The opinion
Mr. Justice Underwood dissenting:
I am compelled to dissent. In my judgment the majority opinion errs in approving what is to me an abuse of the trial court’s discretion in unduly restricting the cross-examination of the attesting witnesses by respondent, particularly with reference to the witness Jane Dodson.
Counsel for respondent asked this witness whether she recalled a conversation with a third party following decedent’s death, identifying the party, time and place, but an objection to the question was sustained. Counsel then offered to prove by this witness that the witness had told the third party, after reading a newspaper article stating the will had three pages, that “Mr. Ahern flipped over four pages that were written in longhand, and that she, the witness, signed her name four times; * * * that she said, ‘How could she sign four times when the will only had three pages,’ and she, the witness, also said that she distinctly remembers signing four times.” An objection to this offer was also sustained.
Assuming the witness, if permitted to do so, would have testified as indicated by counsel, such statement would have been directly contrary to her testimony at the hearing, and proper for the trial court to consider in determining the credibility to be accorded her testimony. (Craig v. Trotter, 252 Ill. 228 .) Petitioner argues that respondent cannot here complain of the trial court’s action because Toni Zollner, the impeaching witness was never produced at the hearing. Clearly, no reason to call Toni Zollner as a witness existed until such time as a proper foundation for impeachment had been laid, and, if Jane Dodson admitted a conversation with Toni Zollner as outlined in the offer of proof, no reason would have existed to call Toni Zollner at all. When the trial court sustained objections to all questions relating to this subject, and refused the offer of proof, it would be unreasonable to compel the respondent to undertake the obviously useless formality of calling a witness in order to preserve his objection when the court has indicated such witness will not be permitted" to testify. Garvey v. Chicago Railways Company, 339 Ill. 276 .
It is neither this court’s duty nor right to determine the credibility of the witnesses, but it is our duty to ascertain whether the trial court’s determination of this question was made according to established rules. The offered proof was relevant on the question of credibility. It should have been permitted. I would remand for this purpose.
Mr. Chief Justice Solfisburg joins in this dissent.