Boyd v. Gorrell

• Decision Date: 08 April 1941
• Docket Number: No. 25981.,25981.
• Parties: BOYD et al. v. GORRELL et al.
• Court: Illinois Supreme Court

376 Ill. 132

33 N.E.2d 190

BOYD et al.

v.GORRELL et al.

No. 25981.

Supreme Court of Illinois.

Feb. 18, 1941.

Rehearing Denied April 8, 1941.

Proceeding by Virgil Gorrell and others for the probate of the will of Alva Gorrell, deceased, opposed by Flora Boyd and another. From an order of the circuit court admitting the will to probate on appeal from an order of the county court denying probate, Flora Boyd and another appeal.

Affirmed.Appeal from Circuit Court, Piatt County; Frank B. Leonard, judge.

Robert P. Shonkwiler, of Monticello, John J. Baker, of Shelbyville, and Carl I. Glasgow, of Monticello, for appellants.

C. E. Tate, of Champaign, and N. E. Hutson, of Monticello, for appellees.

WILSON, Justice.

Alva Gorrell, a resident of the city of Monticello, in Piatt county, died December 8, 1939. His estate consisted of both real and personal property. He left surviving as his heirs-at-law, his widow, Gay Gorrell, also known as Mayme Gorrell, three brothers, five sisters and a niece and nephew, the children of a deceased brother. Clarence and Virgil Gorrell, Ethel Strohl and Ava Secrist, brothers and sisters, filed a petition in the county court of Piatt county to probate an instrument dated April 2, 1937, purporting to be Alva Gorrell's last will and testament. Gay Gorrell's objections to the probate of the instrument were sustained and its admission to probate was denied. After a hearing de novo, and over the objections of Flora Boyd, a sister of the deceased, the circuit court entered an order finding the instrument to be the last will of the decedent and commanding its admission to probate. From that order Flora Boyd and Gay Gorrell have prosecuted a further appeal to this court.

April 2, 1937, Alva Gorrell went to the office of Burley A. Orrison, then county treasurer of Piatt county, and requested some yellow paper. Several sheets were torn from a pad, perforated and bound at the top, and given to him. Another type of yellow paper, without perforations and only gummed at the top, was also used in Orrison's office. Later on the same day, Gorrell returned to Orrison's office, accompanied by Clarence L. Bollenbach, announced he had written his will and requested Orrison and Bollenbach to act as witnesses. Bollenbach examined the paper and told Gorrell that there was no place for signatures; that he had been a witness on a number of wills and that an attestation clause was customary. Orrison repaired to the county clerk's office, copied an attestation clause from another will, and, upon his return to his office, copied the clause on the reverse side of the instrument in question. Gorrell then signed, and Orrison and Bollenbach affixed their signaturesas attesting witnesses. The parties concede that the instrument remained in Gorrell's custody and possession from the time it was executed until his death when it was found in his safety deposit box in the National Bank of Monticello.

We have examined the challenged instrument, a single sheet of yellow paper, entirely in Gorrell's handwriting, with the exception of the attestation clause and the signatures of the attesting witnesses. Devises of real estate and monetary bequests are made to Gay Gorrell, to the decedent's brothers, sisters, the widow of his deceased brother, and his nephew and niece. The provision directing payment of his funeral expenses is followed by a residuary clause in favor of Gorrell's heirs-at-law to the exclusion, however, of two sisters who were bequeathed nominal sums. Clarence Gorrell was appointed ‘administrator’ and a fee fixed for his services in such capacity. It appears that a portion of the instrument has been irregularly but nevertheless carefully cut from the bottom, thereby removing approximately one and half inches from the paper. Immediately below the appointment of the ‘administrator’ appears the word ‘over.’ At the bottom of the instrument there also appear marks which may have been the loops and tops of letters at one time constituting parts of written words on a line below the present extremity of the paper. In short, the instrument, as it now stands, contains no blank spaces, makes complete disposition of the testator's property and the dispositive provisions have not been altered.

The testimony of Bollenbach and Orrison to the effect that the instrument in question is not as long as when executed and published requires scrutiny. Bollenbach testified that although he read the attestation clause he did not read the will. In response to a query by the trial judge, Bollenbach added that there was writing on all the lines and that in his ‘judgment’ the paper was an inch and a half shorter than when he attested it. Similarly Orrison testified that he did not read or carefully examine the will, and, in particular, did not see whether the word ‘over’ was on the instrument at the time he attested, observing that as a witness he was concerned with the writing and the witnessing of the attestation clause. In the county court Bollenbach stated: ‘We didn't measure that paper. It has the appearance of being cut,’ and ‘it would be my judgment’ that the paper is ‘about an inch and a half or two inches shorter than an ordinary paper of this kind.’ Orrison testified that he did not know how much blank space, if any, was below the word ‘over,’ and, further, that he did not know whether there was any writing below this word. At the earlier hearing Orrison identified a piece of unperforated yellow paper one-half to three-quarters of an inch longer than the type of...