Compher v. Browning

• Citation: 76 N.E. 678,219 Ill. 429
• Parties: COMPHER et al. v. BROWNING et al.
• Decision Date: 21 February 1906
• Court: Supreme Court of Illinois

219 Ill. 429

76 N.E. 678

COMPHER et al.

v.BROWNING et al.

Supreme Court of Illinois.

Feb. 21, 1906.

Error to Circuit Court, Carroll County, James S. Baume, Judge.

Bill by Mary Compher and others against Caroline M. Browning and others. From a judgment in favor of defendants, plaintiffs bring error. Affirmed.Pierson, Pease & De Young (Enoch E. McKay and Frederic R. De Young, of counsel), for plaintiffs in error.

W. H. A. Renner and Frederick S. Smith (J. C. Seyster, of counsel), for defendants in error.

This is a bill, filed on July 13, 1901, in the circuit court of Carroll county to set aside the will of Caroline Mark, deceased. The bill is filed by Mary Compher, a half-sister of the deceased testatrix, and certain other persons, who are her nephews and nieces and grandnephews and nieces, against Caroline Mark Browning and others, devisees and legatees under her will, and also against Oscar F. McKenney and Frederick S. Smith, executors of her last will. Some of the complainants are minors suing by a next friend, and some of the defendants are minors for whom a guardian ad litem was appointed. As appears from the allegations in the bill and the proofs introduced, Caroline Mark, the testatrix, executed her will March 24, 1894, when she was about 74 years old. She was at that time a widow, her husband having died in 1869. She died testate on April 27, 1900, leaving no husband or children, or descendants of children, but leaving said half-sister, and certain nephews and nieces and grandnephews and nieces, as her only heirs at law. Her will was admitted to probate in the probate court of Carroll county on June 4, 1900, and letters testamentary were issued thereon to said McKenney and Smith. By her will Caroline Mark, the testatrix, devised and bequeathed to the defendants below, Caroline Mark Browning, Gertrude Mark Browning, and Annie Mark Burns, afterwards the wife of William Tipton, certain real and personal property of the value of $40,000; to the complainants, Annabelle Hull, Laura V. Paugh, William Russell, Jane Gable Countryman, Nathaniel Russell, William Wade, and Nancy Ellen Sisler, nieces and nephews, realty and personalty, valued at $60, [219 Ill. 432]000; to Charles Hull and Albert Hull, $500 each; to Mary Ann Warfield and Elizabeth Rinehart, who has since died, $100 each; and the remainder of her estate, amounting in value to some $300,000 or more, to Oscar F. McKenney and Frederick S. Smith, as trustees for the purpose of building and maintaining a home for the aged women of Carroll and adjoining counties. The bill alleges and charges that Caroline Mark, at the time she executed the instrument in question, was not of sound mind and memory, but of weak and unsound mind, and in her dotage; that she was illiterate and aged, and incapable of managing her estate, or of making any just or proper distribution thereof; that Oscar F. McKenney was in complete control and possession of her money and securities, amounting to over $400,000, and that she had no conception of the value of her estate; that he had absolute control and dominion over her mind, and through fraud, falsehood, and misrepresentation induced her to execute the instrument and dictated its terms; and that she did not understand its contents. Subsequently, on December 10, 1901, by amendment to the bill, Annabelle Hull, Laura V. Paugh, William Russell, Emily J. Countryman, Nathaniel Russell, William Wade, and Nancy Ellen Sisler, devisees and legatees under the will, were made defendants thereto, instead of complainants. McKenney and Smith, executors, filed separate answers, in which they admit that the bequests and devises were made and the will admitted to record as set forth in the bill, but aver that the testatrix was of sound mind when she executed her will; that she was a woman of vigorous intellect, knew the objects of her bounty, and was capable of managing and disposing of her estate. They deny that McKenney resorted to falsehood and misrepresentation to induce the execution of the will, or that the testatrix was under any improper restraint or undue influence when she signed it. They admit that McKenney was her agent, and in control and possession of her moneys and securities, but state that he always followed her directions in the management of her estate. A guardian ad litem was appointed for the infant defendants, who appeared and answered for them, submitting their rights to the protection of the court. To this answer and the separate answers of the executors replications were filed, and defaults were entered against the other defendants, and the bill taken as confessed by them.

