Mosher v. Thrush
| Decision Date | 15 March 1949 |
| Docket Number | No. 30531.,30531. |
| Parties | MOSHER et al. v. THRUSH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Knox County; Burton A. Roeth, judge.
Action by Shedrick W. Mosher and others against Grace Thrush and others to contest the will of Shedrick W. Mosher, deceased. From a judgment upholding the will the plaintiffs appeal.
Affirmed.
Woolsey, Stickney & Lucas, of Galesburg, for appellants.
R. C. Rice and Sig. B. Nelson, both of Galesburg, for appellees.
The will of Shedrick W. Mosher was contested in the circuit court of Knox County, the case was tried before the court without a jury, and the will sustained in all respects. The principal asset involved was land of the decedent, justifying an appeal directly to this court.
At the time of his death, April 14, 1945, Shedrick W. Mosher was ninety-two years old. His last will was executed July 12, 1941, and his advanced age is one of the circumstances urged to invalidate the will. Mosher had no wife surviving, and had no children or descendants of children. His only relatives were the sixteen plaintiffs, who were his nieces and nephews, or their offspring, and the defendants, Grace Thrush and her son, Ivan Thrush, and Allen Brown, niece and grand nephews, respectively. The devises complained of were in clauses 2 and 3 of the will. Clause 2 gave Grace Thrush and her son, Ivan all of his personal property and three-fourths of his real estate. Clause 3 gave to Allen Brown and his wife, Elsie Brown, one fourth of his real estate. By the concluding clause a bank was made executor of the will. The complaint filed to contest the will was based upon the ground that the testator lacked testamentary capacity, and because the principal beneficiaries, Grace Thrush and Allen Brown, exercised such undue influence upon the testator that the will was not his will but that of others. The court at the close of the plaintiffs' evidence, upon motion, removed the issue of undue influence from the case, and at the close of all of the evidence held that the plaintiffs had failed to prove the deceased lacked testamentary capacity at the time the will was executed.
A large number of witnesses was called by the plaintiffs. Two of these witnesses were of the opinion that the testator was of sound mind and memory at the time of the making of the will, and eight or nine others expressed an opinion that he was not of testamentary capacity. Other witnesses called failed to disclose sufficient knowledge of the deceased or his transactions to permit them to express an opinion upon mental capacity. Lewis v. Deamude, 376 Ill. 219, 33 N.E.2d 440. Most of the plaintiffs' witnesses based their opinions upon his age, his alleged increased feebleness, his deafness, nearsightedness, his alleged habits of being filthy in his personal appearance, and upon the fact that he developed in late years a throat affliction which constantly interrupted his speech. The testimony of some of the plaintiffs' witnesses was apparently biased by the fact that testator's second wife broke her hip in 1941, was removed to a hospital, and shortly thereafter was declared insane, and sent to an institution. These circumstances were related by several of the witnesses as though they were the result of his mental condition.
The evidence upon the part of the defendants consisted of witnesses who had prepared and witnessed his will, and those who described how he rented his farm land, managed his business, looked after the raising of stock, cattle and hogs, how he bought and sold his farm machinery and supplies, and knew the market prices of grain, and sold accordingly. They testified that he hired help and paid taxes, took his money to the different banks and deposited it, drew out and made his own checks, and did everything that was necessary to carry on his own business; that he kept his debts paid, and looked forward to the time when he would die, and made provision for payment of his funeral expenses. There is no proof in the record that he ever did any foolish act in the transaction of his own business, but, on the contrary, the proofs show that on one occasion he remembered that years before he had promised a man who had borrowed money from him that he would throw off the last year's interest, that he reminded his debtor of that fact and carried out his promise. This occurred four days before his death, and three and one-half years after the execution of his will.
The appellants in their briefs apparently have abandoned the claim that the deceased lacked testamentary capacity, because they say they do not argue that Shedrick W. Mosher was of unsound mind and memory, that issue having been submitted to the court, and there being some evidence tending to show that he was still of sound mind and memory, even though he was eighty-eight years of age when he executed his will. This statement of counsel for appellants recognizes the well-settled law in Illinois. It has been held that neither eccentricities (Hutchinson v. Hutchinson, 152 Ill. 347, 38 N.E. 926) nor miserly or filthy habits (Long v. Brink, 353 Ill. 549, 187 N.E. 508;Pendarvis v. Gibb, 328 Ill. 282, 159 N.E. 353;Forberg v. Maurer, 336 Ill. 192, 168 N.E. 308) nor unequal division of property (Lewis v. Deamude, 376 Ill. 219, 33 N.E.2d 440;Langwisch v. Langwisch, 361 Ill. 632, 198 N.E. 675;Turnbull v. Butterfield, 304 Ill. 454, 136 N.E. 663) nor old age and feebleness (Hoskinson v. Lovelette, 365 Ill. 21, 5 N.E.2d 219,Forberg v. Maurer, 336 Ill. 192, 168 N.E. 308;Ughetti v. Ughetti, 334 Ill. 398, 166 N.E. 90) of themselves show a lack of testamentary capacity. The evidence discloses the deceased was a man of strong mentality, even to within a short time before his death and the evidence of the plaintiffs was wholly insufficient to disclose a lack of testamentary capacity at the time of executing the will.
Appellants base their main ground of reversal upon an alleged undue influence exercised over the deceased by Grace Thrush, his niece. There is no evidence whatever that Allen Brown exercised any influence over him, and the evidence adduced upon the part of the plaintiffs with respect to the alleged influence exercised by Grace Thrush in this case falls far short of that required by the established rule. The principal facts proved by the contestants were that after the death of his second wife, and before she was buried, two witnesses claimed they were seated in an automobile near the house after dark, and overheard Grace Thrush talking to her uncle, the testator, on the porch, and that she told him that if he would make a will in her favor she...
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