er.

THE LAST WILL AND TESTAMENT OF A. Kelly
OF THE CITY OF Bloomington IN THE COUNTY OF
McLean AND STATE OF Illinois MADE AND PUB-
LISHED THE 2nd DAY OF Jany IN THE YEAR OF
OUR LORD, ONE THOUSAND NINE HUNDRED thir-
teen.

THE city OF Bloomington IN THE COUNTY OF
IN THE NAME OF GOD, AMEN, I, A. Kelly of
McLean AND STATE OF Illinois OF THE AGE OF
82 YEARS AND BEING OF SOUND MIND AND
MEMORY, DO HEREBY MAKE, PUBLISH AND DE-

CLARE THIS, MY LAST WILL AND TESTAMENT,
IN MANNER FOLLOWING, THAT IS TO SAY:
FIRST-IT IS MY WILL THAT MY FUNERAL EX-
PENSES AND ALL MY JUST DEBTS BE FULLY

PAID.

SECOND-I GIVE AND bequeath To Lucy Kelly, my wife, all of my estate, both real and personal for her use and support during the term of her life and while she remains my widow. Third-I give and bequeath to my daughters, after the death of my wife, Annie Van Horn and Lulu Rehker, the east half of the southwest quarter of section thirty two, town twenty two, north of range two east of the third principal meridian, but before coming into possession of this property they shall pay to my grandchildren the following sums.

Shelton was also present. Ed Wise, the other witness, testified that the paper was signed in May or June, 1914, in the back room of the bank; that he and Ryburn were standing in front of the bank, in their shirt sleeves, when Shelton asked them to sign Kelly's will; that they went in and Shelton said, "This is Mr. Kelly's will," and they signed it in his presence and in the presence of each other, but that Kelly was not present. Wise testified that he had seen Kelly about 20 minutes before, going west across the railroad track, and that the will was witnessed after Kelly moved back to Heyworth from Bloomington. The back room of the bank was separated from the front room by a vault which came to within about 4 feet of the ceiling, and a door which was not so high as the vault. Lyman P. Rutledge, assistant cashier, testified that Kelly came to the bank on January 2, 1913, and talked with Shelton in the back room; that then Shelton came out, asked Ryburn if he would sign a paper in the back room, and took him and Wise into the back room; that witness was from 12 to 15 feet from where they were and heard Shelton say, "This is Mr. Kelly's last will, and he would like to have you gentlemen sign as witnesses," and, "Mr. Kelly, sign in the presence of the witnesses, and the wit-received all that might be due him from my Fifth-My son Frank Kelly, having already nesses sign in the presence of one another;"estate is not to receive any part in this distributhat this occurred while Kelly was living in tion. Bloomington. Shelton was offered by the Sixth-The rest and residue of my property I proponents as a witness, but on objection was held incompetent because of his interest as executor named in the will.

In opposition to the probate, testimony was introduced which tended very strongly to show that on January 1 and 2, 1913, Kelly was sick, suffering from double hernia and a severe cough; that his hernia had been inflamed and rendered painful by the cough, and that he was in his home in Bloomington, unable to walk about without assistance, and that therefore he could not have been in Heyworth on January 2d. There was also evidence tending to prove that both in the latter part of December, 1912, and the early part of January, 1913, Kelly was suffering with a severe cough, which weakened him, and an inflamed side, and that he could not cross the room or get out of bed. There was also evidence that Ryburn had said that he had forgotten that he had signed the will until he talked the matter over with Shelton, but that Shelton called circumstances to his mind, and then he remembered it.

The original will has been certified to this court. It was written upon a printed form. The written part is in blue ink, except the date (which appears both in the caption and at the end of the will) and one clause, which are written in black ink. The following is a copy of the will, the printed part in small capitals, the part written in blue ink in ordinary type and the part written in black ink in italics:

To Clinton Kelly-one thousand dollars, 46 Edna Kelly-Two hundred fifty dollars Mabel Kelly-Two hundred fifty dollars, Bernad Kelly-Two hundred fifty dollars "Lucy Kelly-Two hundred fifty dollars Pauline Kelly-Two hundred fifty dollars Fourth-To my daughter Lizzie Kelly I bequeath all of my household goods and property previously conveyed by deed.

