(288 Ill. 91, 123 N. E. 306.) resented him as attorneys in 1915 before the board of review. During a part of the time, in his absence from the state, they looked after all of his personal affairs, paid his lodge dues, insurance premiums, and kept his private papers in a tin box in their vault. His moneys received by them were deposited in the partnership account in a bank. Sometimes he had large sums thus deposited in their account, at other times it would all be checked out by the testator; but he drew checks whenever he wanted money, whether he had much, little, or none left in his account, and all such checks were paid by them. There is no dispute in the evidence, most of it being given by Church, who was called as a witness for the appellant. Church testified that the first time he knew anything about the will or its contents was when it was opened after the death of Dr. Abbott, and that he had nothing to do whatever, by suggestion or otherwise, in its preparation. On the introduction of the testimony taken in the probate court in the proceeding to probate the will, and which was offered by appellant, the appellees objected to the evidence contained in the following examination of the witness R. W. Lewis, one of the witnesses to the will, to wit: Q. Where was this will executed? A. In our office-the office of Church, Shepard, & Day. The firm was then Barker, Church, & Shepard, at that time. Q. Who drew the will; do you know? A. Well, I don't remember positively, but, judging from the form of that certificate, I think Frank L. Shepard. Q. You did not draw it? Q. Where was this will signed? A. Why, over at the attorney's office-Church, Shepard, & Day. Q. How did you happen to be in their office at the time? A. I am employed there. Q. How long had you known Mr. A. Oh, I had known him about fifteen years. Q. Do you know who drew this will? A. Why, I think Mr. Shepard- Q. He is one of your employers? The court sustained the objections of appellees aforesaid, and struck out of the certificate of evidence all of said questions and answers of the attesting witnesses. There was no other testimony in the certificate of evidence before the probate court bearing upon the question as to where the will was signed and by whom it was prepared. These two witnesses were stenographers and employees of Church and Shepard at the time the will was drawn and executed, and Lewis was an attorney at law and in their employ at the time of the trial in the superior court. They were both called to testify on behalf of appellant. In his cross-examination Lewis testified that he did not remember whether or not he did the mechanical part of typewriting the will, but thought he did not; that he did not know positively who drew the will, but based his answer in the probate court, that Shepard drew the will, on the form of the certificate. Miss Ekval was not examined in the superior court touching the question as to where the will was drawn and executed and by whom A. No; I don't think I did. I may prepared. There is no other evihave, but I think not. The same character of evidence offered by appellant, found in the testimony of Anna L. Ekval before the probate court, was also objected to by appellees; the testimony objected to being the following: 4 A.L.R.-62. dence in the record on the question whether or not Shepard did prepare the will for the testator, except the evidence before the probate court, and which was stricken from the certificate as aforesaid. The testimony of both attesting witnesses does show that the will was duly signed and properly witnessed, and that they witnessed the signing of the will at the request of the deceased, and that they do not think Shepard was present when the will was so signed by the testator and attested. At the close of all the evidence the court excluded the evidence, and directed the jury to return a verdict for the proponents of the will, appellees. Evidencewill contestwho prepared instrument. hereto in his presence and in the presence of each other and written opposite our names our respective places of residence, believing the said George B. Abbott to be of sound mind and memory, this 8th day of April, A. D. 1911." It is first contended by appellant that the court erred in striking from the certificate of the evidence before the probate court the questions and answers of the attesting witnesses, and in this contention he is right. This evidence was not further explained or contradicted in the probate court, and no objection was made to it in the probate court. It was proper evidence, and the certificate should have been admitted as a whole. Baker v. Baker, 