SCHOLFIELD, J.
Hugh Kennedy died intestate, in Will county, on the tenth day of August, A. D. 1880, leaving surviving him his daughters, Ann Cuddy, Eliza Cunningham, Kate Kerwin, and Mary F. Kimball, his only children and heirs at law. Before his death, on the twenty-seventh day of April, A. D. 1880, he conveyed all his real estate,-an 80-acre tract of farm land in that county,-and gave all his personal property, to his daughter Mary F.; taking back from her an obligation to support, maintain, and nurse him during his life, and to pay all his debts and his funeral expenses, etc., after his death. This bill is filed by Ann Cuddy, Eliza Cunningham, and Kate Kerwin, their husbands joining them, against Mary F., to set aside the deed on the ground that Kennedy was imbecile and mentally incapable of making a deed at the time this deed was executed, and that it was caused to be executed by the undue influence of Mary F. She answered, denying the material allegations of the bill. On final hearing the court decreed in conformity with the prayer of the bill, and the case comes here by the appeal of the defendant.
We have given the evidence, as it is presented in the printed abstract before us, careful consideration, and we are of the opinion that it does not sustain the decree.
It must be kept in mind that the burden is upon complainants to prove the allegations of their bill; that they must show such a degree of mental weakness as renders the maker of the deed incapable of understanding and protecting his own interests; that the mere circumstance that the mental powers have been somewhat impaired by age or disease is not sufficient, if the maker of the deed still retains a full comprehension of the meaning, design, and effect of his acts, unless by reason of the undue influence of the grantee he was unable to exercise his will in that respect. Willemin v. Dunn, 93 Ill. 511, and cases there cited. Moreover, the undue influence which will avoid an instrument of this character must be such as to destroy the freedom of the maker's will. Mere advice or argument or persuasion would not vitiate it, if made freely and from conviction, though it might appear that the instrument would not have been made but for such advice or pursuasion. Roe v. Taylor, 45 Ill. 485;Carmichael v. Reed, Id. 108.
The general condition physically, and, to some extent, mentally, of Kennedy, is presented by the testimony of Dr. George H. Hosmer, his attending physician throughout his illness, embracing the time when the deed was made. He was called and examined in behalf of the complainants, and evidently testifies without feeling or bias. He testified:
‘I attended Hugh Kennedy in his last illness; called about last of January until June; case of senile bronchitis, with asthma. First I treated him to relieve immediate suffering; that treatment extended through February. Then I became convinced that illness would be his last sickness. After that I called and prescribed for him with no hope of cure, but to relieve present suffering. In February found him up and sitting around; after that in bed; did not know if invariably confined to bed, but think he was after February; judge his age over 70. In March, April, and May found him in bed; generally more or less difficulty in conversation; at times he didn't appear to be very stupid, at times he did; had most of conversation with Mary, as it seemed to hurt him to talk. At first he could talk sensibly about himself, but gradually became weaker bodily and mentally until the end. Can't state whether, after February and March, his mind was in condition to transact important business. I didn't have that in mind, and made no test. There may have been times that it was,-probably not always. At times I visited him, in February and March, he may have been of capacity to execute a deed. If had that in view, could tell, but made no test. There were times when he was not of sufficient understanding. I recollect, too, when he was in a stupor. It must have been last of May or first of June. After February he seemed to comprehend my coming all but those two times. Could not say whether, at that time, I deemed him a man in full possession of his faculties; think at times his faculties were impaired. He told me it hurt him to talk, and I mostly talked with his daughter. Would press on some part, and ask him if it hurt him, and he would nod. I advised cough mixtures, opiates to relieve diarrhea, stimulants to relieve prostration, and suitable nourishment. I advised brandy and whisky,-suitable quantity,-and left it to herself. I always found her a good nurse. Six or eight ounces a day would be reasonable for a man in his condition. A quart would intoxicate and prostrate.
