the premises the Springer process and appa- | ing the pendency of the suit, had much less ratus for the manufacture of gas, and furnish than a month to run. the company, during the two years, all the gas required for use in its shops and houses at net cost, with certain stated guaranties as to the quality and cost of such gas; and at the end of the two years, if the quality and cost of the gas furnished complied with the requirements of the contract, the railway company agreed to pay the cost and expense of constructing the new gas-works, and any additions thereto; and the agreement provided that the railway company "thereafter shall own and control the same." There was also a provision in the agreement that the gasworks and apparatus already in use should remain intact; so that, if Springer failed to comply with his agreement, and furnish gas of the quality, etc., required, then the old works could again be used. Manifestly, the furnishing of gas to the town of Lake and its inhabitants for public consumption was not within the purview of this agreement. The intention of the railway company evidently was to test the Springer process and apparatus for a term of two years; and at the end of that time, if the guaranties were made good, and the test proved satisfactory, to pay for and own the new works and process furnished by Springer. The new works were undoubtedly wanted by the railway company solely for the purpose of lighting its own shops and buildings situate on its own grounds. It is not to be presumed it had any intention of engaging, either directly or indirectly, in the business of manufacturing and selling gas for public consumption, as that business would be wholly foreign to the purpose of its organization, and ultra vires. The objects of Springer in making the agreement and taking the lease, at least so far as they appear in the instrument which was executed, were to introduce his new process and apparatus for the manufacture of gas, and at the end of two years effect a sale of the same, and of the new gas-works. The lease and contract had reference only to the railroad buildings and ground; and the lease, upon its face, was of a temporary and provisional character, and plainly made merely for the purpose of affording opportunity to test the Springer process and works. It cannot reasonably be claimed that a lease upon gas-works for the short term, and of the provisional character, of that here in question, is such a procurement of gas-works as was contemplated by the ordinance of March 25, 1884. At the time fixed by the ordinance for appellant to commence furnishing gas to the town, the lease had only about a year and a half to run, with the right vested in the railway company to pay for and own the works at the end of that time; or else, in the event they did not prove satisfactory, to compel their removal from its grounds. At the time the cause was heard and determined in the circuit court, the term demised by the lease had long since expired, and the extension of the lease, which had been given dur The bill of complaint in this case, though not strictly a bill for the specific performance of a contract, is in substance a bill of that kind. In 3 Pom. Eq. Jur. § 1341, it is said: "An injunction restraining the breach of a contract is a negative specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrines and rules; and it may be stated as a general proposition that, wherever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this is the only practical mode of enforcement which its terms permit. The exercise of the jurisdiction to enforce the specific performance of a contract rests in the sound legal discretion of the chancery court, in view of the terms of the contract, and all the surrounding circumstances. McCabe v. Crosier, 69 Ill. 501; Bowman v. Cunningham, 78 Ill. 48; Railroad Co. v. Reno, 113 Ill. 39. One of the principles which govern, where a bill for specific performance is brought, is that the complainant must show that the contract has been fully and fairly, in good faith, performed. In 2 Story, Eq. Jur. § 736, it is said that "in cases of covenants and other contracts, where a specific performance is sought, it is often material to consider how far the reciprocal obligations of the party seeking the relief have been fairly and fully performed; for if the latter have been disregarded, or they are incapable of being substantially performed on the part of the party so seeking relief, * * * courts of equity will not interfere." In Pom. Spec. Perf. § 330, it is said: "The party seeking aid of the court as actor-generally the plaintiff-must not only show that he has complied with the terms, so far as they can and ought to be complied with, at the commencement of the suit. He must also show that he is able, ready, and willing to do those other future acts which the contract stipulates for as a part of its specific performance." It was not the spirit and true intent of the ordinance of March 25, 1884, that the gas company should get the assignment of a short and merely provisional lease of gas-works, and thereby fulfill the bare letter of its contract by commencing within the year to deliver gas to the town of Lake, without making any provision for the continuance of such service. It would be inequitable and unjust, upon so uncertain a term of its future gas service, to compel the town, against its will, to permit appellant to dig up and obstruct its public streets and highways, and occupy and use them, for the purpose of laying and maintaining therein