the widow of the deceased son of the testator, Robert I. Drury, has since married a man named Beeken, and is the appellee, Lily A. Beeken. Letters testamentary were issued to the executor, J. Murray Eaton.

The testator was married the first time between 1850 and 1860, and the appellants, Mary J. Huggins and William W. Drury, and the deceased son, Robert I. Drury, were the children of said first wife, who died in 1866. Richard Drury lived as a widower on his homestead with his three children until February 24, 1875, when he married the appellee, Mary Drury. His daughter, Mary, was married on January 1, 1875, to the appellant, Thomas W. Huggins.

By the terms of his will the testator, first, gave to his widow the life use of all his personal estate; the life use of his homestead and the basement-barn and land therewith, being about four acres; one-third of the net rents, issues and profits of all his remaining real estate in Whiteside county during her life; also, the north one-half of ten acres of land in Lake county, Indiana, absolutely in her own right. The will provides that, upon the death or re-marriage of the widow, his personal property and said rents, issues and profits with the increase, if any, shall pass and become vested in seven equal shares; one share thereof in his son, William W. Drury; one share in his daughter, Mary J. Huggins, and the other five shares shall become vested in his said grandchildren, Lydon R., Myrtle A., Walter C. and William Burton Drury, and Bessie May Drury (now Dinneen), one share to each; second, the testator gave to his son, William W. Drury, in fee simple the south half of said ten acres in Lake county, Indiana, and two notes held by the testator against his son, William, both dated June 1, 1886, and due in one year's time, one for $1000.00, and the other for $924.55, each drawing interest at six per cent; the principal and interest, due on said notes at the date of the making of the will, being more than $2700.00, and, at the date of the death

of the testator, being about $3300.00; third, he gave to his grandson, Lydon R. Drury, the life use of about one hundred and thirty-one acres of land, and a timber tract of about six acres, expressing a desire that said Lydon should aid and support his mother, Lily Drury, so long as she remained the unmarried widow of Robert I. Drury, his deceased son; fourth, he gave to his granddaughter, Myrtle A. Drury, the life use of one tract of about sixtyone acres and of one-half of another tract of about sev. enty-seven acres; the life use of the other one-half of said seventy-seven acre tract to his daughter, Mary J. Huggins; fifth, he gave to his grandson, Walter C. Drury, the life use of forty acres, charged with the payment of one-half of the rents, issues and profits to his daughter, Mary J. Huggins, during her lifetime; sixth, he gave to his grandchildren, Walter C. Drury, Bessie May Drury (now Dinneen), and William Burton Drury, the life use of one hundred and twenty acres; seventh, he directed the cancellation and destruction of all notes and accounts, payable to him from the estate of his deceased son, Robert I. Drury.

CHARLES C. MCMAHON, JAMES E. MCPHERRAN, and MCCLAMONT & RAMSAY, for appellants:

In the contest of a will, if the evidence introduced by the contestants was such that it would, in the absence of any rebutting testimony on the part of the proponents, have justified a verdict against the will, it is error for the court to instruct the jury to return a verdict for the proponents. Purdy v. Hall, 134 Ill. 307; Moyer v. Swygart, 125 id. 267; Collar v. Patterson, 137 id. 407; Keys v. Kimmel, 57 N. E. Rep. 851.

It is not within the province of the court, on a motion to direct a verdict, to weigh the evidence and ascertain where the preponderance is. The function of the court is limited strictly to determining whether there is or is not evidence legally tending to prove the fact affirmed,

leaving out of view the effect of all modifying or countervailing evidence. Frazer v. Howe, 106 Ill. 563; Smith v. Gillett, 50 id. 291.

In regard to the action of the court in taking the case from the jury and directing a verdict against the contestants, the same rule must be applied that obtains in respect to trials in suits at law. Purdy v. Hall, 134 Ill. 307.

Whenever a testator's mind is so deranged that he makes his will under influence of an insane delusion the will is void. 11 Am. & Eng. Ency. of Law, (old ed.) 154.

Delusions and hallucinations constitute that species. of mental unsoundness which is marked by persistent and incorrigible beliefs that things which exist only in the imagination of the patient are real. People v. Hubert, 63 Am. St. Rep. 72; 16 Am. & Eng. Ency. of Law, (2d ed.) 563; 9 id. 195.