202 Ill. 595, 67 N. E. 410. Had this evidence not been excluded, the positive testimony of Miss Ekval would have been in answer to a direct question, Who prepared the will, "I think Mr. Frank L. Shepard." Her answer was not further qualified or explained in the probate court, although, when recalled as a witness in the superior court, she did state that she did not positively know who did the work. Lewis's testimony Lewis's testimony was positive to the effect that Shepard drew the will, and he testified both in the probate court and in the superior court that he based his testimony upon the form of the attestation clause. The attestation clause is substantially in the usual form, yet it contains language somewhat unusual and sufficient to characterize it. It reads thus: "The above instrument was subscribed by the said George B. Abbott in our presence and acknowledged by him to each of us, and he at the same time declared the above instrument so subscribed to be his last will and testament; and we, at his request, have signed our names as witnesses Witness "I think." "Think" means "believe," and when a witness prefaces his tes timony with "I think," he is to be prefacing testitaken as testifying mony by to what he remembers. 8 Words & Phrases, 6959; Galveston, H. & S. A. R. Co. v. Parrish, Tex. Civ. App. -, 43 S. W. 536. The witness Lewis might have been able to have given a number of good reasons for thinking Shepard wrote the certificate or drew the will, if he had been further questioned. All the testimony offered and excluded by the court from the jury tended to prove that a fiduciary relation existed between testator and the devisee Frank L. Shepard, who received a substantial benefit, and, in fact, the chief benefit, under the will, and it further tended to show that the will was prepared and drawn by Shepard. Will-undue relation. This proof estab- influencelished prima facie duciary that the execution of the will was the result of undue influence exercised by that beneficiary, and, standing alone and undisputed, would entitle appellant to a verdict. Weston v. Teufel, 213 Ill. 291, 72 N. E. 908; Teter v. Spooner, 279 Ill. 39, 116 N. E. 673. Any relation existing between parties to a transaction, wherein one of the parties is in duty bound to act with the utmost good faith for the relation. benefit of the other, Trust-fiduciary is a confidential or fiduciary relation. Such a relation arises whenever a continuous trust is reposed by one person in the skill or integrity of another. 12 C. J. 421; Thomas v. Whitney, 186 Ill. 225, 57 N. E. 808. While it may be said that the evidence of appellees in this record tends somewhat to rebut the presumption of undue influence, (288 Ill. 91, 123 N. E. 306.) considering all the relevant testimony that should be in the record, still it was error in the court to exclude all the evidence and to direct a verdict. It was appellant's right to have the case submitted to a jury. The vital question in this case was whether or not all the legitimate and proper evidence offered made a prima facie case, because, if it did not, the simple error in excluding the evidence in the transcript of the evidence before the probate court would not necessarily be fatal error. It was reversible error to exclude all the evidence and to direct a verdict. Appeal-directing verdictreversible error. Two letters of the deceased written to appellant, one in 1907 and the other in 1909, were offered by appellant merely for the purpose of proving that a friendly relation existed between them at those times. Both letters were in relation to a patent on a safety vault lock device, but portions of the letters were con friendship. cerning family matters. The letters do disclose that a rather close and affectionate relation existed between the two brothers, but they have no relation whatever with any matters connected with this suit, and are rather too remote proof of friendly relation- Evidenceship, even if that letters to show were a contested issue in this case. The general rule is that letters of a testator are not admissible for the purpose of destroying or invalidating his will, but may sometimes be admissible for the letters to destroy will. purpose of sustaining his will. Crumbaugh v. Owen, 238 Ill. 497, 87 N. E. 312. It was not error in the court to exclude those letters in this case. For the errors indicated, the decree of the Superior Court is reversed, and the cause remanded. Petition for rehearing denied June 6, 1919. ANNOTATION. Effect of witness qualifying his testimony with "I think," "I believe," or the like, when expressing thereby indistinct observation or recollection. I. Introductory, 979. II. General rule, 979. III. Illustrations, 981. 