its gas-mains and gas-pipes. It is settled doctrine that the courts will interfere by injunction with the acts of a municipal corporation, in respect to matters which are by the law placed within the power and left to (130 Ill. 466) to act in that capacity, and that thereupon one Bowman was appointed administrator of the estate of Joshua Neely with the will annexed; and for the further reason that he had filed his disclaimer setting forth that he had no interest in the matter in controversy. The motion was allowed, and the bill dismissed as to said Enos, and this action of the court is assigned for error. If Enos had qualified as executor, he would CAMPBELL et al. v. CAMPBELL et al. have been a necessary party to the bill. His refusal to qualify, and the appointment of an (Supreme Court of Illinois. Oct. 31, 1889.) administrator, removed his interest as execWILL CONTESTS-PARTIES-WITNESS-TESTAMENT-utor. But being a trustee of certain lands, ARY CAPACITY. 1. Where, in a suit to set aside a will, a defendant, who is interested only as executor and trustee under the will, refuses to qualify as executor, and after the appointment of an administrator files a disclaimer of interest in the estate, it is proper to dismiss the bill as to him. and taking the legal title thereto under the will, he was a proper party defendant before his disclaimer. By the will.certain lands were devised to Enos in trust, to apply the net income therefrom to the support of John 2. A defendant who is a devisee under the Harper for life, and after his decease for the will is not an incompetent witness for complain- support, education, and comfort of Rebecca ant, unless it is shown that he would receive a Welch, and her daughter, Nancy B. Welch, larger part of the estate as heir than as devisee. 3. Under Rev. St. Ill. c. 148, § 1, which re- with power of sale; and also another tract of quires a testator to be "of sound mind and mem-land, in trust to apply the net income among ory," the degree of mental vigor required varies according to the circumstances of the testator; and in a suit to set aside a will disposing of a large estate to which there were many heirs it is error to instruct the jury that the fact that the tes tator's mind "was impaired by age or disease, if not to the point of lunacy or absolute imbecility," would not take away his legal capacity to make a will.1 Error to circuit court, Jersey county; GEORGE W. HERDMAN, Judge. William H. Smith and four children, Mary Welch, Bridget Minard, Alexander Welch, and Gallant H. Boswell, and $50 per annum to William Richard Neely and Richard Quinn, Jr., as he might deem just and equitable. Enos, never having accepted the trust or assumed to exercise the power conferred, had thereafter ceased to have any interest in the the right to disclaim, the same as he did, and estate, or the litigation concerning the will. This view also disposes of the second error Lewin, Trusts, 195, 197; Hill, Trustees, 221. assigned, that Enos was permitted, against the SHOPE, C. J. This was a bill in chancery ness. By his refusal to act either as executor objection of complainant, to testify as a witby Ruth Campbell and others, heirs at law of or trustee under the will, he ceased to have Joshua Neely, deceased, to set aside his will, any interest in the subject-matter in controupon two grounds, want of testamentary capacity of the deceased, and that undue in-versy, and became a competent witness for either party. fluence had been practiced by Charles W. Enos and others to induce the testator to execute the supposed will. Wm. Brown and J. S. Carr, for plaintiffs in error. Chapman & Slaten and Morrison & Whitlock, for defendants in error. at refused to allow contestants to examine as It is next assigned for error that the court witnesses Rachel C. Williamson, Mary SweeBy the will, Dr. Enos was appointed exec- nie, and Genevieve Smith, who were each deutor, and also trustee in respect of some of fendants to the bill, and had suffered the the land devised, and given large discretion- same to be taken as confessed as to them. ary powers in respect of the application of It is said they were nieces of the testator, and the proceeds of the estate devised to him in sisters of some of the complainants. Rachel trust. He refused to qualify as executor, and C. Williamson testified that she was after this bill was filed made and filed a writ- George Campbell's house, who was one of ten disclaimer of any interest in the estate, the proponents of the will, some time prior or any part thereof, which would be affected to the making of the will, and that said by or be dependent upon the maintenance or George then said, in reference to Mr. Neely's setting aside of such supposed will, and aft-making the will: "I had better go on licking. erwards filed his motion in writing to dis- I am going to have him make a will." miss the bill as to him, for the reason that the she asked him if he thought Neely was in bill showed he had no interest in the sub-condition to make a will, and he said he was. ject-matter in litigation, in this: that the That she told said George that he had better bill stated he was appointed executor by said make her equal with him, or she would will, and that on probate thereof he refused swear that he was not. She was then asked 1 See, on the general subject of mental testament-whether or not, when the will was made, the ary capacity, In re Bull's Will, (N. Y.) 19 N. E. testator had sufficient mental capacity to make Rep. 503, and note; Kerr v. Lunsford, (W. Va.) 8 a will. This