delivered the opinion of the court:
The testimony produced by the contestant of the will and codicil to establish the mental incapacity of the testator is exceedingly weak and unsatisfactory, so much so that even if the case stood alone tapón the evidence so produced, with a verdict of a jury to support it, it is matter of grave doubt whether a decree invalidating the will and codicil could be sustained. But when the testimony introduced by the proponents of the will and codicil is considered along with that above mentioned, it seems to us that the testamentary capacity of the testator, and that he was of sound mind and memory within the meaning of the law, are established even beyond a reasonable doubt.
The law does not require that a man, in order that he may make a will and dispose of his property, should have a perfectly well-balanced mind, entirely free from all blemishes and angularities. That which is regarded in the eye of the law as “a sound and disposing mind” is not inconsistent with a very considerable degree of eccentricity. Where there is capacity to transact the ordinary business of life, and an ability to comprehend in respect to the objects and subjects of bounty, and a freedom from insane delusion specially affecting testamentary capacity, there the power and the right to make a will exist. In this case, the testator, until he was fifty-four years of age, spent a busy and active life, devoted to the earning and the accumulation of money. He was a bachelor, and had lived a life aloof from the pleasures of a home and of society. At the age above indicated his health became somewhat, but not seriously, impaired, and he disposed of his business with the intention of taking a rest and enjoying the fortune that he had gathered together. He had been long accustomed to a solitary life, was set in his ways, had his peculiarities and eccentricities, and. was somewhat dissipated in his habits, and he, moreover, had little or nothing to occupy his time and attention, was wholly unfitted for social life, and became unhappy and dissatisfied. But the instincts and habits of a lifetime of money getting and money saving adhered to him, and he was as sensible, cautious and close in respect to business and money matters as ever. He finally died suddenly, from the effects of a stroke of apoplexy that was the result of the bursting of a blood-vessel in his brain.
If the verdict and decree herein had been otherwise than they are upon the issues whether the writings produced at the trial were the will and codicil of the testator or not, the verdict and the decree could not have been allowed to stand; and even if a new trial was now awarded for technical error, such trial could result only, as did this.
Appellant insists that the circuit court committed errors in permitting certain questions to be propounded to witnesses and certain answers to go to the jury, and in sustaining objections to questions asked by him, and in various of its rulings upon the instructions, and in other ways during the progress of the trial. In that behalf he makes some twenty-seven different assignments of error. We are inclined to the opinion that none of these alleged errors are. well assigned. But be this as it may, and even assuming that the court committed errors, yet appellant was not injured thereby, the substantial merits and the truth of the controversy being so manifestly against him; and so it would be a waste of time to consider in detail, in this opinion, the supposed manifest errors. The judgment of the Appellate Court in affirmance of the decree establishing the validity of the will and codicil was just and right, and in consonance with the principles of the law and of equity.
There remain to be considered, the matter of the solicitors’ fee of $2500 for services rendered the guardian ad litem, the allowance of $270.71 for expenditures, and the allowance of $450 for the time and services of the two ■physicians who were introduced as experts in the interest of the proponents of the will. The order making these allowances, and taxing them against the contestant, and awarding execution therefor, was not sustained by the Appellate Court.
The guardian ad litem and the Fidelity Insurance, Trust and Safe Deposit Company base their assignment of cross-error in that regard principally upon the provisions of section 6 of the act to regulate the practice in the courts of chancery, (Eev. Stat. chap. 22,) and upon the decision of this court in Smith v. Smith et al. 69 Ill. 308. The statute in question reads as follows : “In any cause in equity it shall be lawful for the court in which the cause is pending, to appoint a guardian ad litem to any infant or insane defendant in such cause, and to compel the person so appointed to act. By such appointment such person shall not be rendered liable to pay costs of suit, and he shall, moreover, be' allowed a reasonable sum for his charges as such guardian, to be fixed by the court, and taxed in the bill of costs.” The decision in the Smith case, supra, was based upon that section of the statute as it stood prior to the act of March 15, 1872. At the date named, the words “to be paid by the party at whose motion he was appointed,” were eliminated from the statute as it was prior to that date. (Eev. Stat. 1845, p. 99, sec. 47; Haws of 1871-72, p. 329.) It must be presumed that the omission of this clause in the revision of the section was intended to have some effect, in some way. If the legislature had intended to continue the former law in force without alteration, it would have incorporated the section in the revised act precisely as it was prior to such revision; and the conclusion therefore is, that it acted advisedly in the matter, and really intended to change the former law that required all charges of the guardian ad litem, under all circumstances, “to be paid by •the party at whose motion he was appointed.” Moore v. Moss, 14 Ill. 106.
In Smith v. Smith et al. supra, it was contended that the' intention of the statute, as it was before the change, was, that the fees due counsel for the guardian ad litem and the expenses incurred by such guardian should be allowed by the chancellor and taxed against the estate of the infant. It was held otherwise, the court saying that the statute was too plain to require or even admit of construction, and that under it the charges could only be taxed against the party who prayed or moved for the appointment of the guardian ad litem. At the time the decision was made, in 1873, the section had been amended as above mentioned, but the court held that the amended section did not apply to the case before them, and in the opinion it is intimated that if it had been applicable to the case then in hand, then the charges could and should have been taxed as contended for.
In Wilbur v. Wilbur et al. 138 Ill. 446, the decree was against the validity of the will. The court had appointed a guardian ad litem for the infant heirs, and had allowed him a fee of §300, to be paid out of the estate of the deceased. It was contended that said fee should have been charged to the unsuccessful proponent of the will. It was held that there was no error in the decree of the court charging it against the estate. In this case, as in that, we are unable to discover any merit in the claim that the unsuccessful party should be required to pay the fees of solicitors who did not appear for him or for his benefit. In respect to compensation other than the per diem and mileage allowed ordinary witnesses, physicians and experts stand upon the same footing.
As matter of course, the appellant in this case stated in his bill of complaint that Thomas Hutchinson, son of James A. Hutchinson, was an infant, and asked “that a guardian ad litem should be appointed by the court to appear for and represent the interests of said infant.” He could not well have proceeded in any different way. It would be a heavy tax upon, if not a denial of, justice, to keep out of court a citizen who is advised that he has just ground for relief in equity, without he assumes a liability to pay the fees and expenses of the solicitors and experts employed by his adversaries, in all cases where one or more of the opposite parties in interest happen to be under full age. The general .rule that prevails in this State is, that solicitors’ fees and experts’ fees can not be taxed as costs against unsuccessful litigants in chancery suits, and that the discretion of the chancery courts in awarding costs in such cases is confined to statutory allowances. Constant v. Matteson et al. 22 Ill. 546 ; Conwell v. McCowan et al. 53 id. 363.
We think that the Appellate Court made a proper order in regard to solicitors’ fees, experts’ fees and the expenditures of the guardian ad litem.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.