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the returns of the board of review and the proceedings to attach the members of the board were proceedings to carry that judgment into execution. They were all proceedings subsequent to judgment and were not matters of record of which a court of review could take notice unless they were embodied in a bill of exceptions. Mandamus is a common law action. The pleadings and practice in it are according to common law rules, and the record is the same as the record in other common law actions. The record of a judgment at common law was known as the judgment roll. It was a parchment roll, on which were recorded the process for bringing the defendant before the court, his appearance, and all the pleadings and proceedings to and including the judgment. The roll, when completed by the entry of judgment, was deposited in the treasury of the court and was called the judgment roll. (Stephen's Pl. 24; Freeman on Judgments, sec. 78.) "A record, in judicial proceedings, is a precise history of the suit from its commencement to its termination, including the conclusion of law thereon, drawn up by the proper officer for the purpose of perpetuating the exact state of facts." (Davidson v. Murphy, 13 Conn. 213.) The record ends with the judgment of the court. Executions or other writs issued by the clerk to carry the judgment into effect are not part of the record. If any action has been taken by the court in regard to such a writ which it is desired to review, the fact of the issue of the writ and the facts on which the action of the court is claimed to be erroneous can be brought to the consideration of the court only by a bill of exceptions stating the evidence.

No bill of exceptions shows what evidence was heard or what cause was shown upon the motion to vacate and strike the cause from the docket. The clerk has recited in the record a finding by the court that the final judgment rendered on June 27, 1910, against the National Box Company, the board of review and its members was a discon

tinuance of the case as to all the causes of action against the other defendants and as to the board of review and its members in regard to such causes of action, and that any subsequent proceedings were without authority of law. This recital is of no legal effect. Whether evidence was heard by the court, what facts were found and what reason existed for making the order can be shown only by a bill of exceptions. The rule is inflexible that the action of the court on motions of this character cannot be considered on appeal unless preserved in a bill of exceptions. Alward v. Harper, 253 Ill. 294.

It is unnecessary to consider the motion to expunge. Whether right or wrong, its decision would not affect the

case.

Judgment affirmed.

MARIETTA E. COLEMAN, Appellee, vs. JAMES E. MARSHALL et al. Appellants.

Opinion filed April 23, 1914.

1. WILLS opinions as to testamentary capacity are admissible. Upon a bill to set aside a will, and the probate thereof, on the ground of want of testamentary capacity, it is competent to ask the opinions of non-expert witnesses who knew and had opportunity for observing the mental condition of the testator, as to his soundness or unsoundness of mind at or about the time of the execution of the will, after the witnesses have stated facts upon which their opinions are based, but the weight to be given such opinions depends upon the facts stated from which the opinions are formed.

2. SAME what are proper questions to determine testamentary capacity. In determining testamentary capacity the real question. is whether, at the time the will was made, the testator had sufficient mind and memory to remember who were the natural objects of his bounty, to recall to mind his property and to make disposition of it understandingly, according to some plan formed in his mind, and while ability to transact ordinary business is an element for consideration in determining the mental capacity to make a valid will, it is not the true test.

3. SAME what are improper questions. It is improper to ask witnesses whether the testatrix had sufficient mind and memory to understand and comprehend the particular thing in which she might be engaged; nor should the witnesses be asked whether the testatrix was capable of making a will and understanding and comprehending it, as that would be calling for the conclusion of the witness as to the testamentary capacity and would be an invasion of the province of the jury.

APPEAL from the Circuit Court of Marion county; the Hon. JAMES C. MCBRIDE, Judge, presiding.

BUNDY & WHAM, for appellants.

KAGY & VANDERVORT, and L. B. SKIPPER, for appellee.

Mr. JUSTICE FARMER delivered the opinion of the court: Appellee filed her bill in the circuit court of Marion county to contest and set aside the will, and the probate thereof, of Harriet Marshall, deceased. A trial was had and the jury found the proposed will was not the will of Harriet Marshall. The court overruled a motion for a new trial and entered a decree in accordance with the verdict of the jury.

Complaint is made of the admission of the testimony of appellee and of Mrs. Schumaker on behalf of the contestant, and of certain remarks made by appellee's counsel in their argument to the jury. The testimony of appellee and Mrs. Schumaker was incompetent and was stricken out by the court. It will not be admitted on another trial, and as the decree must be reversed on other grounds it will be unnecessary to determine whether the effect of the incompetent testimony was cured by the ruling of the court in striking it out. The remarks of counsel complained of are not likely to occur again, and it will be unnecessary to pass upon that complaint.

There was no proof whatever to support the allegations of the bill that the will was procured by undue influence.

Harriet Marshall had been a widow about two years when she executed the instrument alleged to be her will. The will was executed in April, 1892. At that time testatrix was seventy-one years old and had four sons, James E., W. Scott, Charles P. and Xenophon S. Marshall. These were her only children. Appellee is her grand-daughter, the only surviving child of a deceased child of testatrix. By her will she gave her whole estate and property to her four sons, but the will provided that in case of the death of Xenophon S. Marshall without issue, before the testatrix's death, all her property should go to the other three sons, and in case of the death of either of them before testatrix's death the share the parent would have taken under the will was to go to his children. The testatrix stated in her will it was not for want of love and affection for appellee that she did not give her a share of her estate, but because she was satisfied appellee was already provided for beyond her probable reasonable requirements, and the knowledge that in case misfortune should overtake appellee testatrix's surviving sons would see that she was provided for. Testatrix died December 1, 1910, between seventeen and eighteen years after the will was executed. Her son Xenophon was a consumptive and died before her death. After her death the will was admitted to probate and the three surviving sons qualified as executors, whereupon appellee filed her bill to contest the will and set aside the probate thereof, alleging Harriet Marshall's mind and memory were so impaired at the time she made her will as to render her incapable of executing a will, and also alleging she was induced to make the will by undue influence. By agreement of the parties the only interrogatory submitted to the jury was whether the writing purporting to be the last will and testament of Harriet Marshall was her last will and testament. By their verdict the jury found it was not.

One of the witnesses to the will died before the death of Harriet Marshall and the other witness to the will was

not called to testify at the trial. On the hearing appellants offered the original will and the certificate of the oath of the surviving subscribing witness on the probate of the will, in which oath he stated that he and Will J. Blythe, the other witness, were present and saw Harriet Marshall sign and seal the instrument of writing as and for her last will and testament, and that at her request and in her presence, and in the presence of each other, he and the other witness subscribed their names thereto as attesting witnesses, and that he believed the testatrix was of sound mind and memory and under no constraint when she signed the will. On the application for probate of the will proof of the signature of the deceased witness and that it was in his handwriting was made in the manner required by the statute. In addition to this proof appellants introduced the testimony of twenty witnesses who testified as to the mental capacity of Harriet Marshall.

Dr. W. A. Stoker, a physician of twenty-eight years' experience, and who had been superintendent of the insane asylum at Anna, Illinois, and of an asylum at Evansville, Indiana, and who had been engaged in the general practice of medicine in Centralia, where Mrs. Marshall lived before and at the time she executed the will, testified he had known her for about forty years before her death. Sometimes he would see her every week and at other times he would not see her for a number of weeks. He saw her at her own home, at his father's home, on the street, at church and various other places. He saw her in 1892 a few times at her own home and at his father's house. He conversed with her and heard her converse with others, and testified that from his observation of her he believed she was of sound mind in the spring of 1892.

O. V. Parkinson testified he had lived in Centralia about fifty years and from 1885 to 1898 was in the retail dry goods business there. He was raised within two or three blocks of the Marshall home and knew Mrs. Marshall un

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