to sell is imposed upon appellee. A mere desire or intention on his part to sell, or an oral request by him upon the appellant to purchase, is not equivalent to a sale. There is no allegation in the bill that appellee made a sale of the property. Hence the condition which would give appellant the right to purchase has not happened. Moreover, the option did not, apart from the price, specify the terms and conditions of sale, and is too indefinite to be specifically enforced. Stein v. McKinney, supra; Edwards v. Brown, 308 Ill. 350, 139 N. E. 618; Brach v. Matteson, 298 Ill. 387, 131 N. E. 804; Moore v. Machinery Sales Co., 297 Ill. 564, 131 N. E. 141; Gronowski v. Jozefowicz, 291 Ill. 266, 126 N. E. 108; Elwell v. Hicks, supra; Kopp v. Reiter, 146 Ill. 437, 34 N. E. 942, 22 L. R. A. 273, 37 Am. St. Rep. 156; McConnell v. Brillhart, 17 Ill. 354, 65 Am. Dec. 661. The superior court properly sustained the demurrer to the amended bill of complaint, and its decree will be affirmed. Decree affirmed. (315 III. 385) BLITT et al. v. DARNELL et al. (No. 15646.) (Supreme Court of Illinois. Feb. 17, 1925.) 1. Wills 157-Testatrix's relations to beneficiary held not to invalidate will for undue influence. That testatrix's relations to grandnephew, whom she had reared as her foster son, were such that he might have influenced her, and that he benefited largely by her will, held insufficient to establish undue influence; the will not being unreasonable or unnatural. 2. Wills 157-Will held not void for undue influence of testatrix's companion and attendant. Will bequeathing $4.000 to female companion and attendant accompanying testatrix to attorney's office, where will was executed, in ordinary course of duties, held not void for undue influence, in absence of evidence that legatee was present when will was discussed or executed. due influence arises, casting on him burden of showing that will was freely and voluntarily executed by testator. 6. Wills 163(2)-Employment of attorney for estate of testatrix's deceased husband to draw will in favor of coexecutor held not to raise presumption of undue influence by attorney. Employment of attorney for estate of testatrix's deceased husband to draw her will held not to raise presumption of undue influence by him, as having been induced by chief beneficiary, who was coexecutor of such estate. 7. Wills 166(1)-Delay in settlement of estate held not to show purpose of influencing decedent's widow to make will. That estate of testatrix's deceased husband was not finally settled, or final payment made to testatrix, until after execution of her will, held not to show purpose of influencing her to will property to one of executors of husband's estate. 8. Witnesses 140 (2)-Interest disqualifying witness must be such that pecuniary gain or loss will result from judgment or decree. Interest rendering witness incompetent must be such that pecuniary gain or loss will come to him directly as immediate result of judgment or decree. 9. Witnesses 140 (2)-Attorney for executor held not disqualified to testify for him by interest in litigation. That another administrator, who might employ another attorney, might be appointed, if will were set aside, or that executor might lose some property and be less able to pay fees, or have less occasion to employ attorney, does not give his attorney such interest in litigation as to make him incompetent to testify for executor. 10. Wills 400-Decree dismissing contest on verdict in favor of mental competency of testatrix will be affirmed, in absence of substantial error on trial. Where evidence amply sustains verdict that clusions from opinions expressed are conflicttestatrix was mentally competent though coning, decree dismissing contest must be affirmed. unless record shows substantial error on trial. 11. Wills 303 (2)-Execution and competency of testatrix are established prima facie by certificate of sworn declaration of witnesses. Introduction of will and certificate as to sworn declaration of two credible witnesses, required by Wills Act, § 2, prima facie establishes testator's competency and execution of will, though jury are required by section 7 to give certificate only such weight as they think it deserves. 12. Wills 303 (2)-Subscribing witnesses' oath as to belief that testatrix was competent when oath was taken does not make prima facie case in favor of will. 5. Wills 163(4)-Presumption of undue influence by confidant preparing or participating in preparation and execution of will. Where one occupying confidential relation to testator prepares, or participates in prepara- as to their belief that testatrix was of sound tion and execution, of will, presumption of un-mind and memory when oath was taken, in Certificate of subscribing witnesses' oath (146 N.E.) stead of when will was executed several months before, does not establish prima facie case in favor of will under Wills Act, § 7. 13. Wills 294-Competency of attesting witnesses is tested as of date of execution of will. The competency of attesting witnesses required by Wills Act, § 2, is tested as of time will was executed, not the time of probate, and witnesses competent at time of execution are not rendered incompetent because of subsequent incompetency, nor will witnesses, incompetent at date of execution, be permitted to support probate because of subsequent removal of cause of incompetency. 