ponderance of the testimony is that before the death of his wife Blackhurst's memory had become defective, and that while he was able to recall events which were long past, the people whom he had met and occurrences which had happened more recently were recalled by him with difficulty. During the serious attacks of sickness which occurred from time to time after the death of his wife he was at times irrational and his condition was such that he had not mental capacity sufficient for the transaction of business, and in the protracted illness a year after his wife's death, in the fall of 1917, he was entirely incompetent to attend to any business, but he recovered from these attacks and his physical and mental condition improved, with occasional lapses, from October, 1917, until February, 1918, when Dr. Becum made his last visit to him. The testimony of Drs. Becum and Martin indicates their opinion that he was suffering from senile dementia and that that disease is progressive in its nature, but the facts testified to indicate that his mental condition was improving for several months before he left LaHarpe; that in his case the disease was not at that time progressing and that his mental faculties were not deteriorating. The question whether the testator's mind was affected by the disease must be determined not alone by the nature and tendency of the disease but by its effect in the particular case. (Teter v. Spooner, 279 Ill. 39.) From the time he left LaHarpe his condition apparently improved. The only testimony as to his unsoundness of mind during the spring and summer of 1918 is the testimony of witnesses who base their opinion that he was of unsound mind upon his inability to recognize and remember them. The failure of the memory of an old man to recall in some cases persons whom he has known does not necessarily indicate a failure of mental power. An absolute and total loss of memory might do so, but in each one of the cases testified to, the circumstances were such as might readily explain the failure to recall the person at the time.

There were many more cases in which the testator did remember the persons whom he met, recalled past events, carried on intelligent conversations, discussed questions of business or current events in an intelligent manner and exhibited a capacity to comprehend the circumstances with which he was surrounded. The statement to some of the witnesses that he still owned all the land he had previously owned is not evidence of mental weakness or even lack of memory. Though he had conveyed the remainder in threefourths of it to his three daughters and retained only a life estate for himself, he was the owner of the present interest in the land, had the control and use of it and was in receipt of the income from it. After his wife's death he intrusted his business to Charles R. Huston, his son-in-law, as his agent, and when his tenants afterward came to him with reference to their leases he declined to transact business with them and referred them to Huston. Of itself this is no indication of an unsound mind. Extreme old age and feeble health, though combined with a defective memory and mental sluggishness, do not constitute mental incapacity. Such infirmities frequently accompany old age, but they do not render a man incapable of making a will unless his mind has become so impaired that he is incapable of understanding the business of making his will while engaged in that act. An unequal distribution of his property among his heirs or an unreasonable prejudice against some of them, unless it amounts to an insane delusion, will not justify the conclusion that the testator lacked mental capacity. Carnahan v. Hamilton, 265 Ill. 508.

Much of the testimony of the contestants' witnesses as to the condition of the testator's mind after his wife's death until he left LaHarpe refers to the times when he was depressed by the severe physical suffering and sickness which were the effect of his rupture. Some of it is mere failure of memory, and the conclusions of unsoundness of mind. which the witnesses draw have no sufficient basis of fact.

This is true of all the five witnesses who testified to such conclusions from meeting the testator after he went to Blandinsville. The other testimony of this character is remote from the time of the execution of the will, and has little, if any, tendency to contradict the direct evidence of the witnesses to the execution of the will, the officer who took the acknowledgment of the deeds, and the numerous other witnesses who met and talked with the testator within a short time both before and after the execution of the will. The verdict of the jury was manifestly against the weight of the evidence as to the testator's mental capacity when he executed the will.

