Mr. Justice Magruder
delivered the opinion of the court:
The bill in this case seeks to set aside the will of the testator upon the ground that at the time of its execution he was not of sound mind and memory, and also upon the ground that his son, Perry Joseph England, exercised an undue influence over him, so that the execution of the will was not his own act.
A large amount of testimony was taken upon the question, whether or not the testator was of sound mind and memory when he made his will. Nearly all this testimony has reference to the condition or state of the testator’s mind, as shown by his actions and expressions prior to his last illness, The evidence tends to show that, before the beginning of the final sickness which resulted in his death, the testator was a man of sound mind and memory. One of the contentions of the plaintiffs in error is, that there was not sufficient evidence, sustaining the charge that he was not of sound mind and memory, to warrant a submission of the case to the jury upon that question. We do not deem it necessary to pass any opinion upon this question, although there is some evidence, tending to show that during his last sickness when his will was made his mind and memory were not as sound as they had been theretofore.
The other charge in the bill, upon which it was sought to set aside the will, was the charge of undue influence, exercised over the testator by his son, the plaintiff in error, Perry Joseph England. The charge in the bill is, “that said deceased in executing same [his will] was under improper restraint and undue influence from said arts and fraudulent practices of said Perry Joseph England.” There was sufficient evidence upon this branch of the case to submit to the jury the question, whether the paper introduced in evidence, as the will of the deceased, was in fact his will. The verdict of the jury is general in terms, and does not specify whether in the opinion of the jury the testator was of unsound mind and memory, or whether he was the victim of undue influence.
The plaintiff in error, Perry Joseph England, lived on his own farm near the home of his father, At the time of his death the testator was a widower and lived alone on his own place. His daughter, Mrs. Mott, the mother of the defendant in error, who had kept house for him, had died in 1896, and after that date he seems to have been surrounded by hired servants, and not by any of his family.
On the morning of January 9, 1902, three days before the testator’s death and while he was very sick, his son, Perry, was with him, and the subject of making his will was talked of between them. A man, named Rayburn, who had been justice of the peace for many years in Menard county, lived north-east of the testator on an adjoining farm. On January 9, Perry England sent his son after Rayburn to come to the testator’s house to draw his will. He invited Rayburn into the house, gave him a seat in an adjoining room, and went alone intp the sick room, and talked with .the testator for some time. Perry’s daughter was there. In a few minutes Perry called Rayburn into the bed-room where his father was lying in bed. While Rayburn was sitting in the sitting-, room, he could hear Perry’s voice talking to his father, but could not - hear what he said. When Perry called Rayburn into the sick room, he informed his father that Rayburn had come to fix his will. The testator then made some remark about his son, Paren, saying that he did not know where he was, and had not heard from him for two years, and said that, if Paren should come back within five years, he was to have his share of the estate, and if not, it was to be divided among the others. The. testator then told Rayburn that he wanted his daughter, Maranda, to have a certain picture; that he wanted to give Perry $1500.00, and to give his grand-daughter, Mattie Fawbush, $5000.00, but Perry corrected him so as to make the amount $500.00. Upon this subject Rayburn says: “He wanted to give Perry $1500.00, and to give Mattie Fawbush, he said, $5000.00, and Perry said to me or him, I don’t know who he meant to say it to, ‘He means five hundred;’ and the old man laid there a little bit, and then he says, ‘Yes, five hundred;’ and then he wanted the balance of his property divided equally between the heirs. I think he named them.”