Caroline Mark, the testatrix, resided in the city of Mt. Carroll, Carroll county. Early in 1893 she owned, among other property, stock in the First National Bank of Mt. Carroll of the market value of about $30,000. At that time Oscar F. McKenney was connected with the Carroll County Bank, and on April 7, 1893, Mrs. Mark, the testatrix, executed to him a power of attorney, ‘constituting him her lawful agent and custodian of all her personal estate, consisting of money, notes, mortgages, bonds, and securities, and granting unto him full power to properly and safely lend and invest the same or the proceeds thereof in her name, and giving and granting unto him full power and authority to do and perform every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully for all intents and purposes as she might or could do if personally present,’ etc. As her agent thus constituted, McKenney came into possession of her money and securities, then valued at about $300,000, and was in possession of the same at the time of her death. Her will was drawn by an attorney named A. F. Wingert, who lived in Savanna, a city in Carroll county. Wingert was employed by McKenney to draw her will. About a dozen conferences occurred between McKenney and Wingert in regard to the drawing of the will, and after it was prepared by Wingert it was forwarded to McKenney at Mt. Carroll. By the terms of the will the executors and trustees, McKenney and Smith, are not required to give bond, and it is therein provided as follows: ‘It is my will that my estate be charged with the payment of such reasonable compensation to the said Oscar F. McKenney and Frederick S. Smith as they may deem just and proper, according to the time and attention they may severally devote to the affairs of my estate.’ The executors and trustees are also given power to appoint their own successors. On March 18, 1902, issues of fact were made to be tried by a jury. As to the form of the verdict the court submitted to the jury the following: ‘The following issues of fact are submitted to you for determination in this case: First. Is the writing read in evidence, purporting to be the last will and testament of Caroline Mark, deceased, the last will and testament of said Caroline Mark? Second. Was the writing read in evidence, purporting to be the last will and testament of Caroline Mark, deceased, caused to be executed through the undue influence of the defendant, Oscar F. McKenney, exercised on said Caroline Mark? Third. Did the said Caroline Mark, at the time of the execution and attestation of the said writing read in evidence, purporting to be the last will and testament of the said Caroline Mark, know and understand the contents of said instrument, purporting to be her last will and testament? If you find for the proponents upon the first issue, the form of your verdict will be: ‘We, the jury, find that the writing read in evidence purporting to be the last will and testament of Caroline Mark, deceased, is the last will and testament of said Caroline Mark.’ If you find for the contestants upon the first issue, the form of your verdict will be: ‘We, the jury, find that the paper read in evidence, purporting to be the last will and testament of Caroline Mark, deceased, is not the last will and testament of said Caroline Mark.’ In determining the second and third issues, you will designate the same as follows: If you determine the second issue in the affirmative, you will say: ‘As to the second issue, we answer, ‘Yes.” If you determine the second issue in the negative, you will say: ‘As to the second issue we answer, ‘No.” If you determine the third issue in the affirmative, you will say: ‘As to the third issue, we answer ‘Yes.” If you determine the third issue, in the negative, you will say: ‘As to the third issue, we answer ‘No.”’ The verdict of the jury was as follows: ‘We, the jury, find that the writing read in evidence, purporting to be the last will and testament of Caroline Mark, deceased, is the last will and testament of said Caroline Mark. As to the second issue, we answer, ‘No.’ As to the third issue, we answer, ‘Yes.”

Motion for new trial was made and overruled, and on March 25, 1902, a decree was rendered in accordance with the verdict of the jury, and dismissing the bill for want of equity, and requiring that the contestants pay the costs, and that execution issue therefor, to the entry of which decree exception was taken by the complainants. The present writ of error is prosecuted from the decree so entered by the trial court.

MAGRUDER, J. (after stating the facts).

First. The first point made by plaintiffs in error in favor of a reversal of the decree below, sustaining the validity of the will of the testatrix, Caroline Mark, deceased, is that the verdict and decree are not sustained by the evidence. As to the allegation in the bill that the testatrix, at the time of the execution of her will, was not of sound mind and memory, that allegation is not sustained by the proof. On the contrary, the overwhelming weight of the testimony shows that when she made her will Mrs. Mark was a woman of remarkably strong intellect and of unusually sound mind and memory. Indeed, no proof was introduced by the contestants for the purpose of showing that she was...