delivered the opinion of the court:
Various errors have been assigned by appellants, but the principal one, and the one that ought to control the decision of the case, goes to the error of the court in refusing to set aside the verdict and to grant a new trial because the verdict was against the great weight and preponderance of the evidence in the case.
Even if it were considered that the issue of undue influence was made by the pleadings and presented to the jury, there was no sufficient evidence given to the jury to sustain the allegations of the bill in that regard. Certain letters of Fordyce G. Bradley to Mrs. Benedict were given in evidence by the contestant which apparently gave her encouragement in her determination, expressed in her letters to him, to tie up her property so that it might be preserved and not squandered by her son; but it does not appear that they contained any false statements or misrepresentations whatever concerning the contestant or his wife, or any other matter supporting the charge in the bill of complaint. So far as the evideuce shows, Bradley had nothing to do with the making of the will sought to be set aside.
It appears that Mrs. Benedict, the testatrix, had a high regard for Dr. Dupuy, not only as a physician, but as a friend whom she had known for many years, and that he was always called when she needed a physician; but there is no evidence in the record that he influenced her in any manner in making the will in question. True, she made two promissory notes in his favor,—one for $5000 and one for $9500,—which have been presented by him against the estate, and it is fairly to be inferred from the evidence that both his-interests and inclinations were favorable to the disposition which Mrs. Benedict had made of her property, and to the view that she was of sound mind and memory and free from undue influence. But it is not contended by appellee that he sustained by evidence the allegations of the bill as to undue influence by Dr. Dupuy. Indeed, he does not contend that the verdict rests or can be sustained on the evidence of undue influence, but he insists that the evidence proves that the testatrix was of unsound mind and memory when she made the will; that the will is the product of an insane delusion, and that the evidence as to undue influence was admissible and should be considered with the other evidence as bearing upon her mental condition.
We have very carefully read and considered the evidence of this voluminous record, as presented by the abstracts of more than a thousand printed pages, and have also read and considered the comprehensive briefs and arguments of counsel, and have reached the conclusion that the will was sustained by the great weight and preponderance of the evidence, and that it was error for the trial court to render the decree appealed from. Shortly after the death of the testatrix, the complainant, after consultation with medical experts in Chicago, went to the different cities in England, Germany and France where his mother, and himself as well, had sojourned at different times in the preceding ten or more years, to look up evidence preparatory to Ms contemplated attack upon the will. He obtained written statements from certain persons who had been employed by Mrs. Benedict as servants, or with whom or at whose places of abode or entertainment of travelers she had lived. Afterwards their depositions were taken, which, with the testimony of the step-daughters of the complainant and the expert testimony of five physicians of Chicago, constituted, in the main, the evidence on which the verdict was rendered. These circumstances are not mentioned as blameworthy in legal practice, but only as a part of the history of the case. The proponents of the will were also compelled to go or send abroad for proof of the due execution of the will and of the circumstances under which it was executed, and of the mental condition of the testatrix, the point being, that with the exception of the testimony of the medical experts, and a very few other witnesses as to matters not of controlling importance, the case was tried upon testimony taken out of court by depositions and upon documentary evidence, and, therefore, neither the jury nor the judge presiding below had any better opportunities than we have to weigh the evidence and to determine whether or not the testatrix was of sound mind and memory when she made the will. Still, we would not, under the practice which has been adopted in such cases, feel authorized to disturb the verdict and decree were we not satisfied from the record that injustice has been done and the last will of a property owner who was perfectly capable of disposing of her property has been set aside and rendered null and void. The evidence is too voluminous to be reviewed in detail, or the testimony even of each of the more important witnesses commented on, within the compass of an opinion.
