Snell v. Weldon

• Decision Date: 17 April 1909
• Citation: 87 N.E. 1022,239 Ill. 279
• Parties: SNELL v. WELDON.
• Court: Illinois Supreme Court

239 Ill. 279

87 N.E. 1022

SNELL

v.WELDON.

Supreme Court of Illinois.

Feb. 19, 1909.

Rehearing Denied April 17, 1909.

Appeal from De Witt County Court; Solon Philbrick, Judge.

Action by Richard Snell against Lincoln H. Weldon, executor, to set aside a will. From a judgment for plaintiff, defendant appeals. Reversed and remanded.Herrick & Herrick and Barry & Morrisey, for appellant.

Ingham & Ingham, Lemon & Lemon, John Fuller, and Edward J. Sweeney, for appellee.

CARTWRIGHT, C. J.

Thomas Snell was born in December, 1818, and was a resident of this state for over 50 years. Having accumulated an estate of more than $1,000,000, he determined in September, 1901, when 82 years old, to make a will, and applied for that purpose to Judge Lawrence Weldon, of Bloomington, who had been his legal adviser for many years. Judge Weldon was then a judge of the Court of Claims at Washington, and referred Mr. Snell to his former law partner, Judge R. M. Benjamin. Mr. Snell stated to Judge Benjamin that he had property in Iowa, Missouri, and McLean and De Witt counties, in this state, and that his estate would be over $1,000,000; that he had seen property in his own town squandered, and he did not propose his should be during the lifetime of his heirs; that he wanted to put the property in the hands of a trustee and provide for the management of it; that he had all the details in his own mind and knew how he wanted his will made, and did not care about any suggestion, but wanted the attorney to put it in legal form, and that the attorney should take his time and put the details in writing and send it down to him at Clinton. He brought with him to the attorney memoranda of descriptions of his land, and said that he was not going to sign the first draft, as there would be other things; that the attorney need only prepare a draft, and he would consider it, and that he wanted to see it in typewriting. Judge Benjamin prepared a first draft of the will, and submitted it to Mr. Snell, who, after consideration, came back two or three weeks later and gave other provisions and details as to the management of his estate to be incorporated in the will. A second draft was then prepared and sent to Mr. Snell, and a few weeks later he came back with it and a third draft was prepared, which finally met his views. About the time that he went to Judge Benjamin he wrote, on September 10, 1901, to the appellant, Lincoln H. Weldon, a letter, in which he stated that he had about made up his mind how he would fix his property; that he wanted Weldon for trustee if he would serve him; that he would not be required to give bond; and that the estate would amount to over $1,000,000, and there would be considerable work to learn his affairs. The will as completed was mailed to Mr. Snell at Clinton about December 1, 1901, and on December 10, 1901, he called upon three business men who had known him for a great many years, one of whom had been his physician, and told them he was making his will and wanted them to witness it, and it was then signed and attested in due form. The will contained 33 paragraphs, and was of such length that it is not practicable to here state all its provisions; but as the entire scheme of the will originated with Mr. Snell, and the provisions were devised by him and were only put into form by Judge Benjamin, it is thought best to state its provisions in a general way.

