Wilbur v. Wilbur

• Decision Date: 09 May 1891
• Citation: 27 N.E. 701,138 Ill. 446
• Parties: WILBUR v. WILBUR et al.
• Court: Illinois Supreme Court

138 Ill. 446

27 N.E. 701

WILBUR

v.WILBUR et al.

Supreme Court of Illinois.

May 9, 1891.

Appeal from circuit court, Effingham county; C. C. C. BOGGS, Judge.

H. C. Goodnow and Wood Bros., for appellant,

Cratty Bros. & Ashcraft, (E. N. Rinehart, of counsel,) for appellees.

WILKIN, J.

This case was before us at a former term, and the opinion then rendered is reported in volume 129, p. 393, of our Reports, and 21 N. E. Rep. 1076, to which reference is made for a statement of facts. The decree of the circuit court was then reversed, and the cause remanded for further proceedings. On the last hearing both parties submitted interrogatories to the jury for special findings, and in response to one of these a special verdict was returned that the will in question was not procured by the undue influence of the said Jesse Wilbur. Other special findings were to the effect that the testator when he made said will was not of sound mind, and the general verdict was against the validity of the same. It is insisted with much earnestness that the weight of evidence is so clearly against the verdict that the decree below should be reversed on that ground. We said in our former opinion that the testimony then before us, introduced by the contestants, if believed by the jury, was, standing alone, sufficient to warrant a verdict in their favor. There is no material difference in the evidence in this record and that which was before us then. Some additional proof was introduced on behalf of proponent, but the evidence of one very material witness in that record is omitted here. While it is true that there is much evidence tending to support the validity of the will, yet it must be admitted it is in irreconcilable conflict with that of contestants. It was therefore the province of the jury to determine which was entitled to the greater weight; and in such case this court will not interfere, even though, as an original proposition, it might have arrived at a different conclusion. This rule is so well established and supported by so many decisions of this court that neither reason nor authority need now be given for applying it to this case.

Several witnesses testified on behalf of contestants to acts and declarations of Jesse Wilbur tending to show that he was active in procuring the making of the will in question, and desirous that it should be made favorable to himself. This evidence was objected to by the proponent, and it is now contended that the court below erred in refusing to exclude it from the jury. The ground of this contention is that the acts and declarations spoken of by such witnesses were done and spoken by the testator prior to the time the will was executed. While it is true that the undue influence which will invalidate a will must be present and exercised over the mind of the testator at the time the will is made, yet it is competent to prove previous conduct of the one charged with procuring it to be made, as tending to show his influence over the testator at such time. The evidence in question tended to show an anxiety on the part of Jesse Wilbur to have his father make a will, and also that he desired that will to be favorable to his interests; and, taken in connection with the proof that on the day the will was executed he took the testator from his home in the village where he lived, and where the will could have been executed, a distance of three miles in the country, to a justice of the peace, to have it written, and that he was present and assisted at least in some degree in its execution, was clearly competent on the issue of undue influence.

The jury found specially, at the request of contestants, that...