Challiner v. Smith

• Decision Date: 22 January 1947
• Docket Number: No. 29794.,29794.
• Parties: CHALLINER v. SMITH.
• Court: Illinois Supreme Court

396 Ill. 106

71 N.E.2d 324

CHALLINER

v.SMITH.

No. 29794.

Supreme Court of Illinois.

Jan. 22, 1947.

Appeal from Circuit Court, Menard County; Maurice E. Barnes, judge.

Suit by Sam M. Challiner against Mabel Smith to contest will on grounds of undue influence and mental incapacity. From a decree in favor of the plaintiff, the defendant appeals.

Decree reversed, and cause remanded for a new trial with instructions.

Kenneth H. Lemmer and Richard W. Velde, both of Havana, for appellant.

H. E. Pond, of Petersburg, and Edward J. Flynn and Carl E. Robinson, both of Jacksonville, for appellee.

GUNN, Chief Justice.

Elizabeth Counchman died March 5, 1944. She executed her last will and testament on December 15, 1943. The will was probated in the county court of Menard county. The principal beneficiary and executrix of the will was Mabel Smith, a niece of the deceased. On January 13, 1942, she had made and executed a will in which she made the plaintiff, Sam M. Challiner, the principal legatee and executor. He was not one of the heirs-at-law of the deceased. Challiner offered the will of January 13, 1942, for probate, but it was refused because of the later will, which revoked it as a matter of law. The suit was brought by the plaintiff on December 29, 1944, to contest the last will upon the grounds of undue influence exercised by appellant, Mabel Smith, and because the testatrix did not have capacity to make a will, because she was of such unsound mind and memory as to lack the ability to make a will. The beneficiary in the first will has a contestable interest under the statute. Adams v. First M. E. Church, 251 Ill. 268, 96 N.E. 253.

The case was tried before a jury and resulted in a verdict finding the will of December 15, 1943, was not the last will and testament of Elizabeth Couchman. Two special interrogatories were offered and by one the jury found that Elizabeth Couchman was, at the time of the execution of the last will, of unsound mind and memory, and also found in answer to the other special interrogatory that Elizabeth Couchman was unduly and wrongfully influenced by the defendant, Mabel Smith, to make said will of December 15, 1943.

At the close of the plaintiff's evidence and of all of the evidence the defendant made separate motions for the court to exclude all of the evidence offered on the issue of undue influence, and of lack of mental capacity, and in each instance the motion was denied by the court. The court overruled a motion for a new trial and for judgment notwithstanding the verdict, and entered a decree setting aside such will. A freehold is involved, and hence the appeal comes directly to this court.

For a proper determination of the case it is necessary to discuss separately the evidence offered on the question of undue influence and of lack of mental capacity. The law is well settled that the undue influence which will invalidate a will must be directly connected with the instrument, must be operative when the will is made, must be directed towards the procuring of the will in favor of certain parties, and must destroy the freedom of the testator's action. The rule is set forth specifically in Applehans v. Jurgenson, 336 Ill. 427, 168 N.E. 327, 331, 67 A.L.R. 851: ‘The undue influence which will avoid a will must be directly connected with the execution of the instrument and operate at the time it is made. The influence must be specially directed toward procuring the will in favor of a particular party or parties, and it must be such as to destroy the freedom of the testator's will and render the instrument obviously more the offspring of the will of another or others than his own.’ This rule has been followed and adhered to in Morecraft v. Felgenhauer, 346 Ill. 415, 178 N.E. 877;Quathamer v. Schoon, 370, Ill. 606, 19 N.E.2d 750;Johnson v. Lane, 369 Ill. 135, 15 N.E.2d 710, and Frese v. Meyer, 392 Ill. 59, 63 N.E.2d 768, and hence may be said to be firmly established.

