Pyle v. Pyle

• Decision Date: 16 October 1895
• Citation: 41 N.E. 999,158 Ill. 289
• Parties: PYLE et al. v. PYLE et al.
• Court: Illinois Supreme Court

158 Ill. 289

41 N.E. 999

PYLE et al.

v.PYLE et al.¹

Supreme Court of Illinois.

Oct. 16, 1895.

Appeal from circuit court, St. Clair county; Benjamin H. Canby, Judge.

Bill by Mary Pyle and others against Joseph Pyle and others to set aside an alleged will of Harrison Thompson, deceased. Complainants obtained a decree. Defendants appeal. Reversed.

The fourth, sixth, and ninth instructions given at the request of the complainants were as follows: ‘(4) The court instructs the jury that, if you believe from the evidence that about seven years before the execution of the paper in question Harrison Thompson was insane, and was treated by his family physician for insanity, and that the cause of such insanity was the bringing of a lawsuit against him, Harrison Thompson, in court, and that said lawsuit was not finally settled and determined until after the execution of the said paper in question, and during the time said suit was pending and undetermined in the court the said Harrison Thompson was an old man; and if you further believe from the evidence that said Harrison thompson worried over said suit, to the extent that it unbalanced his mind, and finally caused him to commit suicide,-then, if you also believe from the evidence that the suit in question had dethroned the reason of Harrison Thompson at the time of the execution of the supposed will in question, and that said Harrison Thompson was of unsound mind and memory when he executed the same, then it is your duty to find the paper in question to be not the will of Harrison Thompson, and your verdict should be in favor of the complainants.’‘(6) The court instructs the jury that, in determining whether the paper in question offered as a will is entitled to be so regarded, the paper itself may be considered, in connection with all the other evidence in the case, in determining the question of sanity or unsoundness of mind. And if the jury believe, from the evidence, that the deceased, Harrison Thompson, before executing the said pretended will, had expressed any fixed purposes and intentions regarding the disposition of his property at variance with the provisions of the alleged will,-that is to say, if the said Harrison Thompson had, previous to executing the paper in question, expressed his intention of doing equally by his children in his will, when in fact he did not distribute his property in his will equally,-then the jury may consider whether or not the provisions of the will are inconsistent with sanity itself, and with his previously expressed and fixed purposes; and if the jury find that they are so, then these facts, also, may be weighed by the jury in determining the question of sanity or unsoundness of mind of the said Harrison Thompson at the time of executing the paper in question.’‘(9) If you believe from the evidence that, some years before his death, Harrison Thompson was bitten by a horse, and immediately thereafter had a severe attack of sickness, and also met with business troubles, in consequence of which he lost his reason and became insane; and if you believe from the evidence that he continued insane, and finally committed suicide while insane, and if his will was made but eight months before such death from suicide; and if you believe from the evidence that he was insane at the time of making said will,-then your verdict should be against the will, and in favor of the complainants.’Fred. B. Merrills, guardian ad litem, and Wilbur N. Horner, for appellants.

Hamill & Borders, for appellees.

BAKER, J.

This is a bill in chancery filed by Mary Pyle and others against Joseph Pyle and Charles Pyle, executors of Harrison Thompson, deceased, and against the several devisees and legatees under the will of said Thompson, for the purpose of setting aside said will and the probate thereof, and having said will declared void and of no effect, and not to be the last will and testament of the said deceased. The charges in the bill are: A want of mental capacity in said Harrison Tompson to make a will; and undue influence. The issues joined between the parties were submitted to a jury, and the jury returned a verdict that the instrument of writing produced was not the last will and testament of Harrison Thompson, deceased.Motions for a new trial were overruled, and the court rendered a final decree against the validity of the supposed will, and setting aside the same and the probate thereof, and declaring the same to be null and void. Thereupon this appeal was taken. Joseph Pyle and Charles Pyle, the executors, have assigned errors, as have also Millard Thompson, Willard Thompson, and Samuel Thompson, infants, by their guardian ad litem.

First. It is objected that Edward Rogers, a minor, was a necessary party to the suit; that, although he was made a party to the bill, yet he was not served with process; and that the fact that a guardian ad litem was appointed and answered for him does not cure the error. In the transcript of the record certified by the clerk of the circuit court of St. Clair county on the 17th day of April, 1894, it does not appear whether the summons dated August 8, 1893, was or was not served on said Edward Rogers. But it appears from the amended or supplemental record certified by said clerk on the 7th day of May, 1894, and filed herein by leave of court, that said summons was duly served on said Edward Rogers on the 9th day of August, 1893. The clerk certifies the summons and return contained in said amended transcript ‘to be a true and correct copy of the summons issued to the September term, A. D. 1893, and the sheriff's return thereon as amended since certifying to the original record in this cause, as the same now appears on file in my office.’ It must be presumed that the amendment to the sheriff's return was properly and lawfully made, and that said Edward Rogers was duly in court when his guardian ad litem was appointed and answered.

Second. It is assigned for error both by the appellants Joseph Pyle and Charles Pyle, executors of Harrison Thompson, deceased, and by the appellants Millard Thompson, Willard Thompson, and Samuel Thompson, that a final decree was rendered in the cause without any answers being filed by or for the defendants James Thompson and Mamie Thompson, or either of them, and without any default being taken against them or either of them. It is undoubtedly an error of which a defendant may avail himself, that a final decree was entered against him without his having answered the bill, and without entering his default, and taking the bill as confessed. Blair v. Reading, 99 Ill. 600;Wilson v. Spring, 64 Ill. 14;Crabtree v. Green, 36 Ill. 278. But James Thompson and Mamie Thompson are not here assigning errors. They have not appealed, and are not complaining of the decree. The rule is that appellants cannot allege errors which relate exclusively to parties who are not complaining and are not before the court. Tibbs v. Allen, 27 Ill. 119;Richards v. Greene, 78 Ill. 525;Clark v. Marfield, 77 Ill. 258;Van Valkenburg v. Trustees, 66 Ill. 103. At the most, there was simply judicial error, of which James Thompson and Mamie Thompson alone could avail; and they having been duly served with summons, the court had jurisdiction of their persons, and the decree against them was not a nullity. Town of Lyons v. Cooledge, 89 Ill. 259.

Third. James Rogers was examined as a witness for the complainants. This was done over the objection of the solicitors for both the executors, and for Millard, Willard, and Samuel Thompson, that he was a party to the suit, and also the husband of Ellen Rogers, who is one of the heirs and also a devisee under the will. It is suggested that James Rogers had no interest in the suit other than an inchoate right of dower, and that such interest would not disqualify him from testifying as a witness. The first of the objections urged against his competency was not that he was interested in the result of the suit, but that he was a party to the suit. If the only objection to his competency had been his interest in such result, then, since his interest by way of an inchoate right of dower was uncertain, remote, and contingent, and not a present, certain, and vested interest, it would seem that such objection would not have been well taken, either at common law or under the statute. 1 Greenl. Ev. (15th Ed.) § 390. But the rule of the common law is that a party to the record, in a civil suit, cannot be a witness either for himself or for a cosuitor in the cause. Id. § 329. And under sections 1 and 2 of the act in regard to evidnece and depositions in civil cases (Rev. St. 1893, c. 51), no party to a civil suit can be allowed to testify therein when any adverse party sues or defends as the executor, devisee, or legatee of any deceased person, unless when called as a witness by such adverse party so suing or defending. It is true that such witness was called by the complainants, and that said complainants in their bill made him a party defendant, but all the interest he had in the subject-matter of the suit, i. e. an inchoate right of dower, was on the side of the complainants, who were endeavoring to set aside the will of the deceased, and adverse to the rights of the executors and those of Millard, Willard, and Samuel Thompson and their guardian ad litem, over whose objections he was permitted to testify. It is immaterial that neither he nor his wife, Ellen Rogers, was joined as a party complainant, and that both were named as parties defendant. Simply naming them as defendants instead of complainants did not make them parties adverse to the complainants. A court of equity will disregard the mere matter of form as to whether they are named in the pleadings as complainants or defendants, and will look to the substance of the matter, and see on which side of the controversy their real interest lies. Otherwise it would be easy to evade the law, and the force and effect of the statute....