APPEAL from the Circuit Court of Kendall County; the Hon.
RUSSELL W. KEENEY, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 22, 1956.
This is an appeal from a decree of the circuit court of Kendall County declaring that a certain instrument is not the last will and testament of Evreard Belfield, deceased, setting aside said instrument and declaring the probate thereof null and void. The decree was entered upon the verdict of a jury in an action brought by the plaintiffs, Russell Belfield and Helen Falkenberg, a nephew and niece of deceased and his sole heirs-at-law. The defendants were Ralph Coop and Sara Grate as joint executors of the will, and the legatees and devisees hereinafter named, all of whom appealed except Earl Horton and Florence Grate. Sara Grate, Ida Mae Silvius, Florence Grate and Earl Horton, defendants, were nieces and a nephew of Agnes Belfield, testator's deceased wife.
Evreard Belfield, a resident of Kendall County, died in a hospital at Joliet, on April 19, 1953, at the age of 83 years. The will in question, dated April 16, 1953, was duly admitted to probate in the county court of Kendall County. It provided for the payment of the testator's just debts and funeral expenses and the erection of a monument over his grave and that of his deceased wife; bequeathed $10,000 to each of the plaintiffs; devised a farm, containing 160 acres, valued at about $58,400, and known as the Belfield homestead, to Ralph Coop, a tenant; devised another farm of 143 acres, valued at about $47,500, known as the Wilson farm to Clinton Wilson, known as Jack Wilson, and described as a friend of the testator; devised a third farm, known as the Bundy farm, containing 160 acres and worth about $54,000 to Sara Grate, described in the will as testator's niece; devised a fourth farm, known as the Grate farm, containing 158 acres and valued at $35,340, to a friend, Edward Markstrom, Sr.; devised a fifth farm containing 120 acres worth about $21,600, and known as the Dano farm to Ida Mae Silvius, designated as testator's niece, and her husband, Jesse L. Silvius; directed the executors to give bond as required by statute and to sell the remaining farm lands to pay bequests and State inheritance and Federal estate taxes, and to distribute the balance, if any, in accordance with the residuary clause, which devised and bequeathed all the residue "to my nephews Russell Belfield and Earl Horton and my nieces Helen Falkenberg, Sara Grate, Florence Grate and Ida Mae Silvius in equal shares, share and share alike."
The evidence shows that Evreard Belfield left an estate valued in excess of $366,000, consisting of seven farms of the aggregate value of $311,992.50, and personal property valued at $54,013.29, and that the value of the residuary estate, after deducting specific legacies, fees and taxes, was $2730.84, or about $455.14 for each of the six residuary beneficiaries. Agnes Belfield, wife of the decedent, predeceased him by about a month, having died intestate, on March 18, 1953. The Belfields were married in 1906 and never had, or adopted, any children. This property was acquired largely through their joint efforts, but Agnes had inherited certain money from her parents which she contributed to the purchase of the farms. Title to five of the seven farms had been vested in Agnes and Evreard Belfield as joint tenants, and title to the Belfield homestead farm was in Evreard Belfield. Title to the Martin farm, which had originally been purchased by Agnes and her brother, had been vested in Agnes and Evreard Belfield as tenants in common. Evreard Belfield had executed a will on October 1, 1951, leaving his entire estate to his wife. Agnes Belfield left surviving as her sole heirs-at-law her husband and her sister, Margaret Horton, mother of Earl Horton, and her nieces, Sara Grate, Florence Grate and Ida Mae Silvius, daughters of a deceased sister, Janet Grate.
The complaint charged that the testator, at the time of the execution of the purported will, lacked testamentary capacity and was under the undue influence, dominion and control of the defendant Sara Grate, whereby her will was substituted for his.
All of the defendants except Earl Horton, who was defaulted, answered and denied the allegations of the complaint. At the trial the defendants made motions for a directed verdict generally and upon the issues of testamentary capacity and undue influence separately, both at the close of plaintiffs' case and at the close of all the evidence. These motions were overruled as were motions for judgment notwithstanding the verdict and for a new trial. The errors assigned and argued here are: (1) that the trial court erred in admitting certain evidence on behalf of plaintiffs and excluding certain evidence offered on behalf of the defendants; (2) that error was committed in overruling various motions; (3) that the verdict is not supported by the evidence; (4) that the court erred in giving certain instructions tendered by plaintiffs; and (5) that the argument and conduct of counsel for plaintiffs was prejudicial.
