did, because at that time he still had more than ten days before the election to post the notices thereof. Conceding that the proper notice is jurisdictional, we see no reason, where an error in the notice as in this case is made, why such error could not be corrected by destroying the old notices and posting proper lawful notices if sufficient time remained, and this was done.

In the case of Haggard v. Fay, 255 Ill. 85, relied on by the objector, the town clerk posted six notices of the annual town meeting and published the notice once. Afterwards a petition for a vote on the question of building a town hall was presented. The clerk amended three of the notices by merely writing in the statement that the proposition of building a town hall would be brought up, without changing the dates of the notices, and published the amended notice once. This court held that this was not a compliance with the law even though the amendment was made and the amended notice published more than ten days before the meeting, there being no change in the date of the three notices amended nor any change at all in the other three. In such case the voters may have been misled by reading one of the notices that had not been changed and so would not have gone to the election, not knowing that the proposition contained in the amended notice was to be voted on. The court said, on page 90 of the opinion: "We do not hold that had a mistake been made in the original notices it could not be corrected if the legal notices had been posted and published as required by law." The circumstances in that case were entirely different from the one in the case at bar, as the notices were conflicting and failed of their purpose, which was to give the electors notice as to the questions that would come up at the town meeting. In the case at bar, however, if the testimony of the town clerk is to be believed,-and for the reasons given we think his testimony is to be relied upon, the original notices were taken down and new notices were posted within the

time. We think, under the circumstances, that the notices were sufficient and that the court properly held upon the propositions of law.

Perceiving no error sufficient to justify a reversal, the judgment of the county court will be affirmed.

Judgment affirmed.

HUGH WOOD et al. Appellees, vs. THOMAS J. WOOD,

Appellant.

Opinion filed April 23, 1914.

I. WILLS-when conversation in presence of testator cannot be proved. In a proceeding by heirs to contest a will, the person whose name is written in the will as the legal heir of both real and personal property cannot testify to an alleged conversation between him and the girl who, in the testator's presence, was writing the will, wherein he told her she was not writing all the testator said, which she admitted but said she did not know how to write it, whereupon he dictated, while she wrote, the sentence naming him as the legal heir of the real and personal property.

2. SAME when it is not error to permit witnesses to a will to testify on contest. Where the only issue before the jury in a will contest case is whether certain words were written in the will after it was executed by the testator, subscribing witnesses who made affidavits of the execution of the will when it was probated may testify whether such words were in the will when executed.

3. SAME-Court of equity may hold part of will to be the will of the testator. A court of equity, in a proceeding to contest a will which it is claimed contains words interpolated by a third person after its execution, has power to determine that the will, as to such words, is not the will of the testator but that the remainder of the instrument, with such words eliminated, is his will.

APPEAL from the Circuit Court of Randolph county; the Hon. GEORGE A. Crow, Judge, presiding.

WISE, KEEFE & WHEELER, (A. E. CRISLER, of counsel,) for appellant.

H. CLAY HORNER, for appellees.

Mr. JUSTICE FARMER delivered the opinion of the court:

William Wood, Sr., died in Randolph county February 23, 1910. He left no widow and no child or descendant of a child surviving him. He left a sister, who has since deceased, and a large number of nephews and nieces, as his heirs-at-law. During his last illness, and just before his death, he executed a paper purporting to be his will, in and by which he bequeathed four relatives one dollar each, two others $200 each, another $100, and Thomas Wood $300. The testator owned a farm of 160 acres and from $10,000 to $15,000 worth of personal property. The will directed that the farm should not be sold within three years, and that during that time William Wood and family, who were living with the testator, should have the use of the farm and home free. Appellant, Thomas J. Wood, a nephew of William Wood, Sr., was named as executor, and the will directed that the personal property be controlled and distributed by him. The will was admitted to probate, and afterwards appellees filed the bill in this case to contest the will, or certain parts of it. We have been furnished a photographic copy of the will, which shows the will is in the handwriting of three different persons. It bears date of February 23, but the evidence shows the first part of it was written about eleven o'clock in the night of February 22. The first part of the will is in the handwriting of Mary Wood, who is the daughter of William Wood, a grand-nephew of the testator. This William Wood and family were living with the testator on his farm, as before stated. Mary Wood, her sister, Sarah, and appellant, Thomas J. Wood, were with the testator the night before. his death, and about eleven o'clock at night appellant called Mary Wood to the testator's bedside and said his uncle desired to make a will. Appellant asked Mary Wood to write it. She replied she did not know how, and he dictated to her the date and told her how to begin it. Appellant then left the room and Mary Wood wrote a few lines of the

will, giving four persons one dollar each. The testator was very low with pneumonia and complained of being tired and said he would postpone the completion of the will to a later time. Mary Wood left the paper in the room where the testator was and nothing further was written until the next morning, when Dr. Boynton, the attending physician, came. The testator desired to complete the will, and Dr. Boynton testified he was so low he had to be kept up with stimulants until it could be completed. Dr. Boynton wrote the remainder of the will. It was signed by the testator by a mark and witnessed by Dr. Boynton, William Wood, and his daughter, Sarah F. Wood. The will is very short and is in the following form:

Agnes Wood

=

=

=

=

1 =

= = = =

the farm shall not be sold under

three years, that William Wood & family are to have

the priveledges of the farm & house for these three years, free. The personal property, consisting of bonds, notes and mortgages are be controlled & distributed by the administrator, Thos. J. Wood Give to Maggie Steele, Niece, two hundred dollars, $200.00 Hugh Wood, Nephew, two hundred dollars, 200.00 Thos. Wood Nephew, three hundred dollars, 300.00 "Wm. H. Wood, Nephew, one hundred dollars, 100.00

Witness C. O. Boynton

William Wood Sarah F. Wood

his

William X Wood

mark

The following part of the instrument is in the hand

writing of Mary Wood:

February 23rd 1910

My last will and Testament,

It is my will that Jeanie Hannah gets, I dollar

Commencing with "the farm shall not be sold," etc., the remainder is in the handwriting of Dr. Boynton. The words, "Thos J Wood is my legal heir both real and personel," written in the upper left-hand corner, are in the handwriting of Sarah Wood. The bill alleged that these latter words were not a part of the purported will at the time it was attempted to be executed, but that said words were written on the paper after the death of the testator and before it was admitted to probate, and were not a part, in law, of said paper. The bill further alleged that the will was not executed by the deceased in the manner and form required by law. The bill prayed that the language, "Thos J Wood is my legal heir both real and personel," be decreed not a portion of the paper purporting to be the will of the testator and that the will be declared null and void because not executed in the manner and form required by law. Appellant answered the bill denying all its material allegations. A hearing was had, and the jury returned a verdict "that the language, Thos J Wood is my legal heir both real and personel,' is not the last will and testament of William Wood, deceased." The court overruled a motion for a new trial and entered a decree that the language above quoted was not the last will and testament of the testator but that all the remainder of the paper was his last will and testament. From that decree this appeal is prosecuted.

The proof shows that a lawyer by the name of Goddard, residing at Sparta, some two or three miles distant from the testator's home, was sent for by someone to come to the testator's house for the purpose of preparing his will. Goddard came the day of testator's death but after the will had been prepared and executed. The will was given to Goddard, and after looking it over he stepped to the bedside of the testator and told him he had not disposed of all his property by the will. The testator was very near death and replied he would complete it when he got better.