By the will the testator devised all his property to the appellant, as trustee, and named him as executor. It provided for the payment of funeral expenses and just debts, and for building a family vault or tomb for not less than $7,000 nor more than $10,000. It then provided for the payment, annually, during their lives, of the following sums to the parties named: To Hannah A. Snell, widow of a deceased son, $1,000; to Joseph Snell, brother of the testator, $400; to Clara Belle De Land, $400; to Mabelle Snell, daughter of the testator's nephew, Thomas Snell, $400; and to his son, Richard Snell, the appellee, $1,000. The will then provided for the payment, annually, of $1,000 to each of the testator's three grandchildren, Lena E. Dinsmore, Thomas Thornton Snell, and Harry C. Snell, until improvements in East Ft. Dodge, Iowa, to the amount of $150,000, should be made and paid for. After such improvements were made, $3,000 was to be paid annually to each of said grandchildren, with a reduction in case of destruction of any business house by fire. The trustee was next directed to pay promptly all taxes and assessments, to keep all business houses reasonably insured, to keep all real property, except vacant lots, well rented for not more than terms specified in the will. The next provision was for making improvements on the Ft. Dodge property to the amount of $150,000 from rents and profits and proceeds of sale, and further improvements, with the consent of the grandchildren, to the amount of $100,000, if it could be done without delaying regular payment of the legacies. To raise money for improvements or other purposes of the trust, the trustee was authorized to sell promissory notes at their face value or present worth or put them up as collateral security, and he was authorized to raise by mortgage, with the written consent of at least one of the grandchildren, money for improvements, not exceeding $50,000 at any one time, for not more than five years. The will then empowered the trustees to sell and convey lots in six different places, and lands in Putnam county, Mo., Sioux, Hancock, and Boone counties, Iowa, and other specified property, upon terms as to cash and mortgage security fixed by the will. The trustee was authorized, with the written consent of at least one of the grandchildren, to plat lands, and any surplus accumulated was to be invested in lands in De Witt or McLean counties, in this state, or Webster and Hamilton counties, in Iowa. The will then provided for the sale of land, and reinvestment, with the consent of the grandchildren and the approval of the circuit court of De Witt county. There were extensive directions and details as to the management of the trust estate, and the appointment of a successor in trust in case of vacancy. After five years the trustee was to pay to each of said three grandchildren, for life, one-third of the net income from the rents and profits, after payment of the annuities, taxes, assessments, and other charges against the property, and, in case of the death of any of the grandchildren before final distribution of the estate, his or her annuity was to be paid to his or her heirs of the testator's blood. If his son, the appellee, Richard Snell, should leave any heirs of his body, the trustee was to pay to such heirs one-fourth of the net income, and the shares of the other grandchildren were to be reduced accordingly to one-fourth. Upon the decease of his son and all of the grandchildren and great-grandchildren of the testator living at his decease, the trust was to come to an end, and the trust property vest absolutely among the testator's descendants then living, in equal parts, whatever their respective degrees of relationship, and they were to take per capita and not per stirpes. The appellant was appointed trustee and executor without bond, and required to make annual reports. This summary does not contain a reference to all the provisions of the will, but is sufficient for the present purpose.

Afterward, on November 28, 1904, the testator executed the first codicil to his will, and it was witnessed by officers of the bank where he did business, and at his request. This codicil revoked the annuity of $400 to Clara Belle De Land, and divided that amount between the testator's brother, Joseph Snell, and Mabelle Snell, who were each given $600 a year. It revoked the provision that if the son, Richard Snell, should leave any heirs of his body, the trustee should pay one-fourth of the net income to them, reduced the annuity of $1,000 per year to Richard to $50, and gave $3,000 to each of the eight children of said Joseph Snell. A second codicil was executed November 29, 1905, at Bloomington, and was witnessed by two attorneys in the office where it was prepared. It gave one-half section of land in De Witt county to the granddaughter, Lena E. Dinsmore; to Thomas Thornton Snell, one of the grandsons, it gave 175 shares of the capital stock of the St. Joe Valley Bank, at Elkhart, Ind., and the note of the legatee for $6,000 held by the testator. It gave to the other grandson, Harry C. Snell, 400 acres of land in De Witt county, 200 shares of capital stock of said bank, and a note of the legatee for $1,500. It released the balance due on a claim against the estate of the father of the three grandchildren; set apart $1,500 to take care of the cemetery lot; modified some other clauses, and defined more clearly the directions to the trustee, making clear the time for the final distribution. A third codicil was executed October 9, 1906, in the same attorney's office, in Bloomington, and the only change made by it was an increase of the annuity to Mabelle Snell to $1,200 a year.

The testator died on June 19, 1907, and left as his heirs at law his son, Richard Snell, the appellee, and Thomas Thornton Snell, Harry C. Snell, and Lena E. Dinsmore, children of his deceased son, James Thornton Snell. The will was admitted to probate on July 26, 1907, by the county court of De Witt county, and appellant was appointed executor. The appellee, Richard Snell, filed his bill in this case in the circuit court of De Witt county to set aside the will and each of the codicils, charging that his father, the testator, was not of sound mind and memory, but was laboring under insane delusions which estranged him from appellee, and was induced to execute the instruments by undue influence exercised by Mabelle Snell and a certain other person known as ‘Belle,’ whose full name was unknown. A guardian ad litem was appointed for three...