to be the will of Annie S. Adams. The court | Ill. 228, 65 N. E. 323, 93 Am. St. Rep. 127. overruled a motion for a new trial, and en- Members and trustees of churches or charitered a decree in accordance with the ver- table institutions and societies occupy a difdict. ferent position. The connection of members with a church is purely voluntary, and they have no personal or private interest in the property of the church. Contributions of members are voluntary, and the church may appropriate its property to any proper use, and cannot impose any legal liability upon the members. As the trustees, pastor, and members do not obtain any right to property bequeathed to a church, they are competent witnesses. Greenleaf on Evidence, § 333; Warren v. Baxter, 48 Me. 193; Loring v. Park, 7 Gray (Mass.) 42; Sorg v. First German Congregation, 63 Pa. 156; Trapnall v. Burton, 24 Ark. 371. In Ferraria v. Vasconcellos, 31 Ill. 25, the court held that, under the peculiar facts of that case, the property of the church should be divided between two factions according to their numerical strength, but did not hold that it was to be divided among the individual members, or that they had any individual pecuniary interest in the property based upon the amounts contributed or any other theory. The court did not err in permitting the witnesses to testify. [1 The first question to be determined is whether the complainant had a right to file the bill. The court decided that he had, and the ruling is questioned by a cross-error. The statute authorizes any person interested to contest the validity of a will by his or her bill in chancery, and if the complainant was interested, within the meaning of the statute, he had a right to file his bill. It is not dented that he would have had such a right but for the order of the probate court denying probate of the will in his favor. Counsel say that he should not have presented the will for probate, or should have withdrawn his petition, or had it continued until the va: lidity of the later will was finally adjudicated, or appealed from the decision of the probate court. We do not see how his position would have been any better if he had taken either course suggested. Probate of the first will was denied because there was a later will revoking all former wills, and, until the later will should be set aside, it would have been useless to appeal. The judgment of the probate court on the merits in allowing or disallowing any will to probate is final and conclusive unless reversed on appeal (In the Matter of Storey, 120 Ill. 244, 11 N. E. 209), but, where probate is denied because of the existence of a subsequent will, the judgment is not conclusive if the subsequent will is set aside. The case of Bardell v. Brady, 172 Ill. 420, 50 N. E. 124, was the same, in principle, as this, and it was not there considered that the probate of the revocation and setting aside of the probate of the will deprived the parties claiming under the will of the right to contest the revocation by a bill in chancery. The circuit court could not admit either will to probate; the exclusive original jurisdiction for that purpose being in the probate court. Beatty v. Clegg, 214 Ill. 34, 73 N. E. 383. But the circuit court did have jurisdiction to set aside the second will, which revoked the first one. The complainant had a substantial interest in the subjectmatter of his bill, and the court did not err in the ruling. [3] There were four subscribing witnesses to the will, and all of them testified in detail to its execution and the circumstances connected therewith, and gave opinions that the testatrix was of sound and disposing mind and memory. Three of them were asked this question, "Was there any fraud, duress, or undue influence used to induce Annie S. Adams to sign her name to that instrument?" The complainant objected to the question, but his objection was overruled and each one answered that there was none so far as he knew, or that he did not know of any. The court permitted these witnesses to put themselves in the place of the jury and give their conclusions as to an ultimate fact which the jury had been sworn to try, and the ruling was wrong. Schneider v. Manning, 121 Ill. 376, 12 N. E. 267; Baker v. Baker, 202 111. 595, 67 N. E. 410; Pyle v. Pyle, 158 Ill. 289, 41 N. E. 999; Wetzel v. Firebaugh, 95 N. E. 1085. An attempt is made to justify the deci sion of the court because of the statutory [2] The court permitted a number of mem- provision relating to the probate of wills that bers of the church to testify on behalf of the upon certain proof the will shall be admitted defendants against objections of the com- to probate, provided that no proof of compulplainant on the ground of interest in the re- sion or other improper conduct be exhibited sult of the suit. Stockholders of business or which to the probate court shall be deemed moneyed corporations are directly interested sufficient to invalidate or destroy the will. in the result of a suit involving the title of That provision affords no justification for the property claimed by the corporation, because ruling, and does not substitute the judgment such property would increase their dividends of subscribing witnesses for the conclusion or lessen their legal liabilities. Albers Com- of the court or jury from the facts and cirmission Co. v. Sessel, 193 Ill. 153, 61 N. E. cumstances proved. The statute provides 1075. So, also, members of a beneficiary so- that the certificate of the oath of the witnessciety bound to contribute to the payment of es at the time of the first probate