This court has uniformly held that where an action is brought to recover damages for the death of a person, to entitle the plaintiff to recover it is necessary to allege and prove that such deceased person left him or her surviving a widow or husband or next of kin. (Chicago and Rock Island Railroad Co. v. Morris, 26 Ill. 400; Quincy Coal Co. v. Hood, 77 id. 68; Lake Shore and Michigan Southern Railway Co. v. Hessions, 150 id. 546.) In Chicago and Rock Island Railroad Co. v. Morris, supra, on page 402 the court say: "Before a party suing for these damages can be allowed to recover, it must be alleged in the declaration, and proved, that the deceased left a widow or next of kin, to whom the damages could be distributed." In Quincy Coal Co. v. Hood, supra, on page 72 it is said: "The fact of the survivorship of a widow or next of kin, being an essential element of the cause of action, renders it indispensable that it should be alleged in the declaration." And in Lake Shore and Michigan Southern Railway Co. v. Hessions, supra, it is held (p. 556): "It is the settled law that the fact of survivorship of a widow or next of kin is an essential element to the cause of action, and it is therefore indispensable that it should be alleged and proved."

At the common law no action could be maintained for negligently causing the death of a human being, or for any damages suffered by any person in consequence of such death. An action to recover such damages can be maintained, therefore, only by virtue of the statute. (Hurd's Stat. chap. 70.) It must be brought in the name of the personal representative of the deceased, and can only be maintained for the benefit of the persons designated in the statute. If the deceased left him surviving no widow or next of kin there is no cause of action, hence the necessity of alleging and proving that the deceased left him surviving a widow or next of kin. A declaration defective in this regard would not be good even after verdict. In Bowman v. People, 114 Ill. 474, it is said (p. 477): "The rule is, if the declaration omits to allege any sub

stantial fact which is essential to a right of action, and which is not implied in or inferable from the findings of those which are alleged, a verdict for the plaintiff does not cure the defect." In Quincy Coal Co. v. Hood, supra, proof was made that there was next of kin other than those named in the declaration. This was held to be error and not cured by verdict.

We are of the opinion the declaration, as originally filed, stated no cause of action, and that the cause of action stated in the amended declaration was barred by the Statute of Limitations. The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.

JOHN MORE et al.

v.

MATILDA MORE.

Opinion filed June 19, 1901.

APPEALS AND ERRORS—when appeal in will case lies to Supreme Court. If a will disposes of the fee of the testator's real estate, an appeal from an order of the circuit court refusing probate and dismissing the petition lies to the Supreme Court upon the ground that a freehold is involved.

More v. More, 92 Ill. App. 465, reversed.

APPEAL from the Appellate Court for the Third District;-heard in that court on appeal from the Circuit Court of De Witt county; the Hon. W. G. COCHRAN, Judge, presiding.

O. E. HARRIS, and E. B. Mitchell, for appellants:

Where a will devises real estate as it would not descend under the statute, a freehold is involved. Bice v. Hall, 21 Ill. App. 298; Moyer v. Swygart, id. 497; Newberry v. Blatchford, 106 id. 584.

The statute requires a party producing a will for admission to probate in the county court to prove nothing but its formal execution, and that the testator was of sound mind and memory at the time it was executed. Yoe v. McCord, 74 Ill. 33.

It is incumbent upon those who claim under a will to prove not only its due execution, but that the testator was of sound and disposing mind. Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254.

The burden of proof of the sanity of a testator is on the proponents of a will. Carpenter v. Calvert, 83 Ill. 62; Trish v. Newell, 62 id. 196; Hesterberg v. Clark, 166 id. 241; Pendlay v. Eaton, 130 id. 69; Crowninshield v. Crowninshield, 2 Gray, 527; Entwistle v. Meikle, 180 Ill. 9; Aikin v. Weckerly, 19 Mich. 482; McGinnis v. Kempsey, 27 id. 363; McMechen v. McMechen, 17 W. Va. 683.

