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Malone v. Malone

JUNE 7, 1960.




Appeal from the Circuit Court of Cook county; the Hon. JOHN T. REARDON, Judge, presiding. Affirmed.


Rehearing denied June 27, 1960.

Plaintiff, Wilfred J. Malone, contests the validity of the will of his deceased father, William H. Malone. The sole defendant was the widow, Hilda Malone, now deceased. The issues were lack of testamentary capacity of William Malone and undue influence by the widow. At the close of plaintiff's evidence, the court directed a verdict for defendant on both issues and dismissed the complaint for want of equity. Plaintiff appeals.

William H. Malone resided for many years in Park Ridge, Illinois. He was active in civic and political affairs. He was a member and chairman of the Illinois State Tax Commission for years and an unsuccessful candidate for governor of Illinois in 1932. He participated in the formation of the Citizens State Bank of Park Ridge, opened in 1929, was its president until 1933 and a director and chairman of the board of directors from January, 1949, to January, 1955. During this period he presided at directors' meetings, participated in determining bank policies, and was consulted on bank loans and investments. He decided who was to be hired or fired. In November, 1947, he settled income tax deficiencies and penalties, which had been litigated in the Tax Court of the United States in 1945 and 1946.

William H. Malone died August 14, 1956. His heirs were Hilda Malone, his wife of many years, and plaintiff, his son by a former marriage. The will was executed August 10, 1950, when he was about 73 years of age. The entire estate was left to Hilda Malone and, in the event of her predecease, to his three grandchildren, Peter G. Malone, William H. Malone II and Ethelee Carlson, children of plaintiff. The will was admitted to probate on October 23, 1956, and Hilda Malone qualified as executrix.

Hilda Malone died on July 7, 1959, during the pendency of this appeal. Peter G. Malone and William H. Malone II, as administrators de bonis non with the will annexed, of the estate of William H. Malone, and as executors of the estate of Hilda Malone, were substituted as defendant appellees.

The question presented in this appeal is whether plaintiff adduced any evidence fairly tending to prove either lack of testamentary capacity or undue influence.

On the issue of lack of testamentary capacity, plaintiff's first witness was Oscar Harman, a lawyer, who testified at length. He had known Malone since 1927 and had represented him in a number of matters, including the income tax litigation. In 1948, 1949 and 1950, Malone made social calls at Harman's law office in Chicago two or three times a month, and repeatedly talked about ex-Governor Lowden's spending a lifetime persecuting him "to get even," because Malone "beat" him out of the presidency. Malone said that "Governor Lowden had planted his friends and stooges in the Bureau of Internal Revenue, and had instructed them to frame a tax case against him." On several occasions in 1949 and 1950, he accompanied Malone to the office of the state auditor on bank problems.

In August or September, 1950, Harman and a client saw Malone in his office at the Park Ridge bank and sought his opinion as to the value of a parcel of real estate in that vicinity, because Malone "had been in the oldest days about the smartest real estate operator on the northwest side. . . . He knew about land in the locality of this particular land." Malone persisted in discussing the Lowden persecution and, after about an hour, Malone finally said that "to give a value of real estate required some concentration and study and he couldn't do it any more." Malone was "not alert and informed in the sense that he knew what was going on as far as the events of the day were concerned."

Harman had known plaintiff since 1928. In 1949 and 1950, William Malone discussed Wilfred with Harman on occasions. In 1949 he assisted in getting a marriage license for Wilfred's daughter, and William Malone thanked him. At that time Malone stated that he was very disturbed because he didn't know how to take sides between his son and his wife; that his son had been abandoned for about twenty years, and he hadn't known him as well as he should and he felt ashamed of that. Malone stated "he was disturbed and very sick about it. He just didn't know what to do."

Based upon his conversation with Malone in August or September, 1950, and his conversations immediately preceding that date, he was permitted, over objection, to give his opinion that Malone was "not of sound disposing mind and memory at that time."

The court refused to allow Harman to testify to daily conversations with Malone during a 1945 income tax trial, in which Malone wanted to prove that Lowden was responsible for the income tax prosecution by the federal government. The court also refused to admit the opinion of the tax court, which characterized Malone's story as "fantastic," and refused to permit Harman to testify that this decision was a blow to Malone's ego, which contributed to his unsoundness of mind in 1950. The court also refused to permit the witness to give testimony as to a 1933-1936 trip of William and Hilda Malone to Europe, a 1933 income tax evasion indictment, the trial and the Malone prison term, and to give an opinion that the trial, conviction, affirmance and prison sentence constituted a blow to his mentality that contributed to the condition, which the witness described, in August or September, 1950.

Dan Int-Hout, a Park Ridge business man, who had known Malone since 1921, was the next witness for plaintiff. He saw Malone on the street two or three times a week in the late 1940's and early 1950's. The subject of the conversations was Malone's experiences with the state tax equalization board, his difficulties with the administration and some of the powers in the Republican party, and that he had been ill-treated and persecuted because of certain things that happened in his life. In response to a request for his opinion, based upon these conversations, as to whether Malone was of sound mind, he replied, "My opinion was that he was living under an obsession."

The third testamentary capacity witness was George A. Palmquist, who was cashier, vice president and executive vice president of the Citizens State Bank of Park Ridge from its formation in 1929 until 1955. He saw and talked with Malone very frequently and at least twice a week from 1939 to and including 1950. During that period Malone had been in various hospitals. Malone discussed Wilfred with him on many occasions and didn't speak too complimentary about him. From time to time Malone would say "that Wilfred just hadn't made the grade," and never did change his attitude toward Wilfred. When asked as to his opinion as to ...

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