the part of Endres. The commissioner very properly found that the relation of attorney and client in this transaction did not exist between respondent and Endres. She also found that the weight of the evidence is to the effect that the transaction amounted to a loan from one friend to another. It is true that respondent is supported in his testimony by Stamps as to the character of the transaction concerning the three amounts, of $50 each, placed in the hands of respondent by Endres. It is also true that Endres is entirely supported by the very strong circumstance that respondent was in possession of his bank book, in which was placed the paper evidencing the receipt of the $850. Respondent's testimony does not satisfactorily account for his possession of this bank book, although it is supported by Stamps. We cannot agree with the commissioner that there is no evidence to show that respondent "fraudulently converted" the three sums of $50 each to his own use. The evidence points strongly that way, notwithstanding the testimony of respondent and Stamps. Respondent's action in this matter deserves very severe censure. He has manifested no disposition to pay back the amount due Endres, but puts himself in the attitude of positively refusing to pay it; his only excuse for his unwillingness being the fact that this complaint was made to the Chicago Bar Association. Respondent seems to ascribe this proceeding as evidence of malice on the part of Endres, inspired by the fact that the close relations between him and the respondent's sister had been broken off. It seems to us the conduct of respondent in securing the loan might just as aptly be interpreted as an attempt by him to take advantage of Endres by reason of such relations with his sister. His refusal to pay Endres on the ground aforesaid is simply inexcusable. The whole transaction on the part of respondent is altogether inconsistent with common honesty and decency as between one citizen and another, and is entirely inconsistent with the conduct expected from an attorney and counselor at law, who holds the license of this court to practice his profession. [2] It is the general rule that an attorney at law will not be disbarred for misconduct not in his professional capacity. Nevertheless there are exceptions to this rule, and this court has held that there may be misconduct of an attorney in his private capacity so gross as to require his disbarment. People v. Appleton, 105 Ill. 474, 44 Am. Rep. 812. Supreme Court of Illinois on October 13, 1915. He denied many of the charges in the two counts, and sought to explain some other matters by the evidence. The second count is proved as charged. The first and second loans of $500 were each repaid, each within a month after the same was loaned, together with $50 and $100, respectively, as profit or interest. There was paid by respondent $200 to Brunken on the third note, and then Brunken hired an attorney, who by labored efforts secured two other payments of $250 and $100 in money, and later a watch for $100, furniture for $150, and a note for the balance, upon which judgment was taken. The note was finally fully paid, after much delay and repeated duns; one check of respondent being returned unpaid for want of sufficient funds in the bank. It was not finally all paid until resort was had to the Bar Association by the charges aforesaid. The relation of attorney and client between Brunken and respondent was neither charged nor proved as to the second count. was badly in debt; that the $500 check to Kramer was for the cash payment to Schmidt. Kramer got in touch with Schmidt over the telephone, and requested him to go to respondent's office to complete the deal. In the meantime Swenson had decided to purchase another drug store, and when Schmidt appeared at respondent's office he was informed that the deal was off. Respondent asked for the $500 back from Kramer, who insisted that Swenson should be held to his agreement. Respondent then gave a $1,500 check to Kramer, to be delivered to Swenson when Kramer deposited his $500 and a Mr. Scharf deposited an expected $1,000. Kramer indorsed the check without recourse and delivered it to Swenson before the deposits were made, and the check was not paid for want of sufficient funds; respondent only having $1.33 in the bank. Thereafter respondent gave his check to Swenson's attorney for $750, payment of which was also refused by the bank for want of sufficient funds. Respondent's explanation regarding his The facts established under the first count bank account is that it was nearly the are that in 1922 H. L. Swenson, a drug clerk, amount of the check when given, and would being desirous of purchasing a drug store have been that amount if the bank had not for himself, talked with Lee Kramer, a friend charged against his account some other and former schoolmate and roommate, who checks he had deposited, and with which the sold drug supplies, about buying a drug store. bank refused to credit him because the makAfter considering several places, Swenson ers of the checks had not sufficient funds in was inclined to consider the purchase of the the bank. After complaint had been made Schmidt drug store, which had been original- against respondent to the Chicago Bar Assoly offered for $18,000, but which Kramer lat-ciation he paid a part of the amount, and er told Swenson could be purchased for $16,500, of which sum $1,500 was to be paid in cash. On one occasion respondent had driven Swenson and Kramer in his automobile to look at the store. Respondent had been employed previously as Kramer's attorney, and also for Swenson's employers, but had never acted as Swenson's attorney. Swenson stated that he expected respondent to look after the legal part of the transaction, but no fee was agreed on, and nothing was said regarding the employment of respondent as Swenson's attorney. Kramer succeeded in getting Schmidt to agree to sell the drug store for $15,500, $500 of which was to be paid in cash. He and respondent then went to Swenson's home, and Kramer told him, in the presence of respondent, that the price of the store was $16,500, $1,500 of which must be paid in cash. Swenson then obtained a cashier's check for $1,500. There is a dispute as to whether the check was delivered to Kramer or respondent. The proof does show that respondent gave Swenson a receipt for the money, and that the check was