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The suggestion that Hudson intended at the time the will was drawn to get Waterman's estate by other means and that the will was merely intended to conceal his real intentions and to place Waterman's estate in the friendly hands of the church, which would probably make little opposition to the consummation of his scheme to obtain Waterman's property by means of the contract obtained two years later and the deeds for Waterman's real estate executed by virtue of that contract, seems too fanciful to be accepted without some evidence to show that such was his plan. The facts in evidence do not furnish a basis for such a conclusion. Whatever may have been the relation between the testator and Hudson and whatever influence he might have been able to exert if he had wished to do so, there is nothing in the record tending to show that any such influence was exerted, and this being the only issue in the case, the court properly instructed the jury to find the instrument was the will of the testator.
The appellant offered evidence, which the court refused to hear, of other transactions in which it is claimed that Hudson improperly influenced Waterman in his professional conduct and deceived and betrayed women who had confided their property and business to him, but the evidence was properly rejected. No matter what may have been the conduct of Hudson in other transactions or his influence in general or in specific transactions over the mind of Judge Waterman, the latter's transactions cannot be overturned and set aside except by evidence of the exercise of undue influence in the particular transaction. In the absence of such evidence, proof of the exercise of undue influence in other cases is immaterial.
A motion for a new trial was made on the ground of newly discovered evidence, and the claim is made that Sol Rubin would testify that he was present when the will was signed,—not on the date which it bears but in August, 1915, and it was not then signed by the witnesses. This evidence would have no tendency to prove the issue,—to show the exercise of undue influence by Hudson in the execution of the will. On the pleadings the execution of the will was admitted, and the only questions at issue were the mental capacity of the testator and the undue influence of Carleton Hudson. The newly discovered evidence could have no bearing on these issues, and the motion for a new. trial was properly overruled for this reason.
The enjoining by the final decree in this case of the further prosecution of the case brought by George E. Hall and others who were parties to this suit, for the purpose of contesting the will, is assigned as error. If the parties enjoined are dissatisfied with the decree in this respect they have the right to have it reviewed, but the injunction does not apply to the appellant and he cannot complain.
The decree dismissed the bill as to the appellant and then substituted the Moody church as complainant in the bill and made the appellant a defendant. The Moody church had filed a cross-bill, in which it sought a part of the same relief,—that is, the cancellation of the deeds to Hudson. There is no reason why it may not prosecute its cross-bill and get all the relief it could obtain under the original bill. The original bill sought to set aside the will and the deeds and the appellant was the only complainant. The Moody church does not want to prosecute that bill, for it insists that the will shall stand, but wants the deeds set aside and filed a cross-bill for that purpose. The litigation, as far as the appellant is concerned, is at an end. His suit should be dismissed. This will leave the cross-bill of the Moody church pending, on which it can obtain whatever relief it may be entitled to.
The decree will be modified by striking out that part which authorizes the substitution of the Moody church as complainant in the original bill and makes the appellant a defendant to the original bill, and in all other respects the decree will be affirmed.
Decree affirmed as inodified.
(No. 13084.—Reversed and remanded.) T. C. KELLER, Receiver, Plaintiff in Error, vs. THE INDUS
TRIAL COMMISSION et al.—(NETTIE Davis, Admx. Defendant in Error.)
Opinion filed February 18, 1920.
1. WORKMEN'S COMPENSATION—who is a dependent. A dependent is one who is sustained by another or relies upon the aid of another for reasonable necessaries consistent with the dependent's position in life.
2. Same-dependency is a question of fact. Dependency, and the extent thereof, are questions of fact, and although a husband is under a legal duty to support his wife, the question whether she actually received all or a part of her support from her son and looked to him for such support is one of fact, with a decision of which by the Industrial Commission the courts cannot interfere if there is evidence tending to sustain the finding.
3. SAME—when the Industrial Commission must determine the beneficiary. Where there is no voluntary payment on the part of the employer and the Industrial Commission is called upon to determine the compensation, it is the further duty of the commission to determine the person or persons entitled to compensation, notwithstanding there is no dispute between the respective relatives as to who is entitled to the award.
4. SAMEeffect where evidence shows dependency but not its extent. Where the evidence before the Industrial Commission tends to show that a mother was dependent upon her deceased son but there is no evidence tending to show the extent of such dependency an award for total dependency cannot be sustained; but the mother is entitled to the minimum award under paragraph (c) of section 7 of the Compensation act if she elects to accept the same instead of having a further hearing.
Writ of Error to the Circuit Court of Montgomery county; the Hon. Thomas M. JETT, Judge, presiding.
Hill & BULLINGTON, for plaintiff in error.
W. J. MacDONALD, for defendant in error.
Mr. Justice THOMPSON delivered the opinion of the court:
This writ of error was sued out to review a judgment of the circuit court of Montgomery county confirming an award of the Industrial Commission of $1839.20, payable in installments, to defendant in error for an injury resulting in the death of David Davis, Jr. The award is for a sum equal to four times the average annual earnings of deceased, the maximum amount allowable under paragraph (b) of section 7 of the Workmen's Compensation act.
The only substantial objection niade to the award is that there is no evidence in the record to sustain it. Deceased was sixteen years old, the eldest of the four children of David Davis and defendant in error. At the time of his death he had been employed as a trapper by plaintiff in error six and a half days. Prior to that he had worked for the American Radiator Company at Litchfield for about six weeks. David Davis and defendant in error had been married twenty-eight years and had lived together all that time with the exception of about two months prior to August 15, 1917. Some time during this period David Davis, father of deceased, was arrested for failure to support his wife and family and spent some time in jail at Hillsboro. Shortly after that he was released on bond and later the charge was withdrawn. Defendant in error moved with her family to Hillsboro August 14, and her husband came to the home the following day and was still living there at the time of this hearing. During the time the deceased was working he turned his earnings over to his mother and they were used for the support of the family. Deceased was killed September 10, 1917.
We think the evidence clearly justifies the finding of the commission that the mother was partially dependent upon the earnings of deceased. In law a dependent is one who is sustained by another or relies for support upon the aid of another; who looks to another for support and relies upon another for reasonable necessaries consistent with the dependent's position in life. Questions of dependency, and the extent of it, are questions of fact, with a decision of which by the commission the courts cannot interfere if there is evidence tending to sustain its finding. (Rock Island Bridge and Iron Works v. Industrial Com. 287 Ill. 648.) While the husband of defendant in error was under a legal duty to support her, the question whether she actually received all or a part of her support from her son and looked to him for such support is a question of fact, which upon this record is concluded by the finding of the commission that she was dependent upon him. It will be seen, however, that the commission found that defendant in error was totally dependent upon the earnings of deceased. We think there is no evidence in the record to justify this finding. The award in this case should have been urder paragraph (c) of section 7 of the Workmen's Compensation act. The finding of partial dependency under this section, whatever its degree, entitled the claimant to the minimum award of $1650.
The award in this case was allowed to the administratrix. While the Industrial Commission did not state in its finding which of the relatives were dependent upon the deceased employee, it is apparent that it intended the payment of the award to the mother. While there is no contest between the respective relatives as to the dependents entitled to the payment of the award, nevertheless, where there is no voluntary payment on the part of the employer and the Industrial Commission must determine the compensation, it is the further duty of the commission to determine the person or persons entitled to the compensation. Paul v. Industrial Com. 288 Ill. 532.
The evidence in this record and the facts found were sufficient to constitute a basis for a proper decision, and