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lose by the direct legal operation and effect of the judgment or that the record would be legal evidence for or against him in some other action. The interest which disqualifies a witness must be some legal, certain and immediate interest, however minute, either in the event of the cause itself or in the record as an instrument of evidence in a subsequent action to which he is a party against him or in support of his own claims. The interest of the witness must be in the event of the cause itself and not in the question to be decided. (Greenleaf on Evidence, secs. 386390.) If the interest is direct, certain and vested, the amount or extent of the interest is immaterial. It may be liability for costs, (Smith v. Smith, 168 Ill. 488,) or in the result of a litigation by a corporation in which the witness is a stockholder, (Thrasher v. Pike County Railroad Co. 25 Ill. 393; Consolidated Ice Machine Co. v. Keifer, 134 id. 481; Albers Commission Co. v. Sessel, 193 id. 153; Ittner Brick Co. v. Ashby, 198 id. 562; Scott v. O'ConnorCouch, 271 id. 395;) or in the commissions which an executor would receive if a will is sustained. (Godfrey v. Phillips, 209 Ill. 584; Jones v. Abbott, 235 id. 220.) The statute does not regard the amount or degree of interest, but it must be direct and certain. (Curtenius v. Wheeler, 5 Gilm. 462; Feitl v. Chicago City Railway Co. 211 Ill. 279; Ackman v. Potter, 239 id. 578.) The interest is direct and disqualifies if the witness will gain or lose as a direct result of the suit, as in a case to enforce the alleged dedication of a street, which, if successful, would directly inure to the benefit of the witness by enhancing the value of his or her property. (Schneider v. Sulzer, 212 Ill. 87.) It is evident that Mayer would neither gain nor lose by the event of the suit. If the defense was successful Mayer would gain nothing and would lose nothing, because the defendant, Epstein, would have no claim against him, and the view of counsel that the judgment would confirm his title to $1000 cash in his hands cannot be adopted. He

had no fund in his hands which was the subject of litigation or subject to be disposed of by the judgment. If the plaintiff succeeded and obtained judgment against Epstein the judgment would have no direct and immediate operation or effect regarding any claim of Epstein against Mayer for the money paid. In case of the defeat of Epstein in the suit any alleged claim he might have against Mayer could only be determined in a subsequent action. If the plaintiff should be successful in overcoming the defense of payment and the defendant should sue Mayer and offer the record in evidence, it would be offered against a stranger to the suit in which it was rendered. If it is material and competent to prove the existence of a judgment, the record is legitimate evidence between strangers and its effect is to prove the fact of the judgment. In this case the record would be evidence that the suit was brought upon the promissory note in question; that certain defenses were interposed, among which was the defense that the note was paid, satisfied and discharged by a payment to Mayer under an agreement with Bellman, and that there was judgment for the defendant against the plaintiff. Mayer not being a party to the suit in which the judgment was rendered he could not be bound by it, and the record could not be introduced in the subsequent action to prove or disprove the alleged fact that Bellman gave Mayer authority to receive payment of the note in satisfaction of a claim of Mayer against him or that the defense interposed in this suit was well-founded or not. (Greenleaf on Evidence, sec. 404; Curtenius v. Wheeler, supra; Feitl v. Chicago City Railway Co. supra.) The judgment in the suit to which Mayer was not a party not being an adjudication of his liability in a possible subsequent action of the defendant against him, the record would not be legal evidence for or against him and he was a competent witness.

The judgment of the Appellate Court is affirmed.
Judgment affirmed.

(No. 11329.—Reversed and remanded.)

HARRIET M. TETER et al. Plaintiffs in Error, vs. DANIEL R. SPOONER et al. Defendants in Error.

Opinion filed June 21, 1917..

I. WILLS whether hardening of the arteries affected testator's mind must be proved in each particular case. In a proceeding to contest a will on the ground of mental incapacity, the question whether arterio sclerosis, or hardening of the arteries, had affected the mind of the testator is not merely one of the tendency of that disease but the proof must also show its effect in the particular case.

2. SAME―a non-expert witness must state facts upon which he bases his opinion as to mental condition of testator. The opinion of a non-expert witness that a testator is not of sound mind and memory is entitled to no weight where he states no facts or circumstances which may induce a reasonable belief of unsoundness of mind, and before giving such opinion the witness must detail the facts upon which he bases his opinion.

