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In Re Estate of Fordyce

JANUARY 14, 1971.

IN RE ESTATE OF MAE ARNOLD FORDYCE, DECEASED — (FLOYD ARNOLD ET AL., PETITIONERS-APPELLANTS,

v.

FLOYD F. CLARK, INDIVIDUALLY AND AS EXR. ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Livingston County; the Hon. WILTON ERLENBORN, Judge, presiding.

MR. JUSTICE CHAMBERLAIN DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a will contest which was heard by the trial court without a jury. The petitioners contended the testator lacked testamentary capacity to make a will. The trial court found in favor of the respondents and the petitioners bring this appeal.

There are essentially two issues raised on this appeal. They are (1) the trial court erred in permitting the attorney who drew the decedent's will to testify as to testamentary capacity of the decedent and (2) the decision of the trial court in finding in favor of the respondents is against the manifest weight of the evidence.

Parke Daugherty was an attorney who, at the request of Mae Arnold Fordyce, decedent, prepared her last will and testament. He also served as an attesting witness to the will and testified at the will-contest hearing that she possessed proper testamentary capacity. He represented the executor at the time of the probating of the will but did not represent the executor in the will contest.

The appellants contend Parke Daugherty was incompetent to testify, and hence reversible error was committed.

Petitioners cite the "Dead Man's Act," sec. 2, ch. 51, Ill. Rev. Stat. 1967, in support of their position.

Their position is that since the attorney stood to receive a fee as attorney for the executor for probating the estate, he was an interested person as described in the preceding section.

This argument was discussed in Stephens v. Hoffman (1914), 263 Ill. 197, 104 N.E. 1090, wherein the court stated (at 263 Ill. 202):

"* * * The disqualifying interest must be some legal, certain and immediate interest, either in the event of the cause or in the record as an instrument of evidence in support of his own claims in another action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent. If the interest is of a doubtful nature it goes to the credibility of the witness and not to his competency." Citations omitted.

See also Spencer v. Wilsey, (1st Dist. 1947), 330 Ill. App. 439, 71 N.E.2d 804.

• 1 We see no merit in the contention that Daugherty was incompetent to testify. In the case of Britt v. Darnell, (1925), 315 Ill. 385, 146 N.E. 510, an attorney who represented an executor in a probate proceeding was held to be a competent witness in a subsequent will contest. This principle was subsequently approved in Auerbach v. Continental Illinois Nat'l Bank & Trust Co. (Appeal of Goldman) (1st Dist. 1950), 340 Ill. App. 64, 91 N.E.2d 144.

The facts in the instant case are identical to these cases, and we find no error in permitting Daugherty to testify.

As a secondary part of this argument, which deals with the sufficiency of the evidence, petitioners contend that if Daugherty is competent to testify, his testimony should be given little weight.

• 2 This rule only applies where an attorney seeks to testify on behalf of a client he is representing in the litigation at hand. (See Jonas v. Meyers, (1951), 410 Ill. 213, 101 N.E.2d 509.) However, it does not apply here as Daugherty was not an attorney in the ...


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