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Conway v. Conway

OPINION FILED SEPTEMBER 18, 1958.

JOSEPH A. CONWAY ET AL., APPELLEES,

v.

ESTHER MARIE CONWAY, APPELLANT.



APPEAL from the Superior Court of Cook County; the Hon. JOHN A. SBARBARO, Judge, presiding.

MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:

Raymond Alfred Conway died on December 18, 1955, leaving his widow and children surviving him. An instrument purporting to be his will named his wife as executrix and sole beneficiary. It was presented to the probate court of Cook County where, upon a hearing, it was held to be duly proved and admitted to probate. Thereafter the children brought suit to contest the will in the superior court of Cook County. The issues were submitted to a jury, which found in favor of the plaintiffs, and a decree was entered adjudging the instrument not to be the will of Raymond Alfred Conway. Its probate was set aside and declared null and void. Defendant appeals. Since the testator died seized of real estate disposed of by the will, a freehold is involved and the appeal is prosecuted directly to this court.

The principal question is whether the plaintiff's evidence affirmatively shows the will was signed and attested as required by law, and whether defendant's motion for a directed verdict should have been granted accordingly. It is not disputed that issues of undue influence and other grounds alleged in the complaint have been removed from the case, and that the sole issue on the evidence is whether it supports the finding that the will was not executed in conformity with the requirements of law.

The instrument purports to have been executed on December 14, 1949, and to have been attested on the same date. The testamentary and attestation clauses, with signatures appended, read as follows:

"In Witness Whereof, I have hereunto set my hand and seal to this my Last Will and Testament, consisting of two typewritten pages, this page included, this 14th day of December, A.D. 1949, at Chicago, Cook County, Illinois.

Seal Raymond A. Conway Raymond Alfred Conway

The foregoing instrument was at the date thereof subscribed by the Testator, Raymond Alfred Conway, in our presence and was at the same time declared by him to be his Last Will and Testament, and we at the same time, in his presence, at his request and in the presence of each other have hereunto subscribed our names, as attesting witnesses and we do hereby certify that at the time of the execution of said Will, the said Raymond Alfred Conway was of sound and disposing mind, memory and understanding.

Witness W.M. Logue Address 11046 Hale Ave., Chicago 43, Ill. Witness Mrs. W.M. Logue Address 11046 Hale Ave., Chicago 43, Ill."

The attesting witnesses, Mr. and Mrs. William M. Logue, reside in Omaha, Nebraska; and in the probate court proceedings gave their testimony by deposition. Except as to the date on which the will was executed and witnessed — which they testified was December 13 instead of December 14 — their answers to the interrogatories propounded by the commissioner show the instrument to have been executed by the testator and attested by them in accordance with the essentials recited in the attestation clause. In the present suit the attesting witnesses gave evidence by way of deposition on behalf of the plaintiffs. From their testimony it appears that the will was witnessed in a suburban railroad station, where the witnesses were employed. Mr. Logue was the ticket and freight agent, and his wife assisted him in his work. They were acquainted with the testator, having known him for about eight years.

Mr. Logue identified his own signature and testified that on December 13, 1949, he was sitting in his depot office when the testator came in and seated himself at the side of the desk. He pulled the paper in question out of his pocket, held it on the desk and requested Mr. Logue to witness his signature thereon. The instrument was folded about three times, so that the witness could not see any part of it except the space on which four blank lines appeared for the names and addresses of witnesses. Neither the testator's signature nor any other writing was visible, and the testator held the paper in his hand on the desk while the witness affixed his signature. In addition, Mr. Logue affixed below his signature the railroad ticket stamp bearing the date December 13, 1949. He testified further that after he signed the paper the testator put it back into his pocket, and that no person was present other than the testator and himself.

After identifying her signature Mrs. Logue testified that on December 14, 1949, the testator came up to the ticket window where she was working and said he would like to have her witness his signature on a document. He came inside the ticket office, stood beside her and placed the document, which was rolled up, on the counter beside the wicket. She then affixed her signature as a witness, in compliance with the testator's request. After the testator's death the instrument was found in his safety deposit box.

