England v. Fawbush

• Decision Date: 26 October 1903
• Parties: ENGLAND et al. v. FAWBUSH.
• Court: Illinois Supreme Court

204 Ill. 384

68 N.E. 526

ENGLAND et al.

v.FAWBUSH.

Supreme Court of Illinois.

Oct. 26, 1903.

Error to Circuit Court, Menard County; Thomas Mehan, Judge.

Bill by Mattie Fawbush against Perry Joseph England and others. From a decree for plaintiff, defendants bring error. Affirmed.T. W. McNeely, F. E. Biane, and N. W. Branson, for plaintiffs in error.

John M. Smoot and Charles Nusbaum, for defendant in error.

This is a bill filed in the circuit court of Menard county on the 18th day of June, 1902, by the defendant in error, Mattie S. Fawbush, against the plaintiffs in error, Perry Joseph England, Maranda Miller, Mary Sheneman, and Perry Joseph England, executor of the last will of Jesse England, deceased, for the purpose of setting aside the last will and testament of said Jesse England. The bill alleged that the testator was of unsound mind and memory when the will was made, and was under the improper restraint and undue influence of his son Perry Joseph England, one of the plaintiffs in error, and seeks to set aside the probate of the will upon the two grounds thus alleged-of unsoundness of mind and memory, and the exercise of undue influence. The bill further alleges that Jesse England, in his lifetime, and on January 9, 1902, executed a paper purporting to be his will, and on January 12, 1902, died testate, leaving defendant in error Mattie S. Fawbush, his granddaughter, and his daughters, Mary Sheneman, Maranda Miller, and his son Perry Joseph England, plaintiffs in error, and his son Paren England, since deceased, his only heirs at law; that the will was on February 21, 1902, probated by the county court of Menard county, and letters testamentary were granted to Perry Joseph England as executor; that the deceased owned at the time of his death real estate of the value of about $50,000; that he was at the time of executing his will 87 years old, and suffering from a mortal illness. The bill was answered by Maranda Miller, Mary Sheneman, Perry Joseph England, and Perry Joseph England, executor, admitting all the allegations of the bill, except those to the effect that the testator was not of sound mind and memory, and had been induced to make his will by undue influence, the latter allegations being denied. The case was tried before the court and a jury, and the jury returned a verdict finding that the writing read in evidence, purporting to be the last will and testament of Jesse England, deceased, was not the last will and testament of the said Jesse England. Motions to set aside the verdict and for a new trial were overruled, to which the defendants below took an exception. Thereupon, on November 1, 1902, a decree was entered setting the will aside, to which decree defendants below took exception. Jesse England, the testator, at the time of his death was a farmer, residing on his farm of about 339 acres, valued at $32,950. His death on January 12, 1902, took place after an illness of only six days, his disease being pneumonia of a threatening character. His wife had died in 1894, and his daughter Mrs. Mott, mother of defendant in error, died in 1896 at his home. His son Paren England died intestate on June 9, 1902, in Kansas City, Mo., leaving his brother, Perry Joseph England, his two sisters, Maranda Miller and Mary Sheneman, and his niece, Mattie S. Fawbush, his only heirs at law. By the terms of his will as probated, the testator gave to his granddaughter, the defendant in error, Mattie S. Fawbush, $500; to his daughter Maranda Miller, one large flower wreath; to his son Perry Joseph England, $1,500. The residue of his estate he gave and bequeathed to his daughters, Mary Sheneman, Maranda Miller, and his sons, Paren England and Perry Joseph England, share and share alike. The will provided that, in case his son Paren England did not claim his share within five years, his portion of the estate should be divided equally between the two daughters and the son Perry Joseph. Perry Joseph England was made executor, without bond. There were four witnesses to the will, which was dated January 9, 1902, three days before the testator's death, but only three of these witnesses testified before the county court when the will was admitted to probate, and only three of them have testified in this case. Their names were Joseph Myers, Henry Oleson, James S. King, and James L. Rayburn. Oleson is the witness who has not testified.

MAGRUDER, J. (after stating the facts).

The bill in this case seeks to set aside the will of the testator upon the ground that at the time of its execution he was not of sound mind and memory, and also upon the ground that his son Perry Joseph England exercised an undue influence over him, so that the execution of the will was not his own act.

