APPEAL from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This is an appeal from a will contest in which a jury found in favor of the Executor and proponent of the will. Factually, Emma J. Hurley, known as Aunt Emma, executed on the 11th of December, 1967, triplicate originals of her last will and testament which was prepared by Attorney Archie B. Weston Sr. Thereafter, one of the triplicates was returned to him and placed by him in Mrs. Hurley's file for safe keeping. Two of the executed triplicates were kept by Mrs. Hurley. By the terms of the will Gwendolyn Jackson was named sole beneficiary and Executor. Mrs. Hurley died on the 14th of October, 1968.
Gwendolyn V. Jackson, a niece of Mrs. Hurley, had resided with her for many years. Shortly before Mrs. Hurley's death Tyna Jackson, a half-sister, moved into the second floor of the premises.
Several hours after Mrs. Hurley's death at 7:30 A.M. a search was made by her relatives for papers indicating what to do and no will was found. There is some conflicting testimony as to the access to Mrs. Hurley's cabinet in her bedroom where a Mr. Bowles, her financial adviser, testified she kept the will and that he had observed it there a few days before her death. There was no testimony that Mrs. Hurley had ever indicated an intent to revoke her will or had advised her attorney she was doing so, nor had she requested him to do so.
Gwendoyn V. Jackson not only was the niece of Mrs. Emma J. Hurley, but according to testimony she was a companion performing various services for her. Gwendolyn V. Jackson also bought some of the furniture in the house. According to all the testimony received there was a continuing good relationship between Aunt Emma and Gwendolyn V. Jackson, her niece, up to the date of her death. After Emma J. Hurley died, another half-sister of Mrs. Hurley, Edith Timmons, moved into the premises and shortly thereafter Gwendolyn V. Jackson moved out.
This action is brought by Tyna Jackson and Edith Timmons against Gwendolyn V. Jackson individually and as Executor, and against two other half-sisters, Welcom Jackson and Wilma Bey, who did not contest the admission of the will to probate.
The question before the Court and jury was whether or not Emma J. Hurley had destroyed and revoked her will.
The major contention of the Plaintiffs is that the Trial Court erred in failing to direct a verdict for the Plaintiff at the conclusion of the Defendant's case, and that the Court further erred in not entering a verdict non obstante veredicto. The basis for this contention is that the evidence adduced at the trial by the seven witnesses for the defendant, failed to overcome a presumption of revocation of the will by the testatrix, and Plaintiff has cited the following cases in support of this contention. (Koester v. Jennings et al. (1924), 334 Ill. 107, 165 N.E. 653; In re: Moos' estate (1953), 414 Ill. 54, 110 N.E.2d 194; In re: Marsh's estate (1961), 31 Ill. App.2d 101, 175 N.E.2d 633.) Examination of these three cases is in order.
In Koester we find a bizarre set of circumstances. In 1923 the Probate Court of Cook County issued letters of administration. In January, 1926, Koester, who was then incarcerated in the State Penitentiary at Marquette, Michigan, sent what purported to be a copy of a will of the decedent supposedly executed in 1918 to the attorneys in Chicago. Upon his release he appeared in Court in December of 1926 attempting to have the will admitted to probate. The will was signed by the decedent by "x's." At the hearing on the will, the expert witness for the opponents thereto, testified that the paper upon which the will was executed, had not been manufactured prior to the year 1920, and the Court thereupon denied probate of the will. In 1927 Koester appealed to the Circuit Court, the procedure in effect at that time. Later, Koester admitted that the purported will was a forgery and attempted to introduce what he claimed was an alleged copy signed by "x's." Quite properly the Probate Court of Cook County denied admission of this will to probate. The Koester case clearly on the facts is not determinative in any way of the issues herein.
In the Marsh case, supra, Sadie Marsh executed a will and left it with her attorney. Later, she wrote her attorney requesting him to mail the will to her, stating "I'll tear that up." The attorney delivered the will to her personally at which time she said "I am not going to destroy it now, I'll probably do it later." Four days later she was found dead in her hotel room and the will was not found. The Probate Court of Cook County admitted an unexecuted copy of this will to probate. The Appellate Court stated that the testimony of the attorney and his secretary showed a specific intention of the decedent to revoke the will. To overcome the strong presumption of revocation indicated by the factual situation, evidence was introduced of kind treatment to the decedent. The Court stated that kindly treatment by a beneficiary was not enough in itself to overcome the presumption of revocation in this particular situation. It is thus seen that in Marsh there was a specific statement by the testatrix that she intended to destroy the will, and no will being found this was certainly a strong indication that she had done so.
In the Moos' case, supra, we find that Thomas P. Moos executed a will while in the hospital and while apparently apprehensive about a forthcoming operation. However, he recovered, and although admitted to the hospital two more times, he did not die until eleven months later. The proponents of the will sought to have a carbon copy admitted as a lost or destroyed will, which the Probate Court refused to do. Upon appeal to the Circuit Court, that Court made an express finding denying probate on the ground that the decedent had revoked the original will. The Appellate Court affirmed the findings of the trial courts holding that the evidence taken in its entirety was:
"not sufficient in quality or quantity to show that it is unlikely that the testator would revoke his will, or to create a moral conviction that he did not revoke it. The circumstances shown by the evidence was equally, if not more, consistent with the thought that the testator changed his intentions relative to the disposition of his property and destroyed the will himself."
It is to be noted expressly that in both the Moos' and the Marsh case, the proponents attempted to introduce an unexecuted copy of a will. In the instant case it is pointed out that the document submitted for probate was executed by the decedent, witnessed, and in the possession of her attorney, who had prepared triplicate originals and given instructions that all three be executed.
In re: Morgan's estate (1945), 389 Ill. 484, 59 N.E.2d 800 the administrator appealed from an order of the Circuit Court of Mercer County admitting to probate a carbon copy of a will of Morgan. The Appellate Court affirmed the order. Morgan executed a will on June 29, 1936, left it with his attorney until 1938 when he had it mailed to Morgan at his request, and in July 12, 1943 when Morgan was ...