deposited in respondent's bank to his account, and on the same day he drew a check for $500, payable to Kramer. Respondent's explanation of the transaction is that $1,000 of the payment was to be Kramer's commission for making the sale and that Kramer was to loan him the $1,000, as he later, since the filing of the information against him, has paid all the amount due Swenson. There is some question as to whether or not respondent and Kramer were legally obligated to return the $1,500 to Swenson after he had changed his mind. Nevertheless, respondent promised to return it, and was very slow in doing so, evidently because he was very hard pressed for money. The evidence does not show that he was to receive any part of the $1,000 commission, and that he was not to receive anything from Swenson for his services as attorney. The proof does not show that he was guilty of any criminal offense. It does show that he and Kramer did not tell Swenson that a profit of $1,000 was to be made on the transaction for Kramer. On the other hand, respondent, while he heard Kramer state to Swenson that the cash payment was to be $1.500, instead of $500, yet made no representations to Swenson about it. [1] The facts proved, and which support the first additional count, are that during the first half of the year 1922 Louis A. Endres was accustomed to call about three times a week to visit respondent's sister. Respondent frequently took Endres home in his car after he had finished his call. On one of these occasions respondent and Endres were in the front seat of the automobile, and one Stamps was in the rear seat. Re (148 N.E.) spondent told Endres that he was in need of $1,000, and Endres said that he had only about $850, and would loan that amount to respondent. Endres was a clerk in a storage house, earning a salary of $40 a week. He had previously been in business and had sold it. He was collecting the payments from the sale of his business, and his savings from his work, together with the payments that he had received from the sale of his business, amounted to $857, which was deposited in his savings account in a bank. The next day after this conversation, respondent went to the place where Endres worked, and Endres gave him a withdrawal order for $850. Respondent signed and gave Endres this paper: "Feb. 17, 1922. Received of Louis Endres $850. Due on demand." Respondent took the withdrawal order and obtained the $850. According to the testimony of Endres, at a later time, about April, 1922, as a matter of convenience, his place of work being a considerable distance from his bank, he asked respondent to deposit $50 in his savings account for him. Respondent said that he would. Endres then gave him his bank book and the $50 to deposit for him. Thereafter, on two other occasions, he gave respondent $50 for deposit, with a like request that he deposit said sums in the Greenebaum Sons Bank & Trust Company, where his deposit account was. None of these sums were ever deposited by respondent, and he did not return to Endres the bank book until the hearing before the commissioner, although Endres made repeated demands on him for it. After many requests for his bank book, Endres went to the bank and found that respondent had not made the deposits, amounting to $150, that he had requested him to make. Nothing further was done by Endres about the payment of the $850, or the $150, for several months, except that he often asked respondent for the bank book and that he deposit the $150 in the bank. Endres finally had a meeting with him and demanded the payment of the $850 and the $150. Respondent then made out two judgment notes, for $150 and $850, dated February 22, 1922 (the day respondent had obtained $850 from Endres), and gave these notes to him. Endres took the notes, but thereafter wrote to respondent that he did not intend to accept them in settlement of the account. The testimony of respondent, which is supported by the testimony of Stamps, is that Endres was to loan him $1,000, and that the giving to him of the $50 on three different occasions was to make up the $1.000 after including the $850 previously loaned to him. Respondent has never repaid any of the $1,000. It also appears that the paper signed by respondent acknowledging receipt of the $850, which he had given Endres, was in the bank book which Endres turned over to him for the purpose of having the afore said deposits made. It was presented by respondent on the hearing before the commissioner, together with the bank book. Respondent admits that his possession of this paper was an oversight on the part of Endres. The commissioner very properly found that the relation of attorney and client in this transaction did not exist between respondent and Endres. She also found that the weight of the evidence is to the effect that the transaction amounted to a loan from one friend to another. It is true that respondent is supported in his testimony by Stamps as to the character of the transaction concerning the three amounts, of $50 each, placed in the hands of respondent by Endres. It is also true that Endres is entirely supported by the very strong circumstance that respondent was in possession of his bank book, in which was placed the paper evidencing the receipt of the $850. Respondent's testimony does not satisfactorily account for his possession of this bank book, although it is supported by Stamps. We cannot agree with the commissioner that there is no evidence to show that respondent "fraudulently converted" the three sums of $50 each to his own use. The evidence points strongly that way, notwithstanding the testimony of respondent and Stamps. Respondent's action in this matter deserves very severe censure. He has manifested no disposition to pay back the amount due Endres, but puts himself in the attitude of positively refusing to pay it; his only excuse for his unwillingness being the fact that this complaint was made to the Chicago Bar Association. Respondent seems to ascribe this proceeding as evidence of malice on the part of Endres, inspired by the fact that the close relations between him and the respondent's sister had been broken off. It seems to us the conduct of respondent in securing the loan might just as aptly be interpreted as an attempt by him to take advantage of Endres by reason of such relations with his sister. His refusal to pay Endres on the ground aforesaid is simply