Maxwell v. Jacob
| Decision Date | 07 October 1927 |
| Docket Number | No. 18097,18097 |
| Citation | 326 Ill. 462,158 N.E. 154 |
| Parties | MAXWELL v. JACOB et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Proceeding by A. J. Maxwell, Executor, to probate the will of Jennie Jacob, deceased. From an order admitting the will to probate, Nelson Jacob and another appeal.
Affirmed.
Appeal from Circuit Court, Whiteside County; William T. Church, judge.
Ward, Ward & Ward and Van Sant & Besse, all of Sterling (Lloyd H. Brown and A. J. Schenineman, both of Sterling, of counsel), for appellants.
Lawrence L. Winn, guardian ad litem, and Jacob Cantlin, both of Rock Falls, for appellee.
Upon appeal from an order of the county court of Whiteside county refusing probate of the will of Jennie Jacob the circuit court ordered the will admitted to probate, and Nelson Jacob, her husband, and Archie S. Jacob, and adopted son of the testatrix, have appealed.
The will was duly executed and attested by two witnesses in the manner required by law, on July 25, 1925, and the appellants do not question the sufficiency of the evidence to sustain the order appealed from in these particulars. Their appeal is based upon the proposition that on the application to admit a will to probate the question is whether the instrument offered was executed in accordance with the requirements of section 2 of the act concerning wills (Smith-Hurd Rev. St. 1925, c. 148), and whether or not the testatrix was of sound mind and memory was of no importance; that, no matter how insane she may have been at the time of executing the will, if the statute in regard to its execution has been complied with, the instrument would be entitled to probate.
The attesting witnesses were two friends of the testatrix of long standing, who had lived near her, within from a mile to five or six miles, for many years, and knew her well. On the hearing in the county court they testified that at the time of witnessing the instrument they did not believe the testatrix to be of sound mind, and on the hearing in the circuit court they were called by the proponents of the will and testified that it was their belief at the time of the execution of the will that testatrix was of unsound mind, and it was still their belief. The proponents then called 12 other witnesses, who testified in regard to the testatrix's mental condition. They included the lawyer who wrote the will, another lawyer who was called by the testatrix to her house for consultation in regard to her business, and others who had met her and conversed with her at various times, who stated their opinions, from their observation of her, that she was of sound mind. Three or four witnesses were also called and asked questions of minor importance. No evidence was offered by the contestants as to mental capacity, and none was admissible.
[1] The appellants in their reply brief state their position to be that, in order to entitle the will to probate, it is necessary that the attesting witnesses swear that they believed the testatrix was of sound mind and memory, or that such facts, circumstances, or admissions of the attesting witnesses shall be proved as to justify the presumption that the attesting witnesses believed her to be of sound mind and memory. The proceeding for the probate of wills is entirely statutory, and the kind and quantify of evidence, the character and number of the witnesses, and the facts to be proved are all specifically stated in section 2 of the act in regard to wills. Under that section it was held that the law required two witnesses to the will to prove that they were present and saw the testator sign the will or acknowledge it to be his act and deed, and that they believed him, at the time of such signing or acknowledgment, to be of sound mind and memory; that unless this was done no probate could be granted, and it was therefore manifest that no other witness could be introduced to establish what the law required should be proved by the subscribing witnesses alone. Walker v. Walker, 2 Scam. 291;Claussenius v. Claussenius, 179 Ill. 545, 53 N. E. 1006;O'Brien v. Bonfield, 213 Ill. 428, 72 N. E. 1090.
The decision in the first of these cases was rendered at the June term, 1840. The Legislature at its session in 1845 enacted that, when the probate of a will had been refused in the probate court, and an appeal had been taken to the circuit court, it should be competent for the party seeking probate of the will to support the same on the hearing in the circuit court by any evidence which would be competent in case probate of the will had been allowed, and it were afterwards contested by a bill in chancery, and the will, having been so proved upon appeal, should be admitted to probate, liable, however, to be subsequently contested. Rev. Stat. 1845, p. 596. This act was under consideration in the case of Andrews v. Black, 43 Ill. 256, and it was held that its effect was to establish a new rule of evidence, under which, when probate of a will had been refused, other evidence on the question of insanity than that of the subscribing witnesses might be received, leaving the rule to stand, however, as decided in the Walker Case, on the trial of appeals where probate had been allowed. The reason for the distinction, which might at first seem purely arbitrary, was stated, that were probate had been allowed all persons interested were still granted five years within which to file a bill in chancery to set the will aside, under which proceeding the sanity of the testator, or any other proper question, might be raised and heard on any legitimate evidence, the probate not being conclusive; but, where probate had been refused, there was no proceeding to which persons...
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Research Hosp. v. Cont'l Illinois Bank & Trust Co., 21720.
...there held that the circuit court erred in not admitting the will to probate and directed that it be so admitted. In Maxwell v. Jacob, 326 Ill. 462, 158 N. E. 154, a will had been duly attested by two witnesses, and the question arose whether proof of competency of the testator was of any i......
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Bley v. Luebeck
...were still limited to the cross-examination of the subscribing witnesses and other witnesses offered by the proponents. Maxwell v. Jacob, 326, Ill. 462, 158 N.E. 154. In 1939, the legislature passed an act designated by short title as the Probate Act. This act was a complete revision of the......
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Martin v. Martin
...testator was of sound mind and memory at the time of signing and acknowledging the same. Crowley v. Crowley, 80 Ill. 469;Maxwell v. Jacob, 326 Ill. 462, 158 N. E. 154. It is not required, however, that the will be read to the attesting witnesses or that they know its contents. Section 2 of ......
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American Trust & Safe Deposit Co. v. Eckhardt
...number of witnesses, and the facts to be proved are all specifically stated in section 2 of the act in regard to wills. Maxwell v. Jacob, 326 Ill. 462, 158 N. E. 154. A conditional or contingent will is one which is to take effect as a will only on the happening of a contingency named in it......