Moyer v. Swygart

• Decision Date: 16 June 1888
• Citation: 125 Ill. 262,17 N.E. 450
• Parties: MOYER et al. v. SWYGART.
• Court: Illinois Supreme Court

125 Ill. 262

17 N.E. 450

MOYER et al.

v.SWYGART.

Supreme Court of Illinois.

June 16, 1888.

Error to circuit court, Lee county; WILLIAM BROWN, Judge.

Bill to set aside an alleged will. The third, fourth, fifth, and sixth instructions given at complainant's request were as follows: ‘(3) The court instructs the jury that the burden of proving the paper read in evidence to be the will of said John Moyer is upon the defendants. (4) The court instructs the jury that it is not for the complainant to prove that the paper read in evidence is not the will of said John Moyer, but it is for the defendants to prove that said paper is the will of said John Moyer; and, if the defendants have failed to prove that said paper is the will of said John Moyer by a preponderance of the evidence in the case, then the jury should find the issue for the complainant. (5) The court instructs the jury that the mere fact that said John Moyer signed his name to said paper does not of itself prove that said paper is the will of said John Moyer. (6) The court instructs the jury that, before the jury can find that the paper read in evidence is the will of said John Moyer, it must appear from a preponderance of the evidence that said Moyer was of sound mind and memory, and did not execute the paper read in evidence as his will under undue influence at the time he signed said paper, if the jury believe from the evidence that he did sign it.’ The testimony of decedent's physician as to the conversation referred to in the opinion was as follows: ‘Was there on the 24th of March. Had conversation on some occasion with Mr. Moyer concerning the length of time he might live. Couldn't specify whether it was on the 24th or not. I told Mr. Moyer his condition; that the chances were decidedly against him; he couldn't get well; that the time was limited with him. He looked up at me rather quizzically, and wanted to know if it might not be possible for him to live to bury me yet. I told him it was barely possible, but I didn't think it probable.’ The jury found for the complainant, and defendants bring error.Sherwood Dixon

, for plaintiffs in error.

W. & W. D. Barge, for defendant in error.

SCOTT, J.

This is a bill in chancery, brought by Caroline Swygart against Jeremiah S. Moyer, John E. Moyer, Eva Kline, and John D. Crabtree, to contest and have set aside what is alleged to be the will of John Moyer, deceased. Complainant is the only surviving daughter of decedent, and the other defendants, except Crabtree, are his only other heirs at law. It appears from the record the estate of decedent was of about the value of $30,000, and consisted of a farm of about the value of $10,000 or $12,000, and the balance consisted of notes, bonds, and other securities, and some few articles of personal property. The alleged will gave to Jeremiah S. Moyer the entire farm, and a horse, carriage, and harness. No mention is made of the residue of his estate, and as to that, of course, decedent died intestate. Nor is any mention made of any of his heirs other than his son Jeremiah S. Moyer, to whom he gave his farm, and the articles of personal property enumerated. It is alleged in the bill that, at the time of the making of what is claimed to be a will, decedent was not of sound mind and memory, but, on the contrary, he was in his dotage, and his mind and memory so impaired as to render him wholly incapable of making any distribution of his estate, and that the making of the will which proponents insist upon maintaining was procured by the fraudulent practices and undue influence of defendant Jeremiah S. Moyer. These matters are amplified, as is usually done in stating the facts upon which a party relies for equitable relief. The answers of defendants admit only the formal charges of the bill, as to which no controversy exists; but deny all improper conduct on the part of Jeremiah S. Moyer, and insist the provisions of the will were not the results of undue influence, but of the deliberate judgment of decedent, and made by him in ‘pursuance of a long-cherished purpose.’ As the statute directs shall be done, the circuit court caused an issue to be made up ‘whether the writing produced be the will’ of John Moyer, deceased. That issue was submitted to a jury chosen under the direction of the court, who found, from the evidence adduced at the trial, ‘the writing read in evidence is not the will of said John Moyer, deceased.’ On the coming in of the verdict, defendants made a motion for a new trial. That motion the court overruled, and entered a decree setting aside the writing purporting to be the last will and testament of John Moyer, deceased; and the probate thereof in the county court, and all proceedings had thereunder, were declared null and void. The proponents of the will bring the case to this court, and have assigned a number of errors on the record, the most important of which is, ‘the verdict is manifestly against the evidence,’ and for that reason the motion for a new trial should have been allowed.

