Millard v. Cooper
| Decision Date | 31 December 1881 |
| Parties | JOHNSON MILLARDv.JOHN COOPER. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Lake county; the Hon. C. W. UPTON, Judge, presiding. Opinion filed January 19, 1882.
Mr. CHARLES WHITNEY, for appellant; as to the rule of construction of nuncupative wills, cited Arnett v. Arnett, 27 Ill. 247; Morgan v. Stevens, 78 Ill. 287.
The provisions of the statute relating to nuncupative wills must be strictly construed: Morgan v. Stevens, 78 Ill. 287; Bronson v. Burnett, 1 Chand. 131; Tarnall's Will, 4 Rawle, 46; Woods v. Riley, 27 Miss. 119; Hans v. Palmer, 21 Pa. 291; Ridley v. Coleman, 1S need, 616; Lucas v. Goff, 33 Miss. 629; Dawson's appeal, 23 Wis. 69; 1 Redfield on Wills, 187; 2 Blackstone's Com. 501.
The very words of the testator should be proved: 1 Redfield on Wills, 201; Prince v. Hazelton, 20 Johns. 501.
As to the power of the court to amend its records: Lill v. Stookey, 72 Ill. 495; Robinson v. Brown, 82 Ill. 279; Becker v. Sauter, 89 Ill. 596; Goucher v. Patterson, 94 Ill. 525.
Mr. E. M. HAINES and Mr. H. C. IRISH, for appellee; upon the power of the court to amend its records, cited Rev. Stat. Chap. 7, § 7; Coughran v. Gutchens, 18 Ill. 390; Church v. English, 81 Ill. 442; Gillett v. Booth, 6 Bradwell, 423; Same case, 95 Ill. 183.
As to the sufficiency of the words testified, to constitute a nuncupative will: Rev. Stat.?? 1,104, § 15; Weir v. Chidester, 63 Ill. 453; Harrington v. Stees, 82 Ill. 50.
This was a suit in the circuit court on appeal from an order of the county court, refusing to admit to probate the alleged nuncupative will of Eliza Jones' deed, by which will John Cooper was made the sole legatee. On the 18th and 19th days of March, A. D. 1879, the issue as to the validity of the will was tried by the court and a jury, William Wigham and appellant, John Millard, being the contestants. The verdict of the jury was that the paper purporting to be the last will and testament of Eliza Jones was her last will and testament, and as such, was entitled to probate; upon such verdict the court rendered judgment, after overruling motion for new trial that the paper, writing, and contents thereof, presented and offered in evidence as the last will and testament, nuncupative of Eliza Jones' deed be held and taken as and for the last will and testament as found by the jury, theretofore empaneled, and that as such the same be admitted to probate, and that the cause be remanded to the county court for probate accordingly; and that said proponent have and recover of said contestants, William Wigham and Johnson Millard, his costs and charges in the court below as in this court expended, and that he have execution therefor, from which order and judgment an appeal was taken to this court. But by some mistake of the clerk, the judgment of the circuit court was not fully entered, but only the following portion of it, to wit: “It is therefore ordered that the said proponent have and recover of said contestants, William Wigham and Johnson Millard, his costs and charges as well in the court below as in this court expended, and that he have execution therefor.” When the transcript of the record was filed in this court at its June term, A. D. 1880, only the last recited portion appeared to be the judgment of the court below. No suggestion of diminution of the record was made by either party, or motion made for certiorari to bring up a certified copy of a complete record.
We did not consider at that time the merits of the case, thinking them not necessarily involved, for reasons given in the opinion of the court, appearing on page 420, of 6 Vol. Bradwell's Reports, and reversed the judgment and remanded the cause. Since that time, at the March term of A. D. 1881, upon application, the court below ordered the record to be amended in respect to the judgment, to make it conform to the one actually rendered at the March term of 1879, but not fully recorded by the clerk, and the clerk entered the amendment of record, as we have shown. From the order and judgment allowing the amendment, appellant prayed an appeal to this court, which was granted by the court below. The court on granting the order of amendment, ordered that the same be made nunc pro tunc, and at the same time allowed and entered an appeal by the contestant nunc pro tunc, as of March 29, 1879, from the judgment so amended and ordered, that the appeal prayed and allowed be considered as an appeal from entire proceedings in the cause, and with like effect as if taken on the 29th day of March, A. D. 1879. A transcript of the entire record is filed here, and we are asked to review the merits of the case, and determine whether the court below committed any error in rendering the judgment at the March term, 1879, and also whether there was any error committed in allowing the amendment.
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