Baker v. Baker

• Decision Date: 18 February 1903
• Citation: 202 Ill. 595,67 N.E. 410
• Parties: BAKER v. BAKER et al.
• Court: Illinois Supreme Court

202 Ill. 595

67 N.E. 410

BAKER

v.BAKER et al. ^*

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from Circuit Court, Cook County; R. W. Clifford, Judge.

Suit by William D. Baker against Frances M. Baker and others to contest the will of James E. Baker, deceased. From an action sustaining the will, plaintiff appeals. Affirmed.William D. Barge and Edgar B. Tolman, for appellant.

Henry R. Baldwin, for appellees.

WILKIN, J.

Appellant prosecutes this appeal from a decree of the circuit court of Cook county sustaining the last will and testament of James E. Baker, deceased, on his bill to contest the same. The grounds upon which it was sought to set aside the will were want of testamentary capacity in the testator, and that he was unduly influenced in making the same by Caroline B. Kuehn, James E. Baker, Edward B. Lathrop, and Frederick M. Atwood, named therein as legatees, trustees, and executors, the allegation being that they ‘falsely represented to the testator that the complainant was incapable of managing his affairs, and was an habitual drunkard and spendthrift, and not a proper person to be entrusted with the management of the property; that those defendants knew these representations were false, yet they made them to induce the testator to execute the will.’ All beneficiaries under the will, among whom are the widow and heirs at law, were made parties defendant, two of the legatees being minors. The death of the testator, probate of the will, and issuing of letters testamentary were duly averred. The widow, Frances M., made default, and a decree was rendered against her pro confesso. Guardians ad litem were appointed for each of the infant defendants, and they filed several answers in the usual form, setting up the infancy of their wards, etc. The other defendants answered the bill, denying the allegations as to want of testamentary capacity and undue influence, but admitting all the other facts alleged. Upon the bill and answers, an issue at law was made up whether the writing produced by the bill was the will of the testator, James E. Baker, or not, which was tried by jury, the evidence being heard in open court, except the testimony of one of proponents' witnesses, by the jury. The verdict was in favor of the validity of the will, and the court, after overruling complainant's motion for a new trial, entered its decree sustaining the same, and ordering the complainant to pay the costs of the suit, including a fee of $50 to John E. Singworth, as guardian ad litem of the infant defendant Madeline T. Atwood, and a fee of $150 to Daniel M. Healey, as guardian ad litem of the infant defendant Katherine Baker. The complainant duly excepted, and was allowed this appeal.

The errors assigned and urged as grounds of reversal are: First, the verdict is contrary to a preponderance of the evidence; second, the court erred in permitting improper evidence to go to the jury on behalf of the proponents; third, the court erred in excluding proper evidence offered by the contestant; fourth, the court gave improper instructions for the proponents; fifth, the court refused proper instructions for the contestant; sixth, the court erred in refusing to permit the widow of the testator to testify (which is included in the third); seventh, the court erred in allowing Healey a fee of $150 for services as guardian ad litem, and taxing that fee against appellant.

The following is a copy of the will and attestation:

‘I, James E. Baker, of the city of Chicago, county of Cook, and state of Illinois, being of sound mind and memory, and considering the uncertainties of life, do therefore make, publish, and declare this to be my last will and testament.

‘First-I give, devise, and bequeath all my property of every kind, real, personal and mixed, to such of my executors and trustees hereinafter named as may accept and serve, and to the survivors of them and successors, as herein provided, in trust for the following purposes:

‘To pay all my just debts and funeral expenses as soon after my decease as conveniently may be.

‘To hold and manage, to the best of their ability, my estate during the life of my dear wife, Frances M. Baker, and during said period of her natural life to distribute the net income thereof as follows:

‘(a) To pay to my beloved wife, Frances M. Baker, one-third (1/3) of all the net income of said estate.

‘(b) To pay to my daughter, Caroline B. Kuehn, two-ninths (2/9) of all the net income of said estate.

‘(c) To pay to my son James E. Baker two-ninths (2/9) of all the net income of said estate.

‘(d) To pay for the support and education of my grand-daughter, Katherine Baker, and the support (in such manner as will best protect his welfare) of my son William D. Baker, and the survivor of them, two-ninths (2/9) of all the net income of said estate.

