Mcmillan v. Mcdill

• Decision Date: 19 May 1884
• Citation: 110 Ill. 47,1884 WL 9844
• Parties: ROBERT MCMILLAN et al.v.MARY F. MCDILL et al.
• Court: Illinois Supreme Court

110 Ill. 47

1884 WL 9844 (Ill.)

ROBERT MCMILLAN et al.

v.MARY F. MCDILL et al.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Henderson county; the Hon. JOHN J. GLENN, Judge, presiding.

Messrs. STEWART & STEWART, Mr. JNO. SIMPSON, and Mr. R. J. GRIER, for the appellants:

The admissions of one who is not the sole party in interest in contest of a will, whether on record or not, are not evidence. Bauerman v. Radenius, 2 Smith's L. C. 396.

An opinion said to have been expressed by one of the devisees that the testator was insane, is not admissible to prove his insanity. Phelps et al. v. Hartwell, 1 Mass. 71; 1 Greenleaf on Evidence, 255; 3 Phillips on Evidence, 391, 397.

A common or several interest does not render the statements of the one party admissible against the other, unless they were made in the presence and hearing of the latter. Crippen v. Morse, 49 N. Y. 63; Buchanan v. Barnum, 15 Conn. 68; Peck v. Yorks, 47 Barb. 131; Dunn v. Brown, 4 Conn. 483.

As to the distinction between joint and common interests, see 1 Addison on Contracts, 78, 88; 1 Parsons on Contracts, 11; 1 Story on Contracts, sec. 32.

The above reasoning will apply to declarations or admissions proven against our objection, of other of the legatees.

Messrs. KIRKPATRICK & ALEXANDER, and Mr. RAUS COOPER, for the appellees:

Upon the question of the admissibility of the general declarations or admissions of one not a sole devisee or legatee, there is an undoubted conflict of authority. The general rule is, that the declarations of a party to a suit are admissible against him.

The rule is, that an admission is evidence against the individual interest of the person making it, and against a joint interest in which he shares. The admission of every defendant is evidence against himself. Bauerman v. Radenius, 2 Smith's L. C. 387.

In the case at bar, under the limitation imposed by the court, the declarations proven could only be used against the person making them. They could not be used against the other legatees.

As to such admissions and declarations being admissible as against the parties making them, counsel cited Clark v. Morrison, 25 Pa. St. 453; Whitford v. Lutin, 6 C. & P. 228; Brown v. Moore, 6 Yerg. 272; Barnhardt v. Smith, 86 N. C. 473; McCraine v. Clark, 2 Murphy, 317; Dennis v. Weeks, 46 Ga. 514; Harvey v. Anderson, 12 Id. 69; Morris v. Stokes, 21 Id. 552; Davis v. Calvert, 5 Gill & J. 270; Peeples v. Stevens, 8 Rich. Law, 198; Armstrong v. Farrer, 8 Mo. 627; Allen v. Allen, 26 Id. 327; Milton v. Hunter, 13 Bush, 166; Rhode v. McLean, 101 Ill. 467; Mueller v. Rebhan, 94 Id. 143.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

William McMillan devised all of his property to seven persons. The language of the will creating the devise is as follows:

“ Second--I give and bequeath to my niece, Rachel L. McMillan Thompson, Mary A. McDill, Robert T. McMillan, Daniel I. McMillan, Nancy E. McMillan, William L. McMillan, Martha H. McMillan, a right and title to equal shares of all my property, personal or real.”

Following this bequest was a clause appointing Robert T. McMillan executor of the will. In the bill to contest the validity of the will, the devisees above mentioned were all made parties defendant, and on the trial the contestants were permitted, over the objections of the defendants, to prove the declarations of Robert T. McMillan, to the effect that the testator did not have the mental capacity to make a will. Similar declarations of other defendants (devisees) were allowed to be proven. The court, however, ruled that the declarations of each devisee were admissible as against him, but not as against co-defendants, and under this ruling the evidence was admitted for the consideration of the jury.

There is no doubt but this evidence had an important bearing with the jury in the decision of the case, and if the evidence thus admitted was incompetent, for this error alone the judgment will have to be reversed. It may be stated, as a general rule, that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence. (1 Greenleaf on Evidence, sec. 171.) To this general rule, however, there may be exceptions. It is plain that the admission of one who is the sole party interested in the issue before the jury, would always be competent evidence, when called out, against such party; but where several persons are interested parties, as here, can the declarations of one be admitted as evidence against that one, when such admission will directly affect the issue as against the other parties?

This question arose in Phelps v. Hartwell, 1 Mass. 71, and it was held that an opinion expressed by one of the devisees that the testator was insane, was not admissible to prove insanity. In the decision of the question, SEDGWICK, J., said: “If the appellee who is stated to have made the declaration were solely interested in establishing the will, he should be in favor of admitting the evidence offered; * * * but as the other appellee is interested in the establishment of the will, it would not be proper to admit the evidence offered.” In Massear v. Arnold, 13 Serg. & Rawle, 323, it was held that the admissions of one who is the sole party interested in the issue on one side, are evidence against that side. But in the following cases it was held that the admissions of one who is not the sole party in interest, are not competent evidence: Bovard v. Wallace, 4 Serg. & Rawle, 499; Massear v. Arnold, supra; Dietrich v. Dietrich, 1 Pen. & Watts, 306; Boyd v. Eby, 8 Watts, 66; Hanberger v. Root, 6 Watts & Serg. 431; Bauerman v. Radenius, 2 Smith's Leading Cases, 320, note. See, also, Dow v. Brown, 4 Cow. 483, where the same principle is announced.

In the case under consideration, the court, in deciding the question, admitted the declarations only as against the party who made them; but this did not relieve the evidence of its...