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work theretofore done under former assessments is wholly unfounded.

Appellants contend that the assessment roll made by the commissioners is only prima facie evidence of the benefits assessed when it is not attacked, and that the evidence in this case clearly shows that such assessment roll was unworthy of credence. This contention presents no matter for review except in connection with the contention that the verdict of the jury is against the manifest weight of the evidence, which we have already considered. The only instructions relating to the weight to be given by the jury to the commissioners' assessment roll were offered by appellants, and they are not in a position to complain of the action of the court in giving instructions offered by them.

It is also urged as ground for reversal that the court permitted some of the witnesses to describe the condition of the lands in the drainage district, including those belonging to appellants, as it existed before the organization of the district. Any error in that regard was corrected and cured by the seventh instruction given at the request of appellants, which was as follows:

"The jury are instructed that any testimony which has been offered in this case as to the condition of the objectors' lands herein at and before the time when this drainage district was organized should not be considered by the jury upon the question as to whether or not such lands will be benefited by the proposed improvement."

Appellants also objected to the testimony which was offered by appellee in rebuttal to show the condition of appellants' lands subsequent to the construction of the original ditches but prior to the filing of the petition for the eighth assessment, contending that any evidence showing the condition of their lands prior to the filing of said petition was incompetent and prejudicial. Appellants' witnesses had testified upon this subject, and this evidence offered by appellee was properly admitted to rebut that of

fered by appellants. While the question before the jury was whether the condition of the lands at the time the petition for the eighth assessment was filed was such that they would be benefited by the proposed improvement, still, as tending to show what the condition of the lands was at that time with reference to their need of more drainage, it was competent to show that after the construction of the original ditches, and before the filing of the petition for the eighth assessment, the appellants' lands were subject to overflow or were wet and marshy, or that on account of insufficient drainage facilities the crops were impaired or destroyed, and this was, in substance, the evidence of which appellants complain. It was only by proof of these matters, taken in connection with their view and examination of the lands, that the jury could determine whether the condition of the lands was such at the time the petition was filed that they would be benefited by the proposed improvement.

Complaint is made of the action of the court in refusing two instructions offered by the appellants. These were the only instructions offered by the appellants which the court failed to give to the jury. They embodied the same proposition as the fifth, twelfth, eighteenth, nineteenth and twenty-third above set out, and were, in effect, mere repetitions of many instructions which were given, and for that reason they were properly refused.

It is finally contended that the order of November 30, 1909, directing the commissioners to make an additional assessment of $243,500, was a bar to this proceeding, and that the court was without jurisdiction, at a subsequent term, to revoke its order of November 30, 1909, and dismiss the petition upon which that order was based. The order of November 30, 1909, was merely interlocutory, (Mack v. Polecat Drainage District, 216 Ill. 56; Damon v. Barker, 239 id. 637;) and the court therefore had the power to vacate and set aside that order at any time before final judgment confirming the assessment roll made there

under was entered and to dismiss the petition upon which that order was based. After that order was set aside and the former petition dismissed there was nothing standing in the way of granting the prayer of the petition last filed. In this connection it is also urged that after the order of November 30, 1909, had been entered, the commissioners, under the authority conferred by that order, proceeded under the Eminent Domain act to condemn certain lands of appellants; that judgments fixing the compensation for lands to be taken and damaged by the construction of the improvements specified in that order were rendered in those proceedings; that the same lands are sought to be taken for right of way in this proceeding, and that the judgments rendered in the condemnation suits were a bar to this entire proceeding, and especially a bar to any investigation in this proceeding of the amounts to be awarded to appellants as just compensation for lands to be taken or damaged by the construction of the improvements here proposed. This contention was not embraced in the objections made to the granting of the prayer of the petition herein nor was it in any way presented to the trial court. Certain petitions filed in the county court in vacation, after the December, 1909, term thereof, under the Eminent Domain act, for the condemnation of appellants' lands for right of way for ditches to be constructed under the order of November 30, 1909, were offered in evidence by appellants. The bill of exceptions fails to disclose, however, that any judgments rendered in condemnation suits were offered in evidence. Had the appellants desired to present any question involving judgments theretofore rendered in condemnation suits they 'should have offered those judgments in evidence. Having failed to do so, there is nothing in the record upon which they can base their contention that judgments rendered in certain condemnation suits were a bar to this proceeding, and especially a bar to any investigation in this proceeding of the amounts to be awarded them as just compensation

for lands to be taken or damaged by the construction of the proposed improvement.

The judgment of the county court is affirmed.

Judgment affirmed.



Opinion filed February 20, 1913.

I. WILLS—when statements of the testatrix concerning undue influence are not admissible. In a will contest case, where undue influence by the defendant is charged, statements of the testatrix, made out of the defendant's presence, tending to show that he had used undue influence, are not admissible upon that issue.

2. SAME-what may be testified to by devisee in a suit by heir. In a will contest case brought by an heir it is proper to allow the defendant, who is the devisee under the will, to testify that he found certain letters, which were introduced in evidence, among the papers of the testatrix after her death.

3. SAME-what is admissible to rebut charge that devisee made false statements to testatrix concerning complainant. Where the complainant in a will contest case charges that the defendant, the devisee, made false statements to the testatrix that complainant was a gambler and spendthrift, in order to poison her mind against the complainant, and some evidence to sustain the charge that such statements were made by defendant is introduced, it is proper to permit the introduction of letters from the complainant to the testatrix which clearly show that such statements, even if made by the defendant, were true, and that the testatrix thus had independent knowledge of the facts.

4. INSTRUCTIONS—when refusal of instructions is harmless error. Refusal of certain instructions for the contestant in a will case is harmless error, where his given instructions fully advise the jury as to the law applicable to the issues being tried and substantially embody the contents of the instructions so refused.

5. COSTS-error in decreeing costs against the defendant may be corrected on appeal. Where costs are erroneously adjudged against the defendant upon the dismissal of a bill to contest a will and the defendant assigns such action as cross-error on an appeal by the complainant, the Supreme Court, if there is no reversible error in the record, may modify the decree in that respect and affirm it as modified.

APPEAL from the Circuit Court of Shelby county; the Hon. THOMAS M. JETT, Judge, presiding.


W. C. & W. L. KELLEY, and W. C. & T. M. HEADEN, for appellee.

Mr. JUSTICE VICKERS delivered the opinion of the court:

William A. Doyle filed a bill in the circuit court of Shelby county against his brother, Martin R. Doyle, to set aside the will of Helen M. Doyle, deceased, the mother of contestant and defendant. The bill alleges that the testatrix was of unsound mind and memory at the time the will was executed and that its execution was procured by the undue influence of the defendant, Martin R. Doyle. The defendant answered the bill denying the material allegations, and the issues of law being joined they were submitted to a jury. The finding of the jury sustaining the will was approved by the court and a decree entered dismissing the bill for want of equity. The costs were adjudged against the defendant. The contestant has brought the record to this court by appeal, and the defendant has assigned a cross-error upon that portion of the decree adjudging the costs against him.

The general situation of the parties presented by the record is as follows: Helen M. Doyle was a widow and resided on her farm near Moweaqua. Up to a short time before the will was executed she had three living children,— appellant, a married son, who resided in Louisville, Kentucky; appellee, Dr. Martin R. Doyle, also a man of mature years, residing in East St. Louis, Illinois; and a daughter, Mary Doyle Portwood, who resided near the testatrix in Shelby county. For some years after the death of her husband the testatrix and her daughter, Mary, resided together

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