Turckheim v. Birkley

• Decision Date: 15 April 1919
• Docket Number: No. 11945.,11945.
• Citation: 287 Ill. 434,122 N.E. 814
• Parties: TURCKHEIM v. BIRKLEY et al.
• Court: Illinois Supreme Court

287 Ill. 434

122 N.E. 814

TURCKHEIM

v.BIRKLEY et al.

No. 11945.

Supreme Court of Illinois.

April 15, 1919.

Appeal from Circuit Court, Marion County; William B. Wright, Judge.

Proceedings by Henry Turckheim against Louis Birkley and others to contest the will of Martha Gickoni, deceased. From a decree entered on the verdict of a jury finding testatrix of unsound mind and setting aside the will, defendants appeal. Affirmed.

Frank f. Noleman, of Centralia, Charles F. Patterson, of Sandoval, and June C. Smith, of Centralia, for appellants.

A. D. Rodenberg, of Springfield, Charles F. Dew, of Centralia, and Kagy & Vandervort, of Salem, for appellee.

STONE, J.

This is an appeal from a decree of the circuit court of Marion county, entered on the verdict of the jury finding the testatrix, Martha Gickoni, not of sound mind and disposing memory at the time of the execution of her alleged will and that she was at that time under undue influence, and setting aside said will.

The issues were joined on the question of testamentary capacity at the time of the execution of the will and on that of undue influence of the appellant Louis Birkley. An answer was filed denying the allegations of the bill, and a replication was filed thereto. The trial was proceeding in the usual way before a jury, when counsel for the appellants asked leave of court to examine appellee before the court and not in the presence of the jury, touching his competency to bring or maintain the suit. The court sustained the objection of appellee that no plea setting forth such matter had been filed nor was any such matter set forth in the answer. Thereupon the appellants asked and obtained leave to withdraw their answer and filed two pleas alleging that the appellee was an alien enemy, a subject of a government then at war with the United States, and had no right to maintain a suit in the courts of this country; that by reason of the fact that he was an alien enemy he could not inherit under our statute, and for that reason had no interest in the estate of Martha Gickoni and could not maintain a bill to contest the will in question. The court sustained a motion of the appellee to strike said pleas on the ground that they were not filed in apt time. Thereupon appellants filed their answer denying the material allegations in the bill and in addition the special matter set up in the foregoing pleas. The court sustained exceptions to that part of the answer setting forth the special matter contained in the above pleas.

Such averments are not properly an answer to the bill, but should be raised by pleas to the person. Puterbaugh's Ch. Pl. & Pr. (5th Ed.) 100. ‘Pleas to the person do not necessarily dispute the validity of the rights which are made the subject of the claim, but they object to the ability of the party to sue or be sued. They are of two kinds: First, pleas to the person of the plaintiff,’ etc. (Story's Eq. Pl. § 722), such as the plea that plaintiff is an alien enemy (Id., § 724). The pleas in question were pleas to the person and should have been filed in apt time. Appellants did not seek to file these pleas until engaged in the trial of the cause. The chancellor held that said offer came too late and struck the pleas from the files. It was not an abuse of discretion on the part of the chancellor to strike the pleas. They were dilatory pleas, and defendants could not, as a matter of right, file them on the trial of the case. Pleas of incapacity to sue are pleas in abatement. They do not go to the merits of the bill, but only tend to an abatement of the suit. Fischer v. Stiefel, 179 Ill. 59, 53 N. E. 407. The pleas should have been filed in apt time, and, as appellants failed to do so, the chancellor did not err in striking said pleas from the files. Lincoln v. McLaughlin, 74 Ill. 11;Dow v. Blake, 148 Ill. 76, 35 N. E. 761,39 Am. St. Rep. 156;Phenix v. Stocks, 149 Ill. 319, 36 N. E. 408.

Appellants further contend that the verdict of the jury was against the preponderacne of the evidence on the issues of testamentary capacity and undue influence.

It appears from the evidence that the testatrix owned a house and two or three lots in Sandoval, in which premises she lived after her return from the state hospital, except for a short interval in which she lived in Chicago with her son, the appellee. During the time spent at Sandoval she utilized the lots for gardening. She was a hard worker, a good gardener, and produced more than for her personal needs. From some source not clearly disclosed in the evidence, she accumulated a few thousand dollars in money. She had no means or source of income shown by the evidence except from her own labor in growing and selling vegetables. She was frugal and saving. She had no inclinationtoward outside matters or acquaintances and was peculiar in her habits. She seemd to be content to live alone and operate her small garden. Six or eight years before her death, she made a visit to the appellee in the city of Chicago with the intention of making her home with him. The evidence discloses that she was discontented in Chicago and remained there but a short time. It appears that she stated to some of the witnesses that her son did not treat her well, while to others she said her son did treat her well, but that his wife made her wash herself too frequently and to ‘primp’ too much, and that she did not like the noise of the city. After leaving Chicago, she came to Sandoval and continued, as before, to raise vegetables, peddle them about, and deposit her earnings in the bank. On February 20, 1885, she was adjudged insane by the county court of Marion county and by it committed to the Illinois state hospital for the insane at Anna, where she remained as a patient for a little less than two years, when she was released from that institution and returned to her home at Sandoval. The record fails to disclose that she was discharged as cured. No action was ever taken...