JOHN FULLER, for appellee:

In the matter of probate of a will, where an appeal is taken the proper course is from the county court to the circuit court, from the circuit court to the Appellate Court, and from the Appellate Court to the Supreme Court. Hobart v. Hobart, 154 Ill. 610.

It is not indispensable that witnesses to a will should subscribe any formal clause of attestation. 1 Redfield on Wills, (4th ed.) 232; Robinson v. Brewster, 140 Ill. 649.

The attestation clause may consist of a single word, as "witnesses" or "attest." 1 Redfield on Wills, (4th ed.) 232; Robinson v. Brewster, 140 Ill. 649.

Where the witnesses to a will are dead, secondary evidence may be used to prove the due attestation and execution of the will. The attestation is then to be shown as it would in cases of deeds, by proof of the handwriting of the witnesses; and it is to be presumed that the deceased witnesses have duly attested the will in the presence of the testator. Hobart v. Hobart, 154 Ill. 614; Hurd's Stat. 1899, sec. 6, p. 1747.

Per CURIAM: George More, of DeWitt county, died on or about the 27th day of September, 1898, and soon thereafter, on the petition of his widow, his will was admitted to probate by the county court of that county. Certain heirs of the deceased appealed to the circuit court, where, after a hearing before that court, an order was entered refusing probate and dismissing the petition. On appeal by the proponent, taken to the Appellate Court for the Second District, the order of the circuit court was reversed and the cause was remanded, with directions to enter an order admitting the will to probate and record as the last will and testament of said George More, deceased, and granting letters testamentary to the petitioner, as prayed. From the judgment of the Appellate Court the contestants have taken this appeal.

A motion was made by contestants in the Appellate Court to dismiss the appeal to that court on the ground that a freehold was involved and that the appeal should have been taken from the circuit court directly to this court. The will by its terms disposed of the real estate of the testator, devising it in fee, and we are of the opinion that a freehold was involved and that the Appellate Court had no jurisdiction, but that the appeal should have been taken from the circuit court directly to this court. (Gould v. Theological Seminary, 189 Ill. 282.) It follows that the Appellate Court erred in not dismissing the appeal to that court, and we cannot do otherwise than reverse its judgment.

The judgment of the Appellate Court will therefore be reversed and the cause remanded to that court, with directions to dismiss the appeal. Leave will be given to withdraw record, abstracts and briefs.

Reversed and remanded, with directions.

CHARLES ANDERSON

v.

FREDERICK MAGNI ANDERSON et al.

Opinion filed June 19, 1901.

1. WILLS-intention must be gathered from language used, in the light of attending circumstances. The intention of the testatrix must be gathered from the language used in the will, in the light of the attending circumstances, and not from any supposed intention existing in her mind, as explained by the testimony of one of the witnesses to the will.

2. SAME stipulation of facts in will construction case not binding upon minor heirs. In a suit to construe a will, brought by the husband of the testatrix against her minor heirs-at-law, a stipulation of facts which are claimed to throw light upon the intention of the testatrix is not binding upon such minors.

3. SAME-construction which renders will inoperative should be avoided, if possible. If such a conclusion can be avoided, it is not to be presumed that a testator intended by the will to accomplish that which the law would do without any will.

4. SAME-language of will construed. A will drawn by a wholly inexperienced person, which gives to the husband of the testatrix all real and personal property, "to have and to hold unto 'my' or our son's, his heirs and assigns forever," must, where the proof shows there were three sons, be construed as giving the property to the husband with a limitation to the heirs of the bodies of the testatrix and her husband, which, under section 6 of the Conveyance act, passes a life estate to the husband with remainder in fee simple absolute to said heirs.

APPEAL from the Superior Court of Cook county; the Hon. A. H. CHETLAIN, Judge, presiding.

AMZI W. STRONG, and LOUIS C. EHLE, for appellant.

WILLIAM F. STRUCKMANN, for appellees.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:

Annie Anderson held the title to certain real estate in the city of Chicago. She died June 3, 1896, leaving a last will and testament, as follows: