Nicewander v. Nicewander

• Decision Date: 13 June 1894
• Citation: 37 N.E. 698,151 Ill. 156
• Parties: NICEWANDER et al. v. NICEWANDER et al.
• Court: Illinois Supreme Court

151 Ill. 156

37 N.E. 698

NICEWANDER et al.

v.NICEWANDER et al.¹

Supreme Court of Illinois.

June 13, 1894.

Error from circuit court, Champaign county; Edward P. Vail, Judge.

Bill by William F. Nicewander and Sarah G. Lutz against Alice Nicewander and others. Defendants obtained a decree. Complainants bring error. Affirmed.

J. L. Ray, for plaintiffs in error.

E. L. Sweet and J. S. Wolfe, for defendants in error.

MAGRUDER, J.

This is a bill filed on February 16, 1891, in the circuit court of Champaign county, by William F. Nicewander and Sarah G. Lutz against Alice Nicewander and her five minor children, to set aside the will of Daniel Nicewander, who died on December 16, 1890, and whose will was executed on November 18, 1890. The complainants are the children of the testator by a former wife, and the defendants are his widow, who was a second wife, and the children of such second wife. The widow is the executrix, or administratrix with the will annexed. The will was admitted to probate on December 27, 1890. By its terms the testator gave to each of the complainants $600, directed that his wife should have what was allowed her by law, and gave all the rest of his property, real and personal, to be equally divided between his five minor children. The bill charges that the testator was not of sound mind and memory at the time of the execution of the will, and that he was induced to make his will by undue influence exercised over him by his wife, the said defendant Alice Nicewander. The widow answered the bill, denying the charges, and a guardian ad litem was appointed, and answered for the five minor defendants. The cause was tried before a jury, who returned a verdict finding the instrument purporting to be the last will and testament of the deceased to be such last will and testament. Motion for a new trial was overruled, and decree was entered dismissing the bill for want of equity, and for costs against the complainants.

There is the usual conflict in the testimony upon the questions of the soundness of the testator's mind and memory, and of the exercise over him of undue influence, but we think that the verdict of the jury is sustained by the evidence. For some time before his death the deceased was afflicted with Bright's disease, and at times suffered great pain therefrom, having what the witnesses call ‘sick spells.’ But, of the subscribing witnesses to the will, who were his neighbors, and to whom he had previously spoken about being present, one of them swears that when the testator signed the will he was competent to do business, and understood what he was doing; and the other swears that the will was read to the testator, and that he was able to make it, and knew what he was doing, and requested witness to be executor and guardian of his children, and explained that he would make a difference in the amounts given to his children, proposing to leave most of his property-which did not, altogether, amount to more than $30,000-to his minor children, as they were small, and had to be educated, while his two older children were ‘raised and educated, and doing in life.’ The attorney who was sent for to draw the will says that he found him ‘half sitting, half reclining, on a lounge,’ but that he dictated the manner in which he wished to dispose of his property, and the witness drew the will from such dictation; that the only matter he hesitated about was as to the person who should be his executor; that he asked Mr. Anderson (one of the subscribingwitnesses, who was present) to act as executor, but he declined; that, thereupon, witness suggested the appointment of his wife as executor without bond; that he adopted the suggestion, but refused to waive the bond; that no person dictated the terms of the will, the testator alone directing it; that witness had known testator for several years; that ‘he was perfectly sane at the time he made his will;’ and that it was ‘dictated * * * by himself, wholly uninfluenced at that time by any person.’ A witness who had seen him almost every day during the last three months of his life, and sat up with him every other night during the two weeks before his death, says that ‘he was about the same as any man,-as good as he ever was,’-except while the ‘sick spells,’ referred to, lasted. He was seen riding out in a buggy with his wife after he made his will, and a week or two before he died. The keeper of a meat market swore that he did business with him about 10 days before he died, and saw nothing wrong about his mental capacity. Several witnesses, who had known him well, speak of having business with him after he made his will, and say that they noticed no change in the condition of his mind. There is testimony, consisting largely of the evidence of near relations of the complainants, which is of an opposite import from the proof introduced to sustain the will, but not of sufficient strength to overcome it. There is no evidence of undue influence by the wife over her husband, which would justify us in setting aside the verdict. The wife was with her husband much of the time during his last illness, but not more than proper affection would dictate. She did nothing to produce alienation between him and his older children. He was on good terms with them, and called them by the familiar pet names by which he was in the habit of addressing them, up to the time of his death. The wife received no more by the will than the law would have given her without the will. It is true that the mind, when enfeebled by disease and long sickness, may become susceptible to influence. Reynolds v. Adams, 90 Ill. 134. But we discover nothing in the facts of this case to justify the inference that the testator, when he made his will, was subject to any such undue influence, either from the effects of sickness, or from the pressure of improper persuasion, as deprived him of his free agency, and rendered his act the offspring of his wife's will, rather than the product of the exercise of his own will. Francis v. Wilkinson, 147 Ill. 370, 35 N. E. 150. He may have been influenced by affection to give the five children of his old age-the oldest of whom was only about 12 years old-$5,000 or $6,000 apiece for their education, while he gave the two grown children only $600 apiece; but influence secured through affection is not wrongful, and inequality in the distribution of property is not, of itself, conclusive evidence of undue influence. Francis v. Wilkinson, supra.

Upon the trial the proponents of the will introduced a certified copy thereof, instead of the original will itself. We held in Purdy v. Hall, 134 Ill. 298, 25 N. E. 645, that, in trials of this kind, ‘either the original writings should be produced, or good cause shown for not producing it;’ but we said in that case that we did not ‘wish to be understood as holding that such introduction would in all cases be reversible error.’ We do not regard the failure to produce the original will as reversible error, in the case at bar. When the certified copy of the will was offered in evidence...