Taylor v. Pegram

• Decision Date: 16 June 1894
• Citation: 37 N.E. 837,151 Ill. 106
• Parties: TAYLOR et al. v. PEGRAM et al.
• Court: Illinois Supreme Court

151 Ill. 106

37 N.E. 837

TAYLOR et al.

v.PEGRAM et al.¹

Supreme Court of Illinois.

June 16, 1894.

Appeal from circuit court, Greene county; George W. Hardman, Judge.

Bill by Martha J. Taylor and others against Alvin Pegram and others. Defendants obtained a decree. Complainants appeal. Affirmed.

Mark Meyerstein and James M. Riggs, for appellants.

J. R. Ward, H. H. Montgomery, H. T. Rainey, and Thomas Henshaw, for appellees.

MAGRUDER, J.

This is a bill filed by the daughters of Nathaniel H. Pegram, who died testate on October 1, 1889, against his sons, to set aside his will, which was executed on August 20, 1889, upon the alleged ground of mental incapacity and undue influence. An answer was filed by the defendants, denying the allegations of the bill, to which answer a replication was filed. The issues were submitted to a jury, who returned a verdict finding the writing read in evidence to be the last will and testament of the deceased, and that he was of sound mind and memory at the time of making the same, and that he was not induced to make said will by undue influence on the part of the defendants. Motions to set aside the verdict, and for a new trial, were overruled, and decree was entered sustaining the will, and the probate thereof, and for costs against the complainants, and dismissing the bill. From such decree the present appeal is prosecuted.

The testator, who died in Greene county, was 82 years old at the time of his death, and left surviving him a widow and eight children,-four daughters, complainants below and appellants here, and four sons, defendants below and appellees here. All of said children were grown and married. The testator's estate consisted of 436 acres of land, claimed by appellants to have been worth about $22,500, and by appellees to have been worth about $18,000, and personalty consisting for the most part of promissory notes, claimed by appellant to have amounted to about $17,000, and by appellees to have amounted to about $10,000. By the terms of the will he devised 40 acres of the land, with the house on it, to his wife for her life, and also bequeathed to her the household furniture, and a small amount of personalty. He bequeathed to each of his daughters Martha J. Taylor, Maria L. Graham, and Mary E. Kelly the sum of $2,000; and to his sons Alvin Pegram and Edward B. Pegram, the executors named in the will, in trust, the sum of $2,000 for the use of his daughter Caroline Vineyard during her natural life, to be invested by said trustees, the interest to be paid to her during her life, and the principal to go at her death to her children, but, if she should die without leaving any child, then to go to her brothers and sisters or their descendants. All the personalty remaining after making these devises was to be equally divided among all the children. The testator, by his said will, devised all his real estate, subject to the life estate of his wife in said 40 acres, to his four sons, said Alvin and Edward B. Pegram, and James B. and Nathaniel H. Pegram, with a provision that, if any one of his sons should refuse to pay any note or notes, with the interest thereon, which might be due from them and unpaid to him at his death, then the interest of such son in said lands was to be charged with the payment thereof.

[151 Ill. 113]1. After a careful examination of the evidence, we are unable to say that the verdict of the jury is not correct. The proof preponderates in favor of the testator's mental capacity, and against the exercise of any undue influence over him by his sons before he made his will on August 20, 1889, and at that time. On the afternoon of that day he sent for a neighbor, F. M. Fishback, and a lawyer, H. C. Withers, both of whom had known him about 30 years. He took Mr. Withers into the parlor, and produced his papers, among which were a former will, and some notes held by him against his sons. He indicated what changes he wished to make in the disposition of his estate in the new will to be substituted for the old one, asked if the notes against his sons were barred by the statute of limitations, and stated that he desired the lands to be charged with their payment, as the legacies to his daughters would be paid out of the amounts to be collected on them. The will was read over to him. Several hours were spent in fixing the terms and in drawing it, and then Mr. Fishback was called in, and he and Mr. Withers signed the will as witnesses. None of the appellees were present at that time, but Mrs. Kelly, one of the appellants, and her husband and children, were in the house when the will was executed. Mr. Kelly was the messenger who was sent to call Mr. Withers to the house to draw the will. After it was signed the testator invited his guests to take supper with him, and took part in the conversation at the supper table. Withers and Fishback both swear that he was mentally capable of transacting the ordinary business of life at that time. All the facts and circumstances connected with the execution of the will, and the occurrences preceding and following it, indicate that the deceased was in full control of his faculties, and free from the domination of any undue influence. Some of the proof shows that at times he seemed to suffer from some of the infirmities of old age, including a defective memory; but advanced age and loss of memory do not necessarily and of themselves indicate a want of capacity to dispose of property. Francis v. Wilkinson, 147 Ill. 370, 35 N. E. 150. Much stress is laid upon the fact that the daughters have not received as much as the sons have received by the terms of the will. But inequality in the distribution of property is not of itself conclusive evidence of undue influence. It may be considered as a circumstance tending to establish undue influence, but the testator may give one child more than another without invalidating the will. Francis v. Wilkinson, supra. In the present case the jury evidently did not think that such inequality as exists in the testator's disposition of his property was sufficient to establish undue influence, when considered in connection with the facts and circumstances negativing the exercise of such influence.

2. Objection is made to the reception and rejection of evidence. It is said that the attorney who drafted the will and was one of the subscribing witnesses thereto was improperly allowed to state that he observed no indication of the exercise of undue influence upon the mind of the testator in order to bring about the execution of the will. Undue influence which will justify the setting aside of a will must be such as to deprive a testator of his free agency. Francis v. Wilkinson, supra. A witness may properly give his observation of the condition and surroundings of a testator, so that the court and jury may be able to determine whether his act is the offspring of his own or of another's will. The other subscribing witness spoke of the testator as a man who could not be easily persuaded ‘when he made up his mind what he wanted to do;’ and it is objected that this statement was not limited to the time when the will was made, or to a period near that time. We think that the remark can be considered as applicable to a time sufficiently near the execution of the will, as the witness speaks of talking with the testator on the porch of his house just before the will was drawn, and at the supper table, just after that occurrence. A witness, who was an assessor, and visited the testator for the purpose of assessing his lands, was asked whether, in his opinion, he could have purchased the testator's lands at less than their real value. The object of the question, in a general way, was to elicit the opinion of the witness as to the mental capacity of the testator to protect his own property interests. The question was perhaps objectionable, as calling for the opinion of the witness upon a matter to be determined by the jury, under the ruling upon a similar, but more general, question, in Schneider v. Manning, 121 Ill. 376, 12 N. E. 267. But the error is not sufficient to reverse the judgment. The witness had stated the facts in regard to the assessment of the testator's land. He had the right to state any facts known to him in relation to the capacity of the testator to transact business, ‘and all he knew in regard to the vigor or strength of his mental powers.’ Schneider v. Manning, supra. Neighbors and acquaintances of the deceased, if men of good common sense, are competent to give their opinions as to his mental capacity. Rutherford v. Morris, 77 Ill. 397. It seems that the testator had, before the execution of the present will, made two other wills,-one in 1882 and one in 1886. One or two witnesses were questioned as to the testator's statements, made about the time of the execution of these former wills, upon the subject of the manner in which he had therein disposed of his property. It is admitted that the testator was of sound mind, and free from the control of any undue influence, when he made the former wills. The disposition which he stated in 1882 and 1886 that he had then made of his property approximated very nearly to the provisions of the will now in contest. This circumstance tended to rebut the idea that undue...