Thompson v. Owen

• Decision Date: 18 June 1898
• Citation: 51 N.E. 1046,174 Ill. 229
• Parties: THOMPSON v. OWEN et al.
• Court: Illinois Supreme Court

174 Ill. 229

51 N.E. 1046

THOMPSON

v.OWEN et al.

Supreme Court of Illinois.

June 18, 1898.

Appeal from circuit Court, Hancock county; Charles J. Scofield, Judge.

Petition of Mary A. Thompson, opposed by Letha J. Owen and others, for probate of will of Thomas J. Thompson. deceased, was denied by the county and circuit courts, and petitioner appeals. Reversed.John B. Risse & Son, for appellant.

O'Harra, Scofield & Hartzell, for appellees.

BOGGS, J.

The appellant filed in the county court of Hancock county an instrument in writing purporting to the last will and testament of Thomas J. Thompson, deceased, and also filed her petition praying that the said instrument might be admitted to probate. A hearing was had, and the county court refused to admit the instrument to probate as the will of the said deceased. The appellant appealed from this order of the county court to the circuit court of said county, and in the said circuit court the cause was, by agreement of the parties, submitted to the court without the intervention of a jury. The circuit court entered an order refusing and disallowing the petition of the appellant that said instrument be admitted to probate, and the appellant has brought the cause to this court by a further appeal from the said order and judgment of the circuit court.

The alleged will purported to bequeath and devise all the real and personal property of the said deceased, and upon its face appeared to have been duly executed, with all the formalities provided for by statute, and appended thereto was an attestation clause containing full recitals to that effect. The attestation clause was as follows: ‘The within instrument, consisting of two (2) sheets, or four (4) pages, was now here subscribed by Thomas J. Thompson, the testator, in the presence of each of us, and at the same time declared by him to be his last will and testament; and we, at his request and in his presence, and in the presence of each other, sign our names hereto as attesting witnesses, this 6th day of January, 1893. Arch E. McNeall. S. M. Irwin.’ The attesting witnesses were produced, and each for himself testified that the signature appended to the attestationclause, purporting to be his signature, was his true and genuine signature; each of them, however, testifying he had no recollection of signing the said attestation clause, or of seeing the deceased sign the will, or that the deceased ever acknowledged the same to be his act or deed.

It was proved by the testimony of two witnesses, and not denied or questioned, that the signature to the will was the true and genuine signature of the deceased, Thomas J. Thompson. The body of the will and the attestation clause were both in the handwriting of David E. Mack, judge of the county court of said Hancock county. It appeared from the testimony of Judge Mack that the deceased, who resided at Bowen, in said county of Hancock, about two years before his death came to the office of the witness in Carthage, in said county, and requested and directed him to prepare the will in accordance with his wishes, which he then fully made known to the witness. The witness testified he advised the deceased as to the requirements of the statute with relation to the execution of wills, and gave him full and explicit directions as to the mode and manner in which the instrument should be signed, executed, and witnessed; that he afterwards, on the same day, wrote the instrument (including the attestation clause) offered as the will, and sent it by mail to the said deceased, at Bowen. This witness identified the instrument offered as being the one so prepared and written by him. It was also proven that the deceased delivered the instrument purporting to be his last will and testament to one George Nash, a banker residing and doing business in Bowen, and requested him to preserve and safely keep the same, and that said Nash produced the instrument after the death of said Thompson.

