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course, the law is he may make such disposi- old, but she was feeble and sick, suffering tion of his property as he sees fit, and he may with some kind of neuralgia in her shoulders. bestow his bounty where he wishes, either In order to sustain the allegation of want of upon his heirs or others. While this is mental testamentary capacity something more undoubtedly the law, the common mind is dis- must be shown than mere physical suffering, inclined to recognize it, and jurors will too disease, and old age. Woodman v. Illinois frequently seize upon any pretext for find- Trust & Savings Bank (Ill.) 71 N. E. 1099; ing a verdict in accordance with what they Wallace v. Whitman, 201 Ill. 59, 66 N. E. 311; regard as natural justice.” This language Schmidt v. Schmidt, 201 Ill. 191, 66 N. E. was quoted with approval in the recent case 371; Freeman v. Easly, supra. Proof, that of Nieman v. Schnitker, 181 Ill. 400, 55 N. E. the testatrix here was suffering otherwise 151, and is precisely applicable to the condi- than from disease and old age is wanting. tion of affairs in the case at bar. The fact To offset the proof introduced by the prothat there is inequality in the distribution ponents of the will to the effect that the of the property of a testator or testatrix can- testatrix was of sound mind and memory, not of itself have the effect of invalidating the the contestants introduced a large nụmber the will. Graham v. Deuterman, 206 Ill. of witnesses; but an examination of the evi378, 69 N. E. 237. Moreover, where the dence of these witnesses tends in no degree testator or testatrix assigns a substantial and to sustain the charge of a want of sound sufficient reason for such inequality, that rea- mind and memory. None of such witnesses son must be accepted as true when there is swear that the mind of the testatrix was unno evidence in the record tending to disprove sound. Lizzie Kurtz, the first witness of it. Graham V. Deuterman, supra. In the the contestants, said: "I saw her in 1901. I case at bar, declarations of the deceased, don't know what her mental condition was at Mrs. Waters, were proven to the effect that that time with regard to soundness of mind. she had already sufficiently helped her son, * * * I think she was about as well as Oliver, and her daughter Clara; nor was anybody would be of her age.” Mary Kurtz, there any evidence, tending to disprove this the second witness of the contestants, says: reason for giving them nothing more than $5 “I wasn't with her enough to form any opinapiece by her will.

ion as to the soundness or unsoundness of The appellants introduced in evidence, upon her mind and memory.” Nora Geiger, the the trial below, the certificate of the oaths third witness of the contestants, says: “In of the subscribing witnesses to the will. That

my opinion she was sound, but I think the certificate was prima facie proof of the validi- woman was suffering from pain, so that at ty of the will in this proceeding; attacking times she hardly realized where she was or the probate thereof. Consequently, the bur- what she was doing. * *

* I do not think den of proof was upon the appellees, complain- she would be capable of transacting business ants below, as the contestants of the will, to at any time. Transacting business is work in substantiate both charges; that is to say, the

one way. It is occupying one's time. I said charge that the testatrix was not of sound I thought she was incapable of transacting mind and memory when she executed the business, and I do not think she did transact will, and that she was under the undue in- any business of her own. I think she was fluence of her two daughters above named physically unable to work; that is what I at that time. Swearingen v. Inman, 198 mean; that she was physically unable to Ill. 255, 65 N. E. 80; Johnson V. Johnson, work.” One witness for the contestants says: 187 ill. 86, 58 N. E. 237; Webster v. Yorty, "I don't think she was capable of doing busi194 Ill. 408, 62 N. E. 907; Michael v. Mar- ness successfully.” Another witness says: shall, 201 Ill. 70, 66 N. E. 273. It was "From what I saw of Mrs. Waters I was able incumbent upon the contestants to overcome to form an opinion as to whether she was the prima facie case, thus made through the able to transact the ordinary business of life. introduction of the certificate, by a prepon- I thought she was too weak in body. Her derance of the evidence. This they failed mind was as rational as we could expect in to do.

