Hutchinson v. Hutchinson

• Decision Date: 07 June 1911
• Citation: 95 N.E. 143,250 Ill. 170
• Parties: HUTCHINSON et al. v. HUTCHINSON et al.
• Court: Illinois Supreme Court

250 Ill. 170

95 N.E. 143

HUTCHINSON et al.

v.HUTCHINSON et al.

Supreme Court of Illinois.

April 19, 1911.

Rehearing Denied June 7, 1911.

Appeal from Circuit Court, Cook County; Charles M. Walker, Judge.

Action by Charles G. Hutchinson and others against Douglas W. Hutchinson and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Eddy, Haley & Wetten and John T. Murray (Charles H. Pegler, of counsel), for appellants.

Fred A. Bangs (Grover C. Niemeyer, of counsel), for appellees.

DUNN, J.

Charles G. Hutchinson died on February 26, 1907, and an instrument executed on May 24, 1905, and purporting to be his will, was admitted to probate on April 12, 1907. A proceeding begun by his heirs in the circuit court of Cook county to set aside this probate was prosecuted to a decree granting the relief sought, and the executor and principal devisees have appealed.

The grounds alleged for the contest were the mental incapacity of the testator and undue influence exerted upon him to procure the execution of the will. The latter ground was withdrawn by the court from the consideration of the jury. Cross-errors have been assigned upon the record by the appellee, and various questions have been argued by counsel for the respective parties, not all of which will require our determination.

[1]A preliminary question arises upon the action of the court in denying the appellants' motion to dismiss the suit for want of jurisdiction. This motion was based on the claim that the original bill did not aver that the alleged will had ever been admitted to probate. This claim is an error, because the bill did aver that the instrument was exhibited in the probate court for probate ‘and an order was therein entered granting probate of the same.’ The subsequent allegations that the evidence was not heard in open court or by the judge of the court are immaterial. It is the existence of the order admitting the instrument to probate which is material. It is that order which is sought to be set aside.

[2] Whether it was properly entered upon the showing made, or was based upon evidence which was competent or incompetent, sufficient or insufficient, or upon any evidence whatever, is not the subject of inquiry in this proceeding. On April 29, 1908, after a special demurrer had been sustained to the bill, and more than a year after the probate of the instrument, appellees amended it by striking out the paragraph referring to the probate. This was a manifest inadvertence, and on May 6th, at the same term, the appellees, by leave of the court, withdrew this amendment, leaving the bill as originally filed. Later the bill was amended by striking out the allegations of the bill to the effect that the evidence had not been taken in open court or by the judge of the court.

[3] It is insisted that the amendment of April 29th, striking out all reference to the probate of the bill, deprived the court of jurisdiction of the cause of action, and that, the time within which the court could acquire jurisdiction having elapsed, the amendment of May 6th could not restore such jurisdiction. Whatever force this proposition might have if the term had elapsed (and this we do not determine), it has none in this instance. The term of court is regarded as a single day, to which all the proceedings of the term have reference. The order allowing the amendment and that allowing its withdrawal, being made at the same term, are to be regarded as made at the same time and did not affect the jurisdiction of the court.

[4] The decedent left four children, the appellees, Charles G. Hutchinson, Jennie C. Schutte, Daisy Grace Hutchinson, and Violet Hutchinson, as his only heirs, and their mother, Jennie Curtis Hutchinson, his widow. His marriage was not ceremonial, and in 1884 he deserted his wife and children. In 1899 he was sued by his wife for separate maintenance, and he denied that he was ever married to her. The cause was strenuously contested and resulted in a decree in favor of the wife, which was affirmed by the Appellate Court and by this court. Hutchinson v. Hutchinson, 96 Ill. App. 52;Id., 196 Ill. 432, 63 N. E. 1023. That decree established the marriage and is conclusive here. 1 Greenleaf on Evidence, § 525; Burlen v. Shannon, 3 Gray (Mass.) 387. After the decree the decedent continued to deny the existence of the marriage and never recognized his wife as bearing that relation to him, except in so far as the existence of the decree made such recognition compulsory. He lived as an unmarried man with one or another of his brothers, who are the chief beneficiaries under his will. He left an estate of several hundred thousand dollars. By his will he gave legacies of $5,000 each to Mary E. Tiffany and Josie Tobin and of $2,000 each to his daughters Grace and Violet. All the rest of his estate after the payment of his debts was devised to his three brothers, William A. Hutchinson, Chester M. Hutchinson, and Douglas W. Hutchinson, the latter of whom was nominated as executor without bond. The devise to his two daughters and the only reference to his wife or children in the will are found in the second and third clauses, which are as follows:

‘Second. Whilst the courts of the state of Illinois have decreed that one Jennie C. Hutchinson, who was always known to me as Jennie C. Curtis, is my common-law wife, I know that in truth and in fact she is not and that no such common-law marriage took place as was testified to by her on the trial of the case of Jennie C. Hutchinson vs. Charles G. Hutchinson; and it is my express will that she shall have no share whatsoever in any of my estate other than that which she may obtain under and by virtue of the laws of the state of Illinois, and any of my property which may come to her after my death she will obtain solely because the laws of the state of Illinois give such property to her and not because I desire that she shall have the same.

‘Third. I give and bequeath to the two youngest daughters of the said Jennie C. Hutchinson, namely, Grace Hutchinson and Violet Hutchinson, the sum of two thousand dollars ($2,000) each.’

Appellees by the assignment of cross-errors have questioned the action of the court in withdrawing from the jury the issue of undue influence. This action was right. There is no evidence in the record which has any tendency to show that the execution of the instrument in question was procured by the undue influence of the appellants, or either of them, or that either of them had anything to do with or knowledge of its execution. At the time of its execution, May 24, 1905, James Maher, who had been Charles G. Hutchinson's attorney for a number of years, represented him in litigation which was then pending and had occasion to go to see him frequently at William A. Hutchinson's house, where testator was then living, about this litigation and his other business. At one of these times testator talked with Mr. Maher about writing his will and gave directions for that purpose. At his request Mr. Maher prepared a draft of the will, which was submitted to him, and afterward another draft, or more than one. The instructions in regard to the will came entirely from Charles G. Hutchinson. Nobody else made any suggestions or spoke to Mr. Maher about it or was present at any of his conferences with the testator. It was executed in the presence of Mr. Maher and two others, who were asked by testator to sign it as witnesses, and no other person was present, though Earl Dunning, who was an attendant upon the testator, was in the next room. There is no evidence that any suggestion was made to the testator by any of the appellants or any other person that he should make this will or any will. In 1899 and in 1900 the testator had made two wills, in each of which a substantially similar disposition of his estate was made to substantially the same persons, differing only in minor details.

[5] There is no indication that at the time of the execution of any of these wills the testator was under any sort of restraint or influence aside from his own wishes, or that he acted in any manner otherwise than as an entirely free agent.

Much testimony was introduced at the trial on the question of the testator's mental capacity. He was 60 years old when he died, and the testimony covered more than 40 years of his life. In 1865 or 1866 he came home from college in the East, and from that time for many years was employed in his father's bottling works in Chicago as a foreman and a bookkeeper. About 1867 he began to have illicit relations with Jennie Curtis, which continued until 1875, when they were united by a common-law marriage. The extent to which they openly lived together thereafter is uncertain, though three children were afterward born to them. They never lived together after 1884. He invented a stopper for bottles, which was patented in 1879. Soon after he organized a corporation in conjunction with his brother George and was actively engaged in the management of its business for many years. He was successful in business and accumulated a large amount of property. He had gonorrhea when he was about 20 years old and syphilis about 20 years before his death. He had a slight stroke of an apoplectic nature in 1895, which rendered him unconscious and partially paralyzed. He gradually recovered from this, though he did not fully recover the use of his hands and wrists, his limbs remained stiff, and his feet dragged. His eyes were crossed, and for a time he saw double; but these troubles were afterward cured. He suffered a second and much more severe stroke of the same character in 1899. He experienced some loss of feeling in his body, arms, and legs, loss of control of his legs, of his bladder, and of his bowels, was weak in his hips, knees, and ankles, and could not readily lift his legs and advance them. The muscles about his shoulders and...