Rayburn says that they then went out into the other room to draw the will. He there found lying on a stand the blank form of a will. He said to Perry: “What is this doing here?” And Perry said, “I had it here in case of an emergency. I have had it two years.” Rayburn states that he had forgotten his glasses, and did not have them with him, and asked Perry if he could not write the will. Perry said: “I will write it if you will tell me what to put in it.” Rayburn said, “All right.” Perry offered to send his son, Jesse, after the glasses, but Rayburn said it was a short will, and it could be written before his son would get back with the glasses. Rayburn then states that he dictated the will, and Perry wrote it down. At first he wrote the will with a pencil. Rayburn says that he dictated the will as the testator had directed him to make it, and Perry wrote it down in pencil. At this point Rayburn says: “He wanted to give Perry $1500.00, and he wanted Maranda to have that picture, and Martha Pawbush to have $500.00, $5000.00 he said, and Perry kinder corrected him, and he said then $500.00, and then the balance of his property he wanted divided equally between his children.” Rayburn further states that, after the will had been thus drafted in pencil, they went in, and Perry read it to his father, whereupon Rayburn asked the testator if it was correct, and the testator answered “Yes.” They then went back into the sitting-room, and got another sheet of paper, and Perry wrote the will with pen and ink. Perry read over the will to Rayburn as he had written it in ink, and they then went back into the sick room, and Perry read the will again to his father. The will was not read to the testator clause by clause, but as a whole, from beginning to end without stopping. It was read to his father by Perry, and the latter was as close as he could get to the testator.
The witnesses were in the yard, and at least two of them had been sent for by the plaintiff in error, Perry Joseph England. Perry went out and brought the witnesses in. He said nothing to them about signing the will as witnesses, and Joseph Myers said, “Uncle Jesse, that is your last will, is it, and you want us to sign as witnesses?" and he said, “Yes;” then they all signed it. Rayburn says that the testator did not request them to sign the will, but, when Myers asked him if he wanted them to sign it, he said “Yes.” When Rayburn left the room after the testator had talked to Rayburn in Perry’s presence about his will, Perry said: “Don’t let anybody go in there while we are away."
Upon cross-examination, Rayburn says that he did not know whether the testator “was or not of sound mind and memory at the time he executed that will. The only thing he said was ‘Yes’ in answer to what Joe Myers said to him; he was very sick; I noticed, when he was talking, he would stop and kinder catch his breath like he was short of breath; he was very hard of hearing.” He says also he does not know whether the testator heard what was read or not, but says, “After he read it, I asked him if that was all right, and he said ‘Yes; ’ that was all the answer he made.” Rayburn further says on cross-examination, “Perry was to get $1500.00.—Q. Then about Martha Fawbush?—A. Well, when he came over that he said five thousand, and Perry said ‘He means five hundred.’ The old gentleman laid there a little bit, then he said, ‘Yes, five hundred. ’” Rayburn also says that, when they were preparing the pencil draft, Perry said something about a note that his father held against him for $1500.00. The extra amount, given him by the will, would appear to have been the exact amount of the note held against him by his father. When Perry called the witnesses into the bed-room, Rayburn told the testator that he (thé testator) must request the witnesses to sign, and that it would not do for any one else to do so; and that the testator then said: “What is it their business about my will?” When the will was signed, the testator was propped up in bed, Perry supporting him, and sitting behind him while he signed it. One of the witnesses suggested that, in view of the illegible signature of the testator, his hand should be held and the will should be re-signed, but Perry refused to comply with this suggestion. When the witnesses came in, there was quite a pause, and they waited for the testator to request them to sign. Perry then said to his father: “Tell these men what you want them to do,” but he said nothing, until Myers asked him if that was his will and if he wanted them, to sign it as witnesses; and he then answered “Yes.” The word “yes,” thus uttered, was the only word spoken by him in the presence of the witnesses. He was at the time suffering pain from pneumonia and pleurisy. The doctors say that he was afflicted with Bright’s disease, kidney, lung and heart trouble. •
It thus appears that Perry Joseph England, one of the plaintiffs in error and one of the chief beneficiaries in the will, made preparations beforehand for the drawr ing of the will, sent for the scrivener to draw the will, sent for one or more of the witnesses to witness the will, talked with the testator about the will before the scrivener was called into the sick room, went into the sick room with the scrivener, wrote the will with his own hand, both the pencil copy and the ink copy, read the will to his father, held his father up in bed while he signed the will, gave instructions that no one be admitted to the sick room while he was writing the will, and corrected his father, when the latter directed the scrivener to write in the will a legacy of $5000.00 to defendant in error, by telling the scrivener, or by remarking in the presence'of the scrivener, that his father had made a mistake, and that the correct amount was $500.00, instead of $5000.00.
