Garrus v. Davis

• Decision Date: 05 June 1908
• Citation: 234 Ill. 326,84 N.E. 924
• Parties: GARRUS et al. v. DAVIS et al.
• Court: Illinois Supreme Court

234 Ill. 326

84 N.E. 924

GARRUS et al.

v.DAVIS et al.

Supreme Court of Illinois.

April 23, 1908.

Rehearing Denied June 5, 1908.

Appeal from Circuit Court, Cook County; C. M. Walker, Judge.

Suit by Adah L. Taylor Garrus and others against Harry C. Davis and others. Judgment for defendants, and complainants appeal. Reversed and remanded.Kremer & Greenfield, for appellants.

Ritsher, Montgomery, Hart & Abbott, and Tatge, Abbott & Koepke, for appellees.

FARMER, J.

This suit was begun by appellants filing a bill in the circuit court of Cook county to contest the will of Elizabeth L. Taylor, deceased. Complainant Adah L. Taylor Garrus is the daughter of Mrs. Taylor, and Ninus Garrus is her husband. Mrs. Taylor formerly resided in Peoria, where she was married, and continued to so reside until after the death of her husband. At the time of her death she was the owner of property of considerable value, located principally in Peoria. She derived title to said property from her husband, and at the time of her death it was producing a net income of about $5,000 a year. Mrs. Garrus was her only child. Mrs. Taylor moved from Peoria to Chicago to reside in 1892. In 1898 she manifested symptoms of paralysis agitans, or palsy, which, according to the testimony, is a progressive disease and became fully developed in her in 1903. In 1900 she went to Europe to be treated by specialists. Originally she had been a believer in the Christian religion, but afterwards became a believer in the doctrines taught by Ingersoll, and later adopted theosophy. After remaining in England and Sweden for some time, and receiving treatment for her disease, with little or no apparent benefit, she went to India, where she met a man named Lallan, whom she had first met at the Congress of Religions at the World's Fair in Chicago, in 1893. While there she also met Vivikananda, who introduced her to the Lama of Thibet, and she consulted these parties in the hope that they might be able to relieve her of her disease. Being disappointed in this respect, she returned to London, where she had left her daughter, and together they went to Paris, where she employed a doctor to treat her. This doctor, after treating her some time without any beneficial results, advised her to employ a masseur, and appellant Ninus Garrus was so engaged by her. While Garrus was treating Mrs. Taylor, an attachment sprang up between him and her daughter, Adah, and they were married. Mrs. Taylor appears to have been opposed to the marriage, and ever afterwards entertained a strong antipathy towards Dr. Garrus. There is evidence to the effect that she believed him to be a black magician, and that he could change his form from that of a man to a woman, and perhaps other forms. She also appears to have conceived the notion that Dr. Garrus was able to exercise some influence which prevented her from recovering from her disease, and that he was doing so. In 1902 the testatrix, with her daughter, returned to Chicago, and shortly afterwards Dr. Garrus came also. He and his wife did not reside in the house with Mrs. Taylor, but lived in a building near the one she resided in. The will was executed in June, 1904. By it the testatrix's property was given to two trustees, and they were directed to pay to Mrs. Garrus $150 per month so long as she lived in this country. In the event of her leaving the country, these payments should cease during her absence. The trustees were authorized, also, if Mrs. Garrus became sick and in need while residing in this country, to pay her such additional sum for her support and the expenses of her sickness as the trustees should deem sufficient for her needs. The trustees were directed to pay the father and mother of the testatrix $25 per month so long as they or either of them lived, and they were given the right to occupy during their lives, free from rent, the house owned by the testatrix in Orlando, Fla. The will further provided that, in the event of the death of the testatrix's daughter without issue surviving her, the trustees should convey all the property that remained to six nieces of testatrix's deceased husband and one of her own, and, in the event of the daughter leaving issue surviving her, then the property was to go to said seven nieces and the children of testatrix's daughter, share and share alike. This is the substance of the most material provisions of the will. The bill charged that Mrs. Taylor was of unsound mind at the time she executed the will, and that she was unduly influenced by three of her husband's nieces, Mrs. Jack, Mrs. Patterson, and Mrs. Davis, who were beneficiaries under the will, to make said will; that they represented to her, at various times, that the spirit of her deceased husband had appeared to them and requested them to urge testatrix to execute some paper; and that his spirit was displeased because she had not done so. As is not unusual in such cases, the evidence was conflicting. The jury found that the testatrix was not of unsound mind and memory, and was not unduly influenced to make the will, and the court entered a decree in accordance with the verdict of the jury, from which decree this appeal is prosecuted.

As the decree must be reversed for errors committed on the trial, we will avoid any comment upon the merits of the case; but it will be necessary for us to refer to some things appellants' evidence, standing alone, tended to prove. Some of this evidence tended to show that the relations existing between Mrs. Taylor and her husband's nieces, especially the three above named, were not friendly, and that she had talked to others about it, and had said they were displeased because her husband gave her all of his property and did not give them any of it; that they were also much displeased when her daughter was born, and she had feared they might kidnap her. There was evidence that on account of these things Mrs. Taylor for a long time entertained a strong antipathy toward these nieces, and that this feeling existed until she became a believer in theosophy. It was testified to that while this feeling on the part of Mrs. Taylor existed she desired and endeavored to conceal her whereabouts from said nieces. Afterwards they became reconciled, and the nieces were frequent visitors at her house. Appellants had at the trial a letter, date Chicago, April 10th, addressed ‘Dear Elizabeth,’ and signed ‘Adah Jack.’ The envelope was addressed: ‘Mrs. Elizabeth Taylor, Theosophical Rooms, Atheneum Bldg., City. Important. Please forward.’ On the hearing they called Mrs. Jack as a witness, and inquired of her as to the handwriting of the letter, and signature to it, and the indorsement on the envelope. She testified they were all in her handwriting, and that the letter was inclosed in the envelope and sent through the mails. Appellants also produced two other letters, bearing no date, addressed to ‘Dear Elizabeth,’ and signed, ‘Lovingly, Mame.’ Mrs. Patterson was called as a witness by appellants, and in answer to questions propounded testified that the letters were in her handwriting; that the signatures were her genuine signatures. On cross-examination counsel for appellees attempted to interrogate the witness about matters other than the letters; but the court sustained the objection to such cross-examination, whereupon counsel stated they would reserve the right to recall the witness if the letters were introduced in evidence. These letters were afterwards admitted in evidence on the part of appellants, and at the conclusion of their evidence the appellees called Mrs. Jack and Mrs. Patterson to the stand, and over the objections of the appellants they were permitted to testify fully as to all the issues in the case. The ruling of the court in permitting these witnesses to testify in their own behalf is assigned as error. The witnesses were beneficiaries under the will and defendants to the suit, and under the second section of our statute on evidence (Hurd's Rev. St. 1905, c. 51) were incompetent to testify as witnesses unless called by the opposite party. Appellees' position is that, while they were by the statute rendered incompetent upon their own motion to testify in their own behalf, when they were called by the opposite party to testify as to any matter whatever the disqualification was thereby removed, and they became competent witnesses for the purposes of testifying upon any issue involved in the case, and their testimony could not be confined to the subject-matter about which they had been examined by the opposite party. This appears to have been the rule at common law, and appellees cite decisions of the courts of several states which sustain their contention. In our opinion, however, this question must be determined from a construction of our statute.

The first section of the act in regard to evidence and depositions removes the common-law disqualification on account of interest in the...