3. SAME-witness should give no opinion as to whether testator was easily influenced. No matter what previous foundation has been laid as to the knowledge of the witness as to the characteristics of the testator, the witness should not be called upon to express an opinion as to whether the testator was of a positive character or whether he was easily influenced but should merely state the facts, leaving the jury to draw the conclusions.

4. SAME-transcript of evidence of attesting witnesses, properly certified, is admissible on trial of will contest. The original transcript of the evidence of the attesting witnesses before the probate court, certified as correct by the probate judge, can be introduced in evidence on the trial of a will contest case, whether such evidence was taken before the probate judge in open court or before an assistant.

5. SAME-what facts require some proof to rebut inference of undue influence. Where the testator's confidential attorney, who prepared the will, was appointed trustee of a large fund and with broad powers thereover, both in respect to the management and investment of the fund and the matter of compensation for his services, some proof is required to rebut the presumption of undue influence arising from such facts. (Gum v. Reep, 275 Ill. 503, followed.)

6. PRACTICE-defendant does not waive his right to take exceptions by introducing evidence he has objected to. After the court

has overruled a defendant's objections to a certain class of evidence the defendant may introduce evidence of the same class to meet that of the plaintiff without waiving his right to urge his exceptions on appeal.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

FREDERICK A. BANGS, and RICHARD H. COLBY, (M. J. MITCHELL, and J. R. FILES, of counsel,) for plaintiffs in

error.

GIDEON S. THOMPSON, for certain defendants in error.
E. I. FRANKHAUSER, for defendant in error Ella Janson.
Mr. CHIEF JUSTICE CARTER delivered the opinion of the

court:

This bill was filed to test the validity of the will of William H. Godair, deceased, on the grounds of testamentary incapacity and undue influence. The jury found in favor of the proponents, holding the will valid, and the circuit. court of Cook county entered judgment dismissing the bill in conformity with the verdict. This writ of error was then sued out.

William H. Godair executed his will October 26, 1911, disposing of over a half million of dollars, of which a threeninth's share was given to his wife, Harriet A. Godair. At the time he executed the will the only other member of his family was his son, Arthur. This son died before the testator. There was an explanatory statement in the will that the son, Arthur, had already received previously from the testator, real estate, securities, stocks and notes specifically enumerated, amounting to $242,350, and that the testator thought Arthur had been liberally provided for. To his secretary, Daniel R. Spooner, he bequeathed $5000. About two-thirds of his estate he devised and bequeathed in trust for the founding of an old people's home in Cook

county. The will set out at length and in considerable detail his plan for said home and how the money was to be used for that purpose. Although there is no specific time stated in the will for the carrying out of this project, it seems plain from what is stated therein that he intended to have it carried out by his trustees as soon as practicable. He named his secretary, Daniel R. Spooner, and his lawyer, Adolph L. Benner, and the survivor of them, as executors and trustees, requiring them to give only their individual bonds for the faithful performance of their duties. On January 3, 1913, he executed a codicil, the material change therein, other than a change in the disposition of certain jewelry, being that the home could be located in any place in Illinois instead of in Cook county, only. The plaintiffs in error here, who were contestants in the court below, are the nieces and nephews of the testator, being the children of his half-brother, George Teter.

The testimony of the attesting witnesses, Gustav N. Beerly and Edward Moore, to the will, and Gustav E. Beerly, Walter C. Hildebrand and Charles E. Morris to the codicil, taken on the probate of the will, was introduced in evidence, containing their statements that they believed the testator of sound mind and disposing memory at the time he signed such respective instruments. Many witnesses, over fifty in number, testified on behalf of the proponents, among them men engaged in banking, real estate or other business. Most of them testified to the facts, either as to their business relations or conversations and observations arising from their acquaintance. Some of them had been in partnership for some length of time with the testator. Practically all of them, after so testifying to the facts, stated that they believed the testator was of sound mind and memory. Some few of them had noticed a decline in his physical condition before his death but none of them testified that they had noticed any marked change in his mental condition. With many of these witnesses he had talked

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