Down v. Comstock

• Citation: 318 Ill. 445,149 N.E. 507
• Decision Date: 02 December 1925
• Docket Number: No. 16351.,16351.
• Parties: DOWN et al. v. COMSTOCK et al.
• Court: Supreme Court of Illinois

318 Ill. 445

149 N.E. 507

DOWN et al.

v.COMSTOCK et al.

No. 16351.

Supreme Court of Illinois.

Oct. 28, 1925.

Rehearing Denied Dec. 2, 1925.

Suit by Elmer E. Down and others against Julia A. Comstock and others to set aside will of Charles W. Down, deceased. From a decree for defendant, complainants appeal.

Affirmed.Appeal from Circuit Court, Kankakee County; Arthur W. De selm, judge.

Walter C. Schneider and Miller & Streeter, all of Kankakee, for appellants.

W. R. Hunter, of Kankakee, Costigan & Wollrab, of Bloomington, and Eva L. Minor, of Kankakee, for appellees.

DE YOUNG, J.

Charles W. Down, a widower, of the city and county of Kankakee, on January 2, 1920, when 82 years of age, executed his last will and testament. By this instrument he gave (1) to his son Elmer E. Down a life estate in 320 acres of land in Ford county, with the remainder to Elmer's children, but if he left no issue, then to the children of testator's son Ward W. Down; (2) to his son Ward a life estate in 295 acres of land in the same county, with the remainder to Ward's children; (3) to his daughter Julia A. Comstock a life estate in 240 acres of land in Iroquois county, with the remainder to her children, but in the event of her death without issue, then to the children of testator's son Ward; (4) to his daughter Olive E. Carlin, for her life, an annuity of $2,000, of which Elmer and Ward, the sons, were each required to pay $500, and Julia A. Comstock, a daughter, $1,000, in equal installments on the 1st days of January and of July in each year, which obligations were made liens on the lands devised to Elmer, Ward, and Julia, respectively; and (5) to his daughter Julia the residue of the estate. Mrs. Comstock and testator's daughter-in-law, Catherine Down, were named executrices. The testator died at Kankakee on February 25, 1922, and left surviving him as his heirs the sons and daughters mentioned in the will. It was admitted to record by the county court of Kankakee county on April 7, 1922, and letters testamentary were issued to the executrices therein named. Subsequently, Elmer and Ward, the two sons, and Olive E. Carlin, a daughter, filed their bill of complaint in the circuit court of Kankakee county to set aside the will, alleging its alteration and partial destruction and the testator's want of testamentary capacity. The former issue was withdrawn upon the trial, and the other question only was submitted to the jury. The verdict sustained the will, and after a motion for a new trial had been denied a decree in accordance with the verdict was entered. From that decree the complainants prosecute this appeal.

The testator, who was a native of England, came to the United States at the age of 13. At the time of his death he owned four farms in Ford, Iroquois, and Kankakee counties, unincumbered and comprising 1,163 acres, and personal property valued at approximately $117,000 consisting of notes, shares of stock, Liberty and other bonds. He ceased to do the active work of farming about 20 years prior to his death, and after his retirement let his farms to tenants, made leases, entered into contracts for repairs and improvements, and otherwise managed his estate. During the last years of his life he was a member of the Elks and met various members of that organization at the lodge hall almost daily. On November 23, 1919, he called upon an attorney at Kankakee with a will which he had executed prior to that time. He desired certain changes made in it, and these were noted upon the existing will by the attorney. The testator was informed that the new draft would be ready on the next day. He did not return to the attorney's office until January 2, 1920, when he read the new will, pronounced it satisfactory, and executed it in the presence of witnesses.

The testator had infirmities that are incident to old age, and their extent and effect upon his mental powers were in dispute. His eyesight and hearing were impaired, the normal functioning of his heart, kidneys, and blood vessels was disturbed, and he was subject to vertigo, and had fallen unconscious on two or more occasions. He died of apoplexy at a hospital where he had lived about a year.

