Potter v. Potter
| Decision Date | 30 April 1866 |
| Citation | 1866 WL 4541,41 Ill. 80 |
| Parties | JAMES M. POTTER et al.v.JOHN POTTER et al. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.
This was a suit in chancery commenced by James M. Potter, Ephraim Potter, Mary Spicer, William Potter, Sterling Potter and William Potter, to the April Term, 1864, of the Woodford Circuit Court, against John Potter, William Potter, Albert Potter, Sereney Warner, Sinford Warner, Martha Warner, Joseph B. Warner, Catharine Harner, James Harner, Albert Potter and Marian Potter. The bill charges that the will to impeach which it was filed was procured to be made by the devisees and legatees named therein.
The defendants answered, admitting the execution of the will, but denying all fraud, conspiracy and undue influence, and insisting upon its validity,--that it was legally executed and made by testator of his own free will and accord.
A replication was filed, and an issue of fact was formed, whether the instrument was the last will and testament of deceased. A trial was had by the court and a jury, who, after hearing the evidence, and being instructed by the court, found this verdict: “We, the jury, find the will in controversy to be the last will and testament of Ephraim Potter, deceased.” Complainants entered a motion for a new trial, which the court overruled, and rendered a decree dismissing the bill, to reverse which they prosecute this writ of error.
Messrs. CLARK & CHRISTIAN, for the plaintiffs in error.
Mr. A. E. STEVENSON and Mr. JOHN BURNS, for the defendants in error. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:
This was a suit in chancery, commenced by plaintiffs in error, in the Woodford Circuit Court, against defendants in error, for the purpose of setting aside and canceling a will under which defendants claimed to hold certain real estate described in the bill. It appears that Ephraim Potter, on the 11th day of December, 1860, executed an instrument in writing purporting to be his last will and testament. That he died in January, 1861, leaving complainants and defendants as his heirs at law. By that instrument he divided his real estate, and bequeathed his personal property to his widow and to a portion of his heirs, who were made defendants to this bill. The bill alleges, that the will was not dictated or written by deceased, but was dictated in part by Abram Potter, by J. A. Hays, and in part by Elizabeth Potter, his widow, and still another portion by Marian Potter. That Abram, Marian and Elizabeth entered into a conspiracy to have the will drawn as it now appears, and thus to obtain the property to the exclusion of complainants. That deceased did not sign the will, or cause it to be signed, nor did he acknowledge it to be his will, or request any person to attest it as a witness. That Elizabeth, Abram and Marian Potter exercised an undue influence over deceased in his life-time to procure the execution of the will, and that it was made under such influence. The will was probated in the County Court, and L. P. Heriford was duly appointed executor of the will, and was acting as such when the bill was filed.
Defendants filed their answer, in which they allege, that the will is in due form of law; that decedent procured the same to be drafted; that he executed it, and that it was duly witnessed by J. A. Hays and W. H. Cummings; that they attested it at his request, in his presence, and in the presence of each other; that deceased was illiterate and unable to write, but executed it by making his mark. They deny all conspiracy, and all fraud and undue influence, but insist that it was made of the free will of deceased. They deny that any of them dictated the will or any portion thereof. They allege that testator caused his name to be signed to the will, after which he made his mark. A replication was filed to the answer, and an issue of fact was formed and submitted to a jury, who found in favor of defendants, and thereupon the court below dismissed the bill.
On the hearing, the court admitted the original affidavit of the proof of the execution of the will, which was filed in the County Court, as evidence to the jury. It is insisted that in this the court erred, as a certified copy, and not the original, is evidence. The paper was proved by the clerk of that court...
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