doubted that, after his resignation, disclaimer, and dismissal out of the suit, Steele had no interest in the lawsuit, so far as the record showed. Section 7 of the Evidence Act (Hurd's Rev. Stat. 1921, chap. 51), however, provides that "in any civil action, suit or proceeding, no person who would, if a party thereto, be incompetent to testify therein under the provisions of § 2 or § 3, shall become competent by reason of any assignment or release of his claim, made for the purpose of allowing such person to testify," and the claim is made here by appellants that the record shows that in this case Steele resigned as executor and relinquished as legatee for the purpose, only, of testifying. The rule

-release of rights for purpose of testifying-evidence in record.

is that there must be some direct evidence in the record that such person released his rights for the purpose of testifying. Stephens v. Hoffman, supra. This, however, This, however, does not mean that such purpose must be shown by statements or admissions on the part of one seeking to testify. To so hold would render that section of the statute ineffective. The record, however, should show facts and circumstances which by their reasonable intendment and inference demonstrate that the release was made for the purpose of permitting the party making it to testify.

As we have noted, Steele's testimony was practically the only additional testimony offered over that produced at the first trial. The facts which the appellants urge as showing that he resigned as executor and relinquished his interest as legatee for the purpose of testifying were that this was not done until after the decision of this court on former hearing on review; that during the first trial he was actively engaged in prosecuting the defense as executor and legatee; that his counsel in the case were the same as counsel for Charles H. Bartlett, the residuary legatee; that, three days before his resignation as executor

was filed in the county court, Bartlett signed and acknowledged in St. Louis, where he resides, a petition reciting that Steele had resigned, and asking that Thomas W. Sweeney be appointed administrator de bonis non with the will annexed. Appellants urge that the relationship between Steele and Bartlett, and the fact that Bartlett signed an application for the appointment of Sweeney as administrator previous to Steele's resignation, indicate an understanding between them that, though Steele relinquished his rights as legatee, he may yet procure the same from Bartlett. Counsel for appellants, however, admit there is no direct evidence of such an agreement between them. Steele stated in his examination that he resigned and released his rights in order that the will might stand. We are unable to see in what manner his resignation and release, of themselves, affected the question whether the will would stand or fall, or changed the record made on the first or second trial except by his testimony. This court found that on the issue of undue influence exercised by Steele there was no evidence overcoming the presumption of such undue influence. As to the issue of attestation in the presence of the testatrix, this court, on the previous review, found that the evidence did not show that the attestation complied with the statute.

As we have indicated, the only difference in the testimony in the two trials on the above points, aside from minor differences of no consequence in the testimony as to attestation, is the testimony of Steele. The only way, therefore, in which his resignation and relinquishment could save the will would be by his testifying. Could the necessary testimony have been produced from other sources there would have been no reason for his relinquishing and resigning in order to save the will. The question involved in such an issue is whether, in the words of the statute, he resigned and released his rights for the purpose of testifying.

Though he may have desired to testify in order to save the rights of other legatees, such fact can make no difference as to his competency. What may have been his motive for wanting to testify is immaterial. If he withdraws for the purpose of testifying he is disqualified, though his reasons for wanting to do so are wholly unselfish. He stated on his examination as to his competency that he did not want to rest under the charge of undue influence. He went through the first trial under what he has characterized as the charge of undue influence, and took an active part in the trial, qualified and acted as executor throughout, and did not resign until after the decision of this court on the former review. His release and resignation do not, of themselves, affect the charge of undue influence. So far as shown by this record, the only testimony by which the presumption of undue influence can be refuted is that of Steele himself. It may be that he is unfortunately situated in that regard, but it is apparent from the evidence in two trials that his resignation and release would in no wise affect the record concerning undue influence except he testify. We do not hold that one cannot testify concerning a charge of undue influence against him where he has released his rights and is dismissed out of the case, where it is not shown by the evidence to have been done for the purpose of testifying. No hard and fast rule can be laid down concerning the proof necessary to show such purpose.

We have reviewed

the acts and statements of Steele for the purpose of determining whether or not, from all reasonable inference, they constitute sufficient evidence that his resignation and release were for the purpose of testifying, and we are unable to escape the conviction that the evidence does so show.

-resignation for purpose of testifyingeffect.

Counsel have cited cases wherein it was held that a party releasing as

legatee or devisee, or resigning as executor, is competent to testify. Those cases depend upon the particular facts showing that the witness had resigned or relinquished at the earliest possible moment, or other circumstances tending to show that he did not so act for the purpose of testifying. We are of the opinion that such is not the condition of this record, and that the testimony of Steele was not and cannot become competent. This leaves the record in practically the same condition it was on the former hearing in this court.

Appellees contend, however, that, even though this court were to hold that the presumption of undue influence was not overcome as to the legacy of Steele, nevertheless the will should stand as to all other legacies not affected by undue influence, and their counsel urge that such holding is justified by the language of this court on the former hearing, wherein it is stated: "The devise of the life estate to Mrs. Bishop and the bequest and residuary devise to Dr. Bartlett are not subject to the presumption of undue influence, but as to the bequest to Steele the legal presumption of undue influence is in no way rebutted."

