Calkins v. Calkins

• Decision Date: 23 October 1907
• Citation: 229 Ill. 68,82 N.E. 242
• Parties: CALKINS et al. v. CALKINS et al.
• Court: Illinois Supreme Court

229 Ill. 68

82 N.E. 242

CALKINS et al.

v.CALKINS et al.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Circuit Court, Kane County; L. C. Ruth, Judge.

Bill by Gilbert Calkins and others against Charles Calkins and another to contest a purported will. From a decree refusing probate, defendants appeal. Affirmed.Raymond & Newhall (Robert S. Egan, of counsel), for appellants.

Aldrich & Worcester and Lee Mighell, for appellees.

Gilbert Calkins and 22 other heirs of Cyrus Calkins filed a bill in chancery in the circuit court of Kane county to contest the will of Cyrus Calkins on the ground that the witnesses had signed the will in another room and out of the range of vision of the testator. An issue at law was made up and submitted to a jury for trial, and a verdict was rendered in favor of the validity of the will. A decree was entered on the verdict of the jury sustaining the validity of the will, to reverse which a writ of error was sued out of this court. Upon a hearing in this court it was decided that the evidence showed that the attesting witnesses had signed the will out of the presence of the testator, and a judgment was entered in this court reversing the decree and remanding the cause. See Calkins v. Calkins, 216 Ill. 458, 75 N. E. 182,1 L. R. A. (N. S.) 393, 108 Am. St. Rep. 233. Upon the reinstatement of the case in the circuit court, appellants, who were the principal beneficiaries under the will, filed an amended answer, admitting that the will was not properly executed as a will, and alleged the following facts, which were not before the court on the former hearing: That the deceased, Cyrus Calkins, was a bachelor, who for more than 40 years prior to his death had resided upon his farm in Sugar Grove township, Kane county, adjoining that of appellants; that for 15 years prior to the death of the deceased the appellants had rendered services to the deceased in the conduct of his farm, transaction of his business affairs, caring for him and nursing him in sickness, who, on account of his old age and physical infirmities, was in need of assistance; that the only relatives that the deceased had for many years prior to his death were the nieces, grandnieces, and grandnephews as named in the bill of complaint, and nearly all of whom lived in other states and had never visited or had any communication with the deceased, and by reason of such conditions were not the natural objects of the deceased's bounty; and that there existed very close family relations between the appellants and the deceased. The answer further alleged that Cora Needham, the daughter of appellants, had for many years prior to the death of Cyrus Calkins rendered services to the deceasedby writing his letters, nursing him in his sickness, preparing his meals, and mending his clothes, and that on account of these close family relations the deceased had on many occasions expressed the desire to give to appellants the greater portion of his property as compensation for the services, care, and attention rendered by appellants. The answer further alleged that prior to the signing of the instrument in question the deceased, Cyrus Calkins, was advised by his physician, F. M. McNair, that the injury which he had theretofore sustained would be liable to produce death on account of his advanced age; that accordingly the deceased requested McNair to procure for him some one to prepare the necessary papers for executing a will; that McNair, in response to the request of the deceased, procured the services of Edward M. Harris, who accompanied McNair to the home of the deceased on the 16th of June, 1903, where, after a conference and consultation with the deceased, Harris proceeded to draw up the instrument in question for the purpose of a last will and testament for Cyrus Calkins to execute; that after the instrument in question had been prepared the deceased told McNair that before he would execute the paper devising to appellants nine-tenths of all his property he desired NcNair to visit appellants and obtain from them their promise and agreement that they would give to their daughter, Cora Needham, the sum of $500, and that in consideration of such promise and agreement on the part of appellants, he, the said Cyrus Calkins, would then execute his last will and testament devising and conveying to appellants ninetenths of all the property which Cyrus Calkins might own or possess at his death; that the said McNair, in accordance with the request of Cyrus Calkins, did visit appellants and obtain from them their promise and agreement to give to their daughter, Cora Needham, the sum of $500; that McNair conveyed such promise, on the part of appellants, to the deceased, who, when told that appellants had promised in accordance with his request, then said that he would sign and execute the instrument that had been theretofore prepared by Harris; and that said Cyrus Calkins did, in pursuance of such agreement, sign and execute the instrument in question under the belief on his part that he was executing a last will and testament which was valid in law to convey and transfer to the appellants nine-tenths of all his property which he might own at the time of his death. The answer further alleged that after the execution of the instrument in question the same was delivered to McNair for safe-keeping, and taht the deceased never thereafter in any manner attempted to revoke, annul, or in any way change the attempted disposition of his property as set forth in the instrument in question; that afterwards the deceased, Cyrus Calkins, on June 23, 1903, died in the belief that he had fully complied with his promise and agreement to give to appellants nine-tenths of all his property. The answer further alleged that Cora Needham, a few years prior to the death of Cyrus Calkins, had married her husband against the wishes and desires of appellants, and that on account thereof there was an estrangement between appellants and Cora Needham, which condition of affairs was known to Cyrus Calkins, and the deceased, being desirous of bringing about a reconciliation between Cora Needham and appellants, stated to McNair that he believed, if h...