Goff v. Gerhart

• Decision Date: 24 April 1925
• Docket Number: No. 16273.,16273.
• Citation: 147 N.E. 419,316 Ill. 513
• Parties: GOFF et al. v. GERHART et al.
• Court: Illinois Supreme Court

316 Ill. 513

147 N.E. 419

GOFF et al.

v.GERHART et al.

No. 16273.

Supreme Court of Illinois.

April 24, 1925.

Error to Circuit Court, Lawrence County; Julius C. Kern, Judge.

Suit by Flossie Goff and others against Susan Gerhart and others, to set aside the will of Philip Moore, deceased. Decree for defendants, and plaintiffs bring error.

Affirmed.Gee & Gee and McGaughey, Tohill & McGaughey, all of Lawrenceville, for plaintiffs in error.

Philip W. Barnes, Shaw & Huffman, and Sumner & Lewis, all of Lawrenceville, and Kramer, Kramer & Campbell, of East St. Louis, for defendants in error.

STONE, J.

Plaintiffs in error filed their bill in the circuit court of Lawrence county to set aside the will of Philip Moore, deceased, upon the ground of want of testamentary capacity on his part and undue influence on the part of Ethel Gerhart, his niece, and Susan Gerhart, her mother, a sister of the testator. The will was executed on the 27th day of December, 1919, and after providing for the payment of debts and funeral expenses, and the erection of a monument at the grave of the testator at a cost of $500, it devised and bequeathed all of the testator's property, of every kind and character, to his sisters, Susan Gerhart and Elizabeth Burrell, and to his niece, Ethel Gerhart, share and share alike. It nominated J. E. Lemmons executor, and was witnessed by James Smith, Bert Mushrush, and Otto H. Barnes. The bill to contest the will was heard before the court and a jury. The latter returned a verdict that the will was the will of the testator, and a decree was entered on that verdict dismissing the bill. Plaintiffs in error bring the cause here, contending that the verdict of the jury was not sustained by the manifest weight of the evidence and that the court erred in instructing the jury and in the admission of evidence.

Concerning the last assignment of error, it is sufficient to say that plaintiffs in error present no argument thereon, and do not point out wherein the court erred in the admission of evidence, and this assignment of error will be held to have been waived.

On the question of testamentary capacity and undue influence, the proponents of the will offered the testimony of 61 witnesses and the contestants 12. It is unnecessary, and would serve no good purpose, to discuss this testimony in detail. The undisputed evidence in the record shows that the testator was a farmer, living in Lawrence county. He was born in that county in 1854, and died on April 20, 1922. He lived in the township in which he was born until the year 1904, when he sold the farm which he had for some years owned there, and purchased another near Bridgeport, in that county, on which he thereafter made his residence until June, 1920, when he moved to the home of his sister Susan Gerhart, in the township in which he was born, and lived with her until his death. He at one time had been married. No children were born of this marriage, and he and his wife were divorced many years before his death. He left surviving him as his heirs at law, Susan Gerhart, his sister, 72 years of age, Elizabeth Burrell, a sister, 75 years of age, and plaintiffs in error, who are the children of a deceased brother, John Moore, who died about 1908. The testator left an estate, consisting of approximately $29,000 in cash, notes, bonds and mortgages of about $36,000; and real estate and oil royalties amounting to about $22,000. In 1907, his housekeeper having died, the defendant in error Ethel Gerhart, then of the age of about 20 years, became his housekeeper. She was his niece. She continued as his housekeeper to the date of his death, a period of about 15 years. The record shows that she received no salary and had no money, except from the occasional sale of butter and eggs from the farm. The evidence shows also that she did the cooking and laundering, tended to the chickens, at times fed and cared for the livestock, and did the milking. For a number of years before the testator's death he was afflicted with neuralgia in his face, which was at times very painful. On August 26, 1919, he suffered a stroke of paralysis, caused by cerebral hemorrhage. He was unconscious during that day, and for a period of 23 days thereafter was not entirely rational. Thereafter, until the day of his death, he walked about but little, and spent the greater portion of his time in a wheel chair.

Of the 12 witnesses offered by the contestants, who testified that in their opinion the testator was not of sound mind and memory, one was a deputy assessor, who testified that the testatordid not remember all of his cash, notes, and bonds when he called upon him for his statement of property. It also included several witnesses who testified to delusions which the testator had after his stroke of paralysis, in August, 1919. Most of this testimony, however, related to a short time succeeding the stroke of paralysis, when it is conceded that his mind was not normal. Eight doctors were called to testify concerning his mental condition, some as to his condition...