Brownfield v. Brownfield

• Decision Date: 31 January 1867
• Citation: 43 Ill. 147,1867 WL 4998
• Parties: WILLIAM BROWNFIELD et al.v.THOMAS BROWNFIELD et al.
• Court: Illinois Supreme Court

43 Ill. 147

1867 WL 4998 (Ill.)

WILLIAM BROWNFIELD et al.

v.THOMAS BROWNFIELD et al.

Supreme Court of Illinois.

January Term, 1867.

WRIT OF ERROR to the Circuit Court of Champaign county; the Hon. OLIVER L. DAVIS, Judge, presiding.

John Brownfield, a citizen of Champaign county, Illinois, died on the 6th day of July, 1863, leaving three hundred and seventy acres of real estate, valued at about sixteen thousand dollars, and about three thousand dollars in personalty; and leaving, also, what purported to be his will, whereby all his personal property and about two-thirds of his real estate was given to his youngest son, Thomas Brownfield; leaving, also, ten children, or their descendants (who are the plaintiffs in error), besides the principal devisee, aforesaid. The will was admitted to probate in Champaign county, and the plaintiffs in error, on the 12th day of November, A. D. 1863, filed their bill in chancery, under the statute, to contest the validity of the will. The bill charges that the execution of the will was obtained by fraud and undue influence on the part of Thomas Brownfield, and that he fraudulently prevented the revocation of the will in the life-time of the testator. Issue was joined and the case submitted to a jury. At the first trial they failed to agree, and at the second trial found in favor of the validity of the will, and the court, upon the final hearing, dismissed the the bill. The complainants below sued out this writ of error, and allege that the decree should be reversed.

Messrs. WOOD & LONG, for the plaintiffs in error.

1. The court improperly excluded from the jury evidence which tended to show the previous general conduct of the devisee toward the testator. McDaniel v. Crosby, 19 Ark. 533; Davis v. Calvert, 5 Gill & J. 269.

2. The witness would not swear that the testator signed the will in his presence, nor would he swear that he acknowledged it in his presence. If he will not swear to either requirement of the law, how can it be that his testimony establishes one of them? Boldry v. Parris, 2 Cush. 433; Butler v. Benson, 1 Barb. (N. Y.) 527.

3. Upon the question of alterations and additions to the will, the counsel clearly had the right to show the will to the jury on the argument. Schwarz v. Herrenkind, 26 Ill. 208; Burr v. Williams, 20 Ark. 188.

4. The court erred in excluding testimony that the testator asked for the will to destroy it, and that the devisee promised to destroy it; this promise was binding on the conscience of Thomas, and equity will compel him to perform it. Podmore v. Gunning, 7 Simons, 644 (10 Eng. Ch. R. 241), Sellack v. Harris, 5 Viner Abr. 521; Dakeford v. Wilks, 3 Atk. 539; Barrow v. Greenough, 3 Ves. Ch. 152.

5. The doctrine in equity is, that what is obtained by fraud shall be returned; or if held by a legal title, it shall be held in trust for those to whom it rightfully belongs. Allen v. McPherson, 1 H. of Lords Cases, 222; Marriot v. Marriot, 1 Str. 673; Allen v. McPherson, 5 Beav. Ch. 483, and cases there cited; Id. 19 Eng. Ch. (1 Phillips) 132; Rigg v. Wilton, 13 Ill. 15; Card v. Grinman, 5 Conn. 164; Blanchard v. Blanchard, 32 Verm. 62; 1 Redf. on Wills, 319, § 32; Gaines v. Gaines, 2 A. K. Marshall (Ky.) 190. These cases fully establish the rule, that where a testator is prevented by fraud from destroying or revoking a will, the devisee is a mere trustee for the heirs.

Mr. W. D. SOMERS, for the defendants in error.

1. Undue influences, in no way connected with the testamentary act, are not evidence to impeach the will. Eckart v. Flowry, 43 Penn. 46; Small v. Small, 4 Greenl. 220; McMahan v. Ryan, 8 Harris, 329; Blakeley v. Blakeley, 33 Ala. 611; O'Neal v. Farr, 1 Richardson, 80, 84; Martin v. Teage, 2 Speer, 268; Miller v. Miller, 3 Serg. & Rawle, 267; 1 Redf. on Wills, 524, § 2; 22 Wend. 526; 1 Williams on Ex. 44, and notes; 1 Green's Ch. 82; 2 Strobh. 44, 552; Davis v. Colvert, 5 Gill & J. 269, 301.

2. The presumptions of law are all in favor of the will. Wilson v. Moran, 3 Brad. Sur. 172; Allen v. Pub. Adm., 1 Brad. Sur. 378; Taylor v. Kelley, 31 Ala. 59; Davis v. Davis, 3 Am. Law Reg. 533.

