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per annum, no good cause being shown to the hardship or inconsistency in so holding, for court why such interest should not be taxed the reason that the law gave that effect to in accordance with the statute in such case his bond when he entered into it and he provided. The statute referred to in the or- had voluntarily consented to be bound by the der of the court is: “All moneys, bonds, order and judgment of the court, and the furnotes, and credits which any administrator ther reason that while he was bound by the or executor may have in his possession or con- judgment against his principal, he was given, trol as property or assets of the estate, at a by the 138th section of the same statute period of two years and six months from the (Rev. St. 1845, p. 564, c. 109), which is section date of his letters testamentary or of adminis- 124 of chapter 3 now in force, a right of tration, shall bear interest, and the executor appeal from that judgment, the court held or administrator shall be charged interest that the security was concluded by the judgthereon from said period at the rate of 10 ment, and that if the order against the adper cent.” Hurd's Rev. St. 1903, c. 3, § 114, ministrator was not warranted by law the
remedy of the security was by appeal, and The order of the probate court approving that they could not question it collaterally said account, charging the administrator when sued upon the bond. This case was with interest at 10 per cent. upon the amount followed and approved in Housh v. People, belonging to said estate remaining in his 66 Ill. 178." hands after March 15, 1895, and determining It is also urged that the court erred in findthe amounts, respectively, which should be ing that there was due the attorney who reppaid to said attorney and distributees, was resented the administrator in the settlement never appealed from or in any way annulled of the estate the sum of $310, and ordering or set aside, but remained in full force and ef- the administrator to pay him that amount fect at the time this case was tried, and the within five days. The administrator was orlaw seems to be well settled in this state that dered to pay that amount out of the funds such order is binding upon the administrator of the estate in his hands, and that order did and the sureties upon his bond in this suit un- not increase the burden of the administrator less it is impeached for fraud. Ralston v. or his bondsmen, as, had that amount not Wood, 15 Ill. 159, 58 Am. Dec. 601; Housh v. been ordered paid to the attorney for the esPeople, 66 Ill. 178; Frank v. People, 147 Ill.' | tate, the amount due the distributees would 105, 35 N. E. 530. There was no proof of have been by that amount increased. The fraud, and the most that is contended for judgment of the probate court of Cook counhere is that the probate court erred in char- ty approving the account of the administrator ging the administrator, in his account, with and ordering the amount in his hands to be interest on the funds of the estate which re- distributed was a final determination of the mained in his hands subsequent to March amount due by the administrator to the at15, 1895. This court has frequently held that torney and distributees of the estate, and interest for which a public officer or one ap- that judgment cannot be reviewed or set pointed by the probate court is liable is a aside in a suit at law on the administrator's proper charge against his bondsmen. Stern bond except the finding of that court be imv. People, 102 Ill. 540; Cassady v. Trustees peached for fraud, and the trial court did of Schools, 105 Ill. 560; Hughes v. People, not err in peremptorily instructing the jury 111 Ill. 457; Winslow v. People, 117 Ill. to return a verdict in favor of the plaintiff 152, 7 N. E. 135. In the Frank Case, 147 for the amounts found due by that order of Ill., on page 111, 35 N. E. 532, in commenting the probate court from John G. Brown, adon the construction of section 115 adopted in ministrator, to said attorney and distributees. Ralston v. Wood and subsequent cases, it It is lastỉy contended that the court erred was said: “'If we are to give any force to in declining to grant a new trial on the language, this statute certainly makes that ground of newly discovered evidence. It aporder as conclusive against the security as pears from certain affidavits found in the against the administrator himself. That record that a few days after the trial of this judgment or order is made evidence of a case in the circuit court John G. Brown was devastavit, if not complied with, and arrested upon a warrant issued by a justice titles the person in whose favor it is made, to of the peace in Cook county for a violation recover upon the bond against both principal of the statute in failing to turn over and and security. The suit upon the bond is a account for all funds in his hands as collateral action, founded as well upon that said administrator upon demand, and that upjudgment as upon the bond itself, and when on his preliminary examination before the the judgment is offered in evidence, like justice he testified he made said loan to any other judgment of a court of competent Hankins with the consent of his brother and jurisdiction, it cannot be inquired into by sisters, and his testimony given on that occathose affected by it, except for fraud. And sion is urged as grounds for a new trial, on after noticing the argument based upon the the theory that it was discovered subsequent supposed hardship of holding the security to the trial. The tenth plea filed by the apbound when he was not directly a party to pellant set up as a defense to the suit that the proceeding in which the judgment was Brown, after the making of the bond sued on, obtained, and showing that there was no with the advice, consent and connivance of the parties for whose use this suit was
(222 Ill. 216) brought, did fraudulently and unlawfully con
GREENE V. HITCHCOCK. vert to his own use the various sums of money
(Supreme Court of Illinois. June 14, 1906. in said declaration mentioned. John G.
