Brown v. Riggin

• Decision Date: 31 January 1880
• Parties: LUTHER BROWN et al.v.JAMES H. RIGGIN et al.
• Court: Illinois Supreme Court

94 Ill. 560

1880 WL 9988 (Ill.)

LUTHER BROWN et al.

v.JAMES H. RIGGIN et al.

Supreme Court of Illinois.

January Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

This was a bill in chancery, filed by James H. Riggin, an insane person, by his next friend, Ignatius Riggin, to the September term, 1875, against Luther Brown and Robert Allyn, executors of the last will and testament of Elizabeth M. Riggin, impleaded with Edward B. Riggin and others, to contest the validity of the will and testament and three several codicils thereto. Several persons were made parties defendant as legatees, but on some process was not served, and as to them the bill was afterwards dismissed. As to some others, no rule to answer was taken, and no answer was filed and no default taken.

At the April term, 1877, the court ordered an issue to be made up whether the writings purporting so to be, were the will and codicils or not of the said Elizabeth M. Riggin, and a jury being sworn to try the issues, found that they were not the will and codicils of the said Elizabeth M. Riggin.

A motion for a new trial was made and overruled. A decree was rendered upon the verdict and appeal by consent taken to the Central Grand Division.

The seventh instruction referred to in the opinion is to the effect that when insanity or lunacy is once established to have existed, the presumption of its continuance arises until rebutted by proof, the burden of which lies on the party alleging a restoration or lucid interval, and that if the jury believe from the evidence that the papers in question were executed after insanity has been proved, then it is incumbent on the parties insisting on the validity of the will to show to the satisfaction of the jury that the testatrix was sane at the time of making of said will and codicils respectively.

Messrs. G. & G. A. KŒRNER, for the appellants:

Where a will has been produced and the execution thereof proved by the attesting witnesses, the proof of insanity is thrown on the contestants, and they must prove insanity by a preponderance of testimony. Lilly v. Waggoner, 27 Ill. 395.

If the mind of a testator is sufficiently sound to understand the nature of a will and the subjects and objects of his disposition, the will is valid. 1 Jarman on Wills, 51; Trish v. Newell, 62 Ill. 205; Meeker v. Meeker, 75 Id. 267.

A will and codicil are to be read as made at the same time and incorporated, and a codicil republishes the will and makes it the same date as the last codicil, and makes the will to speak from the date of the codicil, if the latter refer to it in such a way that there can be no doubt of its identity. 1 Williams on Exors. 178, and n. 2 and 3.

In this case the codicil refers to the will and former codicil, so that even if the testatrix was insane when the will was signed by her, the subsequent codicils, if made when sane, republish the will and must stand. 1 Rich. S. C. 80, and note to page 178; 1 Williams on Exors. 184, note m and 2.

The partial impairment of mind by age and disease does not disqualify a person from making a will. 1 Williams on Exors. 16; Meeker v. Meeker, 75 Ill. 267; Rutherford v. Morris, 77 Id. 412.

Dr. Allen may have encouraged a bequest to the college, so did Mr. Blair, as the evidence shows; and even if they had persuaded hard,--urged vigorously a donation for a noble institution,--they would, under the decisions of our courts, have been perfectly justified. Rutherford v. Morris, 77 Ill. 412.

There was a want of necessary parties. The legatees, leaving out the college, had an interest in the question to the amount of more than $16,000. This proceeding is subject to the rules governing in chancery, and the court will take notice of the omission of necessary parties defendant. Prentice v. Kimball, 19 Ill. 320; Hassit v. Ridgley, 49 Id. 197; Ryan v. Lynch, 68 Id. 160.

Mr. JEHU BAKER, also for the appellants.

Messrs. GILLESPIE & HAPPY, for the appellees:

In regard to the point raised for the first time by appellants' brief that the bill was dismissed as to certain legatees--Elizabeth Raney, Caroline Yercum and Mary A. Rogers--we insist they were not necessary parties, being fully represented by the executors. They were legatees to small sums of money.

As to the personalty, the courts have invariably held that the executor or administrator fully represents the creditors, distributees and legatees, who, as to all orders, judgments and decrees, are in privity with the personal representatives of the testator or intestate. Stone et al. v. Ward, 16 Ill. 177; Rallston v. Wood, 15 Id. 168; Gray v. Gillilan et al. Id. 454; Freeman on Judgments, sec. 319 a, and authorities there cited.