66

give and bequeath to Annie Van Horn and Lulu
Rehker, share and share alike.
Sixth-The deed executed to Lulu Rehker
shall be delivered to her by my executor, and
shall become her property.

LASTLY-I HEREBY NOMINATE AND APPOINT
Joseph P. Shelton TO BE THE EXECUTOR OF
THIS, MY LAST WILL AND TESTAMENT, WITHOUT

BOND, HEREBY REVOKING ALL FORMER WILLS
BY ME MADE.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET
MY HAND AND SEAL, the 2nd DAY OF Jany. IN
THE YEAR OF OUR LORD, ONE THOUSAND NINE
HUNDRED thirteen.
A. Kelly.

OF

THE ABOVE INSTRUMENT, CONSISTING
TWO SHEETS WAS NOW HERE SUBSCRIBED BY A.
Kelly, THE TESTATOR, IN PRESENCE OF EACH
BY him TO BE his LAST WILL AND TESTAMENT,
AND WE, AT his REQUEST, SIGN OUR NAMES
HERETO IN his PRESENCE AS ATTESTING WIT-
NESSES:
Ed Wise oF Heyworth.

OF US, AND WAS AT THE SAME TIME DECLARED

Edward Ryburn or Heyworth. The form was printed upon a sheet of paper folded at the top, and the first six clauses of the will ended near the top of the second page. The clause in black ink followed, occupying a little more than three lines, and the rest of that page and more than half the third page were blank. The deed referred to in the clause of the will written in black ink was a warranty deed dated November 23, 1903, executed by Kelly and his wife, conveying a lot in Bloomington to Lulu Rehker for life and to such of her children as might be living at her death. The deed was acknowledged on the day of its date, and recorded July 19, 1916. All the written part of the will except the signatures is in Shel

ton's handwriting. The evidence shows that both blue ink and black ink were used in the bank at the time, as well as steel pens, gold pens, and fountain pens.

will may have been prepared in the front room at a desk where blue ink was used, carried into the back room, the clause in question added, and the will executed at a desk [1-4] The court admitted the attestation or table where the ink was black. There is clause in evidence, but sustained an objec- evidence that Kelly came into the front room tion to the admission of the will for the of the bank and talked with Shelton, that reason that its appearance showed an altera- they then went into the back room, and tion, and that it was incumbent on the pro- afterward Shelton came out, got the witnessponents to explain that alteration. The fact es, and took them into the back room, where that one clause of the will was written in ink the will was executed. If the date, only, of a different color from the rest of the will had been inserted in black ink, it could not did not, of itself, constitute an alteration, well be claimed that it was a suspicious cirand was not evidence of an alteration requir- cumstance. If half the will had been written ing explanation by extrinsic evidence. There in ink of one color and half in ink of another was no evidence of an alteration of the in- color, it could not have caused suspicion that strument, either on its face or otherwise, but either half was improperly inserted. How, if there were, the mere fact of an alteration then, can the fact that the writer of the will in a written instrument raises no presumption used ink of a different color from that used of law as to when it was made or against in the rest of the will for writing one clause the validity of the instrument. The question and inserting the date in the proper place in as to when, by whom and with what intent the printed form cause a suspicion that he did the change was made is one of fact to be it after the will was executed, particularly submitted to the jury. The party claiming when the signatures of the testator and the the benefit of the instrument must explain witnesses are in the same ink? The fact that the alteration, and, if it is suspicious in ap- this clause is numbered "Sixth" when the pearance and not satisfactorily, explained, immediately preceding clause is numbered the conclusion of fact follows against the "Sixth" is a mistake which might readily instrument. The appearance of the instru- arise in writing the instrument from the ment, alone, may furnish a satisfactory ex-fact apparent on its face that the fifth and planation without extrinsic evidence. Cat-sixth clauses form a continuous paragraph, lin Coal Co. v. Lloyd, 180 Ill. 398, 54 N. E. the sixth following the fifth with no apparent 214, 72 Am. St. Rep. 216; Gage v. City of break, and the eye of the writer, in looking Chicago, 225 Ill. 218, 80 N. E. 127. The ob- for the number of the paragraph, might readjection to the admission of the will in evi-lly overlook the word "Sixth." dence should therefore have been overruled. Counsel for the appellees regard it as a [5] Even if different parts of the will were suspicious circumstance that the will recites written at different times, this would consti- the age of the testator as 82 years when the tute no evidence of an alteration. It might testator was born in 1829. It appears from be said that each successive clause was an the testimony of his daughter that the Mcalteration, but until all were written the Lean county records show that her father instrument was not complete, and there can was born in 1830, so that on January 2, 1913, be no evidence of alteration requiring ex- he would be 82 past, but she says they found planation unless there is some circumstance it was a mistake, and he was born in 1829. which might create a suspicion that the al- [6-8] This instrument was signed by Abteration might have been made after execu- ram Kelly. It was attested by two credible tion. Here the circumstances all point to witnesses, who certified that he signed and the opposite conclusion. The will was all acknowledged it in the manner required by written by the same hand, and bears on its law. One of the witnesses made the declaraface no indication that it was not all written tion, under oath, to all the circumstances at the same time. The date of the will is required for the admission of the will to inserted in the same ink as the clause which probate. The other repudiated the statement is the basis of the objection, and the signa-signed by him, saying that he had not read tures of the testator and the witnesses are in it, and denied that the testator acknowledged the same ink. So far as the face of the in- the will or was present when the witnesses strument is concerned, it would appear that signed as attesting witnesses. The attestathis clause, together with the date of execution clause was prima facie evidence of the tion, was inserted by the same hand, in the due execution of the will. Thompson v. same ink, at the same time, and before execution. If speculation were to be indulged, an inference might fairly be drawn that the instrument having been prepared in part, the testator, before execution, caused the clause to be added for the purpose of assuring the title to the grantee in the deed which he had previously executed, the date was then inserted, and the will executed. So far as the

