Barber v. Barber
| Decision Date | 10 April 1936 |
| Docket Number | No. 23212.,23212. |
| Citation | 362 Ill. 634,1 N.E.2d 44 |
| Parties | BARBER v. BARBER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Bill by George Barber against May Barber to contest the probate of the purported will of Fred L. Barber, deceased. From a decree for the proponent, the contestant appeals.
Reversed and remanded, with directions.Appeal from Circuit Court, Macon County; Charles Y. Miller, judge.
Lee Boland and James S. Baldwin, both of Decatur, for appellant.
Evans & Kuhle, of Decatur, for appellee.
This cause is here to review the decree of the circuit court of Macon county declaring a purported will to be the last will and testament of Fred L. Barber, deceased. The purported will was executed by Barber shortly before midnight on June 6, 1933. He died at 5:10 a. m. the following morning. He had been taken to the hospital on June 2 suffering from acute appendicitis. An operation revealed a ruptured gangrenous appendix. A condition of general peritonitis and toxemia, with attendant abdominal distention, high temperature, rapid pulse, much pain, and some delirium, were the symptoms found. Morphine in one-quarter grain quantities, strychnine, digitalis, and a saline solution were periodically administered hypodermically from then on until his death.
The appellant and the appellee, May Barber, brother and sister of the deceased, are his only heirs at law. The purported will devised all the property, part of which was real estate, to the sister. The instrument was admitted to probate as a will in the county court of Macon county, and the appellant filed a bill to contest the same. The grounds for the contest were that the deceased was not, at the time of the making of the purported will, mentally competent so to do or capable of understanding the nature of the act and making just disposition of his estate, that the appellee exercised undue influence and fraudulent practices to induce the deceased to sign the instrument, and that the purported will was not properly made, published, and attested. The cause was heard before a jury. Their verdict, upon special interrogatories submitted by the court, found that the testator, at the time of the execution of will, was of sound mind and memory; that he was not under improper restraint or undue influence; that at the time he knew the contents of the instrument, which had been read over to him or its contents made known to him before he signed it; that the witnesses signed in the presence of the testator; that at the time the testator signed the instrument he was of sufficient memory and mind to understand the business in which he was engaged, remember the natural objects of his bounty, and to recall the property of which he was possessed; and that the instrument was the last will and testament of the deceased.
The grounds upon which the appellant seeks reversal of the decree entered on the finding of the jury are that the testator, at the time of the execution of the instrument, was not of sound mind and memory, and that he did not know the contents of the instrument. Errors are also assigned on instructions and argument of counsel.
We will consider first the question whether there exists in the record sufficient proof of knowledge on the part of the testator, at the time he signed the purported will, of the contents thereof to satisfy the requirements of the law. The general rule is that proof of the testator's signature to the will is prima facie evidence that he understandingly executed the same. Teter v. Spooner, 305 Ill. 198, 137 N.E. 129;Compher v. Browning, 219 Ill. 429, 76 N.E. 678,109 Am.St.Rep. 346;Sheer v. Sheer, 159 Ill. 591, 43 N.E. 334. In the absence of evidence to the contrary, the law will presume that a person who executes a will does so with the knowledge of its contents. This, however, is a presumption which yields readily to evidence tending to show that such was not the fact. Purdy v. Hall, 134 Ill. 298, 25 N.E. 645;Keithley v. Stafford, 126 Ill. 507, 18 N.E. 740. It is also the rule in this state, based upon strong grounds of reason and justice, that, where a will is written by one largely benefited by it, such circumstance excites stricter scrutiny and requires stricter proof of volition and capacity. Under such circumstances, the proof must be of such character as to give full and entire satisfaction to the court or jury that the testator was not imposed upon but that he knew what he was doing and the disposition he was making when he made his will. Purdy v. Hall, supra; 1 Jarman on Wills (14th Am.Ed.) 42-45. The undisputed evidence in this record is that May Barber, the appellee, wrote the will. There is no evidence in the record tending to show that the will was either read by the testator, read over to him, or that he was in any way informed of its contents or knew that the instrument he was signing was a will. The...
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Ogle v. Fuiten
...evidence to the contrary, the law will presume that the testator executed his will with knowledge of its contents. (Barber v. Barber (1936), 362 Ill. 634, 1 N.E.2d 44.) In the will construction suits, this court found that the text of the wills did not reveal that the testators intended the......