Smith v. Henline

• Decision Date: 18 June 1898
• Citation: Smith v. Henline , 174 Ill. 184, 51 N.E. 227 (Ill. 1898)
• Parties: SMITH et al. v. HENLINE et al.
• Court: Illinois Supreme Court

174 Ill. 184

51 N.E. 227

SMITH et al.

v.HENLINE et al.¹

Supreme Court of Illinois.

June 18, 1898.

Appeal from circuit court, McLean county; Thomas F. Tipton, Judge.

Bill by James J. Henline and others against Delilah Smith and others to set aside the will and codicil of David Henline.From a decree declaring the codicil void, defendants appeal.Affirmed.T. C. Kerrick and Weith & Sterling, for appellants.

A. J. Barr, B. F. McKennan, and Beach & Hodnett, for appellees.

This is a bill filed by the appellees, as heirs of one David Henline, deceased, against the appellants, Delilah Smith and Paulina Smith, and one Shelton Smith, executor, and others, as defendants below, to set aside the will and codicil of the said David Henline.The bill was answered by the defendants, and replication was filed to the answer.The bill sought to set aside the will and codicil upon the alleged grounds that the testator was lacking in testamentary capacity, and was subjected to undue influence from the arts and fraudulent practices of the defendantsDelilah Smith and Paulina Smith at or about the time of the execution of the will.The question as to the validity of the will and of the codicil was submitted to a jury.The jury returned a verdict finding the paper purporting to be the will of David Henline, deceased, to be his last will and testament, but finding the paper purporting to be the codicil of the last will and testament of David Henline, deceased, to be not the codicil thereto.In other words, the jury found in favor of the validity of the will, but against the validity of the codicil.The court below rendered a decree in accordance with the verdict of the jury, declaring the probate of the will to be valid and binding, but declaring the instrument purporting to be the codicil to be null and void, and ordering the probate thereof to be set aside.The present appeal is prosecuted from the decree thus entered.

The will of David Henline bears date the 24th day of December, 1890, and was executed on that day.The codicil thereto bears no date, and is shown by the proof to have been made, if it was made, on April 22, 1895.David Henline died on May 4, 1895.The will and condicil were admitted to probate in the county court of McLean county on May 13, 1895.The will gave to Delilah Smith and Paulina Smith, her daughter, to be held by them jointly, or the survivor of them, 40 acres of land in said county, and also 3 lots in the town of Lexington, in said county, on which was an hotel building.The will directed that if, at the time of the testator's decease, anything was due upon said 40 acres and said lots, payment should be made of the same, so that Delilah Smith and Paulina Smith should have said premises clear of any incumbrance.The will also directed that the remainder of the testator's estate, both real and personal, should be distributed among his ‘legal representatives,’ in accordance with the statutes of Illinois, unless disposed of by him prior to his decease by deed or otherwise.Shelton Smith was appointed executor.The will witnessed by John E. Covey and Alfred B. Davidson.The codicil is as follows: ‘I, David Henline, of Lexington, McLean county, Illinois, having made my last will and testament, dated the 24th day of December, 1890, I do by this, my writing, desire to add the following, and hereby direct that this shall be added to my said will, as a codicil thereto: Whereas, no particular bequest was made by me of the farming lands owned by me, and I now desire to make a specific bequest of a portion of said real estate, it is therefore my will, and I hereby give, devise, and bequeath to Delilah Smith and Paulina Smith, jointly, eight hundred (800) acres of farming land now owned by me, and situated in sections sixteen (16), seventeen (17), nineteen (19), twenty (20), twenty-nine (29), thirty (30), and thirty-one (31), in township twenty-five (25) north, range five (5) east, third principal meridian; also, the northwest quarter of section twenty-four (24) north, range four (4) east, third principal meridian,-all in McLean county, Illinois.It is my will that the quarter section in Martin township shall be taken first, and the remainder of the eight hundred (800) acres shall be selected by the said Delilah Smith and Paulina Smith out of any lands owned by me in Lawndale township in this will described.And it is my will that this codicil shall be attached to and form a part of my will, the same as if contained in my said will, and I direct that my executor do carry out the same all respects.’The witnesses to the codicil are W. Hill, Joseph Humphrey, and Alfred B. Davidson.The will is signed by David Henline with a seal, but the codicil is signed by David Henline by his mark with a seal.It is admitted that a mistake was made in the description of a part of the property in the codicil.The number of the township in which one quarter section of the land located is used instead of the number of the section, and the true number of the section is omitted.