1. Introductory. This note considers the effect of qualifying phrases, viz., "I think," "I believe," etc., on the testimony of a witness. Only those cases are discussed wherein the words of qualification relate to testimony as to a matter of fact which the witness is conveying to the court and jury uninfluenced by any mental operations on his part. The note does not include the large group of cases wherein the above-mentioned phrases are used in connection with the expression by the witness of an opinion or conclusion, the entire question of conclusions and nonexpert opinions being considered as outside the scope of this discussion. II. General rule. Though a witness is uncertain as to either the observation or the recollection of a fact concerning which he is. asked to testify, and gives his testimony qualified by a phrase or phrases expressive of something less than a positive degree of assurance, the admissibility of his evidence is not affected thereby. United States.-White v. Van Horn (1894) 159 U. S. 3, 40 L. ed. 55, 15 Sup. Ct. Rep. 1027; Pilcher v. United States (1902) 51 C. C. A. 205, 113 Fed. 248; Wilson v. McLean (1807) 1 Cranch, C. C. 465, Fed. Cas. No. 17,819. Alabama.-Head v. Shaver (1846) 9 Ala. 791; Wright v. Bolling (1855) 27 Ala. 259; Ward v. Reynolds (1858) 32 Ala. 384; Turner v. McFee (1878) 61 Ala. 468; Elliott v. Dyche (1895) 80 Ala. 376; Alabama G. S. R. Co. v. Hill (1890) 93 Ala. 514, 30 Am. St. Rep. 65, 9 So. 722; Haynes v. Gray (1906) 148 Ala. 663, 41 So. 615; Alabama City, G. & A. R. Co. v. Bullard (1908) 157 Ala. 618, 47 So. 578; Firemen's Fund Ins. Co. v. Hellner (1909) 159 Ala. 447, 49 So. 297, 17 Ann. Cas. 793; Bragan v. Birmingham R. Light & P. Co. (1909) 163 Ala. 93, 51 So. 30; Poellnitz v. State (1911) 1 Ala. App. 121, 55 So. 1028. Arkansas.-Chicago Mill & Lumber Co. v. Ross (1911) 99 Ark. 597, 139 S. W. 632. V. Howard Connecticut.-Clinton (1875) 42 Conn. 294; Harris v. Fitzgerald (1902) 75 Conn. 72, 52 Atl. 315. Georgia. Franklin v. Macon (1852) 12 Ga. 257; Printup v. Mitchell (1855) 17 Ga. 558, 63 Am. Dec. 258; Lockett v. Mims (1859) 27 Ga. 207; Huguley v. Holstein (1866) 35 Ga. 271; Thomas v. State (1881) 67 Ga. 464; Imboden v. Etowah & B. B. Hydraulic Hose Min. Co. (1883) 70 Ga. 87; Leonard v. Mixon (1895) 96 Ga. 239, 51 Am. St. Rep. 134, 23 S. E. 80; Mimbs v. State (1907) 2 Ga. App. 387, 58 S. E. 499; Matthews v. Richards (1917) 19 Ga. App. 489, 91 S. E. 914. Compare Morris v. Stokes (1857) 21 Ga. 552. Illinois.-Wilson v. Chicago City R. Co. (1910) 154 Ill. App. 632. See the reported case (ABBOTT V. CHURCH, ante, 975). Compare Rounds v. McCormick (1882) 11 Ill. App. 220. Indiana.-Rhode v. Louthain (1847) 8 Blackf. 413. Iowa.-State v. Porter (1871) 34 Iowa, 131. Jockers Kansas. V. Borgman (1883) 29 Kan. 109, 44 Am. Rep. 625; Losey v. Atchison, T. & S. F. R. Co. (1911) 84 Kan. 224, 33 L.R.A. (N.S.) 414, 114 Pac. 198; State v. Shives (1917) 100 Kan. 588, 165 Pac. 272. Maine.-Clark v. Bigelow (1839) 16 Me. 246; Lewis v. Freeman (1840) 17 Me. 260; Humphries v. Parker (1864) 52 Me. 502. Mississippi.-Wells v. Shipp (1829) Walk. 353. New Hampshire.-Hoitt v. Moulton (1850) 21 N. H. 586; State v. Flanders (1859) 38 N. H. 324. New York.-Blake v. People (1878) 73 N. Y. 586; Voisin v. Commercial Mut. Ins. Co. (1901) 60 App. Div. 139, 70 N. Y. Supp. 147; Tichnor Bros. v. Barley (1912) 149 App. Div. 871, 134 N. Y. Supp. 129. Missouri.-Binsbacher v. St. Louis Transit Co. (1904) 108 Mo. App. 1, 82 S. W. 548; Hill v. Harvey (1918) Mo. 201 S. W. 535. North Carolina.-McRae v. Morrison (1851) 35 N. C. (13 Ired. L.) 46; State v. Freeman (1875) 72 N. C. 521; Gilliland v. Board of Education (1906) 141 N. C. 482, 54 S. E. 413. Oregon.-White v. East Side Mill Co. (1917) 84 Or. 233, 161 Pac. 969, 164 Pac. 736, 15 N. C. C. A. 848. Pennsylvania.-Duvall (1860) 38 Pa. 56. V. Darby Texas.-Swinney v. Booth (1866) 28 Tex. 113; Galveston, H. & S. A. R. Co. v. Parrish (1897) - Tex. Civ. App. 43 S. W. 536, former appeal in (1897) 40 S. W. 191; Terrell v. Russell (1897) 16 Tex. Civ. App. 573, 42 S. W. 129. Vermont. Herrick V. Holland (1910) 83 Vt. 502, 77 Atl. 6. Washington. - State V. Wilson (1894) 9 Wash. 16, 36 Pac. 967. West Virginia.