undue influence. That rule, however, is applicable only in cases where the declarations and statements are offered for the purpose of varying or controlling the operation of the contested will, and not to those in which the will is in harmony with the declared intentions of the testator." The declarations and statements here offered had a tendency to vary or control the operation of the will of Mrs. Waters, and were not in harmony with her intentions as declared in her will.

Fourth. The proponents of the will upon the trial below asked the court to instruct the jury that "any degree of influence over another, acquired by kindness and attention, can never constitute undue influence within the meaning of the law, and although the jury may believe from the evidence that the deceased, in making her will, was influenced by any of the said defendants, still, if the jury further believe from the evidence that the influence, which was so exerted, was only such as was gained over the deceased by kindness and friendly attention to her, then such influence cannot be regarded in law as undue influence," etc. The refusal of this instruction was error, and the idea, set forth in it, is not embodied in any of the other instructions given for either party. This court has held in a number of cases that influence secured through affection is not wrongful. Thompson v. Bennett, 194 Ill. 57, 62 N. E. 321; Nicewander v. Nicewander, 151 Ill. 156, 37 N. E. 698; Francis v. Wilkinson, 147 Ill. 370. 35 N. E. 150; Burt v. Quisenberry, 132 III. 385, 24 N. E. 622. In Burt v. Quisenberry, 132 III. 399, 24 N. E. 624, we said: "No rule of law requires the parent to distribute his property among his children equally, or upon any ratable basis of relative merit. He may prefer one and cut off another, with or without a reason, or he may cut off all his children and give his property to a stranger, and the only inquiry admissible is: Was he, when doing so, of sound mind and free of the undue influence of others. Undue influence means wrongful influence. But influence secured through affection is not wrongful, and, therefore, although a deed be made to a child at his solicitation, and because of partiality induced by affection for him, it will not be undue influence. *

* The influ

ence, to render the conveyance inoperative, must be of such a nature as to deprive the grantor of his free agency." The principle thus announced applies to wills as well as deeds. Nicewander v. Nicewander, supra.

Fifth. We think that the trial court erred in giving the ninth instruction, which was given for the contestants of the will. By that instruction the jury were told "that, if they believed from the evidence in the case that Mary Waters did not read over the contents of the alleged will prior to the time of the execution thereof, and that the same was not read over to her by any other person or persons prior to the execution thereof, or that she was not at any time in

formed of any provision therein contained, or of the entire contents of said will, or that by reason of the fraud or undue influence of others she did not know the contents of any provision therein, or of the entire will, or if you further believe from the evidence that her mental condition was such that she could not intelligently understand the will at the time she executed it, you should find that the alleged will in question is not the will of Mary Waters, deceased, and you should find the issues for the complainants." So far as this instruction was predicated on the idea that the testatrix, Mrs. Waters, did not know the contents of the will, which she executed, and had not been informed of its provisions, it is not based upon any evidence in the record. The will was signed by the testatrix at about 12 o'clock on August 7, 1901. Somewhere about 10 o'clock on that morning Emma Waters and Mrs. Stockberger were present with their mother at her home, when Mrs. McGilligan called. Emma asked Mrs. McGilligan who lived in the neighborhood, if her husband, W. K. McGilligan, a justice of the peace and notary, was at home, and, upon her answering in the affirmative, she was asked to send him over because Mrs. Waters wanted to see him. McGilligan came over to the house, and the will was ready for execution at about 12 o'clock. The fair inference from all the evidence is that it was drawn there in the house by McGilligan between 10 and 12 o'clock on that morning, but, as McGilligan died before the hearing of this cause, it is impossible to know just what was the fact about the matter. The mere fact that Emma told the wife of the notary to send her husband over does not indicate that she had anything to do with dictating the terms of the will. On the contrary, the evidence shows that, when the will was signed, nobody was present in the room with Mrs. Waters except McGilligan, who drew the will, and the two witnesses who subscribed it, Byrnes and Neil. Patrick Byrnes, father of Grant Byrnes, named as executor, is the only witness who says anything about the reading of the will to the testatrix, and he says: "I don't know of my own knowledge whether or not the will was read over in that room [the room in which the testatrix was]. I was in another room." This is no evidence to the effect that the will was not read to the testatrix. Patrick Byrnes says that he first went into the room where Mrs. Waters was lying, and spoke to her about her health, and she said she was very poorly, and he further says: "I came out of the room pretty soon after that. The will was signed in her room. I was in another room when the will was signed, and the squire, the two men who signed the will, and Mrs. Waters are all whom I know were there when the will was signed. When I went into the house, Mr. McGilligan was in the next room, in the parlor where he had his papers. I do not remember whether the will was read at any

