the will the burden did not rest upon them to show an absence of fraud or undue influence. Bauchens v. Davis, 229

Ill. 557.

The court properly refused to permit the appellants to amend their bill after the evidence had all been presented, as the allegations contained in the amendment did not conform to the proof made. There was nothing shown tending to prove that Beardsley acted at the instigation of Lovina and Addison Rush, or that Beardsley, with the aid and assistance of Lovina and Addison Rush, at a time when Miss Lloyd was ill and debilitated in mind and body, procured the execution of the will without advising her of the provisions therein which were at variance with her declared intention, or that Miss Lloyd did not know the provisions of the will and that the same was fraudulently obtained from her. Miss Lloyd, without the knowledge of Lovina or Addison Rush, solicited Beardsley to procure the drafting of her will. It is true that there is proof that in some particulars the will as drafted did not conform to the memorandum Beardsley made at the time he received the directions from Miss Lloyd. For instance, Miss Lloyd informed Beardsley that she desired to make the bequest to Mrs. Rush in consideration of the services she had performed, and in drafting the will a provision was inserted that in case of the death of Mrs. Rush prior to her decease the bequest of $10,000 and the personal property bequeathed should become the property of Addison Rush. In the directions given Beardsley, Miss Lloyd indicated that she desired to bequeath to Mrs. Rush all her personal property. As the will was drafted she bequeathed to her all her personal property except moneys, stocks, bonds, mortgages, notes or other interest-bearing securities. This exception was inserted by the attorney who drew the will. Beardsley was directed to have the will provide that Addison Rush should be the executor thereof without bond. As drawn, the will so appointed Addison Rush executor and

contained an additional provision that he should have the power to sell, dispose of and convey any and all real estate of which the testatrix should die seized or possessed, except the lot in Rock Island, at such price and upon such terms as should seem to him to be for the best interests of the estate. Beardsley testified that in these particulars the will as drawn did not follow specifically the directions as given him by Miss Lloyd. The testimony discloses, however, that Beardsley read the will over to Miss Lloyd before she executed it, and that she read it twice herself and discussed some of its provisions with him, commenting particularly upon the exception in reference to the personal property. She executed the instrument and delivered it to Beardsley for safe keeping and retained a carbon copy, stating that she would keep the copy and would let him know if she desired to make any changes. All the testimony is to the effect that Miss Lloyd thoroughly understood all the provisions of the instrument which she executed and that the same was drawn according to a plan which she had formulated and had had in contemplation for many months.

Where a motion is made to direct a verdict upon the issue of undue influence or testamentary capacity in a will contest case the rule is the same as applies to such a motion in a suit at law, and the party resisting the motion is entitled to the benefit of all the evidence in its most favorable aspect to him and of all presumptions that may be reasonably drawn therefrom. (Yess v. Yess, 255 Ill. 414.) The question presented by a motion to direct a verdict in such a case is whether there is any evidence fairly tending to prove the cause of action or fact affirmed. (Geiger v. Geiger, 247 Ill. 629.) As there is no evidence in this record fairly tending to show that the testatrix was of unsound mind or that the will was procured by the exercise of undue influence the decree of the circuit court is affirmed.

Decree affirmed.

JOHN R. PEAR, Plaintiff in Error, vs. THE CITY OF EAST ST. LOUIS et al. Defendants in Error.

Opinion filed June 22, 1916.

RES JUDICATA when tax-payer is bound by decree of Federal court against a city. A decree by a Federal court, in a suit by a water company against a city, enjoining the city from repealing a certain ordinance granting the water company its rights or doing anything in violation thereof and holding void a certain ordinance purporting to repeal the water ordinance, is binding upon a taxpayer of the city who is not affected any differently from other tax-payers, and he is not entitled to maintain a bill against the city to enjoin it from carrying out the provisions of the ordinance upon the ground that it was not properly passed.

WRIT OF ERROR to the City Court of East St. Louis; the Hon. R. H. FLANNIGEN, Judge, presiding.