14. Wills 303 (2)-Witnesses must swear to belief, at time of attesting will, that testator was of sound mind and memory, though not necessarily in words of statute. Subscribing witnesses need not make declaration on oath in words of statute (Wills Act, § 2), but must declare things required thereby, including belief, at time of attesting will, that testator was of sound mind and memory. 15. Wills 52(I)-Burden on contestants to prove testator's insanity. Burden is on contestants to prove testator's Insanity. 16. Wills 400-Instruction on burden of proof held not harmful, though based on erroneous instruction as to sufficiency of affidavits to make prima facie case. Instruction that, if prima facie case was made, burden was on contestants to show that testatrix was of unsound mind when will was executed, held not harmful to contestants, though based on erroneous instruction that will, with subscribing witnesses' affidavit as to their belief, when oath was made, that testatrix was of sound mind, made prima facie case, where such case was made by testimony of witnesses themselves. 17. Evidence 474(4)-When nonexperts may testify as to mental capacity stated. Nonexpert witnesses may testify as to mental capacity only when shown to have had sufficient acquaintance with alleged incompetent and sufficient opportunity to judge of his mental capacity, and their opinions should be excluded until they have related facts and circumstances affording reasonable ground for belief. 18. Evidence 568 (2)-Opinions as to mental capacity weighed, with facts on which based, according to witness' intelligence, acquaintance with alleged incompetent, means of observation, etc. Admissibility of witness' opinion as to mental capacity is question of law for court, and opinions admitted must be considered and weighed by jury, in connection with facts given by witnesses as basis of opinions, according to witness' intelligence, capacity to form opinion, acquaintance with alleged incompetent, means of observation, and veracity. 19. Trial 199-Instruction held erroneous as submitting legal question whether witness⚫es stated facts justifying formation of opinion as to testatrix's mental capacity. Instruction that, if any witness testified as to testatrix's mental capacity without stating facts warranting conclusion, jury was not bound to accept opinion and should not do so. if they believed witness was mistaken or without knowledge of facts warranting opinion, held erroneous as capable of construction as submitting legal question whether witnesses stated facts justifying formation of opinion. 20. Wills 400-Instruction submitting legal question whether witnesses stated facts justifying formation of opinion held not reversible error. Instruction, capable of construction as submitting to jury legal question whether witnesses stated facts justifying formation of opinion as to testatrix's mental capacity, held not ground for reversal of decree dismissing contest, in view of whole record. 21. Wills 292-Source of testatrix's title held immaterial in will contest. Source of testatrix's title held immaterial in will contest for mental incapacity and undue influence. 22. Wills 53(1)-Will of testatrix's deceased husband and records in connection with his estate held inadmissible to show that testatrix did not appreciate amount or value of her property. In will contest for mental incapacity and undue influence, will of testatrix's deceased husband, inventory and other records in connection with his estate, and records of suit for partition of his lands, held inadmissible to show that testatrix did not appreciate amount or value of her property when she executed will.. 23. Wills 164(4)-Exclusion of will of testatrix's deceased husband, and records offered to show confidential, relation between testatrix and beneficiary held not error where such relation was otherwise established. In will contest for undue influence exclusion of will of testatrix's deceased husband, inventory and other records in connection with his estate, and records of suit for partition of his lands, offered to show beneficiary's confidential relation to testatrix, held not error, where such relation was established by other evidence. 24. Witnesses 140 (9)-Husband of testatrix's heir held incompetent to testify for contestants. Husband of testatrix's heir, who died before trial of will contest to which she was party, leaving the husband and two children, who were all made parties, was interested in estate, and hence incompetent to testify for contestants. 