WILLS. WHETHER A TRUST IS CREATED. Continued.
gift or grant is not sufficient to establish a trust. If the raising and
education of the children had been required out of the rents and
profits, the rule might be different. Zimmer et al. v. Sennott, 505.
LEGACY AS A CHARGE.
8. As a personal charge, and a charge upon the estate. If a legacy
is made a personal charge on the devisee, an acceptance of the de-
vise imposes a personal liability on the devisee, who will take the
estate devised as a purchaser and in fee; but if the legacy is charged
on the estate devised, the devisee does not take as a purchaser, but
as beneficial devisee. Ibid. 505.
9. As bearing upon the construction of it-misrecital, as to other
parts of the will, and as to instruments outside of the will. Where a
will recites that the testator has devised something in another part
of the will when in fact he has not done so, such recital will be con-
strued to show a purpose and intention of the testator to devise by
the will, and the courts will carry out such intention, and thus give
the erroneous recital the effect of a devise by implication. Hunt
v. Evans et al. 496.
10. But where the recital in the will is to the effect that the tes-
tator has, by some instrument other than the will, given to a certain
person named in the recital, property, when in fact he has not done
so, such erroneous recital will not disclose a purpose and intent to
give by the will, and resort must be had to the other instrument,
and not to the will. Ibid. 496.
11. A testator, after making certain devises, recited in his will
that he had conveyed in trust to W. and P., as trustees, certain
property, described in the trust deed, for the purpose and upon the
trusts mentioned in such deed of trust, reserving the rents, etc.,
during his life, and upon his death the residue to be vested in a
board of directors with intent to establish, under the statute, a
public library for the use of the inhabitants of the city of S., upon
complying with the directions and trusts named in said deed of
trust. The will and deed of trust were both prepared, but the will
only was executed: Held, that the recital in the will in respect of
the creation of a trust could not be construed as a devise of any-
thing, or as a declaration of a trust for the benefit of a public library.
Ibid. 496.
12. Disputing recitals-devisees and heirs not estopped. The devi-
sees and heirs of a testator are not estopped by the recitals in his
will that he had conveyed certain property to trustees, in trust for
a certain purpose, from denying the execution of any such deed.
The rule in Gorham v. Dodge, 122 Ill. 528, has no application to such
a case. Ibid. 496.
13. As part of a will. A will and a conveyance in trust were pre-
pared in blank at the same time, and the will recited the fact of the
execution of the deed, in trust, etc. The will alone was executed:
Held, that the blank deed of trust was not made a part of the will
by the recital in the latter. Hunt v. Evans et al. 496.
14. One instrument can not be engrafted into another, and be-
come a part thereof, unless the language used manifests an inten-
tion that such shall be done. But an instrument not executed or in
existence when another is made can not form a part of the latter.
Ibid. 496.
WIDOW'S RIGHTS AND INTERESTS.
15. Of her election. The term "election" implies a choice between
different things. It is therefore impossible for a widow to make
an election under a will when it gives only that which without it
would pass to her by operation of law. Ward v. Ward et al. 417.
16. Declaration of acceptance-by widow-its effect. Subsequent
to the probate of a will, the widow of the testator executed a writ-
ing, to the effect that she thereby released and relinquished all her
right of homestead, dower and widow's award under the statute,
and elected to take the legacy given her by the will: Held, that
this writing was no conveyance of anything, and, being purely
voluntary, could not be enforced. Ibid. 417.
17. Renunciation by the widow-estoppel. A widow will not be
estopped from renouncing the will of her husband when the other
devisees do not appear to have been injured by her renunciation,
and where she has received nothing under the will that she would
not otherwise have taken under the law. Ibid. 417.
18. Limitation--as to time of filing the bill—jurisdictional. The
power of a court of equity to set aside the probate of a will is purely
statutory, and the jurisdiction can only be exercised in the mode
and under the limitations prescribed by the statute. The time
limited for the filing of a bill to contest a will is jurisdictional,
and if the jurisdictional facts are not alleged, a demurrer will lie.
Wheeler et al. v. Wheeler et al. 522.
19. Limitation-saving clause-in respect of "persons absent from
the State" the statute construed. The saving clause in section 7 of
the Statute of Wills, relating to the limitation of the time for con-
testing wills by bill in chancery, in favor of infants, femes covert
and persons insane, applies equally to such persons, whether resi-
dents or non-residents of this State; but the provision "saving to
persons absent from the State," applies to those only who are sub-
ject to the jurisdiction of the State, and have gone out of that
WILLS. CONTEST OF WILL. Continued.
jurisdiction for temporary purposes. It does not apply to persons
who have never been residents of the State. Wheeler et al. v. Wheeler
et al. 522.
20. Former decision. The decision in White v. Hight, 1 Scam.
204, extending the saving clause to non-residents, is no longer the
rule in this State. Ibid. 522.
21. Testator's knowledge of contents - presumption— degree of
evidence. In the absence of evidence, it will be presumed that a
person who executes a will or other instrument does so with a
knowledge of its contents; but this is a presumption which will
readily yield to evidence tending to show that such was not the fact.
Purdy v. Hall et al. 298.
22. Where a will has been written, or procured to be written, by
a person largely benefited by it, that is a circumstance to excite
stricter scrutiny, and require stricter proof of volition and capacity.
In such case, the proof must satisfy the court or jury that the testa-
tor has not been imposed upon, but knew what he was doing, and
the disposition he was making of his property, when he made the
will. Ibid. 298.
