Dickie v. Carter

• Decision Date: 30 November 1866
• Citation: 1866 WL 4702,42 Ill. 376
• Parties: MILTON DICKIE et al.v.JAMES H. CARTER.
• Court: Illinois Supreme Court

42 Ill. 376

1866 WL 4702 (Ill.)

MILTON DICKIE et al.

v.JAMES H. CARTER.

Supreme Court of Illinois.

November Term, 1866.

WRIT OF ERROR to the Circuit Court of Alexander county; the Hon. WILLIAM H. GREEN, Judge, presiding.

At the September Term, 1865, of the County Court of Alexander county, James H. Carter produced an instrument purporting to be the last will and testament of Elizabeth Burnett, deceased, and asked that the same be admitted to record as such. The heirs at law contested the will, and the County Court refused to record it. From that decision Carter appealed to the Circuit Court of Alexander county. The case was tried at the June Term, 1866, by a jury, who found the instrument in question to be the will of Elizabeth Burnett. A judgment was rendered in accordance with the finding of the jury, and the heirs at law now prosecute this writ of error to reverse that judgment. The facts of the case, as disclosed in the evidence, are fully stated in the opinion of the court. The court below gave the jury, in behalf of the plaintiff, the following instructions:

“1. The court instructs the jury, that, where the party insisting on the probate of a will has established the sanity of the testator or testatrix by the oath or affirmation of the subscribing or attesting witnesses, and the will was legally executed, a prima facie case is then made out, and the party seeking to contest the will on the ground of insanity, fraud, compulsion, or any other cause, takes the burden of proof of such facts set up, and such party must prove the fact of insanity, fraud, compulsion, or other cause, by satisfactory testimony; and if the question be left equally balanced by the evidence, your verdict should be in favor of the validity of the will.

2. The court instructs the jury, that, if they believe, from the evidence, that the will in controversy is the will of Elizabeth Burnett, signed or acknowledged by her in the presence of two witnesses, and that such signing and acknowledging was not caused by fraud or compulsion, or other improper conduct, you should find that the will in controversy is the will of Elizabeth Burnett.

3. The only question in this case is as follows: Is the will in controversy the will of Elizabeth Burnett? and your verdict will be either that it is, or is not, the will.

4. The court instructs the jury as a matter of law, that a party has the right to make disposition of his estate by will, and so devise his estate as to divest those who otherwise would be legal heirs of their interest, and the object of a last will and testament is to enable the testator or testatrix to devise his or her property, as he or she may please.

5. Illicit sexual intercourse between a testatrix and her devisee, however immoral and illegal it may be, does not necessarily render invalid the will of such testatrix, if her will was made by her with sound and disposing memory and free agency.

6. The court instructs the jury, that it devolves upon the plaintiff in this case to prove by two witnesses that Elizabeth Burnett signed or acknowledged the will in question to be her act and deed, and that she was at the time of sound mind and memory.

7. The court instructs the jury, that, in order to invalidate a will on the ground of fraud, compulsion or other improper influences, it must be of such a character as to entirely destroy free agency on the part of the testator.

8. The court instructs you, that, if you believe, from the evidence given by the subscribing witnesses, that Elizabeth Burnett signed the paper purporting to be her will, in the presence of the subscribing witnesses, and acknowledged it to be her act and deed to the other, and they subscribed the same as such witnesses in her presence, and that if she was of sound mind and memory at the time, this is a compliance with the law and is prima facie evidence of the due execution of the will.

9. It is not unlawful for a man, by honest intercession and persuasion, to procure a will in favor of himself or any other person, neither is it unlawful to induce the testator by fair speeches and kind conduct, for, though persuasion may be employed to induce or influence the disposition in a will, this does not amount to that kind of compulsion or improper conduct, which in a legal sense would render invalid the will, but to have such effect it must amount to a moral force and coercion, destroying free agency. It must not be the influence of affection and attachment; it must not be the mere free desire of gratifying the wishes of another, but the compulsion in this case, which is essential to render a will invalid, must be of such a degree and character as to prevent the exercise of that discretion which is essential to a disposing mind.

10. The court instructs the jury, that it is wholly immaterial whether Fitzgerald understood the nature or character of the instrument purporting to be the will of Elizabeth Burnett at the time of attesting the same; if you find he did attest the instrument in question, and that she acknowledged the same to be her act and deed, the law does not require that the attesting witnesses of a will should know at the time that the instrument attested by them is a will.