The language of the opinion does not warrant the construction sought to be placed upon it by counsel. The bill in this case charged undue influence on the part of Mrs. Bishop, Dr. Bartlett, and Steele-all beneficiaries. The opinion in the former case holds that there was no evidence showing undue influence on the part of Mrs. Bishop and Dr. Bartlett, but that, by reason of the fiduciary relationship existing between Miss Metz and Steele, and the fact that he wrote the will, the presumption of undue influence existed as to him. This is not to be construed as holding that a will may be held to be part good and part bad by reason of undue influence of one of the beneficiaries. Appellees' counsel cite cases from other jurisdictions. as sustaining their view on this

Will-undue

in toto.

point. The greater weight of authority, however, is to the contrary, and in this state the influence-void rule is that, where the execution of a will is shown to be the result of undue influence exercised by a beneficiary, the contestants are entitled to a verdict. Weston v. Teufel, 213 Ill. 291, 72 N. E. 908; Gum v. Reep, 275 Ill. 503, 114 N. E. 271; Teter v. Spooner, 279 Ill. 39, 116 N. E. 673. Under the statute the issue before the jury is whether or not the pur

ported will is the will of the testator, and the question is as to the validity of the will as a whole. Testimony which defeats one defendant, one devisee, or one legatee, defeats all, and a judgment against one is necessarily a judgment against all. McCune v. Reynolds, 288 Ill. 188, 123 N. E. 317; Campbell v. Campbell, 138 Ill. 612, 28 Ñ. E. 1080; McMillan v. McDill, 110 Ill. 47.

The decree is reversed, and the cause remanded.

The removal, by release or assignment of his interest, of the disqualification of a party to an action to testify by reason of his interest in the result of the suit, is not treated in this annotation, where the question turns upon the fact that the witness is a party; nor does it include the competency of a stockholder, who has devested himself of his interest in the corporation, to testify in an action in which it is involved, because of the particular character of the interest of the stockholder in the event of the action; and cases involving subscribing witnesses to a will are also excluded, because of the existence in most of the states of a statute to the effect that interest does not disqualify such a witness, and in the absence of a statute, the question is not so much whether the release or transfer of his interest by a witness will remove his disqualification, as whether the disqualification is determined as of the time of the execution of the will, or

III. Assignment:

a. In general, 15.

b. Under statute against removal of disqualification, 28.

c. Under statute conditionally favoring removal of disqualification, 30.

of the time of the giving of the testimony.

Several states have passed statutes expressly disqualifying assignors, which settles the question as to the effect of an assignment in those states and leaves open, besides the question of the effect of a release, simply the question as to who is an assignor within the meaning of the statute, which is not within the scope of the annotation.

II. Release.

a. In general.

As stated in 28 R. C. L. 492, § 77, the general statutory abrogation of the common-law rule that the parties to an action, or persons interested in the event thereof, are incompetent as witnesses therein, did not sweep away the entire rule, for the statutes generally render parties or interested. persons incompetent to testify in an action by or against the estate of a deceased person, or persons claiming under and through him, the disability

the event of the suit excluded a witness at common law. But one neither a party to the record nor interested in the event of the suit was not disqualified on the score of interest. That a party had been thus interested did not disqualify him as a witness, if at the time he was called to testify his interest had been removed, by a release or otherwise. The theory was that one swayed by interest could not safely be admitted to testify in support of his interest; but if he had no interest in the event of the suit, and could not gain by the result, he might be admitted as a witness."

And, in the following Pennsylvania cases, it was held that the release of his interest by one interested in the estate of a decedent made him a competent witness under the common law, in an action by or against the estate: Newlin v. Newlin (1815) 1 Serg. & R. (Pa.) 275; Cook v. Grant (1827) 16 Serg. & R. (Pa.) 198, 16 Am. Rep. 564; Cornell v. Vanartsdalen (1846) 4 Pa. 364; Carter v. Trueman (1847) 7 Pa. 315.

In Cates v. Wacter (1834) 20 S. C. L. (2 Hill) 442, the court said: "That a person offered as a witness in a cause, who has an interest in the result, may be rendered competent by releasing his interest, in a common and familiar principle of law."

And it is stated in Dubuque Lumber Co. v. Kimball (1900) 111 Iowa, 48, 82 N. W. 458, which is not in point because the interest of the witness consisted in being a stockholder of a corporation seeking to enforce a claim against a decedent's estate, that where the interest of the witness in the event of the action is collateral merely, his competency may be restored by the release or transfer of his interest at any time before testifying, though done for that express purpose.

In a replevin action by an executor, where one who is named as a defendant disclaims interest in the property involved in the action, and the trial proceeds against the remaining defendant, the disclaiming defendant is thereafter a competent witness to testify as to transactions and com

munications with the decedent, to the same extent as if he was not originally named as a defendant. Lyman v. Goll (1922) 111 Kan. 530, 207 Pac. 817.

But in Turner v. Mitchell (1901) 22 Ky. L. Rep. 1784, 61 S. W. 468, it was held that the plaintiff in an action against the maker and sureties on a note could not remove his disqualification as a witness to a transaction with one of the sureties, since deceased, for whom the plaintiff had made a payment on the note, taking an assignment of a part of his interest therein, by releasing his claim against the estate of the deceased surety, for the purpose of enabling him to obtain a judgment against the other surety.

Legatee, devisee, or heir.

The release by a devisee of all his interest under the will of a testator renders him a competent witness under the common law. Cook v. Grant (1827) 16 Serg. & R. (Pa.) 198, 16 Am. Dec. 564.

And the release by a widow of her interest under her husband's will renders her competent, under the common law, to testify for the executor in an action to enforce a claim against the estate. Cornell v. Vanartsdalen (1846) 4 Pa. 364.

And the release by the widow to the administrator of the intestate, of her interest in the fund to be recovered in an action by the administrator, renders her a competent witness under the common law. Carter v. Trueman (1847) 7 Pa. 315. The court said in this case that the fact that the widow executed the release without consideration and for the express purpose of qualifying herself as witness, or the fact that the release might have been colorable, did not constitute a valid objection to her competency, because such facts were matters of which the court did not undertake to judge, and went rather to the credit than to the competency of the witness.

a

And in Newlin v. Newlin (1815) 1 Serg. & R. (Pa.) 275, where a witness was objected to as incompetent on account of his wife's interest in