In re Barry's Will

• Decision Date: 20 December 1905
• Citation: 219 Ill. 391,76 N.E. 577
• Parties: In re BARRY'S WILL.
• Court: Illinois Supreme Court

219 Ill. 391

76 N.E. 577

In re BARRY'S WILL.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Circuit Court, Brown County; A. Akers, Judge.

In the matter of the probate of the last will and testament of Anna L. Barry, deceased. From an order of the circuit court, rendered on appeal from the county court, denying the petition for probate, proponents appeal. Reversed.

Rehearing denied February 20, 1906.Jefferson Orr, Matthews & Anderson, J. F. Regan, and Leon Orr, for appellants.

R. E. Vandeventer and Vandeventer & Woods, for appellee.

PER CURIAM.

The county court of Brown county refused to probate the instrument in controversy as the last will and testament of Anna L. Barry, and an appeal was taken to the circuit court of that county from the order of the county court denying the petition for probate. The law is well settled that, upon the trial in the circuit court of an appeal from an order of the county court refusing to probate a will, the proponents may prove the execution of the will and the sanity of the testator by any evidence competent to establish a will in chancery, and that while they are required to produce the subscribing witnesses, if alive and sane and within the jurisdiction of the court, they are not limited to or necessarily bound by the testimony of the subscribing witnesses. Webster v. Yorty, 194 Ill. 408, 62 N. E. 907;Illinois Masonic Orphans' Home v. Gracy, 190 Ill. 95, 60 N. E. 194;Thompson v. Owen, 174 Ill. 229, 51 N. E. 1046,45 L. R. A. 682;Crowley v. Crowley, 80 Ill. 469.

The only question relating to the formal execution of the will in controversy between the parties is whether or not the subscribing witnesses saw the testatrix sign the will at the time of its execution, or, if they did not, whether or not she acknowledged the same to them to be her act and deed at the time when they signed as attesting witnesses. At the time when the will was executed there were present in the library of the home of the testatrix, the two subscribing witnesses, De Witt and Test, the testatrix herself, and William Mumford, the husband of the only daughter of the testatrix and the father of her grandson, Barry Mumford, who is her principal devisee. In certain contingencies William Mumford would take part of the property under the will, and be was not a competent witness, and did not testify as to what occurred when the will was executed. The evidence shows he took no part in what was said and done in the library while the subscribing witnesses were present. The evidence shows that the will was typewritten, but that certain words therein were written with a pen in the handwriting of the testatrix. In the clause of the will providing that, if Barry Mumford should die during the lifetime of the testatrix, the devises made for his benefit should go to his parents ‘in the following proportions, that is to say,’ the testatrix wrote with a pen the words ‘and Nellie Price’ after the word ‘parents,’ and the words ‘one-third to each’ after the words ‘that is to say.’ There was a full attestation clause at the end of the will after the signature of the testatrix; such attestation clause being dated October 6, 1903, and reciting fully those facts necessary to constitute the valid execution of a will, and showing that the will was signed by the testatrix in the presence of the subscribing witnesses and acknowledged by her to them to be her last will and testament. Below the attestation clause is the word ‘witnesses' on the left side of the page, and the word ‘residence’ on the right side of the page, and underneath appear the names of the subscribing witnesses, M. L. De Witt and Ellsworth E. Test; opposite the name of the latter being his residence, ‘Mt. Sterling, Brown Co., Ill.’

M. L. De Witt, one of the subscribing witnesses, testified that in the early part of October, 1903, he called at the home of the testatrix to deliver some milk and butter, and that Cora Scherrer, a domestic in the home of the testatrix, called him into the house, and that he went into the library where the testatrix was, the other subscribing witness, Ellsworth Test, coming in soon afterward; that the testatrix was sitting at the desk writing on this paper (meaning the will), and after Test had come in said that she wanted ‘us fellows' to sign some papers for her; that he, the witness, was sitting some four or five feet from the desk, and that she asked him to sign that, whereupon Test said something about his father telling him to be careful about signing papers, and she said it was some of her own affairs; that she was writing on the paper she asked the witness to sign, and that he signed that paper, at her request, below the word ‘witness'; that he saw the word ‘witness' when he signed his name, and saw the name of the testatrix, Anna L. Barry, when he signed his name; and that the testatrix was of sound mind at the time when all this was done. This witness, on being asked to state how the paper was folded when he signed the same as a witness, folded the paper so as to cover the attestation clause and the signature of testatrix, leaving the word ‘witness' visible, and thus exhibited the paper to the court. The witness De Witt was living on the farm of testatrix as a tenant at this time, and occasionally called at the home of the testatrix on business connected with the farm. Test, the other subscribing witness, was a young man rooming at the home of the testatrix and choring about the house and barn a great part of the time. This witness stated that he felt an interest in the proceeding that the will should not be probated, that he had no pecuniary interest in the matter, but that he thought the estate should be equally divided, affirming, however, that this feeling would not affect his testimony. He admits that soon after the will was offered for probate he left the home of the testatrix, feeling that it was not his place to remain there any longer, but declined to say that he and Mrs. Mumford, the daughter of the testatrix, had no unkind words at parting. The subscribing witness, Test, swore on the trial that on the occasion in question Cora Scherrer called him, saying that Mrs. Barry wished him to witness some papers for her, and that he went into the library where she was, and found the witness De Witt sitting there, and William Mumford in the room, still farther away; that Mrs. Barry was at the desk, supposed to be writing, and that she got up from the desk and asked De Witt and himself to sign some papers for her, and that they did so; that she told him to put his address after his name, and that he complied with this request; that he saw the words ‘witness' and ‘residence’ on the paper when he signed his name; that he did not see the testatrix write a single letter when at the desk, but that she had a pen in her...