Appeal by plaintiff from the Circuit Court of Lake county; the
Hon. WM. M. CARROLL, Judge, presiding. Heard in this court at the
October term, 1949. Decree affirmed. Opinion filed June 6, 1950.
Released for publication June 26, 1950.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
This appeal comes from the circuit court of Lake county, Illinois and questions the propriety of a decree entered by the court after a trial without a jury sustaining the validity of the will of Albert Jorn, Sr., which was executed on August 7, 1947 and admitted to probate on August 5, 1948.
The complaint filed in this case charged that the testator did not have the mental capacity to know the extent of his property and the natural objects of his bounty and that at the time of the execution of his last will, he was under the undue influence of one Anne E. Bushman.
Albert Jorn, Sr. executed the will in question on August 7, 1947 at his home in Waukegan, Illinois. He died on February 19, 1948 at the age of eighty-five years. The record discloses that about one year prior to the execution of the will there was a trust agreement signed by Albert Jorn. According to the terms of this instrument and of the will under consideration, his only heir, a son, participated very meagerly in the distribution of an estate of the approximate value of $75,000.
On July 7, 1942, the plaintiff caused his father to be committed to the Elgin State Hospital and he then took over the control of his property. Only two months thereafter Mr. Jorn, Sr. was discharged from that institution and was declared to be a person without "psychosis" and "not insane," and he was restored to all his rights by the county court of Lake county on October 16, 1944. Subsequently, on August 2, 1946, he was adjudicated by the probate court of that county to be a fit person to have the care and management of his property.
From 1939 to 1944, the testator lived with the plaintiff and his daughter-in-law. Mr. Jorn entertained the thought that during his stay with his daughter-in-law, she attempted to destroy his life by poison. It is claimed by the plaintiff that his wife was not guilty; that the claims of his father in that regard were preposterous; and that his father therefore was suffering from insane delusions.
The record also discloses that soon after the poisoning episode Mr. Jorn discontinued living with his son, found companionship and social comfort in having live and work in his home a woman who appeared to have a husband and eight children in New York City. Plaintiff contends in this suit that Mr. Jorn labored under the delusion that the two younger children born to the woman were begotten by him. There were some letters introduced in evidence which appear to support plaintiff in this contention.
On behalf of plaintiff there was called a Dr. Benjamin Lemery who testified that he first saw Mr. Jorn in August 1947. He said he was pale and emaciated and that he would not talk to him unless he was alone, and that he twice told the doctor that his son's wife wanted to poison him and twice tried to do so. He further testified that Mr. Jorn was "not in sound mind" but that he apparently knew what he was doing.
Dr. Robert G. Smith, who testified for the plaintiff, said that he attended Mr. Jorn in 1939 for pneumonia; that he had some heart disease; that he never saw Mr. Jorn after 1941 until 1945, when he saw him for about fifteen minutes, at which time Mr. Jorn didn't seem to recognize him and that it was his opinion that Mr. Jorn was senile.
Sheldon R. Olson, an employee of the Continental Illinois National Bank & Trust Company testified concerning the trust agreement which Mr. Jorn executed on August 3, 1946. We do not consider its provisions important in deciding the issues presented, so we will omit detailing them.
The only other witness called by plaintiff was Albert T. Jorn, his son. He had not seen his grandfather since 1944. He testified that his grandfather had lived in his father's home from 1939 to 1943 and that his opinion that he was of unsound mind was based upon his observations during that period. His testimony was rather lengthy, and he detailed many circumstances that denoted behavior on the part of his grandfather that should afford a reasonable basis for such an opinion.
On behalf of the defendant and in support of the validity of the will, there appeared the following testimony:
Charles B. Hudson testified that he had seen Mr. Jorn two or three times a week during the two years immediately preceding his death. He described those occasions as friendly visits which lasted two, three and four hours. He said that Mr. Jorn carried on general conversation well and that his mental condition was good.
Raymond W. Christian testified that he had known Mr. Jorn most of his life; that during the six months' period extending from August 1947 to February 1948, Mr. Jorn stayed at his brother's house where he saw him several times each week. On those occasions, he would see him play cribbage with his brother, and that in doing so he was able to count his points accurately. He saw him play solitaire and observed that he ...