time in Mrs. Waters' presence." John Neil, one of the subscribing witnesses, says: "I was at Mrs. Water's residence the day the will was drawn. We walked into the room where she lay. She lay west of the door in the bed with her head to the south. I walked to the foot of the bed and faced her. Mr. McGilligan and Mr. Byrnes went into the room with me and were there with me. Mr. McGilligan said it was necessary for her to declare to these gentlemen that this was her last will and testament. Mrs. Mary Waters sat up in bed and said: 'Gentlemen, this is my last and only will.' Mr. William McGilligan then took the will, and walked to her bed, and put the pen in her hand, and took her hand in his, and made the marks she made on the paper. I don't know what the marks were nor what the signature he made was with her hand in his. He then took the paper, laid it on the stand at the side of the bed, east of where she was lying. Mr. Byrnes and I signed the will. She asked me how my family was, and told Mr. Byrnes she was sorry she was keeping him from his work. That was all she said while we were in the room, and we walked out. Physically she seemed weak, but was able to raise herself up without assistance, and sit up in bed."

In view of this evidence, the presumption is that she knew the contents of her will. "The law, in the absence of all evidence, will presume that a person, who executes a will or other instrument, does so with 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, 134 Ill. 298, 25 N. E. 645; Keithley v. Stafford, 126 Ill. 507, 18 N. E. 740. Here, the testatrix not only executed the will, but showed that she understood the act she was engaged in by stating to those present that the instrument before her was her last and only will, and also indicated that she was in good mental condition by asking one of the subscribing witnesses as to the health of his family, and expressing regret that she was keeping the other from his work by requiring him to act as a witness to her will. Certainly, here, under the proof thus stated, the presumption is that she knew the contents of the will, and there is no evidence tending to overcome that presumption, or to show that she did not have knowledge of the contents of the will. Instruction numbered 9, given for the contestants, was calculated to create in the minds of the jury the impression that the testatrix was ignorant of the contents of the will which she signed, and, as there was no evidence upon which to base any such instruction, it should not have been given.

Sixth. In addition to what has been said upon this branch of the case, it is to be observed that there was no allegation in the bill, which authorized the introduction of any proof to the effect that the testatrix did not know the contents of the will, and

did not read it over, or that the same was not read over to her by any other person prior to its execution. The only charges in the bill are those of unsound mind and memory, and undue influence. It is nowhere charged or alleged therein that Mrs. Waters did not know the contents of the will when she signed it, or that she did not read it, or that no other person read it to her. The appellees cannot, in such a case as this, any more than in any other equity case, be allowed to state one case in their bill and prove another case, or have the jury instructed that they can find on another case. Where a bill in chancery is filed for the purpose of setting aside the probate of a will, the complainant in such case will be allowed to impeach the prima facie case, made in favor of the validity of the will, only upon the particular grounds that are alleged in the bill. Purdy v. Hall, 134 Ill. 298, 25 N. E. 645; Carmichael v. Reed, 45 Ill. 108; Flinn v. Owen, 58 Ill. 111. In Swearingen v. Inman, 198 Ill. 255, 65 N. E. 80, upon this very subject it was said: "It is insisted that there was ground for invalidating the will in the fact that the testatrix did not know its contents when she signed it. Complainants could not have prevailed on that ground if it had been proved, because it was not alleged in the bill. They would not be allowed to have the will set aside upon grounds not alleged, or to state one case in their bill and prove another. * The claim that the testatrix did not know how she disposed of her property is neither the same as, nor consistent with, the averment that she was induced to make a particular disposition of her estate by the undue influence of her husband." The language thus used is precisely applicable to the situation in the case at bar. Consequently, the instruction was erroneous for this additional reason, besides the fact that it was not based upon any evidence in the case.

* *

grantors were in fact the sole and only heirs of C.

2. SAME-DEFECTS-AFFIDAVITS.

Such defect was not cured by an affidavit made on information and belief and without personal knowledge of the facts, nor by another affidavit in which the affiant swore to the conclusion that certain grantors in the deed to C., Jr.. were the sole and only heirs of C., deceased, without stating the facts as to who were the children of the deceased, whether or not any of them were dead, and, if so, when they died, and whether or not there were living children of the deceased children, etc.

