APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. DUSHER, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1951.
This is an action brought in the circuit court of Winnebago, County by the heirs-at-law of Grace M. Weld, deceased, contesting the will of said deceased. The defendant, Mary A. Weld, is sole beneficiary under the will and is made a party defendant as executrix of the will as well as in her individual capacity.
The complaint contained two counts. The first alleged that testatrix was of unsound mind at the time of execution of the will and the second alleged that a fiduciary relationship existed between testatrix and Mary A. Weld and charged undue influence on the part of the defendant.
The cause was heard by a jury which found that said instrument was the last will and testament of Grace M. Weld. Appellants' motion for new trial was overruled and a decree was entered on the verdict. A freehold being involved, appeal was taken directly to this court.
Grace M. Weld died July 19, 1949, leaving appellants, her cousins, her only heirs-at-law. Some twenty-five years before her death Grace Weld married Fred Weld and they lived together as husband and wife until March 7, 1949, when Fred Weld was taken to a hospital, where he died on March 17, 1949. Mary A. Weld, the defendant, is a sister of Fred Weld. She visited and associated closely with Fred and Grace Weld during their married life, and after the death of Fred Weld she continued as a close friend and companion of Grace Weld. Grace Weld was about 70 years of age and shortly after her husband's hospitalization, upon recommendation of her physician, she was sent to Wilgus Sanitarium in Rockford, for rest and care. She remained there until April 13, 1949, when she was discharged. While she was at Wilgus Sanitarium her condition was diagnosed as simple melancholia or simple depression. It appears that she was much concerned over the condition of her husband, and after his death she was quite depressed and melancholy.
During her stay at Wilgus Sanitarium, testatrix was out repeatedly on trips and excursions with Mary Weld. Some days she was away all day. On one such occasion they were talking with a neighbor, Brainerd Trigg, about Fred's death and Grace Weld brought up the subject of wills, stating that she did not have one but wanted one. Trigg advised her to consult an attorney. Grace asked Trigg to suggest an attorney. Several were mentioned, including William E. Collins. Shortly thereafter, on or about March 23, Collins received a telephone call and engaged in a conversation with both Grace and Mary Weld. Grace Weld advised him that she wanted Mary Weld to act as administratrix of her late husband's estate and also that she wanted him to prepare a will for her leaving everything to Mary Weld. On that occasion Mary Weld did not talk to Collins about Grace Weld's will, but their conversation was about what papers had to be signed in Fred's estate. Arrangements were made then for Collins to meet Grace and Mary at Mary's home on Sunday, March 27. Collins prepared the necessary petition and other papers to have Mary appointed administratrix of Fred's estate and also the will for Grace Weld. On March 27 he went to the home of Mary Weld, and the will in question was properly executed.
The plaintiffs rely for reversal upon rulings of the trial court in permitting plaintiffs' witnesses to answer certain questions on cross-examination and in refusing to give one of plaintiffs' instructions.
Three of the questions asked plaintiffs' witnesses on cross-examination touching upon testatrix's mental capacity and which they were permitted to answer over plaintiffs' objection were in substance as follows:
"Did she have the capacity to know what her property was or consisted of?"
"Did she have the capacity to know who the natural objects of her bounty were?"
"Did she have the capacity to know who her relatives were?"
Plaintiffs objected to these questions on the ground that they called for conclusions of the witness, usurped the functions of the jury and that to permit them to be asked and answered on cross-examination was prejudicial error.
The problem involved in a jury's determination of soundness or unsoundness of mind is well stated in Speirer v. Curtis, 312 Ill. 152, where it was pointed out that the phrase "sound mind and memory," when applied as a test to determine testamentary capacity, does not mean absolute soundness and mental capacity but means that degree of mental power and vigor which a testator should possess in order to be able to dispose of his property by will. Opinions of witnesses as to sound mind and memory, ability to transact ordinary business, ability to know relatives, ability to know the nature and extent of property, and the like, are all conclusions of fact ...