Purdy v. Hall

Citation25 N.E. 645,134 Ill. 298
PartiesPURDY v. HALL et al.
Decision Date31 October 1890
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from superior court, Cook county.

Bill by Minerva Hall Purdy against Edgar A. Hall, Zebulon M. Hall, Sarah B. Hall, Bessie E. Hall, Harry V. Hall, Frederick Wolcott Barber, Mary Barber Gulick, Ellen Nelson, James Dart, Emma Dart Pitkin, Charlotte E. Dart Vinton, Frederick J. Dart, Florence R. Dart and Bertha A. Dart, to contest the will of Loammi Hall, complainant's brother. The bill was dismissed at the hearing and complainant appeals.H. B. Hurd

, for appellant.

Brandt & Hoffmann and Comstock & Hess, for appellees.

BAKER, J.

With reference to the statutory proceeding to contest by bill in chancery the validity of a will, it is expressly stated in the statute (Rev. St. 1874, c. 148, § 7) that the issue shall be tried by a jury; and it follows that, in regard to the action of the court in taking the case from the jury and directing a verdict against the contestant, the same rule must be applied that obtains in respect to trials in suits at law. The rule in actions at law is that when the evidence given at the trial, with all the inferences that could justifiably be drawn from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Phillips v. Dickerson, 85 Ill. 11;Frazer v. Howe, 106 Ill. 573;Simmons v. Railroad Co., 110 Ill. 346. It is manifest, then, that if the evidence introduced by appellant was such that it would, in the absence of any rebutting testimony on the part of appellees, have justified a verdict in her favor, then the court erred in instructing the jury to return the verdict they did. And it is equally plain, that if the converse of this proposition be true, then there was no error in the action of the court.

There is some evidence in the record, but of quite an unsatisfactory character, tending to prove that the testator did not sign or acknowledge the will in the presence of two witnesses, and that it was not attested by two witnesses in the presence of the testator; and it is insisted by appellant that this evidence was sufficient to entitle her to have the question submitted to the jury whether the supposed will had been executed and attested as required by the statute. The trial in this suit was de novo, and the burden of proof was, primarily, upon the proponents of the will; and they were required to show that the will was in writing and signed by the testator, or by some person in his presence and by his direction, and was attested in his presence by two or more witnesses, and that the testator was of sound mind and memory at the time of signing or acknowledging the same. Rigg v. Wilton, 13 Ill. 15;Carpenter v. Calvert, 83 Ill. 62;Tate v. Tate, 89 Ill. 42;Moyer v. Swygart, 125 Ill. 262, 17 N. E. Rep. 450. The statute expressly provides that at the trial the certificate of the oath of the witnesses at the time of the first probate shall be admitted as evidence. When the proponents put in evidence the testimony of the attesting witnesses given when the will was probated, covering the points prescribed by section 2 of the statute of wills, then the competency of the testator to make a will, and the fact that the will in controversy was signed and attested as required by the statute, were prima facie established. The burden of proof then shifted to the shoulders of the complainant, who was seeking to impeach the validity of the will. Holloway v. Galloway, 51 Ill. 159;Buchanan v. McLennan, 105 Ill. 56;Keithley v. Stafford, 126 Ill. 507, 18 N. E. Rep. 740. The rule which prevails in this state is that, when a bill in chancery is filed for the purpose of setting aside the probate of a will, the complainant of such bill can impeach the prima facie case made in favor of the validity of the will only upon the particular grounds of objection that are alleged in the bill of complaint. In Carmichael v. Reed, 45 Ill. 108, the bill charged mental incapacity and undue influence; and the jury found against the will, but upon the ground which was insisted upon by complainants in their proofs,-that the testator had made two wills, one of which was and the other was not properly attested, and that the wife of the testator, for sinister purposes, when directed by the testator to produce for attestation one of these wills, fraudulently produced the other, so that the will of February, 1865, instead of the will of August, 1865, received the proper attestation. The decree was reversed and it was there said: ‘It is sufficient to say, in answer to this ground of claim, that it is nowhere alleged in the bill there was such a substitution of wills, nor any allusion to such a fact, nor is the bill in any sense predicated upon such a fact, but simply upon the grounds of undue influence and incapacity to make a will. * * * The complainants could not prevail on the fact of substitution, if proved, as it is not alleged in the bill They are not permitted to state a case one way in their bill, and make another and a different case by the testimony.’ Flinn v. Owen, 58 Ill. 111, is a still stronger case in affirmance of the rule above suggested. The allegations in the bill were undue influence of the wife, and that, after procuring the execution of the will, she obtained possession of it; that the testator desired to destroy it, which she promised to do, and subsequently told him she had destroyed it, upon which assurance he relied. The bill also contained another allegation, the substance of which was that the so-called will was illegally executed because the subscribing witnesses did not attest it in the presence of each other. The question to which the evidence was directed, and on which the case was submitted to the jury by the instructions, was whether both the subscribing witnesses, one of whom was dead, had signed the will in the presence of the testator. The decree was reversed, and the court said: ‘The allegata and probata must correspond.’ And further said: ‘There were no facts averred in the bill to which the evidence that controlled the case properly applied. The allegation was, in substance, that the witnesses did not sign in the presence of each other, and the evidence offered was to show they did not sign in the presence of the testator.’ It will be noted that the point, the negative of which was not averred in the bill, was one which the proponents of the will were obliged in the first instance to show affirmatively in making out this prima facie case. The rule that imposes upon the assailants of a will the duty of stating in their bill of complaint the ground upon which it is claimed that the will which has already been admitted to probate is invalid, is eminently just and equitable, since it enables those who claim under the will to prepare for trial upon the real issues upon which the controversy is to be decided, and prevents them being taken by surprise by the testimony introduced. It is not perceived that it was the legislative intention, in giving this statutory remedy by bill in chancery, to change the rule which prevails in respect to other bills in chancery,-that a complainant can not state one case in his or her bill of complaint and prove another and...

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