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In Re Estate of Weaver

OPINION FILED JULY 6, 1977.

IN RE ESTATE OF STANLEY WEAVER, DECEASED. — (ROBERT M. TREECE ET AL., PETITIONERS-APPELLANTS,

v.

JOHN GILBERT ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Williamson County; the Hon. WILLIAM A. LEWIS, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The proponents of the will of Stanley Weaver, deceased, dated February 5, 1976, appeal from an order of the trial court denying the petition to admit the will to probate and dismissing the proceeding. The basis of the trial court's order was that the standards required by law for execution of the purported will were not met as the purported testator was assisted or his hand guided by another person in making his signature and the testator failed to acknowledge in the presence of witnesses that the instrument was his will, voluntarily made. The issues on appeal are framed from these trial court findings. We reverse.

The petition to admit to probate the instrument purporting to be the will of Stanley Weaver was filed by Robert M. Treece, its named executor. The beneficiaries of this will were four of his nieces. These nieces are the proponents of this will and the appellants herein. By its terms the will of February 5, 1976, revoked all prior wills.

When the petition to admit the will to probate was called for hearing, John Gilbert and John Phil Gilbert were present with their attorney and announced that they were appearing in opposition to the petition to admit the will to probate. Neither of the Gilberts is an heir of Stanley Weaver, but John Phil Gilbert is a residuary legatee and John Gilbert the named executor of a purported prior will of Stanley Weaver, dated June 4, 1974. The purported will of June 4, 1974, was attached as an exhibit to the entry of appearance filed by the opponents at the time of the hearing on the will in question, that dated February 5, 1976. By his prior will Stanley Weaver left his entire estate to his wife but in the event she did not survive him it left the entire estate (except for a specific legacy of $2,000) to his wife's nieces and nephews. A petition to admit the will of June 4, 1974, to probate had been filed prior to the petition in question, and the hearing thereon was awaiting the notice period. The instant petition was heard upon entries of appearance, and no notices were required or given.

Over the objections of the proponents of the will the Gilberts were permitted to participate in the hearing by objecting to evidence, by cross-examination of the witnesses to the execution of the will of February 5, 1975, and by making arguments to the court regarding the efficacy of the will. On motion of the objectors witnesses were excluded from the courtroom during the hearing.

The purported testator, Stanley Weaver, was 86 years of age on February 5, 1976, and a patient in the Herrin, Illinois, hospital. His wife had died in a room across the hall in the same hospital on the previous day. The purported will was executed in Mr. Weaver's hospital room and was attested by three witnesses, two of whom testified at the hearing to admit the will to probate.

One of the witnesses to the execution of the will was Joseph Helleny, age 85, a close friend of Stanley Weaver for over 50 years and a retired Herrin businessman. He testified that he was asked by Robert Treece to go to the hospital concerning Stanley Weaver's will. When he arrived the other witnesses, Love and Phillips, were already there. He said, "Hello, Stanley" and Weaver replied, "Hello, Joe." The will was read to the testator in his presence and explained to him. The witness asked, "Stanley, do you understand that will?" and he nodded his head. On cross-examination he said that he asked, "Stanley, who do you want to make your will?" and he never answered. He then asked, "Do you want to make it to your nieces?" and he (the testator) said, like this (nodding), yes. Continuing his direct testimony the witness said that the testator then signed the will in the presence of all the witnesses and the witnesses then signed in the presence of each other. He believed the testator to be of sound mind. At the time the testator signed his name to the will he held the pen in his hand and moved his hand but someone, he believed it was Love, held the top of the pen.

On cross-examination the witness testified that the testator never asked anyone to help him with the signing, that he couldn't hold the pen very well and he (the other party) held the top of it. At the time of the signing, the pen was actually in the testator's hand. The following colloquy regarding the signature of the testator then ensued:

"A. I don't remember exactly but Mr. Weaver signed his name and moved his hand.

Q. Did Mr. Weaver have a hold of the top or bottom of the pen?

A. Mr. Weaver . . . I don't remember, but anyhow he had his hand on the pen.

Q. Could it be possible that the other person had the pen in his hand and Mr. Weaver only had his hand on top of the pen?

A. No, sir. He had the pen, one of them had the pen and the other touched the top of it.

Q. You are not certain just how the pen was in his hand?

A. No, sir. I know he touched the top of it.

Q. And you are not certain . . .

A. I know he touched the top of it and moved it. Somebody touched the top of it and he moved the pen in his hand. He got the pen in his hand, see. Somebody touched the top of it and he moved his hand. He signed his name when he moved his hand.

Q. Mr. Weaver didn't move the pen, but the other person holding the top of the pen moved it for him?

A. Mr. Weaver signed it. He signed his name."

The other subscribing witness who testified was Willard Love, age 76, who had known the testator for 50 years and had been intimately acquainted for 18 years. He testified that he was asked by Robert Treece to go to the hospital in connection with Stanley's will. Joe Helleny came in the room after he was there. George Phillips, another hospital patient, was also there. The will was read to Stanley Weaver by Robert Treece, and was then read to him a second time. The following colloquy then ensued:

"Q. And if you look at that document there, did Stanley Weaver sign that document in your presence?

A. He did.

Q. Did he need some ...


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