Mitchell v. Van Scoyk, 32752

• Decision Date: 24 September 1953
• Docket Number: No. 32752,32752
• Citation: 115 N.E.2d 226,1 Ill.2d 160
• Parties: MITCHELL v. VAN SCOYK et al.
• Court: Illinois Supreme Court

Page 226

115 N.E.2d 226

1 Ill.2d 160

MITCHELL v. VAN SCOYK et al.

No. 32752.

Supreme Court of Illinois.

Sept. 24, 1953.

Rehearing Denied Nov. 16, 1953.

Kenneth A. Green, Mattoon, for appellants.

Bennett & Bennett, Marshall, and C. A. Williams, Casey, for appellee.

FULTON, Justice.

This is an appeal from a decree of the circuit court of Clark County finding and declaring that certain instruments purporting to be the will and codicil of Samuel James, deceased, are not his will and codicil, setting aside said instruments and declaring the probate thereof null and void. The decree was entered upon the verdict of a jury and in conformity with its findings in an action brought by appellee, Katie Mitchell, a daughter of the deceased and his sole heir, to contest the will and codicil of Samuel James. The defendants in the circuit court were E. B. 'Bruff' Van Scoyk, individually and as executor of said purported will and codicil, Martha Spear, the Presbyterian Church of Mattoon, Illinois, the Baptist Church of Westfield, Illinois, Edmund Ramey, Doit Biggs, and Kenneth A. Green. Only the executor and Martha Spear have appealed.

Samuel James died at Westfield on August 29, 1950, and the instruments purporting to be his will and a codicil thereto were admitted to probate in the county court of Clark County on September 29 of that year. The will bears the date of October 11, 1949, and the codicil is dated December 3, 1949. The will gives to Martha Spear, a sister of the deceased, all of deceased's personal property (except a bequest of $500 to the Presbyterian Church of Mattoon) as well as a 120-acre farm in Clark County. The will devises 40 acres of land in Coles County to the daughter, Katie Mitchell, provided that she does not contest the will, and further provides that if she brings any proceeding to contest, the 40 acres shall be sold and the proceeds paid to the Baptist Church of Westfield. The instrument provides that if Martha Spear predeceases the testator or 'die before distribution of the devise and bequest to her has been made and before the time when her receipts for said distribution are filed with the proper court,' then $2000 of the amount bequeathed to her shall be paid to Edmund Ramey and the entire balance to 'my good friend E. B. 'Bruff' Van Scoyk, who lives in Westfield, Illinois.' The will names E. B. 'Bruff' Van Scoyk as executor and provides that in the event he is unable to serve or declines, Doit Biggs shall be successor executor. The instrument further directs that the executor employ as his attorney, Kenneth A. Green, an attorney at law of Mattoon. The codicil in question contains no changes or additions. It states that the testators, 'feeling that it would be well at this time to restate, ratify and confirm the provisions of said last will and testament, makes the codicil.' The codicil recites that testator has studied the provisions of the will immediately prior to executing the codicil and is satisfied with its provisions and that he therefore re-states, ratifies and confirms each and every provision of the instrument referred to. The will was witnessed by Mary and Newton Leith of Westifield and Ila Mae Bingaman of Mattoon, the secretary of attorney Kenneth A. Green who prepared the will. The codicil was witnessed by Robert and Virginia Shawver of Westfield. All of the witnesses to the will were witnesses at the trial in the circuit court but neither witness to the codicil testified. None of the persons named in the will was related to deceased except Martha Spear and Katie Mitchell.