25. Witnesses 236(1)—Question if witness knew whether alleged incompetent testatrix had mortgage on home, which she threatened to take away from owner, held permissible. In will contest for mental incapacity, it was proper for contestants to ask witness if he For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes knew whether testatrix had mortgage on home | real and personal. It does not appear from of one, from whom other witnesses had testified that she said she would take it away if it were not for his wife. 26. Wills 400-Sustaining objection to question, answer to which would have been cumulative only, not prejudicial error. Error in sustaining objection to question asked witness by will contestants as to whether he knew if testatrix had mortgage on home, which she told other witnesses she would take away from owner, if it were not for his wife, held not prejudicial, where there was no serious dispute as to fact that she had no such mortgage. the evidence that she ever had any other property except 80 acres of land given to her by her father upon her marriage and from $1,500 to $2,000 which she received from her father's estate. Clarence Darnell, who was a grandnephew, and John C. Britt, who was a nephew of Mrs. Burt, the latter being one of the contestants in this suit, were executors of the will of John H. Burt, and on April 12, 1910, Mrs. Burt executed a written instrument whereby she empowered Darnell, as her attorney, “to sign all legal papers, of any and all description," for her. She intrusted to him, after her husband's death, Appeal from Circuit Court, Tazewell Coun- the active control and management of her ty; C. V. Miles, Judge. DUNN, J. Mary H. Burt, who lived in the village of Armington, in Tazewell county, executed her will on March 10, 1916, and died on June 24, 1921, at the age of 87 years. She was the owner of more than 1,000 acres of land in the neighborhood of Armington and of other real estate and personal property, all of the value of $329,676.19, as shown by the inventory of her estate, all of which, after the payment of her debts and funeral expenses, she devised to Clarence Darnell, subject to the payment of 25 specific legacies, amounting to $23,700, 23 of which were to relatives and friends, one to the Christian Church of Armington, and one to the trustees of the cemetery of that church. She had no children, and her heirs were her brother, R. M. Britt, and 23 descendants of her deceased brothers and sisters. Her brother, a nephew, and four nieces filed a bill to contest the will in the circuit court of Tazewell county on the ground of the mental incapacity of the testatrix and of undue influence exercised by Darnell and Sarah A. Glodfelter. The issue whether the the writing produced was the last will and testament of the deceased was submitted to a jury, on motion of the proponents the question of undue influence was withdrawn from the consideration of the jury, a verdict was returned in favor of the will, and a decree was entered dismissing the bill, from which the complainants appealed. John H. Burt, the husband of the testatrix. died in 1909, leaving a will, which she renounced, and a large estate, from which she received a large amount of property, both affairs and property. She had taken him from his mother, her niece, when he was a baby, into her own home, and she and her husband had reared him as their own child. Mrs. Burt in devising all her property to him referred to him in her will as her foster son, and she was in the habit of calling him her son and treated him as such. Sarah A. Glodfelter, to whom the will required Darnell to pay $4,000, was not related to the testatrix, but for four years before the execution of the will had been her companion, living in her home, in constant attendance upon her, caring for all her wants, driving her car when she rode, constantly with her at home and abroad. Their relations were very close and continued to Mrs. Burt's death. These are the two beneficiaries by reason of whose improper restraint and undue influence the bill charges the testatrix executed her will, and it is insisted that the court erred in withdrawing the question of undue influence from the consideration of the jury. [1] After the death of John H. Burt, Judge W. R. Curran was the attorney for the executors of his will, and in a few weeks after her husband's death Mrs. Burt executed a will which was prepared by Judge Curran. She afterwards executed other wills. In the forenoon of the day the present will was executed, Mrs. Burt came with Miss Glodfelter to the office of Curran & Dempsey, in Pekin, where the will was prepared by Judge Curran. Miss Glodfelter remained in the outer office while Mrs. Burt went into the inner office with Judge Curran. While she was there Ralph Dempsey, Judge Curran's partner, went into Judge Curran's room and found Mrs. Burt there in consultation with Judge Curran. Dempsey was porn and grew up in Armington and had known Mrs. Burt well all his life and their relations were friendly. He learned, during the forenoon, of the object of the visit and in a general way of the purport of her will. After her conference with Judge Curran, Mrs. Burt and Miss Glodfelter left the offices and Judge Curran dictated the will. In the afternoon they returned, and Dempsey and Rob (146 N.E.) ination too much range to infer that an attorney drawing a will for one client in favor of another client has exercised an undue influence over the testator in favor of the other client. Such a thing might be possible, but it is so far outside the range of ordinary experience that no presumption of the kind can arise. In connection with this argument it is to be noted that Judge Curran, as attorney for the executors of the will of John H. Burt, represented J. C. Britt, one of the executors, as well as Darnell, the other. Another far-fetched inference is that from the facts that the estate of John H. Burt was not finally settled until after the execution of the will, and that the final payment of more than $17,000 was made to Mrs. Burt on March 30, twenty days after the execution of