majority">Mr. Justice Farmer

delivered the opinion of the court:

It is conceded by plaintiff in error that the decree of the circuit court should not be reversed on the ground, alone, that the verdict of the jury was against the weight of the evidence. The argument of counsel is devoted mainly to the proposition that the court erred in holding that Mrs. Ring was an incompetent witness, the contention being that the agreement set out in the preceding statement barred her right to claim any interest in the estate of her father in the event of the will being set aside. It is not claimed that the agreement was a conveyance or assignment to Charles Gaffney of any interest she might, in that event, otherwise be entitled to in the estate of her father, but that it raised an estoppel against her in favor of Charles Gaffney. We do not think the case presented is one where the doctrine of estoppel is applicable. The facts show that Mrs. Ring’s interest in the estate, if it descended to the heirs as intestate property, would have been much greater in value than the amount paid her by her brother, and in the distribution of it, if it were distributed as intestate estate, the rights and interest of Charles Gaffney could be so guarded and protected as that no loss would accrue to him on account of the payments made Mrs. Ring. Furthermore, the agreement was with Charles Gaffney alone, and if it were conceded that Mrs. Ring was estopped, as to him, from claiming any interest in the estate in the event of the will being set aside, she would not be estopped as to the other heirs. We do not construe the agreement to have had any other or different effect upon Mrs. Ring’s rights than the acceptance of the $500 legacy under the will would have had in the absence of any agreement. Such acceptance alone, if made with full knowledge of all the facts, would have been a bar to her right to contest the will. Gorham v. Dodge, 122 Ill. 528; Friederich v. Wombacher, 204 id. 72.

The express acceptance of the will, and the covenant and agreement not to institute or prosecute any suit to contest it or to voluntarily assist any other person in so doing, could add nothing to the effect of Mrs. Ring’s acceptance of the legacy, alone. The facts disclosed by the record show that Mrs. Ring has not attempted to contest the will, nor does it appear that she has willingly sought to assist anyone else in doing so. The suit was brought by one of the other heirs, to which Mrs. Ring was made a defendant, and she was called as a witness by the complainant. She was not acting upon her own motion, nor in any way in violation of her agreement with her brother ndi* in bad faith toward him. The interest of Mrs. Ring was in favor of setting aside the will, and being called to testify as a witness in behalf of the party seeking to accomplish this result she was incompetent, and the court properly sustained the objection of defendants in error to her being permitted to testify.

Complaint, also, is made of the rulings of the court in refusing a number of instructions offered by. plaintiff in error upon the question of undue influence. The court took that question from the jury and refused all instructions asked by plaintiff in error upon that subject. We think the ruling of the court in this respect was correct. There was no proof tending in the slightest to establish the charge of undue influence. The principal basis of the claim that the court should have instructed the jury upon this question is, that the will distributes the testator’s property unequally between his heirs. The testimony negatives any inference that this was the result of undue influence.

The sixth instruction given on behalf of defendants in error was not an accurate statement of the law, but it was of such character that, in view of the evidence and other instructions given, it could not have in any way prejudiced plaintiff in error.

We find no reversible error in any of the rulings of the court in giving and refusing instructions, and the decree of the. circuit court is affirmed.

n K Decree affirmed.

Cartwright, C. J., Scott and Carter, JJ., dissenting.

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