At the outset of contestant’s case, after the proponents had rested, he produced the testimony of Emily Mathieson and her husband, and of one Byfield, which tended, in some degree, to prove that the mind of the testatrix was affected, generally, with insanity as far back as 1886,—nine years before she made the will, and while she was living at 10 Dorset Square, London, with her husband and son, from which place she wrote many of the letters contained in the record. According to her testimony, said Emily was a servant of Mrs. Benedict for a period of nearly three years, ending in 1888 or 1889, in the capacity of cook and then of housemaid and personal attendant. It was chiefly upon her testimony that the first two pages of the hypothetical question set out in the statement of the case preceding this opinion was based. She was an ignorant woman and her memory appeared to be very imperfect. It was she who testified that Mrs. Benedict daily drank a quart bottle of beer and a pint and a quarter of brandy after retiring at night, while the great weight of the evidence conclusively proves that Mrs. Benedict never drank intoxicating liquors at all. Indeed, no other witness in the case testified that she did, except that the witness Byfield, who served the complainant as his valet during the year 1885,—the year before the service of Mathieson began,—testified that sometimes when Mrs. Benedict returned from her" confectioner, where she often went for confections for her son, she appeared flushed and would complain of headache, and would lie down, and that he thought she was intoxicated. He was the personal servant of the contestant for a year at that time, while he was convalescing from delirium tremens and paralysis, brought on by the intemperate life he had led in Hew York and elsewhere. Considering all of the evidence, it does not appear at all improbable that these former servants of Mrs. Benedict and her son, testifying after the lapse of a number of years, have in the retrospect confused the habits of the son with those of the mother. But even Byfield testified that neither Mr. or Mrs. Benedict kept or drank intoxicating liquors in their home, except occasionally a little beer; and it is not contended that Mrs. Benedict drank intoxicating liquors of any kind after the period mentioned by these witnesses, which was about seven years before the will was made. The alleged slovenly habits of Mrs. Benedict were also clearly disproved. Emily Mathieson testified that in her opinion Mrs. Benedict was not then of sound mind. Her testimony was laudatory of the son, of his conduct, of his attentions to his mother, and contained statements of expressions of Mrs. Benedict of her affection for him and that all of her property was for him.
The depositions of a great number of witnesses were taken by the proponents, showing that Mrs. Benedict was an exceptionally strong-minded woman, mentally clear and logical in her reasoning, having no appearance of a person mentally unsound, nor to give rise to a suspicion in the mind of any friend, acquaintance, physician or observer that her mind was diseased or her intellect clouded. Among those who testified to her mental soundness while she lived in London, and covering the same period testified to by Emily Mathieson, was Dr. Robert Maguire, who was frequently called to treat the contestant for alcoholism, when he was so violent that it required several strong men, as nurses, to control him. During this time Dr. Maguire had frequent conferences with Mrs. Benedict, and also treated her for dyspepsia and an affection of the bladder, and his testimony to her mental competency was positive. He said her mental condition was normal. Mr. Everett,, with whom the complainant had arranged to go into business in London, and who had many conferences with Mrs. Benedict,—she having agreed to furnish §15,000 of the capital,—also testified to her perfect soundness of mind. No one doubted at that time that Mrs. Benedict was fully competent to take care of the large estate which her first husband had devised to her. When her son relapsed into drunkenness in London when about to launch the business enterprise with Everett, she had the business capacity, judgment and force of will to terminate immediately the contemplated business venture and thus to avert further financial loss. She settled with his partner on a liberal basis but in a business-like manner. It appears that in all of her business affairs, when abroad, she acted for herself or by counsel whom she employed, and not by or through her husband, Mr. Benedict, and to only a very limited extent did she rely on her son, even when he appeared to have abandoned the use of intoxicating liquors. Her letters written during this period to her brother-in-law, Bradley, who was her business manager in this country, in referente to her business affairs, her son’s conduct, her surroundings and movements abroad, show her to have been a woman of strong will and of clear mind. Indeed, if we understand counsel for the appellee, notwithstanding the testimony of Emily Mathieson, Mrs. Jammes and Lucile Dixon, the step-daughter of the contestant, and the medical experts, they do not rest their case on the contention that Mrs. Bradley was mentally unsound to transact ordinary business, but only that she had an insane delusion, having its incipiency about the time testified about by Emily Mathieson, which, as it is contended, manifested itself in August, 1894, at Wildbad and Heidelberg in expressions and actions indicating that she feared that her son had attempted, and that he and his wife would attempt, to poison her. This is said to have occurred about three months after she made her will of May 16,1894, which was similar, in most substantial respects, to the one in controversy, made March 29,1895.