was objected to by the proS. E. Rep. 493, and note; Bannister v. Jackson, ponents of the will, because she was an heir (N. J.) 17 Atl. Rep. 692; O'Brien v. Dwyer, Id. at law of said Neely, and a party interested 777; McCoon v. Allen, Id. 820; Middleditch v. Williams, Id. S26. adversely to the proponents, and the court That sustained the objection. She further tes- fendants, they were prima facie competent | tified there were three heirs of the orig- to testify on behalf of the contestants, and inal branch of the Neely family; that she before excluding them the court should have was a niece of Joshua Neely, and had four ascertained their real interest. It devolved brothers and three sisters; that is, there were upon the party objecting to show the court eight in her branch of the Neely family. She that their interest was with the party offering was then asked this question: "Do you re- them as witnesses, if that fact did not othmember the conversation you had at the erwise appear. If they would not gain by house of Joshua Neely with Uncle Joshua having the will set aside, they were compeNeely and your brother William Campbell, tent; otherwise they were not. The will, in March, after the making of the will?" which was before the court, showed that which was objected to, and the court sus- they were devisees thereunder; and, without tained the objection, upon the ground of the further evidence on the subject, their eviincompetency of the witness to reply. It dence at least would appear to be adverse to will be seen that this witness was a niece the contestants, and in favor of the propoof the testator; that said testator, Joshua nents of the will. The fact, if conceded, that Neely, had three brothers and sisters; and they were heirs at law of the testator, would that, upon his dying intestate, his estate not, of itself, establish their incompetency, would descend to such brothers and sisters or or show that they would take a greater share their children. This would entitle this wit- as heirs than as devisees. Mary Sweenie tesness, as heir at law of Joshua Neely, he hav-tified that there were seven of her family, ing died without issue, to 1-24th part of his representing one-third of the estate as heirs estate, after the payment of the debts and ex- at law of Joshua Neely, so that as heir at penses of administration. It was stipulated law she would be entitled to the 1-21st part that the debts of the estate amounted to be- of the estate of the deceased. She also testitween ten and twelve thousand dollars. fied that the land she lived on, being a part By the will 100 acres of land was devised to of that devised to her, was worth from $3,000 this witness for life, with remainder to her to $4,000, and that another tract devised to heirs. The land thus devised is claimed to her was worth $1,000. Without any further be worth $4,500. The court, however, re-inquiry as to her interest, the court sustained fused to permit any inquiry to be made as to her interest for or against the will. the objection to her competency, and the same ruling was made substantially as to witness Genevieve Smith. The contestants, to show the real interest or competency of these witnessess, proved by Bowman, the administrator, that the value of the estate was from $75,000 to $80,000, and that the value of the land devised to Mary Sweenie was $1,280. This and the other proofs showed that her share in the estate as heir was about $3,430, which would indicate that she was called to testify against her interest, and therefore competent. After this proof, contestants recalled Mrs. Sweenie, and asked her if she wanted the will set aside or not; whether she had any conversation with Joshua Neely in the fall before the will was made; whether she had any conversation with him in reference to any fear of those that were around him; and whether in that connection he expressed any fear to the witness of his life. The court sustained objections to each of these questions, and refused to allow the witness to testify, on the ground of her in-. terest. We think there was error in holding these witnesses incompetent to testify without proof that their interest was with the con In Stewart Rapalje on Law of Witnesses, p. 293, § 171, it is said: "It is a well-settled rule that the competency of one offered as a witness to testify in the case will be presumed, and the party objecting to his competency must state the grounds of his objections." And on page 299, § 177, it is said: "The presumption being in favor of the competency, the burden is upon the objector to prove that one offered as a witness is incompetent to testify by reason of interest or otherwise. Thus, to exclude a witness on the ground that his testimony, if admitted, will tend to protect him from claims against him, it must first be shown that there is at least a prima facie case of liability against him, and that he is exposed to certain danger from such claims. The objector must point out to the court the ground of incompetency. The witness will not be excluded on the ground of the interest, if the question of his interest is in doubt." In section 174 of the same work it is said: "Objections to the competency of a witness having been made, the question of competency must be decided, no matter how difficult it may be to deter-testants. In other words, the court should mine as to his interest. To reject him in such a case without deciding the question is error, and to admit him is equally erroneous." The law affords two modes of determining the interest of a