Calkins v. Calkins

• Decision Date: 23 June 1905
• Citation: 216 Ill. 458,75 N.E. 182
• Parties: CALKINS et al. v. CALKINS et al.
• Court: Illinois Supreme Court

216 Ill. 458

75 N.E. 182

CALKINS et al.

v.CALKINS et al.

Supreme Court of Illinois.

June 23, 1905.

Error to Circuit Court, Kane County; Linus C. Ruth, Judge.

Suit by Gilbert Calkins and others against Charles Calkins and others to set aside the probate of the will of Cyrus Calkins, deceased. From a decree sustaining the will, complainants bring error. Reversed.

Rehearing denied October 11, 1905.

Aldrich & Worcester and Lee Mighell, for plaintiffs in error.

Raymond & Newhall (Robert Egan, of counsel), for defendants in error.

CARTWRIGHT, C. J.

Appellants filed their bill in the circuit court of Kane county to contest the will of Cyrus Calkins, deceased, alleging, among other things, that the will was not executed in conformity will the requirements of the statute, for the reason that the persons signing the will as witnesses did not attest it in the presence of said Cyrus Calkins, but signed it in another room from the one in which he was lying, and out of the range of his vision, where he did not and could not see the act of attestation. F. M. McNair, the executor, and Charles Calkins and Clara Calkins, three of the appellees, by their answer alleged that the will was signed within the range of vision of the testator, and that after it was signed by the witnesses it was immediately presented to the testator, and by him read over and acknowledged in the presence of said witnesses who had so signed the same. An issue was formed and submitted to a jury for trial, when the alleged will was presented signed by Cyrus Calkins with his mark, and with the usual attestation clause signed by Phoebe Catlin and Edwin M. Harris. The subscribing witnesses testified that the will was prepared by the witness Harris, and was signed by the testator at 9 or 10 o'clock in the evening; that the testator was lying in bed with a broken hip; that, after affixing his mark to it, he, in response to a question by Dr. McNair, the executor, requested said witnesses to witness it; that they took the will and went into an adjoining room, out of the presence of the testator and outside of the range of his vision, where it was a physical impossibility for him to see them or the will, and sat down by a table and wrote their signatures; that Mr. Harris then took the will and a lamp, and they went back into the room where the testator was; that Mr. Harris then read the will to the testator, including the signatures, and showed them to him, and he said it was all right. The will, being offered in evidence, was objected to by the appellants on the ground that it was not executed in accordance with the statute, and was not attested in the presence of the testator, or within his sight or view, or within the possible range of his vision. The court overruled the objection, and admitted the will in evidence. The same question was afterwards raised by instructions asked by the appellants and refused, and the court gave instructions at the instance of appellees, stating, in effect, that there was a valid attestation of the will if the jury found the facts to be as testified to by said witnesses. The verdict was that the writing introduced in evidence was the last will and testament of Cyrus Calkins, deceased, and after overruling a motion for a new trial, the court entered a decree in accordance with the verdict. From that decree this appeal was prosecuted.

It must be borne in mind that the question what will constitute a valid will devising property, or a valid attestation of such an instrument, is legislative, and that the only legitimate function of the court is to declare and enforce the law as enacted by the Legislature. The office of the court is to interpret the language used by the Legislature where it requires interpretation, but not to annex new provisions or substitute different ones. The statute requires that all wills, testaments, and codicils shall be attested in the presence of the testator or testatrix by two or more credible witnesses, and if we should attempt to change that provision so as to authorize an attestation our of the presence of the testator or testatrix, either on account of a desire to sustain a particular will, or because we regard a subsequent acknowledgment by the witnesses, or ratification or approval by the testator, just as good and effective as an attestation according to the statute, we should justly be charged with offensive judicial legislation. Our duty is merely to determine whether this will was attested in the presence of the testator, and the evidence was that it was not so attested, but was afterwards read over to the testator, and the signatures of the witnesses were shown to him. Attestation is the act of witnessing the actual execution of an instrument, and subscribing the name of the witness in testimony of the fact. 4 Cyc. 888. In the case of Drury v. Connell, 177 Ill. 43, 52 N. E. 368, it was said that the attestation of a will consists in the subscription of the names of the witnesses to the attestation clause as a declaration that the signature of the testator was affixed or the will acknowledged in their presence, and in the case of Sloan v. Sloan, 184 Ill. 579,56 N. E. 925, the court considered the question whether there is a distinction between the attestation of a will and the subscription of the names of the witnesses. In that case the proponent offered to prove by one who was present that the will was signed by both the witnesses in his presence, and that it was executed and published by the deceased as and for his last will in his presence, but it was said that a different rule had been too long acquiesced in and understood in this state, and that to render a will valid it must be subscribed by the attesting witnesses. The supposed distinction, as applied to our statute, was rejected, and it was held that an attesting witness must be a subscribing witness, and...