Burley v. McGough

• Decision Date: 14 November 1885
• Citation: 3 N.E. 738,115 Ill. 11
• Parties: BURLEY v. McGOUGH.
• Court: Illinois Supreme Court

115 Ill. 11

3 N.E. 738

BURLEY

v.McGOUGH.

Supreme Court of Illinois.

Filed November 14, 1885.

Error to Peoria.

Geo. B. Foster, for plaintiff in error.

Geo. A. Wilson and Puterbaugh & Puterbaugh, for defendant in error.

SHELDON, J.

This was a bill in chancery, filed by Mary A. McGough against Julia Burley, to set aside the last will and testament of Cornelius Powell, deceased. The will was made March 7, 1883, by which the testator gave to said Mary A. McGough five dollars only; to his wife, $500; and to his step-daughter, said Julia Burley, the residue of his property. On March 12, 1883, five days after the making of the will, the testator died, aged about 73 years.

It appears that Cornelius Powell had for many years been a resident of Peoria, and was twice married. Mary A. McGough was his daughter, and by his first wife, and his only child. His first wife died many years ago. Some 20 years prior to testator's death, his daughter, Mary A. McGough, was married, left her father's house, and went to the state of New York, where she has ever since resided. Some years before his death testator married on Catharine Powell, (who was the mother of Julia Burley,) and lived with her up to the time of his death. The said Catharine appears to have become disabled and crippled, and the evidence shows her to have been confined to her bed, and that during the last sickness of the testator he and his wife were cared for by Julia Burley, who brought to them their daily food from her own house. The amount of the estate left by the testator does not appear, further than that the will describes the lot devised to Julia Burley,-viz., lot 3, in block 9, in Brotherson's addition to the city of Peoria,-as being all his real estate; and it might be inferred there was not very much property besides from the mode of living of testator and his wife shown by the evidence, and the want of money having been assigned as the reason for not employing help to take care of him and his wife. Under the bill an issue of fact was submitted to a jury as to whether or not the alleged will was the last will and testamentof Cornelius Powell, deceased. The jury found that it was not. A motion for a new trial was overruled, and a decree entered, in accordance with the finding, for the complainant, and the defendant brings this writ of error. The ground of attack on the will is that the testator was not of sufficient mental capacity to make a will.

On the trial Dr. Stewart was called as a witness for the complainant, who testified that he visited the testator professionally on the third, sixth, and ninth of March, 1883, during his last illness; and, after a particular description of his physical condition, stated testator was weak physically,-did not think he could walk, but might possibly two or three steps; that he was much the same as any man in a dying condition; that he judged his mental from his physical condition, did not think any man in that state capable of transacting business,-of making a will; that his reasons were that body and mind are internally connected; that when the body is dissolved, the mind is gone. Yet, notwithstanding the witness' opinion of the physical condition of the testator, and from which he judged his mental condition, the proof shows that on that very third day of March, when the witness made his first visit, the testator actually walked some three blocks to a barber's shop and got shaved, and that during all the intervening time, to a couple of days before his death, on the twelfth of March, he got up every morning, and went to the door, and opened it to admit a neighbor woman who attended to his room; that he went from his bed to the stove, and put in coal;...