Green v. Green

• Decision Date: 03 April 1893
• Citation: 33 N.E. 941,145 Ill. 264
• Parties: GREEN et al. v. GREEN et al.
• Court: Illinois Supreme Court

145 Ill. 264

33 N.E. 941

GREEN et al.

v.GREEN et al.¹

Supreme Court of Illinois.

April 3, 1893.

Appeal from circuit court, Morgan county; Cyrus Epler, Judge.

Bill by Horatio R. Green, Austin B. Green, Marshall W. Green, and Oliver S. Green against Cynthia A. Green, Louisa M. Potts, Elvira J. Cully, and Franklin M. Green, to set aside the will of Stephen Green, deceased. Complainants obtained a decree. Defendants appeal. Affirmed.

The eighth instruction, referred to in the opinion, was as follows: ‘(8) The court instructs the jury that, whilst it is a question to be decided by the jury, from the evidence, and under the instructions of the court, whether Stephen Green was or was not of sound mind and memory on the day of the alleged execution of the will, yet in determining that question the jury are not confined to the evidence touching his mental condition on that particular day, but the jury are at liberty to, and it is their duty to, consider the evidence concerning his mental condition both before and after that particular day; and if, from a consideration of all the evidence, the jury find and believe that, both before and after that day, Stephen Green was of unsound mind and memory, and if they further find from the evidence that there was no improvement in his mental condition during the time, and if they also believe from the evidence that he was so far affected in his mental condition shortly before that day, and shortly after that day, as to render it altogether improbable that he was in any better or stronger mental condition on that day, and if they also find from the evidence that his mental powers were so greatly impaired as to render him incapable of attending to the ordinary business affairs of life on the day in question, then the jury would be justified in finding that he was of unsound mind and memory on the day of the alleged execution of the paper in evidence, purporting to be his last will and testament.’

Morrison & Whitlock, for appellants.

William Brown, for appellees.

SHOPE, J.

This was a bill by appellees to set aside an instrument purporting to be the last will and testament of Stephen Green, deceased, dated November 24, 1886, and duly admitted to probate, upon the grounds, as alleged, that the same was not executed and attested in due form of law; that its execution was procured by undue influence; and that said testator was, at the time of its execution, of unsound mind and memory. Answers were filed, denying the material allegations of the bill, and the issues thus made submitted to a jury, resulting in a finding that said instrument was not the last will and testament of the deceased. A motion for a new trial was overruled, and decree entered on the verdict, setting the will aside; and appellants, proponents of the will, prosecute this appeal. Errors are assigned, questioning the rulings of the trial court in giving instructions, and in the admission of testimony, and also that the verdict is not sustained by the evidence.

The controversy here, as well as before the jury, relates to the mental capacity of the testator at the time of the execution of the will. The other grounds alleged, if not practically abandoned, are not sustained by the evidence. To sustain the will upon that issue, proponents called 20-odd witnesses, who testified, giving their means of knowledge of the testator's mental capacity at the date of the will, or at times more or less remote therefrom; many of them giving their opinions as to his mental capacity, and others, that they saw no evidence of failing intellect. On the other hand, contestants produced, substantially, 50 witnesses who also gave their means of knowledge touching the deceased's mental condition; many of them testifying to facts and circumstances of more or less pertinency and probative force, and likewise giving their opinion as to his mental capacity. We have carefully considered the evidence, and cannot say that the jury were not justified in finding as they have done. No good purpose will be served by an analysis and comparison of the evidence. It is conflicting, at least in its results, tending to establish directly opposite conclusions; and a determination of the issue necessarily involved weighing and comparing the opinions of the witnesses, as well as the incidents, facts, and circumstances testified to by them. If the jury have been fairly and correctly directed in their investigation, their finding of fact, approved by the chancellor, should stand, unless we can say that the verdict is palpably against the preponderance of the evidence. Moyer v. Swygart, 125 Ill. 262, 17 N. E. Rep. 450; Hoobler v. Hoobler, 128 Ill. 645, 21 N. E. Rep. 571; Meeker v. Meeker, 75 Ill. 260;Long v. Long, 107 Ill. 210;Society v. Price, 115 Ill. 623, 5 N. E. Rep. 126. There is here no such preponderance.

It is complained, however, that the chancellor misdirected the jury; and, first, that the fourth instruction given for contestants was not based upon any evidence, and was therefore erroneously given. This instruction related to the question of undue influence, and, it is conceded, stated the law accurately. Conceding the position of counsel to be accurate, the question would arise whether, by the instruction, the jury were misled to the prejudice of proponents. If, upon consideration of the whole case, it is apparent that the instruction could have worked no injury, the giving of it, although erroneous, will constitute no ground for a reversal of the decree. Preisker v. People, 47 Ill. 382;Young v. McConnell, 110 Ill. 83;Bank v. Dunbar, 118 Ill. 625, 9 N. E. Rep. 186. It is apparent from the record that the case tried by the jury related to the capacity of the testator to make a valid will. While the proponents made ample proof of the execution of the will in conformity with the statute, there was no evidence offered tending to controvert its formal execution. There is in the record some evidence tending to show that the relations of the testator with his daughter Mrs. Cully, and her family, were friendly, and that she and her husband probably had some influence with him. Some time prior to the making of the will the testator left the house of a daughter where he had been living, without explanation, and went to Cully's, and remained until his death; and the son-in-law went to town with him, told an attorney Mr. Green desired to make a will, was present when the memoranda for preparing the will were given, took some part therein, and was also present at the execution of the will. But it can be justly said that evidence of the fact, or any fact tending to prove that the influence, if any existed, was exerted, or attempted to be exercised, to influence the making of this or any other will is wholly wanting; and it is, we think, impossible that the jury could have been misled in finding of the will invalid, upon that ground. But, if this position is not correct, proponents are in no condition to complain. While the court might, and probably would, if asked, have instructed that there was no evidence to sustain the allegation of undue influence, the chancellor submitted that question to the jury, at the instance of both parties, and neither should be heard to complain. The only point made by counsel is, to quote their language, that, ‘while it contained a correct proposition of law, it was improper, because the jury would naturally conclude, from the fact that it was given, that the court considered the evidence as tending to sustain that allegation of the bill.’ By the second, third, and eleventh instructions given at the instance of proponents, the question of whether the execution of the will was the result of undue influence was fully submitted. The third was the antithesis, upon this point, of the instruction complained of. That is, the latter told the jury, if they believed from the evidence that the execution of the will was the result of undue influence exerted upon the testator by persons named, etc., they should find the instrument not to be his will, while by the third instruction for proponents, they were told that unless they found, from a preponderance of the evidence, that the testator was so under the control, etc., of others, they should find the paper to be his will. By the eleventh the jury were told that, ‘whether or not Stephen Green was induced to, and did, execute the paper in question as and for his last will, by undue influence, is one of the questions to be determined by the jury from the evidence of the case;’ and the instruction proceeds to inform the jury as to the nature and degree of influence necessary to be exerted to avoid the act of the testator. A party cannot complain of error committed at his own instance.

It is also said that the court erred in giving the fifth instruction for contestants, in that it requires that the subscribing witnesses attest...