Geiger v. Bardwell

Citation255 Ill. 320,99 N.E. 582
PartiesGEIGER et al. v. BARDWELL.
Decision Date26 October 1912
CourtSupreme 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.

DUNN, C. J.

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:

‘Second-I devise unto A. C. Bardwell, of the city of Dixon, in said Lee county, as trustee, all of my real estate in the town of Nelson aforesaid, in trust for the uses and purposes following, to wit: To lease the same on such terms as he may consider for the best interests of the beneficiaries, and keep the same so leased during the entire period of the trust herein established, and to pay over the net proceeds thereof as often as practicable, in the manner and on the conditions following: Unto my son Walter F. Geiger the net income of the southeast quarter of the northwest quarter, the east half of the southwest quarter and the northwest quarter of the southeast quarter of section 14; unto my son Thomas L. Geiger, and unto my daughter, Nellie Geer, each one-half of the net income of the remainder of my real estate situated in said town of Nelson. To continue so to lease said real estate during the lifetime of my said children, respectively, deducting from the gross income all proper charges and expenses relating to the respective tracts for maintaining the respective premises and keeping them in a good state of preservation, and paying the taxes and keeping buildings insured, and rebuilding in case of destruction, together with reasonable compensation for his services, and any and all other proper charges in carrying out the trust, and to distribute the balance or net income as aforesaid: Provided, no part or share of said income shall be liable, while in the hands of the trustee, to the creditors of either beneficiary, nor shall either have the power, in any manner whatever, directly or indirectly, to mortgage, pledge, sell, convey or in any way incumber or transfer his or her interests in said lands or in the proceeds or income thereof, but the share of each shall be paid directly by the trustee to the respective beneficiaries entitled thereto, and shall not be paid to any other person upon any written order or verbal order nor upon any pretended assignment or transfer thereof. On the death of my said son Walter such trust shall terminate as to the tracts from which he is to receive the net income as above, and the title thereto shall descend in remainder in accordance with the laws of descent then in force in this state. On the death of the first to die of the two remaining beneficiaries, said trust, as to an undivided one-half of the lands from which he or she is to derive net income, as aforesaid, shall terminate and the title to such undivided one-half shall descend in remainder in accordance with such laws of descent, and on the death of the last survivor the trust shall come to an end and the title to the remaining one-half shall descend in like manner.

‘Third-All the rest and residue of my estate, of every kind and nature, I give, devise and bequeath unto my said children in equal portions, share and share alike, except that out of the share of my said son Thomas L. Geiger shall be paid the sum of $1,000 to my said daughter, so that she will receive that amount more than he. This is given her out of his portion in order to equalize my gifts to them, taking into account what I have done for each in the past. In case his share of the residue disposed of in this clause proves insufficient to pay her that amount, it is my will that the deficiency be paid her by my trustee, as soon as possible, out of the income going to my said son in pursuance of the foregoing clause.

‘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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8 cases
  • Geiger v. Geer
    • United States
    • Illinois Supreme Court
    • November 20, 1946
    ...executor, this court reversed the decree as being manifestly against the weight of the evidence and remanded the cause. Geiger v. Bardwell, 255 Ill. 320, 99 N.E. 582. The estate has been fully administered, and the property described in the second section of Geiger's will turned over to a t......
  • Tidholm v. Tidholm
    • United States
    • Illinois Supreme Court
    • September 17, 1945
    ... ... Speirer v. Curtis, 312 Ill. 152, 143 N.E. 427;Geiger v. Bardwell, 255 Ill. 320, 99 N.E. 582. Testamentary capacity, as used in these cases, means capacity to know and understand the business of ... ...
  • Detroit Trust Co. v. Neubauer
    • United States
    • Michigan Supreme Court
    • June 29, 1949
    ...as to who his heirs at law will be upon his eventual death would be sheer speculation in which we decline to indulge.’ Geiger v. Bardwell, 255 Ill. 320, 99 N.E. 582, may be differentiated on the facts from the other decisions by the Illinois court on the ground that the interests of conting......
  • Pence v. Myers
    • United States
    • Indiana Supreme Court
    • May 7, 1913
    ... ... 273, 277, 88 N.E. 337; ... Young v. Miller (1896), 145 Ind. 652, 44 ... N.E. 757; Durham v. Smith (1889), 120 Ind ... 463, 22 N.E. 333; Geiger v. Bardwell ... (1912), 255 Ill. 320, 99 N.E. 582; Kingsbury v ... Whitaker (1880), 32 La. Ann. 1055, 36 Am. Rep. 278; ... Gesell v. Baugher ... ...
  • Request a trial to view additional results

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