Marco v. McGill

• Decision Date: 17 January 1949
• Docket Number: No. 30606.,30606.
• Citation: 83 N.E.2d 313,402 Ill. 46
• Parties: DE MARCO v. McGILL et al.
• Court: Illinois Supreme Court

402 Ill. 46

83 N.E.2d 313

DE MARCO

v.McGILL et al.

No. 30606.

Supreme Court of Illinois.

Nov. 18, 1948.

Rehearing Denied Jan. 17, 1949.

Appeal from Circuit Court, Winnebago County; William R. Dusher, judge.

Action by Helen Bohen DeMarco against Flora Bohen McGill and nother to set aside will of Susan Bohen, deceased. From a judgment for plaintiff, the defendants appeal.

Judgment reversed and cause remanded for a new trial.

Thomas & Davis, of Rockford (Charles H. Davis and Henry H. Caldwell, both of Rockford, of counsel), for appellants.

Raphael E. Yalden, of Rockford, for appellee.

THOMPSON, Justice.

This suit was filed by Helen Bohen DeMarco in the circuit court of Winnebago County, contesting the will of Susan Bohen. The defendants are plaintiff's sister, Flora Bohen McGill, and her brother, Clement Bohen, the latter also being made a defendant in his capacity as executor of the will.

The first count of the complaint alleged that Susan Bohen was of unsound mind at the time of the execution of the will and the second count charged undue influence on the part of the defendants.

Susan Bohen died on June 20, 1944, leaving as her only heirs the parties to this litigation. She was the owner of property consisting of a dwelling house in which she had formerly resided and a tavern building adjoining, known as the Dutch Mill Tavern, which was operated by her son. She also owned some securities and had a bank account. The deceased was seventy-three years of age at the time she executed the will. She devised to her son the tavern property. The remainder was divided by giving him one third and his sister Flora two thirds. She bequeathed to her daughter Helen, plaintiff herein, the sum of $1. The case was tried by a jury and at the close of the plaintiff's evidence, and again at the close of all the evidence, the defendants made a motion for a directed verdict on each count, which motions were denied. The jury returned a verdict that the instrument was not the will of Susan Bohen. The court, after overruling defendants' motion for judgment notwithstanding the verdict and their alternative motion for a new trial, entered a decree setting aside the will and declaring the same null and void.

The defendants have appealed to this court claiming that the court should have directed a verdict in their favor, that the verdict of the jury is against the manifest weight of the evidence and that errors were committed in the admission of certain evidence and in the giving of instructions.

The evidence discloses that for several years prior to April, 1942, the testatrix and her daughter Flora had lived together in the home of testatrix on North Second Street in Rockford; that in April, 1942, Flora moved to 808 Park Avenue, at which time her sister Helen, along with her family, consisting of her husband and four children, moved to the North Second Street home to live with the mother. This was at the request of Flora and was, so far as disclosed by the record, satisfactory to the mother, who was then on good terms with both daughters. The testatrix lived in her home with her daughter Helen and family from that time until some time in April, 1943, when she went to the home of her daughter Flora, where she remained until her death. The will was executed at the office of Samuel J. Ditto, a practicing attorney of Rockford. The testatrix, accompanied by her daughter Flora Bohen McGill, was taken to the attorney's office by her son, but the son did not enter the building and Flora did not go into the room where the will was signed.

Appellants contend that the record contains no evidence in support of the count charging undue influence, and with this we agree. As to the question of unsoundnessof mind at the time of signing said instrument, attorney Ditto testified that he was acquainted with Susan Bohen for three or four years prior to her death; that at one time he acted as her attorney in connection with a lease and that, while she was living at the home of her daughter Flora, he had often seen her sitting on the porch as he passed on his way home and frequently stopped and talked with her; that on one occasion she asked him, ‘How about drawing a will for me?’ and he replied, ‘Any time you want to;’ that they discussed the will and he took notes; that she told him she wanted the tavern property to go to her son because he had worked up a good business there; that her daughter Flora had been good to her and she wanted to do the right thing by her; that she also had another daughter, Helen Bohen DeMarco, with whom she had been living on North Second Street, but they had not paid any attention or taken good care of her and she was not going to leave her a cent. He further testified he again talked with testatrix and she told him just how she wanted the will made and he followed the directions she gave him on this second occasion. He testified that no one other than the testatrix and himself was present during either conversation, but that he knew Flora was in the house because from the porch he could see her walking through. The witness also testified the will was executed in his private office, that Flora accompanied testatrix but remained in the reception room while the testatrix went into his private office, and that he and the testatrix were there alone for about fifteen minutes before the witnesses, who were doctors, selected by Mrs. Bohen, with offices in the same building, arrived to witness the will.

