(No. 14078.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. FRANK KRUEGER, Plaintiff in Error.

Opinion filed June 22, 1921.

CRIMINAL LAW-Parole act is not unconstitutional. The Parole act of 1917, in providing for an indeterminate sentence, does not violate section 1 of the fourteenth amendment of the constitution of the United States. (People v. Doras, 290 Ill. 188, and People v. O'Donnell, 291 id. 178, followed.)

WRIT OF ERROR to the Circuit Court of DeKalb county; the Hon. MAZZINI SLUSSER, Judge, presiding.

LESTER E. WILLIAMS, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, CASSIUS POUST, State's Attorney, and SUMNER S. ANDERSON, (L. F. MODDRY, of counsel,) for the People.

Per CURIAM: Plaintiff in error, Frank Krueger, and others, were indicted for burglary and larceny in the circuit court of DeKalb county and on a trial before a jury they were found guilty, and plaintiff in error, Krueger, was sentenced to the penitentiary for an indeterminate period of time under the Parole act approved June 21, 1917, and has sued out this writ of error for a review of that judgment.

The sole contention of the plaintiff in error is that the Parole act, in so far as it provides for an indeterminate sentence, is in violation of section 1 of the fourteenth amendment of the constitution of the United States. This court has decided otherwise in People v. Doras, 290 Ill. 188, and People v. O'Donnell, 291 id. 178.

The judgment of the circuit court of DeKalb county will be affirmed. Judgment affirmed.

(No. 13985.-Reversed and remanded.)

GUY W. LIPSCOMB et al. Appellants, vs. EDWIn G. Allen et al. Appellees.

Opinion filed June 22, 1921-Rehearing denied October 7, 1921.

I. WILLS-executor stands in fiduciary relation to widow of testator-burden of proof. In dealing with the widow's interests in the estate of a testator the executor stands in a fiduciary relation to the widow so far as he is acting as executor, and the burden is on the executor to prove by clear and convincing proof that the execution of a deed to him by the widow was the result of her deliberate, intelligent desire and for her benefit.

2. SAME―there is a presumption against validity of instrument executed between parties in a fiduciary relation. There is a presumption against the validity of the execution of an instrument where a fiduciary relation exists between the parties, and such presumption must be overcome by showing that the transaction was entered into with full knowledge of its nature and effect and that the party in the dependent situation acted independently of any advice or suggestion of the dominating personality.

3. SAME-what constitutes undue influence depends upon circumstances-fraud. What constitutes undue influence depends upon the circumstances of each case, and such influence is a species of constructive fraud, of which there can be no positive definition.

4. SAME-undue influence may be exercised by a person other than beneficiary. Undue influence means an influence which acts to the injury of the person who is swayed by it or of those whom he would, if left to himself, have benefited; and it is immaterial by whom the influence is exercised,-whether by a beneficiary or some other person.

5. SAME renunciation is effective although confirmation of will has been filed. Although a widow has filed a document confirming her husband's will, she has the right to renounce the will by filing her renunciation within the time allowed by statute.

APPEAL from the Circuit Court of Macon county; the Hon. GEORGE A. SENTEL, Judge, presiding.

FANNIE A. BIVANS, for appellants.

VAIL, POGUE & ALLEN, for appellees.

Mr. JUSTICE CARTER delivered the opinion of the court: This was a bill filed in the circuit court of Macon county by the devisees of Louise P. Wagoner, deceased, to set aside a confirmation by her of her husband's will and a deed made by her after her husband's death to certain property she would have received as his widow if she had renounced his will. The bill is based on the ground of undue influence, and prays for a partition of the property in the event the confirmation and deed be set aside. The case was referred to a master to take the testimony, and he reported, in substance, that the equities were with the defendants and that the bill should be dismissed. Objections to his report were overruled and permitted to stand as exceptions. Practically all of the appellants' exceptions were overruled and the bill was dismissed for want of equity, with costs. This appeal followed.