The court rejected from consideration the recitals of the attestation clause as being incompetent. The will bore the genuine signature of the alleged testator; the attesting clause recited full compliance with all the requirementsof the statute with relation to the execution of the will, and bore the genuine signatures of the attesting witnesses; no evidence appeared tending to disprove the observance of any requirement of the statute; circumstances were proven corroborative of due execution; the attesting witnesses were produced, identified their signatures to the attesting clause, and gave no testimony tending to contradict anything recited in said clause,-and in such state of circumstances we think the attesting clause was competent to be received in evidence, and to be considered in connection with the testimony of the two attesting witnesses on the question of the execution of the will by the said deceased. Such, of course, is not the rule when a will is presented to the county court for probate, and the attesting witnesses are present in that court, and under no disability; for the reason that it is expressly provided, in order to authorize a county court to admit a will to probate, the execution of the will shall be proven by two or more credible witnesses, declaring, on oath or affirmation, they were present, and saw the testator sign the said will in their presence, or that the testator acknowledged to them that the instrument purporting to be his last will was his act and deed. Rev. St. c. 148, § 2, entitled ‘Wills.’ But it is also expressly provided by section 13 of the same chapter that if the probate of any will shall have been refused by any county court, and an appeal shall have been taken from such order of the county court to the circuit court, it shall be lawful for the party seeking probate of such will to support the same, on the hearing in the circuit court, by any evidence competent to establish a will in chancery.

There is abundant authority for the view we have expressed that an attestation clause which the attesting witnesses to a will swear bears their signatures is competent evidence tending to establish the due execution of the will in chancery, when the only defect in the proof of the execution is that the subscribing witnesses are unableto recollect that all the formalities prescribed by the statute and recited in the attesting clause were actually complied with. In 1 Jarm. Wills (6th Ed.) 123, 124, it is said that ‘failure of memory on the part of witnesses will not upset the will, where the attestation clause is sufficient’; citing many cases. Also, in 1 Redf. Wills (4th Ed.) p. 128, it is said: ‘It seems to be well settled that, in the absence of all proof, the witnesses being deceased or not in a condition to give testimony, the presumption omnia rite acte will arise, as in ordinary cases. * * * And, where the attestation clause contains all the particulars of a good execution, it will always be prima facie evidence of due execution, and will often prevail over the testimony of the witnesses who give evidence tending to show that some of the requisites were omitted.’ The text is supported by many authorities cited, and it is further said in note 26, on page 238, that ‘the mere forgetfulness of the witnesses of the facts certified in the attestation clause is not regarded as any obstruction to granting probate of the will.’ To the same effect, see Schouler, Wills, §§ 347, 348.

In Abbott v. Abbott, 41 Mich. 540, 2 N. W. 810, where one of the attesting witnesses failed to remember, and could not therefore testify, that all the formal requisites required by the statute to be observed had been complied with, the late Chief Justice Campbell said: ‘But we know of no rule of law which makes the probate of a will depend upon the recollection, or even the veracity, of a subscribing witness. The law, for wise and obvious reasons, requires such instruments to be executed and attested with such precautions as will usually guard against fraud. But, if the forgetfulness or fraud of a subscribing witness can invalidate a will, it would be easy, in many cases, to use such artifices or corruption as would render the best will nugatory. Their evidence is not conclusive either way, nor does the law presume that they are more or less truthful than others. It presumes they had, when they signed, full knowledge of what they were doing, and, in case they are dead, their attestation, when proved, is prima facie evidence that all was done as it should be.’

In New Jersey (McCurdy v. Neall, 42 N. J. Eq. 333, 7 Atl. 566) it was said: ‘The attestation clause is perfect, and the execution to which the witnesses thus certify and attest is an exact compliance with the statute. Under such circumstances, the court must have clear proof to warrant the conclusion that the will was not duly executed. Wright v. Rogers, L. R. 1 Prob. & Div. 678. In Allaire v. Allaire, 37 N. J. Law, 312, it is laid down that, ‘if the attestation clause is perfect, and shows on its face that all the forms required by the statute have been complied with, and the subscribing witnesses, when called, admit their signatures, but through defect of memory, or for any other reason, fail to testify to the due execution of the will, it may be established on the presumption arising from the form of the attesting clause, unless there be affirmative evidence given to disprove its statements.’ In Tappen v. Davidson, 27 N. J. Eq. 459, it was held that if, in such case, it be merely doubtful, from the evidence, whether the statutory requisites have been complied with, the presumption arising from the attestation clause is not overcome. In this case the evidence is by no means such as to disprove the statements in the attestation clause.'

In New York (In re Kellum's Will, 52 N. Y. 517) it was said: ‘If the attestation clause is full, and the signatures genuine, and the circumstances corroborative of due execution, and no evidence...