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course, the law is he may make such disposition of his property as he sees fit, and he may bestow his bounty where he wishes, either upon his heirs or others. While this is undoubtedly the law, the common mind is disinclined to recognize it, and jurors will too frequently seize upon any pretext for finding a verdict in accordance with what they regard as natural justice." This language was quoted with approval in the recent case of Nieman v. Schnitker, 181 Ill. 400, 55 N. E. 151, and is precisely applicable to the condition of affairs in the case at bar. The fact that there is inequality in the distribution of the property of a testator or testatrix cannot of itself have the effect of invalidating the the will. Graham v. Deuterman, 206 Ill. 378, 69 N. E. 237. Moreover, where the testator or testatrix assigns a substantial and sufficient reason for such inequality, that reason must be accepted as true when there is no evidence in the record tending to disprove it. Graham v. Deuterman, supra. In the case at bar, declarations of the deceased, Mrs. Waters, were proven to the effect that she had already sufficiently helped her son, Oliver, and her daughter Clara; nor was there any evidence, tending to disprove this reason for giving them nothing more than $5 apiece by her will.
The appellants introduced in evidence, upon the trial below, the certificate of the oaths of the subscribing witnesses to the will. That certificate was prima facie proof of the validity of the will in this proceeding, attacking the probate thereof. Consequently, the burden of proof was upon the appellees, complainants below, as the contestants of the will, to substantiate both charges; that is to say, the charge that the testatrix was not of sound mind and memory when she executed the will, and that she was under the undue influence of her two daughters above named at that time. Swearingen v. Inman, 198 Ill. 255, 65 N. E. 80; Johnson v. Johnson, 187 Ill. 86, 58 N. E. 237; Webster v. Yorty, 194 Ill. 408, 62 N. E. 907; Michael v. Marshall, 201 Ill. 70, 66 N. E. 273. It was incumbent upon the contestants to overcome the prima facie case, thus made through the introduction of the certificate, by a preponderance of the evidence. This they failed to do.
In addition to the certificate in question, the proponents, appellants here, produced 14 witnesses, including two physicians, who treated the testatrix in the last years of her life, a banker who did business with her, a shopkeeper or clerk with whom she traded, people who boarded at her home, neighbors and others closely associated with her; all of whom testified that, at or about the time when her will was made, her mind and memory were sound. Some of them swore that she was an unusually bright and smart woman. It is true that, during the last year or two of her life, she was not only
old, but she was feeble and sick, suffering with some kind of neuralgia in her shoulders. In order to sustain the allegation of want of mental testamentary capacity something more must be shown than mere physical suffering, disease, and old age. Woodman v. Illinois Trust & Savings Bank (Ill.) 71 N. E. 1099; Wallace v. Whitman, 201 Ill. 59, 66 N. E. 311; Schmidt v. Schmidt, 201 Ill. 191, 66 N. E. 371; Freeman v. Easly, supra. Proof, that the testatrix here was suffering otherwise than from disease and old age is wanting.
To offset the proof introduced by the proponents of the will to the effect that the testatrix was of sound mind and memory, the contestants introduced a large number of witnesses; but an examination of the evidence of these witnesses tends in no degree to sustain the charge of a want of sound mind and memory. None of such witnesses swear that the mind of the testatrix was unsound. Lizzie Kurtz, the first witness of the contestants, said: "I saw her in 1901. I don't know what her mental condition was at that time with regard to soundness of mind. *** I think she was about as well as anybody would be of her age." Mary Kurtz, the second witness of the contestants, says: "I wasn't with her enough to form any opinion as to the soundness or unsoundness of her mind and memory." Nora Geiger, the third witness of the contestants, says: "In my opinion she was sound, but I think the woman was suffering from pain, so that at times she hardly realized where she was or what she was doing. ** I do not think
she would be capable of transacting business at any time. Transacting business is work in one way. It is occupying one's time. I said. I thought she was incapable of transacting business, and I do not think she did transact any business of her own. I think she was physically unable to work; that is what I mean; that she was physically unable to work." One witness for the contestants says: "I don't think she was capable of doing business successfully." Another witness says: "From what I saw of Mrs. Waters I was able to form an opinion as to whether she was able to transact the ordinary business of life. I thought she was too weak in body. Her mind was as rational as we could expect in a person of her age, who had been sick. * * * She would would frequently frequently commence saying something, and then change it a little, and turn off into something else, and sometimes refer to it again as if she had not been talking about it; but nothing that I could call insane or out of her mind, only a little absent-mindedness." Many of the witnesses of the contestants expressed no opinion at all upon the question of her soundness of mind. No one of the witnesses of the contestants, so far as we have been able to ascertain from the record, swears that the testatrix was incapable of understanding the business, in which she was engaged at the
time when she executed her will. Some of them gave it as their opinion that she was not competent to transact the ordinary business of life, but an examination of their testimony will show that they based such opinion wholly upon her physical condition as to age and sickness. Competency, however, to transact the ordinary business of life is not the test by which testamentary capacity is determined. Any one, having the mental ability to transact intelligently the ordinary business affairs of life, is capable of making a vaild will, but the converse of that proposition is not always true. This court has decided that testamentary capacity exists, if the testator, at the time of making his will, had such mind and memory as enabled him to understand the business in which he was then engaged, and the effect of the disposition made by him of his property. Waugh v. Moan, 200 Ill. 298, 65 N. E. 713; Campbell v. Campbell, 130 Ill. 466, 22 N. E. 620, 6 L. R. A. 167; England v. Fawbush, 204 Ill. 384, 63 N. E. 526, and cases cited. The evidence of the witnesses of the contestants is merely to the effect that Mrs. Waters was too feeble from sickness to devote her attention to her business affairs, and in no sense goes to the extent of establishing the proposition that she was not of sufficiently sound mind and memory to understand what she was doing when she made her will, and to understand the effect of the disposition, which she was thereby making of her property.
