Pollock v. Pollock

• Decision Date: 21 December 1927
• Docket Number: No. 17803.,17803.
• Citation: 159 N.E. 305,328 Ill. 179
• Parties: POLLOCK et al. v. POLLOCK et al.
• Court: Illinois Supreme Court

328 Ill. 179

159 N.E. 305

POLLOCK et al.

v.POLLOCK et al.

No. 17803.

Supreme Court of Illinois.

Dec. 21, 1927.

Bill by Frances Pollock, administratrix, and others, against Joseph Pollock and others. From a decree for defendants, complainants appeal.

Affirmed.Appeal from City Court of Sterling; Irving L. Weaver, Judge.

John M. Stager and Carl E. Sheldon, both of Sterling, for appellants.

Jacob Cantlin, of Rock Falls, R. W. E. Mitchell, of Sterling, and Lawrence L. Winn, of Rock Falls, for appellees.

DE YOUNG, J.

Montgomery Pollock, a resident of Whiteside county, on October 18, 1916, executed an instrument purporting to be his last will and testament. The instrument was admitted to record by the county court of that county on July 6, 1923, and letters of administration with the will annexed were issued to Jacob Cantlin. Subsequently, a son, Robert Pollock, and his two children, Robert Pollock, Jr., and Dorothy Pollock, filed in the circuit court of Whiteside county their bill of complaint charging the lack of testamentary capacity and the exercise of undue influence to procure the execution of the instrument by the testator's three daughters, and praying that the instrument be set aside. During the pendency of the suit Robert Pollock died, and Frances Pollock, as administratrix of his estate, was substituted in his stead. By agreement of the parties a change of venue was taken from the circuit court of Whiteside county to the city court of Sterling. The suit was tried twice. At the conclusion of the contestants' evidence on the second trial the court granted proponents' motion to withdraw the issue of undue influence from the jury's consideration. A verdict was returned finding the instrument to be the last will of Montgomery Pollock. A motion for a new trial was made and denied, and a decree was rendered upon the verdict. From that decree the complainants prosecute this appeal.

Montgomery Pollock was born in Scotland, but had resided in Whiteside county for many years. He died on April 29, 1923, at the age of 92 years. Lena Pollock, his wife, was named as executrix of his will, but she died prior to his death. He had eight children, six of whom survived him. By his industry and frugality he had acquired 270 acres of land, besides certain personal property. About eight months before he executed the instrument in question he sold 240 acres of his land to his son-in-law, James F. Wetzell. He retained the remaining 30 acres. In 1917 he purchased a home in the city of Rock Falls, in Whiteside county, and occupied that home until his death. The value of his estate was about $30,000.

The only section of the instrument which makes disposition of property is the second. That section is as follows:

‘Second-After the payment of such funeral expenses and just debts, I give, devise and bequeath unto my beloved wife Lena Pollock the sum of Nine Thousand Dollers ($Five hundred dollers ($9500). Third to my son Joseph two thousand six hundred ninety-four dollers, fourth to my son Montgomery one thousand eight hundred dollers, fifth to my son William two thousand five hundred dollers, sixth to my son Robert five hundred dollers to be left in trust and he to have just the income during his life time after his death to fall to his son Robert, Jr, and his daughter dorthy. Also the S. E. of the S. E. sec. 25 Township 20 range 6 containing about 30 acres more or less, all to be keept in trust, said Robert Pollock to have the income during his life time after his death to go to above named hiers of his, seventh, to my dauther anna Johnson three thousand Five hundred dollers ($3500), to my dauther Mary David three thousand Five hundred doller ($3500) eight to my daughter Lena Wetzell three thousand five hundred dollers ($3500).

‘Codicil. That my sons Joseph, montgomery, William, and Robert, has already in the past Received the amounts or the Deference Between ($3500) and the Several amounts each has received as above Stated, therefore they are not justly intitled to any more From my Estate in the future.

‘also that my Executrix hereinafter named to collect the rent or the interest on the purchase price of land when same falls due.’