witness in the result of a suit-First, by examining him on his voir dire; and, second, by extrinsic evidence. The true test of the competency of these three witnesses is to be determined by ascertaining whether they would gain or lose by a decree setting aside the will. Being de have ascertained their interest, and, if they were called to testify against such interest, they should have been permitted to testify. The The giving of the fifth instruction for the proponents is also assigned as error. portion of the instruction of which complaint is made is that part which states that the fact, if proved, that Joshua Neely was at the time of the execution of the paper physically unable to look after his affairs or property, or that his mind was impaired by age or dis 6 disposition of his property, with sense and judgment in reference to the situation and amount of such property, and to the relative claims of the different persons who are or might be the objects of his bounty." The question presented by the fifth instruction is whether the mind of the testator, when impaired by age and disease, must be impaired to the point of lunacy or absolute imbecility to deprive him of testamentary capac ease, if not to the point of lunacy or abso-140. In Shropshire v. Reno, 5 J. J. Marsh, lute imbecility, did not take from his legal 91, the court said that "the testator had not capacity to make said will. By section 1 of a disposing mind, or that if he even had it the statute of wills, (Rev. St. c. 148, § 1,) was not in a disposing state. * * * He "every male person of the age of 21 years, was not entirely superannuated, nor was he and every female of the age of 18 years, be- absolutely stultus or fatuus, but all the facts ing of sound mind and memory," is given combined tend to show that he had not a the power to dispose of his or her property by sound memory,' nor sufficient mind, or a will. The expression "sound mind and mind in a proper state for disposing of his esmemory" has been held by this court to mean tate with reason,' or according to any fixed nothing more than "sound and disposing judgment or settled purpose of his own." mind," and is equivalent to the term "sani- In Clark v. Fisher, 1 Paige, 171, Chancellor ty." Yoe v. McCord, 74 Ill. 33-40; Dickie WALWORTH said: "The general principles of v. Carter, 42 Ill. 377; Andrews v. Black, 43 law in relation to the capacity of a person to Ill. 256. Competency to execute a will does make a will are well understood. He must not exist unless the alleged testator has rea- be of sound and discerning mind and memory, son and understanding sufficient to compre-so as to be capable of making a testamentary hend such act. Delafield v. Parish, 25 N. Y. 22; Swinb. Wills, pt. 2, § 4; Marquess of Winchester's Case, 6 Coke, 23; Combes' Case, Moore, 759; Herbert v. Lowns, 1 Rep. Ch., 12, 13; Mountain v. Bennet, 1 Cox, 353. In the Marquess of Winchester's Case it is said: "It is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory, so that he is able to make a disposition of his lands with un-ity, or to render him of unsound mind and derstanding and reason, and that is such a memory, or to deprive him of a disposing memory which the law calls sane and perfect mind. Absolute imbecility implies a total memory." In Mountain v. Bennet, 1 Cox, want of reason and an utter loss of memory. 353, it is said: "If a dominion was acquired The language of the instruction is to be unby any person over a mind of sufficient sani- derstood in its ordinary sense and acceptaty to general purposes, and of sufficient sound- tion. An "imbecile" is defined by Webster ness and discretion to regulate his affairs in as one "destitute of strength, either of body general, yet if such a dominion or influence or of mind; weak; feeble; impotent; dewere acquired over him as to prevent the ex- crepit." "Imbecility" is defined as "the qualercise of such discretion, it would be equally ity of being imbecile; feebleness of body or inconsistent with the idea of a disposing mind." The word "absolute," in respect of mind." In Greenwood v. Green wood, 3 the sense in which it is used in the instrucCurt. Ecc. 337, Lord KENYON said, in his tion, is defined as "completed or regarded as charge to the jury: "I take it a mind and complete; finished; perfect; total;" and the memory competent to dispose of his property, synonyms are "perfect;" "total;" and "comwhen it is a little explained, perhaps, may plete. There are many degrees in the weakstand thus: Having that degree of recollec-ness of mind before reaching totai, or perfect tion about him that would enable him to look or absolute, imbecility,—that is, before reachabout the property he had to dispose of, and the persons to whom he wished to dispose of it. If he had the power of summoning up in his mind so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will." In Marsh v. Tyrell, 2 Hagg. Ecc. 84, Sir John NICHOLL said: "It is a great, but not an uncommon, error to suppose that because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect, sound mind, and is capable of making a will for any purpose whatever; whereas, the rule of law, and it is the rule of common sense, is far otherwise. The competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case." See, also, Blewitt v. Blewitt, 4 Hagg. Ecc. 419; Boyd v. Eby, 8 Watts, 70; McTaggart v. Thompson, 14 Pa. St. 149; Brown v. Torrey, 24 Barb. 583; Hall v. Hall, 18 Ga. ing utter and complete destitution of reason or rationality; and it must be apparent to every one that a man, before