Hockersmith v. Cox

• Decision Date: 27 November 1950
• Docket Number: No. 31535,31535
• Citation: 407 Ill. 321,95 N.E.2d 464
• Court: Illinois Supreme Court
• Parties: HOCKERSMITH v. COX.

Page 464

95 N.E.2d 464

407 Ill. 321

HOCKERSMITH v. COX.

No. 31535.

Supreme Court of Illinois.

Nov. 27, 1950.

Elmer A. Taylor, and Pallissard, Fleming & Oram, all of Watseka, for appellant.

Thomason & Carlson, of Onarga, for appellee.

THOMPSON, Justice.

Frank Hockersmith, as conservator of the estate of Floyd Skeels, incompetent, filed suit in the circuit court of Iroquois County, contesting the will of Augusta Skeels, deceased, making Noel C. Cox, individually and as executor of the last will and testament of Augusta Skeels, the defendant.

Augusta Skeels, at the age of eighty years, died March 1, 1949, leaving a purported last will, dated November 13, 1948. She left as her only heir-at-law, Floyd Skeels, who was an inmate of the Elgin State Hospital at Elgin, Illinois. She owned real estate valued at approximately $22,000, and personal estate of approximately $4000, the real estate consisting of a forty-acre tract and another tract of thirty-two acres, located in Iroquois County. By her will she gave the forty acres to her son and the defendant, Noel C. Cox, in equal shares, gave to her son the thirty-two acres, and gave to Cox all of her personal property. She further provided in the will that Cox should manage and control her son's share of the estate until such time as his conservator is discharged and the son restored to competency, when the net income, after deducting expenses and fees, should be paid to the son, and that if the son should not be restored to competency, any amount so accumulated and not needed for his support was to become the absolute property of Cox. Cox was also appointed executor without bond and no provision was made requiring any security from him as manager and trustee.

The complaint, as amended, and the answer as filed thereto, presented the question of undue influence and as to whether or not Augusta Skeels, at the time of executing the said instrument in writing, purporting to be her last will and testament, was of sound mind and memory, with the physical or mental capacity, power or ability to make a will.

The issues in the case were tried before a jury and a verdict was returned that the instrument in question was not the will of Augusta Skeels. At the conclusion of plaintiff's evidence, and again at the close of all the evidence, the defendant moved the court to withdraw from the jury the charge of undue influence. These motions were denied. Defendant filed a motion to tax the costs of the suit and a reasonable attorney fee against the estate and also filed a motion for a new trial. The court denied these motions and entered a decree upon the verdict setting aside the alleged will and taxing the costs of the suit against the defendant individually. The defendant has appealed to this court, assigning as errors the refusal of the trial court to withdraw from the jury the issue of undue influence, the insufficiency of the evidence to support the verdict, the admission of improper evidence, the giving of instructions on behalf of the plaintiff, the modifying of an instruction given on behalf of the defendant, refusing to allow defendant his reasonable attorney's fees and costs and taxing the costs against defendant.

As to the first contention pertaining to undue influence, the record does not disclose that the defendant participated to any extent in the making of the will, although Perry Price, a witness to the will, testified that the defendant asked him to go to the farm home of decedent and that after he arrived there he witnessed the will. Price also testified he could not positively state the defendant, Cox, was not actually present in the room when the will was executed. The fact, also, that defendant had, prior to November, 1948, written to decedent's son in regard to the employment of an attorney for the son, which, it is contended by the contestant, creates a reasonable inference that the defendant was ingratiating himself with the decedent for the purpose of obtaining a substantial portion of her property, is only a circumstance, which would not prove undue influence. A number of circumstances are pointed out and it is contended by the contestant that considered together they constitute strong circumstantial evidence of the procurement of the execution of said will through the exercise of undue influence by the defendant, and this, in connection with the fact that the decedent was old, feeble and in poor health, and according to medical testimony in the case, suffering from senile dementia, which plaintiff claims would cause her to be easily influenced, are facts and circumstances tending to show undue influence.

