the question of the preponderance of the evidence or the credibility of the witnesses when considering this question. (Rack v. Chicago City Railway Co. 173 Ill. 289.) Under this rule a brief reference to the testimony will show that the court below improperly directed the verdict.

James Lonergan, a witness on behalf of appellant, testified that he had been acquainted with the testator a great number of years and had many conversations with him during the year 1906; that the will was executed in August, 1906; that the testator was then about eighty years of age; that in the winter of 1906 the testator went to Hot Springs and remained there several weeks; that the witness saw him frequently while in Hot Springs; that he was being wheeled about in an invalid chair; that his mind was unsound and his memory very poor; that he was weak in body and mind, old and childish, and incapable of transacting the ordinary business affairs of life; that he talked with him at Hot Springs about people whom he had known well in Dixon and the testator was unable to remember such persons. This witness testified that it was difficult to make the testator understand what you were talking about.

James Geer testified that he had been acquainted with the testator since 1860 up to the time of his death, and that he saw him once or twice every week during the last year of his life; that he was suffering from erysipelas in one of his legs and that he had suffered an injury by being thrown from a buggy in a runaway. He testified that the testator was very thin and emaciated when he went to Hot Springs and worse when he returned; that he was bad off both in body and mind, and that in his opinion the testator was insane, or "very close to it," in 1906.

The witnesses for appellant, Gregory, Godfrey, Buzzard and others, who knew the testator more or less intimately and had an opportunity to observe his physical and mental condition, expressed the opinion that he was so feeble in body and mind that he was wholly unable to un

derstand ordinary business transactions. None of the witnesses for appellant were present on the day the will was executed, and none of them could swear, from personal observation, what the condition of the testator's mind was at that particular time. The testator died in 1908, and the evidence shows that he never recovered from the diseases from which he was suffering in 1906, but gradually grew worse until he died. In addition to the evidence for appellant, some of the witnesses for appellees made admissions, on cross-examination, that tended to show that the mind of the testator was to some extent impaired. Nelson A. Ankeny, a witness for appellees, testified, among other things, that the latter part of 1906 he noticed that the testator was getting more feeble and weaker, both physically and mentally. When asked whether the testator was of sound mind and memory he said that he could not say as to that; that part of the time he would act queer after he got back from Hot Springs.

In referring to this evidence we do so merely for the purpose of showing that this case should have been submitted to a jury, and not for the purpose of intimating any opinion as to how this question should be determined. It is not our purpose to embarrass another trial of this case by anything that has been said with reference to the evidence.

For the error in directing a verdict and dismissing the bill the decree of the circuit court is reversed and the cause remanded for a trial de novo upon the issue involved. Reversed and remanded.

INDEX.

ABSTRACTS OF TITLE.

amendment of 1907 to section 18 of Torrens law, relat-
ing to admission of abstracts of title, construed as be-
ing valid....

ACCOMMODATION PAPER.

when note and mortgage deposited as collateral security
are not mere accommodation paper......

ACCOUNTING.

PAGE.

597

468

when freehold is not involved in a proceeding to have a
deed declared a mortgage and for an accounting..... 430
heirs may be required to account for rent during time
they have wrongfully deprived a surviving husband or
wife of exclusive possession of homestead.....

ACTIONS AND DEFENSES.

432

Statute of Frauds cannot be interposed in equity to ac-
complish a fraud-when court of equity will not listen
to defense of Statute of Frauds but will grant relief.. 34
when verbal contract should be specifically enforced.... 35
judgment void for want of jurisdiction of the subject mat-
ter is open to collateral attack-the test in determining
whether court had jurisdiction of subject matter..... 54
when judgment awarding mandamus against trustees of
police pension fund is binding upon persons interested
in such fund as future pensioners.

54

court of equity is not bound by the limitations applicable

to actions at law but may restrict or enlarge them, ac-
cording to the particular circumstances.

60

when complainant is not barred from asserting rights in
land against devisees of a person who had agreed to
hold the title for complainant...

