Heseman v. Vogt

• Decision Date: 16 October 1899
• Citation: 55 N.E. 151,181 Ill. 400
• Parties: HESEMAN et al. v. VOGT et al. NIEMAN et al. v. SCHNITKER.
• Court: Illinois Supreme Court

181 Ill. 400

55 N.E. 151

HESEMAN et al.

v.VOGT et al.

NIEMAN et al.

v.SCHNITKER.

Supreme Court of Illinois.

Oct. 16, 1899.

Appeal from circuit court, Washington county.

Bill by Caroline Vogt and others against Caroline Heseman and others to contest the validity of a will. Dismissal was entered by all complainants except Willhelmina Schnitker. From a judgment annulling the will, defendants appeal. Reversed.James A. Watts, for appellants.

Chas. T. Moore, F. P. Tscharner, and F. M. Vernor, for appellees.

PHILLIPS, J.

The will of Henry Nieman was admitted to probate in the county court of Washington county on the 6th day of August, 1898, and on the 28th day of September, 1898, this bill was filed to contest the validity of the will, on the sole ground, as alleged in the bill, of want of testamentary capacity. The evidence shows that on May 24, 1898, the testator made his will, which was duly witnessed by Prof. Fassbender and Fred Hoffman, who testified that at the time of the execution he was of sound and disposing mind. The evidence shows that the town assessor called on him the same day, and the testator made his personal property schedule,-i. e. the schedule of his individual property and of property held by him as guardian,-giving a description and statement of the property from recollection. Some 12 witnesses who saw the testator before and after this will was signed, within a short time of that event, and who had known him for a number of years, testified to having conversations with him, and of observing his manner and condition; and their evidence tends to show that he was of sound and disposing mind. On the 29th day of May he took the sacrament, and the preacher who administered the sacrament testified that he would not take part in that religious ordinance with one not of sound mind; that he conversed with the testator for the purpose of learning of his condition of mind, and states that, in his opinion, he was of sound mind. Another witness testifies that 10 days before the execution of the will the testator stated that he intended to will the appellants here just what he did give to them. Six or seven witnesses called by the contestant, among them the attending physician, testify that about the time of the execution of the will they had conversations with, and observed the condition of, the testator, and that, in their opinion, he was not of sound mind. Others called by the contestant, who shortly prior and shortly after the execution of the will conversed with the testator, testify that at times he knew and at other times he did not know of what he was speaking. Other witnesses were called, both by proponents and contestant, who testified to certain acts and conversations with the testator both prior and subsequent to the execution of the will, but expressed no opinion as to the soundness or unsoundness of his mind. Without expressing any opinion as to the weight of evidence in this case, it is sufficient to say that the evidence is sharply conflicting. The testator, at the time of his death, on June 19, 1898, was about 79 years of age. He had made three or more wills,-one of date August 17, 1897, one of date April 23, 1898, and the one sought to be contested, May 24, 1898. The two former wills were offered in evidence, and were objected to by the contestant, and the objections were sustained, to which the proponents excepted. Numerous instructions were submitted to the jury on behalf of contestant and proponents, to which, respectively, exceptions were taken. The jury found that the instrument purporting to be the last will of Henry Nieman was not his last will and testament, and the court entered a decree accordingly. Error is assigned to the admission and exclusion of evidence, in giving and refusing instructions, in entering the decree and overruling the motion for a new trial, etc.

From what appears in this record, we are compelled to reverse this decree, and, inasmuch as the case must go before another jury, we refrain from expressing any opinion on the evidence, and as to which side has a preponderance. The declarations and statements of a testator, made, both or either, before or after the execution of his will, may be proved for the purpose of showing his mental condition at the time of the execution of the will. Craig v. Southard, 148 Ill. 37, 35 N. E. 361;Petefish v. Becker, 176 Ill. 448, 52 N. E. 71;Hill v. Bahrns, 158 Ill. 314, 41 N. E. 912;Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837. And, where the testator has made previous wills, his declarations and statements, made about the time of the execution of those former wills, upon the subject of or manner in which he had therein disposed of his property, have been held to be competent evidence. Taylor v. Pegram, supra. Where a previous will has been made at a time when the soundness of mind of the testator is unquestioned, and the disposition of property as made by such previous will is approximately the same as made by a will sought to be contested on the ground of unsoundness of mind, such previous will so approximately disposing of property when such soundness of mind is unquestioned is the strongest character of evidence to show a condition of soundness of mind at the time the contested will was made. The wills sought to be offered in evidence, objections to which were sustained by the court, approximately disposed of the property of the testator in the same way as the contested will, and the declarations of the testator made prior to the execution of the contested will show a purposed change of the will for the correction of minor errors...