Stone v. Wilbern

• Decision Date: 30 September 1876
• Citation: 83 Ill. 105,1876 WL 10297
• Parties: JANE STONEv.AMOS W. WILBERN et al.
• Court: Illinois Supreme Court

83 Ill. 105

1876 WL 10297 (Ill.)

JANE STONE

v.AMOS W. WILBERN et al.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Kane county; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. BOTSFORD & BARRY, and Mr. FRANK CROSBY, for the plaintiff in error.

Messrs. JOSLYN & COLEMAN, for the defendants in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

It appears, from the evidence contained in the record, that Mary A. Stone originally owned the premises in controversy, consisting of a farm in Cook county, which, on the 26th day of January, 1865, she conveyed by deed to one Beverly, who, on the same day, conveyed the same to Richard Stone, the husband of said Mary A. Stone. On the 18th day of April, 1865, Mary A. Stone died intestate, and the original bill in this cause was filed by Isabella Wilbern, daughter of Mary A. and Richard Stone, and her husband, Amos W. Wilbern, to set aside and cancel the two deeds executed on the 26th day of January, 1865, and for partition of the premises. On the 8th day of February, 1871, Richard Stone conveyed the premises by deed to his son, Robert R. Stone, and to his son-in-law Amos W. Wilbern.

To the original bill Richard Stone filed a cross-bill, for the purpose of avoiding the last named deed, on the alleged ground of fraud and deceit, and undue influence practiced upon him by the said Robert R. Stone and Amos W. Wilbern.

Upon the hearing, the court rendered a decree dismissing both the original and cross-bills, to reverse which this writ of error was brought by Jane Stone, the wife of Richard Stone by a second marriage, who is the sole devisee and executrix of the last will and testament of the said Richard.

No proof was introduced on the hearing for the purpose of sustaining the allegations of the original bill--that branch of the case it will not, therefore, be necessary to consider. The only question, then, presented by the record is, whether the deed of February 8th, 1871, executed by Richard Stone to Robert Stone and Amos W. Wilbern, was procured by fraud and deceit, or undue influence of the grantees, practiced upon the grantor, and this must be determined by the evidence bearing upon the point.

What is the evidence relied upon to defeat the deed? One witness says Richard Stone “was a weak old man.” It was also proven that he had trouble with his wife and her two children by a former marriage; that his son Robert visited him a short time before the deed was executed, and, after that interview, the grantor left his wife and went to live with Wilbern; that Wilbern's wife told him he had no right to the farm in question, Beverly's deed to him being good for nothing; that while he was residing with Wilbern he went to the office of a notary public; the deed was prepared and executed.

These are the leading facts relied upon to impeach the deed. Suppose Richard Stone was “a weak old man,” that fact did not incapacitate him from conveying his property. So long as he had the mental capacity to transact ordinary business, and the record nowhere shows that this was wanting, he had the power and ability to dispose of his property in such a manner as his judgment might dictate.

At the time the deed was executed, Richard Stone was...