23. Burden of proof. On the contest of a will by bill in chan-
cery, the trial is de novo, and the burden of proof is primarily upon
the proponents of the will, and they are required to show that the
will was in writing, and signed by the testator, or by some person
in his presence and by his direction, and was attested in his pres-
ence by at least two witnesses, and that the testator was of sound
mind and memory at the time of signing or acknowledging the
same. Ibid. 298.
24. The statute makes the certificate of the oaths of the attesting
witnesses at the probate, evidence on the hearing upon the bill;
and when such evidence is admitted covering the points prescribed
by section 2 of the Statute of Wills, it will prima facie establish the
will, and the burden will then be shifted to the complainants con-
testing the same. Ibid. 298.
25. Evidence-copy of will. On the trial of an issue whether an
instrument of writing is the last will of a deceased person, it is
error for the court to allow the defendants to introduce in evidence
a certified copy of the will. The original should be produced, or
its absence properly accounted for. Ibid. 298.
1. Religious test-abolished. Section 3, article 2, of the State
constitution, has abrogated the rule which obtained prior to 1870,
restricting the competency of witnesses on account of defect of
49-134 ILL.
WITNESSES. COMPETENCY. Continued.
religious belief, and there is no longer any test of qualification in
respect to religious belief or want of the same which affects the
competency of citizens to testify as witnesses in courts of justice.
Hronek v. The People, 139.
2. Former decision. The case of Central Military Tract Railroad
Co. v. Rockafellow, 17 Ill. 541, on the competency of a witness de-
pending upon his religious belief, overruled Noble v. The People,
Beecher's Breese, 54; and section 3, article 2, of the constitution,
abrogated the former rule that had obtained in this State, and
there is now no religious test as to the competency of any witness.
Ibid. 139.
3. Stockholder-in behalf of corporation. In an action under the
statute, by the administrator of a deceased person against an incor-
porated company, to recover for negligence causing the death of
the intestate, a stockholder in the company, being interested in
the result of the litigation, is incompetent to testify as a witness
in behalf of the defendant. Consolidated Ice Machine Co. et al. v.
Keifer, 481.
4. Elements to be considered-detectives-police officers. On the
trial of one for crime, there is no error in refusing an instruction
asked by the defense, that the evidence of private detectives and
the police "should be received with a large degree of caution." All
the circumstances connected with a witness, or that may tend to
affect his credibility or bias his judgment, are competent to be
shown, and considered by the jury in determining the weight and
credit to be given to his testimony. Hronek v. The People, 139.
IMPEACHING A WITNESS.
5. Laying the foundation. There is no error in refusing proof
that a witness offered another witness a sum of money to testify to
certain facts after he was informed that the supposed facts were
not true, where no proper foundation has been laid in the exam-
ination of the witness thus sought to be impeached. Aneals et al.
V. The People, 401.
6. On the trial of parties for an assault with intent to murder,
they called the foreman of the grand jury which found the bill, and
asked him if a certain witness for the prosecution did not testify
before that body to certain facts, and make statements named.
There was no foundation laid for the evidence by calling the wit-
ness' attention to the time and place and the facts: Held, that the
court properly refused the impeaching evidence sought to be given.
Ibid. 401.
7. It is not proper to call a witness to contradict or impeach an-
other witness in respect of matters occurring out of court, as, by
WITNESSES. IMPEACHING A WITNESS. Continued.
showing that the latter had made some statement inconsistent with
his testimony, unless the attention of the witness is first called to
the time and place of the alleged statement, and he is afforded an
opportunity for explanation in respect thereof. Aneals et al. v. The
People, 401.
8. On proof of the previous character of persons being tried for
an assault with intent to murder, some of the witnesses said they
had read a charge of poisoning horses by one of the defendants,
which was first published after the defendants' arrest. The defend-
ants then offered to prove that such charge was published at the
instigation of H., a witness for the prosecution, which the court re-
fused to admit: Held, proper, as no foundation had been laid for
the evidence by the examination of H. Ibid. 401.
9. Showing the feeling and disposition of witness- as a test of
credibility. Where a witness testifies to a threat made by a defend-
ant against the prosecuting witness, such defendant may be asked
whether he and the witness were on friendly or speaking terms, as
tending to show the improbability of his having made the threats
to such witness. But the refusal to allow such question will not
prejudice the defendant, if he is allowed to deny making any such
statements to the witness. Ibid. 401.
10. As to matters purely collateral, when the party calls them out
on cross-examination, he is bound by the answer of the witness,
but not so in respect of matters relevant and material to the issue
being tried. The feeling and disposition of the witness toward the
party is, however, relevant and material; and on cross-examination
it is competent to test the witness in respect to his feeling, and if he
has not done acts or used expressions showing hatred or ill-will
toward the party against whom he is testifying, and if he denies
the same, to introduce contradictory evidence by way of impeach-
ment. Ibid. 401.
11. Recalling witness-to lay foundation to contradict him. Ordi-
narily the court should allow a witness to be recalled for the purpose
of laying the foundation to impeach him, by showing his statements
out of court; but when the attention of counsel has been called to
the rule, and a reasonable limit allowed to put the proper questions
to the witness, the refusal of the court to allow the witness to be
recalled is within the discretion of the trial court. Ibid. 401.
12. Testimony of witness on another occasion. In an action to
recover for the death of a person, occasioned, as alleged, by negli-
gence in the erection of certain machinery, a witness testified that
if a swivel in a hog chain had not been defective a truss would
have supported from sixty to a hundred thousand pounds. On
cross-examination the witness admitted he testified at the coroner's
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