A large amount of testimony was taken upon the question whether or not the testator was of sound mind and memory when he made his will. Nearly all this testimony has reference to the condition or state of the testator's mind, as shown by his actions and expressions prior to his last illness. The evidence tends to show that, before the beginning of the final sickness which resulted in his death, the testator was a man of sound mind and memory. One of the contentions of the plaintiffs in error is that there was not sufficient evidence sustaining the charge that he was not of sound mind and memory to warrant a submission of the case to the jury upon that question. We do not deem it necessary to pass any opinion upon this question, although there is some evidence tending to show that during his last sickness, when his will was made, his mind and memory were not as sound as they had been theretofore.

The other charge in the bill, upon which it was sought to set aside the will, was the charge of undue influence exercised over the testator by his son the plaintiff in error Perry Joseph England. The charge in the bill is ‘that said deceased, in executing same [his will], was under improper restraint and undue influence from said arts and fraudulent practices of said Perry Joseph England.’ There was sufficient evidence upon this branch of the case to submit to the jury the question whether the paper introduced in evidence as the will of the deceased was in fact his will. The verdict of the jury is general in terms, and does not specify whether, in the opinion of the jury, the testator was of unsound mind and memory or whether he was the victim of undue influence.

The plaintiff in error Perry Joseph England lived on his own farm, near the home of his father. At the time of his death the testator was a widower, and lived alone on his own place. His daughter Mrs. Mott, the mother of the defendant in error, who had kept house for him, had died in 1896, and after that date he seems to have been surrounded by hired servants, and not by any of his family. On the morning of January 9, 1902, three days before the testator's death, and while he was very sick, his son Perry was with him, and the subject of making his will was talked of between them. A man named Rayburn, who had been justice of the peace for many years in Menard county, lived northeast of the testator, on an adjoining farm. On January 9th Perry England sent his son after Rayburn to come to the testator's house to draw his will. He invited Rayburn into the house, gave him a seat in an adjoining room, and went alone into the sickroom, and talked with the testator for some time. Perry's daughter was there. In a few minutes Perry called Rayburn into the bedroom where his father was lying in bed. While Rayburn was sitting in the sitting room, he could hear Perry's voice talking to his father, but could not hear what he said. When Perry called Rayburn into the sickroom, he informed his father that Rayburn had come to fix his will. The testator then made some remark about his son Paren, saying that he did not know where he was, and had not heard from him for two years, and said that, if Paren should come back within five years, he was to have his share of the estate, and, if not, it was to be divided among the others. The testator then told Rayburn that he wanted his daughter Maranda to have a certain picture; that he wanted to give Perry $1,500, and to give his granddaughter, Mattie Fawbush, $5,000, but Perry corrected him so as to make the amount $500. Upon this subject Rayburn says: ‘He wanted to give Perry $1,500, and to give Mattie Fawbush, he said, $5,000, and Perry said to me or him (I don't know who he meant to say it to), ‘He means five hundred:’ and the old man laid there a little bit, and then he says, ‘Yes, five hundred;’ and then he wanted the balance of his property divided equally between the heirs. I think he named them.' Rayburn says that they then went out into the other room to draw the will. He there found lying on a stand the blank form of a will. He said to Perry: ‘What is this doing here?’ And Perry said: ‘I had it here in case of an emergency. I have had it two years.’ Rayburn states that he had forgotten his glasses, and did not have them with him, and asked Perry if he could not write the will. Perry said: ‘I will write it if you will tell me what to put in it.’ Rayburn said: ‘All right.’ Perry offered to send his son, Jesse, after the glasses, but Rayburn said it was a short will, and it could be written before his son would get back with the glasses. Rayburn then states that he dictated the will, and Perry wrote it down. At first he wrote the will with a pencil. Rayburn says that he dictated the will as the testator had directed him to make it, and Perry wrote it down in pencil. At this point Rayburn says: ‘He wanted to give Perry $1,500, and he wanted Maranda to have that picture, and Martha Fawbush to have $500-$5,000, he said, and Perry kinder corrected him, and he said then $500-and then the balance of his property he wanted divided equally between his children.’ Rayburn further states that, after the will had been thus drafted in pencil, they went in, and...