SILAS COOK, and WILLIAM A. KOERNER, for plaintiff in error.

BARTHEL, FARmer & KlingeL, for defendant in error City Water Company of East St. Louis and Granite City.

Mr. JUSTICE FARMER delivered the opinion of the court:

The bill in this case was filed by plaintiff in error (hereafter referred to as complainant) to have a certain ordinance of the city of East St. Louis, known as ordinance No. 1972, declared void on the ground that it had never been legally passed by the city council, and to enjoin the appropriating or paying of any money, by city warrant or otherwise, under the provisions of said ordinance, to defendant in error the City Water Company of East St. Louis and Granite City, its successors or assigns. The ordinance alleged to be void, consisting of six sections, is set out in the bill, and authorizes the City Water Company of East St. Louis and Granite City to maintain and operate its water-works system as now constructed in the city of East

St. Louis or as may hereafter be enlarged or extended; to lay and remove, repair and maintain, water pipes, mains, fire hydrants, fixtures and appurtenances in the present and future streets, alleys and public places in the city of East St. Louis, and to supply water in said city for domestic, public, manufacturing and other purposes. The license was for a period of thirty years, and fixed the charges authorized to be made by the water company for its service in furnishing water, and other details not necessary to be set out in this opinion. The ordinance provided for its acceptance in writing by the water company being filed with the city clerk and the payment by said company to the city of the sum of $75,000 within twenty days from the passage and approval of the ordinance. The ordinance purports to have been passed July 6, 1914, and within twenty days it was accepted in writing by the water company and the payment of $75,000 made by it to the city.

The bill in this case was filed in the city court of East St. Louis February 6, 1915. It was filed by complainant as an owner of real and personal property in the city of East St. Louis and as a tax-payer upon said property in said city. The city of East St. Louis, the mayor, other city officers and the aldermen of said city, and the City Water Company of East St. Louis and Granite City, were made defendants to the bill. It was not alleged that the ordinance was oppressive or unreasonable or that the city was without power to pass it, but that it was not legally passed. The allegations of the bill upon this question in substance are, that on January 5, 1914, the ordinance was presented to the city council and referred to the water committee. It was not again brought before the council until July 6, 1914, at a regular meeting of the council, when the water committee reported recommending its passage at that meeting, and it was adopted by a vote of twelve for and three against. The bill alleges that when the report of the water committee was read, aldermen Gavin and Haggerty re

quested that any further action upon the report be deferred until the next regular meeting of the council. Their request for postponement was not granted and the ordinance was put upon its passage and passed, as before stated. The minutes of the clerk of the meeting of July 6, 1914, were read at the council meeting held July 13 and approved. They did not show the objection of the two aldermen to further action upon the report of the water committee at the meeting held July 6, 1914. On the 20th of July the city clerk addressed a communication to the mayor and council, stating the minutes of July 6 were incorrect in omitting to state that aldermen Gavin and Haggerty requested the postponement of final action on the report of the water committee until the next regular meeting of the council. The communication stated said aldermen did object to final action at the July 6 meeting and requested that such action be deferred until the next regular meeting. The consent of the council was asked for the correction of the minutes. No correction was made, however, until December 7, when a resolution was adopted directing the correction of the minutes to show the request of two aldermen at the meeting held July 6 that no action be taken upon the report of the water committee and the ordinance until the next regular meeting.

It is the theory of the bill that the ordinance was never legally passed and is void. This contention is based upon section 15 of article 3, chapter 24, Hurd's Statutes of 1913, which reads as follows: "Any report of a committee of the council shall be deferred, for final action thereon, to the next regular meeting of the same after the report is made, upon the request of any two aldermen present."

The City Water Company of East St. Louis and Granite City was the only defendant answering the bill. The answer set out the passage of the ordinance and averred that it was legally passed. The answer further averred that the water company filed its acceptance of the ordinance on