Fourteen other witnesses besides appellee were called and testified in her behalf. None of them were directly asked or directly testified that Harriet Marshall was of unsound mind and memory. Six of them testified to an acquaintance with her, but their knowledge of her and opportunities for observing her obviously were not such as to enable them to give an opinion that would be of any value upon the question of her mental capacity and they were not asked to express any opinion. One other witness was asked whether, from his acquaintance with, knowledge and observation of the testatrix for the years he had known her, he believed she was mentally capable of transacting ordinary business, and answered that he could not say that she was not capable but would say that she did not transact ordinary business. Some of the other witnesses, after stating their acquaintance with the testatrix, their associations with and knowledge of her and their opportunities for observing her actions and condition, were asked if in their opinion she was mentally capable of transacting business or ordinary business, and answered that in their opinion she was not capable. Others were asked the same question, and in addition thereto whether the testatrix had sufficient mind and memory to understand and comprehend the particular thing in which she might be engaged, and answered that in their opinion she had not.

None of the witnesses for appellee except the two Marshalls, who testified by deposition, expressed any opinion as to the unsoundness of mind of the testatrix, unless we are to infer the testimony of the witnesses who testified she was incapable of transacting business and of those who testified she had not sufficient mind and memory to understand and comprehend the particular thing in which she might be engaged was the equivalent of an opinion that she was not of sound mind and memory. We do not think the proper test of testamentary capacity was adopted by the questions asked the witnesses on the part of appellee. It is compe

tent for a non-expert witness who knew and had opportunity for observing the mental condition of testatrix, after stating facts upon which the opinion is based, to be asked his opinion as to the soundness or unsoundness of mind of the deceased. The weight to be given such an opinion. depends upon the facts stated from which the opinion is formed. (Brainard v. Brainard, 259 Ill. 613; Graham v. Deuterman, 244 id. 124.) A witness may be asked as to the ability of the testatrix to transact ordinary business, but it has often been held by this court that the ability to transact ordinary business is not the true test of testamentary capacity. A person who has the ability to transact and understand ordinary business is presumed to have sufficient capacity to make a will, but it does not follow that inability to transact the ordinary business affairs of life renders one incompetent to make a testamentary disposition of his property. Ability to transact business is an element for consideration in determining whether the testatrix had the mental capacity to make a valid will, but the real question is whether, at the time the will was made, she had sufficient mind and memory to remember who were the natural objects of her bounty, recall to mind her property, and make disposition of it understandingly, according to some plan formed in her mind. If she had sufficient mind and memory to do this she was possessed of testamentary capacity, and if not improperly influenced by others could make a valid will.

In Ring v. Lawless, 190 Ill. 520, the jury were instructed, on behalf of the contestants of the will, that unless they believed, from the evidence, that the testator had sufficient mental capacity to transact the ordinary business affairs of life he could not make a valid will. This was held erroneous. The court said the business transactions of life, such as buying and selling property, adjusting accounts, collecting or paying out money, borrowing money or making loans, involved considerations which do not arise

in disposing of property by will. In the ordinary business transactions of life a person must have mental strength and understanding to compete with an antagonist and protect his own interests. Such transactions involve a contest of reason, judgment, experience and the exercise of mental powers not necessary to the testamentary disposition of property. The court said: "It has often been said by this and other courts that a person who has mental power to understand and transact ordinary business has capacity to make a valid will. The truth of this cannot be doubted, but it must not be understood to mean that that degree of mental power and vigor is requisite to testamentary capacity. Mental perception and power to think and reason of a lesser degree may be all that is requisite to the full understanding of everything involved in the execution of a will. The want of that degree of understanding necessary to enable one to transact the ordinary affairs of life does. not necessarily show incapacity to execute a valid will." In that case the bill, in addition to praying that the will be set aside, also asked that certain deeds executed by the testator in his lifetime be set aside on account of testator's lack of mental capacity to make a valid deed. The court recognized the rule that a higher degree of mental capacity is necessary to make a valid deed than is required to make a valid will, and held that while the evidence showed the testator did not have sufficient mental capacity to make a valid deed he did have sufficient mental capacity to make a valid will, and the decree of the trial court was affirmed in so far as it set aside the deeds but was reversed in so far as it set aside the will.

