APPEAL from the Circuit Court of Macoupin County; the Hon.
L.E. WILHITE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
This appeal arrives here from the circuit court of Macoupin County, wherein a decree was entered pursuant to a jury verdict setting aside the last will and testament of Charles Avery Hilliard. The sole appellee is Marian Heideman, whom we will hereafter refer to as plaintiff, and the appellants are the decedent's brother, two sisters and Willard V. Kelsey, executor of the will in contest, whom we shall call defendants.
The testator, Charles Avery Hilliard, departed this life on June 7, 1950, at the age of 85. He left surviving his daughter, Marian Heideman, a brother, Frank Wyman Hilliard, and two sisters, Leah Hilliard and Gladys H. Gates. By the terms of the will, Frank Wyman Hilliard was devised all real estate, consisting of a farm, and all the farm equipment, machinery and tools used in connection therewith. The residue of his estate was divided into six equal parts, and was disposed of as follows: two parts to Frank Wyman Hilliard, two parts to his sister Leah Hilliard, one each to his sister Gladys H. Gates and his daughter, the plaintiff. The record contains very little about the family relation, and particularly is it silent with reference to any reason the testator might have had for leaving his only child just a minor share of his estate.
The complaint in this proceeding contained two counts, one charging mental incapacity, and the other undue influence. The court ruled that there was no proof in support of count II, and it was withdrawn from the jury's consideration. No quarrel is presented here by appellee concerning this determination. The jury found upon the single issue presented to it that the will in question was not the last will and testament of Charles Avery Hilliard. The trial court overruled defendants' motions for judgment notwithstanding the verdict and for a new trial. This appeal challenges the correctness of those two rulings.
The testator spent most of his life on his farm, which is located about two miles east of Brighton, Macoupin County. During the latter years his sister Leah Hilliard lived with him. In the early part of October, 1949, Hilliard and his sister Leah went to live in St. Louis, Missouri. While there, he entered the Deaconness Hospital October 11, 1949, and was discharged therefrom October 21, 1949. He and his sister then went to live in an apartment at the Gatesworth Hotel, residing there until April 16, 1950. Again he entered the Deaconness Hospital, and thereafter, on April 22, 1950, he entered Maplewood Nursing Home, where he was a patient until his death on June 7, 1950.
In addition to his interests in farming, Hilliard was the president of the First National Bank of Brighton, for seventeen years. In that capacity, however, he did not manage or direct the banking business, but regularly attended and presided at all bank meetings. He engaged, for himself, very extensively in the purchase and sale of stocks, bonds and securities generally classified as gilt-edged and safe. For a man of his years, Hilliard was very active; however, he did suffer some disability, such as poor vision, which caused him to discontinue driving his car the last five years. In 1945, he fell out of a peach tree and some of his friends thought that they noticed a diminution of his physical vigor and sociability after that.
A decision of the issues presented on this review demands that we detail and weigh the evidence pertaining to Hilliard's condition on January 10, 1950, the date of the execution of the purported last will. The plaintiff relies very strongly upon the testimony of Dr. J. Fred W. Clark, who treated Mr. Hilliard from 1935 to March 1, 1948. Dr. Clarence E. Mueller was testator's attending physician from October, 1949, to the date of his death. Both doctors agree that he was suffering from constipation and arteriosclerosis. They disagree, however, on the question as to how much damage these ailments did to testator's mental condition. Although Dr. Clark did not see the testator after March 1, 1948, he was definitely of the opinion that Charles G. Hilliard did not have sufficient mental capacity to transact ordinary business on January 10, 1950. This opinion was predicated upon the following factual history: Testator, in 1947, was worried about the infrequency of his bowel movements; he was frequently mistaken about simple matters, such as his age, or when his bowels had last moved, or the date of the removal of his teeth; he was confused and apprehensive, but witness admitted that he was orientated as to time, place and persons; he was unable to take care of his medicine; his mental sickness was described as a one-track mind; he was a feeble and confused old gentleman; he was childish and incompetent to handle any business affairs and should always be attended by someone to look after him; the symptoms of brain disease caused by hardening of the arteries present in Hilliard were forgetfulness, headaches and blurred vision. Dr. Clark admitted that testator did not have senile dementia; that he had no hallucinations or delusions, nor was unduly suspicious of anyone; and that it was his opinion he was "simply not competent to transact ordinary business."
