Opinion of the Court.

will, and who would take real estate under its provisions if the will should be held valid, brings the case to this court on

error.

On an appeal from an order of the county court allowing probate of a will, only the testimony of the subscribing witnesses is admissible on the question of the testator's sanity. The decisions on this subject are based on the language of the statute. (Andrews v. Black, 43 Ill. 256, and other cases in this court.) Accordingly, on the trial of this appeal in the circuit court, no testimony, other than that of the two subscribing witnesses, was heard. One of them (Pickrell) stated every fact the statute requires to establish the will. The other (J. H. Dawson) stated everything the statute requires, saye he could not say, in the language of the statute, he believed the testator was of "sound mind and memory" when he signed his will. It seems it was for this reason the circuit court refused to hold as a matter of law, as it was asked to do, that the will was sufficiently proved to be admitted to probate. The error assigned in this court calls in question the correctness of that ruling of the circuit court.

Undoubtedly the law is, the subscribing witnesses must declare on oath or affirmation, among other things required by the statute, that they believe the testator was of "sound mind and memory" at the time of signing or acknowledging his will, before it can be admitted to probate. But the witnesses are not required to use the usual formula, "sound mind and memory," in stating their belief as to the testamentary capacity of the testator. It is sufficient if they state their belief in equivalent words, and so this court has distinctly held in Yoe v. McCord, 74 Ill. 33. It was ruled in that case, it was not essential that a subscribing witness to a will should state on oath, in so many words, that he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will. In that case, the witness could not declare, in the language of the statute, that he believed the

Opinion of the Court.

testator to be of sound mind and memory, and yet he did declare so in legal effect, and that was held to be sufficient. The rule established by that case is a reasonable one, and ought to be allowed to control, otherwise great injustice might be done. A person might be of unsound mind, in a measure, or his memory might be impaired, and yet he might possess sufficient testamentary capacity to make a will. In such cases, a conscientious witness might well hesitate to declare, on oath, in the language of the statute, he believed he was of “sound mind and memory." That would not be true in his understanding of the terms of the statute, but he might be able to state his belief in his testamentary capacity, in other language, which would have the same legal effect. It is not required that a person, to make a valid will, shall possess a higher capacity than for the transactions of the ordinary affairs of life. If the testator, at the time of making a will, is capable of attending to his ordinary business, and of acting rationally in the ordinary affairs of life, he is said to possess testamentary capacity, and his will will be permitted to stand. Testamentary capacity may exist even where neither the mind nor the memory is as good as at a former period. (Freeman v. Easly, 117 Ill. 317.) The facts of the case in hand bring it precisely within these well recognized principles. Here the witness was unwilling to declare on oath he believed the testator was of "sound mind." The testator had been afflicted with what the witness called "spells," and had had so many of them his mind was injured. When asked whether the testator understood what he was doing, the witness replied: "I suppose he understood it,-that was my supposition." When under the influence of "spells," the witness says he was not fit for business, but at other times, he says he "couldn't do a great deal of business, of course he done some little." The witness says the testator was not under a "spell" on the day he signed his will. On being inquired of if he saw anything on that day that led him to doubt the soundness of the tes

Opinion of the Court.

tator's mind, the witness answered: "I didn't see anything, at that time, that was anything more than was just his ordinary way of living." The testator came out of his house and called the witness, as he was passing on the street, to come in to witness his will. On coming into the house, the testator introduced him to the other subscribing witness, and both witnesses then attested the will in the presence of the testator, and at his request, and in the presence of each other. The answer made to a question propounded to him by the court, gives the idea the witness had as to the condition of the testator's mind, as clearly as anything in the record. This is the question and answer:

Q. "Is it your belief, that at the time he signed this will he was of sound mind and memory?

A. "To give my honest belief about it, it is just this way,— I want the court to understand what I say,-I don't think Uncle Logan, in his last years, had been perfectly sound. That's what I believe, if you want my belief about it. But that day he was as natural and rational as common to see him. Anybody not knowing anything about him at all, would suppose he was all right. That's my honest belief about it. That's just what I want the court to understand,-not that I know anything that day more than that."

