general issue and two special pleas were filed on behalf of the defendant, but demurrer being sustained to the special pleas, a trial by jury was had on the plea of not guilty alone. The verdict was for the plaintiff, assessing her damages at three thousand seven hundred dollars, on which 538 judgment was regularly entered. The defendant appealed to the appellate court for the third district, where he, by his counsel, insisted that the circuit court erred in overruling a demurrer to the declaration and in sustaining demurrer to the special pleas; also in the admission and rejection of evidence and the giving and refusing of instructions. Each of these grounds of reversal was overruled and a judgment of affirmance entered, to reverse which this writ of error has been sued out.

The grounds of reversal in this court are stated by counsel to be: 1. In holding the declaration stated a cause of action; and 2. In holding that the plaintiff could recover damages for loss of consortium. In fact, the only question here raised is whether a wife, in this state, has a right of action against a third party for alienating the affections of her husband. Incidentally, it is claimed that the plaintiff is barred of her right of action in this case, even if otherwise entitled to maintain it, by a contract between her husband and herself, entered into after the separation. That contract in no sense waived any right of ac tion against the defendant for the loss here sued for, and we deem it unnecessary to add anything on that branch of the case to what has been said by the appellate court in its opinion. We also concur in the view of that court, as expressed in its opinion, on the principal question in the case; but as there is some diversity of opinion on the subject, and the case being one of first impression in this court, it is thought proper to give it further consideration.

The authorities uniformly hold that a husband has a right of action at common law for alienating the affections of his wife or enticing her away from him; but the weight of authority, at least in a number of cases decided, holds that the wife cannot maintain a similar action for the loss of the af fections or society of her husband. This discrimination against the wife has its origin in the ancient common-law doctrine that the husband and wife 539 are one, that one being the husband and the wife's rights merged in him. That idea has, however, been exploded by the enlightenment of the present age and by legislation.

One of the difficulties which some of the courts find in giving the wife the right to sue in such a case is, that she could only bring the action by joining her husband with her as a party plaintiff. It will be unnecessary to inquire as to the soundness of that decision, it being, as we think, now clearly moved the disability of the wife to sue, vesting in her separate settled, if not universally held, that where a statute has rerights in property, she may, on the same grounds and with the same right as her husband, recover for loss of the affections of her husband, against one who has wrongfully deprived her of them. In an extended note to Clow v. Chapman, 46 Am. St. Rep. 474, it is said: "It has, therefore, been held by state courts other than those of Maine and Wisconsin, that a wife may, without joining her husband, maintain an action to recover damages for the alienation of his affections, and the consequent loss of his society, assistance, and support, if, under the statutes of the state under which she prosecutes her action, Ishe is given power to sue for personal wrongs without joining her husband": Citing a long list of authorities.

Section 1 of chapter 68 of our statutes provides that a married woman may in all cases sue and be sued without joining her husband with her, to the same extent as if she were unmarried. Few, if any, state legislatures in this country have gone further to secure to a wife all of her separate rights without interference on the part of the husband than has the leg

islature of this

State.

is used: "To entice or corrupt the mind and affections of one's consort is a civil wrong, for which the offender is liable to the loss of assistance, but the loss of consortium of the husband injured husband or wife. The gist of the action is not the tion 143, page 171, and Cooley on Torts, page 227, the doctrine Society, and aid." In Schouler on Husband and Wife, sec

In Bigelow on Torts, 153, this language

or wife, under

540

is announced

no reason wife.

which term are included the person's affections,

why such an action could not be maintained by the

that, except for the fact of coverture, there is

Upon what

affections

of

reasoning it could be held that a loss of the a husband is less real and substantial than the

loss of the affections of a wife we cannot perceive. We entertain no doubt that by the clear weight of both reason and right of recovery for such a loss as the husband. Under this

wife has, under our statute, precisely the same

Am St. Rep., Vol. LXXVIII-20

view of the law, every material controverted fact being found against the plaintiff in error, the judgment of the appellate court must be affirmed.