the will, therefore the payment was delayed until that time for the purpose of influencing her to make the will. Aside from the inherent fallacy of such argument are the facts that the final account showing this balance due Mrs. Burt was filed in the county court a month before the will was executed, and that J. C. Britt, who was one of the executors, was one of Mrs. Burt's heirs and was disinherited by the will. There was no evidence of undue influence which justified the submission of that issue to the jury. ert A. Guy, who was a deputy county clerk, | a far-fetched conclusion. It gives the imagwere called into the private office of Judge Curran to witness the execution of the will. Guy also had lived at Armington and had known Mrs. Burt all his life and had once before witnessed the execution of a will by her. The will was then executed by Mrs. Burt and witnessed by Dempsey and Guy in the manner required by the statute. There was no evidence whatever of any restraint or undue influence operating upon Mrs. Burt to induce her to execute this will. Her relations to Darnell were such that no doubt he might have influenced her, but there is an entire lack of evidence of any effort to do so. From their relation it would naturally be expected that he would benefit largely by her will. Had he been her only son, he would have received her whole estate without any will, and her words and actions indicated that she regarded him as her son. Under these circumstances, the will cannot be regarded as unreasonable or unnatural. [2] Miss Glodfelter was not present when the will was being discussed or was in preparation or was executed. She accompanied Mrs. Burt in the ordinary course of her duties, as she was in the habit of doing whenever Mrs. Burt went from home. There is no evidence that she knew anything about the provision made for her in the will, that she knew of Mrs. Burt's intention to make her will, or that the subject was mentioned between them. In consideration of her faithful service and close relationship the provision made for her cannot be regarded as excessive. ever [3-5] The existence of a confidential relation is not a legal obstacle to a testator's making a will in favor of the person in whom confidence is reposed. No presumption arises from the existence of a fiduciary relation that a will in favor of the fiduciary was executed as the result of the fiduciary's undue influence. A testator may exercise his own will in favor of a fiduciary as well as in favor of other persons or objects. Where a person who occupies a confidential relation to the testator prepares the will or participates in the preparation and execution of it, a presumption of undue influence arises which casts upon him the burden of showing that the execution of the will was the free and voluntary act of the testator and was not produced by the efforts of the person holding the confidential relation. Nothing of the kind appears in the evidence here. It is not shown that Darnell had anything to do with the execution of the will. [6, 7] Judge Curran was the attorney for the estate of John H. Burt, and it is argued that his employment by Mrs. Burt, as her attorney also, to draw her will was induced by Darnell, and such employment would raise the presumption of undue influence operating on Mrs. Burt at the time of the execution of her will. There is no basis for such 146 N.E.-33 [8,9] After the examination and crossexamination of Ralph Dempsey, counsel for the appellants moved to strike out all his testimony for the reason that his examination showed that he had such a direct interest in the outcome of the litigation as to make him an incompetent witness against the heirs who were contesting the will. His testimony showed that he was the attorney of Clarence Darnell, as executor of Mrs. Burt's will, in the probate proceedings in the Tazewell county court; that he was not his attorney in this suit but was his personal general attorney, legal adviser, and counsel; that he had taken considerable interest in this suit, had interviewed witnesses in company with the appellees' attorney, introducing witnesses to him and sometimes seeing certain witnesses Darnell wanted interviewed when Darnell's attorney in the case was unable to do so, and reported to the attorney. He had advised Darnell on matters connected with the case and suggested counsel to be retained. At the trial he had conferred with counsel in regard to the dismissal of a prospective juror about whom he expressed his judgment, and it is argued that he had a pecuniary interest in the case which rendered him incompetent as a witness. The interest which will render a witness incompetent must be such an interest in the judgment or decree that a pecuniary gain or loss will come to him directly as the immediate result of the judgment or decree. Stephens v. Hoffman, 263 Ill. 197, 104 N. E. 1090; Bellman v. Epstein, 279 Ill. 34, 116 N. E. 707. The evidence showed nothing of the kind. It is possible if the will should be set aside another than Darnell might be appointed administrator and might employ another attorney, but that is too remote and indirect an interest to render the attorney for the executor incompetent to testify in his behalf. The fact that his client, as a result of the litigation, may lose some property and be less able to pay him fees, or