inexcusable. The whole transaction on the part of respondent is altogether inconsistent with common honesty and decency as between one citizen and another, and is entirely inconsistent with the conduct expected from an attorney and counselor at law, who holds the license of this court to practice his profession. [2] It is the general rule that an attorney at law will not be disbarred for misconduct not in his professional capacity. Nevertheless there are exceptions to this rule, and this court has held that there may be misconduct of an attorney in his private capacity so gross as to require his disbarment. People v. Appleton, 105 Ill. 474, 44 Am. Rep. 812. It is charged in the second additional count that respondent acted as the attorney, ally wrote him that Mulligan and Cohen & for one Mulligan in the purchase of a drug | Garvey had taken care of all the other oblistore. Mulligan agreed, as a part of the gations of the store, with the exception of the purchase price, to assume $1,100 of the in- ones placed in his hands. Thereafter comdebtedness existing against the drug store plaint was made by Mulligan to the Chicago at the time of his purchase. It was after- Bar Association. Respondent, in reply to a wards learned that there was an addition- letter from the grievance committee of the al indebtedness of $512.83, and the sellers Bar Association, stated that he would pay the deposited in the hands of respondent this money upon a satisfactory showing that the sum of money for the payment of that in- $1,100 had been paid. It was not the contendebtedness. Respondent executed a receipt tion of either Cohen or Garvey, or of any for this money. He was thereafter given one else, except respondent, that there was a list of the additional creditors, but re- any understanding that the money was placed fused to pay the sums due these creditors, in his hands and to be paid out only when except as to one amount of $122.81. Mulli- Mulligan paid the $1,100. gan made repeated demands upon respondent to pay the other claims, and sent him a list of the creditors and the amount due each. Respondent refused to pay these creditors, and by reason thereof is guilty of malfeasance in his office as attorney at law. The evidence as to the second additional count shows that, in the negotiations of Mulligan with Cohen & Garvey, respondent represented Mulligan as his attorney, and that he prepared the memorandum of agreement. From the evidence it appears that Mulligan was to pay all the debts, which at that time were determined to be $1,100. Later, when the debts were shown to exceed that amount by $512.83, Cohen & Garvey paid that sum to respondent, who signed a paper reciting that the total liabilities of the Irving-Kimball pharmacy amounted to $1,612.83-$512.83 more than Mulligan had assumed and agreed to pay. Respondent agreed in the instrument signed by him that he would use the $512.83 to pay the liabilities, and procure from Mulligan a release and discharge for all claims and demands by reason of such additional liabilities. This payment to respondent was made about a week or 10 days after the purchase of the store. Respondent testified that this money was to be expended by him after Mulligan had paid the $1,100 of bills assumed by him. No such conditions are shown in the receipt or statement that he signed. Out of the money received by him respondent has only paid one creditor of the store the sum of $122.81. He has failed to pay any of the other creditors, or return the balance of the money so received. Mulligan made repeated demands upon him to pay the balance to the creditors, or to deliver the money to Mulligan, so he could do it. Respondent sought to excuse this payment of money on the ground that a list of creditors had not been furnished him. A list was thereafter sent to him, showing the names of the creditors and the amount due each one of them. Respondent also insisted that the money was not to be expended by him until the $1,100 had been paid by Mulligan. Mulligan employed a firm of lawyers to collect the balance from respondent, or compel him to pay it to the creditors. The law yers made repeated demands on him, and fin After the complaint was filed with the Bar Association, respondent refused to pay any of the money until the matter was disposed of by that association. The evidence in the record shows clearly that the payment by Mulligan of the $1,100 had nothing to do with the payment of the other accounts by respondent. Respondent was acting as an attorney at law for Mulligan as well as for the other parties. All of respondent's excuses were met by his client. A list of the creditors was furnished him, and the attorneys for Mulligan stated that all the indebtedness had been paid, except such as the money in respondent's hands was to pay. Respondent was acting in a fiduciary matter, and he should either have paid out the money as directed, or have terminated his connection with the matter and returned the money to those from whom he received it. He has not only refused to pay the money as he agreed to do, but has failed to return it. His conduct in this regard has been not only defiant, but he has acted without regard to his oath of office and his duty as attorney and counselor at law. Such conduct of respondent as has been disclosed by the evidence under the first and second additional counts cannot be tolerated by this court, whose duty it is to guard the public in its relations with the members of the legal profession. Attorneys and counselors at law in this state bear the distinction of being members of the only profession whose members are required to take and subscribe an oath to support the state and federal Constitutions, and in addition thereto an oath that they will, to the best of their ability, discharge the duties of the office of attorneys and counselors at law. Whoever willfully and deliberately violates his constitutional oath by depriving or attempting to deprive any citizen of this state of any right guaranteed by the Bill of Rights of our state Constitution or by the federal Constitution, and whoever, as such attorney and counselor at law, willfully and deliberately violates his oath as attorney, by refusing to discharge his duty to any client in relation to trust funds placed in his hands, and deliberately refuses to turn over to or pay out for his client trust funds received by him for the payment of |