L. T. STOCKING, for appellees:

When the evidence given at the trial, with all inferences that could justifiably be drawn from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury but may direct a verdict for the defendant. Phillips v. Dickerson, 85 Ill. 11; Frazer v. Howe, 106 id. 567; Simmons v. Railroad Co. 110 id. 340; Bartelott v. Bank, 119 id. 259.

On the contest of a will, as in this case, upon the question of testamentary capacity, the law throws the burden of proving the sanity of the testator, in the first instance, on the proponents; but after a prima facie case has been made out by the testimony of the subscribing witnesses, the legal presumption is in favor of sanity, and the burden of the whole case rests upon the contestants. Wilbur v. Wilbur, 129 Ill. 392; Carpenter v. Calvert, 83 id. 62.

An insane delusion is defined "to consist of a belief of facts which no rational person would have believed;" "a belief in things as realities which exist only in the

imagination of the individual;" "a pertinacious adherence to some delusive idea in opposition to evidence of its falsity;" "a belief of some fact without any reasonable evidence of its truth." Schneider v. Manning, 121 Ill. 376; Wharton & Stille on Medical Jur. (3d ed.) sec. 34.

A testator of sound mind has a right to leave his estate to whom he pleases. Freeman v. Easly, 117 Ill. 213; Schneider v. Manning, 121 id. 385.

Where the proof shows facts evincing sufficient capacity in a testator to transact his ordinary business about the time of making the will, the opinions of witnesses as to a want of capacity are entitled to but little weight on the question. Brown v. Riggin, 94 Ill. 568; Carpenter v. Calvert, 83 id. 62.

A man's mind, his temper, his disposition and his feelings may be in an improper state without impairing his legal capacity to make a will. Yoe v. McCord, 74 Ill. 40.

A man may become prejudiced against some of his children without proper foundation; and because he may make unjust remarks against them,-remarks not warranted by the facts,-it does not follow he had insane delusions or that he is devoid of testamentary capacity. Schneider v. Manning, 121 Ill. 383.

Mr. JUSTICE MAGRUDER delivered the opinion of the court:

The only question presented by the record in this case is, whether or not the court erred in withdrawing from the consideration of the jury all the evidence offered by the appellants here, the contestants below, and instructing the jury to find a verdict for the appellees here, the proponents of the will upon the trial below.

It is substantially conceded by the appellants in this case, that the deceased testator, Richard Drury, was, at the time of making his will, a man of sound mind and memory, so far as his capacity to transact ordinary business is concerned; but it is claimed, that he was laboring

under an insane delusion as to his son, the appellant, William W. Drury. Indeed, all the testimony taken on both sides, consisting of the evidence of fifty-six witnesses, shows that the testator was in the possession of testamentary capacity at the time of the making of his will, unless he was affected with an insane delusion as to his son, William. The only question of fact in the case, then, is as to the alleged existence and manifestation of such an insane delusion on the part of the testator.

In a contest to set aside a will, begun by the filing of a bill in chancery for that purpose, after the proponents of the will have put in evidence the testimony of the subscribing witnesses thereto, the competency of the testator to make the will, and the fact, that the same was signed and attested in the manner required by the statute, are prima facie established; and the burden of proof then rests upon the contestants, seeking to impeach the validity of the will. The contradictory testimony, introduced by the contestants, must not only be sufficient to overcome or neutralize the effect of the affirmative testimony, given in favor of the will by the attesting witnesses, but must also be sufficient to overcome or neutralize the presumption, arising from the general rule of law, that all men are presumed to be sane until the contrary is proven. In other words, "the law throws the weight of the legal presumption in favor of sanity into the scale in favor of the proponents." (Purdy v. Hall, 134 Ill. 298; Graybeal v. Gardner, 146 id. 337; Bevelot v. Lestrade, 153 id. 625; Taylor v. Cox, 153 id. 220; Harp v. Parr, 168 id. 459; Johnson v. Johnson, 187 id. 86). In the case at bar, a prima facie case was made in favor of the validity of the will by the introduction of the will itself, and of the certificate thereto, and of the testimony of the subscribing witnesses thereto.

The statute provides that, in case of a proceeding to contest a will by bill in chancery, the issue as to the validity of the will shall be tried by a jury. Therefore,