Yorty v. Webster

• Decision Date: 16 December 1903
• Citation: 205 Ill. 630,68 N.E. 1068
• Parties: YORTY v. WEBSTER.
• Court: Illinois Supreme Court

205 Ill. 630

68 N.E. 1068

YORTY

v.WEBSTER.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Circuit Court, Lee County; Jas. S. Baume, Judge.

Proceedings by Annie E. Webster for the probate of the will of Barbara E. Leech, deceased, in which John Yorty appears as contestant. From a judgment for the proponent, the contestant appeals. Affirmed.A. C. Bardwell, for appellant.

A. F. Wingert, for proponent.

RICKS, J.

This is a petition filed in the county court of Lee county for the probate of the last will and testament of Barbara E. Leech, deceased. The case was before us at a former term, and is reported in 194 Ill. 408, 62 N. E. 907, to which reference is made for a more complete statement. The errors assigned are in the court granting proponent's motion to direct the jury to find a verdict for the proponent, and in refusing to admit competent evidence to go to the jury in behalf of the contestant.

Appellant filed no brief as required under the rules of this court, but simply files a statement, with a lengthy argument, contending that Charles E. Hicks, a nephew, was in position to, and thereby did, use undue influence over the deceased, and also argues that Nancy Brown, a niece, who had lived with the testatrix a portion of the time, did not receive anything under the testatrix's will, but does not cite a particle of evidence to sustain his position with reference to undue influence exercised by Hicks. The evidence shows that Hicks went to live with the deceased and her husband when he was 13 years of age, and made his home with them, as a member of the family, until about the time he was of age (Mrs. Leech never having had any children), and during the time he lived with them he worked for them the same as if he was their child, and for a few years was a partner with Mr. Leech in a store, and had the management of the entire business. Hicks later on moved to the state of Nebraska, where he has ever since made his home. After the death of her husband, which was about two years prior to her death, the testatrix depended upon Hicks altogether for advice, being in constant correspondence with him; and Mr. Leech made him the executor of his will, but, being a nonresident, he was unable to act. Hicks returned about the time of his uncle's death, and remained with his aunt for a month or more, and during that time assisted the testatrix in probating her husband's will and settling up the business, and, during the time he was there, accompanied his aunt, together with the niece, Nancy Brown, to the city of Dixon (being the county seat), to attend to some business in reference to the estate, and to probate the will of Mr. Leech, in which Hicks was a legatee; and during the day they went to an attorney's office, and left a memorandum with the attorney, from which he was directed by Mrs. Leech to draw the will in question. The memorandum was in Hicks handwriting, but the attorney took it and went over it very carefully, and interrogated the testatrix with reference to the amount each of the legatees was to receive, which information she gave without any hesitancy, and without reference to the memorandum furnished. There were 34 bequests in her will-to her brothers and sisters and nephews and nieces; Charles E. Hicks receiving the greater part of the estate, which was valued at something over $20,000. The attorney drafted the will as directed by the testatrix and mailed it to her at her home, and in about three days afterwards she had witnesses called in to witness the same. It is admitted by appellant that Mrs. Leech was of sound mind, and the evidence shows her to have been a woman of strong mind, and positive in her views; and, when she once made up her mind in reference to a thing, it was hard to change it.

We are unable to find any evidence in the record tending to support appellant's contention that the testatrix was influenced by anything that was said or done by Hicks in making the disposition she did of her property. The evidence shows that she was very much attached to him, and frequently spoke of him in high esteem, and it is true she depended upon him for advice; but advice sought, and properly given, does not indicate undue influence. ‘It has often been decided by this court that mere persuasion or advice, however importunate, will not justify the setting aside of a will. * * * Undue influence, to justify the setting aside of a will, must be such as will deprive the testator of his or her free agency.’ Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837;Francis v. Wilkinson, 147 Ill. 370, 35 N. E. 150;Thompson v. Bennett, 194 Ill. 57, 62 N. E. 321. In our former opinion we found: ‘There was no evidence of any specific acts or efforts by...