Crowley v. Crowley

• Decision Date: 30 September 1875
• Citation: 1875 WL 8780,80 Ill. 469
• Parties: THOMAS CROWLEYv.CATHARINE CROWLEY.
• Court: Illinois Supreme Court

80 Ill. 469

1875 WL 8780 (Ill.)

THOMAS CROWLEY

v.CATHARINE CROWLEY.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Grundy county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. CHARLES W. NEEDHAM, for the appellant.

Mr. P. A. ARMSTRONG, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This cause originated in the county court of Grundy county, where Thos. Crowley, the appellant, produced an instrument in writing, which purported to be the last will and testament of David Crowley, deceased, and moved the court that it might be admitted to probate.

The county court, upon hearing the testimony of the subscribing witnesses, and they failing to identify the instrument as the one attested by them, refused to admit the will to probate. From the decision of the county court appellant appealed to the circuit court, where a trial was had before a jury, and a verdict was rendered that the instrument of writing was not the will of David Crowley, deceased. The court overruled a motion for a new trial, and rendered judgment upon the verdict, to reverse which appellant has brought this appeal.

It can not be claimed that the testimony of the subscribing witnesses to the will was sufficient to admit the instrument to probate. Neither of the witnesses had written his signature to the document, but each had signed by a cross, and they could not identify the instrument of writing as the one they had attested, nor could the witnesses testify that Daniel Crowley was, at the time the instrument of writing was executed, of sound mind and memory. Ryan, one of the witnesses, gave it as his opinion that the testator was not of sound mind at the time the will was signed. The other witness, Wright, in his evidence said: “I don't think he had his mind as well as if he was well; I could not say whether he was of sound mind or not.”

Section 2, of chapter 148, entitled “Wills,” declares: “That all wills shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix by two or more credible witnesses, two of whom declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same.”

In Dickie v. Carter, 42 Ill. 376, it was held, under the section of the statute cited, that to entitle a will to be admitted to probate, four things must concur: The will must be in writing, and signed by the testator, or in his presence by some one under his direction; it must be attested by two or more credible witnesses; two witnesses must prove that they saw the testator sign the will in their presence, or that he acknowledged the same to be his act and deed; they must swear that they believe the testator to be of sound mind and memory at the time of signing and acknowledging the same.

The evidence of the attesting witnesses failed entirely to establish two very important facts: First, the execution of the will, as they could not identify it as the one they signed as witnesses; second, they could not swear they believed the testator to be of sound mind and memory when the instrument was executed.

So far, then, as appellant relied upon the evidence of the attesting witnesses to establish a state of facts under which the circuit court could admit the instrument of writing to probate, he failed entirely.

It is, however, urged, that as probate of the will was refused in the county court, on the trial of the appeal in the circuit court appellant was entitled, under sec. 13,...