Opinion of the Court.

Much stress is laid upon the words, "wholly or in such parts as they, (the trustees) or the survivor of them, in their or her discretion, shall deem desirable," etc. It is evident, we think, that the testatrix had in contemplation, one son already having died, that there might be the death of others before her decease, and intended making a provision that would apply, in that event, to the shares of each of such sons. As to the children of William, they being minors, the daughters, as their trustees, under this clause might apply this share wholly, at once, for their benefit, or in such part as they might deem most beneficial to them. The trustees were made the judges of what use of the estate was most for their benefit. Undoubtedly, if they deemed it most desirable, they had discretion to invest the funds in their hands for the use and benefit of the cestuis que trust, or to provide for their support and education, expending such sum therefor as to them might seem desirable. But it is unnecessary to discuss this branch of the subject, as the decree of the court does not seek to interfere with the discretion vested in appellants, or direct the manner of its exercise. When that discretion is abused, if it ever is, will be the time for a court of equity to interfere.

Both the daughters taking this share in trust for the children of the deceased son, William, are living, and it is unnecessary to discuss or decide whether they hold as joint tenants or not. It is enough that they take no beneficial interest therein, but simply hold the same in trust for the defendants, children of their deceased brother, William. It may, however, be added, that as the survivor is required to use this share for the use and benefit of the children indicated, it is manifest that it was to be kept intact for such use, for if each of the trustees took an equal part, the survivor would be unable, or might be, to use the whole for the benefit of the cestuis que trust. Perceiving no error in this record, the decree of the circuit court is affirmed.

Decree affirmed.

Syllabus.

In the matter of the will of JOHN NOBLE, deceased.

Filed at Ottawa March 26, 1888.

1. PROBATE OF WILL-who may be witnesses, in case of appeal. On the trial of an appeal from an order of the county court probating a paper as a will, the evidence will be properly confined to that of the subscribing witnesses.

2. SAME "credible witnesses," to attest a will. The words "credible witnesses," as used in the statute relating to the attestation and proof of wills, mean competent witnesses, that is, such persons as are not legally disqualified from testifying in courts of justice by reason of mental incapacity, interest, or the commission of crime, or other cause excluding them from testifying generally, or rendering them incompetent in respect to the particular subject matter or the particular suit. The mere fact that an attesting witness to a will has pleaded guilty to an indictment for forgery, will not render him incompetent to testify on the probate of the will, although, by statute, the conviction of crime may be shown as affecting the credibility of the witness.

3. SAME-deposition of attesting witness-dedimus with will attached— to what courts the statute applies. Section 4, chapter 148, of the Revised Statutes, providing for the issue of a dedimus with the will attached to take the deposition of a non-resident witness to the will, applies only to proceedings in the county court, and not to appeals from orders of the county court admitting wills to probate. In such case the supposed will is a file of the court, and can not be withdrawn except by leave of court granted in term time.

4. SAME-deposition taken by consent without a dedimus. On an appeal from the probate of a will to the circuit court, by the agreement of the parties, the deposition of one of the subscribing witnesses to the will was taken without the issue of any dedimus, and it was agreed that such deposition might be read in evidence, upon all matters in respect to which the witness would be competent to testify in open court: Held, that by such agreement of the parties the propriety of taking the evidence of the witness in that way could not be questioned.

5. SAME-attaching will to deposition. A paper on file as the last will of a party may be produced to an attesting witness thereto, on the taking of his deposition, and identified by him, so as to prevent any mistake as to identity or the possibility of the fraudulent substitution of any other writing; and in such case, the deposition will not be suppressed merely because the will was not attached thereto by the officer and certified to the court.

6. SAME-offering the will in evidence-not shown by the record. A judgment, on appeal to the circuit court, admitting a will to probate, will

Statement of the case.

not be reversed because the record fails to show that the will was formally introduced in evidence, when no such objection was made in the trial court, and the parties, by their instructions, treated the paper as in evidence.

7. DEPOSITIONS-objection that they were not sealed-presumption. On an objection to a deposition, on the ground that it came to the clerk unsealed, it will be presumed that the officer who took the deposition did his duty, and sent the same properly sealed, and the burden of proof is on the objector.

8. SAME-practice-time within which to move to suppress deposition for being unsealed. A motion to suppress a deposition on the ground it was not properly sealed and directed, comes too late after a general order for the opening of all depositions, unless some good reason is given for the delay. The court, upon objection taken before such order is made, can then decide the motion by inspection, instead of acting upon affidavits.

9. WITNESSES—credibility—conviction of crime. By statute of this State, a conviction of crime may be shown as affecting the credibility of the witness, and whether it does affect the credit to be given his testimony is always a question for the jury.