бо

when telegraph company's failure to deliver telegram is
the proximate cause of insurance company's loss from
non-cancellation of fire policy before the fire.....

84

ACTIONS AND DEFENSES.—Continued.

PAGE.

when judgment in ejectment is res judicata, not only as
to the title to the land beneath a dam, but also as to the
ownership of the dam itself......

when leave to file information in quo warranto attacking
the validity of township high school election is prop-
erly denied.....
defendant in prosecution for libel cannot show that he did
not mean what he said-defendant has the burden of
proving truth of published article.....
when bill attacking will cannot be maintained as a bill to
remove a cloud from title, but is, in effect, a bill to con-
test a will............

124

177

221

243

right to contest a will in chancery is purely statutory... 243
section 7 of Wills act, authorizing contest of will in chan-
cery, applies to all wills upon which letters of adminis-
tration are authorized to be issued.....

244

269

a bill will lie to contest a foreign will, an authenticated
copy of which has been filed with the clerk of the pro-
bate court, as provided in section 2 of Wills act...... 244
a bill to contest a will is a direct attack on the probate.. 244
the doctrine of res judicata is not limited to questions
actually decided, but includes all matters properly in-
volved which might have been raised and decided.... 269
when dismissal of bill to establish title in complainant to
land held in brother's name is res judicata of subse-
quent bill for substantially the same relief......
what does not destroy force of decree as res judicata... 269
rules of common law pleading apply generally to man-
damus suits-petition must set forth all material facts
on which the petitioner relies.....
when mandamus petition to compel city to remove ob-
structions in street is insufficient.....
general doctrine of res judicata stated-what essential to
render judgment res judicata of cause of action...... 340
what not essential to application of doctrine of res judi-
cata-party sought to be bound by judgment must have
been a party to suit or in privity with a party........ 340
what facts sufficient to require proof that a former suit
against county clerk to compel him to extend taxes at
certain rate was contested in good faith.......
when tax-payers are not bound by mandamus judgment
against county clerk requiring him to extend taxes at
a certain rate.....

......

333

333

340

one contesting election is not limited to mistakes and er-
rors alleged in the petition...

341

388

ACTIONS AND DEFENSES.-Continued.

........

PAGE.

414

484

502

502

under section 13 of Practice act, suit against partnership
whose members are non-residents of county may be be-
gun by serving process on an agent......
when validity of ordinance is res judicata—when equity
will not grant relief against judgment at law...
general rule as to right of drawee of bill to recover if
the endorsement is forged-when bank does not derive
title through forged endorsement...
490
proceeding by a county for escheated property must be
prosecuted in a court of law and not by bill in equity.. 500
when a defendant is properly required to specifically per-
form contract for sale of land................
when evidence as to complainant's understanding of pro-
vision of contract is competent-when defendant should
be required to specifically perform....
grantee's failure to support grantor must be substantial
and not caused by grantor's fault, in order to justify
court of equity in setting aside deed.......
act of 1905, requiring notice of personal injury to be filed
in office of city or village attorney, construed........ 522
city or village attorney must be a licensed attorney hav-
ing an office or place of business....
deed made in consideration of support will not be set aside
if grantee has substantially performed his contract... 535
legality of proceedings by which additional territory is
acquired by municipal corporation can be inquired into
only by direct proceeding of quo warranto.....
equity will not interfere with city's discretionary powers
over streets unless such discretion is abused.... ... 615
equity will not enjoin a track elevation improvement be-
cause complainant sustains a special injury... .... 615

ADMINISTRATION.-See EXECUTORS.

AFFIDAVITS.

when affidavits of voters are admissible, in an election
contest, to show how voters understood and marked an
ambiguous ballot.....

AGENCY.-See PRINCIPAL AND AGENT.

APPEALS AND ERRORS.

510

522

591

176

municipal court of Chicago, in fourth-class cases, cannot
extend time for filing statement or stenographic report
after thirty days from judgment, even by stipulation.. 27