Norton v. Clark

• Decision Date: 03 April 1912
• Parties: NORTON v. CLARK et al.
• Court: Illinois Supreme Court

253 Ill. 557

97 N.E. 1079

NORTON

v.CLARK et al.

Supreme Court of Illinois.

Feb. 23, 1912.

Rehearing Denied April 3, 1912.

Appeal from Circuit Court, Knox County; George W. Thompson, Judge.

Suit by Edith Tenley Norton against George H. Clark and others to set aside the probate of the Will of Sarah A. Tenley, deceased. From a judgment for complainant, defendants appeal. Reversed and remanded.Edward J. King and Walter C. Frank (Fletcher Carney, of counsel), for appellants.

Chiperfield & Chiperfield, Charles J. Trainor, and Addison J. Boutelle, for appellee.

CARTWRIGHT, J.

The appellee, Edith Tenley Norton, is the daughter and only heir at law of Sarah A. Tenley, who died at the age of 59 years on October 23, 1909, under a surgical operation for the removal of a tumor, in the hospital at Galesburg. Three days before her death and in contemplation of the expected operation, she executed her last will and testament, by which she bequeathed to appellee $500, to her nephew, Roy W. Burden, $10,000, to three friends $100 each, and to another friend $200, and gave the remainder of her estate to her son-in-law, George H. Clark, who had been the husband of appellee but had been divorced from her. The will was admitted to probate, and appellee filed her bill in the circuit court of Knox county against the appellants, who were the legatees and devisee under the will, and the executor of the will, to set it aside, alleging that at the time of its execution the testatrix was not of sound mind and memory, and that she executed it under undue influence exercised by George H. Clark. Aside from general charges of undue influence, the specific fact alleged was that the testatrix and Clark for many years had maintained illicit relations with each other, and that Clark threatened to expose such relations to the public unless the testatrix yielded to him and executed the will by bequeathing to him the greater part of her estate. Answers were filed denying the charges of mental incapacity and undue influence, and an issue was formed and submitted to a jury whether the writing was the will of the testatrix. The jury returned a verdict that the writing was not her will, and the court, after overruling a motion for a new trial, entered a decree setting aside the will. From that decree an appeal was taken to this court.