Plaintiffs called defendant Earl Horton, one of the six residuary beneficiaries, as a witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1953, chap. 110, par. 184.) Over repeated objections by defense counsel, he was permitted to testify to conversations he said he had with Sara Grate relative to Evreard Belfield's "attempting to make a will." The objections were made upon the ground that any declarations or admissions by Sara Grate relating to testamentary capacity or undue influence were inadmissible and prejudicial as far as the other beneficiaries were concerned since the interests of the legatees and devisees under the will in question were several and not joint, and no conspiracy was charged. The court sustained a few of the objections interposed to statements attributed to Sara Grate by Horton and ordered the answers stricken, but allowed most of them to stand. The reasons for the alternating rulings are not apparent. For example, Horton at one point testified that Sara Grate said to him, "If he goes to the hospital, I don't think we will get the will through, I don't think we can." An objection made at this time was sustained and the answer ordered stricken. But without being asked another question, Horton then volunteered: "Well anyway she expressed an opinion that it would be harder to get a will made while he was in the hospital." The objection to this statement was overruled and it was allowed to stand. Both of these statements attributed by Horton to Sara Grate are to the same effect and, if objectionable, are equally so.
In substance, the conversations related by Horton as having taken place between himself and Sara Grate were that Horton and Sara Grate conceived a plan of suggesting to Evreard Belfield that he make a will treating the nephew and nieces on Agnes Belfield's side of the family and the nephew and niece on testator's side of the family equally; that this plan was formulated after the death of Agnes Belfield when they learned that unless Evreard Belfield made a new will, all of the property would go to the testator's heirs, the plaintiffs, Russell Belfield and Helen Falkenberg; that they went so far as to draft a simple form of a will with the idea of suggesting it to the testator, but Horton was to have no part in making the suggestion as in his words: "Well, Sara didn't seem to want any help with that part. She thought she could handle that." Horton depicts himself as playing a minor part while Sara Grate has the role of one ready and able to influence Evreard Belfield; and, if Horton's testimony is to be believed, he was double-crossed by Sara Grate, as the will in question is nothing like the will allegedly discussed by them. Horton further testified to a conversation which was supposed to have taken place in the kitchen of the Belfield home the day before Evreard Belfield was taken to the hospital. At that time Horton says he asked Sara if she had made any progress toward drawing up the will. She is reputed to have said that she had not; that since the day Evreard had gone to the doctor, he had been in no condition to talk about a will; that her primary concern was to get him "happy" again before she approached him about the will. As part of the same conversation Sara is supposed to have said that Evreard would have to have oxygen soon or he would "croak," and that she did not want him to go to the hospital because it would be harder to get a will made there. Horton also testified to a conversation he had with Sara after Belfield was in the hospital and on the very day the purported will was executed, wherein he asked her whether she had made any progress toward the will, and that she replied that she had not; that she had seen two lawyers and there was more to it than he thought. Horton stated that he then said that Evreard didn't look very good to him and that it appeared that it was almost too late, and that Sara then told him that he might as well go as she was "going to work on Evreard." On objection, the latter part of this conversation was ordered stricken. The statements attributed to Sara Grate by Earl Horton are replete with admissions or declarations.
Without further detailing the testimony of Earl Horton, it appears that the statements ascribed to Sara Grate have a direct bearing on the issues of both undue influence and testamentary capacity and, if believed, constitute admissions on her part that testator lacked testamentary capacity, could be influenced and that she intended to influence him in the making of his will. Though called under section 60 of the Civil Practice Act as an adverse party, Earl Horton, a defaulted defendant and a disappointed beneficiary, appears to have been more than willing to tell his story even to the extent of volunteering statements when no questions were asked. It should also be noted that Sara Grate was incompetent to testify directly in her own behalf, or in rebuttal, under section 2 of the Evidence Act, (Ill. Rev. Stat. 1953, chap. 51, par. 2,) and there was no one to deny, contradict, or qualify any of Horton's testimony, as all conversations were supposed to have taken place when he and Sara Grate were alone. If, therefore, the statements or admissions were objectionable for the reasons assigned at the trial, they were doubly damaging because they could not be refuted.
