Crowley v. Crowley

Citations

• 80 Ill. 469

Syllabus

<p>1. WXLL-svfficiency of proof by the subscribinçj witnesses. Where neither of the subscribing witnesses to a will, whose mark oniy is made to their names, can identify the instrument as the one they had attested, and are not able to swear that the testalor was of sound mind at the date of its execution, the proof will not authorize its probate.</p> <p>2. SAME-proof reqstired to probate. To entitle a will to probate, four things must concur: The will must be in writing, and signed by the testalor, or in his presence by some one under his direction; it must be attested by two or more credible witnesses; two witnesses must prove that they saw the testator sign the will in their presence, or that he acknowledged the same to be his act and deed; and they must swear that they believe the testator was of sound mind and memory at the time of signing or acknowledging the same.-</p> <p>3. SAME-whether other than attesting witnesses may be examined. On appeal from the county court denying the probate of a will, the party seeking its probate is not confined to the two attesting witnesses to establish the execution of the will or the sanity of the testator; but on appeal by a contestant from an order probating the will, the rule is different, and the proof will be confined to the testimony of the subscribing witnesses.</p> <p>4. Wx'xwxss-competency of devisee to prove will. A devisee under a will is not a competent witness to prove its execution.</p> <p>5. PnAcxIcE-excluding entire evidence. The exclusion of the whole evidence from the jury is, in effect, an instruction in the nature of a non-suit, a practice not sanctioned in this State.</p> <p>6. If evidence tends to prove an issue in a case, it is error to exclude the same, although, in the opinion of the court, it may not be sufficient to authorize a verdict.</p> <p>7. But if it appears that the verdict must have been the same if the cvideuce had not been excluded, the error is one that does not prejudice, and therefore no