Britt v. Darnell
| Citation | 146 N.E. 510,315 Ill. 385 |
| Decision Date | 17 February 1925 |
| Docket Number | No. 15646.,15646. |
| Parties | BRITT et al. v. DARNELL et al. |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Suit by R. M. Britt and others against Clarence Darnell and another to contest the will of Mary H. Burt, deceased. From decree of dismissal, complainants appeal.
Affirmed.Appeal from Circuit Court, Tazewell County; C. V. Miles, judge.
Livingston & Whitmore and William C. Radliff, all of Bloomington, and Prettyman, Velde & Prettyman, of Pekin, for appellants.
Thomas A. Kennedy, of Bloomington, and Jesse Black, Jr., of Pekin, for appellees.
Mary H. Burt, who lived in the village of Armington, in Tazewell county, executed her will on March 10, 1916, and died on June 24, 1921, at the age of 87 years. She was the owner of more than 1,000 acres of land in the neighborhood of Armington and of other real estate and personal property, all of the value of $329,676.19, as shown by the inventory of her estate, all of which, after the payment of her debts and funeral expenses, she devised to Clarence Darnell, subject to the payment of 25 specific legacies, amounting to $23,700, 23 of which were to relatives and friends, one to the Christian Church of Armington, and one to the trustees of the cemetery of that church. She had no children, and her heirs were her brother, R. M. Britt, and 23 descendants of her deceased brothers and sisters. Her brother, a nephew, and four nieces filed a bill to contest the will in the circuit court of Tazewell county on the ground of the mental incapacity of the testatrix and of undue influence exercised by Darnell and Sarah A. Glodfelter. The issue whether the the writing produced was the last will and testament of the deceased was submitted to a jury, on motion of the proponents the question of undue influence was withdrawn from the consideration of the jury, a verdict was returned in favor of the will, and a decree was entered dismissing the bill, from which the complainants appealed.
John H. Burt, the husband of the testatrix, died in 1909, leaving a will, which she renounced, and a large estate, from which she received a large amount of property, both real and personal. It does not appear from the evidence that she ever had any other property except 80 acres of land given to her by her father upon her marriage and from $1,500 to $2,000 which she received from her father's estate. Clarence Darnell, who was a grandnephew, and John C. Britt, who was a nephew of Mrs. Burt, the latter being one of the contestants in this suit, were executors of the will of John H. Burt, and on April 12, 1910, Mrs. Burt executed a written instrument whereby she empowered Darnell, as her attorney, ‘to sign all legal papers, of any and all description,’ for her. She intrusted to him, after her husband's death, the active control and management of her affairs and property. She had taken him from his mother, her niece, when he was a baby, into her own home, and she and her husband had reared him as their own child. Mrs. Burt in devising all her property to him referred to him in her will as her foster son, and she was in the habit of calling him her son and treated him as such. Sarah A. Glodfelter, to whom the will required Darnell to pay $4,000, was not related to the testatrix, but for four years before the execution of the will had been her companion, living in her home, in constant attendance upon her, caring for all her wants, driving her car when she rode, constantly with her at home and abroad. Their relations were very close and continued to Mrs. Burt's death. These are the two beneficiaries by reason of whose improper restraint and undue influence the bill charges the testatrix executed her will, and it is insisted that the court erred in withdrawing the question of undue influence from the consideration of the jury.
