the execution and tenor of the will. The only exception to this rule, it is said, is the disclosure of facts that would. tend to invalidate the will. A large number of cases are cited in the notes to the text in support of the rule announced. In Blackburn v. Crawford, supra, the father of the alleged illegitimate children procured an attorney to prepare a will for him. He wished to secure certain property to his children by a woman named Elizabeth Taylor, to whom he claimed he was never married. The attorney advised him that he could secure the property to the children by a deed, or by will, or by marrying their mother. The latter, he declared, he would not do, and instructed the attorney to prepare a will and describe the children therein as his natural children by Elizabeth Taylor. The Crawfords sought to prove a marriage between their father and mother, and the parties resisting their claim to the estate offered to prove by the lawyer who drew Crawford's will what he said at the time. The trial court refused to admit this testimony. The Supreme Court of the United States held that this was error and said the testimony should have been admitted. We think the testimony of Mr. Baxter was competent.

The proof shows that John Earl was weak-minded. This weakness was of such character that when he became the owner of property a conservator was appointed to manage it for him, and it is contended that on account of his lack of mental capacity his declarations should not have been received in evidence. We do not think such a degree of imbecility was shown as would justify the exclusion of the testimony as to his declarations. While he had but little capacity to transact business or manage and control property, he had sufficient intelligence to take care of himself and to know and remember his friends, relatives and acquaintances.

Among the objections filed to the report of the master it was objected that the master improperly considered the

testimony of Henry McCarthy, the complainant, touching his relationship to Susan Champion and John Earl; also the testimony of Daniel McCarthy, who claimed to be a half brother of Henry; and that the master improperly considered the testimony of certain witnesses as to declarations made by Lydia Cheshire that Henry McCarthy was the son of Susan Champion. The master reported that after considering the objections he adhered to the report, but that in arriving at his conclusions set forth in said report he had not considered the testimony of Henry McCarthy, Daniel McCarthy, nor the testimony as to statements or declarations of persons living at the time the testimony was offered, for the reason that he considered such evidence incompetent. It is conceded by counsel for appellee that the testimony of Henry McCarthy was incompetent, except such portions of it as related to conversations occurring after the death of John Earl. Lydia Cheshire was the witness whose statements as to Henry McCarthy's being the son of Susan Champion were testified to by certain witnesses. She was living and testified in the case, and the testimony of other witnesses as to her declarations the master correctly held to be incompetent.

Counsel for Henry McCarthy insist that the testimony of Daniel McCarthy was competent and should have been considered by the master. He testified that he and Henry McCarthy were sons of the same father but not of the same mother, and that he had heard his father say that Susan Champion was Henry McCarthy's mother. Daniel said he was fourteen or fifteen years old when he heard this declaration made, and it is apparent this was several years after Susan Champion had been married to Elias Champion. It does not clearly appear from the abstract that Daniel McCarthy's father was dead at the time he testified, but if he was, we think his declarations were incompetent. Such declarations to establish pedigree must be of members of the family, and not of third persons. Daniel McCarthy's father

and Susan Champion were in no way related, were never members of the same family, and while his declarations, if dead, might be competent to prove that he was the father of Henry, if that were the question at issue, they were not competent to prove that Susan Champion was the mother.

Appellants offered a number of witnesses who were well acquainted with Susan Champion during her lifetime, some of whom had been on very intimate terms with her, and they all testified they had never heard her mention Henry McCarthy as being her son or relative. They also offered in evidence several letters written by Henry McCarthy to Lydia Cheshire between April 7, 1898, and January, 1905. What these letters contained is not shown by appellants' abstract, except they were addressed to Lydia Cheshire as "Dear Friend" and "Dearest Friend," and signed by Henry McCarthy.

Leaving out of consideration the incompetent testimony offered on behalf of Henry McCarthy, which the master says he did not consider in arriving at his conclusions, we are not prepared to say that the competent testimony, considered in connection with the testimony offered by appellants, is not sufficient to sustain the decree. The decree recites that the chancellor's findings are based upon the report of the master and the evidence taken before him and contained in his report. In the absence of any showing to the contrary, the presumption is that the master and the chancellor acted only upon competent testimony, and where there is some incompetent testimony in the record, if it contains sufficient competent testimony the error in admitting incompetent testimony will be regarded as harmless. (Allison v. Perry, 130 Ill. 9; Dunn v. Berkshire, 175 id. 243; Church of Christ v. Christian Church, 193 id. 144; Merchants' Despatch Co. v. Joesting, 89 id. 152.) Here we are not left to the presumption that the master considered only the competent testimony, for in his report he expressly states that he did not consider the incompetent evidence, and

the decree approves that report and the conclusions from the evidence upon which it was based. While the evidence offered by complainant may not be of the most conclusive character, it is in the line of the only testimony ordinarily obtainable in cases of this character. With the exceptions mentioned, the testimony offered by complainant was competent and tended to prove that Susan Champion was his mother. The master found it sufficient to establish that fact. The chancellor approved that finding and entered a decree accordingly. In such cases the decree will not be disturbed by this court unless clearly and manifestly against the weight of the evidence. Siegel v. Andrews & Co. 181 Ill. 350; Williams v. Lindblom, 163 id. 346; Treloar v. Hamilton, 225 id. 102.

The decree of the circuit court is affirmed.

Decree affirmed.

THE PEOPLE ex rel. Will L. Talbott, County Treasurer,

v.

THE CHICAGO AND ALTON RAILWAY COMPANY.

Opinion filed June 19, 1907.

1. TAXES—what does not show that road tax was illegal. The fact that the highway commissioners of a town under the cash system had improperly attempted in a former year to levy a road tax under the provision of the statute governing towns under the labor system has no effect upon a subsequent road tax shown to have been properly levied in compliance with section 13 of the Roads and Bridges act, governing towns under the cash system.

2. SAME when interest at ten per cent is allowable on "back assessment." Interest at ten per cent is authorized by section 276 of the Revenue act to be computed by the county clerk upon a "back assessment" made by the State Board of Equalization upon railroad property, where there was apparently no attempt by the board to re-value or re-assess the property but only to make the assessment for omitted property.

APPEAL from the County Court of Livingston county; the Hon. C. F. H. CARRITHERS, Judge, presiding.

R. S. McILDUFF, and B. R. THOMPSON, for appellant.

C. C. & L. F. STRAWN, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The county collector of Livingston county applied to the county court of said county for judgment against property of appellee for delinquent taxes of $161 on its depot property in the city of Pontiac, $182.57 the road and bridge tax of the township of Sunbury, and $78.10 interest on a back assessment of the capital stock and franchise of appellee for the year 1904, and for an order of sale to satisfy the same. The court sustained the objections and refused judgment, and from the decision and judgment of the county court this appeal was taken.

It is admitted that the judgment was correct so far as the tax of $161 on the depot property is concerned, and the errors assigned are confined to the road and bridge tax and the interest charge.

The objection to the road and bridge tax of the township of Sunbury was, that said tax was levied by the commissioners of highways of said town under the provisions of section 83 of chapter 121, being, the act in regard to roads and bridges in counties under township organization; (Laws of 1883, p. 136;) that said section governs towns. under the labor system while the town of Sunbury was under the cash system; that the highway commissioners, acting under the labor system, levied fifty cents on the $100 of the property valuation whereas they could levy only forty cents on the $100 of such valuation, and that there was no record in the town clerk's office of the purposes for which the levy was made.