Undue influence which will avoid a will must be directly connected with the execution of the will itself, must operate when the will is made, must be directed toward the procuring of the will in favor of a particular person, and be such as to destroy the freedom of the testator's action, thereby making the instrument more the result of the will and intent of another than that of the testator himself. Mosher v. Thrush, 402 Ill. 353, 84 N.E.2d 355; DeMarco v. McGill, 402 Ill. 46, 83 N.E.2d 313; Biggerstaff v. Wicks, 348 Ill. 129, 180 N.E. 840; Prinz v. Schmidt, 334 Ill. 576, 166 N.E. 209; Gregory v. Richey, 307 Ill. 219, 138 N.E. 669. No inference of undue influence arises from decedent's age and physical and mental condition or from the fact that defendant communicated with her son in regard to an attorney for the son. Undue influence cannot be established merely by inference, though circumstances may tend to do so. Knudson v. Knudson, 382 Ill. 492, 46 N.E.2d 1011. Nor can undue influence be inferred from the provisions of the will in defendant's favor, inasmuch as a testator may distribute his estate as he pleases, and may, if he so desires, give it entirely to strangers. The trial court should have withdrawn from the jury the issue of undue influence.

In cases contesting the validity of a will where both testamentary incapacity and undue influence are charged, the refusal of the court to withdraw from the jury one of the charges, not supported by the evidence, will not cause a reversal if such error could not have affected the result of the suit. DeMarco v. McGill, 402 Ill. 46, 83 N.E.2d 313; Challiner v. Smith, 396 Ill. 106, 71 N.E.2d 324; Buerger v. Buerger, 317 Ill. 401, 148 N.E. 274. But, if the evidence in support of such issue, although not sufficient to warrant submitting the issue to the jury, is of a character to appeal to the prejudice, passion or sympathy of the jury, and the evidence to support the other issue, although such that the issue is properly submitted to the jury, is in itself of an inconclusive character, then it is error to submit the first-mentioned issue to the jury, and a decree in favor of the contestant entered upon the verdict of the jury must be reversed. DeMarco v. McGill, 402 Ill. 46, 83 N.E.2d 313; Challiner v. Smith, 396 Ill. 106, 71 N.E.2d 324. This for the reason that when the evidence is of the character above mentioned, the action of the court in submitting both issues could mislead the jury and might reasonably affect the verdict.

In the case of Holland v. People's Bank & Trust Co., 303 Ill. 381, 135 N.E. 717, the court denied a motion to withdraw the question of undue influence and it was claimed this was reversible error. There, as in this case, no specific finding was made by the jury on the question of undue influence, but the finding was that the instrument was not the last will and testament of the testator. We there held that where a will is contested on the ground of mental incapacity and undue influence, the denial of a motion to withdraw the issue of undue influence is not prejudicial error even if there is no evidence to sustain that charge, where the finding that the will was not the last will and testament of the testator is supported by testimony that he was not of sound mind.

We have heretofore pointed out the evidence offered in support of undue influence, and, while it was insufficient to support a verdict on that issue, we are of the opinion it is not of such a character to appeal to the prejudice, passion or sympathy of the jury to warrant holding it reversible error, especially if the evidence on the other question submitted of mental incapacity is not of itself of an inconclusive character.

Ten witnesses testified for the plaintiff on the question of mental incapacity. Doctor Buckner, who had been acquainted with decedent for twenty-five years and during most of that time was her family physician, testified that in June, 1948, she was suffering from a gradual progressive mind enfeeblement, the medical term for which is senile dementia; that she had motivated crying spells, periodic delusions of persecution, fits of anger and stated that he had an opinion with reasonable certainty that Mrs. Skeels, in June, 1948, at the time she was in the hospital, was of unsound mind. Dr. Christy, who treated decedent while she was in the Champaign hospital in June, 1948, testified she had advanced arteriosclerosis, with cerebral arteriosclerosis and mental confusion; that cerebral arteriosclerosis is hardening of the arteries of the brain. He stated that in his opinion decedent was of unsound mind.

Another physician, Dr. Parkhill, who attended her while in a nursing home in Pontiac, testified that while she was there she imagined there were iron bars on the window and she was confined in prison, and complained of people being in the room who were not there; that she was a patient of his from December 29, 1948, to March 1, 1949, the date of her death; that during this period he called on her two or three times a week on the average; that she complained of somebody after her. He further testified that, based upon his observation, the decedent was afflicted with this mental illness to the extent that she had these insane delusions and that they existed a year possibly two years. The...