3. The law does not require, that a will shall be established on the concurring testimony of two of the subscribing witnesses. Rigg et al. v. Wilton et al., 13 Ill. 15; Nocks v. Nocks, 10 Gratt. 113; Sawyer v. Smith, 8 Mich. 44; Montgomery v. Perkins, 2 Metc. 447; 3 Barb. Ch. 158; Henry v. Thompson, 6 Cow. 178; 2 A. K. Marsh. (Ky.) 229; Roberts v. Phillips, 4 Ad. & Ellis, 450.

4. The declarations of the testator were properly admitted as showing, that he possessed memory and mental capacity sufficient to fully understand the nature and character of his acts. Converse v. Wales, 4 Allen, 512; 1 Redf. on Wills, 551, § 1; Waterman v. Whitney, 1 Kern. 157; Dennison's appeal, 29 Conn. 399.

5. The many offices held by the testator are evidence of his mental capacity, and it is not shown to be diminished. 26 Wend. 254; 3 Davies, 37; 17 Barb. (N. Y.) 246; 2 Comst. 498; 6 Harr. Dig. 1666; 18 Pick. 115; 3 Stark. Ev. 1708; 7 Pick. 99; 2 Greenl. Ev. 689.

6. The evidence of the attesting witnesses is conclusive as to the fact of the execution of a will. 2 Greenl. Ev. 677; 1 Jarm. on Wills, 118; Phil. on Ev. Am. Notes, 449; Withington v. Withington, 7 Mo. 589; Murphy v. Murphy, 24 Id. 526.

7. The decree of the chancellor must be in accordance with the verdict of the jury, and a final hearing by him is therefore an unnecessary formality. Rigg et al. v. Wilton et al., 13 Ill. 19; Runkle v. Gates, 11 Ind. 97; Doe dem. Reed v. Harris (Hil. T.) 6 Adolph & Ellis, 214; 3 Wood. Vin. Lect. 477; 2 Sto. Eq. §§ 816, 820; 1 Smith's Ch. 3; 2 Fonbl. Eq. 817; Tarver v. Tarver, 9 Pet. 180; Gains v. Chew, 2 How. (U. S.) 619, 645. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

On the 12th day of November, 1863, William Brownfield and a number of others, the heirs of John Brownfield, filed their bill in chancery, in the Champaign Circuit Court, against Thomas and Milton Brownfield, to impeach the last will of John Brownfield, deceased. The bill alleges that the will was obtained by fraud, and undue influence exercised by the defendants over the testator in the execution of the will. That, by its terms, Thomas is made the legatee of all the personal estate, and devisee of a large portion of the real estate, of which testator died seized. That testator was incompetent, at the time, to make a will, and that Thomas, who was a son, obtained its execution by fraud and undue influence. That testator, in his last illness, and while he was helpless, attempted to gain possession of the will for the purpose of destroying it, but was prevented by Thomas, who had taken possession of the keys of the desk in which the will was deposited, and would not permit other persons to obtain and give the will to testator, that he might destroy it as he desired.

That he requested Thomas to burn it, which he promised to do, but never did. That he repeatedly made similar requests, and Thomas uniformly promised to do so, but failed to comply, and that testator died in the belief that the will had been destroyed.

Thomas Brownfield answered, admitting the death of testatator as alleged; that he made a last will, but denies all fraud or undue influence, and insists that it was executed in due form, and that it is legal and binding, and that he took the title to the property according to the terms of the will. Denies that testator was influenced by any one in making the will, or that he was present when it was made. Asserts that the will was intrusted to him by testator in his life-time, and before his sickness, and that he and testator kept their valuable papers locked, in the same desk in which the will was deposited; admits that he kept the desk locked during testator's last illness, but denies that he refused to let testator have the key. Denies that the will was ever revoked, or that it could, under the law, be done by words spoken. Denies that testator desired to revoke the will, and alleges that he was deranged a portion of the time during his last illness, and that for many days before his death, testator was incapable of revoking the will, and that what he said was not with that intention.

Replications were filed and a trial subsequently had on an issue in fact submitted to a jury, who found the issues for defendant. Complainants entered a motion for a new trial, which was overruled by the court, and a decree pronounced, dismissing the bill. To reverse that decree this writ of error is prosecuted, and errors are assigned on the record.

It is insisted, that the court below erred in excluding portions of the deposition of Mary T. Brownfield. An examination of the excluded portion of her testimony shows, that it was in no wise connected with the execution of the will. The manner of its execution, and the influence which led to it, was the question at issue. Had there been evidence showing the employment of fraud or of undue influence, directly connected with its execution, then this evidence might have been proper to explain such acts. But alone, it was too remote, and was properly excluded. The testator might have acted under the advice of his son, in his ordinary affairs, and even been influenced by that advice; and still we do not see, that it, alone, would tend to prove that he used undue...