a person of her age, who had been sick. In addition to the certificate in question, * * She would frequently

frequently commence the proponents, appellants here, produced saying something, and then change it a little, 14 witnesses, including two physicians, who and turn off into something else, and sometreated the testatrix in the last years of her times refer to it again as if she had not been life, a banker who did business with her, a talking about it; but nothing that I could call shopkeeper or clerk with whom she traded, insane or out of her mind, only a little people who boarded at her home, neighbors absent-mindedness.” Many of the witnesses and others closely associated with her; all of the contestants expressed no opinion at of whom testified that, at or about the all upon the question of her soundness of time when her will was made, her mind and mind. No one of the witnesses of the conmemory were sound. Some of them swore testants, so far as we have been able to that she was an unusually bright and smart ascertain from the record, swears that the woman. It is true that, during the last testatrix was incapable of understanding the year or two of her life, she was not only business, in which she was engaged at the

*

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time when she executed her will. Some of in the presence of their mother are proven, them gave it as their opinion that she was and the only acts sought to be proven are not competent to transact the ordinary busi- that, sometimes when Mrs. Waters was talkness of life, but an examination of their ing with one of her neighbors about her distestimony will show that they based such position of her property, and one of her opinion wholly upon her physical condition daughters, Emma or Lydia, would come into as to age and sickness. Competency, how- the room, she would cease her conversation. ever, to transact the ordinary business of life This act alone, however, as it is unaccomis not the test by which testamentary capaci- panied by any other facts or circumstances ty is determined. Any one, having the men- looking in that direction, was insufficient to tal ability to transact intelligently the ordi- show that the mind of the mother was influnary business affairs of life, is capable of enced by fear of her daughters, or that she making a vaild will, but the converse of that was imposed upon in any way by them. proposition is not always true. This court Third. We are of the opinion that the trial has decided that testamentary capacity ex- court erred in admitting evidence over the ists, if the testator, at the time of making objections of the proponents of the will, and his will, had such mind and memory as ena- in the giving and refusal of instructions. bled him to understand the business in which Two women, who testified in favor of the he was then engaged, and the effect of the contestants, said that, on one or two occadisposition made by him of his property. sions, Mrs. Waters, while engaged in conWaugh v. Moan, 200 Ill. 298, 65 N. E. 713; versation with them, made remarks to the Campbell v. Campbell, 130 Ill. 466, 22 N. E. effect “that she wanted to deal equally with 620, 6 L. R. A. 167; England v. Fawbush, 204 all of her family at one time,” and substanIll. 384, 63 N. E. 526, and cases cited. The tially that she was in favor of making another evidence of the witnesses of the contestants disposition of her property than that which is merely to the effect that Mrs. Waters was she actually made in her will. Counsel for too feeble from sickness to devote her atten- the proponents of the will objected to the tion to her business affairs, and in no sense admission of this testimony, and moved that goes to the extent of establishing the propo

it be stricken out. Their objection was oversition that she was not of sufficiently sound ruled, and their motion was denied. We are mind and memory to understand what she of the opinion that this was error. The gen. was doing when she made her will, and to eral rule is that statements made by the tesunderstand the effect of the disposition, which tator, either before or after the execution of she was thereby making of her property. a contested will, which are in conflict with

Second. Nor are we able to see that the the provisions thereof, do not invalidate or evidence tends to support the other charge modify such will in any manner, and that in the bill that she was under the undue in- parties, making wills, cannot invalidate them fluence of her daughters Emma and Lydia. | by their own parol declarations, made preHer unmarried daughters, Emma and Carrie, viously or subsequently. Dickie v. Carter, 42 lived with her and took care of her. All the Ill. 376; Taylor v. Pegram, 151 Ill. 106, 37 evidence tends to show that she regarded all N. E. 837; Kaenders v. Montague, 180 Ill. 300, her children with kindness and affection, and 54 N. E. 321; Harp v. Parr, supra; Hill v. only cut off two of them because she thought Bahrns, 158 Ill. 314, 41 N. E. 912; England they had received enough of her bounty al- v. Fawbush, 204 Ill. 384, 68 N. E. 526. The ready. Mrs. Stockberger, though not living declarations of the testatrix, Mrs. Waters, with her mother, lived only a few miles away,

