APPEAL from the Circuit Court of Sangamon County; the Hon.
SAMUEL O. SMITH, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1960.
Plaintiffs appeal directly to this court from a decree of the circuit court of Sangamon County dismissing for want of equity a suit to set aside a marriage, a will, and several deeds, on the alleged grounds of lack of mental capacity, undue influence, influence of stupefying drugs, and other reasons. A freehold being directly in issue, this appeal is properly brought direct to this court.
Proceedings on count II of the complaint to set aside the marriage and the deeds were heard by the master in chancery, who made a report finding in favor of the defendant Vosburgh, and recommending dismissal of the suit for want of equity. This phase of the case was heard by the chancellor on exceptions to the master's report.
By stipulation of the parties, proceedings were had on count I of the complaint to set aside the will by submitting to the chancellor for decision those parts of the evidence taken by the master which would be competent in the face of objection.
Myrtle Vosburgh, hereinafter referred to as Myrtle, married the defendant Ira Vosburgh on September 20, 1956. One of the deeds in question was executed by Myrtle to Ira Vosburgh in fee simple on August 23, 1956. The other deeds in question were executed on September 21, 1956, and October 5, 1956, placing certain property owned by Myrtle prior to her marriage, in the names of Myrtle and Ira Vosburgh, husband and wife, as joint tenants. On October 5, 1956, the will in question was executed by Myrtle leaving everything to her husband, Ira Vosburgh. Myrtle died on January 10, 1957, at the age of 72 years, with an estate valued in excess of $100,000, consisting of both real and personal property, and leaving her surviving no child or children, or descendants of deceased children, but leaving the plaintiffs and the defendant Hill, who were her brothers and sisters or lineal descendants of deceased brothers or sisters, and the defendant Ira Vosburgh, alleged surviving spouse, as her sole and only heirs-at-law. At the time of Myrtle's death the defendant Ira Vosburgh was 42 years of age.
Plaintiff's principal contention on this appeal is that Myrtle did not have mental capacity to enter into a valid marriage contract and to execute a valid deed or will, that there was a breach of fiduciary relationship and undue influence of the part of the defendant Ira Vosburgh, and that the decree of the circuit court is against the manifest weight of the evidence.
To resolve the issues in this case, it is necessary to state the facts as reflected in the testimony and evidence. Many of the facts are undisputed and will be stated substantially in chronological order, after which the testimony of the various witnesses as to mental capacity will be considered.
Myrtle, during the lifetime of her previous husband. Fred Wienold, and subsequent to his death in 1947, had acquired a substantial amount of real estate in Springfield, Illinois, an undivided interest in a farm near Flora, Illinois, and certain personal property. One of the properties was a grocery store in Springfield, next door to a barber shop where Ira Vosburgh was employed. During the lifetime of Myrtle's former husband, the defendant Vosburgh, a bachelor, became acquainted with Mr. and Mrs. Wienold. They became good friends and this friendship with Myrtle continued after the death of Wienold.
In May of 1948 Myrtle developed cancer of the rectum and a colostomy was performed at that time. In May of 1954 she developed some bladder trouble and ulceration in her scar but nothing further until June of 1955 when the doctor noticed some shadows in her chest. In November of 1955 she developed difficulties in her chest and in February of 1956 Dr. Stocker diagnosed her difficulty as cancer of the carina, which is at the point of the trachea where it divides into the bronchi of the two lungs, which cancer was inoperable. A frank discussion was had with the patient and she was informed of her general condition. Starting in November of 1955 she had begun taking codeine thorazine for the pain in her buttocks, and by June of 1956 the pain was severe enough to require hypodermic injections of demerol, a synthetic narcotic.
In July, 1956, Myrtle was desirous of going home from the hospital, and Dr. Graham, her attending physician, was willing for her to do so provided arrangements could be made for someone to give her the necessary injections. Defendant Vosburgh had had experience in giving his mother shots for diabetes during her lifetime. Arrangements were made whereby Myrtle would go home and Vosburgh would look after her and give her shots as required. Thereafter Vosburgh took care of administering her shots and, commencing late in August, he began taking care of her by taking care of the cooking and cleaning and assisting her to care for her property.
Some time during the year, 1954, Myrtle herself broached the subject of marriage to Vosburgh but nothing definite was decided at that time. They continued to go around together and from time to time visited both his relatives and friends and her relatives and friends.
Commencing about a year prior to her marriage to Vosburgh Myrtle began using Charles C. McBrian, an attorney and a justice of the peace, as her lawyer. During the year preceding the marriage she was in his office at least a half dozen times. He made out landlord's notices, handled the sale of some farm land and drew at least three wills for her before any of the transactions which are the subject matter of this lawsuit occurred. He also drew and witnessed the will in question, drafted a power of attorney, drafted, took the acknowledgment and recorded all of the deeds in question, and performed the marriage ceremony between the parties.
Prior to August 23, 1956, Myrtle informed McBrian of her intention of making a gift of some property on Cook Street to Ira Vosburgh and requested him to draw the deed, giving him the necessary information as to description, etc. He prepared this deed, which was executed by her on August 23, 1956, before McBrian as notary, and he took care of the recording of the instrument. About the same time Myrtle requested McBrian to draft a general power of attorney authorizing Ira Vosburgh to handle business matters for her. This power of attorney was prepared by McBrian and was executed on August 27, 1956, at Mrytle's home and acknowledged before McBrian's private secretary.
Three or four weeks before the marriage, Myrtle came to McBrian's office and, in private, discussed the proposed marriage with him stating that she realized the discrepancy in their ages but that she was ill and was afraid that she would become helpless and that her relatives would put her in a home but that she knew that Ira Vosburgh would take care of her. She also discussed the marriage with him by telephone. When the date of the marriage was set, Myrtle called McBrian and made the arrangements and also arranged for Vosburgh to pick him up and bring him to her home for the ceremony which was performed about 3:00 P.M. in the presence of Henry Offer and his wife. Following the marriage ceremony refreshments of cake and coffee were served in the kitchen.
Prior to September 21, 1956, Myrtle had McBrian prepare certain deeds to other real estate owned by her, so as to place the title in herself and Ira Vosburgh as husband and wife and as joint tenants. The necessary information for the deeds was given to McBrian by Myrtle herself and he prepared the necessary deeds to convey the property to his secretary and then back to Myrtle and Ira Vosburgh, husband and wife, as joint tenants, which deeds were executed by both Myrtle and Ira at their home on September 21, 1956, before McBrian as notary, who took care of the recording of the same.
Prior to October 5, 1956, Myrtle again requested McBrian to prepare additional deeds conveying the balance of her real estate, except her interest in the Flora farm, to herself and Ira as joint tenants, herself furnishing the necessary information to McBrian. He prepared these deeds in like manner as the prior deeds and they were ...