person in privity with the mortgagor may interpose the defense of usury, and that where there is no agreement or understanding about it the grantee of the mortgagor will have the right to make such defense.

The proof here shows Levi Drew to have been utterly incapable to intelligently and successfully manage business affairs and property. His own testimony shows him to have been a man of weak character and practically helpless in financial transactions. During the short time he had owned the property received from his father, prior to 1897, he had so managed his affairs as to involve himself largely in debt. with no present ability to pay it. When some of his creditors began to press him and threaten to take his property, or a part of it, he applied to the Atwood Bank for a loan to pay some of his indebtedness. The application was made by him and refused by the bank officers, some of whom are officers of the appellant, a number of times before the loan was finally made, and while he was required to give a note for fifteen hundred and fifty-six dollars and twenty-six cents, and secure it by a 627 mortgage, assignment of leases on certain lands and the assignment of a life insurance policy, he was only given twelve hundred and thirty-six dollars and fifty-six cents. He made very little progress in the payment of this indebtedness, but this, we think, could not have been much of a disappointment to the bank officers, for they were well acquainted with him. Not only was he making poor progress in paying the bank, but he also incurred indebtedness to other creditors, who began to take judgments against him and levy upon and sell his interest in some of the land. It must have been apparent to everyone who knew the man and had any knowledge of his affairs that although he had property of considerable value, he had not the capacity to extricate himself from his financial entanglements. Under these circumstances the title was conveyed to his wife. She paid no consideration whatever for the conveyance. The purpose of placing the title in her was to put it out of the power of her husband to dissipate and fritter it away. Notwithstanding Levi Drew testified, in answer to questions asked him by counsel for the appellant, that appellee told him she had money appropriated and borrowed to pay the fifteen hundred and fifty-six dollars and twenty-six cents to the bank and that it was in that way he came to deed her the Am. St. Rep., Vol. 117-18

land, we cannot accept this as conclusive. In view of the fact that the record shows him to have been incapable of managing his property or business, and the fact that he was in April, 1903, by the county court of the county of Douglas adjudged a spendthrift and a conservator appointed for him, we cannot accept his statement of this matter as correct, when, taking all the evidence together and all the circumstances shown by the testimony, it clearly appears the conveyance to appellee was made for the purpose and reasons we have above indicated. By accepting the title she assumed no burden or obligation for the payment of her husband's debts, especially one that was illegal, nor did she do anythi g to estop herself from protecting the property against an invalid and unjust claim. No such thought or intention was in her mind at the time 628 she received the title, as a matter of fact, and she neither said nor did anything out of which the law would raise an estoppel against her.

Appellee has assigned certain cross-errors. We have examined them, and are of opinion she was not prejudiced by any of the rulings or holdings of the circuit and appellate

courts.

In our opinion the decree of the circuit court was just and is sustained by the law and the evidence. The judgment of the appellate court affirming said decree of the circuit court is therefore affirmed.

Where a Grantee of Land Assumes the Payment of the Mortgage thereon, or takes expressly subject to it, the amount of which is deducted from the purchase price, he cannot claim an abatement of the amount of the debt on the ground that it is usurious, or otherwise set up usury as a defense. But if there is no assumption of the mortgage debt, nor any agreement that it shall be paid out of the land, usury is admissible in favor of the grantee as a defense: See the note to Klapworth v. Dressler, 78 Am. Dec. 87; Hiner v. Whitlow, 66 Ark. 121, 74 Am. St. Rep. 74.

GUMP v. GOWANS.

[226 Ill. 635, 80 N. E. 1086.]

WILLS, Form of. The law does not prescribe any particular form for a will, except that it must be reduced to writing and signed and attested in the presence of the testator by two or more credible witnesses. (p. 276.)

WILLS Witnessed by Husband or Wife of the Testatrix or Testator. The incompetency of husband and wife to testify for or against each other applies to the attestation of wills. Neither, therefore, can, as a witness, attest the will of the other. (p. 276.)

WILLS, Deeds, When not Admissible to Probate as.-A conveyance executed by a married woman, intended to be operative after her death and therefore testamentary in character, and never delivered, cannot be admitted to probate as a will, though her husband joined in the execution of the conveyance, and there was attached thereto the certificate of a notary by him signed, certifying to its acknowledgment. The signatures so placed on the deed cannot be considered as the signatures of subscribing witnesses. (p. 277.)