Twenty-six witnesses called by appellees expressed the opinion, based upon their observation of the testator, that he was of sound mind. Some of these witnesses had met the testator in a social way, others had associated with him in his lodge activities, and some had conversed with him on many occasions concerning farms, crops and the prices of agricultural products. Witnesses who had been acquainted with the testator for many years testified that he examined and extended leases of his lands, made settlements with tenants, attended to the repair of buildings, and personally transacted other matters of business. They observed no change in his mental condition, although one or two witnesses admitted that he was weak physically. A physician who had attended the testator believed he was sound mentally. Another physician who had observed him expressed the same opinion.

Appellants called 23 witnesses. The important incidents upon which one or more of these witnesses based their opinion that the testator was of unsound mind were that at times he failed to recognize persons with whom he was acquainted; that occasionally, when asked a question, he would request the person who interrogated him to wait a moment until his mind cleared up; that often when alone in his room he would speak loudly to himself; that he was excitable; that he gave inconsistent and contradictory directions concerning the work of his tenants and the use of certain ground; that on one occasion he wanted some posts cut to a certain length, but afterwards ordered them shortened, and when his later directions had been followed he said that the posts had been spoiled; that he disliked the son of a certain tenant and refused to renew the latter's lease unless the son left the farm; that he objected to the payment by a tenant of 60 cents an hour for certain carpenter work; and that in making a return of his income tax he forgot to include the interest on a large number of bonds until later on the same day, when it was included in an amended return. Dr. J. L. Greene, formerly superintendent of the State Hospital for the Insane near Kankakee, testified that the testator had been under his observation at Hot Springs, Ark., from March 24 to May 19, 1920; that he found that the testator had high blood pressure; that there was imperfect functioning of the kidneys; that he had a skin disease, suffered from attacks of vertigo, and had some clouding of consciousness; that an urinalysis showed that he had albumin and hilly and granule casts in his urine; that he had arteriosclerosis in an advanced stage, and had suffered from it at least 10 years; that he was also afflicted with senile dementia; and that in the opinion of the witness the testator was of unsound mind. On cross-examination Dr. Greene stated that even though the testator had been able to manage his business, examine and correct leases, let contracts for houses, sell land, and attend to business of that character, he might still be of unsound memory. Two other physicians were asked hypothetical questions embodying the material parts of the testimony offered on behalf of the contestants, and each stated that he believed that the person described in the question was of unsound mind. On cross-examination one of these witnesses admitted that if the person described was able to enter into leases with tenants, collect rents, attend to repairs, and transact business which would grow out of the letting of large tracts of land he would not say that such a person was mentally unsound.

The errors assigned and argued by the appellants are: (1) The admission of incompetent testimony concerning the mental capacity of the testator offered by appellees; (2) the giving of erroneous instructions at appellees' request; and (3) the refusal to give certain instructions requested by appellants.

It is argued that 7 lay witnesses who testified that in their opinions the testator was of sound mind failed to state sufficient facts upon which to base their opinions, and that in consequence their testimony should have been excluded. Each of these witnesses talked with the testator on a number of occasions concerning current events and social or business matters, and each and ample opportunity to observe him carefully. The rule is that a person who is not an expert may give his opinion concerning the mental capacity of a testator after first detailing the particular facts and circumstances upon which he bases his judgment, and that the jury will fix such value upon the opinion so expressed as the capacity, intelligence and observation of the witness who forms it may warrant. Speirer v. Curtis, 312 Ill. 152, 143 N. E. 427. No rule can be laid down which in any given case will determine how much evidence is necessary to lay the foundation for the admission of nonexpert opinion evidence in cases of this character.

[3] The question whether the facts stated form a sufficient basis for such an opinion is one for the trial court to determine, and unless that court has abused its discretion the admission of such testimony will not effect a reversal of the decree, for an opinion not based upon sufficient knowledge is of little probative force. Catt v. Robins, 305 Ill. 76, 137 N. E. 101. We have examined the testimony to which objection was made, and find that it was competent. Britt v. Darnell, 315 Ill. 385, 146 N. E. 510.

Complaint is made of the first instruction given at appellees' request because it refers to the instrument as a ‘will.’ Whether the instrument was a will, it is argued, was for the jury to determine. All the first instruction attemptedto do was to define the terms ‘contestants' and ‘proponents.’ The second, third, ninth, tenth, eleventh, and twelfth instructions referred to the instrument...