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REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.)

Bonham v. Doyle (Ind. App.) 77 N. E. 858. | Good v. Burk (Ind. Sup.) 77 N. E. 1080.
Bonham v. Doyle (Ind App.) 77 N. E. 859. Heigert v. State (Ind. App.) 75 N. E. 850.
City of Crawfordsville v.' Van Cleave (Ind. Indianapolis St. Ry. Co. v. Hackney (Ind. App.)
App.) 77 N. E. 1149.

77 N. E. 1048. Dill v. Fraze (Ind. App.) 77 N. E. 1147.

Morin v. Holliday (Ind. App.) 77 N. E. 861. Elwood Natural Gas & Oil Co. V. Etchison State v. Richcreek (Ind. Sup.) 77 N. E. 1085. (Ind. App.) 77 N. E. 957.

State ex rel. Board of Com’rs .f Hamilton Elwood Natural Gas & Oil Co. v. Glaspy (Ind. County V. Williams (Ind. App.) 77 N. E. App.) 77 N. E. 956.

1137. Elwood Natural Gas & Oil Co. v. Hughes (Ind. Tolleston Club of Chicago V. Lindgren (Ind. App.) 77 N. E. 957.

App.) 77 N. E. 818. 78 N.E.

(xx)t

THE

NORTHEASTERN REPORTER.

VOLUME 78.

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(222 Ill. 26)

WATERS et al. v. WATERS et al. (Supreme Court of Illinois. June 14, 1906.) 1. WILLS – VALIDITY – UNEQUAL DISTRIBUTION.

The fact that there is an inequality in the distribution of the property of testatrix cannot of itself affect the validity of her will.

[Ed. Note.—For cases in point, see vol. 49, Cent. Dig. Wills, $$ 102, 203.] 2. SAME PROBATE ACTION TO VACATE PRIMA FACIE PROOF.

Where, in a suit to contest a will, defendants introduced in evidence the certificate of the oaths of the subscribing witnesses to the will, such certificate was prima facie proof of the validity of the will and cast the burden on contestants to establish incapacity and undue influence alleged to invalidate the same.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, $ 389.] 3. SAME - INCAPACITY - UNDUE INFLUENCEEVIDENCE.

In a suit to contest a will, evidence held insufficient to establish either testamentary incapacity or undue influence. 4. SAME-EVIDENCE-DECLARATIONS OF TESTATRIX.

In a suit to contest a will, declarations of testatrix that she wanted to deal equally with all of her family at one time, which were in conflict with the provisions of the will by which unequal distribution of her property was made, were inadmissible on the issue of undue influence.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, $$ 415-420.] 5. SAME-UNDUE INFLUENCE-INFLUENCE OBTAINED BY KINDNESS.

Undue influence sufficient to invalidate a will means influence wrongfully exerted, and does not include influence secured through affection or gained over testatrix by kindness and friendly attention to her.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, $$ 375-387.] 6. SAME-KNOWLEDGE OF CONTENTS OF WILL

-EVIDENCE – INSTRUCTIONS-APPLICABILITY TO EVIDENCE.

In a suit to contest a will, it was proved that testatrix not only executed the will, but that she understood the act she was engaged in at the time by declaring to those present that the instrument before her was her last and only will, and also indicated that her mental condition was good by asking one of the subscribing witnesses concerning the health of one of his family and expressing regret that she was keeping the other from his work by requiring him to witness her will. Held, that the evidence was sufficient to justify a presump

78 N.E.--1

tion that testatrix had knowledge of the contents of the will, and hence, in the absence of evidence to the contrary, an instruction preuicated on the fact that testatrix did not know the contents of the will, and had not been informed of its provisions, was objectionable as inapplicable to the evidence. 7. 'WILLS-GROUNDS-ISSUES AND PROOF.

Where, in a suit to contest a will, the only grounds alleged were testamentary incapacity and undue influence, complainant could not impeach the prima facie case made by the introduction of the certificate of the oaths of the subscribing witnesses to the will, by proof that testatrix did not know the contents of the will when she signed it.

Appeal from Circuit Court, Stephenson County; R. S. Farrand, Judge.

Bill by. Oliver P. Waters and others against Emma L. Waters and others. From a decree in favor of complainants, defendants appeal. Reversed and remanded.

This is a bill in chancery, brought by the al pellees to contest the will of their mother, Mary Waters, late of Stephenson county. The bill was filed in the circuit court of Stephenson county by the appellees, two of the children of Mary Waters, against the other three children and the executor of the estate, as defendants. The prayer of the bill is that the will of Mary Waters, and the probate thereof, be set aside upon the alleged grounds that, at the time of the making of the will, Mary Waters was not of sound mind and memory, and that the signing of the will was procured from her by undue influence, exercised over her by her two daughters, the appellants Emma L. Waters and Lydia J. Stockberger. One of the defendants below, Carrie E. Waters, entered her appearance, but filed no answer, and default was taken against her. Answers were filed by Emma L. Waters and Lydia J. Stockberger, denying the material allegations of the bill, and an arswer was also filed by the executor, Grant Byrnes. Replications were filed to the answers by the appellees, and the cause was tried before the court and a jury. The jury rendered a verdict, finding that the instrument in evidence, purporting to be the last will and testament of Mary Waters, deceased, was not her will. Motion for new trial was overruled, exception was taken,

and a decree was entered in accordance with apparently drawn by a justice of the peace the verdict. The present appeal is prose- and notary, living in Ridott, by the name of cuted from such decree.