On the other question, of undue influence, the verdict is also unsupported by the evidence. The will itself states the motives which influenced the testator in excluding the contestants from participation in his estate. Mary Hankins, who lived across the street from the Hustons, testified that in the summer of 1918, while sitting at her window, she saw Mrs. Huston and Blackhurst sitting on their porch when Lena Grigsby, one of the contestants, called. Blackhurst turned his back on her and she went away. Mrs. Huston went to her father and said, "That is the one that said you are crazy." Afterward Mrs. Hankins said that on the day the papers were served on Blackhurst she heard Mrs. Huston say, "Oh, pappy! I would never let them have a dollar." Persuasion which leaves the testator free to adopt his own course is not undue influence, and the undue influence which will avoid a will must go to the extent of depriving the testator of his free agency and must operate at the time of the execution of the will.

The appellees contend that the will was the result of a conspiracy by Mr. and Mrs. Huston and Mrs. James to procure its execution; that Huston sustained a fiduciary relation to the testator and is benefited by the will and that he prepared the will, and that from these facts a presumption of undue influence arises against him and his wife and

Mrs. James, who are associated with him, which has not been rebutted by the evidence. There is no doubt that Huston sustained a fiduciary relation to Blackhurst and that there existed a warm affection between Mrs. Huston and Mrs. James and their father, but there is no evidence that any one of them ever requested him to make a will or suggested anything about the disposition of his property, except the exclamation of Mrs. Huston which Mary Hankins said she heard while listening inside her window, across the street from the Huston porch. There is no evidence that Huston, Mrs. Huston or Mrs. James had anything to do with the preparation of the will and none that they had anything to do with its execution, except that Huston told Charles Welsh that Blackhurst wanted him and his brother to witness his will. It must be conceded that the three had an opportunity to try to influence the making of a will, but mere opportunity is not enough to show the exercise of a wrongful influence. While undue influence may be established by circumstantial evidence, such evidence must show that the influence was operative at the time of the transaction sought to be impeached and was such as to destroy the freedom of the testator's mind. (Waterman v. Hall, 291 Ill. 304.) The fact that the testator was living at the home of one of the principal beneficiaries under his will at the time it was executed does not tend to prove undue influence. (Farmer v. Davis, 289 Ill. 392.) Neither does the further fact that the beneficiaries were present at the time the will was executed. (Brock v. Stines, 258 Ill. 346.) The active participation of one in a fiduciary relation in preparing a will by which he profits substantially and procuring it to be executed are circumstances tending to show the exercise of undue influence. (Yess v. Yess, 255 Ill. 414.) The appellees seek to apply this principle in the present case. If it were otherwise applicable, one thing lacking which makes it inapplicable is participation in the preparation and execution of the will. There is no evi

dence as to where, when, by whom or under what circumstances the will was prepared. The testator's remarks to Mrs. Hays, which have been mentioned, indicate his intention to make a will which would exclude the appellees from any share in his estate. Huston was not present at its execution and is not shown to have known anything about its preparation.

The appellees argue that Blackhurst had not been away from home and there is no evidence that any attorney or scrivener had called to see him; that Huston, his wife or Mrs. James, or all of them, knew who prepared the will and deeds; that if none of them prepared these papers they could have called the person who did prepare them, as a witness, but no such witness was called, therefore the appellees draw the necessary inference, as they say, that these papers were prepared by Huston or under his direction. Upon the presumption of his preparation of the will, added to the presumption of undue influence from the fiduciary relation, rests the claim of the exercise of undue influence. The burden of proof in regard to undue influence, however, rests upon the appellees. The existence of a fiduciary relation between a testator and a beneficiary under his will does not raise a presumption of undue influence, as in cases of voluntary conveyance by deed. (Michael v. Marshall, 201 Ill. 70; Yess v. Yess, supra; Waterman v. Hall, supra.) To place the burden of proof of the absence of undue influence in the making of the will upon a beneficiary sustaining a fiduciary relation to the testator he must be shown to have been directly connected with the making of the will. (In re will of Barry, 219 Ill. 391.) The presumption of undue influence arises not from the fiduciary relation but from the fact that the fiduciary prepared the will. (Wunderlich v. Buerger, 287 Ill. 440.) The proof of undue influence must not only be consistent with the exercise of the influence but must be inconsistent with its absence.