Rehearing Denied October 11, 1906.) Brown was on the witness stand, and testified
1. WILLS—PROBATE-ADMISSIBILITY OF Evifor and on behalf of the plaintiff, and was DENCE. cross-examined by the attorneys for the de- In proceedings for the probate of a will, fendant. The Appellate Court, in disposing
the testimony of one of the attesting witnesses
that he would not have signed it, except in the of the contention of the appellant that the
presence of the testatrix and of the other wit. trial court erred in declining to grant a new ness, was not admissible. trial that he might on that trial avail him- 2. SAME. self of Brown's testimony, used the following In proceedings for the probate of a will,
testimony of an attesting witness, as to whethlanguage, which we think a conclusive an
er in his judgment the things mentioned in swer to the contention of the appellant. That the attestation clause of the will were in court said: “A discovery, after the trial, that every respect complied with, was inadmissible. a witness knew a material fact and did not 3. SAME-PROOF OF EXECUTION-STATUTORY
PROVISION. disclose it furnishes no excuse if he was not
Under Hurd's Rev. St. 1905, c. 148, § 2, questioned. If the consequence of failure
prescribing the requisites to the execution of specifically to interrogate the witness be the a will, and providing that testimony of two concealment of material evidence it indicates
of the attesting witnesses that they were present
and saw the testator sign the will in their such lack of diligence as will deprive the per
presence, or acknowledged it to be his act and son so failing, of a claim for a new trial on deed, and that they believed the testator to be the ground that such evidence was after- of sound mind and memory, shall be sufficient
proof of the execution of the will to admit it wards newly discovered. Toledo, Wabash &
to record, the only evidence that can be conWestern Railway Co. v. Seitz, 53 lll. 452; Fan- sidered in the circuit court on appeal from an ning v. McCraney, Morris (Iowa) 398; Hous- order admitting the will to probate is the ton v. Smith, 2 Smedes & M. (Miss.) 597; 3
testimony of the attesting witnesses, and where
one of them on such an appeal fails to testify Graham & Waterman on New Trials, 1029
that he was present and saw the testatrix sign 1095. In this case the newly discovered evi- the will, nor that she acknowledged it to be dence relied on, putting it most strongly for her act and deed, the will cannot be admitted
to probate. the appellant, is the statement of John G. Brown that the beneficiaries of the bond con- Appeal from Circuit Court, Peoria Counsented to the loan made by him to Hankins. ty; N. E. Worthington, Judge. The allegation of 'consent, advice, and conniv- Proceedings by Burton A. Hitchcock for the ance of these beneficiaries in the misappropri- | probate of the will of Phebe Rose. From a ation of the funds was explicitly made by the judgment admitting the will to probate, appellant in pleas filed two months before the Langford R. Greene appeals. Reversed and trial. This certainly showed at least that remanded, his attention had been directed to the possi
Winslow Evans and Judson Starr, for apbility of such a defense. Knowledge as to
pellant. Sheen, Miller & David, for appellee. the facts must have been in the possession of John G. Brown himself and all the benefi
SCOTT, C. J. On February 25, 1905, the ciaries. There is nothing to show that the
probate court of Peoria county admitted to latter were interrogated or interviewed con
probate a written instrument as and for the cerning it. John G. Brown was a witness at
last will and testament of Phebe Rose, dethe trial. He was cross-examined by appel
ceased. Langford R. Greene, a brother and lant's counsel, and asked, without objection, one of the heirs at law of said deceased, apif he was short all the money which should | pealed to the circuit court of Peoria county, have been paid to the beneficiaries; if he where an order was also entered admitting turned it over to anybody that was entitled said will to probate. This appeal is proseto it; to whom he turned it over, and if the
cuted by Greene from the order of the circuit court told him to so turn it over; and he an- court. swered that he was so short, that he had let Phebe Rose departed this life at Dunlap, Hankins have the money, and that he did not
in Peoria county, on September 14, 1904. know whether Hankins was entitled to it or
The instrument in question is dated May 5, not. But he was not asked whether this was 1888. The names of Norman H. Silliman with the consent of the distributees. This
and Emily Silliman are signed to an attestaplainly was lack of diligence fatal to a right
tion clause, which recites that the said into a new trial, on the ground that five days strument was "signed, sealed, published and afterwards Brown testified, to defend him- declared by Phebe Rose as and for her last self in a criminal prosecution, that such con- will and testament in the presence of us, who, sent was given.”
in the presence of the said testator and at Finding no reversible error in the record, her request and in the presence of each other, the judgment of the Appellate Court will have signed our names as witnesses,” etc. be affirmed.