thus sought to be proved, were declarations and was attentive and kind in her treatment in conflict with the provisions of her will, in her frequent visits to her mother. "The which made an unequal distribution of her presumption also is in favor of the validity property, and therefore they were not compeof the will, when the person, who is provided tent testimony, and should have been exfor therein, is one with whom the testator cluded. It is true that, where a will is had maintained intimate and affectionate re- charged to have been executed through undue lations during his life.” Harp v. Parr, 163 influence, the declarations of the testator, Ill. 459, 48 N. E. 113. Here, the relations made before its execution, are admissible by with the three children, to whom the most of way of rebuttal to show his intention as to her property was given by the will, were the disposition of his property, upon the most intimate and affectionate.

It was

ground that a will, made in conformity with matural, therefore, that she should provide such declarations, is more likely to have been for them in preference to the other children, executed without undue influence than if its whose relations had not been so intimate terms are contrary to such declarations. But and affectionate, and one of whom had lived the declarations thus admissible are those for years at a long distance from her. There which are in harmony with the provisions of is not a particle of evidence in this record, the will actually made, and not those which so far as we have been able to discover, to are opposed to such provisions. As was show that Emma Waters and Lydia Stock- said in the per curiam opinion in Kaenders berger attempted to exercise, or did exercise, v. Montague, supra: "The general rule, recany undue influence over their mother. No ognized by this court, is that prior declaradeclarations on the part of these two children tions of a testator are not admissible to prove undue influence. That rule, however, is ap- formed of any provision therein contaived, plicable only in cases where the declarations or of the entire contents of said will, or that and statements are offered for the purpose of by reason of the fraud or undue influence varying or controlling the operation of the of others she did not know the contents of contested will, and not to those in which the any provision therein, or of the entire will, will is in harmony with the declared inten- or if you further believe from the evidence tions of the testator.” The declarations and that her mental condition was such that statements here offered had a tendency to she could not intelligently understand the vary or control the operation of the will of will at the time she executed it, you should Mrs. Waters, and were not in harmony with find that the alleged wil in question is not her intentions as declared in her will.

the will of Mary Waters, deceased, and you Fourth. The proponents of the will upon should find the issues for the complainants." the trial below asked the court to instruct So far as this instruction was predicated on the jury that "any degree of influence over the idea that the testatrix, Mrs. Waters, did another, acquired by kindness and attention,

not know the contents of the will, which can never constitute undue influence within she executed, and had not been informed of the meaning of the law, and although the its provisions, it is not based upon any evijury may believe from the evidence that the dence in the record. The will was signed deceased, in making her will, was influenced by the testatrix at about 12 o'clock on August by any of the said defendants, still, if the

7, 1901. Somewhere about 10 o'clock on that jury further believe from the evidence that morning Emma Waters and Mrs. Stockberger the influence, which was so exerted, was were present with their mother at her home, only such as was gained over the deceased by when Mrs. McGilligan called. Emma asked kindness and friendly attention to her, then

Mrs. McGilligan who lived in the neighborsuch influence cannot be regarded in law as

hood, if her husband, W. K. McGilligan, a undue influence," etc. The refusal of this justice of the peace and notary, was at home, instruction was error, and the idea, set forth and, upon her answering in the affirmative, in it, is not embodied in any of the other in

she was asked to send him over because Mrs. structions given for either party. This court

Waters wanted to see him. McGilligan came has held in a number of cases that influence over to the house, and the will was ready for secured through affection is not wrongful.

execution at about 12 o'clock. The fair inThompson v. Bennett, 194 Ill. 57, 62 N. E. ference from all the evidence is that it was 321; Nicewander v. Nicewander, 151 Ill. 156, drawn there in the house by McGilligan be37 N. E. 698; Francis v. Wilkinson, 117 Ill.