L. D. Turner, for the plaintiff in error.

Freels & Joyce, for the defendants in error.

635 CARTWRIGHT, J. On November 11, 1902, Mary A. Gowans made her last will and testament, by which she devised certain tracts of land owned by her, and on the same day she signed and 636 acknowledged five warranty deeds, in which her husband, Walter Gowans, joined, purporting to convey to the grantees named therein other tracts of land not devised by the will, reserving to herself the use, benefit and control of the said lands during her life, and reciting in each a consideration of love and affection and five dollars. The will and deeds were kept by her in a candle-box in her residence and the deeds were never delivered. She died on June 11, 1905, and on June 23, 1905, Walter Gowans filed in the probate court of St. Clair county his petition for the probate of the will. A cross-petition was afterward filed, alleging that the deeds were executed as required by law in case of wills, and praying that they should be admitted to probate. The probate court admitted the will to probate but denied probate of the other instruments, and on appeal to the circuit court a like order was made. A writ of error was sued out of this court to review the order of the circuit court.

The law does not prescribe any particular form for a will, but only requires that it shall be reduced to writing and signed and attested, in the presence of the testator or testatrix, by two or more credible witnesses. If those conditions are complied with and the intention of the maker to dispose of his estate after death is sufficiently manifest, the instrument will be entitled to probate as a will upon the statutory proof being made: Robinson v. Brewster, 140 Ill. 649, 33 Am. St. Rep. 265, 30 N. E. 683; Noble v. Tipton, 219 Ill. 182, 76 N. E. 151, 3 L. R. A., N. S., 645. The deeds in question were retained by the maker and did not operate as conveyances for want of delivery. The evidence indicates that they were intended to become operative after her death and were therefore testamentary in character. They were not signed by any person with any intention of attesting the signature of the maker, but they were acknowledged before a notary public, who affixed his signature to the certificates of acknowledgment. Perhaps the certificates, which show that the maker acknowledged to the notary that she signed the instruments, would be sufficient to make him a subscribing 637 witness, but there was no other competent witness. An attempt was made to supply the other witness by the sig nature of the husband, Walter Gowans, who testified that he was present and saw his wife sign the deeds and that she saw him sign them; but he signed as a grantor, and not as a subscribing witness or for the purpose of attesting her sig nature. If he had signed as an attesting witness the act would have been of no avail. The term "credible," as applied to subscribing witnesses of a will, means competent | (Harp v. Parr, 168 Ill. 459, 48 N. E. 113), and the competency of a witness is to be tested by his status at the time of the attestation and not at the time when the will is presented for probate: Fisher v. Spence, 150 Ill. 253, 41 Am. St. Rep. 360, 37 N. E. 314. The incompetency of husbands and wives to testify as witnesses for or against each other applies to the attestation of wills (30 Am. & Eng. Eney. of Law, 2d ed., 605,) and our statute has not removed the common-law disqualification. Chapter 51 of the Revised Statutes has relaxed the common-law rule to some extent, but section 8 provides that nothing in the act shall affect existing laws concerning the attestation of last wills and testaments.

The evidence did not show that the deeds were tested by two competent witnesses, and the judgment of the court was therefore correct.

The judgment is affirmed.

In Order to Constitute an Instrument a Will, it is not necessary that it should assume any particular form or that it should be expressed in any particular words: Ferris v. Neville, 127 Mich. 444, 89 Am. St. Rep. 480, and note; Kerr v. Girdwood, 138 N. C. 473, 107 Am. St. Rep. 551; Teske v. Dittberner, 65 Neb. 167, 101 Am. St. Rep. 614.

A Wife has been Held Incompetent to Witness her husband's will: Pease v. Allis, 110 Mass. 157, 14 Am. Rep. 591. As to whether the

wife of a beneficiary is a competent witness to a will, see In re Holt's Will, 56 Minn. 33, 45 Am. St. Rep. 434; Fisher v. Spence, 150 Ill. 253, 41 Am. St. Rep. 360. The wife of the executor is a competent attesting witness: In re Will of Lyon, 96 Wis. 339, 65 Am. St. Rep. 52.

The Words "Credible Witnesses" in the statute of wills has been construed to mean competent witnesses: See the note to Stevens v. Leonard, 77 Am. St. Rep. 460.