This attestation clause immediately follows Judgment affirmed.
the signature of Phebe Rose to the will.
Norman H. Silliman and Emily Silliman were residents of Boulder, Colo., at the time the proceedings were had in the probate court and circuit court to probate this will. On February 7, 1905, being prior to the hearing in the probate court, their depositions were taken by the proponent upon written interrogatories with the will attached.
The testimony of Norman H. Silliman, as contained in his first deposition, is to the effect that he signed his name to the attestation clause as a witness to the will; that it is his impression that he did this at the request of Phebe Rose, but does not distinctly remember; that Phebe Rose was present, but he cannot remember any one else being present; that he cannot now remember whether Phebe Rose saw him sign his name, nor whether he (the witness) saw Phebe Rose sign her name to the instrument; that he cannot say who were present when Phebe Rose signed her name, as he does not know; that her mind and memory were excellent during all the time he knew her. This is the extent of the testimony given by this witness in the deposition above referred to. On November 6, 1905, after the appeal had been taken to the circuit court, the depositions of the two subscribing witnesses were retaken by proponent, upon oral interrogatories, under a dedimus potestatem issued out of the circuit court. Appellant did not attend the taking of these depositions. At the taking of his second deposition Norman H. Silliman testified that he was acquainted with the handwriting of Phebe Rose; that the instrument in question was in her handwriting, as was also her name at the end of the instrument; that the signatures at the end of the attestation clause are those of himself and wife, Emily Silliman; that he does not remember the occasion of signing his name to the instrument; that he collected notes and rents for Mrs. Rose between 1880 and 1885 and thereafter prepared a deed for her; that he was in the grain and lumber business at Dunlap; that he advised Mrs. Rose in business affairs up to the time he left Dunlap, in 1894; that he had some knowledge of the requirements of the law about signing and witnessing wills before he left Dunlap; that he wrote a number of wills for other persons between 1885 and 1890, and at times witnessed wills; that he would not have signed the instrument in question except at the request of Phebe Rose. The remainder of the deposition, except interrogatory 42, which inquires why the witness' signature appears heavier than the others, and why it appears to be in a different ink, is as follows: "Q. 41. You may state whether or not you would have signed the same as one of the witnesses thereto except in the presence of Mrs. Phebe Rose? A. I would not; nor would I have signed it except in the presence of the other witness, I was very careful about such things. I knew she would either have to sign the will in my presence or ac
knowledge it to be her signature." "Q. 43. From your knowledge concerning the making and attesting of wills under the laws of Illinois, and from your methods of doing business with reference to them, what is your best judgment now whether or not the things mentioned in the attestation clause of the same instrument testified by you were, as a matter of fact, in every respect complied with? A. They were, to the best of my knowledge and belief."
Before the trial in the circuit court appellant made a motion, in writing, to suppress the depositions taken on November 6, 1905, and to suppress certain interrogatories and answers therein contained, among which were interrogatories 41 and 43 propounded to Norman H. Silliman and the answers thereto, which are above set out. The circuit court denied this motion. At the hearing in the circuit court the proponent offered in evidence the depositions of Norman H. Silliman and Emily Silliman taken on February 7, 1905, which had been used in the probate court, and also offered the depositions of the same persons taken on November 6, 1905. These depositions were admitted in evidence by the court over the objection of appellant, and constituted all the evidence heard by the circuit court on the trial of this cause.
