Carnahan v. Hamilton

Citation107 N.E. 210,265 Ill. 508
Decision Date16 December 1914
Docket NumberNo. 9663.,9663.
PartiesCARNAHAN v. HAMILTON.
CourtSupreme Court of Illinois

265 Ill. 508
107 N.E. 210

CARNAHAN
v.
HAMILTON.

No. 9663.

Supreme Court of Illinois.

Dec. 16, 1914.


Appeal from Circuit Court, Shelby County; Thomas M. Jett, Judge.

Suit to set aside a will by Mary E. Carnahan against Nathan Hamilton, executor of Payton A. Bond, deceased. From a judgment on a verdict for plaintiff, defendant appeals. Reversed and remanded.


[265 Ill. 509]

[107 N.E. 211]

Whitaker, Ward & Pugh and Steidley & Crockett, all of Shelbyville, for appellant.

William H. Ragan and George B. Rhoads, both of Shelbyville, for appellee.


CARTER, J.

This was a bill filed by appellee, Mary E. Carnahan, to contest the will of her grandfather, Payton A. Bond, of whom she was the only heir at law. After an answer and replication were filed, an issue of fact was submitted to the [265 Ill. 510]jury as to whether the instrument in question was the last will and testament of Payton A. Bond, deceased. The jury found in the negative. A motion for new trial was overruled and a decree entered in accordance with the verdict. Thereupon this appeal was prayed.

The will was executed on April 4, 1910, at which time Bond was 72 years of age. He lived until May, 1913. His wife died some 15 years previous and he never afterward remarried. At the time of his wife's death they had one child living, Julia Ann. After his wife died Bond lived on his farm in Shelby county with said daughter, Julia Ann, and her husband, William Carnahan, until her death, January 25, 1910. She left surviving two children, one of whom was appellee, then 15 months old, and the other a baby just born and who died within a few days after its mother. At the time of making the will Bond had three sisters living and one sister deceased, who left surviving her several children and descendants of deceased children. Very shortly after the will was executed Bond took a trip to Oklahoma, where he visited relatives. After his return he lived with one of his sisters in the city of Pana, Christian county, Ill., until the time of his death. At the time the will was made he owned 160 acres of land in Shelby county, upon which he and his son-in-law were then residing, besides some personal property. Some time thereafter he purchased a house and lot in Pana, which he continued to own until the time of his death. By his will he gave his granddaughter, appellee herein, $100 and all his household goods and effects. To his sisters then living, and to the heirs of the deceased sister, he gave the 160-acre farm; the will further providing that all other personal property, goods, and chattels should go to the heirs theretofore mentioned. The will contained no residuary clause as to real estate, and consequently the house and lot that he afterward acquired in the city of Pana would descend to his granddaughter, appellee herein.

[265 Ill. 511]The bill averred that Payton A. Bond, the testator, was of unsound mind and memory at the time of the execution of the will; that at that time he was suffering from insane delusions, and therefore did not posses testamentary capacity. Upon the trial of the case appellant produced 40 witnesses who testified they were acquainted with the testator, and that in their opinion he was capable of transacting ordinary business affairs and understood the nature of his property and the natural objects of his bounty, relating various conversations they had had with him during the last few years of his life. Among this number were old acquaintances and neighbors-farmers, physicians, and bankers-most of them having known him all the way from 10 to 50 years, and many testified their acquaintance had been of an intimate nature. On behalf of appellee 13 witnesses were introduced, the majority of them relatives of her father. Most of these 13 witnesses testified they had seen and talked with Bond near the time he executed the will, and that at that time they did not think he was of sound mind and memory, or had sufficient mental capacity to transact ordinary business, or was able mentally to understand the extent of his property

[107 N.E. 212]

or who his relatives were. It is apparent, however, from the testimony of at least one or two of these witnesses, that they were not certain on this point. The allegations of the bill admit, and it is conceded in the briefs of appellee, that subsequent to the execution of the will the testator took care of and transacted his business. The theory of counsel for appellee is that mental incapacity existed at the time of the execution of the will by reason of delusions, jealousy, and sickness, from which he subsequently recovered, though he never fully regained his ordinary health.

Appellant contends that the verdict is manifestly against the great weight of the evidence. Appellee contends that this question cannot be raised in this court as no motion was made at the close of all of the evidence asking for a [265 Ill. 512]peremptory instruction, citing in support of this contention Dowie v. Sutton, 227 Ill. 183, 81 N. E. 395,118 Am. St. Rep. 266. That case was brought to this court by way to the Appellate Court. What was there said about the failure to give a peremptory instruction being a waiver of the question as to whether there was sufficient evidence to support the verdict has no bearing on a case like this, brought here directly from the trial court. In that case the court cited Long v. Long, 107 Ill. 210, where it was said the rule is well settled by the previous decisions of this court that in will contests like the present ‘the finding of the jury is conclusive unless clearly against the weight of evidence [citing authorities], and in this respect they are put upon the same footing with case at law. Such being the case, it would seem to follow-and we so hold-the finding of the Appellate Court in conformity with the verdict of the jury is conclusive upon all questions of fact. Ordinarily the finding of the facts by the Appellate Court, in a chancery proceeding, is not conclusive on this court, but this class of cases, under the construction given to our statute, does not fall within the general rule, but such cases are treated in this respect, as we have already seen, as action at law.’ This case was properly brought directly to this court because a freehold was involved. In all cases of this kind thus brought here this court has always reviewed the evidence regardless of whether a peremptory instruction was asked of the trial court, and has reversed such cases when in the judgment of the court the verdict of the jury was clearly and manifestly against the weight of the testimony.

The physician who attended the testator at the time of his death had known him for about ten years and testified that he had hardening of the arteries, and that this condition, in the three or four years before his death, had gradually grown worse; that he had poor circulation, generally, but mostly complained of pain in his feet; that his death was caused by gangrene, beginning in one of his feet, which condition was superinduced by hardening of the arteries; [265 Ill. 513]that a man of the age of the testator at that time who has been active in his life is more or less troubled with hardening of the arteries. We judge from the record that the testator had been in fair health most of his life. There is evidence tending to show that he had an attack of la grippe in December, 1909, and remained in bed until near the middle of February; that he was troubled at the same time with piles and fistula; that on this account he was unable to attend either the funeral of his daughter on January 25, 1910, or that of the newborn child four days later. We think the weight of the evidence shows that he was up and around during the month of March that year, going on business or otherwise to Pana, Assumption, and other nearby places. There is some evidence on the part of appellee that during this time he complained that his head troubled him. Two days after the will was drawn, Dr. Martin, who had treated him in the preceding January for the ‘grip,’ testified he was called from Tower Hill to treat him; that on April 6th in question he found him in bed with a high temperature and apparently suffering intensely, and that the cause was an abscess just over the nose, in the forehead; that he saw him later, on April 25th, and the abscess had broken and he was practically recovered. He testified, also, that he noticed that the testator's arteries were hardening, and other conditions arising from old age...

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