Το

10. SAME-impeachment — by proof of contradictory statements. render an affidavit of a witness admissible in evidence for the purpose of contradicting or impeaching his testimony given by deposition, the affidavit must have been produced on his examination, and his attention called to such parts as are claimed to be contradictory of his testimony. It is not sufficient to ask him, generally, if he has not made certain contradictory statements.

APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Circuit Court of Cook county; the Hon. LORIN C. COLLINS, Judge, presiding.

A paper purporting to be the last will and testament of John Noble, deceased, was presented to the probate court of Cook county, by Edward P. Savage and Otis K. A. Hutchinson, the executors, for probate, and an order was entered in that court admitting it to probate as the last will and testament of John Noble. Robert W. Robinson appealed from that order to the circuit court, where like action was had, and upon appeal to the Appellate Court the judgment of the circuit court was afRobinson prosecutes this, his further appeal to this

firmed.

court.

Briefs of Counsel.

Mr. W. S. Cox, and Mr. S. P. DOUTHART, for the appellant:

The depositions should have been suppressed. Rev. Stat. secs. 30, 31, chap. 51; Edleman v. Byers, 75 Ill. 367; Corgan V. Anderson, 30 id. 95.

The affidavit of Hood should have been received in evidence. 1 Greenleaf on Evidence, sec. 200; Commonwealth v. Knapp, 9 Pick. 507; Ray v. Bell, 24 id. 444; Craig v. Rohan, 63 id. 325.

The court erred in instructing the jury that the term "credible witnesses" meant "competent witnesses," and that McIlvaine and Hood were competent witnesses, and their testimony should be received in the case. Stampofski v. Steffens, 79 Ill. 303; Haines v. People, 82 id. 430; Connaghan v. People, 88 id. 460; Packet Co. v. True, 88 id. 608; Belt v. People, 97 id. 461; O'Neal v. Boone, 82 id. 589; Shaw v. People, 81 id. 150; Andreas v. Ketcham, 77 id. 377; Paton v. Stewart, 78 id. 481.

The court erred in instructing the jury that the fact that Hood was under indictment for, and had pleaded guilty to, the crime of forgery, did not render him incredible as a witness. Johnson v. People, 94 Ill. 505; Provision Co. v. Tilton, 87 id. 547; Insurance Co. v. Crawford, 89 id. 62; Calef v. Thomas, 81 id. 478; Martin v. Johnson, 89 id. 537; City of Aurora v. Hillman, 90 id. 61; Moore v. Wright, 90 id. 470; Phillips v. Roberts, 90 id. 492; Life Ins. Co. v. Dill, 91 id. 174.

It was error to instruct the jury that it made no difference when the witness formed his opinion as to the mental capacity of the testator. Rev. Stat. sec. 2, chap. 148.

Mr. J. N. JEWETT, and Messrs. HUTCHINSON & LUFF, for the proponents of the will:

The motion to suppress the depositions of Hood and Mellvaine was properly overruled,-first, because the depositions were properly enclosed and sealed up; and second, because the motion was made after the depositions had been opened at the request of counsel for appellants. The objection was not made

Opinion of the Court.

"in proper time," as required by section 31, chapter 31, of the Revised Statutes.

By the first instruction given on behalf of the proponents of the will, the jury were correctly instructed as to the requirements of the law necessary to establish a document offered in evidence and purporting to be a last will of a person deceased, and to entitle the same to probate and record as such last will. Dickie v. Carter, 42 Ill. 376.

The term "credible witnesses" means competent witnesses, and the instruction of the court, "that the mere fact alone that Henry Hood was, at the time of his examination as a witness in this case, under indictment for, and had pleaded guilty to, the crime of forgery, did not render him incompetent or incredible as a witness to the execution of the writing introduced in evidence," was properly given. 1 Redfield on Wills, 253, and note; Rusher v. Lambdin, 12 Sm. & M. 230; Hawes v. Humphreys, 9 Pick. 350; Cornwell v. Isham, 1 Day, 35; Taylor v. Taylor, 1 Rich. 531.

The paper purporting to be an affidavit of the witness Hood was properly excluded, because no foundation was laid for contradicting, impeaching or discrediting said Hood as a witness, and his attention was not called to the said supposed affidavit upon his cross-examination. McCoy v. People, 71 Ill. 111; 1 Greenleaf on Evidence, sec. 462.

Mr. JUSTICE SHOPE delivered the opinion of the Court:

This being an appeal to the circuit court from an order of the probate court admitting the writing presented as the last will and testament of John Noble, deceased, to probate, the evidence in the circuit court to prove the will was properly confined to that of the subscribing witnesses. Andrews v. Black, 43 Ill. 256; Weld v. Sweeney, 85 id. 50.

The instrument here sought to be probated was attested by Henry Hood and S. L. McIlvaine, only. It was shown that said Hood was a gambler, had been charged with embezzle