McCommon v. McCommon

• Citation: 151 Ill. 428,38 N.E. 145
• Parties: McCOMMON et al. v. McCOMMON et al.
• Decision Date: 19 June 1894
• Court: Supreme Court of Illinois

151 Ill. 428

38 N.E. 145

McCOMMON et al.

v.McCOMMON et al.¹

Supreme Court of Illinois.

June 19, 1894.²

Error to circuit court, Jo Daviess county; John D. Crabtree, Judge.

Bill by William Blair McCommon, Stephen A. Cornman, Wilson Cornman, Henry P. Cornman, Benjamin Cornman, and John S. Lowe against Lenox H. McCommon. Ann C. McCommon, Sarah A. Beisel, James S. McCommon, Margaret McCommon, Amos G. McCommon, Levi Cornman, Amelia Titzel, William Cornman, Anna Faulkner, Margaret Mattson, Laura Willard, Frederick Cornman, James Cornman, Julia Fox, Mary Dwen Elizabeth Corbett, Wilson Cornman, Sarah J. Fulk, Margaret A. Witner, Alfred L. Cornman, Wesley Cornman, Anna C. Cornman, Mary C. Cornman, Carrie Wence and the unknown heirs of George Cornman, deceased, Moses Rees, Edwin Holland, Florence Oeta Holland, Nevada W. Holland, and Nora Holland to contest the will of said George Cornman. Defendants obtained a decree. Contestants bring error. Affirmed.E. L. Bedford, for plaintiffs in error.

Wm. Spensley and D., T. J. & J. M. Sheean, for defendants in error.

BAILEY, J.

This was a bill in chancery, brought to contest the will of George Cornman, deceased. Cornman died September 13, 1890, in Jo Daviess county, where he had lived for many years, leaving an estate, consisting of both real and personal property, of the value of about $23,000 and leaving no widow or descendants, he having never been married. At the time of his death he was about 77 years of age. His will, which bore date November 3, 1887, was duly admitted to probate, and it is now contested on the grounds (1) that at the time of its execution Cornman was so weak and feeble in mind and memory as to be incapable of comprehending who were the proper objects of his bounty, and of making a just disposition of his estate; (2) that the execution of the will was procured by undue and improper influences; and (3) that the will was not read over to the testator, and that he was not informed of its provisions at the time he executed it. The beneficiaries under the will appeared and answered, and, an issue having been submitted to a jury whether the writing produced was the will of Cornman, the jury returned their verdict finding that the writing was the will of the testator; and the court thereupon, after denying the contestants' motion for a new trial, entered a decree dismissing the bill for want of equity. To reverse that decree the contestants now bring the record to this court by writ of error.

The next of kin of Cornman at the date of the will were a sister, who has since died, and the children of deceased brothers and sisters, all being residents of the state of Pennsylvania, Cornman himself seems to have been a native of that state, and to have emigrated therefrom early in life, his residence since that time having been in Jo Daviess county, Ill., and there he accumulated the estate which he left at his death. For several years prior to his death he made his home with Edwin Holland, the father of the residuary devisees named in the will; and for a considerable time prior to the execution of his will, and down to the time of his death, Moses Rees, one of the executors named in the will, and a legatee thereunder, seems to have been the testator's confidential attorney, and to have had charge and supervision of most of his business and pecuniary affairs. The evidence shows-and on this point there is no dispute-that the will is in the handwriting of Rees; that it was executed at his office; that he selected and procured the attendance of the attesting witnesses, and superintended the entire matter of its execution. The will, after making provision for the payment of the testator's debts and funeral expenses, disposes of his estate in the following manner: ‘Second. I give and bequeath to my sister, Catherine Low, of Carlisle, Pennsylvania, the sum of fifty dollars each and every year during her natural life, the first fifty dollars to be paid as soon after my decease as my executors shall find convenient, and thereafter the said sum of fifty dollars on or about the first of January in each and every year during her natural life; and I desire that my executors shall invest so much of my estate in good security as that the interest on the same shall pay said fifty dollars, and after her decease said amount is to be distributed as hereinafter named. Third. I give, devise, and bequeath to my friend, Moses Rees (and being one of my executors), the sum of twenty-five hundred dollars, to be paid him within six months after my decease, if found convenient by my executors. Fourth. I give, devise, and bequeath to Florence Oeta Holland, Nevada W. Holland, and Nora Holland (children of Edwin and Hattie Holland, of Long Hollow, in town of Elizabeth, in Jo Daviess county) all the rest and residue of my estate, of what nature and kind whatsoever, to be shared by them equal and alike; that is, one-third to each, including the amount invested, the interest of which to be paid to my sister, which amount, after her decease, is to be divided between them; the share of each of them to be paid to them as soon after he or she becomes of age, and after my decease, as shall by my executors be convenient. And I desire that so much of the income as I have given to each of the children, to wit, Florence O., Nevada W., and Nora Holland, if either of them should not be of age at my decease, shall be applied for his or her support and education as shall be needful and proper by my executors and by their guardian. And I hereby nominate, constitute, and appoint my friend Moses Rees, of Galena, and my friend George Cubbon, of Elizabeth, all in said county of Jo Daviess, jointly and severally, to be my executors of this, my last will and testament, and I do by these presents give my said executors full power and authority to grant, alien, bargain, sell, and convey all the lands of which I die seized, giving a good and sufficient deed of conveyance for the same; and also with full power to carry out all needful acts of this, my last will and testament; and I desire that my said executors shall not be required to enter into bonds, the bonds being waived.’

The evidence adduced at the trial bearing upon the question of the testamentary capacity of the testator at the time the will was executed is very voluminous, and quite conflicting. The fact is not disputed that, being advanced in years, he was laboring under the infirmities, both physical and mental, usually incident to old age, but as to whether he still retained that degree of mental capacity necessary to render him capable of making a valid will the witnesses are greatly at variance. Any attempt on our part to analyze or discuss at length the evidence bearing upon this question would be of no essential benefit to the parties. The question presented is purely one of fact, and it was therefore pre-eminently a matter for the jury to determine, and their verdict should not be disturbed, unless we are able to say that it is clearly and manifestly against the weight of the evidence. After having carefully considered the evidence in the voluminous record before us, we are unable to find any just grounds, so far as this question is concerned, for holding that the jury have not reached a just and proper conclusion.

It is also urged that the evidence is insufficient to warrant a finding that the testator knew the contents of the will at the time he executed it. The contention is that the circumstances attending the execution of the will were such as to overcome the usual prima facie presumption that a party signing and exeucting an instrument knows and approves of its contents, so as to throw upon the proponents of the will the burden of making affirmative and satisfactory proof of such knowledge on the part of the testator; and it is insisted that such proof was not furnished. The circumstances alluded to are the enfeebled condition of the testator's mental faculties, his want of education and want of ability to read with facility, the fact that the disposition of his property made by his will was not consonant with the testator's natural affections, and more especially the fact that the person who drafted the will and superintended its execution was, and for several years had been, the testator's confidential attorney and agent, and was by the will given a legacy of $2,500, and was appointed executor, and relieved from giving bonds as such. 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. Keithley v. Stafford, 126 Ill. 507, 18 N. E. 740;Purdy v. Hall, 134 Ill. 298, 25 N. E. 645. As said by Taylor in his treatise on the Law of Evidence: ‘It is a general rule that, on proof of the signature of the deceased, he will be presumed to have known and approved of the contents and effect of the instrument he has signed; such knowledge being essential to the validity...