Second. Nor are we able to see that the evidence tends to support the other charge
in the bill that she was under the undue influence of her daughters Emma and Lydia. Her unmarried daughters, Emma and Carrie, lived with her and took care of her. All the evidence tends to show that she regarded all her children with kindness and affection, and only cut off two of them because she thought they had received enough of her bounty already. Mrs. Stockberger, though not living with her mother, lived only a few miles away, and was attentive and kind in her treatment in her frequent visits to her mother. "The presumption also is in favor of the validity of the will, when the person, who is provided for therein, is one with whom the testator had maintained intimate and affectionate relations during his life." Harp v. Parr, 168 Ill. 459, 48 N. E. 113. Here, the relations with the three children, to whom the most of her property was given by the will, were most intimate and affectionate. It was natural, therefore, that she should provide for them in preference to the other children, whose relations had not been so intimate and affectionate, and one of whom had lived. for years at a long distance from her. There is not a particle of evidence in this record, so far as we have been able to discover, to show that Emma Waters and Lydia Stockberger attempted to exercise, or did exercise, any undue influence over their mother. No declarations on the part of these two children
in the presence of their mother are proven, and the only acts sought to be proven are that, sometimes when Mrs. Waters was talking with one of her neighbors about her disposition of her property, and one of her daughters, Emma or Lydia, would come into the room, she would cease her conversation. This act alone, however, as it is unaccompanied by any other facts or circumstances looking in that direction, was insufficient to show that the mind of the mother was influenced by fear of her daughters, or that she was imposed upon in any way by them.
Third. We are of the opinion that the trial court erred in admitting evidence over the objections of the proponents of the will, and in the giving and refusal of instructions. Two women, who testified in favor of the contestants, said that, on one or two occasions, Mrs. Waters, while engaged in conversation with them, made remarks to the effect "that she wanted to deal equally with all of her family at one time," and substantially that she was in favor of making another disposition of her property than that which she actually made in her will. Counsel for the proponents of the will objected to the admission of this testimony, and moved that it be stricken out. Their objection was overruled, and their motion was denied. We are of the opinion that this was error. The general rule is that statements made by the tes tator, either before or after the execution of a contested will, which are in conflict with the provisions thereof, do not invalidate or modify such will in any manner, and that parties, making wills, cannot invalidate them by their own parol declarations, made previously or subsequently. viously or subsequently. Dickie v. Carter, 42 Ill. 376; Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837; Kaenders v. Montague, 180 Ill. 300, 54 N. E. 321; Harp v. Parr, supra; Hill v. Bahrns, 158 Ill. 314, 41 N. E. 912; England v. Fawbush, 204 Ill. 384, 68 N. E. 526. The declarations of the testatrix, Mrs. Waters, thus sought to be proved, were declarations in conflict with the provisions of her will, which made an unequal distribution of her property, and therefore they were not competent testimony, and should have been excluded. It is true that, where a will is charged to have been executed through undue influence, the declarations of the testator, made before its execution, are admissible by way of rebuttal to show his intention as to the disposition of his property, upon the ground that a will, made in conformity with such declarations, is more likely to have been executed without undue influence than if its terms are contrary to such declarations. But the declarations thus admissible are those which are in harmony with the provisions of the will actually made, and not those which are opposed to such provisions. As was said in the per curiam opinion in Kaenders v. Montague, supra: "The general rule, recognized by this court, is that prior declarations of a testator are not admissible to prove
undue influence. That rule, however, is applicable only in cases where the declarations and statements are offered for the purpose of varying or controlling the operation of the contested will, and not to those in which the will is in harmony with the declared intentions of the testator." The declarations and statements here offered had a tendency to vary or control the operation of the will of Mrs. Waters, and were not in harmony with her intentions as declared in her will.