ALIENATION OF HUSBAND'S AFFECTIONS.—A MARRIED WOMAN can maintain an action against a third person for the alienation of her husband's affections: Reed v. Reed, 6 Ind. App 317, 51 Am. St. Rep. 310; Price v. Price, 91 Iowa, 693, 51 Am. St. Rep. 360; and monographic note to Clow v. Chapman, 46 Am. St. Rep. 472-478, discussing the question.

WILLS-ESTOPPEL TO CONTEST-RETURN OF BENEFITS.-A legatee under a will who accepts a legacy in ignorance of his rights in the premises may, upon the discovery of such rights, and upon the return or offer to return what he has received under the will, proceed to contest its validity and to assert his rights in the estate under the law.

WILLS-CONTEST-FINDINGS OF TRIAL COURT CONCLUSIVE.—The credibility of witnesses and the probative force of the facts as to testamentary incapacity in a contest of a will are for the determination of the trial court, and if it appears that there was legal evidence to support such court's findings, the question is not open to further consideration on appeal.

WILLS CONTEST-FINDINGS OF JURY.-In an action contesting the validity of a will, the court may call a jury, and may accept or adopt its findings in whole or in part, or it may ignore them and upon independent consideration of the evidence make findings of its own. If the latter course is pursued and judgment rendered accordingly, the errors of the jury become immaterial.

EVIDENCE.-HYPOTHETICAL QUESTIONS may be based upon any assumption of facts which the testimony tends to prove, according to the theory of the examining counsel.

INSANE DELUSION MAY EXIST, although the belief entertained is not a physical impossibility. If, however, such belief is entertained against all evidence and probability, and after argument to the contrary, it affords ground for the inference that the person entertaining it labors under an insane delusion.

O. C. Phillips, W. Dill, and Waggener, Horton & Orr, for the plaintiff in error.

W. C. Hook, J. H. Atwood, and J. A. Reed, for the defendants in error.

16 JOHNSTON, J. On the third day of July, 1894, James Medill died in Leavenworth, having made a will on the 12th of the previous month devising to his family an estate of the estimated value of eighty thousand dollars. He gave to his daughter, Nana Medill, the home in Leavenworth and the furniture therein, and directed that fifteen thousand dollars of mortgages and securities be set aside for her use, the income of which should be paid to her semi-annually during her life, the fund to be managed by the son, Sherman Medill, who was made executor. The day before his death a codicil to the will was executed by him, adding two thousand dollars to the fund set aside for Nana. The will provided that at her death the trust fund should go to the heirs of her body, if any, and if there were none, that it should be paid to the heirs of Sherman Medill. The will also set apart five thousand dollars, the income of which should be paid to Fairy M. Hollingsworth, the child of a deceased daughter of the testator, the management of which was also placed in Sherman Medill, and it was provided that if her marriage should be unsatisfactory to him, or she should die, the fund or property should go absolutely to and become the property of Sherman Medill. The sum of three thousand dollars was devised to a son of Sherman Medill, and all the residue of the estate was devised absolutely to Sherman Medill. The will was probated on July 6, 1894, and in the succeeding month seventeen thousand dollars in value 17 of securities was set apart for the use of Nana, and was approved and accepted by her.

On September 5, 1895, Nana brought this action, alleging that her father was not of a sound and disposing mind when the will and codicil were executed, and that in the execution he was subjected to undue and improper influences by Sherman Medill, to whom most of the estate was devised; and for these reasons she asked that the will be set aside. Fairy M. Hollingsworth appeared by her guardian, and in her answer attacked the will, alleging that when it was made the testator did not have sufficient mental capacity to execute a will, and, further, that undue influence was exerted on him. Sherman Medill denied these averments, and pleaded that Nana, having selected certain securities in pursuance of the will, and having accepted them in writing, as well as other benefits under the will, was estopped to maintain an action to contest and set it aside. A jury was called to aid the court, and on the testimony