In light of the foregoing testimony we are required to rule adversely to defendants' contention that it was error for the trial court to refuse to enter judgment notwithstanding the verdict. It is our opinion that the testimony of Clark makes it a prima facie case, sufficient in itself to warrant the trial court submitting the cause of mental incapacity to the jury. The motion for a directed verdict and the motion for judgment notwithstanding the verdict present a question of law as to whether, when all of the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to the party against whom the motion is directed, there is a total failure or lack of evidence to prove any necessary element of the plaintiff's case or the defendants' defense. Tidholm v. Tidholm, 391 Ill. 19; Hughes v. Bandy, 404 Ill. 74.
Let us now consider briefly the testimony of other witnesses appearing on behalf of the plaintiff. Jerome W. Long, an auctioneer and filling-station operator, knew the testator for 45 years. He testified that after 1945 Hilliard was in bad shape physically; that he did not seem to care to talk as he had before that date; that in the summer of 1949 he saw the testator in a store and testator informed him that he, Hilliard, was "no good" and walked out forgetting to get a loaf of bread; that in 1945 or 1946 he asked about a cattle sale and before witness had finished telling him what the cattle had averaged, he asked about the price of hay or grain; and that in his opinion the testator was insane in the summer and fall of 1949.
Martin Bloomstein, a mechanic, who knew testator for 35 years, testified that the older he got the more slovenly he got; that in August, 1949, he was not neat or clean like he used to be, and the front of his clothes were "slobbered up." He had no opinion as to the testator's mental capacity.
John L. Ash, a rural mail carrier, knew testator for 40 years. He observed that in the early years when Hilliard came to town he would be pretty well dressed and cleaned up, but in later years these habits began to change and his clothes were baggy in the back and dirty, and his face and hands were dirty; that in March, 1949, testator failed to recognize him in front of the telephone office in Brighton, and thought he was Dr. Ash, witness's father, who had been dead ten or eleven years; that he saw him about a week after that conversation in front of the harness shop in Brighton, and that testator knew him and asked him to come out to his farm and hunt coons which were very destructive; that there was nothing in the last conversation he had with testator that would make him question his mental capacity.
Arvice Hastings, maintenance supervisor of an aviation company, met testator in 1940 when he went to testator's farm to install a saw and saw wood. At that time the testator helped him saw wood, and in 1947 he took some lumber to testator's farm to store, and testator showed him where he wanted it put. In the same year he cut some poles in testator's pasture, and he went with him and pointed out the trees he wanted cut. In the latter part of 1947 he was at testator's farm to install a different motor on the wood saw, and the testator indicated a bunch of old fence posts, limbs and other stuff piled up by the trees that he wanted cut. One time when he saw the testator in 1948 he reported that he was not feeling well. In 1940 he seemed strong for his age, but in 1947 he appeared much weaker. This witness had no opinion about testator's mental capacity.
William Hare encountered testator on two occasions in 1945 when he was installing a telephone line for him. He testified that on the second occasion he borrowed a gun from him for the purpose of hunting; that after he had gone a short distance from the house he returned realizing that he did not have a hunting license; that the testator asked him who he was and what he was doing there, and when he told him it more or less settled the matter. He did not think the testator had good vision, and thought that was possibly the reason why he did not recognize him. This witness expressed no opinion as to testator's mental capacity.
Then there were three witnesses, Madeline Downen, Arnold H. Downen and Mary E. McIntyre, all of whom were associated with the Maplewood Nursing Home that testator entered on April 22, 1950. In effect, all three of these witnesses testified that the testator's physical condition was weak, and that his mental condition was not very good when he was brought into the nursing home; that his conversation was disjointed; that he later made many efforts to run away; that it was difficult for them to restrain testator; that he did not want to say in bed and would frequently go outside in his pajamas; that he had to be fed, and he was not able to control the normal functions of his body. It is strenuously urged here that it was error for the court to admit the testimony of these three witnesses. Admittedly, they did not know Hilliard before April 22, 1950. Supporting this contention the defendants rely upon what this court said in Knudson v. Knudson, 382 Ill. 492, 46 N.E.2d 1011: "The rule as to proof of mental competency requires that such proof, to be ...