tween 10 and 12 o'clock on that morning, but, 370, 35 N. E. 150; Burt v. Quisenberry, 132

as McGilligan died before the hearing of Ill. 385, 24 N. E. 622. In Burt v. Quisenberry,

this cause, it is impossible to know just what 132 Ill. 399, 24 N. E. 624, we said: “Xo rule

was the fact about the matter. The mere of law requires the parent to distribute his

fact that Emma told the wife of the notary property among his children equally, or upon to send her husband over does not indicate any ratable basis of relative merit. He may

that she had anything to do with dictating prefer one and cut off another, with or with

the terms of the will. On the contrary, the out a reason, or he may cut off all his children evidence shows that, when the will was signand give his property to a stranger, and the

ed, nobody was present in the room with only inquiry admissible is: Was he, when Mrs. Waters except McGilligan, who drew the doing so, of sound mind and free of the un

will, and the two witnesses who subscribed due influence of others. Undue influence it, Byrnes and Neil. Patrick Byrnes, father means wrongful influence. But influence se- of Grant Byrnes, named as executor, is .the cured through affection is not wrongful, and, only witness who says anything about the therefore, although a deed be made to a

reading of the will to the testatrix, and he child at his solicitation, and because of par

says: "I don't know of my own knowledge tiality induced by affection for him, it will whether or not the will was read over in not be undue influence. * * * The influ- that room (the room in which the testatrix ence, to render the conveyance inoperative, was]. I was in another room.” This is no must be of such a nature as to deprive the

evidence to the effect that the will was not grantor of his free agency.” The principle

read to the testatrix. Patrick Byrnes says thus announced applies to wills as well as that he first went into the room where Mrs. deeds. Nicewander v. Nicewander, supra.

Waters was lying, and spoke to her about her Fifth. We think that the trial court er

health, and she said she was very poorly, red in giving the ninth instruction, which and le further says: “I came out of the was given for the contestants of the will, room pretty soon after that. The will was By that instruction the jury were told “that, signed in her room. I was in another room if they believed from the evidence in the case when the will was signed, and the squire, that Mary Waters did not read over the the two men who signed the will, and Mrs. contents of the alleged will prior to the Waters are all whom I know were there when time of the execution thereof, and that the the will was signed. When I went into the same was not read over to her by any other house, Mr. McGilligan was in the next room, in person or persons prior to the execution the parlor where he had his papers. I do not thereof, or that she was not at any time in- remember whether the will was read at any

fac

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. 615; Carmichael v. Reed, 45 Ill. 108; Flinn v. Owen, 58 Ill. 111. In Swearingen v. Inman, 199 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.

We have hereinabove disposed of all the errors assigned, and are of the opinion that the decree of the lower court, based upon the verdict of the jury to the effect that the instrument in question was not the will of Mary Waters, is erroneous. Accordingly, the decree is reversed, and the cause is remanded to that court for such further proceedings as to justice and equity may appertain.

Reversed and remanded.

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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

*

(222 Ill. 13) CLARK v. JACKSON et al. (Supreme Court of Illinois. June 14, 1906.) 1. VENDOR AND PURCHASER ABSTRACTS OF TITLE - CONVEYANCE BY HEIRS — PROOF OF HEIRSHIP.

erty contracted to be conveyed showed title in C. prior to February 18, 1850, and a quitclaim deed of that date to C., Jr., as grantee from a number of grantors bearing various names, such abstract did not show a valid title in the vendor, in the absence of proof that such

grantors were in fact the sole and only heirs time of the transfer, the owner in fee simple of C.

of the property known as the Attica Lithia 2. SAME-DEFECTS-AFFIDAVITS.

Springs Hotel, located at Attica, Ind., includSuch defect was not cured by an affidavit made on information and belief and without

ing about seven acres of ground, with the personal knowledge of the facts, nor by an- improvements thereon, subject only to an inother affidavit in which the affiant swore to the cumbrance of $10,000 which Jackson was to conclusion that certain grantors in the deed to C., Jr., were the sole and only heirs of C.,

assume or guaranty, and Clark further agreed deceased, without stating the facts as to who to convey to Jackson all furniture, fixtures, were the children of the deceased, whether or and other personal property in and pertaining not any of them were dead, and, if so, when

to said hotel. The contract expressly prothey died, and whether or not there were living children of the deceased children, etc.

