Johnson v. Johnson

• Decision Date: 19 October 1900
• Citation: 187 Ill. 86,58 N.E. 237
• Parties: JOHNSON et al. v. JOHNSON et al.
• Court: Illinois Supreme Court

187 Ill. 86

58 N.E. 237

JOHNSON et al.

v.JOHNSON et al.

Supreme Court of Illinois.

Oct. 19, 1900.

Error to circuit court, Dewitt county; W. G. Cochran, Judge.

Bill by John Johnson and others against Ocdeviah Johnson and others to set aside the probate of the will of Thomas Johnson, deceased. From a decree entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, plaintiff's bring error. Affirmed.Tipton & Tipton, for plaintiffs in error.

Herrick & Herrick, for defendants in error.

The original bill in this case was filed on July 20, 1899, and the amended bill was filed on January 8, 1900. The object of the bill, as originally filed and as thus amended, is to set aside the will of Thomas Johnson, deceased, upon the alleged grounds that the said testator was not of sound mind and memory when he made his will, and that he was under undue influence exercised over him by the defendants in error Ocdeviah Johnson, Jesse L. Johnson, and Phoebe H. Swigart. The bill also alleges that there were but two subscribing witnesses to the will, and that they, or either of them, did not believe at the time of the signing of the will that the testator was of sound mind and memory, and that by reason thereof said will was not properly or lawfully probated, and that it was not the last will of the deceased. The bill was answered by the defendants thereto, who are the defendants in error here. The issues of fact were submitted to the jury, who returned a verdict finding the will in question to be the last will and testament of Thomas Johnson, deceased. A motion for a new trial was made and overruled, and a decree was entered, dismissing the bill, and for costs, against the plaintiffs in error. The present writ of error is sued out for the purpose of reviewing the decree thus entered by the court below. The will bears date October 14, 1897. Thomas Johnson died on February 9, 1898. The will was filed for probate and admitted to probate on March 15, 1898; and Isaac F. Houseman, one of the defendants in error herein, was appointed executor. John Johnson, Silas Johnson, Emily Swigart, and Sarah Ann Zimmerman, who are plaintiffs in error here, and complainants in the bill below, are the children of Thomas Johnson, deceased, by his first wife. The defendants in error here, who are the defendants below, are Ocdeviah Johnson, the widow of the deceased, and his second wife, and Jesse L. Johnson and Phoebe H. Swigart, his children by his second wife. Defendant in error A. Davis is a legatee under the will. The will devises to the plaintiffs in error $25 each; to Sarah Ann Zimmerman, in addition to the $25, five large silver spoons; and to defendant in error Phoebe H. Swigart $500; and to Jesse L. Johnson $25 and the testator's gold watch; and to A. Davis his gold-headed cane; and the residue of his estate to defendant in error Ocdeviah Johnson, the widow. By the will, I. F. Houseman, defendant in error, is appointed executor. There are two subscribing witnesses to the will, to wit, Minnie Derring and Orie Wood. The attesting clause, under which the names of the subscribing witnesses are written, is as follows: ‘The above and foregoing instrument was at the day of the date thereof signed, sealed, published, and declared by the said Thomas Johnson as and for his last will and testament; and we, in his presence and in the presence of each other, have, at the request of the said Thomas Johnson, signed our names as witnesses thereto, believing the said Thomas Johnson, at the time of so subscribing our names as witnesses as aforesaid, of sound mind and memory.’

The three following issues were submitted to the jury: ‘First. Was the writing read in evidence, purporting to be the last will and testament of Thomas Johnson, deceased, the last will and testament of the said Thomas Johnson, or not? Second. Was the said Thomas Johnson, at the time of the execution and attestation of the said writing read in evidence, purporting to be the last will and testament of the said Thomas Johnson, of sound mind and memory? Third. Was there any undue influence exercisedover the said Thomas Johnson, that resulted in the making of said will?’ The jury returned the following answers to the said questions, to wit: ‘First. That the writing read in evidence, purporting to be the last will and testament of said Thomas Johnson, deceased, was the last will and testament of him, the said Thomas Johnson, deceased. Second. And that at the time of the execution and attestation of the same the said Thomas Johnson was of sound mind and memory. Third. And that said will was not the result of any undue influence exercised over him, the said Thomas Johnson.’ The verdict of the jury was as follows: ‘We, the jury, find the will in question to be the last will and testament of Thomas Johnson, deceased.’