Fourth. The proponents of the will upon the trial below asked the court to instruct the jury that "any degree of influence over another, acquired by kindness and attention, can never constitute undue influence within the meaning of the law, and although the jury may believe from the evidence that the deceased, in making her will, was influenced by any of the said defendants, still, if the jury further believe from the evidence that the influence, which was so exerted, was only such as was gained over the deceased by kindness and friendly attention to her, then such influence cannot be regarded in law as undue influence," etc. The refusal of this instruction was error, and the idea, set forth in it, is not embodied in any of the other instructions given for either party. This court has held in a number of cases that influence secured through affection is not wrongful. Thompson v. Bennett, 194 Ill. 57, 62 N. E. 321; Nicewander v. Nicewander, 151 Ill. 156, 37 N. E. 698; Francis v. Wilkinson, 147 Ill. 370, 35 N. E. 150; Burt v. Quisenberry, 132 Ill. 385, 24 N. E. 622. In Burt v. Quisenberry, 132 III. 399, 24 N. E. 624, we said: "No rule of law requires the parent to distribute his property among his children equally, or upon any ratable basis of relative merit. He may prefer one and cut off another, with or without a reason, or he may cut off all his children and give his property to a stranger, and the only inquiry admissible is: Was he, when doing so, of sound mind and free of the undue influence of others. Undue influence means wrongful influence. But influence secured through affection is not wrongful, and, therefore, although a deed be made to a child at his solicitation, and because of partiality induced by affection for him, it will not be undue influence. * ** The influence, to render the conveyance inoperative, must be of such a nature as to deprive the grantor of his free agency." The principle thus announced applies to wills as well as deeds. Nicewander v. Nicewander, supra.
Fifth. We think that the trial court erred in giving the ninth instruction, which was given for the contestants of the will. By that instruction the jury were told "that, if they believed from the evidence in the case that Mary Waters did not read over the contents of the alleged will prior to the time of the execution thereof, and that the same was not read over to her by any other person or persons prior to the execution thereof, or that she was not at any time in
formed of any provision therein contained, or of the entire contents of said will, or that by reason of the fraud or undue influence of others she did not know the contents of any provision therein, or of the entire will, or if you further believe from the evidence that her mental condition was such that she could not intelligently understand the will at the time she executed it, you should find that the alleged will in question is not the will of Mary Waters, deceased, and you should find the issues for the complainants." So far as this instruction was predicated on the idea that the testatrix, Mrs. Waters, did not know the contents of the will, which she executed, and had not been informed of its provisions, it is not based upon any evidence in the record. The will was signed by the testatrix at about 12 o'clock on August 7, 1901. Somewhere about 10 o'clock on that morning Emma Waters and Mrs. Stockberger were present with their mother at her home, when Mrs. McGilligan called. Emma asked Mrs. McGilligan who lived in the neighborhood, if her husband, W. K. McGilligan, a justice of the peace and notary, was at home, and, upon her answering in the affirmative, she was asked to send him over because Mrs. Waters wanted to see him. Waters wanted to see him. McGilligan came over to the house, and the will was ready for execution at about 12 o'clock. The fair inference from all the evidence is that it was drawn there in the house by McGilligan between 10 and 12 o'clock on that morning, but, as McGilligan died before the hearing of this cause, it is impossible to know just what was the fact about the matter. The mere fact that Emma told the wife of the notary to send her husband over does not indicate that she had anything to do with dictating the terms of the will. On the contrary, the evidence shows that, when the will was signed, nobody was present in the room with Mrs. Waters except McGilligan, who drew the will, and the two witnesses who subscribed it, Byrnes and Neil. Patrick Byrnes, father of Grant Byrnes, named as executor, is .the only witness who says anything about the reading of the will to the testatrix, and he
"I don't know of my own knowledge whether or not the will was read over in that room [the room in which the testatrix was]. I was in another room." This is no evidence to the effect that the will was not read to the testatrix. Patrick Byrnes says that he first went into the room where Mrs. Waters was lying, and spoke to her about her health, and she said she was very poorly, and he further says: "I came out of the room pretty soon after that. The will was signed in her room. I was in another room when the will was signed, and the squire, the two men who signed the will, and Mrs. Waters are all whom I know were there when the will was signed. When I went into the house, Mr. McGilligan was in the next room, in the parlor where he had his papers. I do not remember whether the will was read at any
time in Mrs. Waters' presence." John Neil, one of the subscribing witnesses, says: "I was at Mrs. Water's residence the day the will was drawn. We walked into the room where she lay. She lay west of the door in the bed with her head to the south. I walked to the foot of the bed and faced her. Mr. McGilligan and Mr. Byrnes went into the room with me and were there with me. Mr. McGilligan said it was necessary for her to declare to these gentlemen that this was her last will and testament. Mrs. Mary Waters sat up in bed and said: 'Gentlemen, this is my last and only will.' Mr. William McGilligan then took the will, and walked to her bed, and put the pen in her hand, and took her hand in his, and made the marks she made on the paper. I don't know what the marks were nor what the signature he made was with her hand in his. He then took the paper, laid it on the stand at the side of the bed, east of where she was lying. Mr. Byrnes and I signed the will. She asked me how my family was, and told Mr. Byrnes she was sorry she was keeping him from his work. That was all she said while we were in the room, and we walked out. Physically she seemed weak, but was able to raise herself up without assistance, and sit up in bed."
