delivered the opinion of the court:
The county court of Iroquois county admitted to probate the will of Mary A. Williams, deceased, a widow, who left no children or lineal descendant and no brother or sister. Appellant, a nephew, prosecuted an appeal to the circuit court of said county, where there was a trial de novo before the court and the will was again admitted to probate. Appellant then prosecuted this further appeal.
The execution of the will by Mary A. Williams was proved and was admitted by the appellant, and there was a formal attestation clause attached thereto, signed by R. J. Hanna and William Fraser as witnesses. R. J. Hanna, one of the subscribing witnesses, died before the will was probated, and proof of his handwriting was made and not disputed. The other subscribing witness, William Fraser, testified to all the facts required by the statute, and the will was fully proved if the attesting witnesses were competent to act as such. The claim of appellant is that R. J. Hanna was not competent to act as a subscribing witness, for the reason that his grandson, Thomas W. Hanna, was a legatee under the will, to whom $1000 was bequeathed. The Statute of Wills requires a-will to be attested by two or more credible witnesses, and in case of the death of a witness, proof of his handwriting is admissible with the same effect as if he had appeared and testified in his own person. The word “credible,” as used in the statute, means “competent.” (In the matter of the will of Noble, 124 Ill. 266.) It means a witness who, at the time of attesting a will, would be legally competent to testify in a court of justice to the facts which he attests by subscribing his name to the will. There can be no doubt, that a witness would be competent to testify against an heir on an issue involving the execution of a will and the mental capacity of the testator, although his grandson might be interested in the result of the litigation. The interest which disqualifies a witness in-such a case must be a present, certain, legal interest of a pecuniary nature. The test is whether he will either gain or lose, financially, as the direct result of the suit, or whether the judgment or decree will be evidence for or against him in another action. Boyd v. McConnell, 209 Ill. 396.
Counsel do not deny that such is the rule to be applied to witnesses generally, but they say that by our statute the subscribing witnesses to a will are not mere witnesses; that they are made judges of the mental capacity of the testator and exercise judicial power in determining whether the testator is mentally competent to execute a will, and that it is their finding and judgment on that question which entitle the will to probate. They insist that Mr. Hanna was incompetent as a witness for the same reason that a judge who is related to a party to a cause is incompetent to hear and determine the cause. In other words, they say that a competent subscribing witness to a will must be competent to sit as a juror or judge in a suit between the heir and the legatees or devisees under the will. We cannot agree with counsel that the attesting witness exercises judicial power or judicial functions. It is true that no man can be a judge in his own cause or where he is related to a party in interest, and by our constitution the judicial powers are vested in certain courts. No law can vest judicial power in attesting witnesses and authorize them to adjudge, decide and render a judgment in a cause, and the Statute of Wills does not purport to do so. Proof of the mental capacity of the testator is one of the steps necessary to the probate of a will, and in the county court, or upon appeal from an order allowing probate, the parties are confined to the testimony of the subscribing witnesses on that question. (Walker v. Walker 2 Scam. 291; Andrews v. Black, 43 Ill. 256.) But the attesting witnesses, on the application for probate, do not exercise different powers or functions from any other witness testifying to a fact. They neither construe nor apply the law nor render a judgment.
Counsel also argue that if Mr. Hanna is held to be a competent witness the statute in unconstitutional, as against the natural right of the appellant to have his cause heard by an impartial judge, and in violation of section 1 of article 6 of the constitution, by taking from the judgment and consideration of the court the question of mental capacity of the testatrix and vesting it in the attesting witnesses. As we think that the witnesses, in testifying to the facts observed by them and in giving their opinion as to mental capacity based on such facts, are not exercising judicial power, it follows that we do not regard the statute as unconstitutional.
It is next contended that the will is void because it was written by an attorney who was named in it as executor. The will was prepared at the direction of the testatrix by Harrison Boring, who had been her attorney for many years. She was desirous of having Mr. Boring act as her executor but he declined to do so. She urged that his name should be put in, and said that if he would not act she wanted Mr. Bonfield, one of the appellees. Mr. Boring went to see Mr. Bonfield, who agreed to act, and the will was then prepared-naming Mr. Boring as executor, with a provision that if he should be dead or unable to act, or should refuse to do so, Mr. Bonfield should be executor. There was no intention on the part of Mr. Boring to act, and he refused to do so before the will was offered for probate. But the fact that he was named as executor does not affect the validity of the will. The fact that the person who draws a will or assists in its preparation is named as executor may be one of the circumstances to be considered" upon a different issue, but it has never been held, under our law, that a will would be invalid for that reason.
It is next argued that the Statute of Wills, as construed by this court to limit the evidence as to mental capacity on an application in the county court to probate a will, and on appeal from an order allowing probate, to the testimony of the subscribing witnesses, is in contravention of section 2 of article 2 of our constitution and the fifth amendment to the constitution of the United States, in depriving appellant of a share in the property of Mary A. Williams, as her heir, without due process of law, and also of section i of the fourteenth amendment to the constitution of the United States. As we understand the argument, it is that a statute is unconstitutional which limits the right of a contestant to introduce testimony, on an application to probate a will, on the subject of the mental capacity of the testator; that the heir has a constitutional right to demand that the court shall hear all the testimony he may offer to defeat a will which excludes him from his inheritance, and that the very essence of due process of law is the right to be heard upon all the evidence he can adduce. The proceeding to probate a will and admit it to record is not designed as a final and conclusive determination of the testamentary capacity of the testator upon all the evidence that may be produced. The purpose is only to establish testamentary capacity prima facie in order that the will may be recorded, the estate cared for and the administration proceed. (Claussenius v. Claussenius, 179 Ill. 545; Moody v. Found, 208 id. 78.) The provision of the Statute of Wills is, that upon certain proof being made to the court the will shall be admitted to record. That proof embraces the execution-of the will and the capacity of the testator to make it, with a reservation to any party interested, of the right to show fraud, compulsion or other improper conduct sufficient to invalidate or destroy the will. The act of 1897 provides for notice to heirs, but no issue is formed and there is no final judgment as to the validity of the will. The law provides for a proceeding in which an issue is to be made ■yvhether the writing is the wi}l of the testator or not, where that question is finally to be determined. The right to file a bill and have such an issue formed is in no manner affected by the fact that some or all of the contestants may have appeared in the county court and cross-examined the subscribing witnesses to the will. (Shaw v. Moderwell, 104 Ill. 64.) The right is not denied, limited or affected in any way by the fact that the will has been admitted to record, but in that proceeding the validity of the will is presented as a new and original question, without reference to the fact of probate. (Tate v. Tate, 89 Ill. 42.) The whole question is heard anew, and the burden of proof of due execution and mental capacity is upon the proponents of the will to the same extent as it was before the probate. (Potter v. Potter, 41 Ill. 80.) The statute does not permit a will to be recorded without certain proof, but it does not deprive any party of his property without due process of law. On the contrary, it affords ample protection to the heir, who may call upon those claiming under the will to establish its validity.
It is said that the court erroneously refused to consider certain testimony introduced by appellant on the question of the mental capacity of the testatrix. The testimony was heard by the court subject to objection and was never stricken out, and there was no subsequent ruling concerning it. There is nothing in the record to show whether it was considered or not, but if the court refused to consider it the refusal was right.
Errors are also assigned on many rulings of the court in refusing to admit evidence offered by appellant, but the rulings were all in harmony with the views we have expressed.
The judgment is affirmed.
Judgment aMrmed,