The certificate of evidence or bill of exceptions contains none of the evidence which was introduced upon the trial of the cause; but it contains the instructions that were given for the plaintiffs in error, and those that were given for the defendants in error, and also the instructions asked by the plaintiffs in error which were refused, and the instructions asked by the plaintiffs in error which were modified, and then given as modified. The certificate of evidence or bill of exceptions certifies as follows: ‘The proponents of the will gave in evidence on their behalf testimony tending to prove the issues in their favor. Thereupon the complainants gave in evidence on their behalf testimony tending to prove the issues in their favor; that is to say, that the evidence of the case was conflicting. The complainants also gave in evidence evidence that tended to impeach the character of Annie Derring, one of the witnesses to the will, for truth and veracity. The above and foregoing was all the evidence in the case offered by either party.’ Subsequently an additional record was filed in this court, showing an amendment to the certificate of evidence; and it appears from this amendment ‘that the proponents in said cause offered in evidence the will in said cause, together with the certificate of oath of witnesses to said will at the time of the first probate thereof, and that the said will and said certificate were offered and introduced in evidence by the defendants on the trial of said cause.’ By the amended certificate of evidence ‘the court further finds that the proof in said cause shows that said will was executed in strict compliance with all the legal formalities, and in the manner required by the statutes of this state, and that the evidence offered and given in said cause only tended to impeach the reputation of the subscribing witness Minnie Derring, after the 14th day of October, 1897, and after the date on which said will was probated in the probate court of Dewitt county, Illinois.’

MAGRUDER, J. (after stating the facts).

1. The certificate of evidence in this case sets forth 28 instructions given for the defendants in error, the proponents of the will; also, 30 instructions given for the plaintiffs in error, the contestants of the will; also, 6 instructions asked by the plaintiffs in error, but refused, and then modified and given as modified,-both the instructions as originally drawn and the instructions as modified being set forth in the bill of exceptions. After thus setting forth the instructions given as originally drawn, and the instructions given as modified, the bill of exceptions contains the following: ‘To the ruling of the court in giving the proponents' instructions, and each of them; to the ruling of the court in refusing to give complainants' instructions that are modified, and the modifications of the same, to which modifications the complainants, by their counsel, then and there excepted.’The bill of exceptions then sets forth 21 instructions asked by the plaintiffs in error which were refused by the court below. After setting forth these instructions, the bill of exceptions contains the following: ‘Which the court refused to give, to which refusal to give said instructions, and to the refusal to give each and every one of them, the complainants then and there excepted.’ If we were disposed to apply a strict, technical rule of interpretation to the bill of exceptions or certificate of evidence in this record, we would be obliged to hold that the only alleged error of which the plaintiffs in error are entitled to complain is the refusal by the trial court to give the instructions asked by plaintiffs in error which were refused. There is really in the certificate of evidence no exception to the ruling of the court in giving the instructions of the proponents of the will, or to the ruling of the court in refusing to give the instructions for the contestants of the will which were modified. The complainants, by their counsel, excepted to the modifications made of the instructions which were modified, but did not except to the giving by the court of the modified instructions after they were so modified. It is not altogether clear that the bill of exceptions, in the respects this indicated, is not subject to the charge of ambiguity, uncertainty, and omission. We have held that a bill of exceptions is not to be considered as a writing of the judge, but as a pleading of the party alleging the exception. Like any other pleading, it is to be construed most strongly against the party preparing it, who must be responsible for all uncertainty and omission in his bill of exceptions. Garrity v. Hamburger Co., 136 Ill. 499, 27 N. E. 11. Inasmuch, however, as it was evidently the intention of counsel for the plaintiffs in error to except to the ruling of the court in giving the instructions which were given for the defendants in error, and in refusing to give the instructions of the plaintiffs in error which were modified, and in giving them as so modified, and inasmuch as the language used may, by a liberal...