The contention that testatrix had an insane delusion as to the motives and purposes and acts of her son and his wife, Mary A. Palmer, rests, in the main, on the testimony of two witnesses,—Marie Schreck, who some years before had been her seamstress, and who was her personal attendant and servant just before and after Mrs. Benedict underwent a surgical operation in the hospital for cancer of the breast and arm-pit; and Frederick Hirschell, the keeper of a small hotel in Heidelberg where Mrs. Benedict and the Palmers were guests when she left the hospital. Marie Schreck testified that at Wildbad, whither Mrs. Benedict had gone on the advice of the surgeon to gain strength preparatory to the operation, she said to her, ‘You do not know Prank; you know, one day he tried to poison me at Carlsbad;” and that at the hotel she refused to eat food prepared there, and gave the reason to the witness that she was afraid, she would be poisoned there; that she also insisted on following her son and his wife to Paris when they left on their way to America, because she feared, as she stated, that they would take her things stored in Paris. Hirschell gave similar testimony, to the effect that when he learned that Mrs. Benedict would not eat food prepared at his hotel he inquired of her the reason, and she said she was afraid Prank and his wife would poison her. Hirschell testified, also, that Mrs. Benedict would lie on her bed and talk with him when he had come up to see her, with her person exposed, and that her clothing was soiled; but neither he nor Marie Schreck testified that they believed she was insane. Hirschell testified that during the time the party was at his hotel the contestant was drinking intoxicating liquors to excess; that he bought and had them charged on his mother’s bill as mineral water; that he and his wife had quarrels with his mother—“had a great quarrel;” that the quarrel was between Mrs. Benedict and Mrs. Palmer, and that her son took part with his wife; that there were several quarrels and he was called up by some one. There was other evidence of a rupture, about this time, of the friendly relations which had existed between Mrs. Benedict and Sirs. Palmer, aside from the testimony of Hirschell and Marie Schreck and the letters of Mrs. Benedict. But her letters, written about the time, show the state of her mind and reasons upon which she acted, and although she may have erred and misjudged them, her letters show her mind to have been as clear and unclouded as at any former period on all subjects mentioned in them. If she had a delusion or entertained a belief that they would poison her she made no mention of it in any of her numerous letters to Bradley, to whom she always expressed herself with the greatest freedom, even in confidential matters. Nor does it appear that she ever gave expression to such a thought afterward.
Taking the whole of the evidence, it seems clear to us that counsel have attached far too much importance to this evidence, as probably the jury did also. If she did express the fear that she might be poisoned, the record is wholly silent as to the cause of such fear, and it would not follow, as a necessary sequence, that it arose from a diseased mind or insane delusion. Especially is this so when the preponderance of the evidence in the case shows that her mental powers were undiminished. It would be a much more reasonable inference to draw that she was afraid of her son when he was in a drunken and irresponsible condition. In a letter, July 7, before she went to Wildbad to take the baths before going to the hospital, she wrote: “Frank has been drinking again, and is all the time just enough to be ugly and cross. * * * The doctor wants me to go to Wildbad for ten days and take baths for my nerves, and come back the 20th and have the cutting done. I could have done it at once had Frank not been so cruel in his treatment of me. His talk to me is terrible at times. He is determined that I shall give up Dupuy, and he goes on like a madman about him every day. Mary is perfectly scared. She stirred up more than she thought for, and I think she is frightened at the fuss she has made.” Nine days later she wrote that Frank had spent $2300 in nineteen days on his wedding trip the previous month, and that she had. talked with him and told him what he could and could not do, and that he had been ugly, mad and half drunk ever since. She wrote also: “When I told him he would be taken care of as long as’ he behaved himself he was more than disappointed. I think her object is to get away from me with an allowance, so she can have the children with her. I do not think her bad, but her whole interest is with her family, which is very natural, only I do not want to be the cat’s paw to pull the chestnuts out of the fire. * * * I am sure he made her think he' could do everything for the children. * * * ,1 told her I was sorry Frank had deceived her; that he promised me he would tell her just how we were situated; that while we could and wished to take care of her we could never have the children with us or support them. She has an income, I think, of $200 a month, and that will-take care of them. She has also a little stock.” The children mentioned had all then reached their majority. Soon after going from the hospital to the hotel she wrote that her son was drunk from the time she went to the hospital till she left. She complained of his and his wife’s lack of attention to her, and said: “They were in a hotel near, and nothing to do but to ride out and drink iced champagne, order good dinners, and so on. But I must do Mary justice. She tried to sober him, and she dare not leave him alone, not knowing what he might do; and he threatened to kill himself, so she said, if she left him. I know she must have gone through a good deal. One night she told me she did not dare to undress.”
