Schmidt v. Schmidt

• Decision Date: 18 February 1903
• Citation: 201 Ill. 191,66 N.E. 371
• Parties: SCHMIDT et al. v. SCHMIDT.
• Court: Illinois Supreme Court

201 Ill. 191

66 N.E. 371

SCHMIDT et al.

v.SCHMIDT.

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from circuit court, Cook county; R. S. Tuthill, Judge.

Bill by Gustav A. Schmidt against Fredrick W. Schmidt, individually and as executor and trustee of the estate of Friedrich Schmidt, deceased, to set aside decedent's will. From a judgment in favor of plaintiff, defendants appeal. Reversed.

A. A. Canavan and Geo. Burry, for appellants.

John C. Trainor, for appellee.

HAND, J.

This is a bill in chancery filed by Gustav A. Schmidt against his brother, Fredrick W. Schmidt, individually and as executor and trustee, and Carolina Schmidt, his mother, to set aside the will of his deceased father, Friedrich Schmidt, for want of testamentary capacity in the testator at the time of the execution of the will, and on the ground that its execution was procured by Fredrick W. Schmidt and his mother through fraud and undue influence. The bill having been amended, a joint and several answer was filed thereto by Fredrick W. and Carolina Schmidt, denying the allegations thereof, and, a replication having been filed, an issue at law ‘whether or not the instrument set forth and described in the amended bill of complaint herein, dated the 7th day of February, A. D. 1899, and admitted to probate bate in the probate court of Cook county, Illinois, on the 23d day of February, A. D. 1900, as the last will and testament of Friedrich Schmidt, deceased, is the last will and testament of said Friedrich Schmidt, deceased,’ was submitted to a jury, and the jury returned the following verdict: ‘We, the jury, find the issues for the contestant, and we find that the writing propounded is not the last will and testament of Friedrich Schmidt, deceased.’ The jury also found specially, in response to interrogatories propounded to them, that Friedrich Schmidt was not mentally capable of attending to ordinary business on the day on which the will was executed, or during the six months immediately preceding and immediately following that date, and the court, after overruling a motion for a new trial, entered a decree in accordance with the verdict, finding that the instrument purporting to be the last will and testament of Friedrich Schmidt, deceased, was not his last will and testament, and decreed that the probate thereof be set aside and held to be null and void, and that all costs and charges of the suit, including $3,000 for solicitor's fees, $310.15 stenographers' fees, and $7 paid to the clerk of the probate court, be paid by Fredrick W. Schmidt, as executor, out of the moneys belonging to the estate in his hands. The said Friedrich Schmidt having died seised of real estate which was disposed of by the will, an appeal has been prosecuted by the defendants to this court, and they have assigned as error the action of the court in decreeing that the probate of the will of Friedrich Schmidt, deceased, be set aside and the will for naught held. The appellee has assigned as cross-error the action of the court in decreeing that the executor pay the costs and charges of this suit, including solicitor's and stenographers' fees and the amount paid the clerk of the probate court for a transcript of the record of the proceedings of the probate of the will, out of the funds belonging to the estate, and the appellants have entered a motion in this court, which has been reserved to the hearing, to strike the cross-errors from the files.

Friedrich Schmidt, at the time of his death, resided at Riverdale, a suburb of Chicago, where he, with his family, consisting of his wife, Carolina, and his sons, Fredrick W. and Gustav, had resided for many years. On about February 1, 1899, Mr. Schmidt called upon Mr. Austin A. Canavan, an attorney in the city of Chicago, who had represented him for about 15 years, with a view to make his will. The matter was talked over between Mr. Schmidt and his attorney, and the terms of the will were agreed upon, when he went home, with the understanding that the attorney was to prepare the will in accordance with the instructions given him, and he would return and execute the same within a few days. The will was prepared, and, after providing for the payment of funeral expenses and debts, gave all the remainder of his estate to Fredrick W., his son, who was a practicing physician, in trust, for the use of his wife, Carolina, during her life, and directed that upon her death, after paying all expenses incurred during her last illness, including her funeral expenses, the balance of the estate should be divided between the two sons, one-fourth going to Gustav and three-fourths to Fredrick W., and designated Fredrick W. as executor, without bond. On the 7th of the same month Mr. Schmidt again called at the office of Mr. Canavan, and the will was read over by him to Mr. Schmidt, and, being satisfactory, Horace A. Goodrich, who was engaged in the real estate and loan business, and who had known and transacted business with Mr. Schmidt for many years, and who occupied an office adjoining that of Mr. Canavan, was called in. Mr. Schmidt signed the will in their presence, and they signed the same as attesting witnesses, and Mr. Schmidt carried the will away with him. The testator died on January 26, 1900, and the will was duly proven and admitted to probate in the probate court of Cook county, and Fredrick W. Schmidt qualified as executor.

At the time of his death the testator was about 70 years of age. For many years prior thereto he had been engaged in building, making loans, and had owned and sold more or less real estate. At about the time the will was executed he commenced the erection of a residence in Riverdale, the cost of which, when completed, was about $7,800. In the latter part of January, 1899, he called upon Stephen v. Shipman, an architect who had been in business in Chicago for many years, whose business relations with Mr. Schmidt extended over a period of 22 years, and who had built a building for him on Larrabee street, one on Hoyne avenue, and a store on West Twelfth street, in the city of Chicago, and arranged with him to prepare plans for the dwelling house which he was then about to erect, and to superintend its construction. Mr. Shipman testified he saw Mr. Schmidt frequently from that time until his death, and during the following spring and summer months almost daily; that Mr. Schmidt was constantly engaged in looking after his building, making comtracts for materials and with workmen, as he had done upon buildings which he had previouslyerected for him. Charles F. Rust, who was in the lumber and milling business at West Pullman, testified that he had known Mr. Schmidt for some seven or eight years; that he sold him the mill work for his Riverdale residence during the summer of 1899; that ‘he was at the mill frequently; he would drive over to the mill with his horse and buggy; he had bids from other parties for the mill work on his house, and he would not buy until he got a figure that suited him; that he wanted me to furnish the mill work, as he knew me, and was willing to pay me $25 more than any one else by reason of that fact, but said he would not go higher than that.’ William Cleber, of Blue Island, testified he made a contract with Mr. Schmidt in September, after the will was executed, to put in the plumbing in his new residence; saw him frequently, and talked with him about the work. Asmus Claussen, of Dalton, who had been in the hardware business for 16 years, testified he knew Mr. Schmidt well; sold him hardware for the store building and for his new residence, and talked with him frequently during the summer of 1899. John H. Meyers, of Riverdale, who had houses to rent and had known Mr. Schmidt for 18 years, testified he visited at his house frequently, called upon him every day or two during his last sickness, and read to him from the papers up to the day before his death. Edward N. Stein, of Blue Island, testified he had known Mr. Schmidt for 25 years; had the contract for putting on the slate, cornice, and tin roofing on the new building in 1899, and furnished part of the hardware; that ‘my work on the building brought me in contact with him every day; he was around the building, working sometimes a little, and looking after the work of everybody that was there.’ Simon B. Schoon, a gardener of Riverdale, testified he had known Mr. Schmidt 30 years; saw him very frequently up to the time of his last sickness. Frank R. Baker, the railroad agent at Riverdale of the Pan Handle road, testified he...