In addition to all this, Rayburn says upon his cross-examination: “When he [Perry] .commenced to copy it [the will] in ink, somebody said dinner was ready; he told me to g'o on to dinner, that he had the form there now, that he could write it, as well without me as with me, and I went on to dinner. When 1 got back, he was still writing, nearly done. Then he took it, and read it to the old gentleman, in about the same tone of voice. The old gentleman was still in bed. I don’t know whether he heard it or not; he read right along just as he did at first.”
Where a will is written, or procured to be written, by a person largely benefited by it, such circumstance excites stricter scrutiny and requires stricter proof of volition and capacity. The proof, required in such cases, must be such as to fully satisfy the court or jury that the testator was not imposed upon, but knew what he was doing", and what disposition he was making of his property when he made his will. The active agency of the beneficiary of a will in procuring it to be drawn, especially in the absence of those who have at least equal claims upon the justice of the testator, and where the testator is enfeebled by old age and disease, is a circumstance which indicates the probable exercise of undue influence. Where the mind is wearied and debilitated by long" continued and serious and painful sickness, it is susceptible to undue influence and is liable to be imposed upon by fraud and misrepresentation. “The feebler the mind of the testator, no matter from what cause,— whether from sickness or otherwise,—the less evidence will be required to invalidate the will of such person.” (Purdy v. Hall, 134 Ill. 298; Smith v. Henline, 174 id. 184; Keyes v. Kimmel, 186 id. 109).
In view of the testimony, which has been quoted and referred to, it cannot be said that there was no evidence before the jury, authorizing them to pass upon the question whether or not the will was the result of an exercise of undue influence over the testator by his son, Perry Joseph England.
The court gave to the jury the following instruction:
“The court instructs the jury that, if you believe from the evidence, that Jesse England was by any fraud, compulsion or improper conduct on the part of Perry J. England, induced or unduly influenced to make the paper alleged to be his will, then you should find that the paper in question is not his will.”
The jury having found under this instruction, and others, which were given to them, that the paper in question was not the last will and testament of Jesse England, we are not disposed to disturb the decree of the court below setting" aside the will, based upon their verdict, unless it appears that the trial court committed some error of law, which requires a reversal. It remains, therefore, to consider the alleged errors complained of by the plaintiffs in error.
The plaintiffs in error contend that the court erred in giving the first instruction, which it gave for defendant in error, the contestant. That instruction is as follows:
“The court instructs the jury that inequality in the distribution of property among those who would inherit if no will had been made, is not of itself evidence of undue inflúence or unsoundness of mind, yet it maybe considered as a circumstance by the jury, together with all the other facts and circumstances shown by the evidence, as tending to establish undue influence or unsoundness of mind.”
We are unable to see any error in the giving of this instruction in view of the decisions heretofore made by this court upon this subject. We have held that, while inequality in the distribution of property is not of itself conclusive evidence of undue influence, yet it may be considered as a circumstance, tending to establish undue influence, in connection with all the other facts and circumstances in the case. (Webster v. Yorty, 194 Ill. 408; Hollenbeck v. Cook, 180 id. 65; Kaenders v. Montague, 180 id. 300; Taylor v. Pegram, 151 id. 106; Pooler v. Cristman, 145 id. 405).