William K. McGilligan, who has since deMary Waters died, leaving a farm in ceased, and was properly signed by the atStephenson county of about 280 acres of land, testing witnesses. The subscribing witnessa house, and lot in the village of Ridott, and es appeared before the county court when personal property worth about $4,000, the the will was admitted to probate, and devalue of the whole estate being about $24,000 posed that the instrument in question was or $25,000. The deceased was the widow of the last will of the testatrix, and that they Harvey Waters, who died in the spring of subscribed their names thereto at the request 1899, having resided in Ridott about 12 years, of the testatrix, in her presence, and in the and within a mile thereof over 50 years. presence of each other, on August 7, 1901, and She left surviving her, as her children and that she then and there subscribed her name only heirs at law, four daughters, and one thereto in their presence and declared the son, to wit, the appellants, Emma L. Waters, same to be her last will and testament; and Lydia J. Stockberger, and Carrie E. Waters, that at the time of executing the same said and the appellees, Oliver P. Waters, and testatrix was of full age, of sound mind and Clara McCracken. Emma L. Waters and memory, and under no constraint. Carrie E. Waters, the two unmarried daugh

H. C. Hyde, W. N. Cronkrite, and R. K. ters, lived with their mother for years be

Walsh, for appellants. R. R. Tiffany, for apfore and up to the time of her death. Lydia pellees. J. Stockberger and her husband lived at Pecatonica, about 10 miles from Ridott. Clara

PER CURIAM. First. The will in this McCracken, the oldest child, was about 59

case is attacked upon the two alleged grounds years of age, and had a son 28 years old,

that the testatrix, at the time of making the who was one of the witnesses in this cause.

will, was not of sound mind and memory, She lived in Ridott, but seems to have visit

and was subject to undue influence exercised ed or been with her mother very little. Oli

over her by her daughters Emma L. Waters rer P. Waters lived in California at the time

and Lydia J. Stockberger. After a careful of his mother's death, and had been a resi

examination of this record and of all the dent of that state for some 10 or 12 years

testimony in it, we are obliged to conclude prior to her death. The will of Mary Waters

that a finding that testatrix, at the time of was admitted to probate in the county court

executing the instrument in question, did not of Stephenson county, and letters testamen

possess the requisite mental capacity to make tary were granted by that court to Grant

a valid will, is against the manifest preByrnes, the executor named in the will, a

ponderance of all the evidence in this cause, nephew of the testatrix; his mother being

and that on the other branch of the case her sister.

the evidence fails to show any wrongful act By the terms of the will, after providing

on the part of the appellants Emma L. Watfor the payment of her debts, the testatrix ers and Lydia J. Stockberger, which was left to her daughter Emma L. Waters her calculated to unduly influence the testatrix residence in Ridott, with lots, barns, sheds, to make the disposition of her property which and everything belonging thereto, and all her

she did make. In finding their verdict in personal property, consisting of beds, cloth- this case the jury must have been influening, horses, and cattle, and all that was in

ced by the consideration that the testatrix and around said residence; she left to her left all her property to three of her children daughter Carrie E. Waters $1,000 in money. and cut off the other two, the appellees hereThe will provided that the farm, and all the in, with $5 apiece. Under the law, however, other real estate that she might own at her if she was of sound mind and memory and demise, should be divided equally between acted as a free agent, she had a right to disher daughters Lydia J. Stockberger, Carrie

pose of her property as she saw fit. E. Waters, and Emma L. Waters to be for all In Freeman v. Easly, 117 Ill. 317, 322, 7 N. claims for services against her estate; she E. 656, 658, we said: “It accords with comleft to her daughter Clara McCracken the mon observation that in contests concernsum of $5 for all claims and services against | ing wills, where the testator has made, or her estate; and to her son, Oliver P. Waters, has seemingly made, an unequal or inequithe sum of $5 for all claims and services table disposition of his property among those against her estate. The will also provided occupying the same relatiou to him by conthat any moneys that were left after her sanguinity or otherwise, there is a disposijust debts were paid should be divided equal- tion in most minds to seek for a cause for ly between her daughters Lydia J. Stock- holding the will invalid. The inclination berger and Emma L. Waters, and she there- in this direction that is found to exist in the in stated that it was her desire that the girls minds of most, if not all, jurors, cannot should not sell the farm for some time, but always be controlled by instructing them collect rent as their income until sold. The there is no law requiring a testator, nor is will was executed on August 7, 1901, at the he bound, to devise his property equitably residence of the testatrix in Ridott, and was or in equal proportions among his heirs. Of

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