[1] After the death of John H. Burt, Judge W. R. Curran was the attorney for the executors of his will, and in a few weeks after her husband's death Mrs. Burt executed a will which was prepared by Judge Curran. She afterwards executed other wills. In the forenoon of the day the present will was executed, Mrs. Burt came with Miss Glodfelter to the office of Curran & Dempsey, in Pekin, where the will was prepared by Judge Curran. Miss Glodfelter remained in the outer office while Mrs. Burt went into the inner office with Judge Curran. While she was there Ralph Dempsey, Judge Curran's partner, went into Judge Curran's room and found Mrs. Burt there in consultation with Judge Curran. Dempsey was born and grew up in Armington and had known Mrs. Burt well all his life and their relations were friendly. He learned, during the forenoon, of the object of the visit and in a general way of the purport of her will. After her conference with Judge Curran, Mrs. Burt and Miss Glodfelter left the offices and Judge Curran dictatedthe will. In the afternoon they returned, and Dempsey and RobertA. Guy, who was a deputy county clerk, were called into the private office of Judge Curran to witness the execution of the will. Guy also had lived at Armington and had known Mrs. Burt all his life and had once before witnessed the execution of a will by her. The will was then executed by Mrs. Burt and witnessed by Dempsey and Guy in the manner required by the statute. There was no evidence whatever of any restraint or undue influence operating upon Mrs. Burt to induce her to execute this will. Her relations to Darnell were such that no doubt he might have influenced her, but there is an entire lack of evidence of any effort to do so. From their relation it would naturally be expected that he would benefit largely by her will. Had he been her only son, he would have received her whole estate without any will, and her words and actions indicated that she regarded him as her son. Under these circumstances, the will cannot be regarded as unreasonable or unnatural.
[2] Miss Goldfelter was not present when the will was being discussed or was in preparation or was executed. She accompanied Mrs. Burt in the ordinary course of her duties, as she was in the habit of doing whenever Mrs. Burt went from home. There is no evidence that she knew anything about the provision made for her in the will, that she knew of Mrs. Burt's intention to make her will, or that the subject was ever mentioned between them. In consideration of her faithful service and close relationship the provision made for her cannot be regarded as excessive.
[3][4][5] The existence of a confidential relation is not a legal obstacle to a testator's making a will in favor of the person in whom confidence is reposed. No presumption arises from the existence of a fiduciary relation that a will in favor of the fiduciary was executed as the result of the fiduciary's undue influence. A testator may exercise his own will in favor of a fiduciary as well as in favor of other persons or objects. Where a person who occupies a confidential relation to the testator prepares the will or participates in the preparation and execution of it, a presumption of undue influence arises which casts upon him the burden of showing that the execution of the will was the free and voluntary act of the testator and was not produced by the efforts of the person holdind the confidential relation. Nothing of the kind appears in the evidence here. It is not shown that Darnell had anything to do with the execution of the will.
[6][7] Judge Curran was the attorney for the estate of John H. Burt, and it is argued that his employment by Mrs. Burt, as her attorney also, to draw her will was induced by Darnell, and such employment would raise the presumption of undue influence operating on Mrs. Burt at the time of the execution of her will. There is no basis for such a far-fetched conclusion. It gives the imagination too much range to infer that an attorney drawing a will for one client in favor of another client has exercised an undue influence over the testator in favor of the other client. Such a thing might be possible, but it is so far outside the range of ordinary experience that no presumption of the kind can arise. In connection with this argument it is to be noted that Judge Curran, as attorney for the executors of the will of John H. Burt, represented J. C. Britt, one of the executors, as well as Darnell, the other. Another far-fetched inference is that from the facts that the estate of John H. Burt was not finally settled until after the execution of the will, and that the final payment of more than $17,000 was made to Mrs. Burt on March 30, twenty days after the execution of the will, therefore the payment was delayed until that time for the purpose of influencing her to make the will. Aside from the inherent fallacy of such argument are the facts that the final account showing this balance due Mrs. Burt was filed in the county court a month before the will was executed, and that J. C. Britt, who was one of the executors, was one of Mrs. Burt's heirs and was disinherited by the will. There was no evidence of undue influence which justified the submission of that issue to the jury.
[8][9] After the examination and cross-examination of Ralph Dempsey, counsel for the appellants moved to strike out all his testimony for the reason that his examination showed that he had such a direct interest in the outcome of the litigation as to make him an incompetent witness against the heirs who were contesting the will. His testimony showed that he was the attorney of Clarence Darnell, as executor of Mrs. Burt's will, in the probate proceedings in the Tazewell county court; that he was not his attorney in this suit but was his personal general attorney, legal adviser, and counsel; that he had taken considerable interest in this suit, had interviewed witnesses in company with the appellees' attorney, introducing witnesses to him and sometimes seeing certain witnesses Darnell wanted interviewed when Darnell's attorney in the case was unable to do so, and reported to the...
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