Healea v. Keenan

• Decision Date: 21 April 1910
• Citation: 244 Ill. 484,91 N.E. 646
• Parties: HEALEA v. KEENAN.
• Court: Illinois Supreme Court

244 Ill. 484

91 N.E. 646

HEALEA

v.KEENAN.

Supreme Court of Illinois.

April 21, 1910.

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

Suit by William Healea against Arthur J. Keenan, executor of Edward Healea, deceased, to contest the probate of the will of the deceased. From a decree setting aside the probate, defendant appeals. Affirmed.Wesley M. Owen and Barry & Morrissey, for appellant.

Chas. M. Peirce, William K. Bracken, and Miles K. Yong, for appellee.

PER CURIAM.

Edward Healea died April 12, 1907, having on September 22, 1906, executed a writing purporting to be his will, which was admitted to probate in the county court of McLean county. William Healea, his son, filed a bill to have this probate and the will set aside on the ground of the mental incapacity of his father, his intoxicationat the time it was executed, and the undue influence of the appellant, Arthur J. Keenan, who was nominated executor of the will. There have been three trials of the case, two of which resulted in a disagreement of the jury. On the third trial the court instructed the jury that there was no evidence of undue influence. The jury returned a verdict finding that the instrument in question was not the will of Edward Healea, and finding, in answer to special interrogatories, that at the time of its execution Edward Healea did not have sufficient mind and memory to know and understand that he was making a will and the disposition he was making of his property, and did not have mind and memory to understand and transact the ordinary business affairs of life. After overruling a motion for a new trial, the court entered a decree in accordance with the prayer of the bill, and the executor appealed.

When the writing in controversy was executed, Edward Healea was in his seventyeighth year. He had been a widower for about 20 years. He had three sons, who were his only heirs-George, 59 years old, John, 57, and William, 47. George had five children, John eight, and William none. The will, after providing for the payment of his debts and funeral expenses and for the erection of a mounment costing not more than $250 at his grave, directed the payment by the executor, as soon as he had sufficient funds, of $1,000 to each of his sons and to Roy Thompson, $500 to his granddaughter, Amy Craig, and $300 to each of his other grandchildren. He then directed that his executor, for the period of 10 years after his death, should rent all of his real estate and loan the rent received and the residue of the personal estate, and that at the end of that period the personal estate, rents, and interest should be equally divided among his sons and his granddaughter, Amy Craig, if she was then living and a widow, if not, then among the sons, and in the event of the death of any before the expiration of the 10-year period then all was to go to the survivor or survivors. The real estate is devised, after the 10-year period, to his three sons equally, but, in case of the death of any before the expiration of that period, then to the survivor or survivors. A wish is expressed that the sons shall not resort to law in the division of the real estate but will agree among themselves on the division.

Edward Healea came to McLean county between 50 and 60 years ago and from that time until his death lived in the vicinity of Leroy. He had very little property at that time, but afterward became the owner of a farm of 160 acres, on which he thereafter lived until his death. He subsequently purchased another farm of 120 acres, and at the time of his death his estate was of the value of about $60,000 consisting of these two farms and of about $17,000 in personal property, mostly money loaned. No reason appears for doubting his mental capacity until two or three years before his death. In January, 1905, he had an attack of pneumonia, and in January, 1906, an attack of grip. The physician who attended him during these illnesses testified that he continued to treat him after the first attack, and that during all the time he was gradually failing, the effect of his debility and a heart trouble which he had. Many witnesses testified on either side as to his mental condition during the last two years of his life. Many of the opinions expressed on either side are entitled to little weight, because the facts testified to on which they are based seem to be insufficient as the foundation for an opinion of any special value. There is, however, testimony as to the circumstances under which the will was made; the conduct and transactions of the deceased; his loss of memory of business transactions and of his neighbors and acquaintances; his irrational fear of being compelled by poverty to go to the poorhouse; his family relations; his frequent crying upon slight provocation; and other circumstances from which opinions favorable or unfavorable to his soundness of mind might be formed. It would answer no good purpose to review the evidence in detail. It presented a question, which was proper to submit to the jury, as to whether the deceased was of sufficient mental capacity to make a will. The credibility of the witnesses and the weight of the testimony were questions for determination by the jury. In Piper v. Andricks, 209 Ill. 564, 71 N. E. 18, the court said: ‘A large number of witnesses were called who testified they were of the opinion the testator had testamentary capacity, while an equal or greater number testified in their opinion he had not. The jury heard these witnesses testify, and it was pre-eminently within their power to determine which were the more worthy of belief. The trial judge also saw and heard the witnesses and approved of the verdict of the jury. In that state of a record this court will not disturb the verdict unless it is manifestly against the weight of the evidence, which is not the case here. Bradley v. Palmer, 193 Ill. 15 .’ See, also, Calvert v. Carpenter, 96 Ill. 63;Petefish v. Becker, 176 Ill. 448, 52 N. E. 71;French v. French, 215 Ill. 470, 74 N. E. 403;Harp v. Parr, 168 Ill. 459, 48 N. E. 113;Moyer v. Swygart, 125 Ill. 262, 17 N. E. 450;Long v. Long, 107 Ill. 210.

Complaint is made of instructions given and refused. The first instruction given on behalf of appellee told the jury that sound mind or capacity to make a will meant sufficient mind and memory to deliberate and determine for one's self upon giving the property as it is disposed of by the alleged will, and also to intelligently know and understand, from the contents of the will, whether it disposed of the property as determined upon. The objection made to it is that it requires too high a standard of mental capacity, and that under it a man might be of perfectly sound mind and yet not capable of making a will if he could not pass intelligently upon the legal effect of the instrument. The cases of Trish v. Newell, 62 Ill. 196, 14 Am. Rep. 79, and Yoe v. McCord, 74 Ill. 33, are cited, in the former of which it is said that it is not necessary that a testator should comprehend the provisions of his will in their legal form, but it is sufficient if he understands the elements of which it is composed, the disposition of his property in its simple form; and, in the latter, that the question is: Had the testator, as compos mentis, the capacity to make a will-not had he the capacity to make the will produced? Referring to the latter case, it is said in Dillman v. McDanel, 222 Ill. 276, 78 N. E. 591,113 Am. St. Rep. 400, that this view had not been followed in the later authorities where the question of sanity is involved, and that the business in which a supposed testator is engaged at the time of making his will is that of disposing of his property by the instrument which is attacked, and it is manifest that he could not understand that business unless he had sufficient mental capacity to understand the effect of that particular instrument upon his property. Trish v. Newell, supra, states the doctrine that a man may not be competent to...