water. The determination of the Federal government by the Secretary of the Interior, as head of the land department, that the lands were swamp and overflowed lands was the determination of a question of fact by a tribunal specially authorized and empowered to determine such fact and is conclusive except in a direct attack for fraud or mistake. It cannot be attacked collaterally, as attempted in this case.

In Bristol v. Carroll County, 95 Ill. 84, appellee claimed title to certain lands originally granted by the Federal government under authority of the Swamp Land act of 1850. Appellant insisted that for the appellee to establish title in itself it was necessary to show such lands were, in fact, swamp lands. This court said: "It was not necessary ** * to show that the lands were, in fact, swamp and overflowed lands. It was enough that they were found included in the list of swamp and overflowed lands which the commissioner of the general land office transmitted to the Governor as such. The act of Congress conferred upon the Secretary of the Interior the power of determining what lands were of the description granted by that act, and the decision of his office on that subject is controlling."

French v. Fyan, 93 U. S. 169, was an action in ejectment. The defendant claimed title by mesne conveyances under a patent from the United States government to the State of Missouri under the Swamp Land act of 1850. The opinion states the single question raised was the refusal of the court to receive oral testimony to impeach the validity of the patent from the United States to the State of Missouri, issued under the Swamp Land act of 1850, for the purpose of showing such lands were not, in point of fact, swamp lands. The court held the Swamp Land act of 1850 made it the duty of the Secretary of the Interior to identify such lands, make lists thereof and cause patents to be issued therefor, and that a patent so issued could not be impeached by showing that the lands it conveyed were not, in fact, swamp and overflowed lands.

In Burfenning v. Chicago, St. Paul, Minneapolis and Omaha Railway Co. 63 U. S. 321, it was said: "It has undoubtedly been affirmed, over and over again, that in the administration of the public land system of the United States questions of fact are for the consideration and judgment of the land department and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony, and it cannot be doubted that the decision of the land department one way or the other, in reference to these questions, is conclusive and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be re-examined." See, also, Fuller v. Shedd, 161 Ill. 462.

It is not, as we understand counsel for appellant, denied that this is the law, but it is claimed that it is not applicable here, for the reason Thompson lake in a state of nature and at the time of the admission of Illinois into the Union was a navigable body of water and the title to its bed passed to and vested in the State, so that in 1850 the Interior Department had no jurisdiction over said land and lake, and on that ground the action in determining it was swamp and overflowed land and disposing of it as such was subject to attack collaterally. As in our opinion the proof did not establish that Thompson lake in a state of nature was navigable for useful commerce, it necessarily follows the Interior Department did have jurisdiction to determine whether the land was included in the grant by the Federal government to the State of swamp and overflowed land. Its decision, therefore, was not subject to collateral attack under the authorities.

Complaint is made by appellant some of appellees' counsel were not excluded from participation in the hearing of this case, and it is claimed the decree should be reversed on that ground. The basis of this objection is that certain

of counsel for appellees had, as is claimed, in prior litigation involving the title to Thompson lake, represented parties who claimed and sought to establish that the lake was navigable and that title to its bed was held in trust by the State. A motion was made before the master to whom the case had been referred to exclude said counsel from further participation in the case on that ground. The master did. not rule on the motion and counsel were permitted to continue in the hearing. The motion was never made before or in any way presented to the court for a ruling, and the question cannot now be presented to this court.

Other questions are raised and discussed in the briefs of counsel, but in view of the conclusion we have reached it is not necessary to discuss them.

The decree is affirmed.

Decree affirmed.

(No. 11483.-Reversed and remanded.)

MARY ALICE RAVENSCROFT, Appellee, vs. CATHERINE STULL et al. Appellants.

Opinion filed October 23, 1917.

1. WILLS-any fact relating to mental capacity of testator is admissible on will contest. A party to a will contest has a right to ascertain and present to the jury any fact in relation to the mental capacity of the testator.

