Aftalion v. Stauffer
| Decision Date | 20 June 1918 |
| Docket Number | No. 12095.,12095. |
| Citation | 284 Ill. 54,119 N.E. 981 |
| Parties | AFTALION v. STAUFFER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Peoria County; John M. Niehaus, Judge.
Bill by Inez E. Aftalion against Ethnol M. Stauffer and others to contest a will. Judgment for complainant, and proponents appeal. Affirmed.
Hiram E. Todd and Hugh E. Wilson, both of Peoria, for appellants.
Weil & Bartley, of Peoria, for appellee.
Appellee, Inez E. Aftalion, as complainant in the court below, filed a bill in the circuit court of Peoria county to contest the will of her mother, Eleanor M. Edwards. The bill charged undue influence and want of mental capacity of the testatrix. Issues were made up and submitted to a jury, which returned a verdict, finding the writing produced as the last will and testament of Eleanor M. Edwards was not her will. A motion by proponents for a new trial was overruled, and a decree entered setting aside the alleged will and the probate thereof. From that decree proponents have appealed.
Eleanor M. Edwards was the widow of Isaac C. Edwards, who died about 14 years ago. They resided in Peoria, and had two daughters, contestant, Inez E. Aftalion, and proponent, Ethnol M. Stauffer, their only children. Some time after her husband's death Mrs. Edwards went to Paris, France, where she resided temporarily the last few years of her life, and where she died April 8, 1915. The daughter Ethnol resided with her mother while she lived in Paris, and the daughter Inez resided in this country. In May, 1914, Mrs. Edwards returned to America, leaving her daughter Ethnol in Paris. After visiting with friends in New York a few days Mrs. Edwards went to Peoria, arriving there about the last of May. She lived at the Jefferson Hotel a few weeks, and then went to live with her sister, who resided in Peoria. Late in the summer she became ill, suffered a stroke of paralysis, and was taken to a hospital, where she remained about ten days. After leaving the hospital she lived with a brother in Peoria until about the middle of November, when, accompanied by her sister-in-law, Mrs. Baynard, she went to Chicago. There she secured rooms and board with a private family, where she lived until she departed to return to Paris, about the middle of December. While in Chicago she visited her daughter Inez, who resided in that city, and spent Thanksgiving Day at the home of Inez. A few days after Thanksgiving the daughter Ethnol arrived in Chicago from Paris. Prior to the arrival of Ethnol Mrs. Edwards called at the office of W. B. McIlvaine, a member of the law firm of Wilson, Moore & McIlvaine, and consulted him with reference to the revocation of a power of attorney she had given her daughter Inez before coming to Chicago. On the 1st day of December, 1914, accompanied by her daughter Ethnol, Mrs. Edwards went to the office of McIlvaine, where she executed the will in question. The first clause of the will directed that all her debts and funeral expenses be paid. The second clause stated the testatrix had theretofore given her daughter Inez all household goods, furniture, and pictures used by herself and daughter in their apartments in Paris some years before while temporarily residing there; that she had also furnished her daughter Inez several thousand dollars for a musical education in Paris, and had conveyed to her a large number of pieces of real estate in Peoria county, Ill. By the third clause she devised and bequeathed to the daughter Ethnol all her property, real, personal, and mixed, including her jewelry and clothing. Francis H. Tichenor was named executor. Mrs. Edwards died in Paris, France, April 8, 1915, and the will was admitted to probate in Peoria county, whereupon testatrix's daughter Inez filed her bill to contest and set aside the will and probate on the grounds above stated.
Three grounds are alleged and argued in the brief of proponents why the decree should be reversed: (1) The court erred in admitting incompetent evidence; (2) the court erred in denying proponents' motion to take the question of undue influence from the jury; and (3) the verdict and decree are contrary to the weight of the evidence.
W. B. McIlvaine testified he had met and transacted some business for Mrs. Edwards in 1910, and did not see her again until shortly before November 21, 1914, when she came to his office to consult him about a power of attorney to Francis H. Tichenor, her attorney at Peoria, authorizing him to handle her property. Mrs. Edwards stated she understood Tichenor would send such an instrument to McIlvaine's office. She left her telephone number with him, and asked him to notify her when it was received. McIlvaine received a letter from Tichenor a day or two later with reference to the power of attorney, and notified Mrs. Edwards, who came to his office. McIlavaine told her he thought Tichenor should prepare the power of attorney, as he was familiar with her property, and wrote Tichenor to that effect. Tichenor prepared and sent to McIlvaine the document for execution, and McIlvaine sent it by mail to Mrs. Edwards. A few days later Mrs. Edwards called at McIlvaine's office, and objected to the instrument because it did not confer power to sell real estate. It was rewritten and executed in McIlvaine's office. Mrs. Edwards said she had given a power of attorney to her daughter Inez, authorizing her to manage her property, draw on her bank account, etc.; that she was dissatisfied with this, and inquired what she could do. McIlvaine explained she could revoke it by another instrument, and he prepared the instrument of revocation, which she executed November 23, 1914. While these instruments were being prepared Mrs. Edwards produced a photographic copy of a will executed by her in Paris, and said she wanted to execute another will, so the witnesses would be available in this country. McIlvaine gave the photographic copy to a stenographer to copy. It was afterwards copied by the stenographer, and on December 1st Mrs. Edwards returned to McIlvaine's office and executed the will. It was witnessed by McIlvaine and two other men employed in his office. The daughter Ethnol was with her mother through the transaction when the will was executed. McIlvaine testified that in his opinion Mrs. Edwards had mental capacity to know and comprehend what property she owned, what disposition she wished to make of it, and to know and understand the business in which she was engaged. W. R. Dickinson, a witness to the will, testified he was introduced to Mrs. Edwards. He asked her if the paper was her will and she said it was. He saw her sign it, and at her request McIlvaine, himself and one Templeton signed it as witnesses. From what he saw of testatrix he believed her of sound mind.
The will, from a photographic copy of which the will in dispute was prepared, was executed in Paris June 30, 1913. Henry Charles Charpert, a lawyer then having an office in Paris, testified he prepared the will of that date at his office; that Mrs. Edwards, with whom he had become acquainted some months before, came to his office, accompanied by her daughter Ethnol, and asked him to prepare a will for her. He asked the daughter to step into another room. Mrs. Edwards explained what she wanted to do with her property. She said she wanted to give it to her daughter Mrs. Stauffer; that she had conveyed considerable real estate to Mrs. Aftalion, and had advanced her various sums of money, and she asked to have those things mentioned in the will as the reason she left nothing to Mrs. Aftalion. The witness testified he believed Mrs. Edwards was of sound mind at the time she executed the will. Isaac Benjamin and John. A. J. Smith were the witnesses to that will. Both testified in depositions that they were acquainted with Mrs. Edwards prior to the time they witnessed her will and that they believed her to be of sound mind at the time the will was executed. Other witnesses in France and America who knew Mrs. Edwards while she lived in Paris expressed the opinion that she had mental capacity to know and comprehend her property, the objects of her bounty and what disposition she wished to make of her estate. Several other witnesses residing in this country, some related by blood or marriage to Mrs. Edwards, testified to their opinions that she was of sound mind after her return to this country from France, in the spring of 1914, and at the time the disputed...
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