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Mount v. Dusing





APPEAL from the Circuit Court of Ogle County; the Hon. LEON A. ZICK, Judge, presiding.


This is an appeal from a decree of the circuit court of Ogle County in a will contest. The issues were submitted to a jury, and in accordance with its verdicts the decree set aside the will and also a deed executed by the testator before the will was executed. The case is here because a freehold is involved.

Benjamin Gilbert died on March 4, 1950, at the age of eighty-one. He left surviving as his heirs-at-law three sons, Guy, Orville and Elmer Gilbert, four daughters, Vera Mount, Letitia Wisner, Gladys Taylor and Bessie Dusing, and one grandson, Lloyd Gilbert, whose father, Benny Gilbert, had predeceased the testator. The will was admitted to probate in the county court of Ogle County. The estate consists of real and personal property valued in excess of $200,000.

By his will executed January 28, 1949, Gilbert made bequests of $5000 each to Guy Gilbert, Gladys Taylor, Bessie Dusing and Lloyd Gilbert, $50 each to Orville Gilbert, Vera Mount and Letitia Wisner and $5 to Elmer Gilbert. A bequest of $2000 was made to a grandson, Keith Kane, son of Gladys Taylor. Another bequest, of $5000, was made to Benjamin Gilbert, a grandson who predeceased the testator. The will also bequeathed $10,000 to Bessie Dusing and her son, William Robert Coffman, as trustees, with directions to pay the income annually to Vera Mount and Letitia Wisner, share and share alike, during their lives, and then to divide the balance between Bessie Dusing and Gladys Taylor. An undivided two-thirds of the residuary estate was left to Bessie Dusing and an undivided one-third to William Robert Coffman. Mrs. Dusing and Coffman were appointed executors.

About a year before the will was executed, on January 20, 1948, Gilbert deeded a farm of 180 acres in Ogle County to Bessie Dusing. This farm was worth about $45,000 at the time of the conveyance.

The plaintiffs, Vera Mount, Letitia Wisner, and Gladys Taylor, and Guy, Orville, Elmer, and Lloyd Gilbert filed their complaint, and later an amended complaint, against the defendants, Bessie Dusing, Keith Kane, and William Robert Coffman, individually, and Bessie Dusing and Coffman, as executors of the will of Benjamin Gilbert, deceased. The first two counts attacked the will. Count 1 alleged that the testator lacked the requisite mental capacity. Count 2 realleged the allegations of count 1, and also alleged that the will was executed under undue influence exerted by Bessie Dusing. The third and fourth counts attacked the conveyance to Bessie Dusing. Count 3 alleged lack of consideration and lack of mental capacity at the time the deed was executed. Count 4 realleged the allegations of count 3, and also alleged that a confidential relation obtained between Gilbert and his daughter, Bessie Dusing; that she took advantage of the trust and confidence reposed in her by her father by inducing him to visit an attorney for the purpose of conveying the property to her, and that the conveyance was not his free and voluntary act but was made under her undue influence.

Defendants answered, denying the material allegations. They also moved for a severance of the trial of the issues raised in counts 1 and 2, contesting the validity of the will, from the issues in counts 3 and 4 relating to the validity of the deed, and for an order to compel plaintiffs to elect upon which issue they would first proceed to trial. The motion was denied. Both issues made by the pleadings were tried before a single jury which returned a verdict in favor of plaintiffs on each count. A decree was entered upon the verdicts.

Numerous errors are assigned. The first matter requiring consideration is the contention that the trial court erred in refusing to grant defendants' motion for a severance. That motion directed the court's attention to specific circumstances of the case relevant to a decision as to the proper method of trial. It pointed out that different periods of time "constituted the res gestae" of each of the two issues made: the validity of Gilbert's will, executed January 28, 1949, and the validity of the deed executed and delivered on January 20, 1948. It stated that different burdens of proof rested upon plaintiffs with respect to the weight and sufficiency of the evidence as to each issue and that different legal standards governed the competency and the ability of the decedent to execute the will and the deed. It pointed out that separate and different rules of evidence were applicable on the two issues: that on the trial of the validity of the will, Bessie Dusing and Coffman were defendants both individually and in their representative capacities, and that they were incompetent witnesses by law, either individually or in their official capacities; that on the trial of the validity of the deed, Bessie Dusing was a defendant in her own proper person and not in a fiduciary capacity, and that Coffman was not a proper party defendant as to those counts. The motion concluded with a statement that the differences in the rules as to the weight and burdens of proof and the competency and incompetency of the various parties as witnesses would be so confusing to a jury that no one of the parties could have a fair and impartial trial of the issues before the same jury.

Determination of this contention requires identification and analysis of the issues which have been joined in the complaint. Counts 1 and 2 present a typical will contest. Count 3 seeks to set aside a deed, executed prior to the will, because of lack of consideration and lack of mental capacity on the part of the grantor. Count 4 attacks the deed on the grounds stated in count 3, and also alleges the the existence of a fiduciary relationship between grantor and grantee, and abuse of that relationship by the grantee. To the extent that it differs from count 3, its allegations are those of a typical bill to establish a constructive trust. The issues presented in counts 3 and 4 are equitable and as to them no right of trial by jury exists. If any of the issues presented in those counts are submitted to a jury, its verdict is advisory only. The will contest presented by counts 1 and 2 is purely statutory. It is not an ordinary proceeding in chancery. The cause is tried upon the single issue as to whether the writing proffered is the will of the testator. (Innis v. Mueller, 403 Ill. 11; Tidholm v. Tidholm, 391 Ill. 19; Hunt v. Vermilion County Children's Home, 381 Ill. 29.) By statute, either party to a will contest may demand a trial by jury as in actions at law, (Ill. Rev. Stat. 1951, chap. 3, par. 244,) and the verdict of a jury in such a proceeding has the effect of a common-law verdict. Tidholm v. Tidholm, 391 Ill. 19; Hunt v. Vermilion County Children's Home, 381 Ill. 29; Anderson v. Anderson, 293 Ill. 565; Stephens v. Collison, 249 Ill. 225.

