Messrs. B. O. Willard and L. A. Jarman, for appellants:

Steele was not a competent witness. C. H. Albers Commission Co. v. Sessel, 193 . 153; 6.N. E. 1075; Volbracht v. White, 197 Ill. 298, 64 N. E. 324; Dyer v. Hopkins, 112 Ill. 168; Stephens v. Hoffman, 263 Ill. 197, 104 N. E. 1090; De Roux v. Girard, 90 Fed. 537; Re Forkington, 79 Hun, 128, 29 N. Y. Supp. 433; Ivers v. Ivers, 61 Iowa, 721, 17 N. W. 149; Magemau v. Bell, 13 Neb. 247, 13 N. W. 277; Platner v. Ryan, 76 N. J. L. 239, 69 Atl. 1007; Cooper Grocery Co. v. Neblett,

Tex. Civ. App. —, 203 S. W. 365; Darragh v. Stevenson, 183 Pa. 397, 39 Atl. 37; Verstine v. Yeaney, 210 Pa. 113, 59 Atl. 689; Morgan v. Lehigh Valley Coal Co. 215 Pa. 443, 64 Atl. 633; Herndon v. Given, 19 Ala. 313; Sawyer v. Campbell, 130 Ill. 204, 22 N. E. 458.

Where a testator's confidential attorney, who prepared the will, was appointed trustee with broad powers thereunder, and a beneficiary therein, proof is required to rebut the presumption of undue influence arising from such condition.

Teter v. Spooner, 279 Ill. 39, 116 N. E. 673; Leonard v. Burtle, 226 Ill. 422, 80 N. E. 992; Weston v. Teufel, 213 Ill. 291, 72 N. E. 908.

In order to rebut a prima facie case of undue influence which the law raises from the drawing of a will, summoning witnesses, and directing the execution by one sustaining a fiduciary relation to the testator, the proof must, at least, clearly show that the alleged testator knew the contents of the will, and this must be independent proof coming from sources other than that touching its execution.

Paske v. Ollat, 2 Phillim. Eccl. Rep. 323, 161 Eng. Reprint, 1158; Crispell v. Dubois, 4 Barb. 393; Re Soule, 22 Abb. N. C. 236, 3 N. Y. Supp. 259; Re Elster, 39 Misc. 63, 78 N. Y. Supp. 871; Barry v. Butlin, 2 Moore, P. C. C. 480, 12 Eng. Reprint, 1089; Lyons v. Campbell, 88 Ala. 462, 7 So. 250; Garrett v. Helfin, 98 Ala. 615, 39 Am. St. Rep. 89, 13 So. 326; Hill v. Barge, 12 Ala. 687; McQueen v. Wilson, 131 Ala. 606, 31 So. 94; Purdy v. Hall, 134 Ill. 298, 25 N. E. 645; McCommon v. McCommon, 151 Ill. 428, 38 N. E. 145; Gum v. Reep, 275 Ill. 503, 114 N. E. 271.

Where, on account of age and a long and severe illness, a testatrix is more

susceptible to undue influence and imposition than if she had been physically sound and strong, and where the will is written by one who is substantially benefited by it, strict scrutiny and proof of volition are required, and the court or jury must be fully satisfied that the testatrix was not imposed upon, and knew what she was doing and what disposition she was making of her property when she made the will.

Gum v. Reep and Weston v. Teufel, supra; Leonard v. Burtle, 226 Ill. 422, 80 N. E. 992; Yess v. Yess, 255 Ill. 414, 99 N. E. 687; England v. Fawbush, 204 Ill. 384, 68 N. E. 526; Delafield v. Parish, 25 N. Y. 9.

Transactions between a party and one bearing a fiduciary relation to him are, upon his motion, prima facie voidable upon grounds of public policy, and the burden of proof, the fiduciary relation being established, is upon the one receiving the benefit, to show an absence of undue influence.

Thomas v. Whitney, 186 Ill. 225, 57 N. E. 808; Lipscomb v. Allen, 298 Ill. 537, 132 N. E. 206.

Messrs. E. M. Warner, Glass & Bottenberg, and W. H. Dieterich for appellees.

Stone, J., delivered the opinion of the court:

This is a will contest. Mary J. Metz, living in Rushville, executed the purported will and died a few days thereafter. Her heirs at law filed this suit to set the will aside. on the ground of mental incapacity, and the undue influence of George B. Steele, Charles H. Bartlett, and the Margaret Bishop; also on ground the will was not attested in the presence of Miss Metz, as required by law. The cause was tried in the circuit court of Schuyler county at the September term, 1918, and a verdict of the jury rendered sustaining the will. On appeal to this court the judgment rendered on that verdict was reversed and the cause remanded. Snyder v. Steele, 287 Ill. 159, 122 N. E. 520. The facts surrounding the execution of this will and the relation of the parties are fully set out in that case, and need not be repeated here. This court, in reversing the case, found that a fiduciary relationship

existed between Steele and Miss Metz; that as the evidence showed that he wrote the will, and was a substantial beneficiary thereunder, the presumption of undue influence existed, and, there being no evidence to overcome that presumption, the verdict of the jury could not be sustained. This court also found that there was no evidence of undue influence on the part of the defendants Margaret Bishop and Charles H. Bartlett; also that the evidence justified the finding of the jury so far as mental capacity of Miss Metz was concerned. The evidence on these issues was practically the same on the second trial as on the first, except as hereinafter noted. There has been no denial of the existence of a fiduciary relation between Steele and Miss Metz. He was her attorney and transacted a greater portion of her business for her. His answer does not deny the existence of fiduciary relationship. Counsel for appellants, in their briefs, concede that there is no further evidence on want of testamentary capacity, and that it may be conceded that that issue is not sustained, and it is not urged in this case. Subsequent to the filing of the former opinion of the court in the case, Steele, who was executor under the purported will, and is a defendant in this suit, filed his resignation as such executor in the county court of Schuyler county, and also filed a relinquishment of any claim to the $5,000 legacy bequeathed to him by the will. Thereupon his counsel moved that he be dismissed out of the case, which motion was granted over the objection of appellants. Appellants thereafter filed a supplemental bill, making Steele a party defendant on the ground that, costs having accrued on the former hearing, he should be made a party in order that eventually a judgment would be rendered against him if against other proponents of the will. This supplemental bill was demurred to, and the demurrer was sustained, and the

order of the court sustaining this demurrer is urged here as error.

The cause came on for retrial at the April term, 1921, of the circuit court, and a verdict was returned by the jury upholding the will. On this trial of the cause proponents offered Steele as a witness. Appellants objected to his competency, and on that question a preliminary examination of Steele was conducted by both proponents and contestants. It was shown by answers to questions of contestants' counsel that Steele had been a beneficiary under the will to the extent of $5,000, and had been named as executor and trustee under the will, and contestants thereupon objected to his competency. In rebuttal, proponents offered the order of the county court discharging him as executor, and of the circuit court dismissing him as a party to the suit, and also his disclaimer of the legacy or interest under the will. His examination also showed that he had qualified as executor, and during the previous trial in the circuit court he had actively participated as a defendant, both on the trial and in this court on the appeal, and that the same counsel representing other legatees represented him in the case. He stated that he concluded to resign after he had read the opinion of this court on the previous review; that he did not care to rest under the charge of undue influence on his part. He stated further that his object in resigning as executor and relinquishing his rights as legatee was that the will might be sustained. He was thereupon permitted to testify, and the ruling of the court in this regard is assigned as