3. ADVERSE POSSESSION HOSTILE AND EXCLUSIVE HOLDING-CLAIM OF OWNERSHIP.

Where, on objections made to an abstract of title tendered, the vendor claimed title by adverse possession, an affidavit to establish such title, which failed to show that the possession of the persons therein named, under whom the vendor claimed, was hostile or adverse, or that the same was exclusive or under a claim of ownership, was insufficient.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 65-76.] 4. EXCHANGE OF PROPERTY - ABSTRACT TITLE-ADVERSE POSSESSION-PRESUMPTION.

OF

Where a contract for the exchange of real estate required complainant to show that he had a good title to the property intended to be conveyed to defendants, within 30 days after the execution of the contract, and complainant for this purpose tendered an abstract of title which failed to show that a conveyance from certain heirs of C., a prior owner of the land, was a conveyance by all of such heirs, defendants were not bound to accept the title on the presumption that all the heirs joined in such conveyance, arising from the fact that complainant and his grantors had been in undisputed possession of the land for 53 years after the execution of such deed, as shown by the abstract. 5. SPECIFIC PERFORMANCE-TENDER OF PERFORMANCE BY PLAINTIFF.

Where, in a suit to enforce specific performance of a contract for the exchange of property, the contract required complainant to pay all the interest due to the date of the contract on a mortgage on the property to be conveyed to defendants, a payment of such interest was a prerequisite to the validity of complainant's tender of performance.

time of the transfer, the owner in fee simple of the property known as the Attica Lithia Springs Hotel, located at Attica, Ind., including about seven acres of ground, with the improvements thereon, subject only to an incumbrance of $10,000 which Jackson was to assume or guaranty, and Clark further agreed to convey to Jackson all furniture, fixtures, and other personal property in and pertaining to said hotel. The contract expressly provided that all deeds were to be passed and the negotiations to be closed within 10 days from the date of the contract, unless more time should be required by reason of defects of title, in which case 30 days from the date of the contract should be allowed for closing the transaction; that time was of the essence, and that "it is hereby further mutually agreed and understood by and between the parties hereto, and as part of the consideration of this agreement, that each party hereto is to provide for the use of the other, within 10 days from the date hereof, proper abstracts of title to the property hereby agreed by them to be conveyed or caused to be conveyed, showing good and sufficient title to the same in the grantor herein mentioned." The contract also provides that Clark shall furnish Jackson satisfactory evidence of the title to the Attica Lithia Springs Hotel property, and that all the interest on the note of the Attica Lithia Springs Company for $10,000, which is the incumbrance above referred to, shall be paid in full by Clark to the date of the contract, thus leaving Jackson to assume the payment of the principal, only.

It seems that Clark had been conducting the hotel in question, and that upon the execution of the contract he surrendered possession thereof to Jackson and took possession of the Chicago property. Clark furnished Jackson an abstract of the title to the Attica Lithia Springs Hotel realty, but the same was

Bill by Leonard J. Clark against Jefferson Jackson and others for specific performance. From a decree in favor of defendants, complainant appeals. Affirmed.

Rosenthal, Kurz & Hirschl, for appellant. Henry S. Shedd and Edward A. Dicker, for appellees.

SCOTT, C. J. On March 5, 1903, the appellant, Leonard J. Clark, and the appellee Jefferson Jackson, entered into a contract in writing and under seal, whereby Jackson agreed to convey to Clark a certain apartment building in Chicago, Ill., and Clark agreed to give Jackson his promissory notes for $70,000, payable in the manner stated in the contract and secured by a mortgage on the apartment building, and to transfer or cause to be transferred to Jackson 4,820 shares of the capital stock of the Attica Lithia Springs Company, a corporation of Attica, Ind.; said corporation to be, at the

contract required. After some attempts on the part of Clark to remedy the defect, which were deemed abortive by Jackson's attorney, Clark, on April 3, 1903, undertook to make a tender of performance, and a few days afterwards, on April 8th, filed a bill for specific performance against Jackson and his wife in the circuit court of Cook county. After Mrs. Jackson had answered the bill denying that the contract was binding upon her for the reason that she did not sign it, the complainant dismissed the bill as to her. Jackson answered the bill putting in issue the matters discussed in this opinion, and filed a cross-bill praying for an accounting as to the rental value of the Chicago property so far as occupied by Clark, and asking for a decree against Clark for that property, and that he be directed to vacate the premises. Clark answered the cross-bill and replications were filed. The cause was thereupon referred to the master in chancery, who reported that a decree of specific performance

should be granted; but the chancellor sustain. ed exceptions to the master's report as to the two points herein discussed, and dismissed the original bill for want of equity, at the same time granting the relief prayed for in the cross-bill, and Clark appealed.