The second instruction, given for defendant in error, is also complained of. That instruction tells the jury “that, if you believe from the evidence the said Jesse England, at the time he executed the will now in question, was feeble in body and mind from sickness, old .age or otherwise, and that while in this condition his son, Perry Joseph England, unduly influenced him to make said purported will, and that at said time the said Jesse England was not a free agent, but was under the undue influence of said Perry Joseph England, then you should so find by your verdict.” The views, expressed in this instruction, have been endorsed by this court in a number of cases. We have said that advanced age and loss of memory do not necessarily of themselves indicate a want of capacity to dispose of property, but that a testator is more liable to be unduly influenced when his mind has become impaired by serious sickness, and that undue influence, which will justify the setting aside of a will, must be such as to deprive a testator of his free agency. (Pooler v. Cristman, supra; Taylor v. Pegram, supra; Purdy v. Hall, 134 Ill. 298; Francis v. Wilkinson, 147 id. 370). In Francis v. Wilkinson, supra, we said (p. 381): “Undue influence, which will justify the setting aside of an executed deed, must have been of such a nature as to deprive the grantor of his free agency, and thus to render his act more the offspring of the will of another than of his own will.”
It is said, however, in regard to the first and second instructions, given for the defendant in error by the trial court, that these instructions single out certain circumstances, and make them the subjects of instructions, as tending to prove undue influence. In support of this contention the case of Rutherford v. Morris, 77 Ill. 397, is referred to. But in Pooler v. Cristman, supra, the case of Rutherford v. Morris, if not actually overruled, was weakened by the remarks made by this court in reference thereto. In Pooler v. Cristman, supra, it was said: “But what is said in Rutherford v. Morris was not concurred in by a majority of the court, and cannot be regarded as authority.” In addition to this, the defect, charged against the instructions, of singling out particular circumstances as tending to prove undue influence, can have no force when all the instructions are read together. It has often been said by this court that all the instructions must be regarded as one charge; and, where one instruction mentions one circumstance, and another another circumstance, so that all the material circumstances are thus brought before the jury,, there is no singling out of any particular circumstance, so as to give it an undue prominence. In the case at bar, while one instruction may refer to inequality in the distribution of property, and another to feebleness in mind and body from old age, and another to some other circumstance, yet all the material facts and circumstances, disclosed by the evidence, were by the instructions, viewed as one charge, correctly presented to the minds of the jury.
What has been said in regard to the first and second instructions, given for the defendant in error, disposes of the criticisms made by counsel for the plaintiffs in error upon the fifth instruction, given by the trial court for the defendant in error.
Complaint is made of the tenth instruction, given by the trial court for the defendant in error. That instruction is as follows:
“The court instructs the jury that, when undue influence is alleged, the real inquiry is this: Did the testator make and execute the alleged will, in all its provisions, of his own free will and volition, so that it now expresses his own wishes and intentions; or was the testator constrained or induced, through the undue influence, restraint, coercion or improper conduct of others, to act contrary to his own desires and intentions as regards the disposition of his property or any part of it?”
We think the language of this instruction is substantially endorsed by the following cases: Francis v. Wilkinson, supra; Taylor v. Pegram, supra; Yoe v. McCord, 74 Ill. 33. Counsel for plaintiffs in error seem to object to the words “improper conduct of others,” as used in the instruction, upon the ground that the word, “others,” would seem to refer to improper conduct, not only on the part of the plaintiff in error, Perry Joseph England, but of some other person. The objection is hypercritical, but the evidence does show that the scrivener, Eayburn, readily yielded to the suggestion of plaintiff in error, Perry Joseph England, when the latter corrected the directions of his father by substituting $500.00 in the place of $5000.00 in the drawing of the will. Eayburn also permitted Perry England to write the will, when a slight delay would have placed it in his own power to draw the will as he was requested to do by the testator. Although he states that, after the copy in ink was drawn, he and Perry compared together the pencil copy and the copy in ink, yet it is to be remembered that he was still without his glasses, and their absence was the excuse for permitting the main beneficiary in the will to draw the will himself. There is also a portion of the testimony of Eayburn, which tends to show that, after making specific bequests to certain of the heirs, the testator intended the residue of his property to be divided between all the “heirs.” If the word, “heirs,” bad been used in the will,the defendant in error would have been included within the terms of the will, because, her mother having died, she, by representation, would, as heir, have taken the same interest, which would have gone to her mother, if her mother had been living. It is not altogether clear from the testimony of Eayburn, whether the original directions of the testator required the residue to be divided among all his heirs, or among all his children, but the testimony, taken as a whole, is as much in favor of an intention to give the residue to the heirs, as to limit it to the children of the testator. Moreover, it does not appear that, in the directions given to the scrivener by the testator, the words, “said amount to be her entire share in my estate,” were used. Those words, however, appear in connection with the bequest of $500.00 to the defendant in error, showing a determination to limit the bequest to the defendant in error to $500.00, when the language, originally used by the testator, would tend to show that it was his intention to give his grand-daughter $5000.00, instead of $500.00.
