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Butler v. O'brien





APPEAL from the Superior Court of Cook County; the Hon. FRANK M. PADDEN, Judge, presiding.


This is an appeal by defendant Thelma Bishop from a decree of the superior court of Cook County declaring that a certain writing is not the last will and testament of Betty L. Gilliard, deceased, and setting aside the probate thereof.

Betty L. Gilliard died on June 22, 1953. The alleged writing was admitted to probate by the probate court of Cook County and letters testamentary issued to the defendant Richard M. O'Brien, designated as executor therein, on October 28, 1953. The instrument named the defendant Thelma Bishop as the sole beneficiary of the estate, consisting of real and personal property, valued at approximately $25,000. On July 26, 1954, the plaintiffs, first cousins of the decedent and her sole heirs-at-law, filed complaint alleging lack of testamentary capacity on the part of the decedent, the direct exercise of undue influence by the defendants, and the existence of a fiduciary relationship between decedent and defendants. Answers were filed by defendants denying these charges. A freehold is involved, hence the appeal comes directly to this court. Challiner v. Smith, 396 Ill. 106.

It appears from the evidence that the decedent, Betty L. Gilliard, was approximately 80 years old at the time of her death. For some time prior thereto, she had lived in her residence at 4429 South Michigan Avenue in Chicago. Until 1950 she was active in the management of her own property. In 1950, 1951, and part of 1952, defendant Bishop and her husband and child resided on part of the premises owned by decedent. In the fall of 1952, decedent was in such poor health that a nephew by marriage, Edward M. Baker, came from Philadelphia to care for her. He obtained a physician for her and procured her admission to the Chicago Hospital. In December, 1952, Baker brought decedent back to her home and hired a nurse for her. That same month, Baker, on the recommendation of defendant Bishop, consulted Dr. Horrall, who soon had decedent admitted to Wesley Memorial Hospital. She was very weak and feeble and he treated her for heart condition, edema and dropsy. At that time, Baker opened a checking account to take care of decedent's expenses. He deposited funds, signed checks in advance and gave them to defendant Bishop for the purpose of drawing money to meet decedent's expenses. On April 12, 1953, the decedent was discharged from Wesley Memorial Hospital, and removed to a bed in the dining room of her home. Baker hired defendant Bishop to care for decedent and arranged to pay her $50 a week for her services. On June 4, 1953, decedent executed the purported will. On this occasion, she tried twice to sign her name but was so enfeebled that she could not do so and ultimately signed by making a mark. When the writing in question was executed, she was surrounded by persons who were neither relatives nor old friends. Thereafter, her health improved somewhat until about June 11, 1953, when she began to fail steadily and so continued until her death on June 22.

Since the appellant contends the evidence establishes neither testamentary incapacity nor undue influence, it is necessary to detail the testimony of the witnesses on these points.

Sarah Ozella, a school teacher and life-long friend of Betty Gilliard, testified for plaintiffs that she had close contact with her for over 15 years; that she saw her four or five times a week during the last year of her life and two or three times after she came out of the hospital in April, 1953; that she saw her about twice a week in the hospital and the decedent appeared to be very sick; that on June 2, 1953, decedent was limp and did not recognize the witness; that she looked in the wrong direction and was trying to locate the part of the bed where the witness was sitting; that at that time decedent said to defendant Bishop, "Thelma, take that knife out of your bosom," and Mrs. Bishop then put her hand on the bed to satisfy decedent; and that in referring to the incident, defendant Bishop told the witness that "she [decedent] has been acting queer like that lately." Sarah Ozella further testified that when she asked Betty Gilliard to talk to her, decedent did not move and her eyes appeared to be glassy. Mrs. Ozella was of the opinion that decedent, Betty Gilliard, was not of sound mind. After June 2, Mrs. Ozella tried to see decedent often but was not permitted to do so by defendant Bishop.

Lela Foston, a close friend, testified that decedent was very sick on June 3, 1953, but was not permitted to express an opinion as to her mental condition.

A neighbor, Erma Williams, testified that she had seen the decedent on April 14, 1953, after her return from the hospital; that she was ill and groggy; that the following day the witness came to stay with the decedent while Mrs. Bishop went to the dentist, but Mrs. Bishop would not let her stay; and that on two other occasions she attempted to see the decedent but Mrs. Bishop would not permit it.

Ruby Jefferson, who had known Betty Gilliard for the last 20 years, testified that she visited decedent every other day from April 7, to June 22, 1953, and observed her condition during those days; that on June 4, 1953, Betty Gilliard was in terrible condition and looked as though she was in a stupor; that she was very, very weak and partially blind. Mrs. Jefferson further testified that she asked the decedent if she knew her, and decedent merely smiled. The witness was of the opinion that between April 7 and June 4, decedent's mind was "in a mighty bad state."

Edward M. Baker, decedent's nephew, testified that he saw his aunt about 12 times during the last six months of her life; that on April 12 she was "very, very feeble;" that on April 17, the last time he saw her, the doctor said that her death was just a matter of time; that she was unable to do anything and slept practically all the time; and that she could not transact business during these last six months. The witness was of the opinion that her mind was not clear during the last six months of her life.

Roosevelt Robertson, who had known Betty Gilliard for 30 years, testified that he visited her frequently at the hospitals, and saw her in May and June of 1953, particularly between May 30 and June 5; that in the early days of June she was weaker than when she had left the hospital and had practically no use of her arms; that she was unable to transact any business; and that he had difficulty in getting into the apartment to see decedent when Mrs. Bishop was there. The witness was of the opinion that decedent "wasn't of good mind."

Two of the attesting witnesses were called adversely by plaintiffs and testified that they lived in the same building as the decedent and that they were asked by the defendant Bishop to be witnesses to the purported will on the evening of June 4, 1953.

John E. Kelly, attorney for the defendant-executor, was called by plaintiffs and testified that the purported will was prepared in his office, but that he ...

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