Trish v. Newell

• Decision Date: 30 September 1871
• Citation: 1871 WL 8362,14 Am.Rep. 79,62 Ill. 196
• Parties: CHRISTIAN TRISH et al.v.LOUISA NEWELL et al.
• Court: Illinois Supreme Court

62 Ill. 196

1871 WL 8362 (Ill.)

14 Am.Rep. 79

CHRISTIAN TRISH et al.

v.LOUISA NEWELL et al.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Kendall County; the Hon. EDWIN S. LELAND, Judge, presiding.

Mr. C. J. METZNER, for the plaintiffs in error.

Messrs. WHEATON, SMITH & MCDOLE, for the defendants in error.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was a bill in equity, brought under the statute of wills, by defendants in error, as husband and wife, the latter being the only heir-at-law of Joseph Wing, deceased, against plaintiffs in error, to set aside what purported to be the last will and testament of said Wing, which had been admitted to probate, on the ground of want of testamentary capacity in him, and for undue influence and fraud exercised and practiced by plaintiffs in error in obtaining its execution.

Answers and replications were filed and an issue made up to be tried at law, whether or not the instrument purporting to be the last will and testament of Joseph Wing, deceased, was his will. This issue was tried by a jury, and a verdict returned that said instrument was not the will of said Joseph Wing. A motion was made for a new trial, which was overruled by the court, to which exception was taken, and a decree was entered setting aside the will and probate thereof. The evidence, rulings of the court, and exceptions were preserved by bill of exceptions, and the defendants below brought the case to this court by writ of error.

Numerous errors have been assigned, many of which are baseless and untenable, but some of them present questions which are deemed worthy of serious consideration.

It appears that Wing, about the 10th day of July, 1866, being then about eighty years of age, was visited with a severe stroke of paralysis, which at the time rendered him quite, if not wholly unconscious; but upon being bled he recovered his consciousness, and improved to the extent, as stated by his then attending physician, that he knew his acquaintances and what he wanted, but remained helpless, one side continuing paralyzed, and his powers of speech were irrevocably lost; but as to the degree of capacity attained we desire to express no opinion of our own. He survived until May, 1868. On the 21st of November, 1866, something over four months after the attack, the will in question was executed. His condition, about the time of the attack, and its severity, were not much controverted, but it was maintained by the defendants below, who assumed the burden of proof in respect to his sanity, that, however violent the stroke might have been, still he soon recovered measurably from it, and was so far improved at the time of making the will that he then possessed full testamentary capacity. This was controverted by complainants below, who insisted that by the severity of the stroke of paralysis he became and continued, down to the time of making the will, so far deprived of mind and memory as to be incapable of making a valid will; and, at all events, he was thereby reduced to such a weak condition of body and defect of intellect as to render him a mere passive instrument in the hands of those about him, and that, therefore, his feeble condition of body and mind, in connection with the other proof as to surrounding circumstances and dominion over him, on the part of some of the defendants below, furnished most essential and convincing proof that this particular will was made without the proper legal consent of the testator.

Such being the theory of the case by the respective parties, each party introduced a large mass of evidence in support of the grounds taken.

On behalf of the complainants, the court, by the third instruction, directed the jury as follows:

“If the jury believe, from the evidence, that, on the 10th day of July, 1866, the deceased, Joseph Wing, was, by a stroke of paralysis, rendered entirely unconscious, and of unsound mind and memory to the extent defined in other instructions, the law presumes such unsoundness of mind to continue until the contrary is proven; and the burden of proof is on those now seeking to establish this will, to show affirmatively, and to the satisfaction of the jury, that said Wing subsequently, and before said alleged will was made, became of sufficiently sound mind, and of a sufficiently rational and disposing mind at the time of the execution thereof, so that he could and did comprehend its motive and effect; and they must establish this by preponderance of proof, or the jury must find against the alleged will.”

Exception was taken to this instruction by the defendants below, and the giving of it is assigned for error.

This instruction was wrong, and must have been very prejudicial to the opposite party. Greenleaf says, “Every man is presumed to be of sane mind until the contrary is shown; but if derangement or imbecility be proved or admitted at any particular period, it is presumed to continue until disproved, unless the derangement was accidental--caused by the violence of disease. 1 Greenlf. on Ev. § 42.

In Hix v. Whittemore, 4 Met. (Mass.) 545, a similar instruction was given. The court, Dewey, J, delivering the opinion, says:

The force of presumption arises from our observation and experience of the mutual connection between the facts shown to exist and those sought to be established by inference from those facts. Now, neither observation nor experience shows us that persons who are insane from the effect of some violent disease do not usually recover the right use of their faculties.” Such cases are not unusual, and the return of a sound mind may be anticipated from the subsiding or removal of the disease which has prostrated their minds. It is not, therefore, to be stated as an unqualified maxim of the law, “Once insane presumed to be always insane;” but reference must be had to the peculiar circumstances connected with the insanity of an individual, in deciding upon its effects upon the burden of proof, or how far it may authorize the jury to infer that the same condition or state of mind attaches to the individual at a later period. There must be kept in view the distinction between the inferences to be drawn from proof of an habitual or apparently confirmed insanity and that which may be only temporary. The existence of the former once established would require proof from the...