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In Re Estate of Russell

NOVEMBER 23, 1970.

IN RE ESTATE OF ADA I. RUSSELL, DECEASED — (ALMA L. BROWN, PETITIONER-APPELLANT,

v.

CARLETON RUSSELL, ADM., DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Jefferson County, the Hon. ALVIN LACY WILLIAMS, Judge, presiding.

MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Petitioner appeals from an order entered by the Circuit Court of Jefferson County, Illinois, denying probate of an instrument purporting to be the last will and testament of Ada I. Russell, deceased.

On January 22, 1969 Alma L. Brown filed a petition to probate the last will and testament of Ada I. Russell which was attested by three witnesses, Paul M. Fitch, Martin F. Dorothy, and Charles L. Cook.

At the hearing on the petition to probate the will Fitch identified a document as the last will and testament of Ada I. Russell and testified that he and the other two witnesses signed the will in the presence of the testator, in the presence of each other, at her request, and that she signed the will in their presence and acknowledged it to be her will. When asked if he had formed an opinion as to her ability to make a last will and testament, he answered:

"A. I don't recall the circumstances. Nine years ago. As far as I recall — Let me ask a question. Didn't she own property that the high school bought from her?

Q. I can't tell you, quite frankly, whether she did or not.

A. I am trying to refresh my memory as to how she appeared at the time. If she was the same lady, I would say she was of sound mind at that time."

On cross-examination it was elicited that if she was not the lady who owned the property mentioned, he did not remember what her mental condition was. Other evidence in the record indicated that she did not own the property that was supposed to have been sold to the high school.

Charles L. Cook testified that he and two other witnesses signed the will in the presence of the testator and at her request, and that she signed the will in their presence and acknowledged it to be her will. He further stated that in his opinion she was of good mentality and able to transact her own business. On cross-examination he stated that her husband was dead and further that he was basing all his testimony as to her mentality on the fact that it was the Mrs. Russell who he knew who lived as a neighbor to him in Mount Vernon. The record discloses that he was mistaken in believing that her husband was dead and that she did not live as a neighbor to him at the time he thought she did.

The other witness to the will, Martin F. Dorothy, was deceased at the time of the hearing and the authenticity of his signature was testified to by his former law partner.

• 1 Section 74 of the Probate Act (Ill. Rev. Stat. 1955, ch. 3, par. 74) provides:

"When a witness to a will is dead the court may admit proof of the handwriting of the witness and such other secondary evidence as is admissible in any court of record to establish written contracts and may admit the will to probate as though it has been proved by the testimony of the witness."

In case of the death of a witness proof of his handwriting is admissible with the same effect as if he had appeared and testified in his own person. More v. More, 211 Ill. 268; O'Brien v. Bonfield, 213 Ill. 428.

Appellant contends that the trial court erred in denying the petition to probate the will because the language of the statute did not intend to create a condition which would permit the denial to probate of a will which was fully, completely and formally executed by a testator, because of the faulty memory of an attesting witness called upon to testify many years after the execution of the will, and that since the attestation clause in the present will was in due form and signed by all of the witnesses, a prima facie case of the due execution of the will was made which could not ...


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