APPEAL from the Circuit Court of Clark County; the Hon.
CASWELL J. CREBS, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 16, 1953.
This is an appeal from a decree of the circuit court of Clark County finding and declaring that certain instruments purporting to be the will and codicil of Samuel James, deceased, are not his will and codicil, setting aside said instruments and declaring the probate thereof null and void. The decree was entered upon the verdict of a jury and in conformity with its findings in an action brought by appellee, Katie Mitchell, a daughter of the deceased and his sole heir, to contest the will and codicil of Samuel James. The defendants in the circuit court were E.B. "Bruff" Van Scoyk, individually and as executor of said purported will and codicil, Martha Spear, the Presbyterian Church of Mattoon, Illinois, the Baptist Church of Westfield, Illinois, Edmund Ramey, Doit Biggs, and Kenneth A. Green. Only the executor and Martha Spear have appealed.
Samuel James died at Westfield on August 29, 1950, and the instruments putporting to be his will and a codicil thereto were admitted to probate in the county court of Clark County on September 29 of that year. The will bears the date of October 11, 1949, and the codicil is dated December 3, 1949. The will gives to Martha Spear, a sister of the deceased, all of deceased's personal property (except a bequest of $500 to the Presbyterian Church of Mattoon) as well as a 120-acre farm in Clark County. The will devises 40 acres of land in Coles County to the daughter, Katie Mitchell, provided that she does not contest the will, and further provides that if she brings any proceeding to contest, the 40 acres shall be sold and the proceeds paid to the Baptist Church of Westfield. The instrument provides that if Martha Spear predeceases the testator or "die before distribution of the devise and bequest to her has been made and before the time when her receipts for said distribution are filed with the proper court," then $2000 of the amount bequeathed to her shall be paid to Edmund Ramey and the entire balance to "my good friend E.B. "Bruff" Van Scoyk, who lives in Westfield, Illinois." The will names E.B. "Bruff" Van Scoyk as executor and provides that in the event he is unable to serve or declines, Doit Biggs shall be successor executor. The instrument further directs that the executor employ as his attorney, Kenneth A. Green, an attorney at law of Mattoon. The codicil in question contains no changes or additions. It states that the testator, "feeling that it would be well at this time to re-state, ratify and confirm the provisions of said last will and testament, makes the codicil." The codicil recites that testator has studied the provisions of the will immediately prior to executing the codicil and is satisfied with its provisions and that he therefore re-states, ratifies and confirms each and every provision of the instrument referred to. The will was witnessed by Mary and Newton Leith of Westfield and Ila Mae Bingaman of Mattoon, the secretary of attorney Kenneth A. Green who prepared the will. The codicil was witnessed by Robert and Virginia Shawver of Westfield. All of the witnesses to the will were witnesses at the trial in the circuit court but neither witness to the codicil testified. None of the persons named in the will was related to deceased except Martha Spear and Katie Mitchell.
The complaint filed in the circuit court alleges that Samuel James was not of sound mind and memory at the time of the execution of the instruments and that the will and codicil were procured by the undue influence and fraudulent misrepresentations of Martha Spear and E.B. "Bruff" Van Scoyk, setting forth particularly the acts of undue influence and fraudulent misrepresentations complained of. The answer of the defendants is in form a general denial, except that the Baptist Church of Westfield has filed a disclaimer so that the property which might come to it would revert to the estate and to Katie Mitchell as sole heir of the deceased. The cause was tried twice before a jury. At the first trial the jury was unable to agree. Upon the second trial the jury reached a verdict finding the issues for the plaintiff and that the will and codicil in evidence were not the last will and testament and codicil of Samuel James, deceased. At the trial defendants made motions for a directed verdict generally and upon the issues of unsoundness of mind and undue influence separately, both at the close of plaintiff's case and after defendants had introduced their evidence and rested. These motions were overruled. Motions for judgment notwithstanding the verdict, in arrest of judgment and for a new trial were also made but were denied by the trial court. Numerous assignments of error have been made but only those argued will be considered as assignments of error made, and those not argued will be deemed to have been waived. (Horner v. Jamieson, 394 Ill. 222; Creighton v. Elgin, 395 Ill. 87; People ex rel. Nelson v. Olympic Hotel Building Corp. 405 Ill. 440.) The principal assignments of error to be considered here are (1) denial of the motions for directed verdict and for judgment notwithstanding the verdict, (2) that the verdict is not supported by the evidence as a whole, and (3) errors assigned upon the admission and exclusion of certain evidence.
Preliminary to a discussion of these various assignments of error it will be well to state some of the undisputed facts which are established by the evidence on both sides of this controversy. Samuel James was 91 years of age at the time of the execution of the purported will and codicil. Had he lived another month he would have been 92 years of age at the time of his death. During his lifetime he had acquired considerable money and property so that at the time of his death his estate was valued at about $50,000. The value of the 40 acres bequeathed to his daughter, Katie, is about $5400. The value of the remainder of the estate, all of which was to go to his sister, Martha Spear, and on certain contingencies to Van Scoyk, was valued at $44,332.37. These amounts exclude more than $12,000 transferred to Martha Spear in 1949 during his lifetime. Though of considerable means, Samuel James had always lived frugally and dressed poorly. He had been somewhat eccentric, preferring to "batch it" in a small shack on his farm rather than associate with others. In the later years of his life he had lived with his sister, Martha Spear, in a home in Westfield which they owned together. He had never owned an automobile but travelled between his farm and Westfield in a mule-drawn wagon. This he did up to the time he was about 89 years of age.
The health of James had been fairly good up through the year 1947 but during the year 1948 it began to decline rather rapidly due to his advanced age. He was bothered with a kidney and bladder ailment and had trouble controlling his bowels. He is described by some witnesses during the year 1948 as being filthy and dirty and given to filthy habits. He last visited his farm in the fall of 1948 at which time, according to one of defendants' witnesses, he could not walk "to do any good." This same witness stated that James had trouble getting around from 1947 onward and that his walking did not improve any from 1948 until the time of his death.
During the entire year of 1949 and from then on until his death it appears that James was confined to the house in Westfield where he lived with his sister. He is described by witnesses for both sides, who observed him during this period, as a feeble old man. His bed was in the kitchen of the house and he had to be helped from his bed to a chair where he sat and back to bed again. No witness ever saw him out of this room from the beginning of 1949 until the time of his death. Dr. L.H. Johnson, who testified as a witness for defendants, stated that he attended James at the home on February 18 and March 2, 1949, and on February 26 and August 28, 1950. He states that at the time of his visits in 1949 he had little conversation with James because he was too sick. The doctor stated that he had bladder and kidney trouble at that time together with an infected ear and was running a high temperature. He states that he could not make James hear.
It was on March 1, 1949, and during the period Dr. Johnson testifies, that James was so ill that his sister, Martha Spear, appeared at the Casey National Bank at Casey, Illinois, with a blank check signed by James. This she caused to be filled in with the entire amount on deposit in James's name at that bank and closed his account, depositing the entire sum of $12,241.40 in her account. Two or three weeks previous to this transaction she had inquired of the banker at this bank as to the procedure necessary to transfer the account to her and he had explained that it could be done only upon James's signature.
Prior to the early months of 1949 it appears that James's relations with his daughter, Katie Mitchell, were friendly. She had washed his soiled clothing for him and there is nothing in the evidence which shows that their relations had been other than the normal relations of a father and daughter. Mrs. Mitchell, upon being advised of the transfer of the large sum from her father to Mrs. Spear, brought proceedings in the county court of Clark County for the appointment of a conservator for James. In connection with these proceedings, his bank accounts in several banks, except that in the bank at Westfield, were temporarily closed. Upon appeal, the conservatorship proceedings were finally dismissed by order of the circuit court of Clark County on November 15, 1949. The conservatorship proceedings were therefore pending at the time of the execution of the will and the date of the dismissal intervened between the date of the execution of the will and that of the execution of the codicil. At the time the proceedings were instituted by Mrs. Mitchell, Mrs. Spear told a witness in the presence of James that "Katie has closed our bank accounts and we have nothing to live on." This impression apparently stayed with James because in the winter of 1949, after the conservatorship proceedings had been dismissed, he told an old friend of his who called to see him that "Katie Mitchell had broke him." The evidence shows that after the conservatorship proceedings were begun the relations between Katie Mitchell and Martha Spear became strained and embittered and that, largely because of the interpretation Martha Spear saw fit to give those proceedings, Samuel James became very angry at his daughter and sole heir. He told a friend that if Katie had just waited until he died he would have seen that she was taken care of, apparently believing that Katie, through the conservatorship proceedings, had sought to acquire the money for herself.
Turning to the assignments of error, we shall first direct our attention to the refusal of the trial court to direct a verdict upon the issue of unsoundness of mind. The legal rules applicable to such a motion in proceedings of this character have often been stated by this court. A will contest is a statutory proceeding and not an ordinary action in chancery. Motions for a directed verdict or for judgment notwithstanding the verdict in a will contest are subject to the same rules governing those motions in an action at law. (Wiik v. Hagen, 410 Ill. 158; Tidholm v. Tidholm, 391 Ill. 19.) The rule is that where the evidence, together with all reasonable inferences to be derived therefrom, taken in the aspect most favorable to the plaintiff, is sufficient to establish the allegations of the complaint, the defendant is not entitled to a judgment notwithstanding the verdict. (Wiik v. Hagen, 410 Ill. 158.) Likewise, since both types of motion are subject to the same operating principle, where the evidence, taken in its aspects most favorable to the contestant, together with all reasonable presumptions and inferences to be drawn therefrom, tends to establish the allegations of the complaint, the issue should not be withdrawn from the jury. (Tidholm v. Tidholm, 391 Ill. 19; Peters v. Peters, 376 Ill. 237; Ginsberg v. Ginsberg, 361 Ill. 499.) Neither the trial court nor this court is permitted to weigh the evidence, the sole question being whether the plaintiff's evidence makes out a prima facie case, sufficient in itself to go to the jury.
Five witnesses testified for the plaintiff that in their opinion James was of unsound mind at the time they observed him. All of these witnesses had known James personally over a long period of time. One testified as having observed him as late as October 8, 1949, three days before the execution of the purported will. All of them had seen him and had conversed with him either late in 1948 or during 1949. James had told one of these witnesses, the mayor of the village of Westfield, that he was not able mentally or physically to do business any more, indicating a consciousness of his own failing faculties. Edward Turner, a banker of Casey, who last saw James on May 24, 1949, had done considerable business with James previously. Turner testified that he visited the home at the time the conservatorship proceedings were started; that while Mrs. Spear was very angry, Sam was not interested, failed to answer questions and "was perfectly at sea." Turner testified that Mrs. Spear became very angry at Sam for his indifference. Ezra Riggins who last saw James on April 1, 1949, says that James sat with his head down and when he looked up became glassy-eyed and stared; that James said nothing when Martha Spear refused to allow James to accompany Riggins to the home of Katie Mitchell. Mrs. Simpson who called on James on October 8, 1949, testified that James did not recognize her until she told him who she was though she had known him for 43 years. This is but a very brief summary of the testimony of some of the witnesses for the plaintiff on the issue of testamentary capacity. Viewing it as a whole we are persuaded that it was sufficient to make out a prima facie case and was sufficient of itself to go to the jury on that issue. The trial court did not err in refusing to take the question of unsoundness of mind from the jury.
Upon the issue of undue influence the trial court made the same ruling, which is also assigned as error. We believe that the evidence offered on behalf of plaintiff upon this question is even more convincing. It leaves little doubt that there was a strong fiduciary relationship between Martha Spear and her brother, Samuel James, during the last two years of his life and at the time the will and codicil were executed. During all of this time she did all of his business for him with the possible exception of one small transaction of leasing some pasture which, incidentally, may be regarded as a deal of questionable benefit to James. Martha Spear opened an account for James in the Westfield Bank in 1948. James never came to the bank. She made all deposits and withdrawals, though the withdrawals were made upon checks signed by him. He depended upon her to care for his physical needs and handle his legal affairs. Though, according to Turner, James took no interest in hiring an attorney to defend the conservatorship proceedings brought by Katie Mitchell, it was Martha Spear who went to Mattoon to hire a lawyer and it is she who appears as the active party in defending that lawsuit, together with E.B. "Bruff" Van Scoyk, who first contacted attorney Green for the defense of that case in the circuit court and the ultimate drafting of the will. It was in April of 1949 that Samuel James transferred his interest in the home in Westfield to Martha Spear. Thereafter she was the sole owner of the ...