MAGRUDER, J.(after stating the facts).

The decree of the court below was in favor of the present appellants, so far as it held the will of the testator to be valid, and against the appellees, who sought to set aside the will as well as the codicil.The decree was adverse to the appellants in holding the codicil to be invalid and setting it aside, but in that respect it was in favor of the appellees.The present appeal, prosecuted by the appellants, seeks to reverse the decree in so far as it holds the codicil to be invalid.The appellees assign no cross errors in relation to that part of the decreewhich sustains the will, and make no complaint of the same.The only question in the case, therefore, is whether or not the codicil of the deceased testator, David Henline, was invalid and properly set aside.

The grounds upon which it is sought to impeach the codicil are lack of testamentary capacity, and the exercise of undue influence.As is usual in cases of this character, there is great conflict in the testimony.The appellants here (proponents of the will below) examined 26 witnesses.The appellees here (complainants below) examined 22 witnesses.Of these 48 witnesses, many give it as their opinion that the testator had such mental capacity as that he was able to transact ordinary business, while many of them are of the contrary opinion.In cases of this character the verdict of the jury is to have the same force and effect as is given to a verdict in a case at law under a like state of facts; and, when the verdict in such case is not manifestly against the weight or evidence, the court is bound by it in the same manner and to the same extent as if it were a case at law.The jury had before them and saw the witnesses.The judge who tried the case was satisfied with the verdict, and acted upon it.The evidence, particularly upon the question of mental capacity, is conflicting, but a careful consideration of it does not show that the finding of the court below is clearly against its weight.Where the testimony is thus conflicting, and is not clearly against the weight of the evidence, the finding of the jury must be regarded as conclusive.Calvert v. Carpenter, 96 Ill. 65;Buchanan v. McLennen, 105 Ill. 59;Greene v. Greene, 145 Ill. 271, 33 N. E. 941.There is another rule upon this subject well settled by the decisions of this court; and that rule is that, where there is an irreconcilable conflict in the testimony touching the facts upon which the validity of the will depends, the decree of the lower court will not be reversed, if the evidence of the successful party, when considered alone, is clearly sufficient to sustain the verdict.Calvert v. Carpenter, supra;Moyer v. Swygart, 125 Ill. 268, 17 N. E. 450;Bevelot v. Lestrade, 153 Ill. 629, 38 N. E. 1056;Harp v. Parr, 168 Ill. 459, 48 N. E. 113.A reference, however, will be made to some of the facts, so far as it is necessary to understand the questions of law involved, and the objections made to the admission of evidence and to the instructions given upon the trial of the case in the court below.

The deceased, David Henline, was about 73 years of age when he died, on May 4, 1895.He was a bachelor, never having been lawfully married.He had two brothers at the time of his decease, named William and John, and several nephews and nieces.He had been engaged in business with his brother William many years, and was a partner with him in the ownership of a considerable quantity of land.In 1868 or 1869the brothers met with reverses in business.David's mind seemed to have been so seriously affected thereby that he secluded himself in a room in the second story of his house for about a year, and during that time declined to do any business.During the remainder of his life he permitted his brother William to manage their business, and relied mainly upon his judgment in matters relating thereto.It is conceded by both parties that the deceased for many years prior to his death (perhaps as much as 25 years) sustained illicit relations with the appellantDelilah Smith.Some time after this illicit relationship began, the said Delilah married a man by the name of Smith, with whom she went to Missouri, and there lived for some months.During their stay there the appellantPaulina Smith was born.Not long thereafter Delilah Smith and her husband returned to McLean county, where Smith died, and David Henline and Delilah Smith and Paulina Smith(the latter being called in this record ‘Susie Smith’) lived together as one family until the death of David Henline.It is claimed by counsel for appellants that Paulina Smith was the daughter of David Henline; but she was born in lawful wedlock, while Delilah Smith and her husband were living together, and the presumption of law is that she was their child.In 1890 the deceased, David Henline, while living with Delilah Smith, and while sick in bed, was induced...