The testimony of Emily Silliman complies with all the requirements of the statute. The principal contention of appellant is that the testimony of Norman H. Silliman does not meet the requirements of the statute in regard to the proof necessary to establish a will upon appeal from an order of the county court admitting it to probate, where two of the subscribing witnesses are living. In this connection it is also urged by appellant that certain interrogatories, and answers thereto, contained in the second deposition of Norman H. Silliman, which were specifically objected to by appellant before the trial, should have been suppressed. Interrogatories 41 and 43, and the answers thereto, were among those to which objection was made. Interrogatory 41 inquires of the witness whether or not he would have signed the instrument in question, as a witness thereto, except in the presence of Phebe Rose. It is evident that this question was improper, because it does not call for any statement of fact relative to the execution or attestation of the instrument in question. To ask a witness whether or not he would have done a certain thing except in a certain manner is manifestly not equivalent to inquiring of the witness whether he did do the act in that manner. Neither is the answer of the witness that he would not have signed the instrument except in the presence of Phebe Rose, and that he knew that Phebe Rose would either have to sign the will in the presence of the witness or acknowledge it to be her signature, equivalent to stating that his signature was attached to the instrument in the presence of Phebe Rose, and that she either signed or acknowledged it to be her act and deed in the presence of the witness. The fact that the witness knew that Phebe Rose would have to sign the will in his presence or acknowledge it to be her signature is no proof whatever that either was in fact done. The statute requires the witness to swear that certain things were done, not that the witness knew that certain things were required by law. Interrogatory 43 inquires of the witness whether all the things mentioned in the attestation clause hereinabove set out were done. Inasmuch as the attestation clause recited the doing of those things which are required by the statute in order to make a valid will, it would seem that the question could be no more objectionable had the attention of the witness been directed to section 2 of the statute on wills, and the question asked whether that section had been fully complied with in the execution and attestation of the instrument. Whether or not the things mentioned in the attestation clause, being those required by the statute, had been complied with, was for the court to decide from the testimony of the two subscribing witnesses, and it was improper to ask the witness to give his conclusion in regard thereto. The motion to suppress the forty-first and forty-third interrogatories, and the answers thereto, contained in the deposition of Norman H. Silliman, should have been sustained.
It only remains to consider whether the other evidence given by this witness meets the requirements of the statute. Section 2 of chapter 148, Hurd's Rev. St. 1905, provides that all wills "shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be suf
ficient proof of the execution of said will, testament or codicil, to admit the same to record.” It has been frequently decided by this court that, upon an appeal to the circuit court from an rder of the county court admitting a will to probate, the only evidence that can be considered is that of the subscribing witnesses to the will. Andrews v. Black, 43 Ill. 256; Weld v. Sweeney, 85 Ill. 50; In the Matter of Noble, 124 Ill. 266, 15 N. E. 850; Hobart v. Hobart, 154 Ill. 610, 39 N. E. 581, 45 Am. St. Rep. 151. This court has also held that upon such appeal the circuit court is governed by the provisions of section 2, supra, as regards the evidence necessary to entitle a will to be probated. Walker v. Walker, 2 Scam. 291. This section requires that two of the attesting witnesses shall declare, on oath or affirmation, either that they were present and saw the testatrix sign the instrument, or that the testatrix acknowledged the same to be her act and deed, before the instrument can be admitted to probate. On an appeal by proponents from an order of probate court denying probate a different rule prevails. Norman H. Silliman does not testify, in either of his depositions, that he was present and saw Phebe Rose sign the instrument in question, nor does he testify that she acknowledged it to be her act and deed. He does not testify to these matters directly or indirectly, unless it can be said that his answers to interrogatories 41 and 43 in his second deposition indirectly establish that the instrument was either signed by Phebe Rose in the presence of the witness or she acknowledged the instrument to be her act and deed. As those interrogatories and answers should have been suppressed, they cannot be invoked to aid the remainder of the testimony of this witness.
The evidence of Norman H. Silliman, for the reasons above stated, does not meet the requirements of the statute in regard to the proof required in cases of this character, and neither the recitals in the attestation clause nor the testimony of the other subscribing witness can supply the deficiency in his testimony which we have herein pointed out.
The order of the circuit court will be reversed, and the cause will be remanded to that court.
Reversed and remanded.
(222 Ill. 303)
trial was overruled, defendant was sentenced FLYNN V. PEOPLE.
upon the verdict, and prosecutes this writ of (Supreme Court of Illinois. June 14, 1906. error. Rehearing Denied October 10, 1906.)
