Waters v. Waters

• Decision Date: 14 June 1906
• Citation: 222 Ill. 26,78 N.E. 1
• Parties: WATERS et al. v. WATERS et al.
• Court: Illinois Supreme Court

222 Ill. 26

78 N.E. 1

WATERS et al.

v.WATERS et al.

Supreme Court of Illinois.

June 14, 1906.

Appeal from Circuit Court, Stephenson County; R. S. Farrand, Judge.

Bill by Oliver P. Waters and others against Emma L. Waters and others. From a decree in favor of complainants, defendants appeal. Reversed and remanded.

This is a bill in chancery, brought by the appellees to contest the will of their mother, Mary Waters, late of Stephenson county. The bill was filed in the circuit court of Stephenson county by the appellees, two of the children of Mary Waters, against the other three children and the executor of the estate, as defendants. The prayer of the bill is that the will of Mary Waters, and the probate thereof, be set aside upon the alleged grounds that, at the time of the making of the will, Mary Waters was not of sound mind and memory, and that the signing of the will was procured from her by undue influence, exercised over her by her two daughters, the appellants Emma L. Waters and Lydia J. Stockberger. One of the defendants below, Carrie E. Waters, entered her appearance, but filed no answer, and default was taken against her. Answers were filed by Emma L. Waters and Lydia J. Stockberger, denying the material allegations of the bill, and an answer was also filed by the executor, Grant Byrnes. Replications were filed to the answers by the appellees, and the cause was tried before the court and a jury. The jury rendered a verdict, finding that the instrument in evidence, purporting to be the last will and testament of Mary Waters, deceased, was not her will. Motion for new trial was overruled, exception was taken, and a decree was entered in accordance with the verdict. The present appeal is prosecuted from such decree.

Mary Waters died, leaving a farm in Stephenson county of about 280 acres of land, a house, and lot in the village of Ridott, and personal property worth about $4,000, the value of the whole estate being about $24,000 or $25,000. The deceased was the widow of Harvey Waters, who died in the spring of 1899, having resided in Ridott about 12 years, and within a mile thereof over 50 years. She left surviving her, as her children and only heirs at law, four daughters, and one son, to wit, the appellants, Emma L. Waters, Lydia J. Stockberger, and Carrie E. Waters, and the appellees, Oliver P. Waters, and Clara McCracken. Emma L. Waters and Carrie E. Waters, the two unmarried daughters, lived with their mother for years before and up to the time of her death. Lydia J. Stockberger and her husband lived at Pecatonica, about 10 miles from Ridott. Clara McCracken, the oldest child, was about 59 years of age, and had a son 28 years old, who was one of the witnesses in this cause. She lived in Ridott, but seems to have visited or been with her mother very title. Oliver P. Waters lived in California at the time of his mother's death, and had been a resident of that state for some 10 or 12 years prior to her death. The will of Mary Waters was admitted to probate in the county court of Stephenson county, and letters testamentary were granted by that court to Grant Byrnes, the executor named in the will, a nephew of the testatrix; his mother being her sister.

By the terms of the will, after providing for the payment of her debts, the testatrix left to her daughter Emma L. Waters her residence in Ridott, with lots, barns, sheds, and everything belonging thereto, and all her personal property, consisting of beds, clothing, horses, and cattle, and all that was in and around said residence; she left to her daughter Carrie E. Waters $1,000 in money. The will provided that the farm, and all the other real estate that she might own at her demise, should be divided equally between her daughters Lydia J. Stockberger, Carrie E. Waters, and Emma L. Waters to be for all claims for services against her estate; she left to her daughter Clara McCracken the sum of $5 for all claims and services against her estate; and to her son, Oliver P. Waters, the sum of $5 for all claims and services against her estate. The will also provided that any moneys that were left after her just debts were paid should be divided equally between her daughters Lydia J. Stockberger and Emma L. Waters, and she therein stated that it was her desire that the girls should not sell the farm for some time, but collect rent as their income until sold. The will was excuted on August 7, 1901, at the residence of the testatrix in Ridott, and was apparently drawn by a justice of the peace and notary, living in Ridott, by the name of William K. McGilligan, who has since deceased, and was properly signed by the attesting witnesses. The subscribing witnesses appeared before the county court when the will was admitted to probate, and deposed that the instrument in question was the last will of the testatrix, and that they subscribed their names thereto at the request of the testatrix, in her presence, and in the presence of each other, on August 7, 1901, and that she then and there subscribed her name thereto in their presence and declared the same to be her last will and testament; and that at the time of executing the same said testatrix was of full age, of sound mind and memory, and under no constraint.H. C. Hyde, W. N. Cronkrite, and R. K. Walsh, for appellants.