‘ Cross-examined. First visit found him sitting by stove, suffering from senile bronchitis; mental condition sound for man of his age; answered all questions directly and intelligently. First month he was in chair, after that in bed, and may have been in chair at times. Prescribed opiates in May for painful diarrhea; set in about May 1st; continued to death; resulted in involuntary discharges, due to general debility. Want of control of bowels may exist where patient has not lost mental faculties. Resumed visits in six weeks after March 1st; found him in bed, weakened down. After that saw him four or five times. During visit saw James P. Murphy, J. P., in house where Mr. Kennedy was, some time in month of February. On that occasion Mr. Kennedy was sitting in chair by the fire in sitting-room. Before illness he had been in habit of using whisky. It was understood to give him whisky when he was weak and sinking, and leave it a good deal to himself when he wanted it. She told me had bought wine for his use, and I told her wine would gripe him, and to get whisky or brandy; I recollect that very distinctly. Persons in his condition, dying of general debility, are apt to be stupid and weak at times, and at other times revived, and more clear and active mentally. In May and April he had sifficulty in bronchial region that made conversation painful; and for a person not a physician to judge of his mental condition would be necessary to observe him constantly or frequently when not under the influence of stimulants, and after periods of rest, and before, to form correct opinion of his mental condition. It was more difficult to judge of his mental condition than of a person dying of general debility whose vocal organs were all right; nothing in his case more likely to affect mental faculties than any man sinking under asthma and bronchial affection. He exhibited no signs of mental disorder existing prior to illness, except such as naturally produced by his bodily ailments; nothing in his case likely to produce mental disease more than other ailments producing similar bodily and nervous prostration.’
At such times as he was revived, and mentally more active, no reason is given in this evidence, though the doctor shows that he made no examination of Kennedy's mind with reference to an opinion upon that subject, why Kennedy could not make a deed. He thinks, after February and March, there may have been times when his mind was competent to make a deed,-probably it was not at all times.
Now, Murphy, the justice of the peace, an apparently intelligent and disinterested witness, visited him for the purpose of transacting business in February, and he also took the acknowledgment of the deed. This is what he says:
‘Knew Hugh Kennedy over ten years. In 1880 saw him in Joliet. Saw him in Joliet, on Jefferson street, and shook hands with him. I wrote out his will and testament at Mrs. Kimball's house. He was sick. He got out of bed, and sat in a chair. He signed the will. It was witnessed by William Killeen and James Woods. Nobody present when will was drawn but Mr. Kennedy and myself. He gave me such directions as were necessary to the draft of the will. Nobody else gave me any directions. Once or twice his daughter came in, and asked if he wanted anything, but the old man did not say anything, nor I didn't say anything, nor either of us do anything until she went out. Two witnesses signed the will, and he gave it to me. He understood what he was doing. He was weak and sick, and as rational as anybody I could talk to. I think he was as sensible as anybody; had possession of his senses then, in my opinion, as perfectly as when I had known him in good health. Saw him again in same house. That will was changed a little. I drew what is called a codicil. Can't tell how long I talked with him then. When I was drafting the codicil, nobody present but Mr. Kennedy and I. He was in the same room, sitting in the same chair, as before. He signed the codicil, and the two persons that witnessed the will witnessed it. His mind was as clear then as when I drew the will. Saw him again in the same house; can't tell how long after. Went there with J. L. O'Donnell, near evening. I think O'Donnell requested me to go to acknowledge a deed. Mr. Kennedy was sitting up in bed. I got the deed, and went into his room,-next room to sitting-room. I asked the old man if that was his signature, and if he understood the contents of the deed, and he said, ‘Yes.’ Think O'Donnell drafted the body of the deed. Mr. Kennedy was sane and in his right mind then, but a little weaker than when I saw him previously. He and I talked about how comfortable he was, how well he was taken care of, and that it would probably be the last time I would see him, as the man expected to die in a short time. He told me to destroy the will and codicil after the deed was made. When he told me that, I think he was as sane and as reasonable as at any time I ever conversed with him. Near as I recollect, I stood close by his bed while there. Mary Kimball was grantee in that deed. I destroyed the will and...
