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In Re Estate of Milligan

FEBRUARY 15, 1972.

IN RE ESTATE OF NANCY GERTRUDE MILLIGAN, DECEASED. — (HOWARD H. SALVETER ET AL., PETITIONERS-APPELLANTS,

v.

LILLIAN MILLIGAN SMITH ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Marion County; the Hon. JAMES E. McMACKIN, Jr., Judge, presiding.

MR. JUSTICE VERTICCHIO DELIVERED THE OPINION OF THE COURTS:

The plaintiffs, Howard H. Salveter and Robert D. Salveter, nephews and sole heirs at law of Nancy Gertrude Milligan, deceased, appeal from a decree of the circuit court of Marion County that directed a verdict at the close of the plaintiffs' case and declared a certain instrument to be the last will and testament of Nancy Gertrude Milligan, deceased.

The plaintiffs, sons of a predeceased sister, Maud, filed their complaint in the circuit court of Marion County, praying that the instrument admitted to probate as the last will and testament of Nancy Gertrude Milligan be set aside.

The defendants are executor Lillian Milligan Smith, and the legatees thereunder, Lillian Milligan Smith, Milton Milligan, Lela Milligan, Mrs. Howard H. Salveter and Mrs. Robert D. Salveter.

The complaint alleged that at the time of the execution of the instrument Nancy Gertrude Milligan was of unsound mind and memory and mentally incapable of making a will.

Nancy Gertrude Milligan died February 22, 1967, and had executed the instrument purporting to be her last will and testament on June 22, 1962. The terms of the said instrument provided the following devises and bequests:

$1,000.00 to a brother, W.E. Milligan; to a sister-in-law, Lela Milligan; to Mr. and Mrs. Robert Dickinson Salveter; the sum of $2,000.00 to Mr. and Mrs. Howard Holmes Salveter; and the residue of the estate, three-fourths to a cousin, Lillian Milligan Smith, and one-fourth to a cousin, Milton Milligan.

The issue presented in this appeal is whether the plaintiffs adduced any evidence fairly tending to prove the lack of testamentary capacity of the testatrix.

The plaintiffs presented three lay witnesses. The first witness, James Milligan, Carbondale, Illinois, age ninety, three years older than the testatrix, who was his cousin, testified that he had been acquainted with the testatrix since childhood. He further stated that the testatrix, a spinster; grew up in Pinckneyville, Illinois, and left for California when she was seventeen or eighteen years of age.

He outlined the testatrix's educational and teaching experience in California and at Columbia University in New York. He saw the testatrix on one occasion after she left Pinckneyville while she was visiting in Carbondale and came to his home. The next time he saw the testatrix was after she returned to Illinois on an occasion that Lillian Smith brought the testatrix to his sister's home. He testified that the testatrix did not recognize him and that he assisted her into his sister's home.

He next saw her in the Jackson County Nursing Home while she was occupying a room in the nursing home across the hall from his sister. He visited his sister daily and observed the testatrix for several weeks. He further stated that during these visits the nurses had difficulty in keeping the testatrix out of his sister's room. He noted that she would come out of her room undressed, go into the rooms of others, and would be returned to her room by a nurse. He attempted to have conversations with her and almost each time he had to tell her who he was as she did not recognize him. He did not remember the exact dates that he saw the testatrix, but stated it was before June 22, 1962.

In answer to questions attempting to fix the dates that he saw the testatrix, the witness stated, "I don't know the exact date," but indicated that his sister died in 1963.

In response to an inquiry he stated that in his opinion she was mentally deranged.

The second lay witness, Alma Milligan, the wife of James Milligan, stated that while visiting her sister-in-law in the nursing home at Jackson County, she observed the testatrix.

The witness and her daughter visited the testatrix in her room and each time they told her who they were. The testatrix appeared to believe that her daughter was a student of the testatrix. During the visit the testatrix talked about teaching and was interested in her daughter's grammar and whether pronounced correctly.

Also, the witness saw her outside the room from time to time. The testatrix talked about flowers. She saw the testatrix for a period of about three months in the summer and during that time her conversations were limited to school work and teaching and did not at any time include any current events. In her opinion the testatrix was confused as she would not recognize them from time to time and she would repeat herself.

In answer to questions in cross-examination, the witness was unable to establish whether it was the year '62 or '63. In answer to ...


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