In view of this evidence, the presumption is that she knew the contents of her will. "The law, in the absence of all evidence, will presume that a person, who executes a will or other instrument, does so with knowledge of its contents; but this is a presumption which will readily yield to evidence tending to show that such was not the fact." Purdy v. Hall, 134 Ill. 298, 25 N. E. 645; Keithley v. Stafford, 126 Ill. 507, 18 N. E. 740. Here, the testatrix not only executed the will, but showed that she understood the act she was engaged in by stating to those present that the instrument before her was her last and only will, and also indicated that she was in good mental condition by asking one of the subscribing witnesses as to the health of his family, and expressing regret that she was keeping the other from his work by requiring him to act as a witness to her will. Certainly, here, under the proof thus stated, the presumption is that she knew the contents of the will, and there is no evidence tending to overcome that presumption, or to show that she did not have knowledge of the contents of the will. Instruction numbered 9, given for the contestants, was calculated to create in the minds of the jury the impression that the testatrix was ignorant of the contents of the will which she signed, and, as there was no evidence upon which to base any such instruction, it should not have been given.
Sixth. In addition to what has been said upon this branch of the case, it is to be observed that there was no allegation in the bill, which authorized the introduction of any proof to the effect that the testatrix did not know the contents of the will, and
did not read it over, or that the same was not read over to her by any other person prior to its execution. The only charges in the bill are those of unsound mind and memory, and undue influence. It is nowhere. charged or alleged therein that Mrs. Waters did not know the contents of the will when she signed it, or that she did not read it, or that no other person read it to her. The appellees cannot, in such a case as this, any more than in any other equity case, be allowed to state one case in their bill and prove another case, or have the jury instructed that they can find on another case. Where a bill in chancery is filed for the purpose of setting aside the probate of a will, the complainant in such case will be allowed to impeach the prima facie case, made in favor of the validity of the will, only upon the particular grounds that are alleged in the bill. Purdy v. Hall, 134 Ill. 298, 25 N. E. 645; Carmichael v. Reed, 45 Ill. 108; Flinn v. Owen, 58 Ill. 111. In Swearingen v. Inman, 198 Ill. 255, 65 N. E. 80, upon this very subject it was said: "It is insisted that there was ground for invalidating the will in the fact that the testatrix did not know its contents when she signed it. Complainants could not have prevailed on that ground if it had been proved, because it was not alleged in the bill. They would not be allowed to have the will set aside upon grounds not alleged, or to state one case in their bill and prove another. The claim that the testatrix did not know how she disposed of her property is neither the same as, nor consistent with, the averment that she was induced to make a particular disposition of her estate by the undue influence of her husband." The language thus used is precisely applicable to the situation in the case at bar. Consequently, the instruction was erroneous for this additional reason, besides the fact that it was not based upon any evidence in the case.
grantors were in fact the sole and only heirs of C.
Such defect was not cured by an affidavit made on information and belief and without personal knowledge of the facts, nor by another affidavit in which the affiant swore_to_the conclusion that certain grantors in the deed to C., Jr., were the sole and only heirs of C., deceased, without stating the facts as to who were the children of the deceased, whether or not any of them were dead, and, if so, when they died, and whether or not there were living children of the deceased children, etc. 3. ADVERSE POSSESSION HOSTILE AND EXCLUSIVE HOLDING-CLAIM OF OWNERSHIP.