John Flynn, at about 1 o'clock in the morn1. HOMIOIDE-SELF-DEFENSE-EVIDENCE-IN- ing of Sunday, January 22, 1905, was working STRUCTIONS.
for the Chicago City Railway Company on Where on a trial for homicide there was no evidence of a struggle between accused and
Halsted street, in the city of Chicago, redecedent prior to the killing, and the proof
moving frozen ice and snow from the gutter showed that decedent struck accused with a near the curb with a pick. Thomas Jordan
. stone and threatened to kill him, and thrust and John Brannan were working with him. his right-hand in his overcoat pocket in a threatening manner, and that accused staggered from
Other men in the employ of the same comthe blow, and when he straightezed up
pany and engaged in the same work were he struck' decedent with a pick handle, killing working a short distance away. The night him, an instruction that an acquittal would not
was dark, and the other men were not in a be justified on the ground of self-defense unless it appeared that accused believed at the time
position to see Flynn and the two men workof striking the blow that he was in danger of ing with him. While Flynn was so at work, losing his life, and that it must appear that the Peter Warren, the deceased, Frank Langlois, person assaulted by accused was the assailant
William Miller, and a man named Duchelle, and that accused had really and in good faith endeavored to decline any further struggle be
passed along the street. These men had been fore the assault was made by him, was erro- spending the last few hours in the saloons, neous.
and the evidence indicates that they were 2. CRIMINAL LAW - PRESUMPTION OF INNO- all intoxicated. Miller who testified on the CENCE-INSTRUCTIONS. An instruction that it is the duty of the
part of the prosecution, recites the fact that jury to presume that accused is not guilty and the members of the party of four had taken give him the benefit of the presumption through- a number of drinks, and says that he was out the trial "until evidence shall have been in
not perfectly sober; that he was drinking a troduced which * * * is sufficient to establish the guilt of defendant beyond all rea
little was just feeling good-had a few beers sonable doubt, and if such evidence be not in- in him; that he had knowledge of what he troduced, then defendant should have the bene- was doing, and that he thought that a man fit of such presumption throughout all stages
who is intoxicated don't know what he is of the trial" is erroneous as authorizing the jury, if they deem the evidence establishes guilt
doing. As to Warren's condition, Miller says: beyond a reasonable doubt, to consider the evi- “He was sober. He was not too sober; he dence offered by defendant without any regard was what I call drunk. He was not too to the presumption of innocence,
sober or too drunk.” As Warren and his as3. SAME-IMPROPER ARGUMENT OF COUNSELREVIEW-RECORD.
sociates passed the place where Flynn was at An attorney who has in his argument to work, Langlois and Duchelle were walking the jury in a criminal case transgressed the rules ahead. Warren and Miller were walking toof law by making improper remarks will not be permitted to justify his course by saying gether about 25 feet behind the other two. that he was answering improper statements
Miller testifies that as they reached the place made by his opponent, unless such statements where Flynn was at work, Warren turned are preserved in the record so that the court
and stepped towards the gutter, and there. on appeal may determine whether they warrant the reply made.
upon Flynn, without anything having been
said by him to Warren or by Warren to him, Error to Criminal Court, Cook County;
ran up and struck Warren on the head with George A. Dupuy, Judge.
a pick handle. Warren, who was then 22 John Flynn was convicted of manslaughter,
years of age, was removed to the People's and he brings error. Reversed and re
Hospital, where he died on January 29th from manded.
a skull fracture caused by the blow inflicted Daniel Donaboe and James Hartnett, for by Flynn. Langlois, who was walking ahead, plaintiff in error. W. H. Stead, Atty. Gen., says that as he went past Flynn and his coJohn J. Healy, State's Atty., and Frank laborers he made some joking remarks to Crowe, for the People,
them. The next thing he noticed he heard
"some one holler," and walked back and found SCOTT, C. J. John Flynn was indicted by that Warren had been struck, and assisted in the grand jury of Cook county in January, carrying him away. Duchelle did not testi1905, for the murder of Peter J. Warren, char- fy. Jordan testified on behalf of the proseged to have been committed on January 22, cution, and says that as Warren passed where 1905. He interposed a plea of not guilty and he was working with Flynn, Warren said:
contended that the killing was done in self- “Pick up, you sons of bitches, pick up,” and
defense. Upon a trial in the criminal court the jury returned a verdict in the following words: “We, the jury, find the defendant, John Flynn, guilty of manslaughter in manner and form as charged in the indictment, and vre fix his punishment at imprisonment in the penitentiary, and we recommend him to the mercy of the court." A motion for a new
Flynn told Warren to go ahead and mind bis own business; that nobody was interfering with him, and that one of the two who had preceded Warren along the sidewalk called him to "leave those fellows alone—they are all right"; that Warren then walked away about 10 feet, turned and came back, and as he did so applied to Flynn an epithet too foul