Graham v. Deuterman
| Decision Date | 16 February 1910 |
| Citation | 91 N.E. 61,244 Ill. 124 |
| Parties | GRAHAM et al. v. DEUTERMAN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, McLean County; Colostin D. Myers, Judge.
Bill by Alice Deuterman and others against Charles S. Graham and another, as executors of Wiliam A. Graham, deceased, to contest the will. There was a decree for complainants, and defendants bring error. Reversed.
Welty, Sterling & Whitmore and Blinn & Covey (S. Welty, guardian ad litem), for plaintiffs in error.
Livingston & Bach and F. L. Capps, for defendants in error.
Two decrees of the circuit court of McLean county, setting aside the will of William A. Graham, deceased, have been reversed by this court, the first on an appeal (Graham v. Deuterman, 206 Ill. 378, 69 N. E. 237) and the second on a writ of error (Graham v. Deuterman, 217 Ill. 235, 75 N. E. 480). After the last reversal the cause was reinstated in the circuit court, and the issues whether at the time the will was executed the testator was of sound mind and memory, and whether undue influence was exerted by the devisees, or any of them, to procure its execution, were submitted to another jury. The trial resulted in a verdict finding: (1) That the testator was not of sound mind and memory; (2) that there was no undue influence causing the execution of the will; and (3) that it was not the last will and testament of William A. Graham. The court overruled a motion of proponents of the will for a new trial and again entered a decree setting aside the will. A writ of error issued from this court has brought the record here for review.
On the first trial the court instructed the jury to find for the proponents of the will on the issue of undue influence, and the verdict was that the testator was not of sound mind and memory. On the appeal no error of law was found in the record, but the court decided that the verdict was manifestly against the clear weight of the evidence, that in any view of the evidence it could not fairly be said that the testator was not of sound mind and memory, and that the trial court should have set aside the verdict on that ground. On the review of the second trial by writ of error it was found that the court erred in overruling objections to testimony which had only the effect of blackening the memory of the testator and prejudicing the jury against him, but the decision as to the weight of the evidence was the same as before. The material testimony was substantially the same as on the first trial, and the conclusion was that the verdict was manifestly against the clear weight of the evidence and that the decree for that reason could not be sustained.
If it was true of the previous records that the verdicts were clearly and manifestly against the weight of the evidence, it is equally true of this record. On the appeal from the first decree much pains were taken to state the testimony of the various witnesses showing that the verdict was against the evidence, and when the case was here the second time it was shown that the evidence was substantially the same as before, and the testimony of the subscribing witnesses to the will was set out at length. On the last trial it was agreed that either side might read the testimony of absent or deceased witnesses as given on the previous trials, and nearly all of the same witnesses who testified before were examined and gave the same testimony. There was no material difference in their testimony from that previously given and stated in the former opinions; but each side produced a few additional witnesses whose testimony was of like character and weight as that introduced on the same side at former trials, with the exception of the testimony of a doctor produced by the contestants. He said that six or eight years before the death of the testator he examined him; that the testator gave him his symptoms, which were forgetfulness,...
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