The evidence shows that George C. Wagoner died testate December 18, 1915; that at the time of his death he owned a 200-acre farm near Decatur, Illinois, three residence properties in Decatur, a life interest pur autre vie in 40 acres in Piatt county, eighteen vacant lots in Moweaqua, and money and notes inventoried at $16,893.94 in addition to certain chattels, the entire estate being worth approximately $64,000; that he died without descendants, leaving his widow, one sister and numerous other heirs, descendants of nine deceased brothers and sisters; that he devised the vacant lots in Moweaqua to a niece, Mrs. Fanny Howard, the life estate in the Piatt county land to William H. Clay, a nephew, and gave his wife, Louise, a life interest in the rest of the property, appointing her and Edwin G. Allen executors, and directed that at his wife's death the remaining executor convert the entire estate into cash and pay legacies amounting to $15,500, as follows: $500 to his only sister, Aminda Tackett; $6000 to William H. Clay; $2000 to Guy W. Lipscomb, one of the complain

ants, and $500 to Mabel C. Lipscomb, another complainant. After providing certain other legacies he directed the balance of his estate to be distributed among his legal heirs, excluding those mentioned in the will. The will was admitted to probate February 24, 1916, and letters issued to Edwin G. Allen and Louise P. Wagoner as co-executors.

The evidence shows that Mr. and Mrs. Wagoner never had any children but gave a home to three children, namely, William H. Clay, who lived with them from the time they were married, in 1861, until 1874; a boy named Hodge, who left home and was drowned some time before 1873; and the mother of complainant Guy W. Lipscomb, whom the evidence tends to show they treated as their own child from her infancy until her death. After Mrs. Lipscomb's death the family moved from LaPlace to Decatur to make a home for her only child, Guy, and his father, N. M. Lipscomb, all living in the home then owned by Lipscomb and afterwards owned by Wagoner and devised by Mrs. Wagoner to Guy's daughter, Virginia, if the prayer of the bill should be sustained. The record also tends to show that the Wagoners always treated Guy as their grandchild and that he called them grandfather and grandmother; that no one was closer to them in affection; that both Guy and his father, N. M. Lipscomb, until their respective marriages, made their home with the Wagoners; that N. M. Lipscomb married one of the complainants herein, Mabel C. Lipscomb, after the death of his first wife, the first wife having lived practically as the adopted daughter of the Wagoners until her death; that Wagoner had loaned money to the Lipscombs, both father and son, and had taken notes from them with the understanding, as the evidence tends to show, that the principal was not to be paid but that interest was to be paid during the lifetime of Mr. and Mrs. Wagoner. The record also shows that both the Wagoners were past eighty years of age at the time of Wagoner's death; that Wagoner had a fall and only lived a short time after it, during most

of which time he was in a comatose condition. The evidence tends to show that Mrs. Wagoner had been practically an invalid for years before her husband's death and was greatly distressed by that event; that Allen, the other executor, had been a close friend of the Wagoners for many years and remained so until Wagoner's death and was on friendly terms with Mrs. Wagoner until her death. The evidence also tends to show that Wagoner's will was drawn by Allen's son, who was a layman, after the testator had talked the matter over with his wife; that after Wagoner died, Clement C. Walters, an attorney, was retained as the legal adviser for the Wagoner estate, apparently through Allen's influence, and acted as the attorney for the estate until the trial of this case, when he withdrew from the case and testified; that on April 7, 1916, an instrument drawn by Walters was filed in the county court of Macon county, where the will was probated, purporting to confirm Wagoner's will, which instrument was signed by Mrs. Wagoner and acknowledged before a notary public. The record also shows that July 13, 1916, Mrs. Wagoner filed her renunciation of the will, and on July 19, 1916, she filed a petition to withdraw her election to take under the will, setting forth that she had signed the paper purporting to be a confirmation of the will while ignorant of her right to renounce under the will and take half of the estate, and because she had been greatly troubled as to whether she would do something wrong or cast reflections on her husband's will if she did not sign the confirmation, and prayed that she might be permitted to withdraw from the files and have canceled the paper purporting to be her confirmation and be permitted to take her distributive share in her husband's property under the statute. There is no evidence in the record outside of this petition that is admitted to be competent by counsel for appellees that shows in any way why she filed the renunciation or this petition to set aside the confirmation of her husband's will. On July 27, 1916, another