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Both v. Nelson

JANUARY 6, 1964.




Appeal from the Superior Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Affirmed.


This is a will contest. Sophia Both, the decedent, 78 years old, executed the purported will on October 16, 1957. Plaintiffs sue as legatees under a prior will, dated May 3, 1952. The issues were lack of testamentary capacity and undue influence by defendant, the sole beneficiary. Defendant appeals from a verdict and decree which found that the instrument offered in evidence was not the last will and testament of the decedent.

The testatrix died July 21, 1959, leaving collaterals as her heirs at law. She had been married to William Both, and they executed separate wills on May 3, 1952. The instant will was executed five years later, during the last illness of her husband, who died October 31, 1957. The sole beneficiary, defendant Frank Emery Nelson, was the husband of a deceased niece of Sophia.

Defendant contends that plaintiffs fail completely to establish a prima facie case on either issue and, therefore, the trial court erroneously denied his motion for a directed verdict at the end of plaintiffs' case. It is further contended that the trial court erred in the admission and exclusion of testimony and in the giving of instructions to the jury.

We believe the principal determinative question is whether plaintiffs adduced any evidence fairly tending to prove either lack of testamentary capacity or undue influence. In order to affirm, absent prejudicial trial errors, we need only to find a prima facie case as to either of the two issues. A reviewing court will not consider questions or contentions which are not essential to the determination or final disposition of the cause before it, or questions of which decisions will serve no beneficial purpose to the litigants. ILP, Appeal and Error § 631.

The principles to be applied here were considered by this court in Malone v. Malone, 26 Ill. App.2d 291, 167 N.E.2d 703 (1960). A motion for directed verdict in a will contest is governed by the same rules which govern such motions in actions at law. The contestants are entitled to the benefit of all the evidence considered in its aspects most favorable to them, together with all reasonable inferences to be drawn therefrom, and the only question on review is whether there is any evidence tending to prove the allegations in the complaint. If no evidence is introduced tending to prove the allegations of the complaint, or if but a bare scintilla of evidence has been adduced, the court should grant a motion for a directed verdict. Peters v. Catt, 15 Ill.2d 255, 260, 154 N.E.2d 280 (1958); Quellmalz v. First Nat. Bank of Belleville, 16 Ill.2d 546, 158 N.E.2d 591 (1959).

The testamentary capacity required of a testator is sufficient mental ability to know and remember who are the natural objects of his bounty, to comprehend the kind and character of his property, and to make disposition of that property according to some plan formed in his mind. Eccentricity does not constitute unsoundness of mind. Neither old age, peculiarities, feebleness, nor miserly habits, of themselves, show a lack of testamentary capacity. (Quellmalz v. First Nat. Bank of Belleville, 16 Ill.2d 546, 553, 554, 158 N.E.2d 591.) It has been repeatedly held that one who is capable of transacting ordinary business affairs is capable of making a valid will. Quathamer v. Schoon, 370 Ill. 606, 611, 19 N.E.2d 750 (1939); Sterling v. Dubin, 6 Ill.2d 64, 74, 126 N.E.2d 718 (1955).

On the issue of lack of testamentary capacity, plaintiffs introduced three witnesses. The first witness was an interne at the hospital to which the testatrix was taken four days after the execution of the will. Without independent recollection, he testified from a hospital record made by him on October 21, 1957, that she was 78 years of age, deaf, senile and dysarthric, which means disturbance of speech. She was suffering from a cerebral vascular accident — a small stroke, which sometimes causes pain. On cross-examination, the interne stated that it was probable that he received the case history from the patient herself — she was suffering primarily from a cerebral accident — cerebral accidents are very common, some come slowly, some come suddenly — it was his impression that it was a "residue [of a cerebral accident] of the past" — her malnutrition was a quality malnutrition which had been with her a long time.

The second witness was a physician and surgeon in general practice from 1923 to 1961. The decedent and her husband had been his patients for about seven or eight years. "Until 1953 they came to the office. But later they couldn't. I made it a rule every four to six weeks, I just came in and looked them up." In the early part of 1957, he treated her for her heart. It gradually got worse after he returned from a vacation in April or May, 1957. In response to a question "as to her mental condition and understanding things," he answered, "There was a time even before I went on a vacation her mental condition was a very poor one. It grew gradually worse. . . . I remember whenever I came I had to tell it to John [a brother-in-law], because I was sure she wouldn't remember anything about my instructions. Everything I wanted to be done, I had to speak specially to John, because William was still worse than her mentally. John was the only one who could remember. . . . I couldn't pinpoint when it started, but I think from the time I was on my vacation there was no question most likely she was not too good. I noticed she was forgetting, and at times she simply didn't remember anything."

He saw her at the hospital every day and treated her for the heart. His secondary diagnosis was generalized "arteriosclerosis, including everything, . . . the arteries of the brain are sclerotic, and if the brain doesn't lose that, it degenerates, and there was a gradual process that I had observed on her for years. Then of course the time comes when the damage is that much, with all the symptoms. She couldn't remember anything. . . . The brain gets soft and liquefies. If it is liquefied, it dies. Then all the symptoms are degeneration, a general process." In his opinion, the "condition that you found in this lady on the dates that she was in the hospital" was a permanent condition. In response to a question as to "her mental condition at the time that she was in the hospital," he replied, "she was senile . . . I couldn't give her any instructions." In his opinion, she did not have the mental capacity to make a will.

Cross-examination on arteriosclerosis and its effects showed that a large percentage of men and women of the age of the decedent were suffering from the condition, and that it varied from individual to individual. At the time she entered the hospital, she was suffering from congestive heart failure and not from a stroke. He denied saying "she is a very sick lady. Her physical condition is not good, but I think her mind is clear." "I never would have said that, because I stand on my record." As to the "varying" degree arteriosclerosis affects the mind, he stated, "But in this particular case, whenever I visited her, there was no lucid interval. I never could get in real touch with her." When questioned as to testifying "from your own memory," he stated he could testify without the chart. He could not recall whether he saw decedent on October 16, 1957. Her condition was improved as a result of her hospital stay, but he did not see or treat her after she left the hospital.

Plaintiffs' third witness was an attorney, Edwin D. Lawlor, who had represented William and Sophia Both for some years. He represented them in the negotiations for the sale of their farm land in 1957. The sales price of the farm was $90,000 and it was placed in a joint account. In September 1957, he visited them at their home "to consult with them about the revision of their estimate of their income tax." On October 14, 1957, he received a telephone call from defendant Nelson, who informed him that William Both was in the hospital and Sophia Both was at home "absolutely unable to take care of her affairs. . . . I am looking after their affairs. They requested me to do it." Defendant informed the witness that money was needed for hospital expenses, and "she can't do anything." The appointment of a conservator was discussed, and the witness said he would commence conservator proceedings for both William and Sophia.

On October 18, 1957, defendant Nelson called again to inquire what was being done, and the witness then prepared petitions to have both of them declared mentally incompetent, which were filed in the Probate Court on October 23.

In evidence is a letter from defendant Nelson, in Florida, to Lawlor, dated November 1, 1957, as follows: "Received a message that William Both is dead. Will be unable to attend the funeral. Greatly appreciate your cooperation in helping to manage the Both affairs. Would further appreciate advice from you as to what the situation is now. Has a conservator been officially ...

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