The chancellor based the decree upon two propositions: That the abstract furnished by Clark to Jackson was not a sufficient compliance with the terms of the contract, and that there was no sufficient offer to pay the interest on the said incumbrance of $10,000, or tender of any definite or certain arrangement for the satisfaction thereof. While it is true that it is the decree which is brought under review by this appeal, and not the reasons upon which the same was based by the chancellor, yet it is proper to consider these reasons first, since they are most important questions, either of them, if decided adversely to Clark, necessitating the dismissal of his bill of complaint.

First. The abstract of title to the Attica Lithia Springs Hotel property furnished Jackson by Clark in March, 1903, pursuant to the requirements of the contract, showed title in John Carnagey prior to February 18, 1850, and showed a quitclaim deed of that date for lands including the premises in question, running to John Carnagey, Jr., as grantee, from a number of grantors, bearing the names of Barkley, Stewart, Evans, Higbee and Carnagey, respectively. Henry S. Shedd, Jackson's attorney, examined the abstract, and specified numerous objections thereto, among them, that it did not appear that the grantors in the deed to John Carnagey, Jr., were the only heirs at law of John Carnagey, the grantee in the preceding deed. On March 24th Charles R. Milford, of Attica, Clark's at torney, wrote to H. W. Sisson, who represented the firm of H. O. Stone & Co., of Chicago, through whom Clark was endeavoring to perfect arrangements to enable him to comply with the contract, and stated, concerning the break in the title in question, that he could not show this matter satisfactorily; that he believed he could clear it up in part, but per haps not entirely to the satisfaction of the attorneys; that a suit to quiet title might be necessary; that he had a man hunting up a person whom he thought to be a Carnagey heir, and that he might be able, if he found the man, to fix this matter to the satisfaction of Jackson's attorneys; and that he was very much surprised to find the title in this condition. Afterwards an affidavit of Homer Sewell, made on March 25th, was offered as connecting the two conveyances by showing heirship, but the affidavit expressly disavowed personal knowledge of the facts by the affiant, and the same was rejected by Jackson's attorney. Afterwards another affidavit was presented, made by Gilbert Carnagey, a man 75 years of age, who signed his name with a cross and claimed he was one of the heirs of John Carnagey, and who stated in his affidavit that certain grantors in the deed

to John Carnagey, Jr., were the sole and only heirs at law of John Carnagey, deceased. This affidavit, which was presented on April 3d, was also rejected as insufficient. There was some conversation concerning a bill to quiet title and the extension of the time for the performance of the contract in order that the title might be quieted; Jackson's attorney saying that he had no authority in the premises, but would speak to Jackson on the subject. Afterwards, and on the same day, Clark made a tender of certain papers intended to show an offer to perform the contract on his part. The time for the performance of the contract expired on April 4th, and the bill of complaint in this cause was filed on April 8th.

There can be no doubt that the abstract furnished by Clark to Jackson, as first presented, without any proof that the persons who conveyed as the heirs of John Carnagey were in fact his only heirs, did not show satisfactory title to the Attica Lithia Springs Hotel property. The question whether any defect in an abstract can be cured by affidavits does not arise in this case, as the contract did not require that an abstract of the title to the Attica Lithia Springs Hotel realty should be furnished. The provision in reference to showing that title was that Clark should furnish "satisfactory evidence" of the title, and Clark elected so to do by furnishing an abstract and affidavits. The defect in the abstract occasioned by its failure to show who were the heirs of John Carnagey was not cured by the affidavit of Homer Sewell, which was made on information and belief and without personal knowledge of the facts. Neither was the affidavit of Gilbert Carnagey sufficient, for the reason that he swears to a conclusion, and not to the facts, as to the heirs of John Carnagey. If under this contract it could properly be shown by affidavits attached to the abstract that certain persons, grantors in one deed, are the sole and only heirs at law of a preceding grantee in a chain of title, such affidavits should set forth the facts with the same certainty and precision with which such facts must be proved in court in a contest over the title. The affidavits presented with this abstract were ex parte statements, and those making them were not subjected to cross-examination, and hence the statements therein contained should have left nothing to conjecture.