While the propo

Owen, 174 Ill. 229, 51 N. E. 1046, 45 L. R. A.
682. The probate of wills does not depend
upon the recollection or even the veracity
of subscribing witnesses.
nents are confined in the county court to the
subscribing witnesses, in the circuit court,
on appeal, they may prove the execution of
the will by any evidence competent in chan-
cery for that purpose. In re Will of Simon,

vation of the public peace, health, or safety.
[Ed. Note.-For other cases, see Municipal
Corporations, Dec. Dig. 108.]

4. INTOXICATING LIQUORS 46-LICENSES-
ORDINANCE.

Notwithstanding grant of power to license dramshops conferred upon councils by the Cities and Villages Act, such power can be put into operation only by the passage of an appropriate ordinance authorizing the issuing of licenses, specifying who shall issue them, the length of time they shall run, the amount to be paid by the applicant, and the time and manner of pay

Ryburn shows a full compliance with the state to pass, nor one for the immediate preserstatute. Though he stated after Kelly's death that he did not remember witnessing his will, it is certain that he did witness it, and after he had talked with Shelton and examined his deposit slip at the bank, his memory was refreshed as to the details. He is corroborated very fully by Rutledge, and the direct evidence preponderates clearly in favor of the legal execution of the will. The evidence that Kelly was not in Heyworth at the time the will bears date does not tend to contradict the evidence that he executed the wil at some time. The question is not whether Kelly executed the will on January 2, 1913, but is, did Kelly execute the will? The witnesses on one side or the other are mistaken as to the date of the occurrenc

es to which they testify, but whichever may be right, the great preponderance of the evidence shows that Kelly executed the will in the manner required by law, and it should have been admitted to probate.

The judgment is reversed, and the cause is remanded to the circuit court, with directions to admit the will to probate.

Reversed and remanded, with directions.

(276 Ill. 460)

PEOPLE ex rel. OUTMAN et al. v. WAN

MER. (No. 11070.)

ment.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 48; Dec. Dig. 46.]

Appeal from Circuit Court, La Salle County; Edgar Eldredge, Judge.