In Craig v. Southard, 148 Ill. 37, the court said: "The real question submitted to the jury, however, is not whether the party had sufficient mental capacity to comprehend and transact ordinary business, but did he, at the time of making the instrument purporting to be his will, have such mind and memory as enabled him to understand the par

ticular business in which he was then engaged. (1 Redfield on Wills, 123, 124; Campbell v. Campbell, 130 Ill. 466; Greene v. Greene, 145 id. 264; Stevens v. VanCleave, 4 Wash. C. C. 262; Harrison v. Rowan, 3 id. 580.) If he did, if he was able to remember who were the natural objects of his bounty, recall to mind his property, and make disposition of it understandingly, according to some purpose or plan formed in his mind, he was possessed of testamentary capacity, and with such capacity, uninfluenced improperly by others, he may make valid testamentary disposition of his estate." To the same effect are Taylor v. Cox, 153 Ill. 220, Waugh v. Moan, 200 id. 298, Trubey v. Richardson, 224 id. 136, and many other cases in our Reports.

The situation was not improved by the inquiry whether the testatrix had sufficient mind and memory to understand and comprehend the particular thing in which she might be engaged. If that inquiry referred to every transaction or thing in which the testatrix might be engaged the test was too high and stringent, for a person of entirely sound mind and memory may sometimes be engaged in a 'transaction. which he may not fully understand or comprehend. If the inquiry is to be understood as referring to whether the testatrix was capable of making a will and understanding and comprehending it, then it called for the conclusion of the witness as to testamentary capacity and was an invasion of the province of the jury. Baker v. Baker, 202 Ill. 595; Schneider v. Manning, 121 id. 376; Pyle v. Pyle, 158 id. 289; Keithley v. Stafford, 126 id. 507.

The finding of the jury and the decree of the court could only have been based upon the theory that the testatrix was not possessed of testamentary capacity at the time she made the will, and in our opinion the proof in this record is not sufficient to sustain the decree. It is therefore reversed and the cause remanded.

Reversed and remanded.

LOUIS CROOKS, Appellee, vs. The Tazewell Coal Com,PANY, Appellant.

Opinion filed April 23, 1914.

I. CONSTITUTIONAL LAW-the Workmen's Compensation act of 1911 is not unconstitutional. The Workmen's Compensation act of 1911 is not unconstitutional. (Deibeikis v. Link-Belt Co. 261 Ill. 454, followed.)

2. WORKMEN'S COMPENSATION-common law defenses are lost to employer electing not to be under the act. An employer who elects not to come under the Workmen's Compensation act of 1911 by giving the proper notice to that effect is not governed by such act, but he loses the common law defenses of assumed risk, fellowservants and contributory negligence, except that the latter may be shown for the purpose of reducing damages.

3. SAME-when employee is not limited in his recovery to compensation provided for in the act. If both employer and employee have elected to come under the Workmen's Compensation act of 1911, then the employee, in case of injury, is limited to the compensation therein provided for, but if the employer elects not to be bound by the act then the employee is not bound thereby and may bring the ordinary action at law to recover damages for his injury.

4. SAME―when evidence of mining experts is properly denied admission. In a mine accident case, where witnesses have testified to the actual conditions existing at the place in the mine where the injury occurred, it is proper to refuse to admit evidence of mining experts that the defendant's mine was properly equipped, constructed and operated.

5. DAMAGES-the amount of damages recoverable is largely a question for the jury. The amount of damages recoverable in an action for personal injury is largely a question for the jury, and a court of review will not interfere with the determination of that question unless the amount is clearly unreasonable.

APPEAL from the Circuit Court of Tazewell county; the Hon. T. N. GREEN, Judge, presiding.

W. R. CURRAN, (MASTIN & SHERLOCK, of counsel,) for appellant.

JESSE BLACK, JR., and JAMES P. ST. CERNY, for appellee.