-Merrill v. Marietta Torpedo Co. (1917) 79 W. Va. 669, L.R.A.1917F, 1043, 92 S. E. 112. Wisconsin. Hewett V. Currier (1885) 63 Wis. 386, 23 N. W. 884. Many cases in holding such testimony to be admissible expressly assert that the probative force thereof may be affected by the qualification expressed by the witness, and that it it for the jury to weigh the evidence as given. Head v. Shaver (Ala.) supra; Elliott v. Dyche (1895) 80 Ala. 376; Bragan v. Birmingham R. Light & P. Co. (1909) 163 Ala. 93, 51 So. 30; Imboden v. Etowah & B. B. Hydraulic Hose Min. Co. (1883) 70 Ga. 87; Leonard v. Mixon (1895) 96 Ga. 239, 51 Am. St. Rep. 134, 23 S. E. 80; Rhode v. Louthain (Ind.) supra; Lewis v. Freeman (1840) 17 Me. 260; Tichnor Bros. v. Barley (1912) (N. Y.) supra; McRae v. Morrison (1851) 35 N. C. (13 Ired. L.) 46; Swinney v. Booth (1866) 28 Tex. 113. In Hoitt v. Moulton (1850) 21 N. H. 586, the court said: "Witnesses are not required to speak with such confi dence as to exclude all doubt in their minds. If the fact is impressed on the memory, but the recollection does not rise to positive assurance, it is still admissible to be weighed by the jury." In several cases, the belief of a witness has been accepted where the grounds for the belief were expressed at the time, e. g., the habit and routine of business. Wilson v. McLean (1807) 1 Cranch, C. C. 465, Fed. Cas. No. 17,819; Wright v. Bolling (1855) 27 Ala. 259; and Leonard v. Nixon (1895) 96 Ga. 239, 51 Am. St. Rep. 134, 23 S. E. 80. In cases where the qualifying phrases used were, respectively, "I should say," "To tell you the truth," and "It was my understanding," it was noted by the court that such phrases were nothing but forms of speech and inferentially entitled to little consideration. White v. Van Horn (1894) 159 U. S. 3, 40 L. ed. 55, 15 Sup. Ct. Rep. 1027; Poellnitz v. State (1911) 1 Ala. App. 121, 55 So. 1028, and Lockett v. Mims (1859) 27 Ga. 207. In Humphries v. Parker (1864) 52 Me. 502, the court said: "When the answer of a witness is susceptible of two meanings, one of which would render it admissible and the other not, before asking the judge to exclude it, the witness should be required to explain his meaning, and if the explanation is such as to render the answer inadmissible, then, and not before, the judge may be rightfully called upon to exclude it." See to the same effect, State v. Flanders (1859) 38 N. H. 324. See also the dictum in Kingsbury v. Moses (1864) 45 N. H. 222, wherein it was said that the "impression" of a witness, derived from recollection, is competent, but not an impression which is a matter of deduction, but that testimony is not to be excluded merely because it is susceptible of either interpretation. But in Rounds v. McCormick (1882) 11 Ill. App. 220, wherein a witness testified as to his "impression," it was held to be inadmissible, since it might be the result of a deduction. It would have been admitted if it had been shown to be a recollection of facts. So, in Lovejoy v. Howe (1893) 55 Minn. 353, 57 N. W. 57, the court said: "A witness cannot be permitted to state what the impression left in his mind by a conversation is, unless he swears to such impression as matter of recollection, and not of inference." In Wells v. Shipp (1829) Walk. (Miss.) 353, wherein a witness testified that "so far as he knew or understood they (the negroes) were the property of the plaintiff," etc., the court considered the evidence thus qualified as so "wholly immaterial” that it might be either rejected or admitted and sent to "the jury for what it is worth." Two cases, Morris v. Stokes (1857) 21 Ga. 552, and Haney v. Pinckney (1909) 155 Mich. 656, 119 N. W. 1099, seem to hold contrary to the general rule, while in Rounds v. McCormick (Ill.) supra, the court, in deciding against the admissibility of a man's "impression," held that since "impression" was an equivocal term, unless it "could be made to appear that it was derived from recollection" it could not be received. III. Illustrations. "I think."-In Turner v. McFee (1878) 61 Ala. 468, an action of trover for the conversion of a horse, a witness testified that he knew the gray horse mentioned in the mortgage, and that he thought it was the same horse which was in the possession of the defendant, but could not state of his own knowledge that it was. The evidence was held to be properly admitted, for one might hesitate to be positive, considering the lapse of time, and moreover the identification of a horse required both judgment and memory. In Firemen's Fund Ins. Co. v. Hellner (1909) 159 Ala. 447, 49 So. 297, 17 Ann. Cas. 793, an action to recover on an insurance policy, a witness testified "that he thought the Firemen's Fund Insurance Company was a member of the old Southeastern Underwriters Association, but did not know whether they belonged to the new association or not; that he thought the Firemen's Fund Insurance Association was a member of the Southeastern Tariff Association on the 18th of June, |