APPEAL from the Circuit Court of Calhoun County; the Hon.
MAURICE E. BARNES, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Walter Meyer, the plaintiff-appellant, who will be hereinafter referred to as plaintiff, appeals from a decree of the circuit court of Calhoun County which upheld the validity of the last will and testament of Katie Meyer, deceased, the plaintiff's mother, against his contention that she lacked mental capacity at the time of execution of said will. Plaintiff is the only child and sole heir-at-law of the deceased.
The plaintiff filed his complaint in the circuit court contesting the validity of his mother's will. The complaint as amended set forth five grounds for setting aside the will, as follows: (1) That the will was not signed by the deceased or at her direction as required by statute; (2) that the will was not attested by two witnesses or in the manner provided by statute; (3) that the decedent was of unsound mind and memory at the time of executing the will; (4) that the decedent was subjected to undue influence; and (5) that the decedent did not request the witnesses to sign the will as attesting witnesses and that she did not sign the will in their presence or acknowledge to them that she had signed it.
Answers were filed denying these allegations. The matter was tried before a jury and, at the conclusion of the plaintiff's case, the court withdrew the issue of undue influence from the jury. No error is assigned as to the action of the court in this regard. Likewise, plaintiff admits in his brief that there was no evidence to sustain his allegations regarding the execution of the will or its attestation. The sole issue which went to the jury was the testamentary capacity of the decedent. The jury, after deliberation, returned a verdict in favor of the proponents of the will.
The will of Katie Meyer appears to have been executed on June 28, 1948, and, after the usual preliminary provisions, provided as follows:
"First, It is my will that my funeral expenses and my just debts be fully paid.
"Second: I give and bequeath to my beloved sister, Tillie Sibley, the sum of Five Hundred Dollars in cash; also all my Real Estate situated in the Village of Kampsville, together with all the furniture and fixtures contained therein, provided that she, the said Tillie Sibley, pay my funeral expenses.
"Third: I give and bequeath to my beloved Grandchild, John Albert Meyer, the sum of One Thousand Dollars.
"Fourth: I give and bequeath to my beloved Grandchild, Walter Jerome Meyer, the sum of One Thousand Dollars.
"Fifth: I give and bequeath to St. John's Lutheran Church, Kampsville, Illinois, the sum of One Thousand Dollars.
"Sixth: I give and bequeath to St. Anselm's Catholic Church, Kampsville, Illinois, the sum of Fifteen Hundred Dollars, in memory of my beloved son, Albert Meyer.
"Seventh: I give and bequeath to my beloved cousin, Barbara Brunjes, the sum of Five Hundred Dollars.
"Eight: I give, bequeath and devise to my beloved son, Walter Meyer, all of my remaining property of every kind and description, and it is my wish that said Walter Meyer erect a foot stone at my grave.
"Lastly: I hereby nominate and appoint Walter Meyer to be the Executor of this My Last Will and Testament, hereby ...