Lewis v. Deamude
| Decision Date | 08 April 1941 |
| Docket Number | No. 25963.,25963. |
| Citation | 376 Ill. 219,33 N.E.2d 440 |
| Parties | LEWIS v. DEAMUDE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Violet Deamude Lewis against John P. Deamude and others, to set aside a will for lack of mental capacity and undue influence. From an adverse decree, Violet Deamude Lewis appeals.
Affirmed.Appeal from Circuit Court, Vermilion County; Ben F. Anderson, judge.
Charles M. Crayton and Steely, Steely, Graham & Dysert, all of Danville, for appellant.
Acton, Acton, Baldwin & Bookwalter, of Danville (W. M. Acton and H. H. Acton, both of Danville, of counsel), for appellees.
Appellant, Violet Deamude Lewis, brought suit in the circuit court of Vermilion county to set aside the will of Eva Deamude alleging lack of mental capacity and undue influence. At the close of the plaintiff's evidence, upon motion by appellees, the court directed a verdict finding the instrument and codicil thereto to be the last will and testament of the said Eva Deamude, and entered a decree accordingly. The will disposed of both personal property and real estate and a freehold is involved.
Eva Deamude executed the writing purporting to be her last will and testament on July 23, 1925, and the codicil thereto dated July 19, 1928, reaffirmed in all respects the will of July 23, 1925, with the exception that two gifts of $100 were made to nephews not mentioned in the original will. The testatrix died on December 9, 1938, leaving as her only heirs-at-law John P. Deamude, Richard Deamude, William Deamude, her brothers, Marie Farrar and the plaintiff, Violet Deamude Lewis, sisters. Both the will and codicil were duly probated. The will, after providing that all debts and funeral expenses should be paid, made a gift of $100 to the son of the plaintiff, a gift of $200 to a church, and the balance of the estate to John P. Deamude, a brother, with the proviso that if he predeceased the testatrix then the property should go to the children of her sister Marie Farrar. The change made by the codicil did not affect the general plan of disposition. The issues raised by the complaint are lack of testamentary capacity, and that John P. Deamude had obtained the execution of the will through undue influence and misrepresentation.
The errors claimed are that the contestants were unduly restricted in making proof of lack of testamentary capacity, in not allowing them to prove conduct and conversations with the testatrix at all times before and after July, 1925, and that there was sufficient evidence in the record to make it error for the court to direct a verdict in favor of the validity of the will.
All of the witnesses tendered by contestant were non-expert witnesses. In such case the rule is well settled that before a non-expert may give his opinion as to testamentary capacity, he must first testify to sufficient facts and circumstances to indicate his opinion is not a guess, suspicion or speculation. It must appear that such witnesses have an acquaintance with the person whose competency is in question, and until they have related facts and circumstances which afford reasonable ground for determining the soundness or unsoundness of mind of the person whose mental capacity is questioned, their opinions are of no value, and should be excluded. Ginsberg v. Ginsberg, 361 Ill. 499, 198 N.E. 432;Lloyd v. Rush, 273 Ill. 489, 113 N.E. 122;Britt v. Darnell, 315 Ill. 385, 146 N.E. 510;Brainard v. Brainard, 259 Ill. 613, 103 N.E. 45;Baddeley v. Watkins, 293 Ill. 394, 127 N.E. 725. Proof of the mental condition for a reasonable time before or after making such will can be received only when it will tend to show such condition at the time of the execution of the will. Todd v. Todd, 221 Ill. 410, 77 N.E. 680;Chandler v. Fisher, 290 Ill. 440, 125 N.E. 324;Eschmann v. Cawi, 357 Ill. 379, 192 N.E. 226. In proceedings to contest the validity of a will, testament, or codicil the contestant shall, in the first instance, proceed with proof to establish the invalidity of the instrument. Supreme Court rule 25, Ill.Rev.Stat.1939, c. 110, § 259.25, 370 Ill. 28. In this case the will was duly probated, and was admitted to have been so done in the complaint. The will then constituted prima facie proof of its validity and of the testamentary capacity of the testatrix, and it became incumbent upon the contestant to make proof sufficient to overcome the prima facie validity of the will.
In the examination of witnesses they were asked to relate conversations during the month of July, 1925, when the will was made, but out of the eight witnesses testifying four of them did not testify to any conversations. The conversations which the other witnesses had related to family matters and about the Bible, and in some instances about raising chickens and turkeys. Most of the witnesses were asked to state whether they had a conversation, and without having given it, were then asked to give their opinion as to the mental capacity of the deceased, to which objection was sustained by the court.
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Bowman v. Illinois Cent. R. Co.
...attacked can be received only when it will tend to show such condition at the time of the transaction involved. Lewis v. Deamude, 376 Ill. 219, 221, 33 N.E.2d 440; Milne v. McFadden, 385 Ill. 11, 52 N.E.2d 146. The burden of proof was on plaintiff to show Bowman was mentally incompetent. Ca......
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Ahmann v. Elmore
... ... Charles W. Ahmann, deceased, joining Donny Elmore, John ... William Elmore, Ralph Elmore, Lewis Schnarre, Frank Schnarre, ... Dora Lee Schnarre Shepheard (beneficiaries under said will), ... and Oscar A. Kamp (executor under said will), as ... New York L. Ins. Co., Mo.App., 153 S.W.2d ... 760, 763[2]; Sehr v. Lindemann, 153 Mo. 276, 288(I), ... 54 S.W. 537, 540; Lewis v. Deamude, 376 Ill. 219, 33 ... N.E.2d 440, 442 [6] ... Our ... cases rule that the standard of mental capacity required to ... sustain ... ...
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Estate of Roeseler, In re
...to numerous conversations with decedent and to having known and communicated with decedent over period of many years); Lewis v. Deamude, 376 Ill. 219, 33 N.E.2d 440 (1941) (lay testimony regarding testamentary capacity admissible where witness testified that certain conversations formed bas......
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Ahmann v. Elmore
...v. New York L. Ins. Co., Mo.App., 153 S.W.2d 760, 763[2]; Sehr v. Lindemann, 153 Mo. 276, 288(I), 54 S.W. 537, 540; Lewis v. Deamude, 376 Ill. 219, 33 N.E.2d 440, 442 [6]. Our cases rule that the standard of mental capacity required to sustain a will is that the testator must have "`"had su......