Both v. Nelson
| Decision Date | 24 November 1964 |
| Docket Number | No. 38452,38452 |
| Citation | 17 A.L.R.3d 497,31 Ill.2d 511,202 N.E.2d 494 |
| Parties | , 17 A.L.R.3d 497 Louis BOTH et al., Appellees, v. Frank Emery NELSON, Appellant. |
| Court | Illinois Supreme Court |
McFarland, Morgan & Stearns, Chicago (Len Young Smith, Chicago, of counsel), for appellant.
William Parker Ward and Edwin Walsh, Chicago, for appellees.
After a jury trial in the circuit court of Cook County the purported will of Sophia Both, deceased, was set aside on grounds of undue influence and mental incapacity. The decree was affirmed by the Appellate Court, (Both v. Nelson, 46 Ill.App.2d 69, 196 N.E.2d 530), and we have granted the defendant's petition for leave to appeal. He contends, inter alia, that prejudicial error was committed in refusing to admit certain evidence and in denying certain tendered instructions. We agree.
The testatrix, a married woman 78 years of age, executed the instrument in question on October 16, 1957. By its terms she revoked a prior will and left her entire estate to the defendant, Frank Nelson, who was the husband of a deceased niece. The plaintiffs are beneficiaries under the prior will. Four days after executing the will in question the testatrix suffered a stroke and was taken to a hospital. Because of illness and old age she appeared unable to handle her affairs, and shortly after she entered the hospital proceedings were begun for the appointment of a conservator. From the hospital she was taken to a private home, where she resided until her death in 1959.
To show mental incapacity the plaintiffs called the hospital intern and the family physician, each of whom testified that at the time testatrix was in the hospital she was senile. The family physician stated that in the early part of 1957, when he treated her for a heart condition, her mental condition was poor and that thereafter it grew gradually worse. When testatrix was in the hospital he saw her every day, and he testified that in his opinion she did not then have the ability to make a will. To show mental capacity the defendant called one of the attesting witnesses and also the two ladies who operated the home where testatrix spent the last years of her life. The latter two testified that the testatrix was then alert and sensible, read newspapers, talked intelligently, wrote and received letters, and knew what she was doing. They further expressed the opinion that she was sane and knew the nature of her estate and the natural objects of her bounty.
On the ground that no adequate foundation had been laid the court refused to permit the attesting witness to answer whether the testatrix appeared to be of sound and disposing mind and memory when the instrument was signed. After testifying to the appearance, comments, and behavior of the testatrix at the time she signed the will the witness was again asked his opinion on whether she was then of sound and disposing mind and memory, and objection was again sustained. Defendant's post-trial motion stated, inter alia, that important testimony was improperly kept from the jury. The motion was denied, and the Appellate Court's failure to hold this prejudicial is the first assignment of error argued by defendant.
In Brownlie v. Brownlie, 357 Ill. 117, 191 N.E. 268, 93 A.L.R. 1041, this court held it was not error to permit the attesting witnesses to express an opinion of the testator's mental capacity without first laying a foundation therefor. We said the rule requiring a witness to first relate the facts and circumstances on which he bases his opinion does not apply to attesting witnesses. In the present case the Appellate Court recognized that excluding the opinion was error, but considered the ruling harmless in view of the witness's complete testimony about what he saw and heard at the time. In addition, the Appellate Court found that a number of instructions tendered by defendant and refused by the trial court were proper ones, but here again it was concluded that no harm was done in refusing them since the instructions given to the jury were sufficient to inform if of the essential issues. Among the...
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...court can see from the entire record that no injury has been done, the judgment or decree will not be disturbed.” Both v. Nelson, 31 Ill.2d 511, 514, 202 N.E.2d 494 (1964); see also Sbarboro v. Vollala, 392 Ill.App.3d 1040, 1057, 331 Ill.Dec. 732, 911 N.E.2d 553 (2009). “But where the case ......
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Lynch v. Board of Ed. of Collinsville Community Unit Dist. No. 10
...one on the facts and a decision must depend upon conflicting testimony, the jury should be accurately instructed. Both v. Nelson (1964), 31 Ill.2d 511, 202 N.E.2d 494; Edwards v. Hill-Thomas Lime & Cement Co. (1941), 378 Ill. 180, 37 N.E.2d 801; Anlicker v. Brethorst (1928), 329 Ill. 11, 16......
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...the judgment or decree will not be disturbed.'" Lawson, 64 Ill.2d at 559,1 Ill. Dec. 497,356 N.E.2d 779, quoting Both v. Nelson, 31 Ill.2d 511, 514, 202 N.E.2d 494 (1964). Here the jury returned a substantial ($675,000) general verdict in plaintiffs' favor. Plaintiffs were not unfairly prej......
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...calls for reversal.' " Welch v. Gonic Realty Trust Co., 128 N.H. 532, 538, 517 A.2d 808, 811 (1986) (quoting Both v. Nelson, 31 Ill.2d 511, 514, 202 N.E.2d 494, 496 (1964)). A fortiori, when evidence erroneously excluded would have rendered a different result not only possible but probable,......