Slingloff v. Bruner

• Decision Date: 24 October 1898
• Citation: Slingloff v. Bruner, 174 Ill. 561, 51 N.E. 772 (Ill. 1898)
• Parties: SLINGLOFF et al. v. BRUNER et al.
• Court: Illinois Supreme Court

174 Ill. 561

51 N.E. 772

SLINGLOFF et al.

v.BRUNER et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from circuit court, McLean county; John H. Moffett, Judge.

Bill by John W. Slingloff and others against Mabelle Bruner and others. From a decree in favor of defendants, complainants appeal. Affirmed.Tipton & Tipton, for appellants.

Frank B. McKennan and McGlosson & Beitler, for appellees.

PHILLIPS, J.

This was a bill in chancery, filed in the circuit court of McLean county, to set aside the will of Nicholas R. Slingloff, deceased. The bill charges lack of testamentary capacity on the part of the testator, and undue influenceexerted upon him by the appellee Mabelle Bruner. Issues in chancery were made as provided by the statute, submitting to the jury the two questions of testamentary capacity and undue influence; and, upon the trial of the cause, a verdict was returned finding in favor of the validity of the will. A motion for new trial was overruled by the court, and a decree entered finding that the will in question was the will of Nicholas R. Slingloff, whereupon this appeal was prosecuted.

The principal reason urged by appellants for the reversal of the decree of the chancellor in this case is that the testator, at the time of the execution of the will in question, did not possess sufficient testamentary capacity to execute such will. Nicholas R. Slingloff was an unmarried man, aged about 39 years, who had resided most of his life in or near the village of Arrowsmith, in McLean county. The will in question bears date October 13, 1897. The testator died unmarried and without issue, on the 3d day of Nevember of the same year. The testator had been for a number of years in poor health. About 19 years before his death, he received a severe injury to his side, which, as time progressed, necessitated three surgical operations,-two in Bloomington, and one in Chicago. This left him for a number of years prior to his death much reduced in strength and emaciated in appearance, and for some time previous to his death he was not physically capable of giving his personal attention to his business. He was a druggist, owning a one-half interest in a drug store in Arrowsmith, the other half interest of which was owned by George F. Lester, one of the appellees herein. The three surgical operations mentioned had all been performed in the winter and summer of 1897,-one in February, one in June, and the last one the 15th day of October, two days after the will in question was executed. The testator left, at the time of his death, his mother, two brothers, three sisters, and some nephews and nieces, all complainants in the original bill. By his last will and testament, the validity of which is questioned, he devised one-half of his interest in the drug store to his partner in business, George F. Lester, in consideration of the payment to his estate of $2,300; and, after the settlement of all his indebtedness, his estate, both real and personal, was to be divided equally between his mother and Mabelle Bruner. The latter was not related to him, but it is appearent from the record that he entertained for her feelings of affection, although it is not certain from this record that an engagement of marriage existed between them. She was with him most of the time during his last illness. The will in question was prepared by Hubert J. Thompson, an attorney, at the home of the testator, a short time before the performance of the last operation, which resulted in his death. It was witnessed by Thompson and David L. Snoddy, the husband of a sister of the testator, and these two parties and George F. Lester were the only ones present at the execution of the will.

The proponents, in order to establish the validity of the will, offered the testimony of Hubert J. Thompson, whose evidence was that he was called to the house where the testator was lying ill, and received from him directions as to the disposition of his property, and that George F. Lester was present at the time, with other persons during a portion of the time. He testifies that he told the testator that he was called there, and, as he states, the testator said he wanted Lester to take his interest in the drug store at $2,300, and wanted a mortgage on his father's farm paid, and the interest thereon, and the expenses of his sickness, and the balance was to be equally divided between his mother and Mabelle Bruner. He states there was some conversation between the testator and himself as to whether a bill of sale of the drug store should be made, or whether the terms should be incorporated in the will, and it was put in the will, and the will drawn as directed by the testator, and read to him. He also directed who should be the executor, and said he wanted his partner to attend to his business, and be appointed executor. There was also offered the certificate of the oath of the witnesses at the time of the first probate. This evidence was objected to, and the objection overruled, and the complainants excepted. Certain letters were offered in evidence, which we apprehend to be in the handwriting of the testator, and extracts therefrom were read. These letters were addressed to Mabelle Bruner, one of the legatees. This was substantially all the evidence offered by the proponents in support of the validity of the will.

The testimony of the attending physician, and of a consulting physician, who was called in, in the afternoon of the day on which the will was drawn, and who described the testator's physical condition and the fact of the frequent and long-continued administration of morphine to allay pain, was that, at the time of the execution of the will, the testator was incapable of transacting business or of reasoning on business matters; that his temperature was very high, which had a depressing effect on his brain, tending to cause an exhaustion and enfeeblement of the entire intellectual powers, with the physical. Eleven other witnesses were called who testified as to his physical condition. Many of these witnesses had, just prior to the time of the execution of this will, called at the house where the testator was lying, and from their testimony it is apparent he was at the time suffering great pain, and made no attempt to engage in conversation in any manner. Some of the testimony is based on the opinions of the witnesses as to his condition without conversation with him. Some testified they did not believe he was in a condition to transact business. Others found him suffering pain, and did not engage in conversation, and say he was effusive in his manner towards them, which caused them to reach the conclusion that he was in very poor condition, and unable to transact business. Others had but little conversation with him, and saw that he was in an enfeebled condition, lying quietly, and they formed an opinion that he was in a poor condition, and unable to transact business. Certain witnesses were called by the complainants as experts, who, on a hypothetical question stating his condition being put to them, testified that, in their opinion, he would not be in a condition to transact business. George F. Lester, who was appointed executor, testified that, at the time testator made the will, he did not think he was in a condition to transact any business or make a will.

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