Without considering whether there might not have been mistake or exaggeration in the proof of her declarations as to the fear of being poisoned, it would still require proof of such facts and circumstances as would not only show that she had no grounds for such fear, but that it would not, under the circumstances, have been engendered in a rational mind. (Kimberley’s Appeal, 68 Conn. 430; McGovern’s Estate, 185 Pa. St. 203; In re Scott’s Estate, Pac. Rep. 527.) It is riot necessarily evidence of insane delusion that a woman is afraid of a drunken man, even though he be her own son,' nor that she should fear that in his drunken madness he might break any law, human or divine.
Nor, in view of the whole evidence, can the change of feeling on the part of testatrix toward Mary A. Palmer, her daughter-in-law, and in some degree toward her son, properly be attributed to an insane delusion on her part. It very clearly appears that about this time she had the belief that Mrs. Palmer was too much impressed with the financial advantages of her marital alliance, and that she encouraged her husband in his claim that the estate would of right eventually belong to him. In one of her letters Mrs. Benedict wrote: “Prank was so mad when he could not go on and have all the money he wanted, and encouraged by her that he ought to have it, for his father made it; and I added in one of our fights, ‘and his mother would keep it, if she knows herself.’ * * * After what has happened I rather take a grim delight in making them feel there is a head to everything, and especially this family. * * * I think they expect to go home as soon as we go to Paris, but they do not say anything, neither do I. How different it all ought to be, Brad, when you think of it. Now I do not take the least interest in anything they do.- I feel they are not poor,” (Mrs. Benedict had conveyed to her son $45,000 worth of real estate, and then had given him that amount in negotiable securities for the re-conveyance to her of about three-fourths of it,) “and they must take care of themselves. I have no more strength to spend on them. I think of what Kate told Oricia once: ‘He had killed his mother-, and she guessed he would kill his Aunt Oricia. ’ Aunt Kate gets it very near right sometimes with her rough guessing, but I never thought Prank would be so heartless. But one never knows.” Three days later, August 31, 1894, she wrote to Bradley: “Yesterday Frank and Mary left for Paris. He has his letter of credit, which I presume he will use and you will charge to his account. So take care you make yourself all right, for I am quite out of it, as you will see.” Then, after mentioning a consultation with the surgeon, Dr. Czerny, about the surgical operation, saying the wound had not properly healed and that another operation might become necessary, and that he had advised her,to go to Wildbad for the baths and then to Baden Baden, to regain her strength to overcome the tendency to inflammation of the diseased parts, and that she should postpone her return to Paris till October, she wrote: “When I came home I told Prank and Mary. It was then eight o’clock in the evening, for I had to wait three hours to see the doctor. Frauk said, ‘We are going to Paris in the morning, ten minutes before seven; you can come if you wish. ’ I said, ‘Why, Frauk, you would not leave me alone and sick in a strange hotel?’ (we had been here two days;) ‘won’t you wait a day, to see if I can find some one to go to Wildbad with me? I cannot be left alone.’ He said, ‘Then come to Paris; if I should wait a day you would only sit around and cry and not do anything, and that would make my wife nervous; no, you are better apart; you can get the girl you took to Wild-bad before; * * * you are a rich woman and can take care of yourself. ’ I hope and pray I may never suffer as I did then. Better a thousand deaths. What I had been through, I assure you, Brad, was nothing compared to my desolation then. I had not been up more than five hours a day, and that but a few times. * * * I had not never been downstairs without Frank’s help. * * * After that conversation he stayed in my room, asking all sorts of questions, as though nothing had happened; asking addresses for Mary for wrappers and the best and cheapest hotels, and wanted I should send their washing by express, which I have just done. I shall go directly to Dieppe, to Dr. Dupuy’s family. I shall have every care and attention.”
