Allmon v. Pigg
| Decision Date | 30 June 1876 |
| Citation | 82 Ill. 149,25 Am.Rep. 303,1876 WL 10158 |
| Parties | EMILY ALLMON et al.v.THOMAS PIGG et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Marion county; the Hon. AMOS WATTS, Judge, presiding.
Mr. B. B. SMITH, and Mr. W. W. WILLARD, for the plaintiffs in error.
Messrs. BRYAN & KAGY, Mr. H. C. GOODNOW, and Mr. T. E. MERRITT, for the defendants in error.
The decree of the court below sets aside, as null and void, the last will and testament of Hiram Allmon, deceased, and also certain conveyances made by his widow, the principal devisee under the will, on the ground of undue influence and fraud.
The rule recognized by this court is, “that the influence, to avoid a will, must be such as to destroy the freedom of the testator's will, and thus render his act obviously more the offspring of the will of others than of his own; that it must be an influence specially directed toward the object of procuring a will in favor of particular parties; and if any degree of free agency or capacity remained in the testator, so that, when left to himself, he was capable of making a valid will, then the influence which so controls him as to render his making a will of no effect, must be such as was intended to mislead him to the extent of making a will essentially contrary to his duty, and it must have proved successful to some extent, certainly.” Roe et al. v. Taylor, 45 Ill. 491.
The evidence in this record entirely fails to even approximate this requirement. The will in itself is not an unreasonable one. The property, except the nominal sum of one dollar given to each of the testator's children, is left to his wife, their mother. The evidence shows the testator was in his right mind when he made the will, and there is no evidence that it was not his own voluntary act. He dictated the terms of the will, and when the first copy was drafted he objected to it because it gave all the property to his wife--he being of opinion, as he expressed himself, that, to make it legal, it was necessary to give the heirs something; and at his instance it was redrawn with that correction, and signed by him. He then expressed himself entirely satisfied, and that “he was ready to go”--meaning thereby that he was prepared to die.
As to the ultimate disposition of the property, there is no doubt he expected his wife to make an equitable distribution of what she should not consume,...
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...v. Lawson, 117 Ill. 98 ;Moore v. Horsley, 156 Ill. 36 ;Champlin v. Champlin, 136 Ill. 309 [26 N. E. 526,29 Am. St. Rep. 323];Allmon v. Pigg, 82 Ill. 149 ;Rogers v. Simmons, 55 Ill. 76.’ In order to raise a trust ex maleficio there must be an element of positive fraud in the transaction. In ......
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Carl v. Gabel
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