Reuben C. Rutherford Et Ux. v. Morris

• Citation: 77 Ill. 397,1875 WL 8332
• Parties: REUBEN C. RUTHERFORD et ux.v.MARY A. MORRIS et al.
• Decision Date: 31 January 1875
• Court: Supreme Court of Illinois

77 Ill. 397

1875 WL 8332 (Ill.)

REUBEN C. RUTHERFORD et ux.

v.MARY A. MORRIS et al.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Messrs. LAWRENCE, WINSTON, CAMPBELL & LAWRENCE, Messrs. SKINNER & MARSH, and Mr. WILLIAM MCFADON, for the appellants.

Messrs. WHEAT, EWING & HAMILTON, Mr. H. L. WARREN, and Mr. JACKSON GRIMSHAW, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a proceeding, on the chancery side of the circuit court of Adams county, to contest the validity of the last will of John P. Robbins, late of that county, deceased.

The will in question purports to have been executed on the third day of May, 1866, all the forms of law having been observed, but when offered for probate, it was refused probate. On appeal to the circuit court, this judgment was reversed, and the will admitted to probate. This bill in chancery followed.

The grounds of attack were, first, incompetency of the testator to make the will, and second, undue and improper influence exercised over the testator by Reuben C. Rutherford, leading to its execution.

The jury found the issue for the contestants, and, having overruled a motion for a new trial, the court, by its decree, declared the instrument produced was not the last will and testament of John P. Robbins.

To reverse this decree, the proponents of the will appeal, and assign various errors.

We have examined the record with great care, and given to the testimony full consideration, and submit the conclusions we have reached.

It appears the testator, John P. Robbins, emigrated from the State of New Hampshire to Adams county, settling near Quincy, as a farmer, in 1829. He had a good education, and, by diligence and the proper application of his talents, acquired quite a fortune, chiefly in real estate. From the testimony of more than sixty witnesses, who had known the testator intimately for more than thirty years up to the time of making his will--who saw him, had frequent intercourse with him, and transacted business with him occasionally during all this time--it would appear he was a man of more than ordinary vigor, of strong mind and decision of character, and a good man, whose sympathies and heart were very kind, combining intelligence and virtue--as well made and balanced as most men. He was a good reasoner, and not easily converted to the opinions of others; of decided principles and views, and could not be easily influenced. When he formed opinions, they were very fixed; had a good mind and sound judgment; was an honest man, who intended to do right.

This was his condition up to June, 1869, when he was stricken with paralysis, of which the record gives an imperfect account.

It further appears the testator had, at the time of making his will, a wife, who did not survive him, and two daughters surviving him. A third daughter had died, leaving children by two different husbands, and who were living at the time of the execution of the will. To these daughters the testator had long before conveyed, by deed, real estate near Quincy, in his judgment of equal value. His eldest daughter was Mary Ann, who had many years before intermarried with Isaac N. Morris, of Quincy, and who was understood to be the possessor of a handsome fortune. They had long been absent from the paternal home, rearing a family of their own, in affluence and abundance.

Rebecca Maria was the only remaining child. She seems to have been a favorite child; and on her marriage with Reuben C. Rutherford, in 1854, she, with her husband, continued inmates of her father's house, Rutherford, himself, apparently with the approbation of Robbins, taking charge of much of his business, and, in coöperation with Mrs. Robbins, of their domestic establishment, all seeming to live in the greatest harmony, each bestowing and each inspiring confidence.

During the rebellion, Rutherford was, for a considerable portion of the time, in the military service of the United States, on duty in distant States, varied by occasional visits to his home, in Quincy. He was so absent in May, 1866, when the will in question was executed, and it was executed under these circumstances: On the second day of that month, the testator being then about seventy-two years of age, and, in appearance, in the judgment of all who knew him, in the full possession of all his faculties, physical and mental, went, unaccompanied, to the office of Goodwin & Davis, practicing lawyers of good standing in Quincy, where he remained some time in consultation with Mr. Goodwin, in the inner office, the outer room being occupied by Mr. Davis. Goodwin took notes of the conversation on sheets of paper.

