Szarat v. Schuerr
| Decision Date | 14 April 1939 |
| Docket Number | No. 24824.,24824. |
| Parties | SZARAT et al. v. SCHUERR. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; John Prystalski, judge.
Suit in equity by William J. Szarat and another against Josephine Schuerr to set aside the will of John F. Szarat, deceased. Decree for complainants, and defendant appeals.
Reversed and remanded.Wachowski & Wachowski, of Chicago (Casimir R. Wachowski and Michael Siemanski, both of Chicago, of counsel), for appellant.
Maxfield Weisbrod and Eugene Bernstein, both of Chicago, for appellees.
John F. Szarat, a resident of Chicago, died on May 15, 1935. An instrument apparently prepared by himself, dated April 3, 1935, purporting to be his last will and testament was denied admission to probate by the probate court of Cook county. The circuit court of Cook county, after a hearing de novo, affirmed the order of the probate court. This court, upon appeal, reversed the order of the circuit court and remanded the cause, with directions to admit the will to probate. Szarat v. Schuerr, 365 Ill. 323, 6 N.E.2d 625. This was done and letters testamentary were issued to Josephine Schuerr, as executrix, the co-executrix named in the instrument having declined to act with Mrs. Schuerr. Thereafter, William J. Szarat and Marie Turner, the two children of the decedent, his only heirs-at-law, filed their bill of complaint in the circuit court of Cook county to set aside the instrument. The contestants charged that the purported will was not signed by the attesting witnesses in the presence of John F. Szarat; that he lacked testamentary capacity, and that his signature to the document was procured through the exercise of undue influence by the proponent, Josephine Schuerr. By her answer proponent denied the allegations of the complaint. At the conclusion of the contestants' evidence the chancellor granted proponent's motion to withdraw the issue of undue influence from the jury's consideration. Her motions at the close of all the evidence to exclude the evidence with respect to testamentary capacity and the due execution of the will were denied. The verdict found these two issues for the contestants. An amended motion for a new trial and a motion for judgment notwithstanding the verdict were made and denied, and a decree was rendered upon the verdict. Proponent, individually and as executrix of the instrument purporting to be the last will of John E. Szarat, prosecutes this appeal. The will devised real estate in fee; hence a freehold is involved.
It is contended by appellant that the verdict on the issues of testamentary capacity and proper attestation was against the manifest weight of the evidence, and that the decree of the trial court should be reversed. Six witnesses testified in behalf of the contestants on the issue of testamentary capacity, and eight witnesses testified for the proponent on this issue.
Leland K. Baska testified in behalf of the contestants that, approximately two years prior to the testator's death, he noticed a change in him. Szarat started doctoring at that time. At times witness would have to throw an eraser at him in order to get him to turn to ask him questions. He testified that sometimes he, Szarat, would talk on the telephone and be very nervous at the same time. At about the time he died, he would stand and look out of the window. He would sometimes stand and look out of the window and would not hear the telephone. He would have excuses to go home without doing his work. Baska was of the opinion he was not of sound and disposing mind and memory.
On cross-examination Baska admitted that in the probate court he was asked these questions and answered as follows:
In the circuit court, on the appeal from the probate court, Baska had previously testified in answer to this question:
Daniel H. Ackerman testified that he had known Szarat twelve or fourteen years prior to his death; that for a period of twelve to eighteen months prior to his death he noticed a lot of difference in him, and that he seemed to be absent-minded. Szarat told the witness that he had a new apparatus consisting of a safety-pin on a line with which to catch fish; that he had an awful blank took at the last, and that there was something peculiar about his conversation. He would be talking on a subject and drift off to another one, and, in the opinion of the witness, he was not in his right mind.
Samuel A. Marrs testified that he had known Szarat for ten to twelve years; that when he saw him in the summer and fall of 1934 there was a change in his physical and mental condition compared with previous years. He was kind of ‘starey.’ He noticed that Szarat did talk of one thing and then another. He would talk about fishing and then about hunting. He did not have an active step but dragged and scuffled his feet. There was a peculiar expression in his face. In the opinion of the witness, Szarat was not in his right mind the last time he saw him, in March of 1935, and, in his opinion, his mind was not as sound and perfect a mind as it had been previously. On cross-examination this witness testified that the reason be believed Szarat was not of sound mind was because he was not the same as he was before-that he was slipping. As to whether Szarat did recognize the people about him, witness said he did recognize him. Witness had no idea what his condition was on April 4, 1935, the day the will was executed.
Joseph S. Szarat, brother of the decedent, testified there was a noticeable difference in his physical condition as compared with the previous three or four years. He was sick physically. He couldn't carry on the same conversation that he always did. He testified that on one occasion, in March, 1935, the decedent called him on the telephone to come to the dog pound, and he did not remember calling witness when he came. He could not add accounts as he had previously, and would drift in his conversation. Witness noticed that he was a very sick man-had a deep cough. He testified that on April 3, at the dog pound, at night Szarat placed a bench against the door, stating that he did not want Josephine Schuerr to come in and catch the witness with him, as he did not want her to put a spell on him, the witness. He dragged his feet. Witness was of the opinion that Szarat was not of sound and disposing mind.
May Szarat, sister-in-law of the decedent, testified that, during the year prior to his death, she noticed a change in him physically and mentally. She testified that decedent was nervous. He said he felt terrible. At times he would cry and, in the opinion of the witness, the decedent's mind was not sound.
Victoria Eicholz, sister of the decedent, testified that she saw the decedent two or three times in the month of July, 1934. In March, 1935, he agreed to meet the rest of the brothers at a meeting on Monday night. He did not come Monday night and came Tuesday night and stated he had his dates mixed up. He mumbled to himself. In her opinion his mind as not sound.
Gloria Royston testified in behalf of the proponents. She had met the decedent in the holiday season of 1934 and saw him about twice a month, thereafter. She was present the evening the will was executed and was of the opinion that he was of sound mind.
Bertha Trent, who had known decedent for about five years, was present at decedent's home at a party on April 4, 1935, the evening of the execution of the will. She was of the opinion that the decedent was of sound mind.
Dr. Anthony Stream, Szarat's family physician, who had known Szarat for thirty years, testified he saw the decedent in December of 1934, four times in January, 1935, and three times in February, 1935. He saw him on April 4, just prior to the execution of the will. Witness stated that the decedent did not talk on one subject and then drift to another; that the decedent was physically a little different than he had been but, mentally, he was no different. He was just nervous and run down physically, and that decedent's condition did not seem to affect his brain. In the doctor's opinion he was sane.
Dr. Walter E. Block took care of the decedent up until the time of his death. The decedent visited the doctor's office several times in February and April, 1935. His physical condition became worse and, on May 6, 1935, the doctor came to see the decedent at his home and suggested he go to a hospital for observation. On May 9, 1935, the witness told Szarat of his serious physical condition and that he might die shortly and advised him to settle his estate, and Szarat replied that he had already made his will and provided for people he mentioned in the will. Witness was present on May 15, 1935, the day of Szarat's death. Szarat talked about the making of his will and told him that Mrs. Schuerr had the keys, boxes and bonds. The doctor stated that at all times Szarat was of sound and disposing memory, and that his disease did not affect his mind.
Agnes Wiorek testified that she was a sister of Josephine Schuerr. She testified that she saw Szarat practically every day for the last two years of his life, and that she stayed in his home the last two weeks, night and day, before he died. Szarat told witness about making his will. Szarat was not confined solely to his bed, with the exception of the last day. She...
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