Monaghan v. Green

• Decision Date: 02 December 1914
• Docket Number: No. 9411.,9411.
• Citation: 106 N.E. 792,265 Ill. 233
• Parties: MONAGHAN et al. v. GREEN et al.
• Court: Illinois Supreme Court

265 Ill. 233

106 N.E. 792

MONAGHAN et al.

v.GREEN et al.

No. 9411.

Supreme Court of Illinois.

Oct. 16, 1914.

Rehearing Denied Dec. 2, 1914.

Appeal from Circuit Court, Madison County; George A. Crow, Judge.

Suit by James Monaghan and another against Bridget Green and others to contest a will. From a decree in favor of the contestants, defendants appeal. Reversed and remanded.Keefe & Sullivan, of East St. Louis, and B. J. O'Neill, of Alton, for appellants.

D. H. Mudge and George W. Crossman, both of Edwardsville, for appellees.

COOKE, J.

The appellees, James Monaghan and Frank Monaghan, filed their bill in the circuit court of Madison county to contest the will of their father, William Monaghan, deceased, on the ground that he was of unsound mind, and on the further ground that appellants Bridget Green, James Green, her son, and Thomas Green, her husband, procured the execution of the will by means of undue influence. The issue as to whether the instrument in controversy is the last will and testament of William Monaghan has been twice submitted to a jury, and each trial has resulted in a verdict in favor of the contestants. The first verdict was set aside by the chancellor and a new trial granted. When the same verdict was returned upon the second trial the court overruled the motion for a new trial and entered a decree finding the instrument in controversy to be null and void and setting aside the probate thereof. From that decree the defendants to the bill have prosecuted this appeal.

William Monaghan, the testator, died at the home of his sister, Bridget Green, in Alton, December 14, 1911. He was about 66 years of age at the time of his death. He left him surviving his sons, James Monaghan and Frank Monaghan, the appellees, and his mother, his brothers, Thomas, John, and James, and his sisters, Bridget Green and Margaret Mullen. His wife, Susan Monaghan, to whom he was married in 1869, obtained a divorce from him in 1908 or 1909. She also survived him. The will in controversy was executed September 28, 1911. By this will he devised his real estate to his sisters, Bridget Green and Margaret Mullen, his brother, John Monaghan, and his nephew, James Green, giving to Bridget Green a lot upon which he had in 1910 erected a building for use as a saloon and which was the most valuable tract of real estate owned by him. He left no personal property. His brother Thomas Monaghan, and Thomas Green, the husband of Bridget Green, were named as executors of the will. The eighth clause of the will provided that his sons, James and Frank, should have no share in his estate. The evidence shows that he located at Alton about the year 1892, and from that time until 1908 conducted a saloon in a building which he erected and in which he and his wife also conducted a hotel. This building was known as the Monaghan Hotel. In 1907, he left his wife and was taken into the home of his sister, Bridget Green, where he resided until the time of his death. In 1908 he sold his saloon business and was not thereafter actively engaged in that business. In 1909 his wife instituted suit against him for partition of the Monaghan Hotel property and for an accounting. He contested the suit and his two sons testified therein on behalf of their mother. The evidence on behalf of the appellants tends to show that thereafter he made statements to some of his friends to the effect that as his sons had assisted their mother in that litigation they would get none of his property, while the evidence on behalf of appellees tends to show that thereafter he remained on friendly terms with his sons. In 1910, after the partition proceedings had resulted in a sale of the Monaghan Hotel property, he purchased a lot and erected a two-story building thereon. This is the property which he devised to Bridget Green. He rented the first floor of the building to Thomas Green, who thereafter conducted a saloon, known as the Bee Hive saloon, therein. The second floor was arranged for a dance hall and was rented for that purpose by William Monaghan to other parties. The evidence further shows that William Monaghan had for years used intoxicating liquors to excess, and that during the last year of his life he spent most of his time in the Bee Hive saloon and in a saloon conducted by a man named Schmerge. For several years he was afflicted with a disease of the bladder, which manifested itself during the later years of his life by a nervous or palsied condition of the hands. The immediate cause of his death, according to the testimony of his physician, was septic urea. His last illness covered a period of about a month, the last two weeks of which he was confined to his bed.