It appears from the evidence that Mrs. Benedict had not, before her son and his wife left her at the hotel in Germany, been alone for any considerable time since she went abroad, in 1877 or 1878. Mr. Benedict lived with her until 1892, and her son, the contestant, had been with her since 1884. In view of this fact, and of her physical condition, it was but natural that she should feel deeply wounded by what she felt to be her abandonment by her son and daughter-in-law at a time when she needed them most.
It appears that the testatrix and her son had household goods and ornaments of many kinds stored in Paris. Marie Schreck testified that Mrs. Benedict insisted on following her son and Mrs. Palmer to Paris because she feared they would take her goods; that they went, and found that her goods had not been interfered with, as she, the witness, had assured her they would not be. Counsel insist that this circumstance shows that Mrs. Benedict’s mind was affected with an insane delusion. They say that in a sane condition of mind she would not have thought her son and daughter would steal from her. The evidence does not show that she said or thought they would steal her property, but does show that their goods were stored together and that there might be a difference of opinion as to what part of them belonged to Mrs. Benedict and what to her son,—as, indeed, there was, afterwards, when the goods were shipped to Chicago. The evidence shows that she was a woman of firmness and decision of character. Whether she erred in judgment or was too harsh and unyielding in her resolution is beside the question. It is sufficient to say that the proof falls far short of establishing insanity, or that her mind was affected with an insane delusion at the time mentioned which influenced her eight months later in the disposition of her property, or that she was so af•fected at any time, but it appears that in all things she acted, and finally disposed of her property, on rational grounds, and, notwithstanding the unhappy troubles between herself and the contestant, which culminated in their complete separation, the evidence does not show, as his counsel contend it does, that her love changed to insane hatred and malice. On the contrary, in her letters she often asked Bradley to keep track of her son and see that he was taken care of, and in her will she adhered to her resolution, previously expressed, to provide for his support and maintenance.
After the events which have been narrated Mrs. Benedict went to Paris and took up her abode at a pension or boarding house kept by Mrs. Jammes or her mother, at 80 Avenue Kléber, from which place many of her letters in the record were written. Mrs. Jammes, who frankly said that she was on Mr. Palmer’s side and would not testify for any one else, testified to her belief that Mrs. Benedict was insane, and had been since 1892, when she first came to live at her mother’s house. Nearly all of the incidents narrated in the hypothetical question set out in the statement of the case as having occurred at 80 Avenue Kléber were testified to by Mrs. Jammes. Mrs. Benedict moved with Mrs. Jammes to another house in Paris, where on March 29, 1895, the will in question was executed, shortly before she went to the House of Health, a private hospital near Paris, to have another surgical operation performed to remove a cancerous' growth from her arm-pit. The evidence shows that she-alone gave directions in full and in detail as to the provisions she wanted in her will, to the attorney, Henry Gachard, whom she had employed to prepare it. Mr. Cachard testified that he called upon Mrs. Benedict at her request; that she told him she was going to have a dangerous operation performed and wanted to make her will; that she showed him a will, or a copy of it, which she had made, and told him the changes she wanted; that she spoke of her son and his wife,—of the latter in’ an unfriendly manner,—and said that her son had given her a great deal of trouble, had made her very unhappy, had gone through a lot of money, and was incapable of taking care of property; that he (witness) had long conversations with her, and she gave her reasons for making the will as she did—-tying up the bulk of the estate in trust; that she thought it was necessary for her son’s protection, as otherwise he would go through all the money she might leave him; that she spoke very rationally and sensibly, and that he, the witness, was particularly impressed by the lucidity of her mind; that her conversation was perfectly clear and that she knew exactly what she wanted; that he considered her rather an intelligent woman, and was of the opinion she was a woman of sound mind and memory and fully competent to dispose of her property. On cross-examination