Petefish v. Becker

• Decision Date: 24 October 1898
• Citation: 52 N.E. 71,176 Ill. 448
• Parties: PETEFISH v. BECKER.
• Court: Illinois Supreme Court

176 Ill. 448

52 N.E. 71

PETEFISH

v.BECKER.¹

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from circuit court, Cass county; Harry Higbee, Judge.

Bill by Henry Becker agaisnt Elizabeth Petefish and another. Decree for complainant. Defendant Petefish appeals. Affirmed.

Morrison & Worthington, for appellant.

Mills & McClure, for appellee.

PHILLIPS, J.

On September 29, 1882, Conrad Becker made his last will and testament, by which he disposed of all his estate. He bequeathed to his daughter, the appellant, $3,000, and the residue of his estate he devised to his wife for life, with a right to a home to the appellant, and remainder to her and the heirs of her body. The testator died in March, 1896, leaving surviving him his widow, his son, the appellee, and his daughter, the appellant. Subsequently the widow died. The will was duly admitted to probate. The son, the appellee, filed his bill to the October term, 1897, of the Cass county circuit court, under section 7 of chapter 148 of the Revised Statutes, to contest the validity of the will, and made the appellant and her only child, Rowena Petefish, defendants thereto. The appellant was sole administratrix with the will annexed. The bill alleges that at the time of the execution of the instrument, and for a long time prior thereto, the said Conrad Becker was not of sound mind and memory, and was possessed of, and controlled by, various insane delusions. Answers were filed, and issue out of chancery made, and trial before a jury had, in pursuance of the statute, and a verdict was returned finding the instrument was not the will of Conrad Becker, deceased. A motion for a new trial was made, and a decree entered setting aside the will. The proponent prosecutes this appeal.

Conrad Becker was a German by birth, and came to this county about 1847. In 1859 he engaged in farming, and bought, raised, and sold stock. He was prosperous in business, and accumulated a considerable amount of money. Prior to 1859 he was married to a woman with one child (a son), and as issue of their marriage there were born a son and two daughters in lawful wedlock. One of the daughters died without issue.

The proponent called about 20 witnesses, one of them a brother, another the family physician, numerous persons who had worked for the testator at various times or who had been tenants of his, persons who had been trading with him in buying and selling stock, others who had borrowed money of him, and others who had transactions of various kinds with him. These witnesses testified as to his condition of mind covering a period long prior to the execution of the will, and to a period long subsequent thereto, and from their acquaintance and business transactions with him they testified that he was throughly competent to transact business, entirely capable, and, in their opinion, of sound mind. The contestant called an equal number of witnesses, among them a brother and a sister, others who had business transactions with him or propersed to have business transactions with him, and others who were tenants or had worked for him in various capacities, and who knew him well, who all testified that at times he was morose, sullen, cross, and abusive; that when things went wrong on the farm or in business his conduct was exceedingly abusive and violent towards his wife and son, he frequently denying the paternity of the latter and at other times praising him; that prior to the execution of the will the son, having arrived at manhood, paid attention to a young woman to whom the testator objected, and on the son marrying her he became exceedingly indignant, and very much angered towards the son, and frequently denounced him and denied his paternity. These witnesses called by the contestant, from their intercourse witht he testator, their observation of his conduct and manner, and their business transactions with him, testified that on frequent occasions when they saw him he was not of sound and disposing mind.

Where there is such conflict in the testimony as here, the question of whether the testator was of sound and disposing mind is one peculiarly within the province of the jury. The evidence in favor of the proponent of the will and the evidence of the ocntestant alike would sustain a verdict, when standing alone, in favor of either. In such case, the verdict of the jury and the action of the chancellor in overruling the motion for a new trial, where the jury and chancellor have had an opportunity to observe the witnesses and their manner and conduct on the stand, are entitled to great weight, and the verdict in such case will not, on the facts, be disturbed by an appellate tribunal. Long v. Long, 107 Ill. 210;Society v. Price, 115 Ill. 623, 5 N. E. 126;Hill v. Bahrus, 158 Ill. 314, 41 N. E. 912;Harp v. Parr, 168 Ill. 459, 48 N. E. 113.

A witness called by the proponent was interrogated, on cross-examination by counsel for appellee, as to the treatment by the testator of his family, and was asked, ‘Is it not true that he jumped on them and abused them without any cause whatever?’ This question was objected to, and the objection overruled, to which appellant excepted. The witness answered: ‘It seems that when anything went wrong about the machine he would take his spite out on his own children, when it was not their fault. He would curse them and call them bad names.’ The witness ran a threshing machine, made settlements, and transacted business with the testator, and expressed the opinion that he was of sound mind. On cross-examination the contestant had a right to call for any conduct or action of the testator, observed by the witness, that the jury might properly determine the value of the opinion of the wintess as to the testator being of sound mind. It was not error to overrule this objection.

Contestant called as a witness a brother-in-law of the testator, who testified in chief to conversations had with, and declarations made by, the testator, and of his actions towards his family. On cross-examination this question was asked: ‘What was the habit of the old man as to industry and attending to his business?’ To this the contestant objected, which objection was sustained, and the proponent excepted. It was not a proper cross-examination of any matter brought out in chief, and it was not error to sustain the objection thereto.

A witness called by the contestant was being examined in chief, and the witness stated that at one time he and some others were returning from town with the testator, and when they reached the testator's gate the testator went in, and some one laughingly called the attention of the witness to the testator, who, he says, ‘was making faces and slapping himself and making maneuvers,’ etc. The witness was then asked in chief, ‘I want you to state whether or not there was anything...