Tidholm v. Tidholm

• Decision Date: 17 September 1945
• Docket Number: No. 28570.,28570.
• Citation: 62 N.E.2d 473,391 Ill. 19
• Parties: TIDHOLM v. TIDHOLM.
• Court: Illinois Supreme Court

391 Ill. 19

62 N.E.2d 473

TIDHOLM

v.TIDHOLM.

No. 28570.

Supreme Court of Illinois.

May 23, 1945.

As Modified on Denial of Rehearing Sept. 17, 1945.

Appeal from Circuit Court, Cook County; Robert Jerome Dunne, judge.

Will contest by Charles Tidholm against Amy D. Tidholm. From a judgment sustaining defendant's motion for judgment notwithstanding the verdict, denying plaintiff's motion for new trial and dismissing the complaint for want of equity, the plaintiff appeals.

Reversed and remanded, with directions.

See, also, 322 Ill.App. 691, 54 N.E.2d 745.

Lambert Kaspers, of Chicago, for appellant.

Thomas M. Poynton, of Chicago, for appellee.

STONE, Justice.

Appellant seeks reversal of a judgment of the circuit court of Cook county sustaining appellee's motion for judgment notwithstanding the verdict, denying appellant's motion for a new trial and dismissing the complaint for want of equity, in a will contest case.

Appellant's complaint was filed November 2, 1941, to set aside an instrument in writing purporting to be the last will and testament of his father, August Tidholm, dated May 14, 1938. The facts as alleged in the complaint are substantially as follows: August Tidholm, a resident of Cook county, Illinois, died November 9, 1940, leaving his son Charles, appellant, Amy D. Tidholm, his daughter, Bruce Tidholm, his son, and Lois Ewing, his daughter, as his only heirs-at-law. He left real and personal estate of the estimated value of $16,000. On May 14, 1938, he executed an instrument purporting to be his last will and testament, which was admitted to probate February 24, 1941. Letters testamentary were issued to Amy D. Tidholm. No appeal has been taken from the order of probate. Amy D. Tidholm was named in the will as beneficiary of all the estate except a $100 bequest to appellant.

It is alleged the instrument is not the last will and testament of decedent, for the reason that said August Tidholm, at the time he executed it, was of unsound mind and memory and did not have the physical and mental capacity to make a will, and did not understand the nature or extent of his property or the natural objects of his bounty. August Tidholm was 86 years old at the time the will was executed. His wife had died shortly before and the evidence shows he grieved greatly. The complaint also charges that at the time of the execution of the instrument he was under the undue influence, domination and control of his daughter, Amy D. Tidholm, which deprived him of his free agency and destroyed his freedom of will. It is charged in the complaint and admitted in the answer, that August Tidholm sustained a very close relationship with Amy D. Tidholm, reposing great confidence in her and entrusted his business and confidential affairs into her hands. It is also charged that he readily yielded to persuasion by her; that his will was overpowered and circumvented by her; that at the time of the execution of the instrument he was suffering from the shock of having recently lost his wife; that he was an old man and had become more and more dependent upon Amy D. Tidholm, who had lived with him for many years; that he, at the time of the execution of said instrument, was completely deaf and able to read only with difficulty with the aid of a strong magnifying glass, and that he had great difficulty in getting from place to place and was very dependent upon Amy D. Tidholm to help him. It is charged that the information contained in the purported will was furnished the draftsman by Amy D. Tidholm in a written memorandum, written by her, and that the witnesses, other than the draftsman, had no opportunity to form an opinion as to the capacity of August Tidholm to execute the will; that it was not signed by the witnesses at the request of August Tidholm and was in fact the embodiment and desire of Amy D. Tidholm. Amy D. Tidholm, individually and as executrix, Bruce Tidholm and Lois Ewing, were made parties defendant. The last two named defendants filed disclaimer of any interest in the estate and prayed to be, and they were dismissed as parties to the suit.

Amy D. Tidholm individually and as executrix filed her answer in which she admitted, among other matters herein stated as facts, that the testator sustained a very close and confidential relationship with her, his daughter; that he reposed confidence in her and entrusted his business and confidential affairs into her hands, and had become more or less dependent upon her, who had lived with him all her life. She denied all other allegations of the complaint and as a further defense says that at the time of the execution of the will, although of advanced years, her father was in full possession of his mental faculties, knew the extent of his property and the objects of his bounty, and was fully capable of transacting ordinary business and affairs, and that there was no fraud, compulsion or undue influence exercised by her or by any other person or persons to procure the execution of said will.

Appellant demanded a jury trial and the court made up the issues of fact to be tried by the jury, as follows: (1) Whether the instrument is the last will of August Tidholm; (2) whether, at the time of the execution and attestation of the writing, August Tidholm was of sound mind and memory, and (3) whether any undue influence was used by Amy D. Tidholm to procure the execution of the will.

At the close of all the evidence, appellee moved for a directed verdict in her favor. The court allowed the motion as to the question of mental capacity and withdrew that issue from the jury. The jury was instructed that the sole question before it was that of undue influence. The court also instructed the jury, at the request of appellant to answer as a special interrogatory, whether August Tidholm was, at the time he executed the writing, under undue influence from fraudulent practices of Amy D. Tidholm. The jury did not answer the special interrogatory and returned a verdict finding the instrument is not the last will and testament of August Tidholm, deceased. Appellee's motion for judgment notwithstanding the verdict was allowed, her motion for a new trial overruled and judgment entered dismissing the suit.

The first question involved in this appeal concerns the correctness of the action of the trial court in setting aside the verdict of the jury and entering judgment or decree notwithstanding the verdict. It is well settled that a will contest is strictly a statutory and not an ordinary chancery proceeding. The cause is tried upon the issue whether the writing produced is the will of the testator. The verdict of a jury in a will contest has the same force and effect as the verdict of a jury in an action at law, Hunt v. Vermilion County Children's Home, 381 Ill. 29, 44 N.E.2d 609;Voodry v. University of Illinois, 251 Ill. 48, 95 N.E. 1034, and motions for a directed verdict or a judgment motwithstanding the verdict are governed by the same rules which govern such motions in an action at law. The only question in such a case is whether there is any evidence in the record tending to prove the allegations of the complaint. The party resisting such motions is entitled to the benefit of all the evidence favorable to him. Hunt v. Vermilion County Children's Home, 381 Ill. 29, 44 N.E.2d 609;Ryan v. Deneen, 375 Ill. 452, 31 N.E.2d 582;Ginsberg v. Ginsberg, 631 Ill. 499, 198 N.E. 432;Greenlees v. Allen, 341 Ill. 262, 173 N.E. 121.

Where the evidence, taken in its aspects most favorable to the contestant, together with all reasonable presumptions and inferences to be drawn therefrom, tends to establish the allegations of his complaint, the issue should not be withdrawn from the jury. Peters v. Peters, 376 Ill. 237, 33 N.E.2d 425;Ginsberg v. Ginsberg, 361 Ill. 499, 198 N.E. 432. So, a motion for judgment notwithstanding the verdict, under the Civil Practice Act, raises the same question of law and has the same effect as a motion for a directed verdict. Neither the trial court, nor this court on review, is permitted to weigh the evidence to determine where the preponderance lies. In other words, if the plaintiff's evidence makes out a prima facie case, sufficient in itself to go to the jury, the motion must be denied. Walaite v. Chicago, Rock Island & Pacific R. Co., 376 Ill. 59, 33 N.E.2d 119;Froehler v. North American Life Ins. Co., 374 Ill. 17, 27 N.E.2d 833. Evidence favorable to plaintiff's case is all that can...