Keithley v. Stafford

Decision Date15 November 1888
Citation18 N.E. 740,126 Ill. 507
PartiesKEITHLEY v. STAFFORD.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Peoria county; T. M. SHAW, Judge.

Action by William Stafford, conservator of Elizabeth James, a poor person, and daughter of Edmond Heaton, deceased, against Arthur Keithley, executor of said Heaton, Nancy Heaton, a legatee, and Nicholas Ulrich and Daniel Raum, guardians ad litem of minor grandchildren, to set aside the will. Decree for complainant, and defendant Keithley appeals.H. W. Wells, for appellant.

W. T. Whiting, for appellee.

BAILEY, J.

At the trial Nancy Heaton, one of the defendants, and a legatee under the will, was called as a witness by the complainant to prove the want of testamentary capacity of Edmond Heaton at the time he executed the will. Her testimony was objected to by Keithley, who was a co-defendant, and the proponent of the will, as incompetent, which objection was overruled by the court, and the admission of said testimony is now assigned for eeror. It is claimed that said witness was incompetent under the provisions of the second section of the statute in relation to evidence and depositions. Rev. St. c. 51. The first section of the statute removes the common-law disqualification of witnesses in civil actions, suits, and proceedings by reason of their interest in the event thereof, as a party or otherwise, except as thereinafter provided; and the second section provides that no party to such action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the preceding section, when any adverse party sues or defends as the executor, administrator, heir, legatee, or devisee of any deceased person, or as guardian or trustee of any such heir, legatee, or devisee, unless when called as a witness by such adverse party so suing or defending. We are unable to perceive how the admission of the testimony of this witness in any way contravened the provisions of this statute. She did not testify as a witness on her own motion, but was called by the complainant, who was not only in form the opposite party suing as the heir of a deceased person, but a party whose interests in the subject-matter of the litigation were in all respects adverse to those of the witness. Nor can she be said to have been permitted to testify in her own behalf. She was the widow of a deceased son of the testator, her husband having died while the testator was yet alive. She therefore had and could have no interest in the estate of the testator by descent. Her only interest was that derived from the will, viz., a legacy of $500 in cash, and an annuity for life of $180. Her right to this legacy depended upon the maintenance of the will. She was called as a witness by the party who was seeking to defeat the will, and the tendency of her testimony was to show a want of testamentary capacity in the testator at the time the will was executed. Her testimony, therefore, was clearly against her interest. Remann v. Buckmaster, 85 Ill. 403. But it is said that a former will of the testator, more favorable to the witness in its provisions, was in existence, and that, if the will in controversy should be set aside, such former will would be entitled to be probated as the will of the testator. It is argued, therefore, that the interest of the witness preponderated in favor of the former will, and that to that extent she was permitted to testify as a witness in her own behalf. Without pausing to determine how far her competency might have been affected, if at all, by the provisions of the former will, it is sufficient to say that no such objection to her competency was made at the trial. At the time she was called as a witness no suggestion was made as to the existence of a former will. After she and the other witnesses for the complainant had testified, and the complainant was about to close her case, she called Keithley to the witness stand, and asked him whether he had another will, executed by the testator, to which he replied that he had such will in his pocket, but declined to produce it. The court, being asked to order a production of said will, reserved its decision. After the evidence for the defendants was completed, and they had rested, the complainant renewed her motion, which being sustained, the will was produced. Its execution was then proved by two of the subscribing witnesses, and it was read in evidence by the complainant; but no motion was then interposed by the defendants to exclude the testimony of Nancy Heaton, nor was any suggestion made that her competency was in the least affected by the provisions of said will. It is clear that under these circumstances the defendants are now in no position to avail themselves of the provisions of the former will as tending to establish the incompetency of Nancy Heaton as a witness. $The complainant alleges that the will in controversy is not the will of Edmond Heaton, deceased, and the validity of said will is attacked by the averments of the bill on three grounds, viz.: (1) That at the time of its execution the testator was not of disposing mind and memory, but that his mind was so weakened and impaired by the malignant fever and disease under which he was suffering as to render him wholly incapable of knowing what he was doing, or of making any just and proper distribution of his estate; (2) that Keithley made use of fraud, false representations, and undue influence to induce the testator to execute said will, and to insert therein provisions for his (Keithley's) benefit and advantage, without the knowledge of the testator; (3) that Keithley, after writing the will, neglected and refused to read it to the testator, and that the testator signed it without knowing its contents. No evidence was introduced tending to sustain the second of these allegations, and the verdict and decree must therefore rest entirely upon the evidence applicable to the two other issues raised by the bill. Upon the issue as to whether the testator, at the time of the execution of the will, knew its contents and provisions, there is very little, if any, conflict in the evidence. The question is not as to the preponderance of the evidence, but as to whether the undisputed evidence is sufficient to warrant the conclusion that the will was not read to the testator, and that he did not know its contents at the time he signed it. Nancy Heaton testifies that during all the time it was being drawn, and up to the time it was signed and taken away by Keithley, she was either in the room in which the testator was lying, or in the room adjoining, and was all the time in a position where she would have heard the reading of the will if it had been read, and that she did not hear it read. Thorpe, one of the witnesses to the will, testifies that he called to see the testator on the day the will was executed, and found Keithley in the room, writing at a desk; that, after talking with the testator a minute or two, he went out into the adjoining room, and sat there until called by Keithley to witness the will; that during all that time the door between the rooms was partly open, and that he was so situated as to be able to hear the voice of a person in conversation or reading in the room where the testator and Keithley were; that he did not hear any continued conversation or reading, and that, if there had been any, he would have heard it. There is also evidence that on one or more occasions on subsequent days the testator inquired of those about him whether Keithley had got his will as he wanted it, and proposed to have him sent for; thus evidencing an ignorance on his part as to the contents of the will. On the day of his death, Keithley being present, the testator again asked him if the will was all right. These facts, together with the evidence of the mental as well as physical condition of the testator at the time the will was executed, were before the jury, and it was for them to put upon them such construction as they would fairly and reasonably bear. There was no contradictory evidence. It is true, the law, in the absence of all evidence, will presume that a person who executes a will or other instrument does so with knowledge of its contents, but this is a presumption which will readily yield to evidence tending to show that such was not the fact. The question presented by the foregoing evidence was purely a question of fact for the jury, and, they having considered it, and reached the conclusion that the will was not read to the testator, we cannot say that their finding is unwarranted by the evidence. There certainly was evidence tending to support the verdict, and, in the absence of countervailing evidence, upon familiar principles of law the verdict must stand.

Upon the question of the testamentary capacity of Heaton at the time he executed said will the evidence...

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