It is quite evident the condition of the testator's mind, as the witness states he believes it was at the time of signing the will, shows testamentary capacity. Undoubtedly the witness believed the testator fully understood what he was doing, and the facts stated leave not the slightest doubt on the mind such was the case. This court is the more ready to adopt this view, for the reason the probate of a will in this way by the county court is not conclusive. Under the statute, any person interested may, at any time within three years, file a bill in chancery to contest the validity of the will, when an issue at law shall be made up, and tried by a jury, whether the writing produced be the will of the testator or not.

The

Syllabus.

statute contemplates the proceeding for the admission of the will to probate, shall be summary. It requires the party propounding a will to prove nothing but its formal execution, and that the testator was of sound mind and memory at the time. That has been sufficiently proved in this case by the requisite number of subscribing witnesses, and the will of the testator should be admitted to probate.

The judgment or order of the circuit court will be reversed, and the cause remanded, with direction to that court to affirm the order of the county court admitting the will to probate. Judgment reversed.

Mr. JUSTICE MULKEY: I do not think the proofs in this case meet the requirements of the statute, and can not, therefore, concur in the opinion of the majority of the court.

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY

v.

CHARLES S. BARTLETT et al.

Filed at Ottawa May 12, 1887.

1. CONTRACTS-construction-giving effect to words different from their ordinary signification. The general rule requiring effect to be given to all the words of an instrument, is subject to well recognized limitations, the chief of which is, that the instrument must be so construed as to effectuate the intention of the parties to it. For this purpose a word may sometimes be construed to mean almost the opposite of its commonly accepted signification. Thus, the word "and" is often construed to mean "or," and to give effect to the intention, a word or phrase may be excluded or wholly disregarded.

2. SAME bond of an agent conditioned to account for and pay over moneys-extent of liability —in case of theft or robbery. An agent or paymaster of a railway company, whose duty it was to receive and pay out large sums of money for the company, gave a bond, conditioned that he would faithfully perform the duties required of him as paymaster, "and promptly

Brief for the Appellant.

pay over and promptly account for all moneys belonging" to the company, received by him as such agent, and should deliver to the company all property belonging to it, when required: Held, that the first clause, to faithfully perform all the duties required of him, covered the whole ground, and that which followed was nothing more than a mere specification of the principal duties incident to his employment, and added nothing to his liability, and did not make him an insurer of the moneys in his hands, against theft or robbery, without his fault or negligence.

3. But even conceding the undertaking of the principal in the bond, to pay over and account for all moneys, was an absolute one, in such sense as to make him an insurer, and that his sureties were equally bound with him for its performance, still, it would not follow that they would be so bound except where the money was in his exclusive possession, as, when he would take it out of the safe for the paying of it out on the pay-rolls of the company. So where the company required such agent to keep the moneys in a room not properly protected against the entry of thieves or burglars, and which was occupied by other servants jointly with such agent, one of which other servants had access to the safe where the money was kept, and a large sum was stolen from the safe during the temporary absence of such agent, without any neglect of duty or want of care on his part, it was held, that such agent could not be held liable on his bond given to the company, conditioned that he would account for all moneys coming to his hands.

4. SAME-release or waiver of performance by acts of obligee. If a party covenants with another to perform any lawful act, there will be an implied undertaking on the part of that other that he will do nothing to prevent the performance or render it impossible; and if such other does prevent performance or renders it impracticable, this will operate to discharge the covenanting party from liability for his failure to perform.

5. ERROR WILL NOT ALWAYS REVERSE. This court will not reverse a judgment clearly right upon the undisputed facts of the case, for errors that could not have changed the result.

APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.

Messrs. STILES & LEWIS, for the appellant:

Appellees contend, and the court below so ruled, that the bond in no way enlarged Bartlett's liability, and that it was a mere security for the faithful discharge of his duties as paymaster. We insist that this construction of the bond is