Mr. Cachard testified that there was nothing in her appearance, manner, speech, dress, looks or surroundings, at any of the times he saw her, of a nature to lead him to believe that she was a weak-minded person. Mr. Cachard was also one of the subscribing witnesses. William P. Hill, another subscribing witness, residing in Paris, testified that he had known Mrs. Benedict fifteen years of the nineteen years he had resided in Paris, and met her many times; that he and his wife exchanged social calls with her; that he was present when she signed the will, and that he signed it as a witness at her request at that time; that he conversed with her and that she was clear in thought; that he thought she was a woman of an unusually strong and clear mind, and that there was nothing in her manner or conversation that indicated any mental unsoundness; that he had had many different conversations with her and never observed any change in her mind, in this respect. After the will was executed Mrs. Benedict gave it to him for safe keeping, and he kept it for her until after she had returned from the House of Health partially recovered from the second operation for cancer. Dr. Eugene Dupuy was the third subscribing witness, and his testimony was equally clear and convincing as to the entire mental competency of Mrs. Benedict before, at the time of and after the execution of the will. The testimony of the subscribing witnesses showed that the statute had been fully complied with. Dr. Championniere, who performed the surgical operation at the House of Health, testified that he had a long interview and consultation with Mrs. Benedict at her apartments prior to the operation; that he questioned her fully as to the previous condition and history of her case, when she began to suffer, and the symptoms before the first operation; that she entered into minute details of her disease and of its history, and questioned him very much; that he performed the operation and saw her several times at the House of Health, and never observed that her mind was in any way impaired or that there was anything to indicate unsoundness in any particular; that it was his opinion that she was perfectly sound of mind at the times he saw her. Dr. Clement Defant, who conducted the hospital and assisted at the operation, and who had met and conversed with Mrs. Benedict preparatory to her coming to his hospital, and saw and conversed with her two or three times while she was in the hospital, also testified that she was a person of sound mind, and that he never saw or observed anything to indicate that she was not. It may be stated here that the physicians and surgeons who performed the first operation and attended her at the time in Germany gave equally emphatic and positive testimony that Mrs. Benedict was not affected ydth mental unsoundness in any form. In all, there were five physicians and surgeons, appearing- from their testimony to have been competent and of good standing, who saw, conversed with and treated and prescribed for Mrs. Benedict at the very times when it is contended by appellee that she was insane or affected with an insane delusion, and they all unite in testimony to the contrary. Besides, many friends and acquaintances of both sexes,—more than a dozen in number,—who had long known Mrs. Benedict at home and abroad, and who met her in Paris, London and other cities in Europe and in this country, and nurses and others, testified to facts and circumstances showing her mental competency, and to their opinions that she was of sound mind. Her letters also afford strong inherent proof of her mental capacity. (Carpenter v. Calvert, 83 Ill. 62; Wilcoxon v. Wilcoxon, 165 id. 454.) The contestant himself always treated his mother as if fully competent to 'transact business. In none of his letters written to Bradley and others did he ever intimate that his mother was mentally afflicted in any way. He took deeds from her to valuable property and made exchanges with her and followed her directions in financial matters without question as to her ability to transact business, and after her death he wrote to Bradley, who was named in the will as executor, that he knew of no reason why he should not go on and settle the estate.
Reverting again to contestant’s evidence, there was some evidence tending to prove that Mrs. Benedict was addicted to the use of morphine; that she was in the habit of taking sub-cutaneous injections of this drug in her arm. That at times, when she was suffering from the effects of cancer, morphine was administered, is, from the evidence, probably true; but that she took it continuously for many years, as counsel contend, to such an extent as to impair her mental faculties, was not proved. The preponderance of the evidence is to the contrary.