Information in the nature of quo warranto by the People, on the relation of W. H. Outman and others, against Wedron J. Wanmer. From a judgment for defendant, relators appeal.

tions.

Reversed and remanded with direc

George S. Wiley, State's Atty., of Ottawa (Stead, Woodward & Hibbs, of Ottawa, and Peter M. MacArthur, of Marseilles, of counsel), for appellants. E. C. Van Hoorebeke, of Marseilles, and Browne & Wiley and James J. Conway, all of Ottawa, for appellee.

CARTWRIGHT, J. The state's attorney

(Supreme Court of Illinois. Dec. 21, 1916. Re- of La Salle county, in the name and on be

hearing Denied Feb. 9, 1917.)

1. QUO WARRANTO 43-LEAVE TO SUE.

Where it is made to appear to the court that the filing of an information in the nature of quo warranto has been inadvertently or improperly allowed under a misapprehension of the law or the facts, the court has power during the term to set aside the order granting leave to file the information.

[Ed. Note.-For other cases, see Quo Warranto, Cent. Dig. §§ 35, 36; Dec. Dig. 43.] 2. QUO WARRANTO 43-LEAVE TO SUE.

In hearing and deciding a motion to set aside order granting leave to file information in the nature of quo warranto, the court may exercise discretion; but the discretion is not a personal, arbitrary one, but a sound judicial discretion, resting upon well-established rules

of law.

[Ed. Note.-For other cases, see Quo Warranto, Cent. Dig. §§ 35, 36; Dec. Dig. 43.] 3. MUNICIPAL CORPORATIONS 108-DRAMSHOP ORDINANCE COMMISSION GOVERNMENT LAW.

A dramshop licensing ordinance, not stating any urgency for its passage, is not excepted from the requirements of the commission form of government law (Laws 1910, p. 12, § 48), providing that no ordinance passed by the council, except when otherwise required by the laws of the state or by the provisions of the act, except an ordinance for the immediate preservation of the public peace, health, and safety, containing a statement of its urgency and passed by a two-thirds vote of the council, shall go into effect within 30 days of its final passage, and that during such 30 days its operation may be suspended by referendum petition until it is approved by a majority vote of the electors, since such an ordinance is not one which the council is required by the general laws of the

half of the people of the state of Illinois, on the relation of W. H. Outman and others, alleging themselves to be residents, citizens, voters, and taxpayers of the city of Marseilles, presented to the circuit court of La Salle county their verified petition for leave to file an information in the nature of quo warranto against the appellee, Wedron J. Wanmer, calling upon him to make answer to the people by what warrant he claimed to hold and execute the franchise, privilege, and liberty to keep a dramshop within the limits of the city. Leave was given and the information filed. The defendant, being summoned, appeared and moved the court to set aside the order granting the leave to file the information. The motion was granted, the leave set aside, the information dismissed, and judgment entered in favor of the defendant against the relators for the costs. From the judgment this appeal was prosecuted.

The city of Marseilles is organized under the general act for the incorporation of cities and villages and the act providing for the commission form of government. Laws 1910, p. 12. The following facts were alleged in the petition:

A large portion of the city of Marseilles, including the business district, is within the town of Rutland, in La Salle county. At the town election held on April 7, 1914, the town was made anti-saloon territory by a vote of the electors, which became effective 30 days thereafter. On May 8, 1914, an ordinance of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the city was passed prohibiting the sale of in- | act, except an ordinance for the immediate toxicating liquors. At the town election on preservation of the public peace, health, and April 4, 1916, there was a vote on the proposi- safety, which contains a statement of its urtion whether the town should continue to be gency and is passed by a two-thirds vote of anti-saloon territory, and it was decided in the council, shall go into effect within 30 the negative, and the vote became effective days of its final passage, and if during the on May 4, 1916. On April 17, 1916, before the 30 days a petition signed by the electors of vote had taken effect, the council passed an the city equal in number to at least 10 per ordinance authorizing the issuing of licenses centum of the entire vote cast for all candito keep dramshops within the city, fixing the dates for mayor at the last preceding generamount of the license fee, bond, and other al municipal election at which a mayor was conditions. On May 1, 1916, the council pass-elected, protesting against the passage of ed another ordinance repealing the prohibi- such ordinance, be presented to the council, tory ordinance of May 8, 1914. A petition the same shall thereupon be suspended from protesting against the passage of the ordi- going into effect, and it shall be the duty nance of April 17, 1916, providing for the is- of the council to reconsider the ordinance, suing of licenses to keep dramshops, signed and if the same is not entirely repealed the by more than 10 per cent. of the electors of council shall submit the ordinance to a vote the city, was filed in the office of the city of the qualified electors of the city or village, clerk on May 5, 1916, and was presented by and unless a majority of the electors voting the clerk to the council the same day. The on the same shall vote in favor thereof the petition was referred to the city attorney, ordinance shall not go into effect. Such a and the application of the appellee, Wedron | petition was presented in this case, and the J. Wanmer, to keep a dramshop was granted, council refused either to reconsider the ordiand a license to keep the same from that nance or to submit the same to a vote of the day until the first Monday of May, 1917, was electors, but granted a license to the appellee ordered. The next day the city clerk issued before the ordinance could have taken effect the license, and the appellee opened a dram- under any construction of the law. shop in the city within the portion thereof located in the town of Rutland. The city attorney reported on the petition referred to him at the next regular meeting of the council held on May 8, 1916, and the city council refused to reconsider the ordinance or to submit it to a vote of the electors of the city. From the time that appellee received his license he sold and dispensed at retail intoxicating liquors by virtue thereof.

[3] Counsel for the appellee say that when the petition for leave to file the information was presented to the court the ordinance had become effective, so that the question when the license was granted had become immaterial. Whether granting the license before the ordinance was in effect would of itself be sufficient ground for permitting the information to be filed will not require any attention, for the reason that if section [1, 2] If it was made to appear to the court 48 applied to the ordinance it was never in that the filing of the information had been in- effect. The ordinance was not one excepted advertently or improperly allowed under a by section 48, since it was not one which the misapprehension of the law or the facts, the council was required by general laws of the court had power, during the term, to set state to pass, and it was not one for the imaside the order granting leave to file the in- mediate preservation of the public peace, formation. In hearing and deciding the mo- | health, or safety, and did not state any urtion the court was authorized to exercise dis-gency for its passage for such purpose. cretion; but the discretion was not a person- There is no conceivable reason for excluding al, arbitrary one, but was a sound judicial a dramshop ordinance from the plain providiscretion, resting upon well-established rules sion of the statute. Even if the electors of of law. People v. Town of Thornton, 186 Ill. a municipality favor the issue of licenses for 162, 57 N. E. 841; People v. Mackey, 255 Ill. dramshops, they may be vitally interested in 144, 99 N. E. 370; People v. Union Elevated an ordinance passed for that purpose with reRailroad Co., 269 Ill. 212, 110 N. E. 1. The spect to the location of dramshops, the lirecord does not exhibit any fact outside of or cense fee, or restrictions which they may contrary to the averments of the petition deem advisable for their protection or in the which might properly influence the court in public interest. the decision of the motion, and it is not claimed that there was any such existing fact; so that the question to be determined is whether the petition showed sufficient ground for filing the information. The question of law relates to the application of section 48 of the act providing for the commission form of government. That section provides that no ordinance passed by the coun-izing the issuing of licenses, specifying who cil, except when otherwise required by the laws of the state or by the provisions of the

[4] An ordinance is always necessary to authorize the issuing of a license to keep a dramshop. The power to grant such licenses is conferred upon councils by the Cities and Villages Act, but the statute itself does not authorize a city to grant a license. The power can only be put into operation by the passage of an appropriate ordinance author

shall issue them, the length of time they shall run, the amount to be paid by the applicant,

The judgment of the circuit court is reversed, and the cause is remanded, with di- In a suit to set aside conveyances by decerections to restore the information to the dent on the ground of insanity, evidence imfiles of the court, and for further proceed-properly rejected held sufficient to present question whether the grantee knew or was charged ings not inconsistent with the opinion of this with knowledge of decedent's insanity.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes