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Sterling v. Dubin





APPEAL from the Circuit Court of Cook County; the Hon. B. FAIN TUCKER, Judge, presiding.


Louise Sterling brought an action in the circuit court of Cook County to set aside the will of her deceased husband on the grounds of mental incapacity and undue influence exerted upon him by Josephine Dubin, his private secretary, to whom he left a substantial legacy. The case was tried by a jury and a verdict was returned upholding the will. Plaintiff's motions for a new trial and for judgment notwithstanding the verdict were denied, and a decree was entered on the verdict. A freehold being involved, plaintiff appeals directly to this court, contending that the verdict is against the manifest weight of the evidence, that proper evidence offered by plaintiff was excluded; that the trial court displayed prejudice against plaintiff in the presence of the jury, and that the court improperly sustained objections to portions of the closing argument of her attorney. Error is also assigned on the giving and refusing of certain instructions.

The testator, William Sterling, died in Chicago on March 24, 1951, at the age of 44. He was survived by his widow, the plaintiff, and two daughters. His will, which was executed four days before his death, provided for a $5000 legacy to a sister, a $10,000 legacy to defendant Josephine Dubin, and gave all household furnishings and personal effects to plaintiff. The residue of his estate was bequeathed and devised in trust for the benefit of his two daughters. The will was admitted to probate in the probate court of Cook County on December 28, 1951. The estate included personal property valued at about $45,000, and real estate having a value in excess of $30,000.

At the time of his death Sterling was treasurer, vice-president and director of a large manufacturing corporation, and was in charge of all tax accounting and financial operations of the company and its stock transfer department. His income was about $40,000 per year. He resided with his family in Winnetka. Their home was purchased by Sterling in 1944, title being taken in plaintiff's name. Some time prior to April of 1950 marital troubles arose between Sterling and his wife, and he rented a room in the Congress Hotel in Chicago. An intimate relationship thereafter developed between Sterling and defendant Josephine Dubin. For some five or six years she had been employed, as his private secretary, by the company for which he worked. She was about twelve years younger than he. She accompanied him on social occasions, and they would frequently have dinner together. It further appears that she had sexual relations with Sterling on several occasions. In November or December of 1950 he asked her whether she would marry him if he obtained a divorce and she said she would do so because they loved each other.

On January 26, 1951, Sterling complained of feeling ill after having dinner with Miss Dubin at the Congress Hotel. He drove her home, and then proceeded to his Winnetka home. A physician was called, who determined that Sterling was suffering from a heart ailment. He was admitted to a hospital on the next day, where he remained until March 10, 1951. While Sterling was in the hospital he was treated with a drug called dicumarol. His physician testified that the drug is a dangerous one and could cause hemorrhages anywhere in the body, including the brain; that personality changes sometimes occur as a result of the drug; that in cases of coronary thrombosis and infarction mental symptoms appear to some extent; that patients become more emotional, and that the symptoms include irritability, moodiness, emotional instability, confusion and anxiety. The doctor further testified, however, that he was satisfied with Sterling's reaction to the drug and his general reaction to treatment during convalescence.

During his confinement in the hospital Miss Dubin visited him at least once a day and talked to him by telephone on matters of business several times a day. Mrs. Sterling, on the other hand, visited her husband on only five occasions. The last visit, which occurred on February 25, was the last time she saw or talked to him during his lifetime. There is evidence that she was forbidden by her husband to visit him in the hospital and that his doctor advised her to stay away. Sterling telephoned her only once during the time he was in the hospital.

In February, while Sterling was in the hospital, his doctor at his request informed Mrs. Sterling that her husband wanted her to bring him their insurance policies, which had a total face value in excess of $35,000. These she delivered to Sterling, who then changed the designated beneficiary from his wife to his daughters. He delivered them to Miss Dubin, who handled the necessary details to effect the change of beneficiary. Mrs. Sterling did not learn of the change until after his death. On February 24, Sterling telephoned his wife, telling her that they were going broke and would have to borrow money on certain jointly held stock certificates in order to pay the hospital bill. He asked her to get them out of their safe deposit box and deliver them to him at the hospital. The following day she gave him the stock certificates, together with signed stock powers, and thereafter Miss Dubin delivered them to the company for transfer into Sterling's name alone. He did not make a loan on the stock. It is undisputed that he was not in straightened circumstances, and had ample funds to meet his expenses. Sterling also dictated a series of letters to Miss Dubin by which he cancelled all charge account authority of Mrs. Sterling at some twelve or thirteen stores. Because of his anxiety about finances, Mrs. Sterling transferred the title to their home into his name alone and caused the deed to be recorded. She did not tell her husband about the deed, and he had no knowledge of it.

While in the hospital Sterling dictated to Miss Dubin a long letter addressed to certain attorneys in Mexico with reference to obtaining a divorce, with which there was enclosed his power of attorney, authorizing the attorneys to proceed with the divorce, and a power of attorney purportedly signed by his wife as defendant in the proposed suit and notarized by Miss Dubin as notary public. Mrs. Sterling had no knowledge of the attempted divorce, or the power of attorney bearing her purported signature, until she learned about it after her husband's death; and she contends here that the signature was forged by her husband. After Sterling's death, Miss Dubin sent a telegram to the attorneys in Mexico advising them of the death and instructing them to stop any pending divorce action. In reply she received a letter returning the check that had been sent for the fee, and stating that it also contained the power of attorney of Mrs. Sterling. The disputed power, however, was not produced at the trial in the case at bar, defendants' counsel testifying that it may have been lost or misplaced by himself or Miss Dubin.

On March 10, 1951, Sterling moved from the hospital to a room in the Stevens Hotel. Thereafter Miss Dubin occupied his room in the Congress Hotel. On March 17, a few days after Sterling had incurred a fall and had suffered a "blackout," he told Miss Dubin he wished to dictate a document, and asked her to bring her steno book to the Stevens Hotel the next day. On March 18 she came to his hotel room with her notebook, as requested, and Sterling then proceeded to dictate his will. There was no discussion of its contents either before or after the dictation. The only comment about any part of the will occurred when Sterling dictated the provisions in which the bequest to Miss Dubin is set forth. At this point she stopped taking dictation, and Sterling explained that in case she should feel bad after his death the bequest would provide funds for her to go away. Miss Dubin transcribed her notes in draft form at the company office the next day and delivered the draft to Sterling, who made some changes in language by means of notes and interlineations on the draft, and returned it to Miss Dubin with a request that she draw up the finished document. After the document was prepared in final form Miss Dubin, at Sterling's request, arranged for certain witnesses to come to the hotel. The will was executed on March 20 at the Stevens Hotel room, in the presence of three business associates of Sterling, who acted as witnesses. Miss Dubin was not present when the will was signed, but later received it from Sterling with instructions to place it in the company vault. This she did.

The provisions of the will concerning the legacy to Miss Dubin read in part as follows:

"Fourth: I hereby give and bequeath the sum of Ten Thousand Dollars ($10,000.00) to my secretary and dear friend, Josephine E. Dubin, now residing at 4831 N. Rockwell Street, Chicago, Illinois. This bequest is an expression of my appreciation for her many years of devoted and loyal services to my business career since 1938, and to her counsel, assistance and helpfulness during the several times in which I became ill after May 1948."

The fifth clause of the will, containing provision for Mrs. Sterling, is in the following language:

"I hereby give and bequeath unto the woman with whom, with her knowledge, I entered into an illegal marriage contract in Charleston, South Carolina on January 18, 1936, and who calls herself, LOUISE D. STERLING, all of my household furniture and other personal effects now located at 9 KENT ROAD, WINNETKA, ILLINOIS, of which I may still be possessed at my death, and in the event she predeceases me, such property shall go, in equal shares, to my beloved daughters, LOUISE MARGARET and BARBARA JEAN, who shall survive me. These household and personal effects are bequeathed with the knowledge that their value exceeds one-third (1/3) of the total estate of the Testator, and in the event any attempt is made by said woman, now known in Winnetka, Illinois under the name of LOUISE D. STERLING, to dispute any of the terms of this Will, then in that event, she shall, in lieu thereof, be given the sum of One Dollar ($1.00) and all of the effects given under this Clause FIFTH shall then go, in equal shares, to my said daughters, who shall survive me. The Testator considers the bequeathing of said household and personal effects, having a value far in excess of Twenty-Five Thousand Dollars ($25,000), to be ample recognition of any real or fancied rights possessed by the aforesaid woman, in view of the fact that she repeatedly made attempts upon his life, many times expressed the hope that his death would occur at as early a date as possible, and generally made his life, while sharing the same address with him, as miserable as she could."

Sterling's marriage to the plaintiff herein had taken place some few days prior to the date of a final divorce decree terminating his previous marriage. It was stipulated at the trial, however, that the marriage was a lawful one, and that at ...

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