On the trial fifty-two witnesses testified-twenty-one in behalf of the proponents and thirty-one for the contestants. A number of the witnesses had been acquainted with the testator for many years. Some met him often, while others saw him occasionally. His eyesight was impaired, and he suffered from rheumatism for a considerable period, and this affliction confined him to his home more or less closely. John Pollock, a son, who lived with his father and died before the latter's death, had cancer and took laudanum to alleviate the pain. Some witnesses testified that the testator also used this drug. While John Pollock lived he transacted much, if not all, of his father's business. After his death, Wetzell, the son-in-law, took charge and received $100 annually for his services. Wetzell's original appointment was verbal, but later it was made in writing.

Fifteen witnesses either testified that they noticed no mental change in the testator, or that they believed him to be of sound mind, narrating facts upon which they based their opinions. Some of these witnesses testified that the testator transacted matters of business at or about the time the instrument in question was drawn; that he paid taxes, traded at a store and a grain elevator, bought a horse, kept a bank account and signed checks, executed an agreement, lease, mortgage, and notes, and sold the major portion of his farm to his son-in-law. Witnesses also testified that he spoke connectedly on current local questions to persons who visited him in 1915 and 1916.

From the testimony of contestants' witnesses it appeared that the testator failed to recognize persons with whom he was acquainted; that he showed no interest in discussions between persons; that he was forgetful; and that he had hallucinations. One witness testified that the testator imagined certain things which did not exist; that he stated that certain of his children were dead when they were alive; that he thought he saw post holes where none existed; that he saw children playing in a field when none were present; that he became confused very easily; that he could not realize his presence at a particular place; and that when away from home he would not know when to return. Other peculiarities shown by the testimony of contestants' witnesses were that the testator would often change his mind and wander from one subject to another and could not carry on a connected conversation; that he exhibited no grief at the funeral of his son John; that on one occasion he denied that he had sold his farm, and on another stated that he could not recollect any such transaction; that he was stupid and childish; and that he took laudanum. Assuming these facts, contestants' witnesses believed that the testator was of unsound mind and lacked testamentary capacity. The only expert testimony was that of a physician, who, when interrogated hypothetically, expressed the opinion that a person who used laudanum and exhibited the traits and peculiarities concerning which contestants' witnesses had testified was of unsound mind.

[1] Appellants contend that the court erred in withdrawing the issue of undue influence from the jury's consideration. None of the testator's children or grandchildren was present when he signed the instrument in question, and there is no evidence that any of them exerted any influence upon him, either directly or indirectly, to procure its execution. While it appeared that one or more of the children gave the testator laudanum, it was not done to affect or to defeat his purpose in the distribution of his property. Two of contestants' witnesses admitted that Anna Johnson, a daughter, tried to prevent her father's use of the drug, and that on one occasion she expressed sorrow that he had formed the habit. Nor does it appear that the testator followed the directions of his children at any time except once, when his son John handed him a lease and said, ‘Father, sign this.’ John was at the time in charge of his father's business affairs, and the lease was executed. Later, after John's death, Wetzell, the son-in-law, represented the testator. These facts do not tend to show that either John Pollock or Wetzell influenced the testator to execute the instrument, and the bill makes no such charge against them.

[2][3]On November 15, 1900, the testator made a will by which he gave all of his property to his wife, Lena, for life, with the remainder of his real estate to his sons William and Robert upon condition that they pay specified sums of money to certain other of his children. He made nominal bequests to his sons Joseph and John and gave the residue of his estate to his sons William and Robert. Appellants contend that this will should have been admitted in evidence because the material departures from it by the instrument in question would have a tendency to sustain the charge of undue influence. It is argued that Robert and William would have received a larger share of the estate under the earlier will, and that there is no evidence that the testator's attitude toward them was changed after that will was executed. The paragraph of the instrument in question denoted ‘Codicil’ expressly states the reason for the changes made. Robert and William and the other children named, it is stated, had previously received the difference between $3,500 and the sum bequeathed to each of them under the later instrument, and that they were not justly entitled to more. There was no evidence that the children named had not received the advances mentioned in the instrument in question. For the purpose of establishing that the testator had a constant and abiding scheme for the distribution of his property and thus to refute the charge of undue influence or the lack of testamentary capacity, the...