This court has consistently followed the rule that statements or admissions made by a devisee or legatee concerning the testamentary capacity of a testator, or acts of undue influence in procuring the execution of a will, while admissible where the interests of all the devisees or legatees are joint, are not admissible where their interests are separate and no conspiracy is charged. (Ginsberg v. Ginsberg, 361 Ill. 499; Powell v. Bechtel, 340 Ill. 330; McCune v. Reynolds, 288 Ill. 188; McMillan v. McDill, 110 Ill. 47.) This rule is adhered to in other jurisdictions and represents the great weight of authority elsewhere. (Annotation, 167 A.L.R. 13, 37.) The reason for the rule is that the declarant is not the only one interested in the issue to be tried and that it would be unjust to allow the interests of one beneficiary to be affected by the admissions or declarations against interest of another with whom he is not in privity; that to permit such testimony would allow one beneficiary, whose interest might amount to only a small part of the estate, by his statements to affect injuriously the interests of the other beneficiaries who might be entitled to the greater part of the estate. Counsel for plaintiffs do not contend that the interests in the will in question are joint. The fact is that separate farms are devised to the defendants Grate, Coop, Wilson, Markstrom and Silvius. Nor is it contended that any of these defendants conspired with Sara Grate. The complaint does not allege and there is no proof of such a conspiracy. The only person charged with undue influence is Sara Grate. To support their contention that the testimony in question was admissible, plaintiffs rely upon the decision of this court in Latham v. Rishel, 384 Ill. 478. A careful study of the decision in that case reveals that it is not authority for the proposition that Horton could be called to testify concerning statements and admissions on the part of Sara Grate. The Latham case holds that the plaintiffs in that will contest had the right to call Rishel, the named executor and principal beneficiary, under section 60 of the Civil Practice Act, and examine him as to his acts and conduct touching upon matters of alleged undue influence, and that section 2 of the Evidence Act and the general rule above discussed do not preclude such action. In that opinion we made it clear that the rule in the Ginsberg and other cases related to declarations and admissions and that they were not authority for the proposition that under the circumstances Rishel could not be called and examined as to his own acts and conduct. While the Latham case is authority for the proposition that Sara Grate might have been called by plaintiffs in this case and examined as to her acts and conduct, it is not authority for the proposition that Horton might be called to testify as to declarations or admissions by her to the prejudice of the other defendants whose interests were separate. The difference in the two situations is apparent. Aside from the distinction between declarations and admissions and testimony as to acts and conduct, the Latham case involves a situation in which the person charged with undue influence was called adversely to testify, and his incompetency as a witness thereby removed, whereas in the instant case Earl Horton testified as to admissions and declarations made by Sara Grate, the party charged with undue influence, and she was unable, because incompetent, to refute any of the testimony. We believe that under these circumstances the rule announced in the Ginsberg case and the other cases cited, is applicable, and is required for the protection of the defendants, other than Sara Grate, whose interests are separate, and who are charged with no misconduct. To hold otherwise would abrogate the long established rule in this State and align this court against the great weight of authority elsewhere. This court is cognizant of criticism urged against this rule (Wigmore on Evidence, Third Edition, sec. 1081; Annotation, 167 A.L.R., 13, 49;) but is without suggestion of a more salutary principle of law to be applied under these circumstances. We hold that the testimony of Earl Horton as to the declarations and admissions of Sara Grate touching upon matters of alleged undue influence and lack of testamentary capacity was not admissible, and we quote from the case of McMillan v. McDill, 110 Ill. 47, at page 50, "There is no doubt but this evidence had an important bearing with the jury in the decision of the case, and if the evidence thus admitted was incompetent, for this error alone, the judgment will have to be reversed."