The evidence in the case falls far short of complying with what is necessary to establish undue influence. The deceased had suffered a broken leg in the previous year and had been confined to Passavant Hospital in Jacksonville, with her leg in a cast for several weeks. In October, 1943, deceased was threatened with pneumonia, and she was taken to Our Saviour's Hospital in Jacksonville. She was a woman about seventy-three years of age, and was suffering from failing strength due to old age and a cancer of the breast, which ultimately resulted in her death in March, 1944. Appellant, as well as appellee, visited Mrs. Couchman in the hospital. A few days before December 15, 1943, appellant called at the home of the attorney for deceased, and stated that testatrix wanted him to come to the hospital to write her will. Appellant accompanied the attorney to the hospital. She did not go into the room where the will was written. There is no evidence whatsoever to substantiate the charge in the complaint that plaintiff induced the attorney to have a will in her behalf made by the testatrix, or that she persuaded, or in any other way caused the deceased testatrix to sign and make the will, or that she induced anyone to sign their names as witnesses thereto. On the last proposition, the attorney volunteered to sign as a witness, and, when some of the nurses were requested to act and declined because of the rules of the hospital which did not permit them to act as witnesses, the nurse supervisor called attention to the fact that there was another man in the waiting room, visiting a relative and, when asked by the supervising nurse, he came and acted as a witness to the will. Proof of this character is not sufficient under the rule announced above.

The appellee calls attention to authorities which he says raise a presumption that influence was used because of appellant's relationship to the deceased, and her being a principal beneficiary. In England v. Fawbush, 204 Ill. 384, 68 N.E. 526, the beneficiary was a son who prepared the will himself, took the same to his father, who was old and sick in bed, and stood by while his father signed it. In Tidholm v. Tidholm, 391 Ill. 19, 62 N.E.2d 473, it was admitted there was a fiduciary relationship between the beneficiary and the testator. In that case the court entered a judgment notwithstanding the verdict on the motion of the beneficiary because, while the proof showed she was present while the testator talked with the attorney, and when he signed the will, there was no proof indicating she influenced the testator. In both Sulzberger v. Sulzberger, 372 Ill. 240, 23 N.E.2d 46, and Friberg v. Zeutschel, 379 Ill. 480, 41 N.E.2d 512, the beneficiary was present and was a principal beneficiary, and did occupy fiduciary or confidential relationships which invoked the presumption claimed to exist here.

It will be observed that what was done in these cases were things which come within the rule of undue influence, as expressed above, and was of a character that would procure a will in favor of such influence instead of a will of the testator. However, such authorities to be applicable must be supported by proof. There is no proof whatsoever of a fiduciary relationship; in fact, the evidence of the plaintiff is the other way, for some of the witnesses testified that the deceased complained because Mrs. Smith and her husband had not spoken to her for some time. She was not present when the will was prepared, and neither did she tell the attorney what to put in the will; nor is there any evidence she used any persuasion in procuring the making of the will. The trial court should have, at the close of the plaintiff's case, excluded all of the evidence on the issue of undue influence.

However, in addition to there being no evidence to substantiate the charge of undue influence, the court gave several instructions upon this question, and also gave a special interrogatory for the jury to answer. All of this could have no other effect than to cause the jury to believe there was sufficient before them to pass upon the question of undue influence, when as a matter of law it should not have been submitted. We have held in a number of cases that submitting an issue of undue influence to a jury, where it was not sufficient to set aside a will, together with an issue of lack of testamentary capacity, would not cause reversal. Bundy v. West, 297 Ill. 238, 130 N.E. 709; Aftalion v. Stauffer, 284 Ill. 54, 119 N.E. 981. In these cases there was either no motion made to exclude the evidence on undue influence, or there was some evidence which, alone, was insufficient. This is not paralel with a case where there is no evidence to substantiate the charge in the complaint. In such a case it devolves upon the court to determine whether it could have any influence upon the result, especially where the case is very close upon the evidence. In Buerger v. Buerger, 317 Ill. 401, 148 N.E. 274, 279, we said: ‘It is argued that, where both mental incompetency and undue influence are charged, a decree will not be reversed for an erroneous refusal to take from the jury one of the issues, which there is no evidence to sustain, if there is evidence to support the other charge. Holland v. People's Bank (& Trust Co.,) 303 Ill. 381, 135 N.E. 717. This rule has its foundation in the general rule that a judgment will not be reversed for error which could not have misled the jury, and could not reasonably have affected the verdict. Where the evidence to support the issue properly submitted to the jury is in itself of an inclusive character, and the evidence on the other issue is of a character to appeal to the prejudice, passion or sympathy of the jury, it is error to submit the latter issue, and the evidence in support of it, to the jury.’

This will require us to analyze the evidence. The plaintiff's witnesses consisted principally of relatives of the deceased and her tenants. Mr. and Mrs. Rittenbush were tenants on her...