11. The court instructs you, that it is not necessary that subscribing witnesses to a will should know the contents of the instrument, but that, if the testatrix acknowledged the will to be her act and deed, it is a sufficient acknowledgment, and, if the other requisites of the statute have been complied with, it is a good execution of the will.

12. Although the fact that the testator makes a will in favor of one not a relative may be suspicious, nevertheless, a will is not thereby rendered invalid, and, if the testator was sane, the will can only be evidenced invalid in this case by proof of fraud, compulsion or other improper conduct.”

The court then gave the following instructions at the instance of the defendant:

“1. If the jury believe, from the evidence, that Carter, the plaintiff, before the time it is claimed the will was executed, had illicit intercourse with Elizabeth Burnett, this fact, if proven by positive or circumstantial evidence, may be considered by the jury in determining the question whether the will was the result of fraud or compulsion practiced upon deceased by the plaintiff.

2. If the jury believe, from the evidence, that Elizabeth Burnett, at the time it is claimed the will was made by her, was laboring under such a delusion as to prevent her from appreciating or understanding the scope and consequences of her acts, the verdict should be that it was not the will of Elizabeth Burnett.

3. The court instructs the jury, that a bare acknowledgment by Elizabeth Burnett, that her name to what is claimed to be her last will was her signature, is not a sufficient compliance with the statute which requires an acknowledgment on her part that it was her act and deed.” To which the court added: “Unless you believe that by acknowledging she had signed the will in question, she meant the will was her act and deed.

4. To witness a will means something more than signing, and, if one of the persons called upon to witness the paper in question did not see it signed by Elizabeth Burnett, nor hear her acknowledge it to be her act and deed, and these necessary facts have not been proven, the verdict should be that the will in question is not the will of Elizabeth Burnett.

5. The court instructs the jury, that, if you believe, from all the evidence and circumstances proved in the case, that Elizabeth Burnett was, by any fraud or compulsion, or improper conduct over her, induced or influenced to make the paper claimed to be her will by James H. Carter, you should find that the will in question is not her will.

6. If the jury believe, from the evidence, that Elizabeth Burnett, at the time it is claimed the will was made, was not of sufficiently sound mind and memory to make a will, the jury will find that the will in question is not the will of Elizabeth Burnett.”

To which instructions, as modified by the court, and given for defendant, the defendant excepted; and to the giving of the instructions for the plaintiff, the defendant also excepted.

Messrs. ALLEN & WEBB, and O'MELVENY & HOUCK, for the plaintiffs in error.

1. Two witnesses must attest a will, both knowing at the time that the instrument is a will. Swift v. Wiley, 1 B. Mon. 117; Gerrish v. Nason, 22 Maine, 438; Sweet v. Boardman, 1 Mass. 258; White v. The British Museum, 3 M. & Pay. 689; Ellis v. Smith, 1 Ves. Jr. 11; Deu v. Milton, 7 Halst. 70; Cilley v. Cilley, 34 Maine, 162; Brinkerhoff v. Runsen, 8 Paige, 488; Brown v. De Selding, 4 Sandf. S. C. 10; Whitbeck v. Patterson, 10 Barb. 908; Nipper v. Groesbeck, 22 Id. 670; Jay v. Kennedy, 1 Watts & Serg. 326.

2. Before a will can be admitted to probate, the party claiming under it must establish sanity by the oath of two witnesses, and the burden of proof is upon him. Jarman on Wills, 75, and cases there cited; Riggs et al. v. Wilton, 13 Ill. 19; Walker v. Walker, 2 Scam. 294.

3. Where the testimony shows that the mind of the alleged testatrix was impaired, and that, in her actions, she was controlled by another person, the court will not say she was a competent person to make a will. Redf. on Wills, 72; Marshv. Tyrrell, 2 Hagg. 122; Dew v. Clark, 3 Add. 207; Jarman on Wills, 60; 5 Russ. Ch. Pr. 163; Potts v. Hoose, 6 Serg. 324; Townshend v. Townshend, 7 Gill. 10; Mountrin v. Bennett, 1 Cox, 356; McTaggart v. Thompson,2 Har. 149.

4. A will made at the instance of a party, and in his favor, must be established by the strictest proof. Jarman on Wills, 42; Garrish v. Nason, 22 Maine, 538; Harrison v. Rown, 3 Wash. C. C. 588; Shelford on Lunacy, 319; Miller v. Miller, 3 Serg. & Rawle, 267; Small v. Small, 4 Greenl. 220; Lowe v. Williamson, Green's Ch. 82.

5. A will contrary to natural duty and affection, and as a recompense for a lewd passion, is invalid or...