was upon the proponents to make out a prima facie case of the execution of the will and of testamentary capacity, and that the burden shifts if two witnesses to the will appear and testify to its execution and to the soundness of mind. of the testator. The instruction further stated that if two witnesses so appear and testify, and if it be proved that Mary E. Newport was able to transact and understand her ordinary business matters after the surgical operation, then the jury are to presume that she retained sufficient testamentary capacity to execute a valid will until it is shown, by a preponderance of the evidence, that she had lost such capacity. The principal complaint in regard to this instruction is, that the jury were told that if Mrs. Newport was able to transact and understand ordinary business matters she had sufficient capacity to make a will. In this respect the instruction was more favorable to appellant than Proponents, as a person may not be capable of transacting ordinary business and yet have testamentary capacity. Hurley v. Caldwell, supra.

to

By the thirteenth instruction the jury were told that the claims of the attending doctors and nurse could in no way be affected by the outcome of the suit. It seems that the nurse and the two attending physicians each had presented claims against the estate of Mrs. Newport which had been allowed, and the contention is that by reason thereof they were interested, the theory being that the executor and those interested in the will of June 28 were more favorably disposed toward these claimants than those interested in the former will. The claims of these physicians and the nurse could not be affected by the outcome of this litigation. Where an executor has acted in good faith under a will which is afterwards set aside, his acts are valid and will be sustained. (Smith v. Smith, 168 Ill. 488.) Such acts of an executor are subject to the approval of the court, and when they have been performed in good faith are binding upon the estate.

By instruction No. 16 the jury were instructed that because Mary E. Newport was taken to the home of one of the beneficiaries they were not to presume that undue influence was exercised but that the exercise of such influence must be proven by a preponderance of the evidence. This instruction was a proper one, as the burden of proving the allegation of undue influence rested on the party making it.

Instruction No. 17 is almost a literal copy of instruction No. 3 approved in Taylor v. Pegram, 151 Ill. 106, with the words "with reasonable certainty," which were objected to in that case, omitted there from.

We have carefully examined all the other given instructions to which objections have been made and find them 'substantially correct and free from error.

Objection is also made to the refusal of the court to give four instructions asked on behalf of appellant. Refused instruction "F" directed the jury that if they found that the will was procured to be drawn by Louis Kellan, such circumstance required proof that Mrs. Newport was not imposed upon in making the will. This instruction, if given, would have shifted the burden of proof on the question of undue influence from the contestants to the proponents of the will, and was properly refused. The material and proper portions of the other refused instructions were given in other instructions of the series, and the court did not err in refusing to give them. The jury were fairly and fully instructed on the law as to each issue involved.

From a careful consideration of the whole record we are of the opinion that the decree of the circuit court was proper, and the same is accordingly affirmed.

Decree affirmed.

THE PEOPLE er rel. Joseph Molchan, Appellee, vs. THE CITY COUNCIL OF THE CITY OF STREATOR et al. Appellants.

Opinion filed April 19, 1913.

I. MANDAMUS-writ of mandamus will not be awarded except in a clear case. One petitioning for a writ of mandamus must show a clear and undoubted right to the relief demanded, and the writ will not be awarded except in a clear case.

2. SAME-writ will not be awarded to compel the doing of a useless thing. The writ of mandamus will not be issued to compel the doing of a useless thing or where it would prove unavailing, fruitless or nugatory.

3. SAME―writ cannot be awarded to compel city to grant dramshop license for an expired quarter. A writ of mandamus cannot be issued to compel a city to grant a dram-shop license for a municipal quarter which has expired, and it is of no consequence that the granting of the writ may be beneficial to the petitioner in fixing his status as to a future license.

4. SAME-writ cannot issue to determine an abstract constitutional question. A party has no standing to require a court, by a writ of mandamus, to determine the constitutionality of a statute or the validity of an ordinance as an abstract question of law.

APPEAL from the Circuit Court of LaSalle county; the Hon. EDGAR ELDREDGE, Judge, presiding.

LLOYD PAINTER, for appellants.

MAX MURDOCK, for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court:

This is a petition for mandamus filed October 19, 1912, in the circuit court of LaSalle county, asking that the relator be licensed to keep a dram-shop in the city of Streator. A demurrer to the petition was sustained and an amended petition filed November 11, 1912. A demurrer to this latter petition was overruled and the writ ordered issued. The trial judge certified that the validity of a municipal ordi

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nance was involved and that in his opinion the public interests required that the cause be taken directly to this court.

The relator in his amended petition set up his application and the petition of property owners requesting that he be granted a license to keep a dram-shop for the municipal quarter ending October 31, 1912. The ordinance, the validity of which is here questioned, provided, among other things, that no additional dram-shop licenses should be issued within a given territory. This petition seeks to have an additional license granted within said limited territory.

The first question presented by appellants is that the court erred in ordering that the writ issue, as the petition sought to obtain a license for the municipal quarter ending October 31, 1912, and the order was entered December 3, 1912, more than a month after the expiration of said municipal quarter. The rule has long been recognized in this court that the writ of mandamus will not be issued in any case where it will prove unavailing, fruitless or nugatory; that the court will not compel the doing of a vain and useless thing. (People v. Hatch, 33 Ill. 9; Cristman v. Pech, 90 id. 150; Gormley v. Day, 114 id. 185; People v. Jeffers, 186 id. 631; 19 Am. & Eng. Ency. of Law,—2d ed.756, and cases cited; Spelling on Ex. Remedies,—2d ed.— sec. 1377; High on Ex. Legal Remedies,-2d ed.—sec. 10; 26 Cyc. 147, and cases cited.) The writ cannot be made effective to compel the city to grant a license for a period which has expired. The argument of appellee that the granting of the writ would be beneficial to him to fix his status as to a license in the future is without force. There is no obligation on appellee's part to renew his application or his bond, and this court cannot assume that he will renew them or that they would necessarily conform to the requirements of the ordinance if renewed. A relator, by his petition, is required to show a clear and undoubted right to the relief demanded. The writ will not be awarded except in a clear case. (People v. Lieb, 85 Ill. 484; North

v. University of Illinois, 137 id. 296; People v. Rose, 219 id. 46; Kenneally v. City of Chicago, 220 id. 485.) This court has held that a person has no standing to ask the courts, by a writ of mandamus, to determine the constitutionality of a statute as a mere abstract question of law. (People v. Olsen, 215 Ill. 620.) Manifestly, from the certificate of the trial judge and the arguments, the main question presented to us for decision is the validity of the ordinance in question. The relator, under a petition asking to have a dram-shop license issued to him for a period which has expired, has no possible pecuniary interest in the decision as to such validity. The fact that under the provisions of said ordinance the petition of the property owner need not be renewed each quarter does not change the situation.

The judgment of the circuit court will be reversed and the cause remanded to that court, with directions to sustain the demurrer and dismiss the petition.

Reversed and remanded, with directions.

TAYLOR A. SNOW, Appellee, vs. JACOB GLOS, Appellant.

Opinion filed April 19, 1913.

REGISTRATION OF TITLE-when a defendant need not be reimbursed for taxes and assessments paid. In a proceeding to register title a defendant who holds a certificate of purchase upon which the time has expired for taking out a tax deed is not entitled to reimbursement for taxes and special assessments paid by him while holding such certificate. (Kelle v. Egan, 256 Ill. 45, followed.)

APPEAL from the Circuit Court of Cook county; the Hon. RICHARD S. TUTHILL, Judge, presiding.

JOHN R. O'CONNOR, for appellant.

ENOCH J. PRICE, for appellee.