While the defendants have raised no question as to the propriety of joinder of the issues here involved in a single complaint, an examination of the rules which have been evolved to regulate the injection of collateral issues into a will contest affords an appropriate perspective for consideration of the issue of severance immediately before us. The limited scope of the statutory issue in a will contest resulted in the formulation of rules relating to joinder of issues in such proceedings which are more restrictive than those ordinarily applied in equity. The governing principles, distilled from the many cases which have passed upon this problem, have been thus summarized: "While the statute provides that an issue at law is made whether or not the instrument is the testator's will, and, generally speaking, this is the only issue which is permissible, there are sometimes side issues which have to be determined. Thus, it may be necessary for the contestant to remove some obstruction to his contest, as where an agreement not to contest was obtained by fraud; or to set aside deeds made after the will was executed, and which stand in the contestant's way in obtaining the full benefit of his contest, or that the plaintiff has not such an interest as entitles him to contest the will. The mere fact that such issues are addressed to the court's general jurisdiction and that the jury's verdict upon them is advisory only, while the verdict on the statutory issue has the effect of a verdict at law, does not preclude the raising of such issues. The court can permit any issue to be raised which is essential to a complete settlement of the statutory issue and all that is essentially interwoven with it. This rule, however, is not intended to permit a will contest suit to be joined with other actions which are not essential to a complete settlement of the statutory issue and are not essentially interwoven with it." 3 James, Illinois Probate Law and Practice, sec. 90-9.

After the adoption of the Civil Practice Act, with its liberal provisions concerning joinder of parties and issues, the statute relating to will contests was amended, apparently to preserve the restrictive rule of joinder which had been evolved by decision, by adding the provision which now reads: "Matters not germane to the distinctive purpose of the proceeding shall not be introduced by joinder, counterclaim or otherwise." Ill. Rev. Stat. 1951, chap. 3, par. 155.

The broad joinder of parties and causes of action which the Civil Practice Act permits is accompanied by provisions authorizing severance or consolidation whenever necessary to enhance the convenient disposition of the business of the court, or to avoid prejudice to the substantial rights of litigants. (Ill. Rev. Stat. 1951, chap. 110, pars. 147, 148, 168, 174, 175, 259.11.) A motion to sever issues for trial is thus addressed to the sound discretion of the trial judge, to be exercised in each case by an appraisal of administrative convenience and the possibility of prejudice to substantial rights of the litigants in the light of the particular problems which will arise in the course of the trial.

The practice which has heretofore prevailed with respect to severance of issues in will contests reflects the limited extent to which joinder has been permitted in those cases. Flynn v. Troesch, 373 Ill. 275, involved an issue as to the validity of the marriage of the testator, as well as the validity of his will. Holding that the trial court had properly severed these issues for trial, the court said (p. 278-9): "The contention of the plaintiffs that the court was without authority to sever these two issues is without merit, as a careful reading of sections 44 and 51 of the Civil Practice Act clearly indicates that an action involving materially different issues may be severed by the court and our rule No. 11 has recognized the principle by providing `equitable issues shall be heard and decided in the manner heretofore practiced in courts of equity.' Such practice heretofore has been to try the question of heirship by the court and the validity of a will by a jury. Orchardson v. Cofield, 171 Ill. 14; Gilmore v. Lee, 237 id. 402; Stone v. Salisbury, 209 id. 56. * * * In order to enable the plaintiffs to prevail, there must be a successful will contest and also a decree holding void the marriage * * *. The law provides that the first of these issues may be tried by a jury, the other by the court; they involve different characters of proof and may affect, differently, the competency of witnesses." To the same effect is Frese v. Meyer, 392 Ill. 59, in which one count alleged the existence of mutual wills and a contract not to revoke them, and the other alleged undue influence.

In the circumstances of this case, it is our opinion that it was error to deny the defendants' motion to sever the issues. There was a difference in time of one year between the execution of the challenged deed and the contested will, and mental capacity at both times was in issue. A higher degree of mental capacity is required to make a valid deed than to execute a will. (Moneta v. Hoinacki, 394 Ill. 47; Greene v. Maxwell, 251 Ill. 335.) Defendants Bessie Dusing and her son were sued both individually and in their representative capacities, so far as the will contest was concerned, but Mrs. Dusing, alone, was a defendant in the action to set aside the deed. Under section 2 of the Evidence Act, (Ill. Rev. Stat. 1951, chap. 51, par. 2,) she and her son were not competent witnesses, either individually or in their representative capacities, upon the issues going to the asserted invalidity of the will; as to the issues relating to the deed, she was competent to testify. The cumulative effect of these factors resulted in the imposition of an undue burden upon the jury. And although its ...

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