Complaint is also made of the eleventh instruction given by the trial court in behalf of the defendant in error. That instruction is as follows:
“The. court further instructs you that if you believe from a preponderance of the evidence in this case,-that Jesse England, at the time of the execution of the purported will, was so diseased mentally that he was incapable, by reason of mental weakness, caused by disease; old age,' or other derangement, of acting rationally in the ordinary affairs of life, and of intelligently comprehending the disposition he was making of his property, and the nature and effect of the provisions of said alleged will, then they should find that the writing" produced is not the will of Jesse England, deceased.”
This court has said: “It cannot be said, as a matter of law, that because incapable of transacting ordinary business a person is incapable of making a testamentary disposition of his estate.” (Taylor v. Cox, 153 Ill. 220; Craig v. Southard, 148 id. 37; Sinnet v. Bowman, 151 id. 146). The holding of this court in such cases is, that the real question to be submitted to the jury is, “not whether the party had sufficient mental capacity to comprehend and transact ordinary business, but did he, at the time of making the instrument purporting to be his will, have such mind and memory as enabled him to understand the particular business, in which he was then engaged?” (Ring v. Landless, 190 Ill. 520). In Taylor v. Cox, supra, we held that an instruction, which told the jury that, to establish testamentary capacity, it was necessary to show both sufficient mental capacity to knowingly and understandingly transact the ordinary business of life, and also to comprehend the act of disposing, of the testatrix’s property, was erroneous. It is not altogether clear that the words, used in instruction numbered 11 here under consideration, to-wit, “acting rationally in the ordinary affairs of life,” have the same meaning as the words, “to knowingly and understandsgly transact the ordinary business of life.” But, if the two expressions do have the same meaning, instruction numbered 11 does not say that, in order to establish testamentary capacity, it is necessary to show both sufficient mental capacity to knowingly and understandingly transact the ordinary business of life, and also to comprehend the act of disposing of the testator’s property. Instruction numbered 11 merely requires the jury to believe that not only, at the time of the execution of the will of Jesse England, he was incapable, by reason of mental weakness, etc., of acting rationally in the ordinary affairs of life, but, in addition to this, that, at that time, he was incapable of intelligently comprehending the disposition he was then making of his property, and further that, at that time, he was incapable of understanding the nature and efliect of the provisions of said alleged will. If the testator was incapable of intelligently comprehending the disposition he was then making of his property, he was certainly incapable of transacting the ordinary business of life, and, in this respect, the instruction was not erroneous, because, in order to give the testator credit for testamentary capacity, it was only necessary for the jury to find that he was capable of intelligently comprehending the disposition he was then making of his property, whether he was capable of transacting the ordinary business of life, or not. The doctrine of this court is that the testator has testamentary capacity, if, at the time of making the instrument purporting to be his will, he has such mind and memory as enables him to understand the particular business in which he is then engaged. This instruction, though awkwardly drawn, does not lay down the contrary of this proposition. But if it should be regarded as erroneous in this respect, other instructions were given which laid down the correct rule as to testamentary capacity. Some of the instructions so given were asked by and given for the plaintiffs in error themselves.' For instance, in instruction 5 given for the plaintiffs in error, the jury were told “that to be of sound mind and memory so as to be capable of making a valid will, it is sufficient if the testator has an understanding of the nature of the business in which he is then engaged, * * If his mind and memory are sufficiently sound to enable him to know and understand the extent and amount of his property, and his just relations to the natural objects of his bounty, and the business in which he is engaged at the time of executing his will, then he is of sound mind and memory within the meaning of the law.”