have less occasion to employ him, does not give him such an interest in the litigation as to make him incompetent to testify. that testatrix was of unsound mind at the time of the execution of said purported will. "(10) The court instructs the jury that it is charged in contestants' bill that at the time of be the last will and testament of Mary H. Burt, the execution of the instrument purporting to she was of unsound mind and memory and by reason thereof unable to make a valid will. You are further instructed in this case that if the proponents have made a prima facie case as explained in these instructions, then for the contestants to maintain the issues successfully the contestants must establish mental incapacity by a preponderance or greater weight of all the evidence, and unless you believe that the [10] No motion to direct the verdict on the bill as to mental incapacity by a preponderance contestants have proven the averments of their issue of mental incapacity of the testatrix of all the evidence in the case, then you should was made by either party, and it is not con- find by your verdict that the instrument in tended that this issue was not properly sub-question is the last will and testament of Mary mitted to the jury, though counsel for each | H. Burt." side have made a detailed analysis of the evidence and claim that it preponderates in fa[11, 12] These instructions informed the vor of the side which they respectively rep- jury that the affidavit of the subscribing witresent. The evidence is conflicting, not so nesses in connection with the will makes a much with reference to the facts testified to, prima facie case in favor of the validity of for there is little contradiction in the testi- the will, and that the burden of proof was mony, as with reference to the conclusions to on the appellants to establish, by a preponbe drawn from the opinions expressed. The derance of the evidence, that the testatrix appellees had the greater number of wit- was of unsound mind at the time of the exnesses, including farmers, tenants, neigh-ecution of the will. By section 7 of the act bors, friends, bankers, a minister, a lawyer, in regard to wills (Smith-Hurd Rev. St. a grain dealer, laborers, contractors, carpenters, doctors, and nurses who testified to their acquaintance with the testatrix, their opportunities of observing her during her lifetime, after her husband's death, and to their opinion that she was of sound mind and memory. On the other hand, the appellants claim that the witnesses whom they produced, though fewer than half in number, were better qualified than those produced by the appellees to form an opinion, and that their testimony is of greater weight because of their better and fuller opportunities for obseryation of the testatrix and knowledge of her words and actions. There can be no question but that the evidence amply sustains the verdict, and the decree must be affirmed unless the record shows substantial error occurring on the trial. It is contended that the court erred in giving instructions 8, 9, and 10 asked by the appellees, as follows: "(8) The court instructs the jury that the paper in evidence purporting to be the last will and testament of Mary H. Burt, together with the affidavit of the two subscribing witnesses in evidence, make a prima facie case in favor of the validity of the said paper as the last will and testament of Mary H. Burt, deceased. 1923, c. 148) it is provided that in the trials of all contests of the validity of wills "the oath of the subscribing witnesses taken, reduced to writing and filed in court at the time of the first probate, properly certified to, shall be admitted as evidence and have such weight as the jury shall think it may deserve." When this certificate covering the points prescribed by section 2 has been introduced, the competency of a testator and the execution of a will have been prima facie established, as has been many times held. Holloway v. Galloway, 51 Ill. 159; Purdy v. Hall, 134 Ill. 298, 25 N. E. 645; Harp v. Parr, 168 Ill. 459, 48 N. E. 113; Waters v. Waters, 222 Ill. 26, 78 N. E. 1, 113 Am. St. Rep. 359; Grace v. Grace, 270 Ill. 558, 110 N. E. 784; Walker v. Struthers, 273 Ill. 387, 112 N. E. 961. It is true that the jury are required to give this certificate only such weight as they shall think it may deserve. The express words of the statute so provide. Rigg v. Wilton, 13 Ill. 15, 54 Am. Dec. 419. If the two credible witnesses required by section 2, however, make the declaration on oath required by that section, the section itself declares that this shall be sufficient proof of the execution of the will to admit it to record. In the absence of contradictory evidence, the jury could not disregard the oath of the witnesses, and the introduction of the will and the certificate would therefore make "(9) The court instructs the jury that if you believe from the evidence that a prima facie case as explained in these instructions has been made in favor of the validity of the will, a prima facie case. It was error, however, then the contestants will fail in their proofs to give the instruction, for the reason that unless they establish by a preponderance or the certificate of the oath of the witnesses greater weight of all the evidence in this case | did not cover the points described by section |