Wilcoxon v. Wilcoxon

• Decision Date: 09 November 1896
• Citation: 165 Ill. 454,46 N.E. 369
• Parties: WILCOXON et al. v. WILCOXON.
• Court: Illinois Supreme Court

165 Ill. 454

46 N.E. 369

WILCOXON et al.

v.WILCOXON.¹

Supreme Court of Illinois.

Nov. 9, 1896.

Error to circuit court, Stephenson county; James H. Cartwright, Judge.

Bill by Thomas D. Wilcoxon against M. H. Wilcoxon and others to set aside a codicil and deed executed by Thompson Wilcoxon. From a decree for complainant, defendants bring error. Reversed.J. A. Crain, for plaintiffs in error.

Wm. Barge, for defendant in error.

This is a bill by defendant in error against plaintiffs in error to set aside a codicil to the last will of Thompson Wilcoxon, deceased, and also to set aside a deed by said Thompson Wilcoxon and wife, conveying certain real property to plaintiffs in error. Complainant in the bill, and the defendants Mitchell H. Wilcoxon, Mary D. M. Proctor, and Martha E. Lemon are the only children of Thompson Wilcoxon, deceased, and Cyende Wilcoxon is his widow. In August, 1852, Thompson Wilcoxon executed his last will and testament, in and by which he gave all his property, real and personal, in law and equity, of which he should die seised, to his wife, Cyende Wilcoxon, without any condition or qualification whatever. On the 3d day of January, 1881, he executed the codicil sought to be set aside. Upon his death in December, 1887, the will and codicil were duly admitted to probate in the county court of Stephenson county. On the 20th of June, 1881, the testator and his wife, Cyende, executed and delivered to his three children, Mary D. M. Proctor, Mitchell H. Wilcoxon, and Mary E. Lemon, a warranty deed to certain real estate, in consideration of a nominal sum and love and affection. That deed was filed for record in the recorder's office of said Stephenson county in January, 1888. Subsequent to the probating of the will, the complainant, Thomas D. Wilcoxon, filed this bill, seeking to set aside the codicil and the probate thereof, and also the deed, upon the ground that at the time of their execution Thompson Wilcoxon was of unsound mind and memory, and that he executed said instrument through the undue influence of the defendants. The joint and several answer of the defendants admitted the execution of the several instruments, and the probate of the will and codicil, but denied that they were invalid, and denied that at the time of their execution Thompson Wilcoxon was not of disposing mind and memory, and denied that he was in any way influenced by them to execute the same. An issue was made up on the allegations of the bill, answer, and replication as to whether the writing purporting to be the codicil to the last will and testament of Thompson Wilcoxon, deceased, was the codicil to said will or not, and this issue was tried before a jury, resulting in a verdict finding that it was not such codicil. Motion for new trial being overruled, a decree was entered in accordance with the finding, setting aside said codicil, and declaring it of no force and effect. Thereafter the issues as to whether the deed was invalid was tried before the chancellor, he considering all evidence introduced before the jury pertinent to the latter issue, and both parties introducing a large volume of additional evidence. On this hearing a decree was entered declaring the deed null and void, to which finding an exception was entered. This writ of error brings before us the proceedings below upon both of these hearings, and seeks a reversal of both decrees.

WILKIN, J. (after stating the facts).

The ground mainly relied upon by plaintiffs in error for reversal is that the evidence fails to sustain the finding below. On the issue as to the validity of the codicil the defendants introduced the probate thereof, and a large volume of documentary evidence, together with the testimony of some 40 witnesses, neighbors, associates, and acquaintances of Thompson Wilcoxon, extending over a period of many years prior to the execution of the codicil and the remaining years of his life thereafter, who testified with more or less directness that in their opinion he was capable of transacting the ordinary business affairs of life before, at the time, and after the execution of the codicil. The documentary evidence consists of letters, written by him in person, bearing date from April, 1879, to perhaps December, 1881. These letters were written to his relatives. Other testimony consisted of certain articles of agreement and papers relating to business transactions, which were perhaps written by others, but entered into by him. These contracts also covered a period from April, 1879, to about the time the said codicil was executed, and they relate to contracts for the building of houses in the city of Freeport. The complainant introduced a large number of witnesses bearing substantially the same relationship to the testator as those introduced by the defendants,-that is, neighbors, associates, and acquaintances,-who gave it as their opinion that he was not of sound mind and memory. While the evidence of many of these witnesses on either side is of very little importance, either by reason of the limited opportunities they had had of forming the opinion, or because of the indefiniteness of that opinion, there is such testimony on either side as, uncontroverted, would justify a finding either for or against the complainants. And therefore, if this case depended upon the weight of that oral testimony alone, this court, under a long line of well-considered cases, would not disturb the finding and decree below, even though we might, as an original proposition, entertain a different view from that reached by the jury. There is, however, in this case, as we think, such evidence of intelligence and business capacity in letters written by the testator, and by business transactions shown to have been entered into by him, as to make it clear to our minds that he was capable of transacting the business affairs of life. It is undisputed that before, and for several years, at least, after, the execution of this codicil, he continued to transact business with the same intelligence manifested by him in the former periods of his...