Robinson v. Brewster

• Decision Date: 26 March 1892
• Parties: ROBINSON et al. v. BREWSTER et al.
• Court: Illinois Supreme Court

140 Ill. 649

30 N.E. 683

ROBINSON et al.

v.BREWSTER et al.¹

Supreme Court of Illinois.

March 26, 1892.

Error to circuit court, Macon county; EDWARD P. VAIL, Judge.

Bill by Joseph Robinson and Margaret McRoberts, children of Joseph Robinson, deceased, against Eliza J. Brewster and Christopher C. Robinson, also children of said deceased, and Caspar Ellwood, administrator, to set aside the will of said Joseph Robinson. Christopher C. Robinson was defaulted for failure to answer, and a decree entered, in accordance with a verdict, sustaining the will. Complainants bring error. Affirmed.W. C. Johns, for plaintiffs in error.

Buckingham & Schroll and W. T. Cassins, for defendants in error.

MAGRUDER, C. J.

This is a bill filed in the circuit court of Macon county on April 4, 1890, by Joseph Robinson and Margaret McRoberts, children of Joseph Robinson, deceased, against Eliza J. Brewster and Christopher C. Robinson, also children of said deceased, and Casper Ellwood, administrator with the will annexed of the estate of said Joseph Robinson, for the purpose of setting aside the will of said Joseph Robinson. Eliza J. Brewster and the administrator answered the bill, but Christopher C. Robinson failed to answer, and default was entered against him. The court directed an issue of law to be made up whether the writing described in the pleadings, and purporting to be the will of the deceased, was his last will and testament, and, said issue having been submitted to the jury for trial under instructions from the court, a verdict was returned finding such writing to be the will of the said Joseph Robinson. Motion for new trial was overruled, and decree rendered in accordance with the verdict, finding that said will was duly executed, and ordering the same to be established and confirmed, and dismissing the bill as to the defendants who answered.

Joseph Robinson died testate on January 13, 1890, leaving him, surviving, as his only heirs at law, the four children above named, and owning certain lots in Decatur, and land in Macon county, and a considerable amount of personal property. On January 17, 1890, the defendant in error Eliza Jane Brewster produced before the county court for probate, as the will of her deceased father, the following instrument, to-wit: ‘Know all men by these presents, that I, Joseph Robinson, for the consideration of one dollar, to me in hand paid, as well as my affection, do hereby assign and set over to my daughter Eliza Jane Brewster all of my property, both personal and real, to have the same after my death. Witness my hand and seal this 7th day of May, 1877. JOSEPH his X mark ROBINSON. [Seal.] Attest: J. S. POST. E. McCLELLAN.’ This instrument was then and there admitted to probate as the will of the deceased by the county court. The proceedings upon the probate thereof show that E. McClellan and William T. Cassius personally appeared in open court, and swore that they personally, know the handwriting of J. S. Post, subscribing witness to said instrument, and well knew his signature, and had frequently seen him write, and that they verily believed that the name of J. S. Post, subscribed as witness to the execution of said will, was thereto subscribed by him as such subscribing witness; and E. McClellan, the subscribing witness to said instrument, swore that he was present, and saw the said Joseph Robinson sign said instrument, and that he believes the said testator was of sound mind and memory, of lawful age, and under no constraint when he signed said will.

Upon the trial before the circuit court, the files of the county court, showing the said document as the will of the deceased, together with the accompanying affidavits of the witnesses as above set forth, and the oath of the administrator, were admitted in evidence. The material part of the testimony of McClellan, as introduced by the defendants upon the trial, is as follows: ‘I am circuit clerk of Macon county and have been 22 years. I knew Joseph Robinson 25 years, I guess. I saw this instrument of writing in J. S. Post's office on May 7, 1877. By request of Joseph Robinson I went up to J. S. Post's office, and witnessed the same. My best recollection is, I was standing on the sidewalk in front of Skelly's grocery store when he made the request. At that time his mind and memory were both good. He said he was making his will, and wanted me to witness it. J. S. Post was acting as an attorney. J. S. Post wrote and prepared the instrument in controversy in this case, proposed by Eliza Jane Brewster as the will of Joseph Robinson. Upon that occasion I went with Robinson to Post's office, for the purpose aforesaid. Robinson signed it by his mark, and Post and I witnessed it. The instrument was signed by Robinson himself in the presence of Post and myself. We were all present at the same time. Robinson signed it, and then Post and I signed it as witnesses. Post and I signed it as witnesses in the presence of and at the request of Robinson. That is J. S. Post's signature, and I saw him write it there. That is the signature of E. McClellan, and in his handwriting. When he executed this instrument Robinson's mind was sound, and his business capacity was good. I had business transactions with him up to within six months of his death. I don't recollect whether the instrument was read over to him or not at that time. I knew Post for forty years, and was intimately acquainted with him. He was a practicing attorney. I have seen him write, and am familiar with his handwriting. The body of the instrument is in his handwriting. He is dead. His death occurred before January 17, 1890, about five years ago, I think. I saw Robinson make his mark to said instrument. I don't know whether Post saw Robinson sign it by making his mark or not. He was present, and in a position where he could have seen him sign it. Post superintended the execution of the instrument. I can't tell whether Robinson saw me sign my name as a witness. He was in a position to have seen me sign it. We all signed it at the same time, and at the same table, and were within a few feet of each other during the whole transaction. Robinson controlled his real and personal property himself. It was only a few minutes after he requested me to go up to Post's office before I went up and saw him sign the paper in controversy. The instrument had been prepared previous to our going there upon that occasion. The instrument now shown me is the same which was shown to me when I testified in the county court at the time it was admitted to probate.’ Upon cross-examination the witness said: ‘Robinson could not read or write. Part of the time he was a man of very intemperate habits. I don't think his habits were worse in 1877 than at other times. I don't think he was an habitual drinker. I do not think he was intoxicated when I met him on the street. Skelly's grocery was across the street from Post's office,-80 feet, probably. I walked across the street with Robinson. I remained at Post's office some time, talking, after I signed the paper. It was written when we got there, except the signature. I think the words. ‘Joseph Robinson, his mark,’ were written when we got there. I don't think it was read over to Robinson while I was there. I don't recollect that Post or Robinson said anything about the contents of the paper, or about the paper having been read over to Robinson. He did not request me to sign it as a witness in the office, but on the sidewalk. He did not have the paper with him when he met me on the sidewalk; this is the paper they requested me to sign when I got up in the office. I do not recollect whether Robinson said anything about this paper being his will after we got into the office. When my attention was first called to this paper, my recollection of it was very indistinct. If I had not seen my signature, I could not have recalled the transaction. Before April 4, 1890, I told Mr. Johns I could not remember whether anything was said to me by Robinson about this paper being a will.' Upon his redirect examination, the witness said: ‘Robinson was all right, as to sobriety, when this instrument was executed. He was in a condition to transact business intelligently at that time. No persons were in the office at the time except Post, Robinson, and myself. My opinion is that Robinson understood all about it. I do not pretend to say of my own knowledge that Robinson knew the contents of this paper which I signed as a witness.’ The defendants examined only two other witnesses besides McClellan. One of these swore that upon one occasion Mr. Robinson was talking to her about his daughter Eliza, and said that a couple of months after the death of his wife he had gone up into Capt. Post's office, and made out a paper, and had come home and given it to Eliza; so that after he was dead and gone she should have all...