¶1dissenting:
¶2Without the testimony of T. Z. Creel the decree cannot be sustained. The complainant objected to his competency as a witness because he was the executor of the will, was a party to the suit and was interested in its result. Her objection was overruled, the court heard and considered his testimony, and upon it, alone, the decree is based. If incompetent evidence is admitted over objection on the hearing of a cause in chancery, it is not ground for reversal if the competent evidence appearing in the record is sufficient to sustain the decree. In such case it will be presumed the court disregarded the incompetent evidence. But there can be no such presumption in this case because the testimony of Mr. Creel is the only evidence in the record that Mrs. Colbert knew the character and extent of her intended husband’s property, and it is conceded that such knowledge was essential to defeat her claims. Whether the overruling of the objection to the competency of the witness is assigned for error or not is immaterial. The chancellor had no right to consider, on the hearing, incompetent evidence which was objected to, and the assignment that the decree is not sustained by the evidence raises the question whether the decree is supported by evidence which the chancellor had a right to consider. If the evidence was objected to and was incompetent we are bound to presume the chancellor did not consider it, and if he did not consider it there is no evidence on which the decree can be sustained.
¶3In Tunison v. Chamblin, 88 Ill. 378, it is said (p. 382) : “It is also urged that the court below erred in the admission of improper evidence. This court will never, in a chancery proceeding, reverse for that reason, even where it is apparent on the face of the record. The court hears and determines the case upon the proper evidence before it, and, whatever may be before it, we will presume the court only considered the legitimate evidence pertinent to the issues and that the decree was based on it, and when the record is brought to this court the case will be heard on the proper evidence contained in the certificate of the judge who tried the case, disregarding all irrelevant and improper testimony. This has been so repeatedly announced by this court that it must be held to be the settled practice.”
¶4In Goelz v. Goelz, 157 Ill. 33, it is said (p. 40): “The question before us concerns the legal competency of certain evidence, and the question arises, not in an action at law, but in a suit in equity. In Swift v. Castle, 23 Ill. 132, this court said: ‘The question presented upon the trial before the chancellor, as well as in the Appellate Court, is, upon all the legitimate evidence in the cause, what decree should be rendered ? The chancellor being the judge of both the law and evidence, the presumption is that in rendering his decree he will only regard that which is legal and pertinent. … It is the correct practice for the chancellor, after the evidence is heard, to regard no portion of it which is immaterial or illegal and to decide the case alone on the legal evidence adduced. Such is believed to have been the uniform practice, which has been adopted from considerations of convenience and is in no way calculated to hinder or delay the administration of justice, and no reason has been suggested, nor is any perceived, why it should be changed.’ In Treleaven v. Dixon, 119 Ill. 548, it was said: ‘In chancery cases the whole record, including all the evidence offered, is before us, and we are required to assume that all the incompetent evidence was rejected and all the competent evidence was admitted and considered on the final hearing. If there is competent evidence in the record sufficient to sustain the decree it must be affirmed; if not, it must be reversed,—and this without regard to whether the chancellor may have been right or wrong in his views as to the competency of the evidence at the hearing.’ And to the same effect are Stone v. Wood, 85 Ill. 603, Tunison v. Chamblin, 88 id. 378, Moore v. Tierney, 100 id. 207, Ritter v. Schenk, 101 id. 387, Smith v. Long, 106 id. 485, Gordon v. Reynolds, 114 id. 118, and numerous other cases.”
¶5There was no waiver of the objection, no consent to the consideration of this evidence which the chancellor, if the objection was well taken, had no right to consider, and therefore I do not think the decree should be sustained upon such evidence alone, received over the complainant’s objection, without determining that it was competent evidence in the case.