Page v. Maxwell.

• Decision Date: 13 November 1886
• Citation: 8 N.E. 852,59 Am.Rep. 395,118 Ill. 576
• Parties: PAGEv.MAXWELL.
• Court: Illinois Supreme Court

118 Ill. 576

8 N.E. 852

59 Am.Rep. 395

PAGE

v.MAXWELL.

Supreme Court of Illinois.

November 13, 1886.

Appeal from appellate court, First district.

G. W. Smith, for appellant.

A. B. Jenks and Wallice & Smith, for appellee.SCHOLFIELD, J.

Joseph P Maxwell died in Cook county on the twenty-second day of September, A. D. 1876, leaving surviving him a widow, Sarah J. Maxwell, and several children. No will being discovered at the time of his death, administration of his estate was granted to Benjamin V. Page and Sarah J Maxwell. On the twenty-sixth day of October, A. D. 1881, Sarah J. Maxwell having discovered, as she alleged, within a few days of that time, that Joseph P. Maxwell made a last will and testament on or about the first day of August, A. D. 1876, which he left unrevoked at the time of his death, presented her petition to the probate court of Cook county that the same might be probated. The probate court made an order admitting the alleged will to probate, and that order was affirmed on appeal to the circuit court of Cook county. An appeal was prosecuted from the order of the circuit court to the appellate court of the First district, and that court affirmed the judgment of the circuit court. The case is now before us by appeal from the last-named judgment.

It is provided in our statute of wills, (Rev. St. 1874, p. 1101,) in section 2, that ‘all wills, testaments, and codicils * * * shall be reduced to writing, and signed by the testator or testatrix, * * * and attested, in the presence of the testator or testatrix, by two or more credible witnesses. * * *’ And section 6 provides that in ‘all cases where any one or more of the witnesses to any will, testament, or codicil, as aforesaid, shall die or remove to parts unknown to the parties concerned, so that his or her testimony cannot be procured, it shall be lawful for the county court, or other court having jurisdiction of the subject-matter, to admit proof of the handwriting of any such deceased or absent witness, as aforesaid, and such other secondary evidence as is admissible in courts of justice to establish written contracts generally, in similar cases; and may thereupon proceed to record the same as though such will, testament, or codicil had been proved by such subscribing witness or witnesses in his, her, or their proper person.’ This, it will be observed, is not restricted to cases where the will is actually produced before the court. The language applies to all cases wherein a witness to the will or codicil dies. And the same reason that would exclude it from lost or destroyed wills would exclude the language requiring wills to be witnessed by two or more witnesses from such wills. But all wills are to be attested in the same way, and the only difference between wills that are produced in open court and those that have been lost or destroyed, is in the mode of proving their contents. The will that is produced shows what its contents are; but secondary proof must be made of the contents of a lost or destroyed will.

That the contents of a lost or destroyed will may be proved by the testimony of a single witness is settled in England since decision in the great case of Sugden v. Lord St. Leonards, 17 Eng. R. (Moak's Notes) 453; and like ruling has obtained in this country. Dickey v. Malechi, 6 Mo. 177. And in this country the ruling in general is that a will may be established by one only of the attesting witnesses if he can testify to a compliance with the statute relating to its execution. Welch v. Welch, 2 T. B. Mon. 83; Dan v. Brown, 4 Cow. 483; Jackson v. Vickory, 1 Wend. 406; Lamberts v. Coopers' Ex'rs, 29 Grat. 61; Jackson v. Le Grange, 19 Jones, 386; Jauncey v. Thorne, 2 Barb. Ch. 40; Thornton v. Thornton, 39 Vt. 122. See, also, to like effect, in principle, Doran v. Mullen, 78 Ill. 342. And that the fact that the will is destroyed or lost makes no difference in this respect will be seen by Dickey v. Malechi, supra; Dan v. Brown, supra. Sugden v. St. Leonards, supra, also holds that declarations, written or oral, made by a testator after the execution of his will, are, in the event of its loss, admissible not only to prove that it has not been canceled, but also as secondary evidence of its contents. It has been held otherwise in New York; but this, in our opinion, is the more reasonable ruling. COCKBURN, C. J., in speaking of this question, among other things said: ‘In like manner, the declarations of a testator have been admitted to show the continuing existence of the will at the time they were made, and so to rebut the presumption of the will having been destroyed animo revocundi when the will, having remained in the custody of the testator, is no longer forthcoming. Thus, if a testator were to say: ‘When I am dead, you will find my will in such a place;’ or ‘I have left my estate of black acre to my son John;’ or ‘I have left £>>5,000 to my daughter Mary,’-such ‘similar declarations would be receivable’ in evidence to show that the will was, so far as was known to the testator, in existence at the time they were made.' And he then goes on to show that, upon like principle, such declarations are also admissible to prove the contents of the will; discriminating Doe v. Palmer, 16 Q. B. 747, and overruling Quick v. Quick, 3 Swab. & T. 442. To like effect, see, also, Hope's Appeal, 48 Mich. 518; S. C. 12 N. W. Rep. 682.

The evidence here is complete as to the due formal execution of the will. Mr. Tourtelotte, a prominent member of the bar of the city of Chicago, testified that about the first day of August, A. D. 1876, at the...