referred to in the answer was entered into at Onstott's suggestion.

On the hearing, sixteen witnesses who were intimately acquainted with the deceased and who had observed his physical and mental condition about the time the deed was executed, expressed their opinion that he was incapable of transacting ordinary business at that time. Thirteen witnesses who were of the opposite opinion testified for defendants. By the will of the deceased, which was offered in evidence by defendants, all his property is devised and bequeathed to Barbara Onstott.

It is contended by appellants that the decree entered by the court in reference to dower is erroneous, uncertain and incomplete, and that the finding of the decree as to the mental capacity of the deceased at the time of the execution of the deed is contrary to the manifest preponderance of the evidence. Appellees assign cross-errors challenging the decree in so far as it establishes the right of Barbara Onstott to dower.

F. M. YOUNGBLOOD, and W. W. BARR, for appellants.

W. A. SCHWARTZ, for appellees.

Mr. JUSTICE SCOTT delivered the opinion of the court: The testimony offered on behalf of the appellants and that introduced by the appellees is in irreconcilable conflict. Don Onstott had three attacks of paralysis, the first in January or February, 1900; the second in February, 1903, and the last, which caused his death, in the early part of 1906. The deed in question was made on February 24, 1904, and it is the theory of the appellants that ever after the second attack of paralysis he lacked mental capacity to sell and convey property. After February, 1903, however, he continued to direct his business affairs, being assisted and advised to some extent by his wife. She became involved in a lawsuit during that time, in reference to the construc

tion of a dwelling house, and he managed the litigation and appeared and testified in court at some length. The property involved in this suit, prior to the time he sold it, was used by a tenant for an inclosure in which to keep live stock. It produced little or nothing in the way of rentals. Mr. Onstott regarded it as unproductive and had been trying for a considerable period to find a purchaser for it at the price at which it was sold to Edel, viz., $1000. After he had agreed to sell it to him at that price and a deed had been prepared his wife declined to join in the deed. Thereupon he entered into a contract in writing with Edel, the other appellees assenting, by which they took a deed for the property without the signature of the wife. Two-thirds of the purchase price was paid to him in cash and the remaining one-third was deposited in the First National Bank of DuQuoin, to be held by that bank upon these conditions: If Onstott's wife died before he did then the money was to be paid to him, or if he should at any time procure from her a quit-claim deed to the owner of the premises, then the money was to be paid to him; if, however, she outlived her husband without having released her dower, then the money was to be paid to Edel, who was to "settle" with the wife with reference to her dower right in the premises. Don Onstott was to be paid interest at the rate of six per cent per annum on the money so deposited in the bank, so long as it was held there pursuant to the provisions of the contract.

The decree is supported by the testimony of a considerable number of the men with whom Onstott sustained the most intimate business relations during the later years of his life. That testimony indicates very strongly that while his physical strength was much less than normal after the second attack and while his mind was not as strong and vigorous after that attack as it had been prior to that time, he was nevertheless entirely sane and mentally capable of managing and disposing of his property. On the other hand, his family physician and others, greater in number

than those who spoke for appellees, testified that ever after the second attack of paralysis his mind was in a passive condition, in which he readily yielded to any suggestion or persuasion addressed to him; that he was at times slightly deranged, and was mentally incapable of selling and conveying property at all times after that attack.

Among those who testified on the part of appellees was an attorney at law who had been employed by them in this case but who does not appear for them in this court. He prepared the answers that were filed by appellees and acted for them until the time when the court entered upon the trial of the case. He took no part in the trial, and on the day before he testified he withdrew as solicitor for appellees. He testified that he withdrew as counsel because he learned that it would be necessary for him to testify, and that upon conference with his associate counsel the latter took the same view that he did in reference to the necessity of his becoming a witness, and that thereupon he advised his clients that he would not testify and act as counsel in the same case. It is earnestly insisted by appellants that this fact should be given great weight in determining whether or not the decree is against the manifest preponderance of the evidence in the case. Our views bearing upon the propriety of an attorney testifying in a case in which he is employed are stated at length in the case of Wilkinson v. People, 226 Ill. 135. The course pursued by the attorney in this case would not properly subject him to criticism had the apparent necessity for his going upon the witness stand resulted from some unforeseen event that occurred in the progress of the trial; but that was not so. It must have been at once apparent to him upon the examination of the bill herein that his testimony would be material. Immediately upon that fact becoming evident it was his duty to confer with his associate and his clients and then determine whether or not he would be a witness in the cause, and if he was to testify he should at that time have entirely sev

ered his connection with the litigation. If the conclusion was that he should not testify, he and his clients should have abided by that decision, unless some emergency thereafter arose which was not anticipated at the time it was determined that he would not be a witness, making it important for the protection of his client's interest that he should testify. His withdrawal from the case was too long delayed. The chancellor, however, knew all the circumstances surrounding this witness, and should, and no doubt did, consider them in determining the weight to be given to his testimony.

Many persons testified as to the value of this property at the time the deed was made, and with one exception they united in saying that its fair cash value did not at that time exceed $1000. It is apparent, therefore, that the transaction does not, in itself, indicate any lack of mental capacity on the part of Don Onstott, and it is also apparent that he would have suffered no loss by reason thereof had his wife seen fit to release her dower in his lifetime or had he survived her.

Upon a careful review of all the testimony we are of the opinion that it cannot be said that the chancellor erred in his finding on the question of mental capacity.

Don Onstott died testate and made provision, by his will, for his wife. Appellees have assigned cross-errors, and insist that such provision bars the wife's right to dower in this property. The chancellor held, as we think, correctly, that Edel having agreed by his contract that the dower right of the widow, if not released by her, should (in case she survived her husband) be satisfied by him, appellees cannot now be heard to say that she has no dower in this property. Upon Onstott's death the one-third of the purchase money deposited in the bank at once became payable to Edel. If the dower right cannot be enforced, appellees have acquired the entire title for two-thirds of the amount they agreed to pay for it.

The decree correctly provided that Barbara Onstott should recover her dower in the premises exclusive of the improvements placed thereon by Yehling and Kimmel, but contained no provision to make effective that right. The case should be re-docketed in the circuit court and such further proceedings had as may be necessary to carry into effect the former decree of that court.

The decree of the circuit court will be affirmed. Each party will pay one-half the costs of this court.

Decree affirmed.

THE METROPOLITAN WEST SIDE ELEVATED RAILWAY COMPANY, Appellee, vs. BERTHA ESCHNER et al. Appellants.

Opinion filed February 20, 1908.

1. EMINENT DOMAIN-question of title not triable by the jury. The only issue triable by the jury in a condemnation case is the question of damages and compensation, and the question of title is preliminary and must be determined before the jury is empaneled.

2. SAME-petitioner should ascertain and allege ownership of land. The petitioner in a condemnation proceeding should ascertain and allege the ownership of the land, but while the averments as to title are binding upon the petitioner they are not binding upon the defendants, and the latter may require the court to determine that question before the jury is empaneled.

3. SAME-effect of averments as to title. Defendants to a condemnation petition alleging that the tract of land is owned by the several defendants will be presumed, in the absence of proof to the contrary, to be tenants in common, and the verdict may find a gross amount to be paid to them; and if there is no averment of a less title or of any encumbrance, the defendants will be regarded as owning an unencumbered title in fee simple.

4. SAME-evidence as to title is not competent on issue tried by jury. Evidence relating to title is not competent upon the issue to be tried by the jury in a condemnation proceeding, but where a conflict of interest among the defendants is disclosed, the court should order the compensation awarded to be paid to the county treasurer and require defendants to present their respective claims thereto to the court.