not control his hand, to have him sign it by his mark and have two witnesses to it. Pierce asked Ludewick what he wanted to do with the certificate, and he said he wanted to give it to his wife, and Pierce thought at the time the transaction took place Ludewick understood the transaction and knew what he was doing. Mrs. Pence, the other witness to his signature, testified that Ludewick knew her; that she talked with him; that he seemed conscious and certainly seemed to know what he was doing; that she saw him the next day after he signed the certificate, which was Friday, and shook hands with him and he spoke to her. His competency to transact ordinary business is also testified to by Aughinbaugh, as above stated, and by William Warren, who had known him a number of years and saw him frequently during his last illness and conversed with him. He testified that until within the last day or two prior to his death Ludewick was capable of transacting his ordinary business and affairs. To the same effect is the testimony of Rev. Combes, who lived about half a block from Ludewick and saw him every day during his last illness and conversed with him. He testified that so far as he could see he seemed to know what he was doing. Dr. Lorton, who attended Ludewick during his last illness, testified as to his capacity and capability of knowingly and understandingly transacting ordinary business, and that his death was brought on by old age. He further testified that he thought Ludewick knew and understood everything all right until probably the last day of his illness. Another witness, Miss Coffey, who roomed at the Ludewick house and saw him every day, testified that he recognized her every time she spoke to him until Saturday morning; that the transfer of the certificate of deposit was made on Friday, and that she thought his mental condition was all right at that time. Miss McCluny, the nurse who attended him during his sickness in September and the last day and a half of his last illness, testified that during that time he

was a very sick man but that he always knew her and was glad to see her; that he seemed perfectly bright and was certainly capable of transacting his ordinary business and affairs. Other witnesses who saw him a day or two before his death also testified that in their opinion at the time of the transaction in controversy he seemed as bright as usual and was capable of knowing and understanding his ordinary business and affairs.

While the evidence as a whole shows that Ludewick was in a very enfeebled physical condition at this time, we think the testimony of these witnesses sufficiently establishes the fact that he acted with sufficient knowledge and understanding in assigning the certificate to appellee to give validity to the transaction. No witness testified on behalf of appellants that they saw him at about the time the assignment was made, or that he lacked sufficient capacity at that time to knowingly and understandingly engage in such transaction. Appellants' case, in so far as each transaction is concerned, rests entirely upon the opinions of witnesses who had observed the gradual decline in the health of the deceased incident to old age, and consists of mere opinions gathered from casual conversations and incidents unconnected with any business transaction in which he was interested, and not from any observations made of him in transactions of ordinary business and affairs of his life. While this testimony is entitled to some weight, it cannot be permitted to overcome the evidence of other equally disinterested witnesses who had transacted business with him and who were equally well acquainted with him and competent to form an opinion as to his condition, and were present at the time of the transaction in question, or immediately before or after it, and testified that in their opinion he knew and understood the transaction in which he was engaged. There is no conflict in the testimony of the witnesses who saw him on the day when either of these transactions took place, as to his competency to knowingly and understand

ingly transact his ordinary business. While his will does show that he at one time intended to give his wife but the life use of his property with the remainder to his children, the evidence shows that at some time subsequent to the making of such will, and prior to the making of the deed in question, he changed his mind in respect thereto and concluded to deed the real property and assign the certificate of deposit to his wife absolutely. The testimony of Aughinbaugh quite clearly shows a well-developed intention on the part of the deceased to give the bulk, if not all, of his property to his wife after his death. This is what he ultimately did. While the matter is not entirely free from doubt, we are unable to say, after an examination of all the evidence in the record, that such evidence does not preponderate in favor of appellee or that the court erred in entering the decree dismissing the bill for want of equity. The decree of the circuit court will be affirmed. Decree affirmed.

(No. 11360.-Judgment affirmed.)

FANNIE J. BELLMAN, Admx., Appellant, vs. MAX EPSTEIN,

Appellee.

Opinion filed June 21, 1917.

1. EVIDENCE-what interest in suit by administrator will disqualify witness to testify. The interest which disqualifies a witness to testify in a suit by an administrator must be some legal, certain and immediate interest, however minute, either in the result of the cause itself or in the record as an instrument of evidence in some subsequent action to which he is a party, either against him or in support of his claims, and a mere interest in the question to be decided is not sufficient.

2. SAME-effect of the record as evidence in an action between strangers to it. Where it is material and competent to prove the existence of a judgment the record of the cause is legitimate evidence between strangers, and its effect is to prove the fact of the judgment.

3. SAME when party is a competent witness in suit by administratrix. The person to whom a defendant claims he paid, and was authorized to pay, a promissory note of a deceased person is a competent witness in a suit on the note by the administratrix, where he is not a party to the suit, as the judgment would not be an adjudication of his liability in a subsequent action against him, nor could the record be introduced to prove or disprove that the deceased gave him authority to receive payment or that the defense set up in the administratrix's suit was well founded.

APPEAL from the First Branch Appellate Court for the First District;-heard in that court on writ of error to the Municipal Court of Chicago; the Hon. JOHN J. SULLIVAN, Judge, presiding.

Dent, Dobyns & FREEMAN, for appellant.

SYDNEY STEIN, and SIGMUND W. DAVID, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The appellant, Fannie J. Bellman, administratrix of the estate of Henry J. Bellman, deceased, brought this suit in the municipal court of Chicago against the appellee, Max Epstein, upon a promissory note executed by the appellee to Henry J. Bellman, dated October 20, 1907, for $1000, due eight months after date. The defendant, in answer to the statement of claim, set up the following defenses: (1) No consideration; (2) failure of consideration; (3) that the note was an accommodation note; (4) payment of the note to Elias Mayer, by authority of Bellman, in discharge of Bellman's debt to Mayer. On the trial the defense was confined to payment, and Elias Mayer was offered by the defendant as a witness to prove his defense. He was objected to by the plaintiff as incompetent because he was directly interested in the event of the suit and could not testify against the administratrix. The objection was overruled, and Mayer testified that about May 3, 1906, he was at dinner with Bellman and the defendant in Philadelphia,

when Bellman wanted to sell to him and the defendant stock in the Standard Glue Company, and offered to sell Mayer stock of the par value of $1000 for $900, with an agreement that if Mayer took the stock and was at any time not satisfied with it Bellman would pay back the money with interest at six per cent; that Mayer bought the stock and paid for it; that in March or April, 1909, Bellman told him that the company had been forced into bankruptcy and that he would pay back the $900 with interest, and said that he held a note of the defendant for $1000, given in connection with the stock transaction; that Mayer should tell the defendant to pay him the $900 with interest and Bellman would cancel and destroy defendant's note; that he told the defendant of the agreement and the defendant said he would write to Bellman; that afterwards, about May 15, 1909, he saw a letter addressed to the defendant in the handwriting of Bellman, and that the defendant paid him the $900 and interest, as directed by Bellman. There was a judgment for the defendant, and the cause being removed to the Appellate Court for the First District, the sole question there presented was whether the municipal court erred in ruling as to the competency of Mayer as a witness. The Appellate Court affirmed the judgment and granted a certificate of importance and an appeal to this court.

Section 1 of the statute in regard to evidence and depositions in civil cases removes the disqualification of a witness in any civil action by reason of his or her interest in the event thereof, but by section 2 the disqualification is retained as to any party to the action or person directly interested in the event thereof, where the adverse party sues or defends as administrator of any deceased person. Mayer was not a party to the suit, and when offered as a witness the question presented to the court was whether he was directly interested in the event of the suit. The true test of his interest was whether he would either gain or