Bailey v. Oberlander

• Decision Date: 21 April 1928
• Docket Number: No. 17613.,17613.
• Citation: 161 N.E. 65,329 Ill. 568
• Parties: BAILEY v. OBERLANDER et al.
• Court: Illinois Supreme Court

329 Ill. 568

161 N.E. 65

BAILEY

v.OBERLANDER et al.

No. 17613.

Supreme Court of Illinois.

April 21, 1928.

Commissioner's Decision.

Suit by Mary E. Bailey against George Oberlander and others to contest the will of Sarah E. Savage. From a decree sustaining the will, complainant appeals.

Affirmed.

Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

John T. Murray and P. F. Murray, both of Chicago, for appellant.

Kannally & Megan, of Chicago, for appellees.

PARTLOW, C.

Appellant, Mary E. Bailey, filed her bill in the circuit court of Cook county to contest the will of her sister, Sarah E. Savage, on the ground of her mental inability to execute the will, and on the ground of the fraud, deceit, misrepresentation, and undue influence of her brother, George Oberlander, who was the principal beneficiary under the will. There was a trial by jury, a verdict, and decree sustaining the will, and an appeal has been prosecuted to this court.

At the time the will was executed, the testatrix was about 76 years old. For many years she was a teacher in the Chicago public schools. She lived with her husband on Sheridan road, in Wilmette. They had no children. Her sister Emily Stenberg, who was a widow and feeble minded, lived with her. For about 2 years prior to the death of the testatrix, her brother George lived in the family. The testatrix had another sister, Mrs. Bailey, appellant herein, and another brother, John Oberlander, who lived in Ohio. In November, 1922, the testatrix's husband took sick, and he died May 8, 1923, leaving a will, which gave all of his property to her. A few days after the death of her husband, she visited the office of her attorney for the purpose of having the will of her husband probated. At that time she told her attorney she wanted to make her will. On May 24, 1923, she executed the will in question, in which she gave all of her property to her brother George on condition that he expend from time to time such sums as were necessary for the comfortable support and maintenance of their sister Emily during her lifetime. On June 4, 1923, the testatrix had a stroke of paralysis, and died on June 18, 1923. John Oberlander died October 10, 1923, and Emily Stenberg died June 7, 1924.

Ten witnesses testified that the testatrix was of sound mind at the time she executed her will. Three of them were lawyers who witnessed her will. One of them had known her over 40 years, and had gone to school to her. Another had known her about 5 years. The physician who cared for her husband from April 28, 1923, to the time of his death, testified that after the death of her husband he saw her from sixteen to eighteen times and talked to her on each occasion, and that she was of sound mind and memory. The other witnesses included the nurse who waited on the testatrix during her last illness; a real estate man who had business transactions with her and her husband just before the death of the husband and with her after his death; a public stenographer who had known her for over 37 years; the supervisor of operations of the Chicago & Northwestern Railway, who had known her about 6 years; and two business men, one of whom had known her 16 or 17 years and the other had known her about 5 or 6 years. Nine witnesses testified for appellant, five of whom were related to the testatrix in some degree. Seven of them expressed no opinion as to her mental ability to make a will. Two testified that at times she was irrational. One said that by irrational she meant that the testatrix was not of sound mind. Some of them testified that the testatrix in her younger days had been a bright woman, highly educated, had taught school and had been neat, tidy, and attractive in her manner of dress; that during the last few years of her life she seemed to lose a great deal of her education, became careless in her dress and appearance, her hair was unkempt, her clothes and hats were out of style, she wore long dresses which swept the ground, her home was untidy, and she was penurious. Some of them testified that she was nervous, forgetful, repeated frequently, recited poems dramatically, and joined Bahai Temple. One witness testified that whatever pet theories she had she would expound them by the hour. She said she would not sell the property which she owned in Skokie swamp because they were going to move the national capitol there; that she had a vision; that she stood on a bridge over the river that went by her property; that it would make a beautiful site for a hotel; that she could see aeroplanes landing on the roof; that she would sell the property if she could get $1,000,000, and that she had turned down $300,000 for it.

[1][2][3][4][5][6][7]The question is whether or not this evidence was sufficient to show that the testatrix was so mentally deficient that she was unable to make a will. In order to have testamentary capacity, a testatrix does not have to be absolutely of sound mind and memory in every respect. Hutchinson v. Hutchinson, 152 Ill. 347, 38 N. E. 926. All that is required is that she have sufficient mental ability to know and remember who are the natural objects of her bounty, to comprehend the kind and character of her property, and to make disposition of that property according to some plan formed in her mind. Donovan v. St. Joseph's Home, 295 Ill. 125, 129 N. E. 1;Dowdey v. Palmer, 287 Ill. 42, 122 N. E. 102;McLean v. Barnes, 285 Ill. 203, 120 N. E. 628. Physical and mental weakness due to old age will not necessarily render one incompetent to make a will. Although a woman may be physically and mentally weak, if she has sufficient mental ability to comply with the requirements above stated, she is competent to make a will. Woodman v. Illinois Trust & Savings Bank, 211 Ill. 578, 71 N. E. 1099;Pooler v. Cristman, 145 Ill. 405, 34 N. E. 57. She must understand the particular business in which she is engaged. Austin v. Austin, 260 Ill. 299, 103 N. E. 268, Ann. Cas. 1914D, 336;Johnson v. Farrell, 215 Ill. 542, 74 N. E. 760. The test refers to the time of making the will. Turckheim v. Birkley, 287 Ill. 434, 122 N. E. 814. Eccentricity, uncleanliness, slovenliness, neglect of person and clothing, offensive and disgusting habits, do not constitute unsoundness of mind. Estes v. Clark, 317 Ill. 585, 148 N. E. 263. It is not every insane delusion that will avoid a will. In order to avoid a will, the insane delusion must affect the testamentary disposition of the property. American Bible Society v. Price, 115 Ill. 623, 5 N. E. 126;Owen v. Crumbaugh, 228 Ill. 380, 81 N. E. 1044,119 Am. St. Rep. 442,10 Ann. Cas. 606. It is only where the finding of the jury is clearly and manifestly against the weight of the evidence that a court of review will reverse a decree in a case of this kind. McGrady v. McGrady, 298 Ill. 129, 131 N. E. 251;Daugherty v. State Savings, Loan & Trust Co., 292 Ill. 147, 126 N. E. 545. In this case the clear preponderance of the evidence, including both the number of witnesses who testified and the facts about which they testified, shows that the testatrix was of sound mind and memory, and was mentally capable of making a will.

[8] The charges of fraud, deceit, and misrepresentation alleged in ...