Dowie v. Sutton

• Decision Date: 18 April 1907
• Citation: 227 Ill. 183,81 N.E. 395
• Parties: DOWIE et al. v. SUTTON et al.
• Court: Illinois Supreme Court

227 Ill. 183

81 N.E. 395

DOWIE et al.

v.SUTTON et al.

Supreme Court of Illinois.

April 18, 1907.

Appeal from Appellate Court, First District.

Suit by John B. Sutton and others against John Alexander Dowie and others to set aside the probate of the will of Frederick Sutton, deceased. From a decree of the Appellate Court (126 Ill. App. 47) affirming a decree in favor of complainants, defendants appeal. Affirmed.

V. V. Barnes, Charles E. Lander, and P. R. Barnes, for appellants.

Jule F. Brower and Samuel B. King, for appellees.

Appellees filed their bill in equity to the March term, 1903, of the circuit court of Cook county praying that an instrument in writing that had been admitted to probate as the last will of Frederick Sutton, and the probate thereof, might be set aside and declared null and void, and that the estate of Frederick Sutton be distributed as intestate estate. Appellees, who are the heirs at law of Frederick Sutton, all reside in New Zealand, and appellants represent the Christian Catholic Church of Zion City, Lake county, Ill., a religious sect of which John Alexander Dowie was the founder and general overseer. The instrument in question, and the codicil thereto, are as follows:

‘In the Name of God, Amen.-I, Frederick Sutton, late of Invercargill, New Zealand, but now of Chicago, Illinois, being of sound mind, memory and understanding, do therefore, in consideration of the uncertainty of this frail and transitory life, do hereby make, ordain, publish and declare this to be my last will and testament. I cancel and revoke all wills and testamentary dispositions heretofore made by me.

‘First-I order and direct that my executor hereinafter named shall pay all my just debts, if any, and funeral expenses, as soon after my decease as possible.

‘Second-I give, devise and bequeath the whole of my estate and effects, real and personal, movable and immovable, in possession, reversion, remainder and expectancy, wheresoever situated, nothing whatsoever excepted, unto John Alex. Dowie, the general overseer of the Christian Catholic Church, and to his successor and successors as such general overseer, absolutely and forever; and in order that my said estate and effects, etc., may be more effectively used for the good and furtherance of the Christian Catholic Church, I hereby authorize said John Alex. Dowie, his successor and successors, to sell, convey, pledge, mortgage, invest and re-invest, use and expend said estate and effects, etc., proceeds and income thereof, in such a way and manner as he or they may deem best.

‘Third-I do hereby make, constitute and appoint John G. Speicher, of Chicago, Illinois, to be executor of this my last will and testament, and I do hereby request that he may not be compelled to give any bond or security as such executor.

‘In witness whereof I have hereunto subscribed my name and affixed my seal, and have also subscribed my name on the margin of this and the preceding page composing this will, this twenty-second day of March, in the year of our Lord one thousand nine hundred and two.

‘Fred. Sutton. [Seal.]

‘This instrument was, on the day of the date thereof, signed, published and declared by the said testator, Frederick Sutton, to be his last will and testament in the presence of us. At his request we have subscribed our names thereto as witnesses, in his presence and in the presence of each other.

‘Frank W. Cotton, [Seal.]

‘1254 Michigan Avenue, Chicago.

‘Wilbur O. Ruby, [Seal.]

‘1254 Michigan Avenue, Chicago.

‘Codicil following on the will of me, Frederick Sutton, late of Invercargill, New Zealand, now of Chicago, Illinois, which will was duly executed by me on the twenty-second day of this month.

‘After further consideration, and acting in the fear of God, in whose presence I may soon appear, I do give, devise and bequeath the following legacies: To my sister, Mrs. Nellie Edridge (née Sutton), Yellow Bluff, New Zealand, the sum of one thousand pounds sterling; to my brother John B. Sutton, Fairview, Thornberry, New Zealand, the sum of five hundred pounds sterling; to my brother George Sutton, The Willows, Winton, New Zealand, the sum of five hundred pounds sterling; to my brother Charles Sutton, Drummond, Otage, New Zealand, the sum of five hundred pounds sterling.

‘I direct the executor of my will, John G. Speicher, of Chicago, to carry out the provisions of this codicil, and declare and desire that it shall have the same force and effect as if contained in the said will.