As against objection, a witness would not be permitted to testify in a court of justice that certain persons are the heirs of a deceased person, but would be required to state who are the children of the decedent, and whether or not any of his children are dead, and, if so, when they died, and whether or not there are living children of such deceased children, and so on, until all material facts should be thus developed, and the court would be in a position to determine whether or not the persons in question are the sole

and only heirs at law of the decedent. 3 Elliott on Evidence, § 2193; 4 Ency. of Evidence, pp. 576, 577, and notes; Skinner v. Fulton, 39 Ill. 484; 2 Greenleaf on Evidence, § 354. In 3 Elliott on Evidence (section 2193) it is said: "In proof of heirship, as in other cases, it is not competent for witnesses to state conclusions. It is not within the province of the witness to state that the claimant is an heir of a certain decedent, but he may state the relationship of the parties. According to Mr. Greenleaf it is necessary to establish two propositions: (1) The relationship of the claimant through a common ancestry; (2) that there are no descendants from the same ancestry who are entitled to share in the estate. It is not sufficient to prove that the claimants are the children and heirs of the decedent, nor is it sufficient to prove that they are the only children who survive the ancestor. It would only be sufficient to prove that the claimants were the only children that the ancestor ever had, or that if he had other children they had died leaving no children or husbands or wives, and upon such proof the law would declare these claimants to be the only heirs."

The danger of accepting the conclusion of an affiant in such case may be readily illustrated from the record before us. Gilbert Carnagey, who made the affidavit, was at the time 75 years of age, of a morose disposition, difficult of approach, especially by strangers, and unable to write his own name. He might have known much or little concerning the Indiana law of descent, but it is probable that his information on this subject was by no means complete. He testified before the master in chancery within less than two years after making the affidavit, and counsel for appellant, in answering the statement that sundry depositions were needed on the trial itself to show the heirship, state that there was a long interval between the times when Gilbert Carnagey made his affidavit and gave his deposition, and then add: "It may well be that at the latter time this aged man's memory of details (or of mere evidentiary facts) was such that corroborative depositions were deemed advisable." This is the very reason why the statment of the ultimate fact or conclusion by an affiant or witness is not permitted. If the witness is not able to state the evidentiary facts, he is certainly disqualified from stating the conclusion. And, lest he may not be able to draw the proper conclusion, the law will not permit him to draw it at all, but will require him to state the evidentiary facts, and leave it for the court, learned in the law, to draw the conclusion.

Appellant's counsel cite Physio-Medical College of Indiana v. Wilkinson, 108 Ind. 314, 9 N. E. 167, to the effect that the averment that plaintiffs are the only heirs of an intestate is not the statement of a conclusion

of law, but is "equivalent to a statement of the fact that the appellees stood in such relation of kinship to Margaret Wilkinson as that, at her death, the law of descent cast her estate upon them." But this decision relates to the sufficiency of the complaint after verdict and upon assignment of error in the Supreme Court, and not to the question under consideration in this case. The Wilkinson Case was tried by jury, and a judgment was rendered upon the verdict. It was assigned for error in the Supreme Court that the complaint did not state sufficient facts to constitute a cause of action. Undoubtedly the allegation that the plaintiffs were the only heirs was good after verdict. The Supreme Court, in passing upon the question, says: "If the appellant had deemed it important that the degree of consanguinity or affinity relatively occupied by the deceased and the plaintiffs should appear more in detail, a motion to make the complaint more specific might with propriety have been entertained." The Wilkinson Case is not in conflict with the views expressed in this opinion.

But it is urged that the insufficiency of the Carnagey affidavit in this respect was waived, or that Jackson is in some way estopped to insist upon this point. H. W. Sisson testified that Henry S. Shedd, Jackson's attorney, said to Charles R. Milford, Clark's attorney, when the Sewell affidavit was presented, that he did not think it was competent, as it was not sworn to by the affiant as of his own knowledge. Milford testified to the same effect. On the other hand, Shedd testified that he told Sisson, after examining the Sewell affidavit, that he would not accept it, and that he did not believe an affidavit would cure the objection, but was of the opinion that a proceeding to quiet the title would be necessary. Shedd further testified as follows: That when Sisson and Milford called on the next day he told them that the Sewell affidavit was wholly insufficient, that it did not show personal knowledge of the facts, and that he would not accept that affidavit; that Milford thereupon said that there was a grandson of John Carnagey in the country some distance from Attica, who was a hermit, and of morose disposition and difficult of approach by strangers, for which reasons he thought he would be unable to get this man's affidavit; that he (Shedd) stated that a suit to quiet the title would be the only thing that would meet the requirements; that Milford did not say that he would endeavor to get another affidavit; that he (Shedd), having noticed the name of another than Carnagey in the Sewell affidavit, asked Milford who this person was, and that Milford said he understood him to be an illegitimate child; that he (Shedd) then said that there must be some irregularities in the family, to which Milford answered that there were, apparently; and that he (Shedd) then said that that