Harris v. Etienne

• Decision Date: 17 February 1925
• Docket Number: No. 16497.,16497.
• Citation: 315 Ill. 540,146 N.E. 547
• Parties: HARRIS et al. v. ETIENNE et al.
• Court: Illinois Supreme Court

315 Ill. 540

146 N.E. 547

HARRIS et al.

v.ETIENNE et al.

No. 16497.

Supreme Court of Illinois.

Feb. 17, 1925.

Error to Circuit Court, St. Clair County; George A. Crow, Judge.

Action by Edna Harris and others against Wilford Etienne and others. Decree for defendants, and plaintifff bring error.

Reversed and remanded.D. E. Keefe, S. W. Baxter, and H. G. Miller, all of East St. Louis, for plaintiffs in error.

Hilmar C. Lindauer, of Belleville, and Maurice V. Joyce and H. Grady Vien, both of East St. Louis, for defendants in error.

FARMER, J.

This writ of error was sued out to review a decree of the circuit court of St. Clair county sustaining the validity of the will of Mary Etienne, deceased. There have been two trials of the case by jury. The first jury found against the validity of the will, and the court set aside the verdict and granted a new trial. The second jury found the writing was the last will and testament of Mary Etienne, and the court, after overruling motion for new trial, entered a decree sustaining the validity of the will and its probate.

The will, after directing the payment of debts, gave to a married daughter, Clementine Jerome, and to each of eight grandchildren, the children of two deceased children, $1 each. All the rest of her property she bequeathed and devised to her son, Wilford Etienne. The principal value of the estate consisted of land worth, according to the inventory, $7,000. The persons mentioned in the will as legatees and devisees, were the only heirs-at-law of the testatrix. Mrs. Jerome was a married woman and lived with her husband some distance from her mother, who lived on the farm. The son, Wilford, was a single man and lived with his mother on the land. The bill to contest the will was filed by grandchildren of the testatrix. The will bears date November 7, 1922. A few days prior to that date Wilford went to Frank Reinhardt, a near neighbor, and requested him and his wife to come to the house and witness a will. They did not then go and Wilford came again with the same request. They went to the testatrix's house and signed the document.

The bill alleges the testatrix did not have testamentary capacity, that the will was procured to be made through the undue influence of Wilford, and that it was never executed in the manner required by law. The principal questions argued by contestants are that proponents' proof did not show the will was executed by the destatrix in the manner required by statute for the execution of wills, and that the court erred in the admission of testimony and in giving and refusing instructions.

At the time the paper was executed the testatrix was 76 years old, was in bad health, and had been for 2 or more years. She died in February, 1923. In order to entitle a will to be admitted to probate the statute requires that it must be in writing and signed by the testator, or in his presence, by some one under his direction, and must be attested by two credible witnesses, who must testify they saw the testator sign the will or that he acknowledged it to be his act and deed, and that they believed him to be of sound mind and memory at the time.

Frank Reinhardt testified in the probate court that it was his genuine signature to the document. When he went to the house of the testatrix the evening of November 7 the will was produced and presented by Wilford. It was folded so that only a line and a half was visible. Wilford said it was a will. The testatrix said she guessed the will would be the last one she would make. She didn't seem to know what was going on. To the best of witness' knowledge and recollection the testatrix did not sign the will in his presence. No one but Wilford asked witness to sign the will. Witness did not know whether it had been signed by the testatrix before he signed it. After witness and his wife signed it they gave it to Wilford. Witness further testified it seemed to him that the testatrix was of sound mind at the time.

Mrs. Reinhardt testified she signed the paper. The testatrix did not ask her to sign it. Her mental condition seemed feeble. Witness saw her writing something at a table, but could not see what she was writing. She saw the pen in her hand and a bottle of ink on the table and saw her write. The testatrix said she had made a mistake,-that she made it upside down. Witness could not tell whether she was talking about a signature or about the figure seven. Nothing occurred to lead witness to believe her mind was not all right. She said she guessed that was her last will, or she hoped it was the last one she was going to make. The paper was so folded witness could not see what it was. Wilford produced the paper, and the witness did not know whether the testatrix's name was on it or not. She said something about having written something upside down but guessed it would do. The testatrix did not say it was her last will nor request witness to sign it. She regarded the testatrix as ‘short-minded’ for the last few years before her death. No one lived in the house with the testatrix and Wilford.

[1] The above testimony was heard by the probate court on the application to admit the will to probate. The witnesses did not sign the certificate of an oath, but testified orally, and their testimony was taken down in shorthand, transcribed and certified to by the judge of the probate court. Over the objections of contestants it was admitted in evidence on the trial of this contest of the will. Contestants concede it has been held by this court that testimony taken, as the testimony in this case was, in the probate court, may be offered in evidence upon a contest of the will, but say, since the last case so holding (Grace v. Grace, 270 Ill. 558, 110 N. E. 784), section 7 of the chapter on wills has been amended (Smith-Hurd Rev. St. 1923, c. 148), and that since the amendment such testimony is not competent. We do not think that position tenable. Prior to the amendment the statute provided that the certificate of the oath of the witnesses at the time of probate shall be admitted as evidence and have such weight as the jury think it may deserve. The amendment added to the words that the oath of the subscribing witnesses at the time of the first probate, ‘properly certified to,’ shall be admitted in evidence. The testimony of the witnesses was certified to by the judge of the probate court. It bears no file-mark, but the proof shows it was filed or deposited with the clerk at once after being transcribed. In our opinion the court did not err in admitting that testimony.

The statute requires two witnesses to swear they saw the testator sign the will in their presence or that he acknowledged the same to be his act and deed, and that he was of sound mind and memory at the time. Here the will contains an attesting clause signed by the witnesses, which states the testatrix declared to them the paper to be her last will and testament; that she signed the same in their presence, and, at her request and in her presence, they signed their names to it, and that they believed she was of sound mind and memory. It is indispensable that the statutory requirements must be complied with to make a valid will. The testimony of the witness Frank Reinhardt is that he signed the paper in the presence of the testatrix, but to the best of his memory she did not sign it in his presence. No one asked him to sign it but Wilford. The testatrix remarked that she guessed that would be her last will. That is the only remark he heard her make...