2. SAME capacity to transact ordinary business not required of testator. Capacity to transact ordinary business is one of the elements to be considered in determining whether a testator had the capacity to make a valid will, but as a test of mental capacity to make a valid will it is more than the law requires.

3. SAME-proof of testator's habitual use of intoxicating liquor is admissible on question of mental capacity. The use of intoxicating liquor on a particular occasion does not have the effect to render a person incompetent to execute a will unless operative at the time of making it, but evidence that a testator was addicted to the habitual use of intoxicating liquor is competent, in a will contest, on the question of mental capacity.

4. TRIAL—when fact that attorney who drew will did not testify should not be commented on. It would be a breach of professional propriety for an attorney who is a member of the firm representing the executor, and who drew the will, to testify in a suit to contest the will, and the fact that such attorney did not testify should therefore not be referred to in the argument of the opposing counsel as tending to raise an inference against the validity of the will.

5. SAME when it is error to comment on failure of defendant to testify. It is error for the attorney for the complainant in a will contest case to repeatedly refer in his argument to the failure of the defendant, who was the chief beneficiary of the will, to testify, when he knows she is not a competent witness and has objected to her being allowed to testify.

6. JURISDICTION-city court has jurisdiction of suit to contest a will. Under the statute conferring upon a city court concurrent jurisdiction with the circuit court within the city in all civil cases in law and equity the city court has jurisdiction of the statutory proceeding to contest a will by a bill in chancery, as such suit is of the same nature as the previously existing common law right to a contest whenever a will was offered in evidence and property rights were involved.

APPEAL from the City Court of Mattoon; the Hon. JOHN MCNUTT, Judge, presiding.

EDWARD C. CRAIG, DONALD B. CRAIG, JAMES W. CRAIG, JR., and WILLIAM M. MORAN, JR., for appellants.

BRYAN H. TIVNEN, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The appellee, Mary Alice Ravenscroft, the only child and heir-at-law of Thomas Gorman, filed her bill in this case in the city court of the city of Mattoon against the appellants, the executor, legatees and devisees under the will of her father, by which he devised to Catherine Stull his residence property in the city of Mattoon and bequeathed to her his building and loan stock remaining after the payment of a mortgage on the property, made bequests of $50 to the Roman Catholic church for masses, $10 to his daugh

ter, the complainant, Mary Alice Ravenscroft, $1500 to his sister, Mary Hayes, $1500 to his brother, James Gorman, and $500 to his grandson, James Ravenscroft, son of the complainant. The residue of the estate was given to his sister, Mary Hayes, his brother, James Gorman, and Catherine Stull. The bill prayed the court to set aside the probate of the will on the grounds of want of testamentary capacity and undue influence of Catherine Stull. Answers of the executor and Mary Hayes, James Gorman and Catherine Stull were filed, and replications to the answers having been filed, issues were made up whether the testator was of sound mind and memory, whether the instrument was his will and whether it was obtained by undue influence of Catherine Stull. The jury found all of the issues for the complainant and a decree was entered accordingly, from which this appeal was allowed and perfected.

At the trial there was the customary assemblage of persons who had known Thomas Gorman, (counsel have counted them, and there were thirty-two for the complainant and thirty-five for the defendants,) some of whom had met him either frequently or occasionally and some had been intimately associated with him. They gave opinions as to his mental and physical condition, and there was evidence concerning his relations with Catherine Stull and her influence over him. Gorman was foreman of a wrecking crew of the Big Four Railway Company from 1891 to October 15, 1914. He could not read or write, and orders and other matters relating to his duties were read to him, but he could write his name. He was in the habit of drinking intoxicating liquor, and his physical health and mental condition had been seriously impaired before the making of the will. His wife died in 1911, and he lived with his daughter, the complainant, until February, 1913, when he left her home and stayed for a time at his wrecking car, after which he went to the home of his sister, Mary Hayes. For several years he visited Catherine Stull at her home,