Bd. of Nat'l Missions of the Presbyterian Church v. Sherry

• Citation: 23 N.E.2d 730,372 Ill. 272
• Decision Date: 06 December 1939
• Docket Number: No. 25209.,25209.
• Parties: BOARD OF NATIONAL MISSIONS OF THE PRESBYTERIAN CHURCH et al. v. SHERRY et al.
• Court: Supreme Court of Illinois

372 Ill. 272

23 N.E.2d 730

BOARD OF NATIONAL MISSIONS OF THE PRESBYTERIAN CHURCH et al.

v.SHERRY et al.

No. 25209.

Supreme Court of Illinois.

Oct. 13, 1939.

Rehearing Denied Dec. 6, 1939.

Proceeding for probate of the will of Catherine C. Bennett, deceased, opposed by Pearl Sherry and others. From an order of the circuit court, affirming an order of the county court denying probate, the Board of National Missions of the Presbyterian Church and others appeal.

Reversed and remanded, with directions.Appeal from Circuit Court, McDonough County; Rily E. Stevens, judge.

Roswell B. O'Harra and Flack & Kerman, all of Macomb, for appellants.

C. G. Gumbart, of Macomb, for appellees.

WILSON, Chief Justice.

Catherine C. Bennett, a widow, eighty-three years of age a resident of Good Hope, McDonough county, died in September, 1938. Her estate consisted of both real and personal property. An instrument dated December 3, 1929, purporting to be her last will and testament, was denied admission to probate by the county court of McDonough county. After a hearing de novo, the circuit court affirmed the order of the county court. The two residuary devisees and legatees and a specific devisee prosecute this appeal. Three first cousins, heirs-at-law of the testatrix, and the administrator of her estate are the appellees.

The sole issue presented for decision is whether the will was revoked by the testatrix. We have examined the will, consisting of three typewritten pages, which was certified to us for inspection. Mrs. Bennett's signature in pen and ink appears in three places, on the left-hand margin of the first two pages and at the end of the will on the third page. Her name occurs three times, once in the exordium clause and twice in the attestation clause. The will was duly attested. Numerous pencil marks and notations made thereafter appear on the document. The parties stipulated that the pencil handwriting upon the face of the will, consisting of words, was in the handwriting of the deceased. Neither the exordium clause nor the first section directing payment of debts have been changed. The second section makes bequests to fifteen individuals and also a charitable bequest. Six of the sixteen paragraphs remain unchanged. These include three monetary bequests and three benequests of household furnishings and personal effects. A description of the pencil marks and notations on several paragraphs of the second section of the will is as follows: Pencil marks run through the name of the legatee, the amount of the legacy and the description of a piece of jewelry in the second paragraph. In the opposite right-hand margin is the word ‘deceased.’ Reductions in legacies of $250 and $500 in the fourth and fifth paragraphs, respectively, have been made by horizontal lines through the word ‘Two’ and writing above it the word ‘One’ and running a vertical line through the number ‘2’ in ‘250’ and interlining the figure ‘150’ in the fourth paragraph, and, in the fifth paragraph, by a line through the words ‘Five Hundred’ and the figures ‘$500’ and placing above the latter ‘$250.’ The residence addresses of the legatees in these paragraphs have been stricken and one new address substituted. A bequest of $1,000 ‘toward the building of a Y.M.C.A. building in Macomb, Illinois, if the same is built within one year of my death,’ has been encircled, five vertical marks cross it, the letter ‘W’ has been superimposed on the letter ‘M’ in the letters ‘Y.M.C.A.’, horizontal marks run through the figure ‘$1000,’ and immediately below it there has been added ‘Y.W.C.A. 500.’ A bequest of dishes to which the testatrix attached a sentimental interest has been stricken and in the right-hand margin of the paragraph is the explanatory notation ‘she has them.’ The bequest in the twelfth paragraph to Mrs. E. E. Porter of ‘the bed that she borrowed of me’ has two lines through each word. A bequest in the fourteenth paragraph to a cousin of an ‘old english gold watch and heavy chain’ has pencil marks running through the words ‘and heavy chain’ and immediately below the stricken words is the information ‘sold.’ The last paragraph of section 2 bequeathing a Hupmobile to I. W. Black has been stricken. This automobile, it appears, was disposed of by the testatrix several years prior to her death. The third section of the will devising ten acres of land in Sacramento county, California, to J. W. Burtch has been stricken, and in the right-hand margin are the words ‘now deceased.’ By the fourth section of her will Mrs. Bennett devised and bequeathed the residue of her estate to her executor, with directions to convert it into cash. This section further provides that the proceeds from the sale of the testatrix's interest in the old Bennett homestead shall ‘be divided equally between the McDonough County Orphanage and the Presbyterian Church of Good Hope, Illinois.’ The words ‘be divided equally between the McDonough County Orphanage’ have been underscored, ‘and the’ remain unchanged, a loop has been drawn around the designation of the other legatee and on the right-hand margin there has been written the following: ‘Presbytery to which the church in Good Hope belongs.’ Provision is then made for equal division of the residue between the boards of National Missions and Foreign Missions of the Presbyterian Church in the United States. Eight connecting diagonal lines run through the residuary clause. The appointment of C. G. Gumbart, as executor, the testimonium clause, the signature of Mrs. Bennett to the will, the attestation clause and the signatures of the two attesting witnesses have not been changed.

I. W. Black, who had lived in Mrs. Bennett's home for eleven years, testified that several days after her death he found the will in a long envelope upon which was printed in the upper left-hand corner the return address ‘Law Officer of Gumbart & Grigsby, Macomb, Illinois.’ Across the other end of the envelope are the typewritten words ‘Last Will and Testament of Catherine C. Bennett’ and on the face of the envelope in dim lead pencil in the handwriting of the deceased these words appear: ‘August 1st 1938 The enclosed will not to be executed Kate Bennett.’ The envelope was admitted in evidence.

Section 17 of the act in regard to wills (Ill.Rev.Stat. 1937, chap. 148, § 19, p. 3195) expressly provides: ‘No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence; and no words spoken shall revoke or annual any will, testament or codicil in writing, executed as aforesaid, in due form of law.’ No claim is made that the will was revoked by burning or tearing or by any subsequent instrument. Since...