Campbell v. Campbell

• Decision Date: 31 October 1889
• Citation: 130 Ill. 466,22 N.E. 620
• Parties: CAMPBELL et al. v. CAMPBELL et al.
• Court: Illinois Supreme Court

130 Ill. 466

22 N.E. 620

CAMPBELL et al.

v.CAMPBELL et al.

Supreme Court of Illinois.

Oct. 31, 1889.

Error to circuit court, Jersey county; GEORGE W. HERDMAN, Judge.

Wm. Brown and J. S. Carr, for plaintiffs in error.

Chapman & Slaten and Morrison & Whitlock, for defendants in error.

SHOPE, C. J.

This was a bill in chancery by Ruth Campbell and others, heirs at law of Joshua Neely, deceased, to set aside his will, upon two grounds,-want of testamentary capacity of the deceased, and that undue influence had been practiced by Charles W. Enos and others to induce the testator to execute the supposed will.

By the will, Dr. Enos was appointed executor, and also trustee in respect of some of the land devised, and given large discretionary powers in respect of the application of the proceeds of the estate devised to him in trust. He refused to qualify as executor, and after this bill was filed made and filed a written disclaimer of any interest in the estate, or any part thereof, which would be affected by or be dependent upon the maintenance or setting aside of such supposed will, and afterwards filed his motion in writing to dismiss the bill as to him, for the reason that the bill showed he had no interest in the subject-matter in litigation, in this: that the bill stated he was appointed executor by said will, and that on probate thereof he refused to act in that capacity, and that thereupon one Bowman was appointed administrator of the estate of Joshua Neely with the will annexed; and for the further reason that he had filed his disclaimer setting forth that he had no interest in the matter in controversy. The motion was allowed, and the bill dismissed as to said Enos, and this action of the court is assigned for error.

If Enos had qualified as executor, he would have been a necessary party to the bill. His refusal to qualify, and the appointment of an administrator, removed his interest as executor. But being a trustee of certain lands, and taking the legal title thereto under the will, he was a proper party defendant before his disclaimer. By the will certain lands were devised to Enos in trust, to apply the net income therefrom to the support of John Harper for life, and after his decease for the support, education, and comfort of Rebecca Welch, and her daughter, Nancy B. Welch, with power of sale; and also another tract of land, in trust to apply the net income among William H. Smith and four children, Mary Welch, Bridget Minard, Alexander Welch, and Gallant H. Boswell, and $50 per annum to William Richard Neely and Richard Quinn, Jr., as he might deem just and equitable. Enos, never having accepted the trust or assumed to exercise the power conferred, had the right to disclaim, the same as he did, and thereafter ceased to have any interest in the estate, or the litigation concerning the will. Lewin, Trusts, 195, 197; Hill, Trustees, 221. This view also disposes of the second error assigned, that Enos was permitted, against the objection of complainant, to testify as a witness. By his refusal to act either as executor or trustee under the will, he ceased to have any interest in the subject-matter in controversy, and became a competent witness for either party.

It is next assigned for error that the court refused to allow contestants to examine as witnesses Rachel C. Williamson, Mary Sweenie, and Genevieve Smith, who were each defendants to the bill, and had suffered the same to be taken as confessed as to them. It is said they were nieces of the testator, and sisters of some of the complainants. Rachel C. Williamson testified that she was at George Campbell's house, who was one of the proponents of the will, some time prior to the making of the will, and that said George then said, in reference to Mr. Neely's making the will: ‘I had better go on licking. I am going to have him make a will.’ That she asked him if he thought Neely was in condition to make a will, and he said he was. That she told said George that he had better make her equal with him, or she would swear that he was not. She was then asked whether or not, when the will was made, the testator had sufficient mental capacity to make a will. This was objected to by the proponents of the will, because she was an heir at law of said Neely, and a party interested adversely to the proponents, and the court sustained the objection. She further testified there were three heirs of the original branch of the Neely family; that she was a niece of Joshua Neely, and had four brothers and three sisters; that is, there were eight in her branch of the Neely family. She was then asked this question: ‘Do you remember the conversation you had at the house of Joshua Neely with Uncle Joshua Neely and your brother William Campbell in March, after the making of the will?’ which was objected to, and the court sustained the objection, upon the ground of the incompetency of the witness to reply. It will be seen that this witness was a niece of the testator; that said testator, Joshua Neely, had three brothers and sisters; and that, upon his dying intestate, his estate would descend to such brothers and sisters or their children. This would entitle this witness, as heir at law of Joshua Neely, he having died without issue, to 1-24th part of his estate, after the payment of the debts and expenses of administration. It was stipulated that the debts of the estate amounted to between ten and twelve thousand dollars. By the will 100 acres of land was devised to this witness for life, with remainder to her heirs. The land thus devised is claimed to be worth $4,500. The court, however, refused to permit any inquiry to be made as to her interest for or against the will.