The proper mode of raising the objection that all the parties interested in the cause are not before the court, when that appears on the face of the bill, is by demurrer. Denniston et al. v. Hoagland, 67 Ill. 265.

The authority for the seventh instruction is in the case of Menkins v. Lightner, 18 Ill. 284, which refers to 2 Greenl. Ev. sec. 371; Jackson v. Van Dusen, 5 Johns. 154; Grabil v. Barr,5 Pa. State, 441. The same doctrine is found in Ray's Med. Juris. of Insanity, 416.

In considering the verdict of the jury in this case the court will be governed by the same rules that obtain in cases at common law. Meeker v. Meeker, 75 Ill. 260.

At law, unless the verdict of the jury is manifestly against the weight of evidence, it will not be disturbed. Allen v. Smith, 3 Scam. 97; Ellis v. Locke, 2 Gilm. 459; Evans v. Fisher, 5 Id. 572; Dawson v. Robbins, Id. 72; Mann v. Russell, 11 Ill. 586; Weldon v. Francis, 12 Id. 460.

The policy of the English courts was to sustain wills, for the reason that the English laws of descent were unjust. Our laws of descent, on the contrary, are just, distributing one's property equitably, and hence the policy of our courts should be rather against than in favor of wills, sustaining them only where they are clearly established to be the free and deliberate act of a sound and disposing mind.

Mr. JAMES M. DILL, also for the appellees.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

Testatrix died in July, 1875, being about sixty-nine years of age and a widow, leaving as her heirs at law the insane son in whose behalf the bill is filed, then in an asylum, and a grandson, who is made defendant, but against whom no decree has been taken. It appears, from the evidence, that the deceased was an intelligent and cultivated woman, in apparent good health, being strong and robust, though of nervous temperament, with some tendency, as one of the witnesses says, to congestion of the brain; but she is generally spoken of as a woman of gifted and brilliant mind, and in vigorous physical condition previous to the 14th of November, 1868. On that day, at the age of sixty-two, she was attacked, while at her domestic labors, with a severe epileptic fit,--as one of the witnesses, a physician, thinks, with an apoplectic complication, involving a brain lesion. But from the whole testimony, there does not appear to have been any paralysis or other exhibit of serious apoplectic complication. While the fit lasted she was unconscious, but during the night her consciousness was restored, and on the following day she was able to give an intelligible account of her disease, and of the manner in which she was taken.

An attack of pneumonia supervened the epileptic convulsions, superinduced, as was supposed, by the application of ice to the head; and this attack was accompanied with high fever with occasional delirium, during which she would be unconscious or incapable of rational conceptions; and her condition was that of a person in extreme illness, though the witnesses immediately about her person, summoned on both sides, concur in saying that while occasionally out of her mind, at other times she was rational and intelligent, the mental condition being plainly the usual condition of delirium attendant on high fever. But no witness, either expert or other, fixes her condition as one of settled loss of reason at or near that period.

On the 23d of November, 1868, she made the will. It seems to have been prepared by Allyn, one of the executors named, who was a neighbor and friend. On its being brought to her, she sat up in bed and stated that it was her last will and testament, and signed it in the presence of the attesting witnesses, one of whom testified, and the other had died The witness testifies that at that time “she was perfectly in her mind and knew just what she was doing,--that she answered questions with perfect intelligence,” and there is no sufficient testimony to shake this statement. All the testimony (except some not very satisfactory opinions of persons not experts) may well be true, and yet this account of this intelligent condition of the testatrix, at the time of the execution of the will, remain unshaken.

On the 9th of December, 1868, she made the first codicil, which was attested by the witness above mentioned, who had attested the will, and who testified at the trial. It was also attested by the husband of this witness and by another. These three witnesses concur that at that time, to use their language, she was sane and knew what she was doing. One of the witnesses says she talked cheerfully, and they had quite an exchange of language before testatrix signed the codicil, and she understood herself as correctly as any person could. Another of the witnesses says she was lying on the bed and told him it was no house contract (he was a house builder and they had previous contracts)....