Hill v. Bahrns

• Decision Date: 16 October 1895
• Citation: 158 Ill. 314,41 N.E. 912
• Parties: HILL et al. v. BAHRNS et al.
• Court: Illinois Supreme Court

158 Ill. 314

41 N.E. 912

HILL et al.

v.BAHRNS et al.¹

Supreme Court of Illinois.

Oct. 16, 1895.

Error to circuit court, Effingham county; E. D. Youngblood, Judge.

Bill by Caroline Bahrns and others against Henry C. Hill and others to set aside the alleged will of George Hill, deceased. Complainants obtained a decree. Defendants bring error. Affirmed.

Horace Clark and Wm. B. Wright, for plaintiffs in error.

S. F. Gilmore, E. N. Rinehart, and R. C. Harrah, for defendants in error.

CARTER, J.

Defendants in error Caroline Bahrns and others filed their bill in equity in the circuit court of Effingham county to set aside the will of George Hill, deceased, on the grounds that the testator was of unsound mind, and that the execution of the will was obtained by undue influence. Upon two different trials the contestants obtained verdicts in their favor. The court set the first verdict aside, but allowed the verdict rendered on the last trial, that the will in question was not the last will and testament of George Hill, deceased, to stand, and entered a decree accordingly.

Plaintiffs in error have assigned for error and insist here that the verdict rendered is contrary to the evidence, and that the trial court erred in not granting a new trial on that ground. A large number of witnesses were examined on each side, and, as not unusual in such cases, there was an irreconciable conflict in their testimony. We have carefully read and considered the evidence, and have arrived at the conclusion that the trial court did not err in refusing to grant a new trial on this ground. The will in question was made on the 2d day of June, 1892, and the maker of it died on December 3d following, at the age of about 79 years. His wife had died about one year before, and after her death he lived with one of his married daughters until his death. Shortly after his wife's death, he made a will substantially the same as the last one, but, some question having been raised as to whether he was under the influence of intoxicating liquor or not when he executed it, he then made the will in controversy. These two wills were given in evidence. There was considerable evidence tending to show that his mind and memory had become so far impaired at the time of the execution of his last will as to render him incapable of making a valid will, and, on the other hand, many witnesses gave testimony tending to show his mental competency. It was the province of the jury to weigh the evidence, and, while we cannot say from the record that the verdict is supported by a clear preponderance of the evidence, neither does it appear to be manifestly against the weight of the evidence. The question was one of fact for the jury, and it is the well-established rule that this court will not set aside the verdict on the ground that the jury have reached a wrong conclusion as to the facts, unless the record shows the verdict is against the clear preponderance of the evidence. Sinnett v. Bowman, 151 Ill. 146, 37 N. E. 885;McComman v. McComman, 151 Ill. 428, 38 N. E. 145;Society v. Price, 115 Ill. 623, 5 N. E. 126;Moyer v. Swygert, 125 Ill. 262, 17 N. E. 450;Calvert v. Carpenter, 96 Ill. 63;Bevelot v. Lestrade, 153 Ill. 625, 38 N. E. 1056;Hoobler v. Hoobler, 128 Ill. 645, 21 N. E. 571;Meeker v. Meeker, 75 Ill. 260;Long v. Long, 107 Ill. 210;Greene v. Greene, 145 Ill. 264, 33 N. E. 941.

It is next insisted that the trial court erred in its rulings in the admission and exclusion of evidence. One of the principal witnesses for contestants who testified to the mental incompetency of said George Hill was his brother, Louis Hill. He testified: That he was a year or two younger than his brother. That his brother moved from his farm into the city of Effingham six or seven years before his death, and established his home about a square away from where witness lived. That he (witness) then saw his brother from one to three times each week until his brother's death. That his brother's wife died in December, 1891, and two or three months afterwards his brother went to live with his son-in-law, Frank Smith, in the country. That the last time his brother visited him at his house was in September before the death of his wife, and that ‘he wasn't exactly what he might be. He was sitting on the lounge there, and he said: ‘I have made my will, Louis.’ I said to him that was all right.' Counsel for complainants then asked the witness this question: ‘Mr. Hill, you may state what he said to you, and how he acted.’ Counsel for defendants below objected on the ground that it was improper to show by the testator's statements that he had made or intended to make a will different from the one in controversy; that it might be proper if offered to prove weakness of mind, but was improper for any other purpose. Counsel for complainants then stated that it was offered for the purpose of showing the condition of the testator's mind, and the alleged influence by which he was induced to change it. It appeared that previous to the making of the two wills given in evidence he had made another will, and it turned out that the conversation was concerning this prior will. The court held the question was proper as bearing on the question of his capacity to make the will in controversy, and on the question of undue influence. The witness answered as follows: ‘He said he had made his will, and left them all alike. I said to him that was right; that they had all worked hard for it. That was all that was said about the will. I did not ask him how he made it.’ This answer was clearly improper, and prejudicial to the proponents of the will. It did not tend to prove either mental incapacity or undue influence. Its effect was to impress upon the minds of the jury that at that time the testator had declared his intention of treating all his children alike, and had so made his will; and that his brother, the witness, was of the opinion that that was the right thing to do; that all the children had worked hard for the property. It is obvious that the jury would not regard such evidence as tending to establish mental unsoundness, but only as proof of the double fact that both brothers thought it was right to treat all the children alike, and that the testator had so made his will. But the court could not know in advance what answer the witness...