‘(e) The following bequests to be paid during the executorship, from the revenue of my entire estate, as soon after my death as possible, without inconvenience to my heirs, viz.: To Edward B. Lathrop, $5,000; to Frederick M. Atwood, $2,000; to Mrs. Frederick M. Atwood, $1,000; to Edith C. Atwood, $1,000; to Madeline T. Atwood, $1,000. Any payment made on account of the above bequests during my life, for which receipts are filed herewith, shall diminish said bequests by the respective amounts of such receipts.

‘Second-I desire that my estate shall not be divided during the life of my dear wife, Frances M. Baker. At her death it shall be divided into three (3) equal parts:

‘(a) The first to go to my son James E. Baker, if he be then living, and, if he shall be deceased at that time, then to his heirs at law then living.

‘(b) The second to go to my daughter, Caroline B. Kuehn, if she be then living, and if she be not then living the property shall be held by my executors and trustees and its net income paid over to her son during his life, and at his decease it shall go to and belong to his children, if he leave any, and, if he die without leaving children, then to his maternal heirs.

‘(c) The third portion shall be controlled and managed by said executors and trustees, and so much of its income as is deemed necessary shall be by them applied to the suitable support and education of my granddaughter, Katherine Baker, the remainder of said income to be paid over, from time to time, to my son William D. Baker, and, in the event of the death of either, the income provided for him or her, respectively, shall be applied for the benefit of the survivor. The provisions hereby made as to payment of income are to continue during the life of said Katherine and the said William D. Baker, and the survivor of them, and at the decease of the said survivor the property shall go and belong to the children of said Katherine Baker and the said William D. Baker, share and share alike. Should there be no surviving child or children of either said Katherine Baker or the said William D. Baker, then the property shall go and belong to the paternal heirs of such survivor.

‘Third-I hereby constitute and appoint executors hereof and trustees hereunder (and I desire that no bonds shall be required of them or any of them) the following persons, or such of them as may serve: My daughter, Caroline B. Kuehn; my son James E. Baker; my friend Jesse A. Baldwin; my friend Frederick M. Atwood. And I especially request that such as may serve in either or both capacities will secure, from time to time, the judgment, upon matters pertaining to the trust, of such as may not serve, and in the event that they should all decline to serve or should all resign, I appoint the Northern Trust Company of Chicago, with the same powers and duties.

‘I particularly give to my executors and trustees, and to each of them as may serve, from time to time, full power and authority to do any act or any thing, and make any conveyance or conveyances by them deemed necessary to effectuate the purpose hereof, hereby expressly providing that the acts of a majority of such as serve shall be deemed the acts of all, and that neither shall be liable for the acts of the other, but only for the exercise of good faith.

‘In witness whereof I have hereunto set my hand and affixed my seal this 27th day of September, A. D. 1899.

‘James E. Baker. [Seal.]’

‘The foregoing instrument, consisting of about three and one-half pages, was, at its date, signed, published and declared by the testator, James E. Baker, to be his last will and testament in the presence of us, who at his request, in his presence, and in the presence of each other, have subscribed our names hereto a witnesses, believing the said James E. Baker to be of sound mind and memory and of about the age of eighty-three years.

‘J. R. Richardson, M. D.,

‘Residing at 1671 West Congress street.

‘Charles T. Boal,

‘Residing at 1732 Michigan avenue, office 222 Reaper Block.

‘Henry E. Patrick,

‘Residing at 414 Wisconsin avenue, Oak Park, Illinois.’

‘Filed February 14, 1900.-James Reddick, Clerk.’

The three attesting witnesses testified as follows:

Henry E. Patrick, that he had been in business in Chicago 14 years; that he identified his signature to the will, and that he signed it in the private office of Jesse A. Baldwin, September 27, 1899; that the testator, Dr. J. R. Richardson, Charles T. Boal, and himself, and Jesse A. Baldwin, were present at the time of signing; that he was there from 15 minutes to a half hour; that he saw Mr. Baker sign the paper, and that Mr. Baker saw witness sign it. He explains the circumstances of being there for from 15 to 30 minutes by Mr. Baldwin being called from the private office on other business and those present waiting for his return. He says: ‘I had a conversation with the old gentleman, and so did the others. He said he had formerly been in business at Madison, Wisconsin. He asked me about my family, and I informed him I had a son in the University of Wisconsin. I signed my name at the request of James E. Baker. He wished me to sign as a...