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where, in a case contesting a will, the jury are instructed to find a verdict in favor of the proponents of the will, and against the contestants thereof, such action can only be justified by an application of the same rule, which obtains in respect to trials at law. Accordingly, in Purdy v. Hall, supra, we said (p. 303): “The rule in actions at law is, that, when the evidence, given at the trial with all the 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.

It is manifest, then, that, if the evidence introduced by appellant was such that it would, in the absence of any rebutting testimony on the part of appellees, have justified a verdict in her favor, then the court erred in instructing the jury to return the verdict they did. And it is equally plain, that, if the reverse of this proposition be true, then there was no error in the action of the court."

The question, then, is whether the evidence, introduced by the present appellants, the contestants in this case, was such that it would, in the absence of any rebutting testimony on the part of appellees, have justified a verdict in favor of the appellants. Undoubtedly, cases may exist where a person may be able to transact some business, and yet be incapable of making a will on account of an insane delusion.

"Insane delusion consists in the belief of facts which no rational person would have believed. * Unreasonable prejudice against relatives is not ordinarily a ground for invalidating a will; but a will may be set aside where the testator's aversion is the result of an insane delusion, and his conduct cannot be explained on any other ground." (Schneider v. Manning, 121 Ill. 376; Nicewander v. Nicewander, 151 id. 156). Was the will of the testator, Richard Drury, the offspring of such an insane delusion that the claims of his son, William W. Drury, and

his daughter, Mary J. Huggins, to his favorable recollection at the moment of making the will, were "pretermitted ?" (Roe v. Taylor, 45 Ill. 485). While it is contended that the conduct of the testator is such as to have indicated the existence of hostile feelings on his part towards his son, William, it is not claimed that his feelings were not kindly towards his daughter, Mary. On the contrary, the testimony, without contradiction, shows that he was very fond of his daughter, Mary. The alleged ground, upon which the alleged insane delusion in regard to the . son is claimed to have influenced the inaking of the provisions of the will, which relate to the daughter, is that the daughter had no children, and the testator was afraid that what he left to his daughter might in some way go to his son, William. It cannot be contended that either the son, William, or the daughter, Mary, was disinherited under the influence of any delusion, because the will makes them devisees; and the injustice, said to have been done them, is merely the fact that the property devised to them was not of as much value as that devised to his grandchildren and his wife.

After a careful consideration of the testimony in the case, we do not think that the evidence of an alleged insane delusion in the mind of the testator, Richard Drury, given at the trial, with all the inferences that can justifiably be drawn from it, was sufficient to support a verdict for the contestants in this case.

There is testimony, tending to show that Richard Drury made statements derogatory to the character of his son, William, and was guilty on several occasions of violent conduct towards his son; but the evidence discloses the fact that he was a man of violent temper, and, while his statements and his conduct may have been manifestations of this temper, yet it cannot be said that they amount to what the law requires to constitute an insane delusion. The statements and conduct, attributed to him, do not indicate “a belief of facts which no rational per

son would have believed," or "a belief in things as realities which exist only in the imagination of the individual," or "a pertinacious adherence to some delusive idea in opposition to plain evidence of its falsity," or "a belief of some fact without any reasonable evidence of its truth." (Schneider v. Manning, 121 Ill. 376; Wharton & Stille's Med. Jur.–3d ed.-sec. 34). “Where the testator's aversion is the result of a morbid delusion, and the testator's conduct cannot be explained on any other ground, the will will not be sustained." (11 Am. & Eng. Ency. of Law,-1st ed.—154).

There is nothing in the conduct of the testator, as disclosed by the evidence in this case, which cannot be explained by the temper of the father and the acts or conduct of the son. It is not necessary to resort to the theory of morbid delusion in order to explain any of the statements or acts of this testator. As we said in Schneider v. Manning, supra: “A man may become prejudiced against some of his children, and that, too, without proper foundation; and, because he may make unjust remarks against them,-remarks not warranted by the facts,-it does not follow that he has insane delusions, or that he is devoid of testamentary capacity. If such was the rule, but few wills would be able to stand the test where an unequal distribution of property has been made by a testator among children. A man has the right to dispose of his property by will in such manner as he may desire, and the fact, that he may give more to one child than another, does not affect the validity of a will, or prove that the testator is incompetent to make a will."

Many of the acts, which are spoken of by the witnesses as indicating the hostility of the testator towards his son, William, happened when he was between the ages of six and eighteen, and more than twenty years before the making of the will in 1893. The first act occurred, when William was six years of age, and upon an occasion when his father, the testator, was doing the "threshing"

upon his farm; the boy had brought some eggs, which the men, "threshing" in the field, made away with by throwing them at each other; this seemed to have made the testator angry, and he struck his son with a pitchfork he had in his band. Two years after, one of the witnesses says that the testator "switched” his son, William; it appears that he had broken a window glass, and was punished therefor. Some five years thereafter, one of the witnesses states that, at one time, the testator threw a board or club at his son while "threshing" was going on, but did not hit him. One or two other occasions are mentioned when the testator, and his son, William, and his son-in-law, Huggins, were cleaning grain, or "threshing" grain, upon which the testator threw a shovel and a wagon-stick at his son, William. But it does not appear that the son was hit by either of the articles so thrown at him, and it did appear, that the boy had been guilty of running away, and of failing to do the work, assigned to him, in such a way as to suit his father. Other instances are mentioned of violent conduct on the part of the testator towards his son, which it is not necessary here to specify. They were merely acts of punishment, inflicted by a parent upon a son who did not act in accordance with the wishes or orders of the parent. They fall far short of establishing the charge of insane delusion.

It is also claimed that on several occasions the testator remarked that William was not his son. In Petefish v. Becker, 176 Ill. 448, we said (p. 454): “If the testator utterly without cause or reason, and without expressing distrust of the fidelity of his wife, doubted the paternity of his son, and from that cause alone disinherited him when he was one of the natural objects of his bounty, it might well be said that he did not then know who were the natural objects of his bounty; and if he was in such condition of mind that he did not know the actual objects of his bounty, and such condition caused him to make a will he would not have otherwise made, then he was not

of sound and disposing mind.” We do not think that the remarks upon this subject, attributed by the witnesses to the testator, indicate any distrust on his part of the fidel. ity of his first wife, or any doubt as to the paternity of his son, William. William had proved to be a financial failure. The evidence tends to show, that his father bad purchased a farm for him and given a note for the purchase money, and that William had sold the farm and gone to Kansas to live, and there had met with financial reverses. The evidence also shows, that William left his wife and children, and that he and his wife were divorced, and that his children came back to his father to be supported by the latter. The evidence also tends to show that the testator was fond of his son, Robert, and that Robert had gone to Kansas at the solicitation of his brother William, and had there died. His death was a source of much grief to the testator. In view of all these circumstances, the testator remarked, upon a number of occasions, that William was not his son, meaning there. by, as we construe the evidence, that his conduct was so opposed to the ideas of his father as to what his conduct ought to be, that he was not a son or boy of such a man as his father. The meaning of his expressions was that William's conduct was such that he was not worthy to be the testator's son, and not that the testator suspected in any way that his son was a bastard.

Without entering into any further discussion of the testimony, we are of the opinion that it does not tend to establish such an insane delusion in the mind of the testator in regard to his son, William, as that the jury would have been warranted in concluding that the will in this case was the product of such insane delusion.

Accordingly, we are of the opinion that the court below committed no error in instructing the jury to find for the proponents of the will. The decree of the circuit court is affirmed.

Decree affirmed.

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