Pendlay v. Eaton

• Decision Date: 31 October 1889
• Parties: PENDLAY et al. v. EATON et al.
• Court: Illinois Supreme Court

130 Ill. 69

22 N.E. 853

PENDLAY et al.

v.EATON et al.¹

Supreme Court of Illinois.

Oct. 31, 1889.

Error to circuit court, Effingham county; WILLIAM C. JONES, Judge.

TESTAMENTARY CAPACITY-BURDEN OF PROOF.

When the evidence on the issue of testamentary capacity is conflicting, it is prejudicial error to charge that upon the whole case the burden is upon the proponent to establish the testator's sanity; the true rule being that, after establishing sanity by the subscribing witnesses, the legal presumption that every man is sane casts the burden on the contestant to show the contrary. Following Wilbur v. Wilbur, 21 N. E. Rep. 1076.

S. F. Gilmore, Wm. B. Wright, and Wood Bros., for plaintiffs in error.

R. C. Harrah and E. N. Rinehart, for defendants in error.

CRAIG, J.

This was a bill in equity, brought by a portion of the heirs of Andrew Pendlay against his widow and son Robert N. Pendlay, to set aside an instrument in writing purporting to be the last will and testament of Andrew Pendlay, deceased, on the ground that the testator was not of sound mind and memory, and was wholly incapable of making a will, and upon the further ground of undue influence exercised over the testator by his son Robert N. Pendlay. The defendants put in an answer to the bill, and the court directed an issue to be made up whether the writing referred to in the bill and answer, purporting to be the last will and testament of Andrew Pendlay, was his last will and testament or not. On a trial of the issue before a jury a verdict was returned that ‘the said Andrew Pendlay, at the time of making said will, was not of sound mind and disposing memory, and capable of making a will, and that the will in controversy is not the will of said Andrew Pendlay.’ The court overruled a motion for a new trial, and decreed that the instrument in writing, purporting to be the last will and testament of Andrew Pendlay, deceased, and the probate thereof, be set aside, and declared null and void. From that decree defendants sued out this writ of error.

It appears, from an examination of the record, that the testator was a resident of Jackson township, Effingham county. On February 27, 1888, he became sick. He gradually grew worse, until Saturday, March 3d, when he died. The will in question was executed on Friday, the day before his death. By the terms of this will, the testator gave to his wife such interest in his estate as she would take under the statute of descents had no will been made, and all the rest of his property he devised to his son Robert N. Pendlay. Whether the testator at the time of making the instrument purporting to be his last will and testament possessed the necessary testamentary capacity to make a valid will is a question upon which the evidence is conflicting, and, as the facts of this case will have to be passed upon by another jury, we refrain from expressing any opinion on the weight of the evidence.

It is contended that complainants' second instruction is erroneous, because isolated portions of the evidence are singled out and brought prominently before the jury. One charge in the bill was that the will was executed through the undue influence of the defendant, and this instruction related to that branch of the case. The jury, however, did not find against the will on that question, and, while we think the instruction was erroneous, it is manifest, from the verdict, that it did no harm,...