There is no evidence in the record to show that either Clement Bohen or Flora Bohen McGill exerted any influence upon the testatrix to induce her to make a will. There is no testimony in the record that tends to show that either of them or any one else exercised any undue influence over the testatrix. In this state of the record the trial court should not have submitted the issue of undue influence to the jury.

Plaintiff does not set out argument to the contrary but contends that if the count charging unsoundness of mind is proved, such proof would be sufficient to sustain the verdict, and cites the cases of Bundy v. West, 297 Ill. 238, 130 N.E. 709, and Aftalion v. Stauffer, 284 Ill. 54, 119 N.E. 981, in support of her position. In the Bundy case the defendants made no motion to withdraw the issue from the consideration of the jury and consequently were in no position to complain because the court did not do so. In the Aftalion case there was some evidence, although slight, on the issue. Where both mental incompetency and undue influence are charged and there is no evidence upon one of the issues as to which the defendants have moved for a directed verdict, the refusal of the court to grant the motion is not reversible error if such action of the court could not have misled the jury and could not reasonably have affected the verdict; but if the evidence in support of such issue, although not sufficient to warrant the court in submitting the issue to the jury, is of a character to appeal to the prejudice, passion or sympathy of the jury, and the evidence upon the other issue, although such that the issue is properly submitted to the jury, is in itself of an inconclusive character, then it is reversible error to submit the first-mentioned issue to the jury. Challiner v. Smith, 396 Ill. 106, 71 N.E.2d 324. This court recognizes the tendency of juries to look for an excuse to hold invalid a will making an unequal division of the testator's property among his children. Turnbull v. Butterfield, 304 Ill. 454, 136 N.E. 663;Freeman v. Easly, 117 Ill. 317, 7 N.E. 656. The sympathy of the average jury being enlisted on the side of the disinherited child, we think it may reasonably be said that evidence that the testator lived in the home of one of the beneficiaries who was present when the will was signed and that the other benficiary drove the testator in his automobile to the attorney's office on the occasion when the will was executed is, without doubt, evidence of a character to appeal to the jury's sympathy for the disinherited child and rouse its prejudice against the favored children by whom the testator was thus surrounded at the time of executing his will. Therefore, under the state of the proof disclosed by the record in the instant case, it is necessary to analyze the evidence on the issue of mental incompetency to determine whether the same is of such an inconclusive character that the decree rendered must be reversed because of the error of the court in failing to withdraw from the jury the issue of undue influence.

The evidence of the contestant on the issue of mental incapacity consisted of the testimony of three witnesses, that of Albert DeMarco, her son, Rosemary DeMarco, her daughter, and Marie Anderson, who was a niece of testatrix's husband. The testimony of contestant's son and daughter was confined to the period of time during which they lived with testatrix in her home on North Second Street, and neither of them testified to ever seeing her or knowing anything about her after she left there in April, 1942. Marie Anderson testified to seeing her while she was living with the DeMarco family and in addition testified to seeing her once in June, 1943. Each of these witnesses testified that in his or her opinion the testatrix was of unsound mind and not capable of transacting ordinary business.

Albert DeMarco testified that his grandmother had suffered a stroke of paralysis several years ago, that she was getting a funny stare, that ‘you could understand her if you kept near enough so you could get her focused on you,’ but a stranger would have to ask her two or three times before he could understand her; that she would sometimes evade a question asked her and answer or talk about something else, that she always claimed his sister Susan was making faces at her and making fun of her and it irritated her, that she talked about jumping into the river; that his grandmother was always of a suspicious nature,...