‘Dated at Chicago this twenty-fifth day of March, in the year of our Lord one thousand nine hundred and two.

‘Frederick Sutton.

‘Signed by Frederick Sutton, the testator of this will, in the presence of us, then present, both together, and affixing our signatures hereto as witnesses to the said will in the presence of the said testator.

‘Frank W. Cotton,

‘1254 Michigan Avenue, Chicago, Ill.

‘Wilbur O. Ruby,

‘1254 Michigan Avenue, Chicago, Ill.’

The testator died in Chicago, March 26, 1902, leaving an estate, consisting entirely of personal property, valued at $54,000. The will was admitted to probate in the probate court of Cook county, February 9, 1903. The appellees charge in their bill that the testator was not of sound mind and memory at the time of executing the instruments purporting to be his will, and the codicil thereto; that his mind and memory were so diseased and impaired as to render him wholly incapable of making a will; that the said pretended will and testament were written by John G. Speicher, who is named as executor in the will, and that he superintended and procured the signature thereto. It is charged that a close, confidential relation existed between the testator, Speicher, Dowie, Frank W. Cotton, and Wilbur O. Ruby, the last two being witnesses to the said will; that said confidential relation grew out of the fact that Dowie, Speither, Cotton, and Ruby were ecclesiastical and secular officers of the Christian Catholic Church, and professed to possess spiritual authority and the power of healing, and that the testator was then under their ministrations, both spiritually and physically, so that the said Dowie, Speicher, Cotton, and Ruby sustained toward The testatorboth the relation of priest and physician, by reason of which each of them occupied a position of trust and confidence with the testator, and exercised a dominion over his will, judgment, and actions to such an extent that the pretended will was really the expression of the will of Dowie, Speicher, Cotton, and Ruby, and not the will of Frederick Sutton. The bill charges that the will was the result of undue influence exercised by these four persons over Sutton, which was acquired by reason of the confidential relations existing between them and the testator, and that in consequence the will is presumptively fraudulent and void. The bill also charges that the will was the result of undue influence and dominion in point of fact actually exercised over the testator by Dowie and Speicher. It is also alleged that the will was not executed in accordance with the provisions of the statute, for the reason that the witnesses were interested parties, alleging that the Christian Catholic Church was a voluntary association, not incorporated, and that the witnesses were the agents and servants and in the employ of Dowie, and members or partners in the voluntary association, and that the bequest was to John Alexander Dowie in trust for the whole membership, and that such witnesses were therefore interested in the bequests contained in the alleged will. John Alexander Dowie, individually and as general overseer of the Christian Catholic Church, and John G. Speicher, individually and as executor, were made defendants, and filed a joint answer, denying substantially all the material allegations of the bill.

Upon the filing of a replication an issue of law was made up to be submitted to the jury, as follows: ‘First. Is the writing in question, purporting to be the last will and testament of Frederick Sutton, deceased, the last will and testament of said Frederick Sutton? Second. Is the writing in question, purporting to be a codicil to the last will and testament of Frederick Sutton, deceased, the codicil of said Frederick Sutton? Third. Was the said Frederick Sutton, at the time of the execution and attestation of the said writing in question purporting to be the last will and testament of the said Frederick Sutton, deceased, of sound mind and memory? Fourth. Was the said Frederick Sutton, at the time of the execution and attestation of the said writing in question purporting to be a codicil to the last will and testament of the said Frederick Sutton, deceased of sound mind and memory? Fifth. Was there any undue influence exercised over the said Frederick Sutton that resulted in the making of said will? Sixth. Was there any undue infiuence exercised over the said Frederick Sutton that resulted in the making it said codicil?’ These issues were tried by a jury, and on October 1, 1904, the jury returned a verdict that the instrument offered in evidence as the last will and testament of Frederick Sutton, the deceased, is not the will of said testator, and that the codicil offered in evidence is not the codicil of said testator. After overruling a motion for a new trial the court entered a decree in accordance with the verdict, from which an appeal was taken to the Appellate Court for the First District, where the decree of the court below was affirmed. By their further appeal proponents have brought the case to this court for review.

So far as the facts are necessary to a determination of the questions preserved for review in this court, they are stated in the opinion, in connection with a discussion of the points to which they apply.

VICKERS, J. (after stating the facts).

First. Counsel for both parties have submitted extended briefs and arguments upon the questions of fact involved in the issue submitted to the jury....