The attorney who drafted the will instructed Sara Grate to take his wire recorder to the hospital and make a recording of the conversations with the testator prior to the execution of the will. She followed these directions and made a recording which consisted of her reading of the will to the testator, his statements, if any, at the end of each paragraph, together with his responses to specific questions including whether he knew where he was, the number of farms he owned, and whether he wanted to sign the will. At the trial the entire spool containing the recording was tendered in evidence after an offer of proof outside the presence of the jury. No objection was made by plaintiffs' counsel as to the form of the offer of proof. The court rejected the wire recording, saying: "My notions are that Sara Grate is not a competent witness and that the reading of the will and his responses are not competent evidence. I can't see how that can be admitted in evidence, and I will so rule on that." Apparently the court reasoned that since Sara Grate was not a competent witness in her own behalf under section 2 of the Evidence Act, her reading of the will, and the questions and answers as recorded were therefore incompetent. We cannot agree that the recording was incompetent for that reason. In Garrus v. Davis, 234 Ill. 326, the trial court excluded the testimony of a witness to a conversation between the plaintiff contestant and the testatrix on objection that the witness should not be permitted to testify to what was said by the plaintiff contestant, which obviously referred to plaintiff's incompetency under section 2 of the Evidence Act. This court indicated that the testimony as to the conversation was competent, and reversed the judgment for that and other errors. In the Garrus case, though the plaintiff was incompetent to testify to the conversations she had with testatrix because of said provisions of the Evidence Act, a competent witness, overhearing the conversations, was not disqualified for the reason. So in the present case if a competent person had witnessed the occurrences and overheard the conversations attendant upon the execution of the will, he would not be disqualified by the provisions of section 2 of the Evidence Act from relating those occurrences and conversations though they might involve questions asked or statements made by Sara Grate, who was an incompetent witness in her own behalf under the act. Does the fact that we have a wire recording instead of a human witness make a difference? We think not. There are comparatively few decisions on the admissibility of sound recordings in evidence, but most of the courts which have considered the question agree that such evidence is admissible if the proper foundation has been laid to assure the authenticity of the recording and its consequent reliability. (Annotation: 168 A.L.R. 927.) Such recordings have been received in civil (Paulson v. Scott, 260 Wis. 141, 50 N.W.2d 376; Boyne City, G. & A.R. Co. v. Anderson, 146 Mich. 328, 109 N.W. 429.) and criminal cases, (Commonwealth v. Clark, 123 Pa. Super. 277, 187 A. 237; People v. Hayes, 21 Cal.App.2d 320, 71 P.2d 321; State v. Raasch, 201 Minn. 158, 275 N.W. 620; State v. Perkins, 355 Mo. 851, 198 S.W.2d 704; 168 A.L.R. 920.) and their validity recognized by eminent text writers. (Wigmore on Evidence, 3d ed. sec. 795a, subpar. 3.) In Boyne City, G. & A.R. Co. v. Anderson, 146 Mich. 328, 109 N.W. 429, the recording was considered a mechanical witness. There a phonograph was permitted to be operated in the presence of the jury to reproduce sounds claimed to have been made by the operation of trains in proximity to respondent's hotel. The court observed that the ground for receiving such recordings is stronger than for receiving evidence of telephonic conversations since there is not only proof by the human witness of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the sounds themselves. In the case at bar, the fact that the recording is a mechanical rather than a human witness should not render the evidence incompetent provided there is proper foundation for its admission.
On this appeal, plaintiffs' counsel argue want of proper offer of the wire recording and lack of adequate foundation for its admission. These objections were not made in the trial court and the recording was not excluded for such reasons. Counsel for defendants outlined an offer of proof to the court out of the presence of the jury, designed to lay a proper foundation for the admission of the recording. This offer included the proposed testimony of Walls Schreffler, an expert on such devices; that of Mrs. Di Domenic, one of the nurses who witnessed the will, and Samuel Saxon, the attorney who drafted the will and whose wire recorder was used. Counsel for defendants then said they would offer the entire spool in evidence. The court then ruled the wire recording inadmissible on the basis of section 2 of the Evidence Act. In view of the court's ruling, the act of calling these witnesses before the jury, the formal marking and tendering of the spool, and its identification was not required. Had the objection made for the first time in this court been interposed at the trial, counsel for the defense would have had an opportunity to secure the ...