81 N.E. 798 (Ill. 1907), Wickes v. Walden

Citation:81 N.E. 798, 228 Ill. 56
Opinion Judge:PER CURIAM.
Party Name:WICKES et al. v. WALDEN et al.
Attorney:[228 Ill. 60] William P. Black and Mason & Mason, for appellants. Frank H. Scott and F. B. Johnstone, for appellees.
Case Date:June 19, 1907
Court:Supreme Court of Illinois
 
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Page 798

81 N.E. 798 (Ill. 1907)

228 Ill. 56

WICKES et al.

v.

WALDEN et al.

Supreme Court of Illinois

June 19, 1907

Appeal from Circuit Court, Cook County; Lockwood Honore, Judge.

Bill by Thomas H. Wickes and others against Hugh P. Walden and others. From a decree for defendants, complainants appeal. Affirmed.

This is a bill filed by appellants to set aside an instrument purporting to be the last will of their father, Thomas H. Wickes, deceased, on the ground that at the time he signed it he was not of sound mind and memory, and was unduly influenced. It is charged that the unsoundness of mind was caused by excessive indulgence in alcoholic liquors and also by a disease termed 'satyriasis'; that is, an inordinate desire for sexual gratification. Testator died March 28, 1905. His will, bearing date February 15, 1904, was admitted to probate in the probate court of Cook county on May 10, 1905. This bill was filed in the circuit court of Cook county on May 26, 1905, and thereafter an issue at law was made up as provided by statute and submitted to the jury whether the writing was the will of the testator or not. The defendants introduced in evidence the certificate of the oath of the witnesses at the time of the probate of the will, and both parties offered oral evidence at length in support of and against the allegations of said bill. At the close of the testimony, and before the arguments to the jury, the court gave, at the request of counsel for defendants, an instruction to the effect that there was no evidence in the case of any undue influence, and the jury were therefore instructed to disregard entirely that charge in arriving at their verdict. The jury on October 23, 1906, returned a verdict that the instrument in writing set out in the bill of complaint and introduced in evidence was the last will and testament of Thomas H. Wickes, deceased. After motion for new trial was overruled a decree was entered by the court on November 10, 1906, in accordance with this finding. From that decree an appeal was prayed to this court. The will provides, in substance, as follows: (1) To testator's nephew, Hugh P. Walden, a residence on Prairie avenue, in Chicago, and five lots in Hammond, Ind.; 'also my library, and also, for distribution by him among my relatives and friends, as he may see fit, my silverware, tableware, jewelry, pictures, and such other of my household goods as may be selected by him.' (2) Gives to his executors all the rest and residue of his estate, and directs that they convert the same into money, with full power to convey. (3) From the moneys so coming to their hands said executors to pay to the Northern Trust Company, as trustee, $100,000, upon the following trusts: (a) Said trustee to invest said fund and from the net income to pay testator's son, Thomas H. Wickes, Jr., $500 per year during his lifetime, in equal quarterly installments, and at his death said annuity shall cease; (b) remainder of net income of said fund, after paying said $500, to be paid one-half to testator's daughter Laura Annette Wickes Felt and one-half to testator's daughter Florence Wickes Johnston, during the respective natural life of each; (c) upon the death of each daughter, respectively, the share of the income otherwise going to her shall be paid her lawful issue, and, when all the children of said daughters shall have attained the age of 21, said trustees shall pay to such children per capita, or to their descendants per stirpes, the principal from which such children, respectively, derive income; (d) upon the death of either daughter without leaving lawful issue, one-quarter of the fund to the Home for Destitute and Crippled Children and one-quarter to the Chicago Orphan Asylum, upon the death of the other daughter without leaving lawful issue, one-quarter of said fund to the Old People's Home and one-quarter to the Home for Friendless; (e) enough to be retained during son's lifetime to provide for his annual payment of $500; (f) none of said children or their issue shall have power to anticipate, alien, or transfer any part of the income coming to them before actually received by them. (4) To the Northern Trust Company $25,000 in trust, to invest and pay the net income to the testator's brother, Charles B. Wickes, during his natural life, and upon his death $12,500 to St. Luke's Hospital, the income to be used to maintain free beds, and the other $12,500 in trust for the daughter of said Charles B. during her life, and on her death to ge to the residuary estate. (5) To the Northern Trust Company $25,000 in trust, to invest and pay the income to testator's sister Mary Walden during her life, and at her death said $25,000 to go in equal shares to said sister's two daughters and their heirs. (6) Same amount in same manner for testator's sister Alice Crisp, her daughter and the latter's heirs. (7) To testator's nephew, Hugh P. Walden, $30,000, and to Richmond Dean $5,000. (8) One thousand dollars each to the four institutions mentioned in 'd' above. (9) Should the estate not be sufficient to carry out all of the bequests, each of them, except that in paragraph 1, shall be decreased in same proportion, but paragraph 1 shall not be affected thereby, no part to be intestate, all lapsed legacies to become part of residuary estate. (10) All the remainder to be divided into four equal parts--one to niece, Annie Alice Bond, one to nephew, Hugh P. Walden, two to trustees for benefit of testator's two daughters, ultimate destination of said two parts as by paragraph 3. (11) Income to be paid to beneficiaries from time of testator's death, as far as may be. (12) Appoints Hugh P. Walden and William Burry executors, with Richmond Dean as alternate; no bond.