Where, on objections made to an abstract of title tendered, the vendor claimed title by adverse possession, an affidavit to establish such title, which failed to show that the possession of the persons therein named, under whom the vendor claimed, was hostile or adverse, or that the same was exclusive or under a claim of ownership, was insufficient.
[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 65-76.]
4. EXCHANGE OF PROPERTY ABSTRACT OF TITLE-ADVERSE POSSESSION-PRESUMPTION.
Where a contract for the exchange of real estate required complainant to show that he had a good title to the property intended to be conveyed to defendants, within 30 days after the execution of the contract, and complainant for this purpose tendered an abstract of title which failed to show that a conveyance from certain heirs of C., a prior owner of the land, was a conveyance by all of such heirs, defendants were not bound to accept the title on the presumption that all the heirs joined in such conveyance, arising from the fact that complainant and his grantors had been in undisputed possession of the land for 53 years after the execution of such deed, as shown by the abstract. 5. SPECIFIC PERFORMANCE-TENDER OF PERFORMANCE BY PLAINTIFF.
Where, in a suit to enforce specific performance of a contract for the exchange of property, the contract required complainant to pay all the interest due to the date of the contract on a mortgage on the property to be conveyed to defendants, a payment of such interest was a prerequisite to the validity of complainant's tender of performance.
time of the transfer, the owner in fee simple of the property known as the Attica Lithia Springs Hotel, located at Attica, Ind., including about seven acres of ground, with the improvements thereon, subject only to an incumbrance of $10,000 which Jackson was to assume or guaranty, and Clark further agreed to convey to Jackson all furniture, fixtures, and other personal property in and pertaining to said hotel. The contract expressly provided that all deeds were to be passed and the negotiations to be closed within 10 days from the date of the contract, unless more time should be required by reason of defects of title, in which case 30 days from the date of the contract should be allowed for closing the transaction; that time was of the essence, and that "it is hereby further mutually agreed and understood by and between the parties hereto, and as part of the consideration of this agreement, that each party hereto is to provide for the use of the other, within 10 days from the date hereof, proper abstracts of title to the property hereby agreed by them. to be conveyed or caused to be conveyed, showing good and sufficient title to the same in the grantor herein mentioned." The contract also provides that Clark shall furnish Jackson satisfactory evidence of the title to the Attica Lithia Springs Hotel property, and that all the interest on the note of the Attica Lithia Springs Company for $10,000, which is the incumbrance above referred to, shall be paid in full by Clark to the date of the contract, thus leaving Jackson to assume the payment of the principal, only.
It seems that Clark had been conducting the hotel in question, and that upon the execution of the contract he surrendered possession thereof to Jackson and took possession of the Chicago property. Clark furnished Jackson an abstract of the title to the Attica Lithia Springs Hotel realty, but the same was
Appeal from Circuit Court, Cook County; rejected as failing to show such title as the Thos. L. Windes, Judge.
Bill by Leonard J. Clark against Jefferson Jackson and others for specific performance. From a decree in favor of defendants, complainant appeals. Affirmed.
Rosenthal, Kurz & Hirschl, for appellant. Henry S. Shedd and Edward A. Dicker, for appellees.
SCOTT, C. J. On March 5, 1903, the appellant, Leonard J. Clark, and the appellee Jefferson Jackson, entered into a contract in writing and under seal, whereby Jackson agreed to convey to Clark a certain apartment building in Chicago, Ill., and Clark agreed to give Jackson his promissory notes for $70,000, payable in the manner stated in the contract and secured by a mortgage on the apartment building, and to transfer or cause to be transferred to Jackson 4,820 shares of the capital stock of the Attica Lithia Springs Company, a corporation of Attica, Ind.; said corporation to be, at the
contract required. After some attempts on the part of Clark to remedy the defect, which were deemed abortive by Jackson's attorney, Clark, on April 3, 1903, undertook to make a tender of performance, and a few days afterwards, on April 8th, filed a bill for specific performance against Jackson and his wife in the circuit court of Cook county. After Mrs. Jackson had answered the bill denying that the contract was binding upon her for the reason that she did not sign it, the complainant dismissed the bill as to her. Jackson answered the bill putting in issue the matters discussed in this opinion, and filed a cross-bill praying for an accounting as to the rental value of the Chicago property so far as occupied by Clark, and asking for a decree against Clark for that property, and that he be directed to vacate the premises. Clark answered the cross-bill and replications were filed. The cause was thereupon referred to the master in chancery, who reported that a decree of specific performance