Section 43 of the Probate Act (Ill. Rev. Stat. 1957, chap. 3, par. 194) requires that "Every will by which any real or personal estate is devised or bequeathed shall be reduced to writing, shall be signed by the testator or by some person in his presence and by his direction, and shall be attested in the presence of the testator by two or more credible witnesses." In the case at bar the purported will is in proper form and contains an attestation clause reciting that it was subscribed by the testator in the presence of the witnesses and thereupon declared by him to be his last will and testament; and that at the same time, in his presence, at his request, and in the presence of each other, the witnesses subscribed their names as attesting witnesses. The signatures of the testator and the attesting witnesses are admittedly genuine, but it appears from the testimony of Mr. and Mrs. Logue that they did not see him sign. Appellees contend the decree is justified because the will was not properly acknowledged. In support of this contention it is argued that the will is dated December 14, 1949, whereas the evidence shows Mr. Logue signed as witness on December 13; and that since a will is presumed to be executed on the day of its date it must be concluded the testator had not executed it at the time Mr. Logue signed as witness. The law is clear that where a will has apparently been executed in due form, and the signatures of the testator and the attesting witnesses are admitted to be genuine, no presumption will be indulged to destroy the validity of the instrument but every reasonable presumption will be indulged in favor of its due execution and attestation. (Thompson v. Karme, 268 Ill. 168.) In this case the attesting witnesses stated that they did not see the signature of the testator thereon at the times they signed their names to the instrument. There is no direct proof, however, that the testator's signature was not upon the instrument at such times. The witnesses testified merely that it was rolled up or folded so that they did not see the first page. It is not denied that the signatures on the present instrument are genuine; that the testator sought out Mr. and Mrs. Logue and asked them to act as witnesses; that the attestation clause assumes the document had already been signed; and that the instrument was found in the testator's safety deposit box, where valuable private papers are customarily kept. Under such facts and circumstances, and where it appears that the subscribing witnesses signed the attestation clause in the testator's presence, a prima facie case is made in favor of the due execution of the will, and this prima facie case is not necessarily overcome by the testimony of subscribing witnesses that they failed to notice whether the will was signed or that some of the requisites of due execution were omitted. Gould v. Chicago Theological Seminary, 189 Ill. 282.

The probate of a will cannot be made to depend upon the recollection or veracity of subscribing witnesses, for if it were necessary for them to remember and testify to the fact that all the prescribed formalities were in fact complied with very few wills could be upheld. The law wisely requires such instruments to be executed and attested with precautions which will usually guard against fraud, and if the attestation clause shows on its face that all the forms required by law have been met, and the signatures on the instrument are admittedly genuine, the presumption of due execution must prevail unless clear and affirmative proof shows the contrary. If it is merely doubtful from the evidence whether the requirements have been complied with, the presumption arising from the attestation clause is not overcome.

In Valentine v. Second Baptist Church, 293 Ill. 71, the two subscribing witnesses positively testified that the testatrix's name was not signed to the will when they witnessed it for her. It was nevertheless held that in the light of the testatrix's acknowledgment of the instrument as her will in the presence of the witnesses, together with other evidence of execution prior to the appearance of the witnesses, the most reasonable conclusion was that the will was signed when witnessed. In Thompson v. Karme, 268 Ill. 168, it appeared from the testimony of the subscribing witnesses that they signed on the day preceding the one recited in the testamentary and attestation clauses; and it was contended, as here, that the instrument was therefore not executed at the time it was attested by the witnesses. In rejecting the contention this court said it does not necessarily follow from the appearance of a particular date in such clauses that the testator executed the will on that date and not on the day before; and under the facts of the case it was fair to presume that the date thus recited in the testamentary clause was an erroneous one. In the case at bar we think that ...


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