Chandler v. Fisher

• Decision Date: 17 December 1919
• Docket Number: No. 12992.,12992.
• Citation: 290 Ill. 440,125 N.E. 324
• Parties: CHANDLER et al. v. FISHER.
• Court: Illinois Supreme Court

290 Ill. 440

125 N.E. 324

CHANDLER et al.

v.FISHER.

No. 12992.

Supreme Court of Illinois.

Dec. 17, 1919.

Proceedings by James W. Gordon, as guardian ad litem of Virgil Chandler and others, for probate of the last will of David Bryans, deceased, opposed by Katherine Fisher. From an order and judgment admitting the will to probate, contestant appeals.

Judgment affirmed.

See, also, 285 Ill. 57, 120 N. E. 510.

Appeal from Circuit Court, Henderson County; Robert J. Grier, judge.

O'Harras, Wood & Walker, of Hamilton, and M. E. Nolan, of Oquawka, for appellant.

Scofield, Hartzell & Califf, of Carthage, and James W. Gordon, guardian ad litem, of Oquawka, for appellees.

DUNCAN, J.

This appeal is prosecuted by Katherine Fisher to reverse the order and judgment of the circuit court of Henderson county admitting the will of David Bryans, deceased, to probate. The cause was heretofore before this court for review of an order dismissing the appeal in this case from the county court to the circuit court of said county. The decision of this court reversing the former judgment of the circuit court and remanding the cause for rehearing upon the merits is reported in Chandler v. Fisher, 285 Ill. 57, 120 N. E. 510, reference to which is made for a more complete statement of the case.

It is first alleged by appellant that there is no proof in the record of the mental capacity of the testator to make a will at the time it was executed. At the time the testator executed his will, July 27, 1909, he was near 80 years of age. On that date he went to the home of his neighbor, George A. Riley, with the instrument in question already prepared by himself or by another for him and signed by himself, and stated to Riley that it was his will and asked him to sign it as a witness. He then went to the home of another neighbor, Archie L. Welch, and made the same statement to Welch and asked him to sign the instrument as a witness. He then went to the home of a third neighbor, Gus A. Johnson, and made the same statement and request, in substance, to Johnson. All three of his neighbors signed the will in the presence of the testator, as requested by him, and there is no question as to the fact that the will was thus witnessed in the presence of the testator and that the testator saw them write their names as such witnesses. The witnesses did not sign the will in the presence of each other, but each one of them attested the will out of the presence of both the other two attesting witnesses.

Gus A. Johnson testified that he had known the testator about seven years prior to 1909 and lived one-half mile from him; that the testator came to his house and said he had a will that he wanted him to sign as a witness; that the testator laid it on the table, and witness signed it in his presence and noticed the signature of the testator to the will at the time he signed as a witness. He was then asked if he believed that David Bryans was then of sound mind and memory, and replied, ‘No, he was getting pretty old.’

The testimony of George A. Riley on the question of the mental capacity of the testator is, in substance, that he had known him about 47 years, never lived farther than 10 or 12 miles from him, and had lived on a farm adjoining that of the testator for 6 years just preceding the signing of the will; that when the testator drove up to his house on that day he asked him to come in, and the testator replied that he did not have time; that he laid the will on his lap or knee and asked witness to sign it, and he signed it; that he said he wanted to fix his property so his sons-in-law could not spend it away from his daughters; and that that was about all he said about it. He further testified that he did not consider that the testator's memory was in very good condition, and that he was mad and ‘out of sorts' and very nervous.

The other attesting witness, Welch, testified that Bryans asked him to sign the instrument as his last will and testament as a witness, and that he had known Bryans as long as he could remember. When interrogated as to his belief on the question of soundness of mind and memory of Bryans, he answered that he could not swear exactly; that he did not think he was of sound mind and memory, but was more or less childish; that it was hard for him to say whether Bryans knew what property he had and what he wanted to do with it, but that Bryans certainly thought he knew; that Bryans was not one he would call of unsound mind but was what he would call childish. He further testified that he saw Bryans generally as often as once a week and sometimes oftener and talked to him frequently; that at the time he witnessed the will Bryans was doing truck work on his farm, and that he was in about his usual condition, mentally, on the day he signed his will; that he was about as childish as the average man at his age and that he would not consider him capable of making a deed or knowing of his property at that time; that he does not consider a childish person capable of transacting ordinary affairs of life at all times; and that he did not consider Bryans capable of transacting the ordinary affairs of life at all times.

The attestation clause of the will is, in substance, that it was subscribed by David Bryans, the testator, in the presence of the attesting witnesses, and was at the same time declared by him to be his last will and testament, and that the attesting witnesses at his request signed their names thereto in his presence as attestiing witnesses.

Nine other witnesses were called by the preponents of the will who had known the testator intimately for a number of years. Two of them were bankers with whom the testator did banking business, and they testified that he had deposits with them and transacted his banking business with them during the years 1908, 1909, and 1910. Another was a grain dealer, who testified that the testator did business with him during the years 1908, 1909, and 1910. Another was a lawyer in active practice, who testified that the testator was a client of his, and that he frequently visited his office in the years 1908, and 1909, and that in the latter year, both before and after July, he consulted witness on legal matters in which he was interested. The other five witnesses were farmers and near neighbors who saw the testator often, and some of them visited him often. Several of them had transacted business with him and had talked with him about various matters connected with farming and truck raising. From the testimony of these witnesses it appears clearly that the deceased had transacted his own business with his banks, with his lawyer, with his grain dealer, and with various other parties to whom he had sold hogs, cattle, apples, and other farm produce. Many of these witnesses knew him continuously until his death, in February, 1917. All of these witnesses testified that the testator was a very bright and clearminded man until his death, was well posted on the current topics of the day, and talked politics and other matters a great deal. They are positive in their testimony that while he...