reaching this point, may be incapable of comprehending the extent or nature of his property or of claimants upon his bounty, and of making a rational selection among them. The rule stated in Bus well on Insanity, § 365, is that, "to constitute a sound and disposing mind, it is not necessary that the mind shall be unbroken, unimpaired, unshattered by disease, or otherwise, or that the testator should be in full possession of his reasoning faculties. So, if the testator be in a dying state, he has capacity, if, when his attention is roused, his mind acts clearly, and with discriminating judgment, in respect of the act to be done and its relations. Thus it is held that one may be competent to make a codicil, changing in two or three particulars the dispositions previously made by him in his will, although he might be incompetent to perform acts requiring the exercise of greater intellect 6 In Rep. 267. As to the capacity to make a deed of or judgment, as to make an entirely new dis- | Ill. 560; English v. Porter, 109 Ill. 285; Rice position of his property." In note 1, Jarm. v. Hall, 120 Ill. 597, 12 N. E. Rep. 236; Wills, 38, it is thus stated: "The question Schneider v. Manning, 121 Ill. 376, 12 N. E. is not so much what was the degree of memory possessed by the testator, as, had he a disposing memory? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will?" See authorities there cited. The author from whom we have before quoted, (Busw. Insan.) at section 363, says: Thus it is evident that a correct understanding of the act done must include an intelligent comprehension of its surrounding circumstances, and of its direct consequences and probable results. So, to constitute a sound and disposing mind, the testator must be able; not only to understand that he is by his will disposing of his property, but he must also have capacity sufficient to comprehend the extent of the property devised, and the nature of the claims of others upon him." In Converse v. Converse, 21 Vt. 168, it is held that if the testator, when he made his will, "was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property as therein provided for, both as to the property he meant to dispose of by his will, and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them," then he possessed a sound and disposing mind. We have also given sanction to the doctrine that a man may not be competent to make a will of one kind, owing to the nature and extent of the estate, when he may be competent to make one less complicated. Trish v. Newell, 62 Ill. 196. See, also, Busw. Insan. § 362-365; Beach, Wills, 175. It follows, as a natural consequence, that if a man may make a valid will which is simple and easy of comprehension, and yet be incapable of making one which involves, as here, a very large estate, and the consideration of the natThe same rule has in many cases been sub- ural claims of a large number of relatives stantially adopted by this court. In Roe v. upon him, the rule laid down in the fifth Taylor, 45 Ill. 485, we said: "An under- instruction cannot be a correct exposition of standing of the nature of the business about the law. Absolute imbecility incapacitates which the testator was engaged, of the kind the party from making any kind of a will, and value of the property devised, and of the even the simplest in form. This court has persons who were the natural objects of his condemned an attempt on the part of the trial bounty, and of the manner in which he court to inform the jury what quantum of wished to dispose of his property, -all these mental capacity must be retained to enable are evidence of the possession of testament- the party to make a valid will. In Trish v. ary capacity, unless, as the court very prop- Newell, supra, we said: "We are unwilling erly said, the testator was affected with some to adopt so low a standard [of the capacity to morbid or insane delusion as to some one of make a will] as that approved in Stewart v. those natural objects of his bounty." See, Lispenard, 26 Wend. 255, that wills of peralso, Trish v. Newell, 62 Ill. 196; Yoe v. Mc-sons of the lowest degree of mental capacity Cord, 74 Ill. 33; Carpenter v. Calvert, 83 Ill. 62; Society v. Price, 115 Ill. 623, 5 N. E. Rep. 126; Freeman v. Easly, 117 Ill. 317, 7 N. E. Rep. 656,--where the same rule in effect is announced. We also said in Meeker v. Meeker, 75 Ill. 260: "It is a rule of law that a person who is capable of transacting ordinary business is also capable of making a valid will." If he is capable of buying and selling property, settling accounts, collecting and paying out money, or borrowing and loaning money, he must usually be regarded as capable of making a will. See Lily v. Waggoner, 27 Ill. 395; Myatt v. Walker, 44 Ill. 485; Rutherford v. Morris, 77 Ill. 397; Trish v. Newell, supra; Brown v. Riggin, 94 are to be sustained if there is a glimmer of reason." It is true that in Blanchard v. Nestle, 3 Denio, 37, mainly on the authority of the Lispenard Case, the doctrine that mere imbecility, however great, would not invalidate the will of the testator, provided he was not an idiot or a lunatic, is affirmed. But it is to be remarked that the case of Stewart v. Lispenard was subsequently overruled in Delafield v. Parish, 25 N. Y. 9, and is no longer to be regarded as an authority. The capacity to comprehend a few simple details may, in one case, suffice to enable the party to intelligently dispose of his property by contract or will, while in another case, if the estate be large, requiring the remembrance of many |