shall be its liabilities have a direct, personal, pecu- admitted as evidence in a contest to have niary interest in the result of a suit concern- such weight as the jury shall think it may a certificate was introduced, which contained, the class meeting and prayer meeting about among other things, the same question propounded to the witnesses in this case. The only question raised there was whether the certified transcript of the testimony given in the probate court was admissible, and the court held that it was, although it gave the proponents the benefit of the same witnesses testifying twice. No objection was made to the particular question, and there was no ruling concerning it. If there had been any testimony or fact or circumstance tending to prove fraud, undue influence, or duress when these witnesses were present at the time of the execution of the will the error would be serious, but each witness went into particulars as to every occurrence at the time of the signing of the will, and the conclusion that they did not know of any fraud, undue influence, or duress at that time was a necessary one from what they had already testified to. The inevitable conclusion in the minds of the jury would have been that the witnesses did not know of anything of that kind, and permitting them to state the fact would not justify a reversal. Chicago City Railway Co. v. Saxby, 213 Ill. 274, 72 N. E. 755, 68 L. R. A. 164, 104 Am. St. Rep. 218. It is contended that the verdict was contrary to the weight of the evidence. Thirty witnesses who were acquainted with the testatrix and had an opportunity to form an opinion as to her mental capacity testified to her mental soundness. A number of witnesses had done business with her, and six of them had been her tenants during the four years previous to her death. The witnesses included physicians who had attended her, and there was the further testimony of two expert medical witnesses. There were seven witnesses who gave testimony that she was not of sound mind and memory, and detailed circumstances upon which their belief was founded. Our conclusion as to the facts has been reached by reading all of the testimony of the witnesses, from which we find the following facts: The testatrix had been married more than once, and in 1886 came with her last husband, Henry E. Adams, to Irving Park to live. He had a son, the complainant, Harry C. Adams. She acquired several pieces of real estate, on which she built houses. In 1888 she took part in the organization of the First Methodist Episcopal Church and continued a member until her death on December 16, 1908. Her husband died in 1902, and she afterwards sold all of the real estate except the house in which she lived. In 1904 she converted that house into two apartments, continuing to live on the first floor and rented the upper floor of the house to a tenant, the tenant for the last year being Mary A. Dicey, who occupied the upper floor with her son and mother and took care of the furnace, and assisted the testatrix at different times. Prior to 1905 the testatrix attended the Sunday half the time, but a few years before her death she became afflicted with rheumatism, principally in her knees, which made it impossible for her to attend the church or the social meetings connected with it. The stepson, Harry C. Adams, lived in Chicago, and occasionally visited the testatrix and assisted her to some extent in her business. On September 9, 1904, she made the first will, giving him practically all of her estate and appointing him executor, and their relations continued to be friendly up to the time of her death, although she complained some of his not visiting her. In later years she became very deaf and used an ear trumpet, but could hear quite well over the telephone. In January, 1908, a new building of the church was nearing completion, and in the latter part of that month she sent word to the pastor that she wished to see him. The church was dedicated on February 16, 1908, and on that day two of the trustees called on her to solicit a subscription, but she refused, and said she intended to do something for the church later on, and asked them to tell the pastor that she would like to see him. The pastor had not responded to her request, but a few days after the dedication he called, when she told him that she had been thinking for some time of making a will in which she would leave some money to the church. The pastor asked for 24 hours to think the matter over and returned the next day, when she said she was of the same mind. He suggested that it would be a nice thing to remember her relatives in order that they might think kindly of her after she was gone, but she said they did not need the money. She gave him the name of the attorney who had drawn the former will, and said she would like to have him draw this will. About five days afterward the pastor saw that attorney, and arranged with him to call on her. The attorney called and she gave directions for the will, by which Mrs. Dicey, who was living in the house and assisting her, was to have $1,000 provided she was living in the house when the testatrix died, and the rest was to be given to the church. The attorney drew the will and a copy was sent to the testatrix, and she found an error in the provision concerning the family portraits, which was corrected. The will was finally executed on February 29, 1908, when she was about 76 years of age, and a copy was given her, which she retained. In the last few years of her life she became very quarrelsome about bills and accounts, and became very