Graham v. Deuterman

• Decision Date: 16 December 1903
• Citation: Graham v. Deuterman, 206 Ill. 378, 69 N. E. 237 (Ill. 1903)
• Parties: GRAHAM et al. v. DEUTERMAN et al.
• Court: Illinois Supreme Court

206 Ill. 378

69 N.E. 237

GRAHAM et al.

v.DEUTERMAN et al.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Bill by Alice Deuterman and other against Charles S. Graham and another, as executors of William A. Graham, deceased, to contest the will.From a decree for complainants, the executors appeal.Reversed.

Blinn & Harris and Welty & Sterling, for appellants.

Livingston & Bach and F. L. Capps, for appellees.

WILKIN, J.

This is a bill in chancery brought by Alice Deuterman and her two sisters and four brothers, appellees, to contest the will of their father, William A. Graham, deceased.On the 6th day of July, 1901, William A. Graham executed his last will and testament, by which he gave all of his personal property to his widow, Mary A. Graham, and also all of his real property for life; charging her with the duty of supporting and educating his minor son, Arthur E. Graham.The remainder in the real estate, after the death of the widow, was devised to his sons Charles S. Graham and Arthur E. Graham, subject to the payment of $25 to each of his four remaining sons and three daughters.On the 14th day of August, 1901, said William A. Graham died, owning 160 acres of land and a small amount of personal property, being indebted in the sum of about $3,000.The will was admitted to probate in the county court of McLean county, and Charles S. Graham and Mary A. Graham were duly appointed executors thereof.On November 3, 1902, the seven appellees, who had been bequeathed, by the will, $25 each, filed in the circuit court of McLean countythis bill to contest said will on the ground that the testator, William A. Graham, was not, at the time of the execution of the same, of sound mind and memory, and that he was induced to make it by the undue influence of Charles S. Graham and Mary A. Graham.Upon the trial before a jury, the testator, William A. Graham, was found not to have been of sound mind and memory at the time of the execution of his said will; the court instructing the jury to find for appellants on the issue of undue influence.A motion was made by the proponents for a new trial, which was overruled by the court, and a decree entered setting aside the will.To reverse that decree, this appeal is prosecuted.

Objection is made to a single instruction given by the trial court on behalf of the contestants, to the effect that an unequal division of property among children by a testator could be taken into consideration by the jury in determining the mental capacity of the testator.We see no objection to this instruction.It is in conformity with our decision in the case of Pooler v. Christman, 145 Ill. 413, 34 N. E. 57.

Objection is also made to the refusal of the trial court to allow a reasonable solicitor's fee paid by the executors in defending the will.There is no reversible error in that refusal, the matter being one committed to the sound discretion of the trial court.

The most serious and substantial error assigned by the appellants is that the verdict of the jury is against the preponderance of the evidence, and should therefore have been set aside by the trial court.

It appears from the evidence that the testator was about 72 years of age at the time of the execution of his will.He had been afflicted with defective eyesight from the time he was a small boy, to such an extent that he could see only a part of the letters of a word at the same time, on account of which affliction he had not learned to read or write.He was therefore compelled to receive assistance from members of his family in the transaction of his business.On the 12th day of February 1900, he went to a justice of the peace in McLean county and procured him to draw a will, which he duly executed in conformity with the provisions of the statute.After that instrument was executed, he placed it in the custody of his bankers, where it remained until shortly prior to his death.For some reason, he became doubtful whether it had been legally executed, and sent an attorney to get it from the bank and examine it.Upon such examination his attorney decided to rewrite it, and on July 6, 1901, did so, and it was reexecuted by the testator; being substantially, if not literally, a copy of the one previously executed.At the time of its execution the testator was asked why he gave so little to some of his children and so much to the others, to which inquiry he replied, in substance, that those to whom but little was given had received their portion; that he had given them money, and had paid accounts and notes for them, but that his son Charlie had never received a dollar.

The evidence as to the mental capacity of the testator at the time of the execution of the will is somewhat conflicting, but, when fairly and impartially considered, we think, clearly preponderates in favor of his soundness of mind and memory, within the requirements of the law as to testamentary capacity.The following will be found a fair synopsis of the testimony of the several witnesses introduced by the respective parties:

R. F. Quisenberry testified on behalf of the proponents that he was bookkeeper for the People's Bank; that he had known William A. Graham for 12 years; that he signed the will as a witness; that Graham asked him to sign it; that the will was read to Graham, paragraph by paragraph; that, after the reading was completed, Mr. Harris (the attorney who wrote the will) asked the testator why it was he gave so little to some of his heirs, and all to the rest, and that he replied that they had received their portions in money, accounts, and notes paid, and that Charlie had never received a dollar; that, in his opinion, the testator was capable of transacting ordinary business; that he did not notice any difference in his mental condition at that time from what it had been during the time he had known him; that the testator could not read or write.

J. E. Arnold testified that he had known the testator all his life; that he had not seen much of him during the past 3 or 4 years, for the reason that he had had an ankle broken, and did not go to town very much; that he had transacted business with him; that he signed the will as a witness at the testator's request, and that, in his judgment, he was capable of transacting ordinary business; that he at that time named his children, and explained why he was not making their shares equal.

Dr. J. T. Webster testified that he had known the testator 9 or 10 years; that he saw him two days before his death; that, in his judgment, he was a man of as sound mind and memory as the ordinary run of men, but that at the time he last saw him he was in a dying condition.

Jason T. Place testified that he had known the testator 30 years; that he saw him in March before he died; that he transacted business with him-loaned him money; that he had poor eyesight, but that he was of sound mind and memory; that, though physically weak, he was capable of transacting ordinary business.

Rev. J. W. Derr testified that he had known the testator for about 4 weeks before his death; that he had talked to him with reference to his spiritual condition; that, so far as he had had conversations with him, he thought he was a man of sound mind.

Rev. Mary Moreland testified that she had met the testator a few days before his death; that she talked to him about a half hour with regard to religion, and, in her judgment, he was a man of sound mind.

Howard McFarland testified that he had known the testator all his life; that he had sold goods to him on several occasions; that he was at his house on July 26, 1901, and talked with him for 10 or 15 minutes at that time; that, in his judgment, he was of sound mind, and he did not discover any difference in his mind and memory or mental faculties from what they had been.

John L. Bevan testified that he was a practing lawyer; that he had been personally acquainted with the testator 20 or 25 years; that he had transacted business for him, but had not seen him much during the past 2 or 3 years; that he saw him last in June, 1901, and acknowledged...