The rule is, on questions of this kind, the finding of the jury is conclusive unless clearly against the weight of the evidence, and in this respect they are put upon the same footing with cases at law. Another rule of law is equally as well settled by the previous decisions of this court. It is, where there is an irreconcilable conflict in the testimony touching the facts upon which the validity of the will depends, this court will not reverse the decree of the lower court if the evidence of the successful party, when considered alone, is clearly sufficient to sustain the verdict. The practice in that respect has been uniformly adhered to in this court, and no reason is perceived why it should be departed from in the case being considered. Nothing can be plainer than, if the case had been submitted on the testimony introduced by the contestant alone, the jury would certainly have found that, at the time of the writing purporting to be the will of decedent, he was too feeble, both in body and mind, to transact any business that required thought or the exercise of judgment, and that the making of the writing was procured by the sole devisee named in that instrument. It was shown he had personal estate, consisting of bonds and notes, and perhaps some money, as to which he made no disposition whatever. Nor did he make any reference to contestant, who was his only daughter, or to the children of his deceased son. The testimony as to his mental condition does not all come from parties in interest. Others, having no interest whatever in the subject of the litigation, visited decedent during his last sickness, and they state that, at or about the time the alleged will was written, he was too feeble mentally to comprehend much if anything; and it seems certain he had neither mental nor physical strength to withstand for any considerable time the importunities with which the testimony tends to show he was plied to devise the farm to his son. Whether there was any foundation for it or not, it is certain decedent, long before his last sickness, was greatly worried with what he alleged were the importunities of his son to make a will and give him the farm. He seems to have labored under the belief, if he did not comply with his son's wishes in that respect, he would serve some sort of papers upon him that would deprive him of the use of his property. It is possible the jury may have believed this was not a mere insane delusion. It is certain he had that belief, whether there was any ground for it or not. Many other things are proved of the same character; all tending to the conclusion decedent was importuned by his son, and perhaps others by whom he was surrounded, to give the farm to the son named in the alleged will. That there is evidence tending to show decedent frequently declared he was constantly urged by his son to make a will by which his son would get the farm cannot be doubted; and the jury may have believed that in his last sickness, when feeble in mind and body, he was induced to comply, or at least to try to comply, with the urgent wishes of his son as to the farm. This theory of the case finds some support, at least, in the fact this pretended will devises no property to any one except to this son, and only the same property which decedent in his utterances, whether sane or insane, always claimed his son insisted he should have, and that he should give it to him by will. It is not practicable to restate every fact in evidence that tends, in a greater or less degree, to support contestant's theory of the case. But a close study of the evidence shows past all doubt, if the record contained no testimony other than that given by contestant, the verdict would be amply sustained, and, under the previous decisions of this court, it should stand.

The only remaining inquiry on this branch of the case is, does the testimony offered by the proponents to sustain the will so far preponderate over the testimony introduced by contestant that the verdict, for that reason alone, should be set aside, and the cause resubmitted to another jury? It is thought it does not. On this branch of the case the testimony is so voluminous it is hardly practicable to restate it in detail, nor is it necessary to do so. The devisee was a witness in his own behalf, and denies all improper practices attributed to him to induce his father to make a will giving him the farm. He also states the condition of his father's mind at the time the writing was executed to be such as would tend to show testamentary capacity. Although this witness is directly interested, in a pecuniary view, in the result of this litigation, there is no evidence that he is not a man of character, and is entitled to be treated as any other fair and candid witness. The evidence, as has been seen, is irreconcilably conflicting,-so much so that the jury had to determine, as well as could be done, which theory...