vulgar and profane with reference to those she had dealings with. She quarreled with the milkman about the amount of milk he had furnished and disputed the amount of many accounts against her. In March, 1908, she had a severe rheumatic attack of the grip, lasting ing that the complainant was bound to remove by evidence all doubt of the sanity of the testatrix, and that, so long as there remained a doubt, the presumption of sanity must prevail. That seems to us to be reversing the meaning of the instruction. The jury would understand that a mere doubt is not sufficient to establish insanity, as against the presumption of law that all persons are sane. not a professional, and whom she called hard | ponderate in favor of unsoundness of mind. names, such as "hussy" and "muttonhead," But counsel construe the instruction as meanwith profane additions. The doctor who attended her had been in the habit of charging $1.50 a visit, but had raised his price to $2, and made his bill accordingly. She did not know of the change and insisted upon a reduction, and called him a robber, thief, and beggar. The doctor reduced the bill, and she was successful, in general, in getting some kind of a reduction by her disputes. She accused a mechanic of carrying off some window screens and charged the nurse with eating some of her food, both of which charges were untrue. Generally she did her own housework up to the time of her death, with occasional assistance from Mrs. Dicey. Her statements show that she had in mind her relatives and their relation to her, and she was a good business woman. She had a furious temper, and was avaricious and greedy about securing the highest price for her property which was wanted for a school. The complainant assisted her some, but in the main she attended to her own business, giving receipts for rent, personal orders for repairs, orders for coal and other necessities. She settled her bills and paid them, executed a release, arranged for extensions of loans and for a change in the telephone. [4] It is quite clear that she was capable of transacting business, and of disposing of her property by will. [5, 6] It is argued that there was a confidential relation existing between the testatrix and the pastor and trustees of the church. Such a relation exists between a priest or spiritual adviser and his parishioner (Dowie v. Driscoll, 203 Ill. 480, 68 N. E. 56; Gilmore v. Lee, 237 Ill. 402, 86 N. E. 568, 127 Am. St. Rep. 330), and, if the priest or spiritual adviser receives a gift from the parishioner, the burden is upon him to show the absence of undue influence, but the pastor has no financial interest in the church or the church property, and in this case the will conferred no benefit upon the pastor. The effect, if any, of the relation is of no importance, since the evidence was clear and conclusive that the will was not obtained by any influence or improper means, but was the voluntary act of the testatrix and the result of her deliberate judgment. The verdict was not contrary to the evidence, but was in accordance with the clear preponderance of the testimony. [7] Complaint is made that the court instructed the jury that, if there was only evidence sufficient to raise a doubt of the san [8] Objections are also made to instructions in which a part of the hypotheses of fact was that no fraud, undue influence, or improper conduct, as defined in the instructions, was used to cause the testatrix to exe cute the will. The objection is that the jury were limited to facts and circumstances mentioned in the instructions, and were not allowed to consider other facts and circumstances proved. The instructions did not state facts and circumstances, but gave to the jury general rules as to what constitutes fraud, undue influence, or improper conduct, and the reference to such conduct as so defined was not improper. It is also urged that some instructions separated different elements by isolating facts and directing the jury that each separate fact was not sufficient to overthrow the will, which was held improper in Weston v. Teufel, 213 Ill. 291, 72 N. E. 908. The instructions only stated general rules which have been frequently indorsed by this court, and they are not open to the objection. We find no error calling for a reversal of the decree, and it is affirmed. Decree affirmed. (251 Ill. 481.) OEHMICH v. HEDSTROM et al. 1. was ity of the testatrix, the presumption in fa-ing, but raised no question as to the validity of vor of sanity must prevail. That is the law. Myatt v. Walker, 44 Ill. 485; Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837; Wickes v. Walden, 228 Ill. 56, 81 N. E. 798. To justify a finding of insanity, the evidence must pre the sale. Thereafter he received, collected, and used the recoverable proceeds of the sale. He knew that he had an interest in his grandfa been sold; and that he was being supported ther's estate; that some of the property had from the estate; and when 21 he read a copy Lackner, Butz & Miller (Albert M. Kales and Frederic E. Von Ammon, of counsel), for appellant. Wilson, Moore & McIlvaine, for appellees. of the will, but his bill for partition against | partition. Bill dismissed, and complainant parties claiming from the purchasers at the appeals. Decree affirmed. trustees' sale, in which he claimed an undivided interest in the real property, was not brought until 27 years after the sale, and until he became 35. Held that, as knowledge of the administration of the trust estate and the proceedings against the trustees would be imputed to complainant, he was barred by acquiescence and delay from asserting any claim to the real estate involved, regardless of any question as to the validity of the sale. [Ed. Note. For other cases, see Partition, Cent. Dig. §§ 111, 113; Dec. Dig. § 44.