In Stewart Rapalje on Law of Witnesses, p. 293, § 171, it is said: ‘It is a well-settled rule that the competency of one offered as a witness to testify in the case will be presumed, and the party objecting to his competency must state the grounds of his objections.’ And on page 299, § 177, it is said: ‘The presumption being in favor of the competency, the burden is upon the objector to prove that one offered as a witness is incompetent to testify by reason of interest or otherwise. Thus, to exclude a witness on the ground that his testimony, if admitted, will tend to protect him from claim against him, it must first be shown that there is at least a prima facie case of liability against him, and that he is exposed to certain danger from such claims. The objector must point out to the court the ground of incompetency. The witness will not be excluded on the ground of the interest, if the question of his interest is in doubt.’ In section 174 of the same work it is said: ‘Objections to the competency of a witness having been made, the question of competency must be decided, no matter how difficult it may be to determine as to his interest. To reject him in such a case without deciding the question is error, and to admit him is equally erroneous.’ The law affords two modes of determining the interest of a witness in the result of a suit- First, by examining him on his voir dire; and, second, by extrinsic evidence. The true test of the competency of these three witnesses is to be determined by ascertaining whether they would gain or lose by a decree setting aside the will. Being defendants, they were prima facie competent to testify on behalf of the contestants, and before excluding them the court should have ascertained their real interest. It devolved upon the party objecting to show the court that their interest was with the party offering them as witnesses, if that fact did not otherwise appear. If they would not gain by having the will set aside, they were competent; otherwise they were not. The will, which was before the court, showed that they were devisees thereunder; and, without further evidence on the subject, their evidence at least would appear to be adverse to the contestants, and in favor of the proponents of the will. The fact, if conceded, that they were heirs at law of the testator, would not, of itself, establish their incompetency, or show that they would take a greater share as heirs than as devisees. Mary Sweenie testified that there were seven of her family, representing one-third of the estate as heirs at law of Joshua Neely, so that as heir at law she would be entitled to the 1-21st part of the estate of the deceased. She also testified that the land she lived on, being a part of that devised to her, was worth from $3,000 to $4,000, and that another tract devised to her was worth $1,000. Without any further inquiry as to her interest, the court sustained the objection to her competency, and the same ruling was made substantially as to witness Genevieve Smith. The contestants, to show the real interest or competency of these witnesses, proved by Bowman, the administrator, that the value of the estate was from $75,000 to $80,000, and that the value of the land devised to Mary Sweenie was $4,280. This and the other proofs showed that her share in the estate as heir was about $3,430, which would indicate that she was called to testify against her interest, and therefore competent. After this proof, contestants recalled Mrs. Sweenie, and asked her if she wanted the will set aside or not; whether she had any conversation with Joshua Neely in the fall before the will was made; whether she had any conversation with him in reference to any fear of those that were around him; and whether in that connection he expressed any fear to the witness of his life. The court sustained objections to each of these questions, and refused to allow the witness to testify, on the ground of her interest. We think there was error in holding these witnesses incompetent to testify without proof that their interest was with the contestants. In other words, the court should have ascertained their interest, and, if they were called to testify against such interest, they should have been permitted to...