vided that all deeds were to be passed and 3. ADVERSE POSSESSION — HOSTILE AND Ex- the negotiations to be closed within 10 days CLUSIVE HOLDING–CLAIM OF OWNERSHIP. from the date of the contract, unless more Where, on objections made to an abstract

time should be required by reason of defects of title tendered, the vendor claimed title by adverse possession, an affidavit to establish such

of title, in which case 30 days from the date title, which failed to show that the possession

of the contract should be allowed for closing of the persons therein named, under whom the the transaction; that time was of the essence, vendor claimed, was hostile or adverse, or that

and that "it is hereby further mutually agreed the same was exclusive or under a claim of ownership, was insufficient.

and understood by and between the parties [Ed. Note.-For cases in point, see vol. 1,

hereto, and as part of the consideration of Cent. Dig. Adverse Possession, $$ 65–76.] this agreement, that each party hereto is to 4. EXCHANGE OF PROPERTY — ABSTRACT OF provide for the use of the other, within 10 TITLE-ADVERSE POSSESSION_PRESUMPTION. days from the date hereof, proper abstracts

Where a contract for the exchange of real estate required complainant to show that he had

of title to the property hereby agreed by them a good title to the property intended to be con

to be conveyed or caused to be conveyed, veyed to defendants, within 30 days after the showing good and sufficient title to the same execution of the contract, and complainant for

in the grantor herein mentioned." The conthis purpose tendered an abstract of title which failed to show that a conveyance from certain

tract also provides that Clark shall furnish heirs of C., a prior owner of the land, was a Jackson satisfactory evidence of the title to conveyance by all of such heirs, defendants

the Attica Lithia Springs Hotel property, were not bound to accept the title on the pre

and that all the interest on the note of the sumption that all the heirs joined in such conveyance, arising from the fact that complainant

Attica Lithia Springs Company for $10,000, and his grantors had been in undisputed pos- which is the incumbrance above referred to, session of the land for 53 years after the execu

shall be paid in full by Clark to the date of tion of such deed, as shown by the abstract. 5. SPECIFIC PERFORMANCE_TENDER OF PER

the contract, thus leaving Jackson to assume FORMANCE BY PLAINTIFF.

the payment of the principal, only. Where, in a suit to enforce specific per- It seems that Clark had been conducting formance of a contract for the exchange of

the hotel in question, and that upon the exe, property, the contract required complainant to pay all the interest due to the date of the con

cution of the contract he surrendered possestract on a mortgage on the property to be con- sion thereof to Jackson and took possession veyed to defendants, a payment of such interest of the Chicago property. Clark furnished was a prerequisite to the validity of complainant's tender of performance.

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.

contract required. After some attempts on Bill by Leonard J. Clark against Jefferson the part of Clark to remedy the defect, Jackson and others for specific performance. which were deemed abortive by Jackson's atFrom a decree in favor of defendants, com

torney, Clark, on April 3, 1903, undertook to plainant appeals. Affirmed.

make a tender of performance, and a few Rosenthal, Kurz & Hirschl, for appellant. days afterwards, on April 8th, filed a bill for Henry S. Shedd and Edward A. Dicker, for specific performance against Jackson and his appellees.

wife in the circuit court of Cook county.

After Mrs. Jackson had answered the bill SCOTT, C. J. On March 5, 1903, the appel- denying that the contract was binding upon lant, Leonard J. Clark, and the appellee Jef- her for the reason that she did not sign it, ferson Jackson, entered into a contract in the complainant dismissed the bill as to her. writing and under seal, whereby Jackson Jackson answered the bill putting in issue agreed to convey to Clark a certain apart- the matters discussed in this opinion, and ment building in Chicago, Ill., and Clark filed a cross-bill praying for an accounting agreed to give Jackson his promissory notes as to the rental value of the Chicago propfor $70,000, payable in the manner stated in erty so far as occupied by Clark, and asking the contract and secured by a mortgage on for a decree against Clark for that property, the apartment building, and to transfer or and that he be directed to vacate the premcause to be transferred to Jackson 4,820 ises. Clark answered the cross-bill and replishares of the capital stock of the Attica cations were filed. The cause was thereupon Lithia Springs Company, a corporation of referred to the master in chancery, who reAttica, Ind.; said corporation to be, at the ported that a decree of specific performance

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