*] 2. EQUITY (8 71*)-LACHES. A court of equity is never active in relief against conscience or public convenience, and will always refuse its aid to stale demands, where the party has slept on his rights or acquiesced for a great length of time, for nothing can call a court of equity into activity but conscience, good faith, and reasonable diligence, and where these are wanting, the court will be passive and do nothing; laches and neglect being always discountenanced. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 204-211; Dec. Dig. § 71.*] 3. JUDGMENT (§ 288*)-RECORD AS NOTICE. Where proceedings, in an action against testamentary trustees for an accounting to an infant cestui que trust, were matters of record, and, on reaching 21, he became a complainant in a pending bill for an accounting, in which the entire history of the suit was set out in detail, he will be held to have had constructive notice of such proceedings, so as to require him to act promptly, if he desired to attack a trustee's sale of land, the proceeds of which were involved in the accounting. VICKERS, J. Charles Ferdinand Oehmich filed his bill in the circuit court of Cook county for partition, claiming an undivided one-third interest in certain lands in South Chicago, which are described and identified as parcels A, B, and C and the residue of lot 58 on a certain plat filed as an exhibit with the bill. The answer of the defendants denied that the complainant had any title to the premises involved, and upon a hearing the bill was dismissed for want of equity. Complainant below has perfected an appeal to this court. The lands involved belonged to Charles F. Oehmich, grandfather of appellant, who died in 1875, leaving a last will, under which appellant claims title in fee to one-third of the real estate in question. Both parties agree upon the general proposition that a one-third interest in the premises was devised to appellant by the will of Charles F. Oehmich. Conceding the title to have been in appellant, appellees contend that the title passed out of him by a conveyance made [Ed. Note. For other cases, see Judgment, in accordance with the provisions of the will; Cent. Dig. § 569; Dec. Dig. § 288.*] and it is further contended that, if the pow4. PARTITION (§ 17*)-TITLE TO SUPPORT. er under the will was so imperfectly exerA beneficiary to whom real property is de-cised that the legal title did not pass by vised, to be managed and invested by testamentary trustees, who are empowered to sell the real property, and are directed to pay to the beneficiary, when 21, the accumulated income not previously expended in his support and maintenance, and at the age of 24 to pay him one fourth, at the age of 30 another fourth, and at 35 the balance of principal and accumulated income, may, on reaching 24 and becoming entitled to the first part of the principal, file a bill for partition, in which the validity of a sale by the trustees might be determined. [Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 53-59; Dec. Dig. § 17.*] 5. TRUSTS (§ 247*)-ENFORCEMENT-RIGHT Tо FOLLOW TRUST PROPERTY OR PROCEEDS. A beneficiary to whom real property is devised, to be managed and invested by testamentary trustees, who are empowered to sell real property and are directed on the beneficiary's reaching 21 to pay to him all the accumulated income not previously spent for his support and education, and at 24 to pay one fourth, at the age of 30 another fourth, and at 35 the balance of principal and accumulated income, has such an equitable interest under the will that, on an illegal sale by the trustees, he might, on reaching 24, have maintained a bill against them and the purchasers at the sale for illegal diversion of the trust fund. [Ed. Note. For other cases, see Trusts, Cent. Dig. 353; Dec. Dig. § 247.*] the conveyance made in pursuance thereof, appellant has lost all right of action to recover said premises for the following reasons: (1) That the statute of limitations is a bar to appellant's action; (2) that appellant is barred by laches; (3) that a decree in a former suit adjudicated that the power of sale under the will was properly and legally exercised by the conveyance made, and that appellant is thereby estopped to deny that the power was well exercised; (4) that appellant has, by receiving a portion of the proceeds of the sale under the power after he became of age, elected to ratify the conveyance and confirm the sale made under the will, and has thereby estopped himself from attacking the power or questioning the sale made under it. All of these several defenses have been ably argued in the exhaustive briefs filed by the counsel for the respective parties, but in the view that we have of the case it will not be necessary to consider all of these matters of defense. The facts relating to one branch of the, case, which, in our opinion, present an insuperable barrier to appellant's right of re Appeal from Circuit Court, Cook County; covery, are, in substance, as follows: AppelAdelor J. Petit, Judge. lant was born January 29, 1874. He was therefore about one year old when his grandfather, under whose will he claims the Bill by Charles Ferdinand Oehmich against Arthur E. Hedstrom and others, for For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes property in question, died. The will de- ing from said sale. The evidence shows vised both real