Geiger v. Bardwell
Citation | 255 Ill. 320,99 N.E. 582 |
Parties | GEIGER et al. v. BARDWELL. |
Decision Date | 26 October 1912 |
Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lee County; Oscar E. Heard, Judge.
Suit by Thomas L. Geiger and others against A. C. Bardwell, executor of John L. Geiger, deceased, to contest the will of the deceased. From a decree setting aside the probate of the will, the executor appeals. Reversed and remanded.
Wingert & Wingert, of Dixon, for appellant.
John E. Erwin, Brooks & Brooks, and Dixon & Dixon, all of Dixon, for appellees.
Thomas L. Geiger filed a bill in the circuit court of Lee county to contest the will of his father, John L. Geiger, on the ground of mental incapacity. A trial of the issue was had, the court, on the motion of the executor, directed a verdict in favor of the will, and a decree was entered dismissing the bill. On the appeal of the complainant that decree was reversed. Geiger v. Geiger, 247 Ill. 629, 93 N. E. 314. The widow and children of the testator, except the complainant, were made defendants and answered, confessing the allegations of the bill. After the remandment of the cause, an order was entered on their motion permitting them to withdraw their names as proponents of the will, and join with the complainant as contestants. On the second trial a verdict was rendered finding that the decedent was of unsound mind at the time of the execution of the supposed will and a decree was entered setting aside the probate, from which the executor has appealed.
On the former appeal the cause was considered as upon a motion to direct a verdict, on which only the evidence in favor of the contestant, in its most favorable aspect to him, was or could be considered. No opinion was intimated as to how, upon a consideration of all the evidence, the issue should be determined. The case is now before us upon the whole evidence as upon a motion for a new trial, and it is our duty to determine whether or not the verdict is manifestly against the weight of the evidence.
[1] The testator, after providing for the payment of his debts, nominated A. C. Bardwell as executor, and disposed of all his property by the second, third, and fourth clauses of his will, as follows:
‘Fourth-I have made no provision for my wife because I anticipate that she will receive such share or interest in my estate as the law would give her in case I should die intestate; and I also have in view the probability of her dower and homestead interests in my real estate being set off to her in acres, and I trust that if she elects to take her said interests in that form, her portion will be set apart to her by discreet commissioners, who, while doing justice by her, will make the division in a manner least prejedicial to the interests of the children.’
This instrument was executed in August, 1906. The testator died in August, 1908. His heirs were the three children named in the will, of whom Mrs. Geer was about 33 years old at his death, Thomas 27, and Walter 21. He owned 325 acres of land in Nelson township, in Lee county, where he lived, 160 acres in Kansas, and some personal property. He had lived in Lee county more than 50 years before his death. When he first came there he worked at the carpenter's trade, and by economy and careful investment of his savings throughout his long life he accumulated the property he owned at his death. Besides this, his son Thomas had received from him 320 acres of land in Nebraska, Walter 160 acres in Kansas, and his daughter some lots in Dixon, on which he had built a house. He had suffered from eczema in his right leg, below the knee, for many years, but it is not claimed that this disease affected his mind in any way, or that it had any tendency to do so. The same may be said of an injury which he received in a runaway a few months before making his will. The claim of unsoundness of mind has no other basis than the gradual wearing out of the mental and physical powers by reason of age. During his lifetime it does not seem to have occurred to any one of his family or neighbors that the testator was not competent to manage his business, and there is no evidence that he did not do so until his death. In the winter of 1905 and 1906 he went to Hot Springs, Ark., where his son Thomas accompanied him. He was quite feeble, and at first was unable to take the baths, and was wheeled about in a chair. He improved, however, and later did take the baths and walked about by himself, and once or twice was lost. It was during the following August that he executed the will. During the same month, or late in July, the Chicago & Northwestern Railway Company began negotiations with him for a right of way through his farm, and finally filed a petition for its condemnation. The controversy was finally settled, and Geiger made a conveyance of the right of way to the company for $6,000. Afterward he went to Kansas with two real estate dealers, taking his son Walter with him, and there bought two quarter sections of land, having one of them conveyed to Walter.
Six witnesses expressed the opinion that the testator was of unsound mind-Lonergan, Walzer, Wetzel, Gregory, and two doctors. Lonergan was a tailor, who in 1897 had a shop over Rosenthal's store, in Dixon, but in 1906 was in Hot Springs. The testater bought his trousers at Rosenthal's, and Rosenthal brought him up to Lonergan's shop three or four times to be measured for alterations. Nine years after Lonergan met the testator in Hot Springs, and the latter failed to recognize him, and did not remember being in his shop with Rosenthal. Lonergan wore a mustache in 1897, but not in 1906, and his hair was much grayer at the latter date. The testator did not want to talk, was nervous and forgetful, would start to answer when asked questions, and say he forgot, and seemed a man all broken down to what he used to be. Lonergan thought him feeble and childish, and not of sound mind.
Walzer was in the real estate business in Sterling, Ill., had known the testator for 30 years, and before 1904 regarded him as a very conservative, close-figuring, and honest man, but not physically very strong. He came into Walzer's office on his return from the Kansas trip to wait for the interurban car, and told Walzer he had been out to Kansas, and had bought some land. He could not tell exactly...
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Geiger v. Geer
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