Bevelot v. Lestrade

• Decision Date: 23 November 1894
• Citation: 153 Ill. 625,38 N.E. 1056
• Parties: BEVELOT v. LESTRADE et al.
• Court: Illinois Supreme Court

153 Ill. 625

38 N.E. 1056

BEVELOT

v.LESTRADE et al.¹

Supreme Court of Illinois.

Nov. 23, 1894.

Appeal from circuit court, St. Clair county; B. R. Burroughs, Judge.

Bill by Clement Bevelot against Honorine Lestrade and Louis Bevelot. Defendants obtained a decree. Complainant appeals. Affirmed.

Knispel & Ropiequet, for appellant.

Dill & Schaefer, for appellees.

MAGRUDER, J.

This is a bill to set aside the will of Margaret Bevelot, deceased, upon the alleged grounds of mental incapacity and undue influence. The testatrix died on December, 2, 1892, leaving two sons, the appellant, Clement Bevelot, and the appellee Louis Bevelot, and one daughter, the appellee Honorine Lestrade. Her will was made early in the morning on November 29, 1892. By its terms she left $25 to each of her sons, and all the balance of her estate to her daughter, Mrs. Lestrade, with whom she lived when she died. So far as the charge of mental incapacity is concerned we do not think that it is sustained by the proofs. Owing to the nature of her last sickness, the testatrix was required by her physician to take doses of brandy at certain intervals. But beyond a certain drowsiness occasionally produced by the stimulant which it was necessary to give her, we see nothing to indicate that she did not have sufficient mental capacity to make her will. The testimony of both sides is to the effect that she was of sound mind. As to the charge of undue influence, the evidence is conflicting. When the will was drawn, there were present in the room with the testatrix three persons,-Andrew Touchette, who drew the will, and whom she herself had sent for, for that purpose, and the two subscribing witnesses, Josephine Bertrand and Frances Weiser. The two latter witnesses swear that the testatrix dictated her will; that it was written in accordance with her directions, read to her in English, and then translated and explained to her in French; that she pronounced it all right, and signed it by making a cross with the pen. These witnesses also swear that Mrs. Lestrade came in and brought a deed, and then went out of the room, and was not present when the will was drawn, and made no suggestion as to what it should contain. On the other hand, Touchette swears that the testatrix told him she wanted her property divided equally between her three children, but that her daughter, Mrs. Lestrade, told her not to make such a will, as the creditors of one of her brothers would seize his share, but to give it all to her, and she would sell it, and divide the proceeds with them. The testimony of Touchette is not only contradicted by several witnesses, but by his own admission, and by contradictory statements made by himself in his saloon and elsewhere. He admitted, on cross-examination, that he had stated that Mrs. Lestrade did not use any undue influence over her mother, and also answered that he may have said that Mrs. Lestrade did not speak to her mother when she came into the room, but merely brought in ink and paper. He also said at one time that, although he had been in jail, he knew how to write a will, and that ‘this will would stick.’ In cases of this kind, where the testimony is conflicting, the finding of the jury will be regarded as conclusive, unless it is clearly against the weight of evidence. We cannot say that it is against the weight of the evidence in this case. It is also well settled that where there is an irreconcilable conflict in the testimony upon which the validity of a will depends the judgment of the trial court will not be reversed if the evidence of the successful party, considered by itself, is clearly sufficient to sustain the verdict. Moyer v. Swygart, 125 Ill. 262, 17 N. E. 450;Calvert v. Carpenter, 96 Ill. 63. Such is the case here. Hence, we are of the opinion that there ought not to be a reversal because of the evidence upon the subject of undue influence.

Appellant, who filed the bill in the court below to set aside the will, complains that it was error to permit the appellee Lestrade, respondent below, to open and close the case to the jury. There was no error in this regard. The rule in this state is that the burden of proof is on the party affirming the execution and validity of the will, and consequently such party has the right to open and conclude the case. Rigg v. Wilton, 13 Ill. 15;Tate v. Tate, 89 Ill. 42;Moyer v. Swygart, 125 Ill. 262, 17 N. E. 450.

Complaint is made that counsel for respondent below was abusive in the language used by him towards the witness Andrew Touchette. The expressions of counsel might have been milder in tone, but we cannot say that there was any abuse of the right to criticise the testimony of a hostile witness. Here, it was a fair subject of argument to the jury whether the witness had not been successfully contradicted, and whether his conduct was not reprehensible if, according to his own statement, he drew the will contrary to the desires and directions of the testatrix.

Upon the motion for a new trial, which was overruled, affidavits were read in behalf of appellant alleging that John Touchette, a witness for appellee Lestrade upon the trial, was seen talking with one of the jurors, named Sick, at the entrance to the courthouse at the hour of recess. The affidavits do not state that anything was said by these parties to each other about the case, except that one of them attributes to Touchette a remark so indefinite in its terms and uncertain in its meaning that it may have referred to some person or transaction not involved in the pending suit. John Touchette was not a party to the suit, and, so far as appears, had no interest whatever in it. Although one of the affidavits states that he was engaged in consultation with the attorneys of appellee, yet this is denied in a counter affidavit made by one of appellees' counsel. The witness and the juror filed their affidavits, swearing that they had no conversation with each other about ...