But it is well settled that a party cannot complain'of. an instruction, asked -by and given for his adversary, if he has asked for and obtained an instruction of the same character. The third instruction, given for plaintiffs in error at their request, began as follows: “The court instructs the jury that, in order to make a valid will, it is only necessary that a man shall have mental capacity sufficient for the transaction of the ordinary affairs of life, and possessing this, even though he may be feeble in mind and body from sickness or old age, he has the legal right to dispose of his property just as he pleases,” etc. In view of what is said, we are unable to say that injury was done the plaintiffs in error by the giving of instruction numbered 11 complained of by them.
It is further charged that the trial court erred in refusing to give the fourteenth and fifteenth instructions asked by the plaintiffs in error. The fourteenth instruction so refused is as follows:
“The court instructs the jury that if they find from the evidence that the deceased in making the will in question was influenced by affection or attachment, or a disposition to gratify the wishes of defendant, Perry Joseph England, or by his advice and entreaty, that would not be sufficient ground for setting aside the will.”
The fifteenth instruction so refused is as follows:
“The court instructs the jury that advanced age and impairment of memory do not necessarily and of themselves show a want of capacity to make a valid will and dispose of property.”
There was no error in refusing- the fourteenth and fifteenth instructions for the reason that their substance is embodied in instructions 10 and 11, and 8 and 6 given for the plaintiffs in error. The four latter instructions embodied fully all the ideas expressed in the fourteenth and fifteenth refused instructions.
It is said that the trial court erred in admitting improper evidence. The court permitted some evidence to be introduced, showing the relations which existed between the testator and his deceased daughter, Mrs. Mott, to the effect that she had kept house for him, and that his feelings towards her were kindly and affectionate. Some evidence was also admitted, tending to show attempts on the part of Perry Joseph Engiand to influence his father to refuse pecuniary aid to one of his sisters, when such aid was asked for. We recognize fully the doctrine, frequently announced by this court and insisted upon by counsel for plaintiffs in error, that statements made by the testator, either before or after the execution of a contested will, which are in conflict with the provisions thereof, do not invalidate or modify such will in any manner, and that parties, making wills, cannot invalidate” them by their own parol declarations made previously or subsequently. (Dickie v. Carter, 42 Ill. 376; Taylor v. Pegram, supra; Kaenders v. Montague, supra; Harp v. Parr, 168 id. 459). We do not regard the testimony complained of as in any way contravening this rule. It was not testimony of the character, condemned by the rule. In Wilbur v. Wilbur, 138 Ill. 446, we said (p. 450): “While it is true that the undue influence which will invalidate a will must be present and exercised over the mind of the testator at the time the will is made, yet it is competent to prove previous conduct of the one charged with procuring it to be made, as tending to show his influence over the testator at such time.” It is also a well settled rule that, while the declarations of the testator are not admissible to show an express revocation of his will, oh the fact that it was executed under duress or undue influence, they may nevertheless be proved and used to show his mental condition at the time of the execution of the will, or so near the time that the same state of affairs must have existed. (Reynolds v. Adams, 90 Ill. 134).
We are of the opinion that there was sufficient evidence, introduced before the jury, to justify them in finding that this will was produced by improper conduct and undue influence on the part of the plaintiff in error, Perry Joseph England. We are also of the opinion that plaintiffs in error have not pointed out any errors, committed by the trial court, of sufficient importance to justify us in reversing the decree of the circuit court, based upon the verdict so rendered by the jury.
Accordingly, the decree of the circuit court is affirmed.
Decree affirmed.