The complaint filed in the circuit court alleges that Samuel James was not of sound mind and memory at the time of the execution of the instruments and that the will and codicil were procured by the undue influence and fraudulent misrepresentations of Martha Spear and E. B. 'Bruff' Van Scoyk, setting forth particularly the acts of undue influence and fraudulent misrepresentations complained of. The answer of the defendants is in form a general denial, except that the Baptist Church of Westfield has filed a disclaimer so that the property which might come to it would revert to the estate and to Katie Mitchell as sole heir of the deceased. The cause was tried twice before a jury. At the first trial the jury was unable to agree. Upon the second trial the jury reached a verdict finding the issues for the plaintiff and that the will and codicil in evidence were not the last will and testament and codicil of Samuel James, deceased. At the trial defendants made motions for a directed verdict generally and upon the issues of unsoundness of mind and undue influence separately, both at the close of plaintiff's case and after defendants had introduced their evidence and rested. These motions were overruled. Motions for judgment notwithstanding the verdict, in arrest of judgment and for a new trial were also made but were denied by the trial court. Numerous assignments of error have been made but only those argued will be considered as assignments of error made, and those not argued will be deemed to have been waived. Horner v. Jamieson, 394 Ill. 222, 68 N.E.2d 287; Creighton v. Elgin, 395 Ill. 87, 69 N.E.2d 501; People ex rel. Nelson v. Olympic Hotel Building Corp., 405 Ill. 440, 91 N.E.2d 597. The principal assignments of error to be considered here are (1) denial of the motions for directed verdict and for judgment notwithstanding the verdict, (2) that the verdict is not supported by the evidence as a whole, and (3) errors assigned upon the admission had exclusion of certain evidence.

Preliminary to a discussion of these various assignments of error it will be well to state some of the undisputed facts which are established by the evidence on both sides of this controversy. Samuel James was 91 years of age at the time of the execution of the purported will and codicil. Had he lived another month he would have been 92 years of age at the time of his death. During his lifetime he had acquired considerable money and property so that at the time of his death his estate was valued at about $50,000. The value of the 40 acres bequeathed to his daughter, Katie, is about $5400. The value of the remainder of the estate, all of which was to go to his sister, Martha Spear, and on certain contingencies to Van Scoyk, was valued at $44,332.37. These amounts exclude more than $12,000 transferred to Martha Spear in 1949 during his lifetime. Though of considerable means, Samuel James had always lived frugally and dressed poorly. He had been somewhat eccentric, preferring to 'batch it' in a small shack on his farm rather than associate with others. In the later years of his life he had lived with his sister, Martha Spear, in a home in Westifield which they owned together. He had never owned an automobile but travelled between his farm and Westfield in a mule-drawn wagon. This he did up to the time he was about 89 years of age.

The health of James had been fairly good up through the year 1947 but during the year 1948 it began to decline rather rapidly due to his advanced age. He was bothered with a kidney and bladder ailment and had trouble controlling his bowels. He is described by some witnesses during the year 1948 as being filthy and dirty and given to filthy habits. He last visited his farm in the fall of 1948 at which time, according to one of defendants' witnesses, he could not walk 'to do any good.' This same witness stated that James had trouble getting around from 1947 onward and that his walking did not improve any from 1948 until the time of his death.

During the entire year of 1949 and from then on until his death it appears that James was confined to the house in Westfield where he lived with his sister. He is described by witnesses for both sides, who observed him during this period, as a feeble old man. His bed was in the kitchen of the house and he had to be helped from his bed to a chair where he sat and back to bed again. No witness ever saw him out of this room from the beginning of 1949 until the time of his death. Dr. L. H. Johnson, who testified as a witness for defendants, stated that he attended James at the home on February 18 and March 2, 1949, and on February 26 and August 28, 1950. He states that at the time of his visits in 1949 he had little conversation with James because he was was too sick. The doctor stated that he had bladder and kidney trouble at that time together with an infected ear and was running a high temperature. He states that he could not make James hear.

It was on March 1, 1949, and during the period Dr. Johnson testifies, that James was so ill that his sister, Martha Spear, appeared at the Casey National Bank at Casey, Illinois, with a blank check signed by James. This she caused to be filled in with the entire amount on deposit in James's name at that bank and closed his account, depositing the entire sum of $12,241.40 in her account. Two or three weeks previous to this transaction she had inquired of the banker at this bank as to the procedure necessary to transfer the account to her and he had explained that it could be done only upon James's signature.

Prior to the early months of 1949 it appears that James's relations with his daughter, Katie Mitchell, were friendly. She had washed his soiled clothing for him and there is nothing in the evidence which shows that their relations had been other than the normal relations of a father and daughter. Mrs. Mitchell, upon being advised of the transfer of the large sum from her father to Mrs. Spear, brought proceedings in the county court of Clark County for the appointment of a conservator for James. In connection with these proceedings, his bank accounts in several banks, except that in the bank at Westfield, were temporarily closed. Upon appeal, the conservatorship proceedings were finally dismissed by order of the circuit court of Clark County on November 15, 1949. The conservatorship proceedings were therefore pending...