Sarah A. Tenley was the wife and widow of James M. Tenley, a merchant at Farmington, Ill. They had one daughter, the complainant, Edith Tenley Norton, who was married about the year 1887 to the defendant George H. Clark. From the time of the marriage the parties all lived together as one family, and in January, 1889, a child was born of the marriage. About 1893 the complainant went to a medical school at Keokuk, Iowa, and in the same year and about the time of the World's Fair she went to Chicago, where she has since resided. Her husband, the defendant Clark, was in the shoe business in Farmington and continued to live with the family. The child also lived there most of the time, but was with his mother in Chicago awhile, and after returning to Farmington died on April 14, 1895. The complainant attended a medical school in Chicago and graduated in 1897, and since that time has practiced medicine in Chicago. She never returned to Farmington except as a visitor or temporarily. She obtained a divorce from Clark in 1902, and in 1904 was married to her present husband, Fay Norton. After the complainant left home, the relations between her and her mother were always friendly, except when Clark was involved. She was at enmity with him, and, at least after the divorce, she objected to his being at the home or having anything to do with the family, and when he was there she would not go there. Clark continued to live in the family until about 1895, when he sold out his shoe business and left Farmington. After that he was a commercial traveler or in business in Chicago, and in 1904 he was married again, and after that his residence was on a farm near Beloit, Wis. He came to Farmington occasionally and stopped at the Tenley home, and was called for at different times and always responded by coming and rendering any service required. In October, 1907, James M. Tenley, whose left side was paralyzed, was advised to go to California, and he insisted that Clark should go to Farmington and accompany him and the testatrix. Clark complied with the request, and while in California James M. Tenley died on December 27, 1907. The testatrix continued to live at Farmington until the fall of 1908, when she moved to Galesburg and resided there until her death. During the time that Clark lived in the Tenley family the testatrix had severe spells of sickness, one of them lasting 8 or 10 weeks, and Clark was accustomed to take care of her. He performed several disagreeable services which are usually performed by nurses of the same sex, and took turns with the doctor or others in sitting up nights or getting up during the night and performing these services, which usually fell upon him because of the difficulty of obtaining help for that purpose in Farmington, a place of about 2,000 inhabitants. During these ministrations he was often in her room in his night clothes, and when she was not ill it was their custom to kiss each other when they met in the morning. They were accustomed to say, ‘Good morning,’ and he always called her ‘mamma,’ and she called him ‘George,’ or ‘George, dear,’ and that was the time when they were in the habit of kissing each other. He usually spoke of her to others as ‘mamma.’ Under the will of James M. Tenley, she received half of his estate, and the complainant received the other half; each share being about $60,000. After the death of James M. Tenley, in December, 1907, the property was in the hands of the executor until the settlement of the estate. After the death of James M. Tenley, the testatrix made 8 or 10 wills, in all of which Clark was the principal beneficiary. She died owning personal property amounting to $55,000 and real estate worth $4,000. The will in question was executed on October 20, 1909, and two days before that she made a will giving $10,000 to the complainant, $5,000 to Burden, $5,000 in trust to the Burden children, and the balance to Clark. On the same day that will was executed, Fay Norton, husband of complainant, notified Alfred C. Steenburg, executor of the will of James M. Tenley and banker of the testatrix, who had much to do with her business and who drew all her wills except the last two and is executor of the will now in question, that a bill would be filed by the complainant, Mrs. Norton, in the circuit court of Fulton county, on that day for the recovery of money from Clark alleged to have been given him by James M. Tenley; that there would be three days before the statements made in the bill would be made public, and prompt action would have to be taken; and that the charges of the bill were very damaging to the character of the testatrix, mother of the complainant therein. Steenburg called up the testatrix by telephone and advised her of the information he had. On October 20, 1909, the testatrix made the will in question and told the witnesses that a short time had made a great change in her plans. For about 15 years before her death she suffered from a fibroid tumor of the uterus, and of late it had grown to great size, so as to weigh from 15 to 25 pounds, and it had progressed to a point where she could not live very long unless an operation was performed. The surgeon told her that she had one chance in a hundred to live through the operation, and she said she would take the chance. She died in the hospital immediately after the operation. Clark was not present when the will was drawn and had nothing to do with its preparation, but asked the witnesses to attend and act as witnesses to the will. There was much testimony about the relations of Clark with James M. Tenley, but those matters had no relevancy to the issue. The relations of Clark with James M. Tenley, or how he treated him, or whether he sought to obtain, or did obtain property from him, were not material to the decision of the question whether he exercised undue influence over the testatrix.

At the conclusion of the evidence the defendants asked the court to direct a verdict in their favor on the ground that there was no evidence of mental incapacity or undue influence, which the court refused to do. On the question of mental capacity there were about 25 witnesses who had been well acquainted with the testatrix and had good opportunities to know her mental capacity, who testified that she was of sound mind and memory. About one-fifth as many, most all of whom had seen the testatrix for short periods of time in Chicago but who qualified to give an opinion, thought she was of unsound mind. Their opinions, however, were based on what she said and did during difficulties and controversies between her and her daughter about Clark, and had no relation to her ability to comprehend business affairs or manage her property. No fact was testified to which would show any want of mental capacity or inability to transact business or any deviation from the usual workings of a sane mind, but there were opinions of several witnesses that she was not of sound mind. Although a verdict for the complainant upon that issue would have been against the clear preponderance of the evidence and would not have been permitted to stand if the court had been authorized to weigh the evidence, there was sufficient testimony for the complainant to permit the jury to pass upon the question. The court was also justified in submitting to the jury the question of undue influence, and there was no error in refusing to direct a verdict.

[2] The physician of the testatrix testified to a conversation with her in which she said that her daughter had charged her with conduct of which she was perfectly innocent, and he replied that he would pay no...