The testimony of the attorney who drew his will and of the two attesting witnesses to the will is that at the time William Monaghan executed the will he was of sound mind and memory, and the testimony of the attending physician is that during his last illness he was of sound mind. In addition to these witnesses 15 other witnesses called by the proponents, who had known Monaghan for a great many years and who frequently met and conversed with him during the last year of his life, testified that he was of sound mind. Among these witnesses was the cashier of the bank at which Monaghan transacted his banking business, several agents of breweries and wholesale liquor dealers with whom Monaghan had transacted business when he was conducting a saloon, a lawyer, an insurance agent, and a lumber dealer.

Seventeen witnesses testified on behalf of the contestants, very few of whom testified positively that he was of unsound mind. George W. Hildebrandt, who seems to have been engaged in the business of operating slot machines, testified that he knew Monaghan about 14 years; that during the last year of his life he was with him every week; that he frequently took buggy rides with him; that at times Monaghan talked ‘peculiar,’ by which the witness said he meant he would ‘forget himself,’ and at other times he would be all right; that they talked about some things which the witness said he would not repeat; that he told the witness things which the witness knew were unreasonable, and the next day he would tell the witness ‘different.’ When asked about his mental condition he replied that he could ‘hardly say about that.’

John Falkenberg, a brother of Monaghan's divorced wife, testified that in 1884 or 1885 he was associated with Monaghan in operating a coal mine at Bethalto, Ill.; that later the witness moved to Kansas City but at intervals returned to Bethalto and Alton to visit his relatives; that he observed that Monaghan was growing feeble in mind and body and could not get around as well as formerly; that about the 1st of November, 1911, he was in Alton and boarded a street car; that Monaghan was on the car; that the witness approached and shook hands with him; that Monaghan did not recognize the witness, but said, ‘You have got the best of me.’ From this circumstance the witness formed the opinion that his mind had become weakened.

Fritz Dahlquist testified that he knew Monaghan for six years; that he saw him nearly every day at Schmerge's saloon, playing cards and drinking whisky and beer; that he got excited and ‘talked right quick’ when playing cards; and that his hands shook so that when he took up a glass of whisky or beer he would spill most of the contents. He further testified that at times Monaghan played a ‘pretty good game’ of cards and at other times he did not know what he was doing.

Charles Reis testified that after the Bee Hive saloon was built he saw Monaghan on one occasion in Schmerge's saloon; that he was short some money and asked the witness to count his money; but that he told Monaghan he did not want to have anything to do with his money. This witness also testified that he had frequently played cards with Monaghan in saloons, and that upon such occasions, during periods of from two to three hours, he would take a drink every 15 minutes, and that he was so nervous that he could not raise the glass to his lips without spilling half the contents and would often get some one to assist him in raising the glass to his lips.

J. A. Williams, a bartender at Schmerge's saloon, testified that he knew Monaghan for five or six years. When asked about his physical condition he said that he was an old gentleman and pretty feeble. He expressed no opinionupon his mental condition, but testified that when the Bee Hive saloon was under course of construction he saw Thomas Green pay off the Workmen once or twice.

F. William Sontag testified that he knew Monaghan for about three years; that during the last year of his life his health was failing and he did not seem to be as bright as formerly; that during the latter part of his life he did not seem to be able to recognize the witness. He testified, however, that Monaghan did recognize him and talked to him when he met him on the street, and that during those conversations he did not observe anything wrong with his mental condition.

James Hudson testified that he had a business transaction with Monaghan about six years ago; that he was selling a piece of property to a party who held a note against Monaghan and who wanted the witness to take the note in part payment of the purchase price; that he took the note to Monaghan's place of business; that Thomas Green, who was tending bar there, told him that Monaghan was having ‘one of his spells' and was lying down in his room; that he saw Monaghan and that Monaghan would not acknowledge the note; that he said he did not know whether it was his note or not; that the witness saw ‘his condition’ and did not want to transact business with a man ‘in that line’; that afterwards he saw Monaghan several times and on one occasion helped him off a street car; that at that time he was not in a safe condition to ‘handle himself’; that the witness asked him if he could ‘navigate himself home’; and that...