Drury v. Connell

• Decision Date: 21 December 1898
• Citation: 52 N.E. 368,177 Ill. 43
• Parties: DRURY et al. v. CONNELL et al.
• Court: Illinois Supreme Court

177 Ill. 43

52 N.E. 368

DRURY et al.

v.CONNELL et al.

Supreme Court of Illinois.

Dec. 21, 1898.

Error to circuit court, Mercer county; Frank D. Ramsey, Judge.

Bill by Omer H. Drury and others against James H. Connell and others.Decree for defendants, and complainants bring error.Affirmed.

Bassett & Bassett, for plaintiffs in error.

Brock & Graham and L. D. Thomason, for defendant in errorJ. H. Connell.

Scott & Cooke and James W. McCreery, for defendant in errorVashti Drury.

CARTWRIGHT, J.

Plaintiffs in error, as heirs at law of William Drury, deceased, filed their bill in the circuit court of Mercer county to set aside the will of said William Drury, alleging that he was of unsound mind and memory; that the will was not subscribed by the attesting witnesses in his presence; that it was not read to him, and he did not know its contents; and that it was procured by the undue influence of James H. Connell, who drafted it, and was a beneficiary under it, as well as the confidential attorney of the testator.An issue whether the writing was the will of the testator was made and submitted to a jury, and upon the trial a verdict was returned that it was his will.A decree was entered accordingly.

Counsel for the plaintiffs in error say: ‘It is now conceded for the contestants that the evidence on the question of unsound mind and memory, undue influence, and on the reading of or knowledge of the contents of the will by the deceased was sufficient to warrant the verdict of the jury if they had been properly instructed as to the law, and there is not much fault to be found with the instructions on those questions.’The only fault that is found with the court about the instructions on those questions is that it failed to instruct the jury that the burden of proof was on James H. Connell, attorney of the testator, who was one of the executors and a beneficiary under the will, to disprove undue influence on his part.The court seems to have given all instructions asked by contestants on the subject of undue influence, and no instruction of this kind was asked for.If they desired to present the question where the burden of proof would be under such circumstances, they should have asked for an instruction presenting their view of the law.The court was not in error in failing to give an instruction not asked for, and those which were given were correct in defining undue influence.

The only other assignment of error argued by counsel relates to the giving and refusal of instructions on the question of what is a sufficient attestation of a will in the presence of the testator.The evidence on that question was that the witnesses subscribed their names to the attestation clause at a desk in the same room with the testator, who was either sitting on the side of the bed or lying down upon it.The court gave, at the request of the proponents of the will, the following instructions as to the requirements of the law: (24)‘Relative to the witnessing or attestation of the alleged will in question, the court instructs the jury that the statute of Illinois provides that all wills shall be attested, in the presence of the testator, by two or more credible witnesses; and if you believe, from the evidence, that William Drury signed the alleged will in question in the presence of Arthur W. Mannon and Richard H. Roberts, and after he so signed the same they took said will to a writing desk a short distance from the foot of the bed, and within the range of testator's vision, and that the said William Drury was sitting on said bed, and they there subscribed their names to the attestation clause of said alleged will in full and uninterrupted view of the said testator, then this is a sufficient attestation of the will in question, and a full compliance with the law on that subject.’(25)‘You are further instructed that if you believe, from the evidence, that at the time of the alleged attestation of William Drury's alleged will now in dispute, that the alleged witnesses were in the same room with said William Drury, and only a few feet from him, with the view between him and them uninterrupted, and they within the range of his vision; and if you further believe, from the evidence and the then surrounding circumstances proved upon the trial, in connection with the alleged attestation of said alleged will, that said William Drury, taking into account his then condition or state of health and his then position as shown by the evidence, either saw, or could have seen if he had wished to, and had looked in the proper direction, the alleged witnesses...