Hill v. Kehr

• Decision Date: 19 June 1907
• Citation: 228 Ill. 204,81 N.E. 848
• Parties: HILL et al. v. KEHR et al.
• Court: Illinois Supreme Court

228 Ill. 204

81 N.E. 848

HILL et al.

v.KEHR et al.

Supreme Court of Illinois.

June 19, 1907.

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

Proceedings by Adam Kehr and others for the probate of the will of Catherine Kehr, deceased, and the codicil thereto, in which Katie Hill and others appeared as contestants. From an order of the circuit court admitting the will and codicil to probate, the contestants appeal. Reversed and remanded.

Livingston & Bach and George F. Jordan, for appellants.

S. P. Robinson, for appellees.

CARTWRIGHT, J.

The county court of McLean county admitted to probate the paper purporting to be the last will and testament of Catherine Kehr, deceased, and a codicil thereto. Appellants took an appeal to the circuit court, and that court also admitted the will and codicil to probate. From the order of the circuit court this appeal was taken.

The order of the circuit court admitting the will and codicil to probate was based on the testimony of two subscribing witnesses to the codicil; and, if their testimony was sufficient to establish the codicil, it would also establish the will. Fry v. Morrison, 159 Ill. 244, 42 N. E. 774. In determining that question, it must not be forgotten that the whole subject is under legislative control, and that the statute has prescribed the exact conditions upon which an instrument shall be admitted to probate as a last will, testament or codicil. Courts have no right to dispense with any condition so prescribed, or permit the substitution of something different. By the statute all wills are required to be in writing and signed by the testator or testatrix, or by some person in his or her presence and by his or her direction, and attested in the presence of the testator or testatrix by two or more credible witnesses, and the testator or testatrix must be of sound mind and memory at the time of the execution of the will. To authorize a county court to admit a will to probate, proof of these facts must be made by the subscribing witnesses, at least two of whom must declare, on oath or affirmation, that they were present and saw the testator or testatrix sign the will, testament, or codicil in their presence, or acknowledged the same to be his or her act or deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same. Dickie v. Carter, 42 Ill. 376;Crowley v. Crowley, 80 Ill. 469;Canatsey v. Canatsey, 130 Ill. 397, 22 N. E. 595. On appeal to the circuit court from an order of the county court admitting a will to probate, the requirements are exactly the same, and the proponent of the will is limited to the testimony of the subscribing witnesses. Andrews v. Black, 43 Ill. 256;Weld v. Sweeney, 85 Ill. 50;Greene v. Hitchcock, 222 Ill. 216, 78 N. E. 614. On appeal from an order of the county court denying probate, a different rule is prescribed by the satatute, and the proponent of the will may support the same by any evidence competent to establish a will in chancery. Thompson v. Owen, 174 Ill. 229, 51 N. E. 1046,45 L. R. A. 682. It is not necessary that the subscribing witnesses should make their declaration, on oath, in the words of the statute (Yoe v. McCord, 74 Ill. 33; Rice v. Hall, 120 Ill. 597, 12 N. E. 236); but it is necessary that their declaration should include all the necessary facts.

In this case it is conceded that the testimony of one of the witnesses to the codicil was sufficient to establish the facts specified by the statute, but the testimony of the other witness did not fulfill the statutory requirements. He had no definite recollection of anything...