estate and personal prop- that the appellant diligently and persistenterty to appellant. The principal part of the ly sought to collect from the different truspersonal property devised consisted of notes tees into whose hands the funds successivesecured by trust deeds and mortgages. By ly passed the proceeds of this sale, until his will, the testator appointed trustees to finally, through the insolvency of one manage, control, and invest appellant's es- Schmid, who had succeeded to the trust, a tate, and under certain conditions the trus- substantial portion of appellant's estate was tees were given the power to sell the real lost. The evidence shows that the appellant estate belonging to appellant. The will pro- received, after he became of age, about vided that appellant should be supported $3,000 in interest, a substantial part of and educated out of the interest accruing which accrued on the proceeds of the sale on his share of the estate. The will fur- of the real estate here involved. It also apther provided that when appellant reached pears that appellant received a $560 divithe age of 21 all of the accumulated inter- dend on his claim against the estate of one est not previously paid out for his mainte- Schintz. Twenty-seven years after the sale nance and education should be paid to him in question had been made, during which by the trustees; that when he arrived at time appellant had exhausted all efforts to the age of 24 he should receive one fourth, collect the proceeds thereof, and in so far at the age of 30 another fourth, and when as such efforts were successful he had colhe attained the age of 35 the balance of lected, accepted, and used the proceeds of principal and accumulated interest should said sale, and after appellant had attained be paid and delivered to him. In 1882, when the age of 35 years, the present bill was appellant was eight years old, the trustees filed to set aside the trustees' sale, on the claiming to act under the powers given by ground that said sale was void, and that the will, sold and conveyed the premises in the title to the real estate had during all question, with other lands, to Charles O. Ten these years remained in appellant. The eviBroeke for the consideration of $13,927.66. dence further shows that appellant attendThis sale was approved and confirmed by the ed the public schools until he passed county court of Cook county, and appellees through the seventh grade; that he then claim title by a regular chain of convey- went to work; and that he resided with his ances from Ten Broeke. Two years after the mother in South Chicago, near where the sale to Ten Broeke a bill was filed on behalf lands in question are located, until after he of the appellant by his mother, as next was 21 years of age. He testifies that when friend, against the trustees, for an account- he was 15 years of age he learned that he ing as to the proceeds of the trustees' sale, was an heir to the estate of his grandfaand two years later a decree was entered ther, and that he heard that some of the in that proceeding finding that the trustees property he was interested in had been sold. had received on account of appellant the He knew that his mother was supporting sum of $34,561.49, and had paid out on his him out of money that she was receiving account $6,970.57, and that there was an from his grandfather's estate. When he was unpaid balance due his mother for appel- 21 years old, he saw a copy of the will, and lant's support of $2,870, and ordering that read it. He must have known of the litigaCatherine Oehmich, mother of appellant, be tion against the trustees before he became paid the sum of $65 per month thereafter, 21 years of age. If he did not, he certainand until the further order of the court, for ly had received full information in regard appellant's support. The decree found that thereto when, after he attained his majorthe trustee Gollhardt had faithfully admin-ity, he became the complainant in that proistered the trusts reposed in him under the said will, and had in all things complied with [1, 2] Under the facts presented by this recthe provisions of the will; and all of the ord, which are briefly outlined above, and trustees' acts and doings under the will were according to the plainest and best-established approved and confirmed. The court retain- principles of equity, appellant is clearly ed jurisdiction of this proceeding, and en- barred by acquiescence and delay from astered several orders in the course of the serting any claim to the real estate involved, administration of the trust. When appel- regardless of all question concerning the lant attained his majority, this bill for an validity of the sale. In Smith v. Clay, 3 accounting was still pending in the circuit Brown's Ch. 640, the court announced the court, and appellant on his own motion was equitable principle which must control here, made a party complainant in his own prop- in the following language: "A court of er person. Throughout this entire proceed- equity, which is never active in relief against ing, no question was raised by appellant as conscience or public convenience, has always to the validity of the trustees' sale. On the refused its aid to stale demands, where contrary, the bill alleged, and the decree the party has slept upon his rights or acquifound, that the sale was regularly and le- esced for a great length of time. Nothing gally made, and that appellant was entitled can call forth this court into activity but to the aid of a court of equity to compel conscience, good faith, and reasonable dili ceding. |