amount which Warner was authorized to offer and finally referred the latter to Mr. Barge as Geiger's attorney. No agreement being reached a petition for condemnation was filed, but before trial the controversy was settled. Geiger made a conveyance to the railroad company on October 31, 1906, his wife, one of the contestants, joining in it, and $6000 in money was paid to him. Warner regarded him as of sound mind and a careful, prudent, conservative man. Geiger was a depositor in the Dixon National Bank, and A. P. Armington, the cashier, who had known him for twelve or thirteen years, did business with him personally at the bank and had many conversations with him, testified that he was of sound mind. Armington sold him $2000 of telephone bonds in 1906, for which probably a part of the money received from the railroad company was used. More of it was probably used in the purchase of the Kansas land, which has already been referred to. Geiger was accompanied on this trip to Kansas by Wheeler and Henry Raffenberger, real estate dealers living, respectively, in Sterling and Dixon, who testified as to Geiger's visiting with them a number of different tracts, inspecting them personally, examining the soil and finally selecting two quarter sections, which he bought. One of the quarter sections he caused to be deeded as a gift to his son Walter, then nineteen years old, who accompanied him. No one then seems to have thought of any lack of mental capacity, and Wheeler and Raffenberger testified that Geiger was then of sound mind. Roy Raffenberger, a son of Henry, who was in business with him, testified to the same effect. He saw and talked with Geiger before the western trip, which lasted ten days, and many times after his return. F. X. Newcomer, who was in the real estate, loan and insurance business in Dixon, knew Geiger about twelve years, loaned money for him, sold bonds to him and had many business deals with him. Between October 30 and November 5, 1906, he notified Geiger that the Harvey property, on which Geiger had a loan, had been sold and the buyer wanted to pay the loan off, but Geiger said it was not yet due. Newcomer told him there was a privilege in the note that he would have to accept the money. Geiger replied that he did not know about that but he would see, and in a few minutes he came back with the note, saying, "You are right; I will have to take the money; there is a privilege," and Newcomer thereupon gave him a check for the amount. In about thirty days after that Newcomer drove out to his house to see him about loaning some money, but Geiger told him he had bought some telephone bonds, being those sold him by Armington. James Stitzel, who was a highway commissioner, testified particularly to a conversation with Geiger in September, 1906, about the hard road leading into Dixon and the necessity of repairing it, and also to other conversations. Henry Phillips testified to a visit to Geiger's home in 1907, when the latter told him about his first coming west, and his early experiences, his struggles, his early investments in land and his business principles. J. F. Palmer, an attorney of Dixon, who was acting as an appraiser of the right of way for the railroad company, had several talks with Geiger while the matter was pending, as well as before and after. Baker, a painter and paperhanger of Dixon, knew Geiger twenty-eight years and did a good deal of work for him, extending over a considerable period of time. These and a number of other witnesses, some of whose opportunities were not so good and others of whom were unable to fix times and whose opinions were therefore of less weight, gave their judgment that the testator was of sound mind. In all there were more than twenty witnesses, neighbors and acquaintances of the testator, who testified to his mental soundness. No one of his neighbors, nor anyone in the habit of seeing him often, testified to the contrary. Against these, besides the two doctors, are the two real estate dealers in Sterling, the tailor in Hot Springs and the brother-in-law from Iowa, testifying to an occasional conversation or circumstance of little importance. Any other circumstances appearing in the evidence which might be referred to are as consistent with sanity as insanity. The opinion of the doctors as to the testator's mental condition in January, 1906, is inconsistent with the established facts as to his condition later in the same year. Neither old age nor feeble health constitutes mental incapacity, nor do both together, though combined with a defective memory and mental sluggishness. The counsel for the appellees rely upon the fact that Walter accompanied his father on the Kansas trip, and that he or Thomas, or both, were present on various other occasions when the evidence shows that business was transacted by their father, and the inference is sought to be drawn that in such matters the son's was the controlling mind. But the evidence does not indicate it. Their mere presence cannot be regarded as evidence of