R. R. Tiffany, for appellees.

PER CURIAM.

First. The will in this case is attacked upon the two alleged grounds that the testatrix, at the time of making the will, was not of sound mind and memory, and was subject to undue influence exercised over her by her daughters Emma L. Waters and Lydia J. Stockberger. After a careful examination of this record and of all the testimony in it, we are obliged to conclude that a finding that testatrix, at the time of executing the instrument in question, did not possess the requisite mental capacity to make a valid will, is against the manifest preponderance of all the evidence in this cause, and that on the other branch of the case the evidence fails to show any wrongful act on the part of the appellants Emma L. Waters and Lydia J. Stockberger, which was calculated to unduly influence the testatrix to make the disposition of her property which she did make. In finding their verdict in this case the jury must have been influenced by the consideration that the testatrix left all her property to three of her children and cut off the other two, the appellees herein, with $5 apiece. Under the law, however, if she was of sound mind and memory and acted as a free agent, she had a right to dispose of her property as she saw fit.

In Freeman v. Easly, 117 Ill. 317, 322, 7 N. E. 656, 658, we said: ‘It accords with common observation that in contests concerning wills, where the testator has made, or has seemingly made, an unequal or inequitable disposition of his property among those occupying the same relation to him by consanguinity or otherwise, there is a disposition in most minds to seek for a cause for holding the will invalid. The inclination in this direction that is found to exist in the minds of most, if not all, jurors, cannot always be controlled by instructing them there is no law requiring a testator, nor is he bound, to devise his property equitably or in equal proportions among his heirs. Of course, the law is he may make such disposition of his property as he sees fit, and he may bestow his bounty where he wishes, either upon his heirs or others. While this is undoubtedly the law, the common mind is disinclined to recognize it, and jurors will too frequently seize upon any pretext for finding a verdict in accordance with what they regard as natural justice.’ This language was quoted with approval in the recent case of Nieman v. Schnitker, 181 Ill. 400, 55 N. E. 151, and is precisely applicable to the condition of affairs in the case at bar. The fact that there is inequality in the distribution of the property of a testator or testatrix cannot of itself have the effect of invalidating the the will. Graham v. Deuterman, 206 Ill. 378, 69 N. E. 237. Moreover, where the testator or testatrix assigns a substantial and sufficient reason for such inequality, that reason must be accepted as true when there is no evidence in the record tending to disprove it. Graham v. Deuterman, supra. In the case at bar, declarations of the deceased, Mrs. Waters, were proven to the effect that she had already sufficiently helped her son, Oliver, and her daughter Clara; nor was there any evidence, tending to disprove this reason for giving them nothing more than $5 apiece by her will.

The appellants introduced in evidence, upon the trial below, the certificate of the oaths of the subscribing witnesses to the will. That certificate was prima facie proof of the validity of the will in this proceeding, attacking the probate thereof. Consequently, the burden of proof was upon the appellees, complainants below, as the contestants of the will, to substantiate both charges; that is to say, the charge that the testatrix was not of sound mind and memory when she executed the will, and that she was under the undue influence of her two daughters above named at that time. Swearingen v. Inman, 198 Ill. 255, 65 N. E. 80;Johnson v. Johnson, 187 Ill. 86, 58 N. E. 237;Webster v. Yorty, 194 Ill. 408, 62 N. E. 907;Michael v. Marshall, 201 Ill. 70, 66 N. E. 273. It was incumbent upon the contestants to overcome the prima facie case, thus made through the introduction of the certificate, by a preponderance of the evidence. This they failed to do.

In addition to the certificate in question, the proponents, appellants here, produced 14 witnesses, including two physicians, who treated the testatrix in the last years of her life, a banker who did business with her, a shopkeeper or clerk with whom she traded, people who boarded at her home, neighbors, and others closely associated with her; all of whom testified that, at or about the time when her will was made, her mind and memory...