The next day, or day after, unaccompanied as before, Robbins returned to the office, and again conferred with Mr. Goodwin, then returned to the outer office, and, pointing to the paper lying on Goodwin's desk, invited Davis to witness the paper as his will, it having been signed by Robbins, which Davis did, and Goodwin, since dead, also signed it as witness. Davis was the only surviving witness to the execution of the will. He knew the testator well, and testifies he was, at this time, of sound mind and memory. Robbins took the will with him when he departed, unattended as he came. What disposition he made of the will, does not appear. It is not shown any member of his family knew anything about it, or knew he had made a will. From this date--May 3, 1866--the testator continued his usual course of life, until, some time in June, 1869, more than three years thereafter, he was stricken with partial paralysis, which did not wholly incapacitate him, and four years thereafter, on the 12th of June, 1873, he died, in the midst of his family, then consisting of his daughter, with her children, and Dr. Rutherford, Mrs. Robbins having died some time previously.

By this will of May 3, 1866, appellant Reuben C. Rutherford was appointed sole executor, without being required to execute a bond. To his widow he devised his whole estate, real and personal, during her life; to Mrs. Morris, the appellee, one or more valuable tracts of land in Adams county, subject to the life estate of her mother; to Mrs. Rebecca Rutherford, wife of the executor named, other tracts of valuable land, and his homestead, in the same county, subject to the same life estate, and also all the personal property which might remain after the death of the widow; to the children of his deceased daughter, Harriet Warren, he made certain specific devises of real estate. The devise to Mrs. Rutherford, it is claimed, equals in value two-thirds of the whole estate.

The first point made by appellants is, as to the weight to be given to the verdict of the jury. They insist that the verdict, in such cases as this, is nothing more, and entitled to no greater consideration, than a verdict rendered on a feigned issue out of chancery--that it is designed merely to inform the conscience of the judge, and which he may wholly disregard.

We do not approve this view. The statute is express, when a will is attacked for any of the causes specified, by bill in chancery, “an issue at law shall be made up, whether the writing produced be the will of the testator or testators or not, which shall be tried by a jury in the circuit court of the county wherein such will, testament or codicil shall have been proved and recorded as aforesaid, according to the practice in courts of chancery in similar cases.”

In chancery, it is the received doctrine, an issue directed thereout, upon a disputed fact supposed, being directed by the judge on his own motion, a verdict upon such an issue is merely advisory, which the judge can disregard in arriving at his conclusions; but the issue in this case was not a feigned, but a real, issue, directed by the statute upon real facts, which the jury were sworn to try, and their finding must have the effect of a verdict rendered in any other cause upon an issue made up for trial. This was the view entertained by this court in Brownfield v. Brownfield, 43 Ill. 155, and we see no necessity for changing it.

Giving to the verdict in this case the same weight accorded to verdicts rendered on ordinary issues at law, the consequence follows, the verdict must stand, if there be evidence sufficient to support it. And the rule is equally well settled, if there be a great and decided preponderance of evidence against the finding, the verdict will be set aside, and the more urgent is this command if it shall appear from the whole record that injustice has been done.

Impressed with the great importance of this case to the parties litigant, and considering the large amount of property involved, some one hundred thousand dollars or more, we have bestowed all the attention to this record in our power to bestow, and have permitted no important fact to escape us, and we are well satisfied it furnishes no sufficient evidence of mental incapacity of the testator at the time he made the will in question, nor any evidence of any undue influence exerted by any one over the testator, to induce the making of the will.

The testimony to sustain the first ground of attack, that of mental incapacity of the testator, is that of Moses F. Bassett, who had been, for some years prior to, and up to 1864, two years before the will was made, the family physician of the testator, and who was examined as an expert, and who testified he had no intercourse with the testator from 1864 up to December, 1870, supplemented by the testimony of Dr. Wilson, who did not know the testator, who had heard the testimony of Dr. Bassett, and who said he thought the facts stated by him, disconnected from the cause, would hardly designate what the testator's real condition was, and who said, “absolutely and necessarily, paralysis might occur in 1869, without there having been any softening of the brain in 1866, and that persons...