APPEAL from the Circuit Court of Macoupin County; the Hon.
CREEL DOUGLASS, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 16, 1960.
This is an action to set aside a document dated January 10, 1950, which had been admitted to probate as the last will and testament of Charles Avery Hilliard. The plaintiff is Marian Heideman, the only child and sole heir of the testator, who was bequeathed one-sixth of the testator's personal estate under the will. The defendants are Willard V. Kelsey, the executor, and Frank Wyman Hilliard, Leah Hilliard and Gladys H. Gates, the surviving brother and sisters of the testator, who are also beneficiaries under his will. The jury found that the contested document was not the testator's will and the trial court entered a decree on the verdict. The defendants have appealed directly to this court. The testator owned a farm which he devised to his brother, and a freehold is involved.
On two previous occasions, decrees for the plaintiff in this case have been reversed and the cause has been remanded for a new trial. (Heideman v. Kelsey, 414 Ill. 453; 7 Ill.2d 601.) Originally the plaintiff charged undue influence and lack of testamentary capacity. At the first trial, a verdict was directed for the defendants on the issue of undue influence, and only the issue of testamentary capacity was submitted to the jury, which found for the plaintiff.
On appeal from the decree entered on that verdict, we held that the testimony of Dr. Clark, one of the witnesses for the plaintiff, warranted a submission of the cause to the jury but that the trial court erred in denying the defendants' motion for a new trial. 414 Ill. 453.) After a detailed review of the evidence presented on both sides, we concluded, "It is our opinion that the proof in this case demonstrates that Hilliard was a person with adequate testamentary capacity on January 10, 1950, and the jury's verdict finding to the contrary is against the manifest weight of the evidence." 414 Ill. at 466.
At the second trial the jury was unable to agree. At the third trial the jury again found for the plaintiff. On appeal we again reversed and remanded for a new trial. (7 Ill.2d 601.) The basis of this reversal was the admission of testimony of a handwriting expert to the effect that the testator's signature on the contested document had not been executed on January 10, 1950. We held that this testimony raised an irrelevant and highly prejudicial issue not encompassed by the pleadings, which had presented only the issue of testamentary capacity. Although we found it unnecessary to set forth all the evidence presented at the third trial in view of this error, we noted that both sides relied on the same testimony used in the first trial and also produced six additional witnesses apiece, and we observed that the "contestant's position is not greatly improved by their added proof." 7 Ill.2d 601, 604.
Thereafter the plaintiff was given leave to file an amended complaint which included a new count alleging that the contested document was not executed on January 10, 1950, but instead was signed by the testator after April 1, 1950, at which time the testator was insane and without testamentary capacity. The defendants' answer denied the allegations concerning the date of execution of the will, but admitted that "sometime after March 1, 1950, and before some time in April, 1950, the mental power, capacity and ability of said deceased became impaired as alleged."
At the trial now before us the issue raised by the new count and the issue of testamentary capacity were submitted to the jury which returned a general verdict for the plaintiff. In addition, in response to three special interrogatories, the jury found that Charles Avery Hilliard was not possessed of sufficient mental capacity to transact ordinary business on January 10, 1950, and that the document offered as his last will and testament was not executed by him on that date, but instead was signed by Hilliard after April 16, 1950, at a time when it was conceded he was without testamentary capacity.
The testimony of most of the plaintiff's witnesses who testified at the first trial on the issue of testamentary capacity was put before the jury at the present trial, either from the witness stand or by stipulation that their testimony might be read to the jury. Their earlier testimony is summarized in 414 Ill. at 456-459. The plaintiff also offered the testimony of five new witnesses on this issue. Several of them added nothing of substance to the plaintiff's case.
Dr. Joseph Ernst examined the testator on October 11, 1949, when he was admitted to Deaconess Hospital for treatment of persistent constipation. He had no present recollection of the occurrence, but from the record that he then made he testified on direct examination that the testator was vague as to his past medical history. On cross-examination he testified that the testator was alert and appeared to be a sane man. Dr. Claude Pickrell's testimony at the second and third trials was read to the jury by stipulation. He admitted the testator to Deaconess Hospital in October, 1949, and had also spoken with him several times around January 31, 1950, about the advisability of a hernia operation. He was of the opinion, based on these conversations, that the testator was of sound mind and memory on January 31, 1950. Ben Maricle, the testator's barber, stated his opinion, based on his observation of the testator's declining activity and increasing reticence, that the testator was not "of as sound a mind" in 1949 as he was previously. Anne Albro, the plaintiff's only child, testified at length as to the relationship that existed between the testator, her mother and herself, which was one of normal affection. She also testified that she visited the testator in 1946 and that when she next returned from her home in Seattle and visited him in June of 1949 he was more feeble and aged, thin and more stooped, red-eyed and haggard. He did not recognize her 3 3/4-year-old son, whom he had not seen for three years. She "didn't think that he was of sound mind and memory that day."
More important is the testimony of Dr. Groves B. Smith, a physician and surgeon specializing in nervous and mental diseases. In response to a hypothetical question the doctor gave his opinion that the man described in the hypothetical question had advanced arteriosclerotic degeneration, both physical and mental, and was not of sound and disposing mind and memory on January 10, 1950. His testimony was in some measure based upon the behavior and medical condition of the hypothetical man, particularly his longstanding and advanced arteriosclerosis. His opinion was also influenced, however, by his conclusion that the man who signed his name in a cramped and jerky manner to the contested document of January 10, 1950, could not have been of sound mind.
This new testimony does not strengthen plaintiff's case upon the issue of testamentary capacity. It was Dr. Ernst's opinion that the testator was alert and was a sane man in October of 1949. Dr. Pickrell testified that the testator was of sound mind on January 31, 1950. The factual foundations upon which Maricle and Anne Albro based their contrary opinions were meager, and so their opinions were of little probative value. Indeed, Maricle's conclusion that in 1949 the testator was not "of as sound a mind as he was before" was of no value in determining the testator's capacity. Dr. Smith testified on cross-examination that he regarded himself as an advocate. His conclusions were based upon a hypothetical question that omitted many facts that had already been developed, as well as uncontroverted facts later developed by the defendants' evidence which tended to establish the testator's testamentary capacity during the period in which he signed the will. And his assertion that the testator's mental capacity could be determined by an examination of his signature on the contested document must be weighed against the subsequent testimony of Dr. Val Satterfield, a distinguished psychiatrist, that there is no relation, in medicine and psychiatry, between the handwriting of a person and his mental condition.
Dr. Clark was the witness whose testimony at the first trial was held to be sufficient, standing alone, to prevent a directed verdict for defendant. His testimony then is difficult to reconcile with his testimony at the present trial. At the first trial he testified that the testator suffered from brain disease caused by arteriosclerosis, or hardening of the arteries. At the present trial he testified that there had been a change in medical opinion during the intervening years; and although he testified that the testator "had a mental condition," he was unable to say that it was caused by arteriosclerosis. At the first trial he testified that the testator did not have senile dementia. (414 Ill. at 456.) At the present trial he testified that in 1948 the testator suffered from early senile dementia. On cross-examination he enumerated the "classical symptoms" of senile dementia, but he was not able to associate these classical symptoms with significant conduct of the testator.
For reasons that will be stated, it is not necessary to determine whether or not the testimony of Dr. Smith and Dr. Clark at the present trial was sufficient to establish a prima facie case for ...