their father's incapacity, and the evidence does not show that they transacted the business for their father other than under his direction. In 1906 Walter was a nineteen-year-old school boy, with no business experience, and while Thomas was five or six years older, there is nothing to indicate his capacity. The will itself contains no evidence of an unsound mind, but it does indicate that the testator believed his children should not have the direct control of his estate. The trust he attempted to create was within his legal power, and the fact that all the beneficiaries for whose protection it was created wish it destroyed does not make it any the less the duty of the trustee and the court to see that the will of the testator is carried out if he was mentally competent. Nellie Geer has two children, neither of whom is a party to the bill. Upon her death these children, if living, will take under the will a part of the land. They are interested in the suit and their interest is not represented by the trustee, whose title ceases before that of the children begins or the heirs who are seeking to set aside the will. They should be made parties. In our judgment the verdict is so manifestly against the weight of the evidence that the decree must be reversed and the cause remanded. Reversed and remanded. SAXTON S. BARRETT, Plaintiff in Error, vs. Mary K. BarRETT et al. Defendants in Error. Opinion filed October 26, 1912. 1. WILLS—when illegal trusts may be cut out and legal ones left to stand. Where a will creates several trusts which are independent of each other and each is complete in itself, but some are lawful and the others unlawful, if the unlawful trusts may be separated from the others they may be cut out of the will and the lawful trusts be allowed to stand. 2. SAME when the lawful trusts must fall with unlawful ones. Where the lawful and unlawful trusts created by a will are so connected as to constitute an entire scheme for the disposition of the estate, so that the presumed wishes of the testator would be defeated if some portions were retained and others rejected, then all the trusts must be construed together and the lawful ones must fall with the unlawful. 3. SAME-will can be sustained in part only when first gift is absolute. The rule which permits the lawful trusts created by a will to be sustained though the unlawful trusts must be rejected, can be applied only when the first gift is an absolute gift of the estate and is made direct to the beneficiary. 4. SAME when a will creates only one entire trust. A will which gives the entire estate to a trustee, to handle, invest, reinvest and collect the income, with directions to pay the income first to the testator's widow for life, then to the testator's sons for life, then to the lawful issue of such sons (if any) for life, and at the death of the latter to divide the corpus of the estate among the lawful issue and next of kin of the grandchildren, creates but one indivisible trust, and not separate trusts as to each class of beneficiaries. 5. SAME―when a trust as to life estates cannot be sustained. If the provision of a trust disposing of the corpus of the estate to the testator's great-grandchildren is void for remoteness and is the only provision disposing of the fee, and all the provisions of the trust are connected and present one entire and complete scheme for disposing of the estate, the trust provisions as to the life estates must fall with the provision as to the fee. 6. SAME what would amount to making new will for testator. Where it is obvious, from the entire will, that the testator had in mind one complete and connected plan for disposing of his estate by creating a trust in the income for the lives of certain beneficiaries and in the corpus of the estate at the termination of the life estates, it would amount to making a new will for the testator for the courts to sustain the plan as to the life estates but hold that it must fail as to the fee. WRIT OF ERROR to the Superior Court of Cook county; the Hon. M. M. GRIDLEY, Judge, presiding. ULLMANN, HOAG & DAVIDSON, for plaintiff in error. Mr. JUSTICE HAND delivered the opinion of the court: This was a bill in chancery filed by Saxton S. Barrett, as executor and individually, against Mary K. Barrett and the other defendants in error, in the superior court of Cook county, for a construction of the last will and testament of John R. Barrett, deceased. The defendants appeared in person or by guardian ad litem and answered the bill, and a replication was filed. The cause was tried without a reference, and a decree was entered holding the second and third paragraphs of the will void as in contravention of the rule against perpetuities, and that all of the property of which the testator died seized and possessed was intestate and passed under the laws of descent of the State of Illinois to the heirs of the testator, with the exception of the property given to the widow under the first. paragraph of the will. From that decree the complainant |