Prom a careful examination of the entire record we have no doubt that the testimony of the five medical experts called on the trial by the contestant was given more weight and importance by the jury than it was entitled to. They had never seen Mrs. Benedict, as had the physicians who testified for the proponents, but testified wholly from hypotheses of facts framed by appellee’s counsel. As we have seen, the assumed facts were not established but were in the main disproved. The other evidence in the case was mainly in writing, and these physicians called by appellee were the principal witnesses who testified orally before the jury. Under the circumstances there was danger that the opinions and statements of these expert witnesses would influence the jury, even though the assumed facts upon which they were based were not established by sufficient proof. It is not meant that the testimony was incompetent, but only that in view of the failure of the contestant to establish the hypothesis upon which it was based it is entitled to no weight in the decision of the case.
Complaint is made by appellants that the court permitted counsel for the complainant, against the objections of the proponents, to argue to the jury that the will in evidence before them contained inherent evidence of the mental incompetency of the testatrix. We think the court did not err in refusing to limit counsel in their argument in the respect mentioned. It was within the province of counsel to present to the jury, by argument, their contentions as to what any part of the evidence tended to prove, whether contained in the testimony of witnesses, the letters or other writings of the testatrix. If the maker of a will should put into it matter evincing insanity, we see no reason why it could not be commented upon as legitimately as if such matter were in a letter or any other writing, or should be contained in oral declarations. Such argument may generally be sufficiently met by opposing argument. The argument to the jury of counsel for contestant was, that it was Mrs. Benedict’s intention, as disclosed by the will itself, to bring about a separation between the complainant and his wife, by depriving him of the right to use any part of the income given to him by the will for her support and maintenance, and further to confer absolute power upon the executor, at his own uncontrolled discretion, to stop forever the payments of such income to the complainant, —in other words, to destroy the trust in his favor altogether. This was manifestly an incorrect view of the intention, in fact, of the testatrix as shown by the will. We are unable to see anything in the will which, of itself, shows any mental incapacity or unsoundness of mind on the part of the testatrix, and, as in any other case where there is no evidence, the court might have been asked to instruct the jury, if the circumstances required it, that, considered by itself alone, as a writing of the testatrix, the will did not tend to prove the mental'incapacity of the testatrix. No inference of fact can be drawn from the will that it was the intention of the testatrix to bring about a separation between her son and his wife or to prevent him from supporting his wife. Evidently her intention was to control the income in the hands of the executor and to create a spendthrift trust, so that it might not be diverted from the support and maintenance of her son—not even for alimony or any independent support and maintenance of the wife in case there should be a divorce or separation between them. And in this view it would seem that it was the intention of the testatrix to guard against the effects of a separation which she may have feared would take place. In certain letters of Mrs. Palmer she had written of the shame, degradation and humiliation brought upon her by the drunkenness of the complainant, and that she had been advised by her friends to stand it a while longer for the sake of her children. The complainant had been divorced from his first wife, and it may. well be that the testatrix feared a divorce or separation between him and his second wife, and thought it prudent to provide that none of the income from her estate should be diverted from his support to pay alimony or other support of the wife. It was the understanding of Mrs. Benedict that Mrs. Palmer had an independent support of her own.
There were many facts and circumstances in evidence which, although fully considered by us, we have not adverted to, and cannot do so without extending an opinion already too long to a still greater length.
Counsel for appellee insist that in cases of this character it is the rule of this court that it will not disturb the verdict of the jury where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict, and that, applying this rule, this court will not reverse the decree in this case although it may appear that the verdict on which it is based is against the weight of the. evidence. In Calvert v. Carpenter, 96 Ill. 63, we said (p. 65): “The verdict of the jury in cases of this character is to have the same force and effect as is given to a verdict in a case at law under a like state of facts; and where, in such case, the verdict is not manifestly against the weight of evidence, the court is bound by it in the same manner and to the same extent as if it were a case at law. This construction of the statute is so well settled that it can no longer be regarded as an open question,”—citing Brownfield, v. Brownfield, 43 Ill. 147, and Meeker v. Meeker, 75 id. 260.