Executed February 15, 1904, in the presence of three witnesses. The estate appears to have amounted to something near $200,000.

[228 Ill. 60] William P. Black and Mason & Mason, for appellants.

Frank H. Scott and F. B. Johnstone, for appellees.

PER CURIAM.

In order to consider fairly the rulings of the trial court, both as to the admission and exclusion of testimony and the giving and refusal of instructions, it is necessary to state at some length and in some detail the evidence claimed to show undue influence and mental incapacity, alleged to have been caused by alcoholic and sexual indulgence.

[228 Ill. 61] The testator, Thomas H. Wickes, was born in 1846. In 1871 he married his first wife, Laura U. Wickes. Appellants are the children of this marriage--Laura Annette Wickes Felt, aged at the time of the hearing 34 years, Thomas Harry Wickes, Jr., aged 31, and Florence Lillian Johnston, aged 29. Neither daughter had children living at the time the will was made. The son had one child, a boy, aged eight at the time of the hearing. The testator, at the time of this marriage, was in the employ of the Pullman Company at St. Louis at a comparatively small salary. The family moved to Chicago in 1884, where testator rose step by step through several positions, including those of general superintendent and second vice president, until at his death he was first vice president of the Pullman Company. The first Mrs. Wickes was four years older than testator, and had been married twice previous to her marriage with him, losing both her husbands by death. The testator's second wife was Clarissa A. Wickes. She testified that they first met on a train in 1893, when she was still married to a Mr. Croff, then living in Denver, and testator was still married to his first wife; that at the second meeting Wickes informed her that he intended to file a bill for divorce, and suggested that she do likewise, and that after obtaining the divorces they should marry each other; that he dictated a letter which she wrote to her husband, stating that she had lost her affection for him and would not come back, and that on this letter and evidence of bad temper her husband secured a divorce from her, and, Wickes having also secured a divorce from his wife, she and testator were married March 20, 1895. Testator's third wife was Edna Parker Wickes. They first met, according to her testimony, in 1900 (when she was a Mrs. Nelson) at a dinner party of four at a Chicago hotel. She testified that the same evening the four went to testator's house, his wife being in Europe and her husband not being present; that she afterwards visited testator at his [228 Ill. 62] residence, sometimes alone, usually with others; that he solicited of her before their marriage an unnatural sexual relation; that she and testator each secured a divorce at testator's suggestion, and were married about 11 months after their first meeting. She and testator were divorced from each other in 1904.

R. M. Patterson, one of appellants' witnesses, testified that he met Wickes casually on horseback rides along the boulevards and through the parks some eight or ten times during two years, from about 1902 to 1904; that on these occasions, as they rode together, Wickes continually made comments on the size or appearance of many of the ladies they passed, and suggested that they 'make dates' with them, which witness refused to do; that from testator's talk concerning women and his manner of looking at them the witness considered Wickes insane.

Frank C. Wickes, a nephew of testator, testified that one night when he and his uncle were staying with a man and wife in a three-room flat in St. Louis he awoke in the night and found testator and the woman in bed with him; that this woman visited testator at the sleeping car in which testator sometimes slept in St. Louis. These occurrences were said to have happened in 1878, when the witness was about 15 years of age, and some 26 years before the making of the will.

Some testimony was offered concerning a certain Mrs. Sullivan, who it was claimed called at...

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