Valbert v. Valbert

• Decision Date: 20 February 1918
• Docket Number: No. 11851.,11851.
• Citation: 282 Ill. 415,118 N.E. 738
• Parties: VALBERT v. VALBERT et al.
• Court: Illinois Supreme Court

282 Ill. 415

118 N.E. 738

VALBERT

v.VALBERT et al.

No. 11851.

Supreme Court of Illinois.

Feb. 20, 1918.

Error to Circuit Court, Clay County; William B. Wright, Judge.

Suit by Franklin Valbert against Jay Valbert and another. To review a decree dismissing the bill, plaintiff brings error. Decree affirmed.

James H. Smith, of Louisville, and H. W. Shriner, of Flora (J. A. MacNeil and H. G. Morris, both of Olney, of counsel), for plaintiff in error.

Creighton & Thomas, of Fairfield, and J. L. Boyles, of Flora, for defendants in error.

CARTER, C. J.

This was a bill filed by Franklin Valbert to cancel and set aside two deeds executed by Francois Valbert on the ground of mental incapacity and undue influence, one of the deeds purporting to convey 40 acres of land to Jay Valbert and another 40 acres to America J. Kinnaman, both grantees being children of Francois. After the issues were joined a hearing was had before the chancellor, and a decree was entered dismissing the bill for want of equity. This writ of error was then sued out.

Francois Valbert died January 29, 1916, aged 86 years. His wife had died a few months previously. He had been a farmer in Clay county for many years and had accumulated considerable property, most of which was in farm lands in that vicinity. He left five children: Franklin Valbert, Amelia Stone, Albert J. Valbert, America J. Kinnaman, and Jay Valbert. November 7, 1913, he made a will, giving all of his property to the five children, share and share alike. On February 9, 1914, he executed the two deeds in question, and on the same day he added a codicil to his will, in which it was stated that he had theretofore executed and delivered to A. J. Valbert and Amelia Stone deeds for 40 acres each, and had advanced to Franklin Valbert money equal to the value of the land deeded to each of his two last-named children, and that he therefore conveyed by deeds to Jay Valbert and America J. Kinnaman 40 acres of land each. The codicil then continued:

‘I do this for the purpose of making each of my children participate equally in the distribution of my estate, and with the execution of these two conveyances I hereby declare that each of my children has now received from me, in land and money and money's worth, an equal amount of my property and estate. (2) Having so equalized by children in what they have already received, I do now give, devise and bequeath to each of my children [naming them all, including Franklin] all the real estate and lands that I may own at the time of my death, * * * and do hereby request that they divide the same equally between them, by mutual agreement, if possible, and without the necessity of any suit to divide the same. And after the payment of my debts and funeral expenses I give and bequeath to my children above named, all of my personal estate and property, * * * to be equally divided between them.’

He also inserted in the codicil a statement that should any child contest the will or bring suit to set aside the deeds, such contestant's share of the estate should be reduced by $1,000. The will and codicil were probated after the testator's death.

In 1916 Albert J. Valbert filed a bill for partition of the lands devised generally by said will to the five children, and not included in said two deeds executed February 9, 1914. In that suit Franklin Valbert, the plaintiff in error in this suit, was made a party defendant, as were all the other children. A partition was decreed, and, it being found impracticable to partition, the lands were sold under a decree of sale in said partition proceedings. The proceedings for partition and the decree of sale were admitted in evidence on this hearing over the objection of complainant. It was insisted in the trial court by the defendants in error, as it is here, that these decrees of partition and sale should operate as an estoppel in this suit, and should be held res judicata as to the interests of plaintiff in error in the land conveyed by said deeds. This question was not decided by the trial court, and in view of the conclusions reached here on other branches oif this case need not be decided here.

The five children resided either at Flora or vicinity, in Clay county, at the time of Francois Valbert's death. Much evidence was taken before the chancellor as to the mental condition of the testator, over 60 witnesses testifying, about 30 on each side. Most of the witnesses testifying for plaintiff in error were merely acquaintances of the testator, few of whom had ever had any business relations with him, while many of those for defendants in error had business dealings with the testator, some of them during a long period of years, and the evidence seemed to show, without contradiction, that he transacted business both before and after the execution of the will and codicil and the deeds here in question. A number of witnesses for plaintiff in error testified that in view of what they had seen and heard they did not think the testator was competent to transact business at the time the deeds were executed, but some of the witnesses for plaintiff in error testified, on cross-examination, that he knew what he was talking about in his conversations with them, and they were of the opinion that he was able to transact ordinary business. Much of the testimony on behalf of plaintiff in error was to the effect that the testator himself realized in the later years of his life that his mind and strength were not sufficient for him to take care of all of his business. The fact that he was able to realize his own declining mentality and physical condition, in our judgment, might be as consistent with sanity as otherwise. The evidence seemed to show that during the later years of his life much of his business had been transacted for him by his sons, first by plaintiff in error, Franklin Valbert, later by Albert J., and during the last years of his life by defendant in error Jay Valbert. The continuous burden of conducting his business from day to day might easily have been too much for the testator in his then physical and mental condition, and yet he might be able to transact and understand business to such an extent as to meet all the tests as to the mental capacity necessary to make a will or execute a deed. The testimony is all to the effect that up to the time he was 70 or more years of age he was a man of considerable force and ability, and was able to conduct his own business with success. There is no doubt from the testimony that during the later years of his life he acquiesced in the control and management of a part of his business by his various children.

The strongest testimony produced on behalf of plaintiff in error included the following statements of witnesses: That from 1900 he began to get feeble; that in 1912 he was pretty feeble, was childish, wasn't able to get out and lost control of himself; that his physical appearance had changed; that he was more susceptible to influence than theretofore; that in conversation he changed from one subject to another; that he forgot easily; that at times he would be around with others and not say anything; that he talked sometimes about things in a manner not just right; that on one occasion he differed with one of his sons about the location of a fence line on the farm and the son's judgment finally prevailed; that another time he told a witness his wife was stealing his eggs and selling them, and asked the witness what he ought to do; that he told one of his grandchildren that everybody seemed to be against him; that he started to attend a school election and fell down on his way across the fields and had to be assisted to get up, and that when he reached the school-house he did not vote, but it appeared this was after he had been told there was only one set of candidates running; that he refused to sell some calves on one occasion and got angry over the discussion about selling them; that he failed to miss from the pasture a couple of steers which had been gone a considerable time; that he wasn't able to do business any more; that he would know a person one day and would not another; that he talked to a road commissioner about cutting a grade across a road which was in another commissioner's territory, and had to be told that fact several times. Some of the witnesses for plaintiff in error, without mentioning any special facts upon which they based their statements, testified that the testator was not competent to transact business. Only one of them thought he was insane. Most of the witnesses for plaintiff in error confined their statements and observations to the general subject that he was feeble physically and mentally...