In Shevalier v. Seager, 121 Ill. 564, this rule was again stated, and it was said (p. 568): “In the first place, it has long been the settled doctrine of this court that the verdict of a jury in a contested will case, like the present, stands upon the same footing as a verdict in a common law case, where it is sought to impeach or set it aside on the ground that it is not sustained by the evidence. (Brownfield v. Brownfield, 43 Ill. 147; Meeker v. Meeker, 75 id. 260; Calvert v. Carpenter, 96 id. 63; Long v. Long, 107 id. 210; American Bible Society v. Price, 115 id. 623.) The question then recurs, what is the rule in common law cases in respect to granting new trials on the ground that the verdict is contrary to the evidence? The question stated has been frequently answered by this court under various circumstances, and in language, though often differing in form of expression, yet always practically amounting to the same thing. This is fully shown by the following cases .cited in appellee’s brief: Johnson v. Moulton, 1 Scam. 532; Roney v. Monaghan, 3 Gilm. 85; O’Reily v. Fitzgerald, 40 Ill. 310; Chicago and Great Eastern Railway Co. v. Vosburgh, 45 id. 311; DeClercq v. Mungin, 46 id. 112; Young v. Rock, 48 id. 42; St. Louis, Jacksonville and Chicago Railroad Co. v. Terhune, 50 id. 151; Illinois Central Railroad Co. v. Gillis, 68 id. 317. The case last mentioned contains, perhaps, as clear and apt a statement of the rule, if not more so, than any of them. It is there said: ‘If any rule of court can be so well established as to be neither questioned nor require the citation of authorities to support it, it is that a verdict will not be set aside whenever there is a contrariety of evidence, and the facts and circumstances, by a fair and reasonable intendment, will authorize a verdict, notwithstanding it may appear to be against the strength and weight of the testimony.’ In the later case of Calvert v. Carpenter, 96 Ill. 63, which, like the present, was a contested will case, the rule is formulated in fewer words, though in substance it amounts to the same thing. In that case, as in this, there was a direct conflict in the testimony as to the testator’s capacity to make a will, and it was there said: ‘This coujt will not reverse the judgment of the trial court where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict.’”
In Moyer v. Swygart, 125 Ill. 262, we said (p. 268): “The rule is, on questions of this kind the finding of the jury is conclusive unless clearly against the weight of the evidence, and in this respect they are put upon the same footing with cases at law? Another rule of law is equally as well settled by the previous decisions of this court. It is: where there is an irreconcilable conflict in the testimony touching the facts upon which the validity of the will depends, this court will not reverse the decree of the lower court if the evidence of the successful party, when considered alone, is clearly sufficient to sustain the verdict. The practice in that respect has been uniformly adhered to in this court, and no reason is perceived why it should be departed from in the case being considered.” See, also, Hollenbeck v. Cook, 180 Ill. 65; Entwistle v. Meikle, id. 9; Egbers v. Egbers, 177 id. 82; Petefish v. Becker, 176 id. 448; Smiths. Henline, 174 id. 184; Harp v. Parr, 168 id. 459; Hill v. Bahrns, 158 id. 314; Bevelot v. Lestrade, 153 id. 625; Sinnet v. Bowman, 151 id. 146.
Manifestly, it was never said by this court, nor intended that it should be understood, that the court will not interfere with a verdict, in a case of this kind, on the ground that it is clearly against the weight of the eyidence, where the evidence is conflicting, unless the evidence of the successful party, standing alone and considered by itself, is insufficient to sustain the decree. It has been repeatedly said that the rule is the same as in cases at law, and the statement of it in some of the cases in this form, “that where there is a conflict in the evidence this court will not reverse the decree if the evidence of the successful party, when considered alone, is sufficient to sustain the decree,” is clearly subject to the qualification usually stated in the cases, that the verdict is not clearly against the weight of the evidence. When, as in the case at bar, the record shows that the verdict is against the clear weight and preponderance of the evidence, it will be set aside, as in cases at law.
Counsel for appellants insist that the decree should be reversed with such directions as to finally settle the controversy in this court. We have no power to direct a dismissal of the bill. The complainant is entitled to a trial by jury as upon an issue at law. We are satisfied, however, that the verdict is against the great weight and preponderance of the evidence, and it should have been set aside for that reason by the court below.
The decree is reversed and the cause remanded for further proceedings as to law and justice may appertain.
Reversed and remanded.