Appeal from the Probate Court of Winnebago County; the Hon.
SEELY P. FORBES, Judge, presiding. Reversed and remanded with
This is an appeal from an order of The Probate Court of Winnebago County admitting to probate an instrument purporting to be the last will and testament of Cora V. Gray, and appointing The First National Bank and Trust Company of Rockford as executor. In the same order, the court denied a petition for letters of administration supported by an instrument entitled "Revocation of Prior Will or Wills," claimed to have been executed by Cora V. Gray. Certain of the heirs of the decedent appealed from the order admitting the instrument to probate and only the executor appears here in this court in support of the order. Other legatees and devisees, both individuals and charitable institutions, while interested in the outcome of the appeal, have not participated in this appeal.
The evidence shows without contradiction that on January 10, 1961, Cora V. Gray executed a will which was properly attested, and thereby made numerous gifts to relatives and charities. Thereafter, on May 1, 1961, Cora V. Gray executed an instrument of revocation by signing her mark in the presence of two witnesses. Both instruments were introduced in evidence and witnesses testified as to the circumstances surrounding their execution.
After the hearing, the court entered the following order: "From said testimony and evidence, it appears said instrument dated May 1, 1961, was not duly executed and attested according to law nor was Cora V. Gray of sound mind and memory and otherwise competent to make her will at the time of the time of execution of said written instrument dated May 1, 1961, nor was the purported execution of said instrument by Cora V. Gray free from fraud, compulsion or other improper conduct but on the contrary there was proof of fraud, compulsion and other improper conduct arising from all the circumstances attending the execution of said instrument, sufficient to invalidate or destroy the legal effect of said purported `Revocation of Prior Will or Wills.'"
It is conceded that the will admitted to probate was properly executed. Pursuant to Section 46, of the Probate Act (Ill Rev Stats c 3, § 46, 1959) a will may be revoked "by the execution of an instrument in writing declaring the revocation and signed and attested in the manner prescribed by this article for the signing and attestation of a will." The instrument of revocation was so signed and attested. Thus the only question for us to determine is whether the order of the Probate Court is contrary to the manifest weight of the evidence.
In support of the petition for letters of administration, the attesting witnesses to the instrument of revocation testified. These witnesses both testified that they were nurses in attendance upon Cora V. Gray and that when they saw the decedent affix her mark, they were of the opinion that she was of sound mind and memory. Both nurses also stated that no fraud, forgery, compulsion or wrongful conduct was practiced upon the decedent. Cecelia Nolan, one of the nurses, testified that the deceased nodded and smiled when asked if she knew what she was signing and this witness stated that the deceased knew what she was doing. She also stated that the decedent expressed her own mind and was sweet and cooperative.
Shirley Saga, the head nurse on the floor where Cora V. Gray was hospitalized, testified that she witnessed the signing of the revocation instrument by Mrs. Gray and that Mrs. Gray signed the instrument of her own free will. It was the opinion of nurse Saga that Mrs. Gray understood anyone who spoke to her and that Mr. Neiber read the revocation instrument to Mrs. Gray. Nurse Saga stated that Mrs. Gray was of sound mind and signed the instrument of her own free will.
Servanus Neiber testified that his mother-in-law, Leola Long, was a sister of Mrs. Gray. It was Mrs. Long who petitioned for letters of administration. Mrs. Gray had lived with Mr. Neiber and his family including Mrs. Long. She lived with them from mid February to March 4, 1961 when she was hospitalized at Swedish American Hospital. After March 4, her health improved and it was said that she was happy and she expressed an interest in business matters. She was concerned about the care of her real estate, the payment of real property taxes on tax day, the amount of her bank balance and seemed to derive satisfaction from delivering checks to her nurses for their services. Neiber stated that in April of 1961, Mrs. Gray told him that she had made a will and she was unhappy about this. Thereafter Neiber went to Mr. Brown, Mrs. Gray's attorney, and made arrangements for him to call on Mrs. Gray at the hospital. After Brown's visit, Mrs. Gray again asked Neiber what to do about the will and stated, "I don't want a will." She is said to have stated that she did not want a will because her husband had not had a will. Neiber then went to his own attorney to see what could be done for Mrs. Gray. Neiber stated that his attorney suggested a letter of revocation and that he reported this to Mrs. Gray. Later, the instrument to revoke the will was prepared and read to Mrs. Gray. The next day the instrument was signed. After the revocation instrument was signed, Neiber stated that Mrs. Gray smiled and said, "That's nice" and she seemed to be relieved.
Neiber was named as conservator for Mrs. Gray in April of 1961, at the suggestion of Mr. Brown, Mrs. Gray's attorney. Mr. Brown secured the appointment of the conservator for physical reasons.
Neiber stated that he knew of the provisions of Mrs. Gray's will. He stated that his wife would lose by Mrs. Gray's revocation and that his mother-in-law would benefit from the revocation but that it would make no difference to him. He also stated that attorney Brown refused to give him Mrs. Gray's will although she had requested that he get it for her.
Mr. Brown testified on behalf of the will and stated that he talked to Mrs. Gray on February 14 and March 22 and that on these occasions she gave true and correct answers. He also stated that he asked her if she wanted to change her will and she said "no." Brown stated that her mental processes were different in March than they had been in February, and stated that on March 22 she was not alert and seemed to have pain in the neck and chest. He stated that he did not have enough conversation on March 22 to form an opinion as to whether or not she was of sound mind.
F.E. Sauer, Mrs. Gray's doctor and a witness to the will, testified that Mrs. Gray's health was good in January and February except that she was grieved over the death of her husband. He stated that except for a period of one week he felt that she was always mentally competent. The doctor testified that Mrs. Gray was discharged from the hospital September 11, 1961. He attributed her condition to the loss of her husband and stated that there was nothing organically wrong.
The foregoing is essentially all of the testimony which can be said to relate in any way to the revocation instrument.
To sustain the order of the court, the appellee contends that Mrs. Gray was not competent at the time of the attempted revocation and that Neiber was guilty of fraud, compulsion or wrongful conduct in procuring the execution of the revocation.
We shall discuss each contention in the order raised. The appellees must necessarily admit that Mrs. Gray was competent on January 10, 1961 or the will offered and admitted must fail. Thus we need only consider evidence ...