Hobart v. Hobart

• Decision Date: 14 January 1895
• Citation: 39 N.E. 581,154 Ill. 610
• Parties: HOBART v. HOBART et al.
• Court: Illinois Supreme Court

154 Ill. 610

39 N.E. 581

HOBART

v.HOBART et al.¹

Supreme Court of Illinois.

Jan. 14, 1895.

Appeal from appellate court, Third district.

On the petition of Lynda A. Hobart, widow, an instrument was admitted to probate as the will of Harrison E. Hobart, deceased. This order was affirmed by the appellate court (53 Ill. App. 133), and Francke B. Hobart, a son, appeals. Affirmed.

Ewing & Wight, for appellant.

Kerrick & Spencer, for appellees.

MAGRUDER, J.

Harrison E. Hobart, of McLean county, died testate on December 22, 1892. On January 9, 1893, his widow, Lynda A. Hobart, presented his will and codicil thereto for probate to the county court of that county, where it was admitted to probate. From the order admitting it to probate, the appellant here, Francke B. Hobart, one of the sons of the testator, took an appeal to the circuit court of said county. The circuit court, after evidence introduced and hearing had, affirmed the order of the county court, and directed that the will and codicil be admitted to probate. Upon appeal to the appellate court the latter court affirmed the order of the circuit court, and from the judgment of the appellate court the present appeal is prosecuted.

The original bill was dated October 17, 1885. By its terms the testator gave and bequeathed to his wife, Lynda, all his real estate, consisting of two tracts of land, one containing 40 acres and the other containing 60 acres, and all his personal property, ‘including horses, cattle, moneys, credits, bank accounts,’ and to his sons, Howard E. Hobart and Francke B. Hobart, each the sum of $100. The original will was signed ‘Harrison Earl Hobart. [Seal.]’ Its attesting clause and the subscriptions thereto are as follows: ‘The above and foregoing instrument was, at the date thereof, signed, sealed, published, and declared by the said Harrison Earl Hobart as and for his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses. Mrs. Maris B. Howard, Farmer City, Ill. Marshal F. Howard, Farmer City, Ill.’ The codicil to the will and the attesting clause and signatures thereto are as follows:

‘Codicil. The within will, made this 9th day of June, one thousand eight hundred and eighty-eight (1888), I hereby will or give or direct that the property willed to my wife, Lynda Adams Hobart, in the within instrument, after her decease, I give to my son, Howard Earl Hobart. Harrison Earl Hobart. [L. S.]

‘Written, signed, and sealed in the presence of: Mordecia Tamling, Normal, McLean Co., Ill. Betsey A. Tamling, Normal, McLean Co., Ill.’

1. Objection is made that the proof introduced was of the codicil only, and not of the will. It was shown that the original will and the codicil and attestations were all written upon the same paper. The codicil refers to the will, and changes it in part only. When the codicil is written on the same paper as the will, or clearly and unmistakeably refers to the will, so as to preclude all doubt of its identity, proof of the codicil establishes the will without further proof, except such portions thereof as are revoked or altered by the codicil. In such case the codicil operates as a republication of the original will, and gives to it the same force as if it had been executed at the date of the codicil, the two instruments being regarded as one, and as speaking from the date of the codicil. ‘Adding a codicil brings the will to it, and makes it a will from the time of executing the codicil.’ Duncan v. Duncan, 23 Ill. 364; 1 Redf. Wills, marg. p. 268; 3 Am. & Eng. Enc. Law, p. 301. It follows that, if the codicil in the case at bar was duly executed and attested, such portions of the original will as were not changed by it were thereby reaffirmed.

[154 Ill. 614]2. Objection is made that the record does not show the testimony of the two subscribing witnesses to the codicil. It is proven that Mordecia Tamling, one of the subscribing witnesses to the codicil, died in February, 1890, more than two years before the death of the testator. The sixth section of the act in regard to wills (2 Starr & C. Ann. St. p. 2469, par. 6) provides that ‘in all cases where any one or more of the witnesses to anny will * * * shall die or remove to parts unknown, so that his or her testimony can not be procured, it shall be lawful * * * to admit proof of the handwriting of any such deceased or absent witness, as aforesaid, and such other secondary evidence as is admissible in courts of justice to establish written contracts generally, in similar cases,’ etc. Here, Betsey A. Tamling, the other subscribing witness, swore that the signature of her husband, Mordecia Tamling, to the attestation of the codicil was in his handwriting. The handwriting was also proven by the testimony of two other witnesses. Proof of the handwriting of the deceased witness is prima facie sufficient, especially where the signatures of the witnesses are attached to an attesting clause that the will or codicil was written, signed, and sealed in their presence. Ela v. Edwards, 16 Gray, 91. The death of the witness merely changes the form of the proof. It permits secondary evidence to be introduced of the due attestation and execution of the will. The attestation is then to be shown, as it would be in case of deeds, by proof of the handwriting of the witness. As to him, it is to be presumed that he duly attested the will in the presence of the testator. As was said by the supreme court of Massachusetts in Nickerson v. Buck, 12 Cush. 332: ‘As regards this witness, if nothing appears in the other parts of the evidence to control the presumption resulting from proof of his handwriting, it may be taken that, as to his attestation, it was properly made to the signature by the testator.’ Robinson v. Brewster, 140 Ill. 649, 30 N. E. 683.Without deciding that, under section 6, above quoted, other secondary evidence besides proof of the handwriting of the deceased witness is necessary in all cases, it is sufficient to say that in this case there was such other secondary evidence. Betsey A. Tamling, the survivor of the subscribing witnesses, and two other witnesses, swore in the circuit court that the signature to the will was in the handwriting of the testator. Counsel for appellant insist that the circuit court erred in receiving the evidence of the other witnesses besides Mrs. Tamling to the testator's signature, upon the ground that, under the decisions of this court, where the appeal is to the circuit court from an order of the probate court admitting the will to probate, the evidence in the circuit court to prove the will must be confined to that of the subscribing witnesses. Andrews v. Black, 43 Ill. 256;Weld v. Sweeney, 85 Ill. 50. This undoubtedly is the rule where both the subscribing witnesses are alive, or not in ‘parts unknown.’ But, under the circumstances of this case, where one of the subscribing witnesses was deceased, we are inclined to think that proof, upon the hearing in the circuit court, of the testator's signature to the will by other testimony than that of the subscribing witness who survived, comes under what the statute denominates ‘such other secondary evidence as is admissible in courts of justice to establish written contracts generally in similar cases.’

3. It is contended that the proof introduced to establish the execution of the codicil ought to have shown that the testator signed it in the presence of the attesting witnesses, or that he acknowledged the signature thereto to be his act and deed, and that the proponents were bound to show affirmatively that the will was signed when it was attested. Section 2 of the act in regard to wills provides that ‘all wills * * * shall be reduced to 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, two of whom declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil in their presence, or acknowledged the same to be his or her act and 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, shall be sufficient proof of the execution of said will, &c., to admit the same to record.’ We think that the words, ‘the same,’ following the word ‘acknowledged,’ in section 2, refer back to the words ‘said will,’ so that the clause would mean, ‘or acknowledged the said will to be his or her act and deed.’ The question has sometimes...