delivered the opinion of the Court:
On the 22d day of March, 1880, John D. Freeman made and published what purports to be his last will and testament, and. afterwards,.on t,he 5th day of April, in the same year, he departed this life. The will was executed with the usual formalities, and was admitted to probate in Jackson county, where the testator had lately resided. On the 28th of October, 1880, the bill in this case was filed, in the circuit court of Jackson county, by a part of the heirs of the testator, against-the executor named in the bill, the widow, and a portion of the other heirs who are named as devisees, to set aside the will, on the ground the testator, at the time of making and executing the same, was not of sound,and disposing mind, and that he was wholly incapable of making a valid will. An answer filed by defendants, and the replication thereto, put the matters and things alleged in the bill at issue, and thereupon the court directed an issue at law to be made up, whether the writing referred to in the pleadings, and purporting to be the last will and testament of John D. Freeman, was his last will and- testament or not. Although the bill in this case was exhibited at the December term, 1880,-of the circuit court, the cause was continued from term to term, and no trial was had until the March term, 1884, of that court. The cause was then submitted to a jury upon the evidence introduced, but as they were, unable to agree upon a verdict, they were discharged from the further consideration of the matters submitted to them. No other trial was had until on the, 6th day of February, 1886, when the case was again submitted to a jury, who, after hearing the evidence, found by their verdict, “the instrument in question not to be the last will and testament of John D. Freeman,” and thereupon the court ordered, adjudged and decreed that the instrument in writing purporting to be the last will and testament of John D„ Freeman, deceased, and the probate thereof, be set aside and declared null and void. From that decree the defendants bring the case to this court on appeal.
Without expressing any opinion as to the weight of the testimony touching the testamentary capacity of the testator at the time of making the instrument alleged to be his last will and testament, it is thought that in view of the conflicting character of the evidence the present decree must be reversed on account of the seventh instruction of the series given by the court on behalf of complainants. It is as follows:
“If you should believe, from the evidence, that at the time of the execution of the instrument (the validity of which is in question,) by J. D. Freeman, he was so diseased, mentally, as not to be of sound mind, then your verdict should be for complainants.”
Obviously this charge does not state the law accurately, and in view of what may be fairly said of the unsatisfactory character of the evidence, it must - have been hurtful to the defence. No doubt it is true a party may be so diseased, mentally, as not to be of sound mind, and yet he might possess what the law terms a ‘.‘disposing mind, ” that is, the mental capacity to know and understand what disposition he may wish to make of his property, and upon whom he will bestow his bounty. It is a rule of law that a person who is capable of transacting, ordinary business is also capable of making a valid will. In Meeker v. Meeker, 75 Ill. 260, it was held by this court, the derangement or imbecility to incapacitate the person from making a valid will must be of that character which renders him incapable of understanding the effect and consequences of his acts. A test usually recognized is, the party must be capable of acting rationally in the ordinary affairs of life, so that he may comprehend what disposition he may wish to make of his property, and be able to select the subjects of his bounty. Nothing more is required, and so the authorities in this State uniformly hold. {Meeker v. Meeker supra; Rutherford v. Morris, 77 Ill. 397, and subsequent cases that follow the doctrine of the cases cited.) Medical testimony in this record is to the effect that in all cases of diseases of the body, the mind is in some degree affected, and the party might be said to be of “unsound mind,” and still be capable of transacting ordinary business, such as is done in daily life. In this ease the testator suffered greatly from severe bodily disease, and no doubt his mind was affected to a degree it might be, at least in a partial sense, unsound; but the jury should not, for that reason alone, be told, as a matter of law, that would incapacitate him to make a valid will. That would be to state the rule of law on this subject broader than the authorities in this and other States will warrant.
It is conceded by counsel this instruction may be faulty, but it is insisted, when considered in connection with other charges given upon this branch.of the case which state the law with more accuracy, it was not calculated to mislead the jury, .This may or may not be so. It accords with com•mon observation that in contests concerning wills, where the testator has made, or has seemingly..made, an unequal or •inequitable disposition of his property among those occupying the same relation to him, by consanguinity or otherwise, there is a disposition in most minds to seek for a cause for holding the will invalid; The inclination in this direction that is found to exist in the minds of most, if not all, jurors, can not always be controlled by instructing them there is no law requiring a testator, nor is he bound, to devise his property equitably or in equal proportions among his heirs. Of course, the law is he may make such disposition of his property as he sees fit, and he may bestow, his. bounty where he wishes,, either upon his heirs or others. While this is undoubtedly the law, the common mind is disinclined to recognize it, and jurors will too frequently seize upon any pretext for finding a verdict in accordance with what they regard as natural justice. In .this case it appears the testator did make an unequal disposition of his estate among his heirs. He may have had the best of reasons for so doing, and it may have been both just and equitable. But whether he had, or had not, that is not a matter for inquiry. If he had sufficient testamentary capacity, he might dispose of property in any way not forbidden by law or public policy. As before remarked, it is difficult to get jurors to recognize this abstract principle of law. It may be the jury in this case seized upon this charge given them by the court, to enable them to find a verdict in accordance with their own sense of justice, rather than the law as it is. If so, the instruction was most hurtful to the defence, and it was error to give it.
The fifth instruction of the series is also faulty. By it the jury were told, if “any witness has sworn falsely on any point material to the issues, ” they might disregard all his testimony, unless corroborated by other'unimpeached'.testimony. It omits the qualification the witness must have willfully or knowingly sworn falsely. Eyep the most candid witness might make a false ..statement on a point material to the issues, and unless wdllfully or corruptly done, it ought not to disparage his other testimony. Such an instruction, even when most accurately formulated, is of doubtful propriety, and certainly it should never be given unless most accurately worded, to prevent misapprehension.
It may be well to notice a.few objections discussed on the present record that may arise on another trial, if one shall be had. At the time the bill was filed, two of complainants were minors, and they commenced the suit in their own behalf, in the name of their father, W. J. Easly, as their next friend. Afterwards, on the 11th day of January, 1886, proof was made that each of these complainants had attained their majority, and the suit as to W. J. Easly, the next friend, by order of court, was dismissed. On the next trial of the cause, complainants offered W. J. Easly as a witness on their behalf, and it was objected he was incompetent under the statute, which forbids any party to the record, or in interest, to testify of his own motion, where any adverse party sues or defends as executor, heir, legatee or devisee. The objection is untenable. Since the witness was dismissed from the record it is as though he had never been a party. He never had any interest in the subject matter of the litigation, and if not now a party to the record there is no reason why he is not a competent witness. Section 7, chapter 51, of the Bevised Statutes of 1874, can have no application, for the reason the witness had no interest to be released.
It is also insisted the trial court erred in excluding the deposition of Harriet A. Freeman, widow of the testator. In this ruling of the court there was no error. She was a party to the- record, in interest, and therefore, under the statute, was not a competent witness in a case like the one being considered, where .-complainants sue as heirs.
■ It seems the decree rendered, inadvertently adjudged costs against the executor and awarded execution for the collection of the same. It needs no suggestion from this cpurt that such an order was improper.
If it shall be made to appear, or if it does now appear, that other parties interested in the estate are not parties to the suit, either as complainants or defendants, it would be well that such persons be made defendants before another trial shall be had. .
The decree of the - circuit court' will be reversed and the cause remanded.
Decree reversed.