APPEAL from the Circuit Court of Cook County; the Hon. JACOB
S. GUTHMAN, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
This is an appeal by Mary Lewis (Petitioner), one of three legal heirs of Edgar Ralph Haines (Testator), from an order of the circuit court of Cook County admitting the Testator's will to probate. She raises four issues:
1. Whether a contestant has the right to take the discovery or evidence depositions of the attesting witnesses prior to the will proveup.
2. Whether the court violated Petitioner's constitutional rights in refusing to allow Petitioner to file a jury demand, in refusing to allow an attorney or court reporter to be present at the time an attesting witness answered the written interrogatories and in refusing to hold unconstitutional sections 72 and 92 of the Probate Act (now sections 6-8 and 8-3 of the Probate Act of 1975 (Ill. Rev. Stat. 1975, ch. 3, pars. 6-8 and 8-3)).
3. Whether an attesting witness in a will proveup should be allowed to testify that she believed the decedent to be of sound mind and memory when no proper foundation has been laid and no determination has been made to establish that the witness knew the proper legal definition of sound mind and memory.
4. Whether written interrogatories, claimed by Petitioner to be clearly objectionable under the rules of evidence, should be asked of an attesting witness.
Testator's will was dated December 26, 1950. He died almost 25 years later, on August 29, 1975. The will had the usual attestation clause and was signed by three attesting witnesses. The will made no specific bequests and left the residue of Testator's estate to his sister, Darthea Haines; if she predeceased him, then to The First Church of Christ, Scientist. The executor's petition for probate stated that Testator's three legal heirs were a nephew and two nieces.
The executor filed an application to take the deposition on written interrogatories in Florida of the attesting witness Elvira Jane Dinkmeyer. Petitioner opposed the issuance of a commission on the grounds that (1) it would violate her constitutional rights under the fourteenth amendment to the United States Constitution and under sections 2, 12 and 13 of article I of the Illinois Constitution; (2) sections 72 and 92 of the Probate Act are unconstitutional and should not be utilized in contested matters; and (3) Petitioner's constitutional rights have been violated by shifting to her the burden of proof in a later will contest case and by denying her the use of discovery procedures. Petitioner also moved that the above-mentioned sections of the Probate Act be held unconstitutional, that she be allowed to file a jury demand, to take the discovery and evidence depositions of the witness and to have an attorney or court reporter present on her behalf at the time of the deposition of the witness Elvira Jane Dinkmeyer. Petitioner's motion was denied, the commission was issued and the deposition on written interrogatories of the attesting witness Elvira Jane Dinkmeyer was taken.
Subsequently, Petitioner moved that eight of the interrogatories on the standard written form be stricken on various grounds. This motion was also denied.
The attesting witness Elvira Jane Dinkmeyer, in her written answers to the cross-written interrogatories, stated: On December 26, 1950, she was employed by the Oak Park Trust and Savings Bank, in Oak Park, Illinois. Her immediate supervisor was Mrs. Gladys Finkle. The witness specifically recalled that on that date she signed her name to the will of Edgar Ralph Haines; that the will was executed in the trust officer's office of Oak Park Trust and Savings Bank, Oak Park, Illinois, which was a small office containing a desk facing the entrance door. The witness described those present at the time the will was signed as Steve Hart, Ellen Staehling and the decedent. Steve was approximately 6' tall, late 30's. Ellen was about 5'2". Attractive. Precise. Feminine. Neat. Wore glasses. 40's. As to the deceased, she did not recall.
This deposition witness, in answer to cross-interrogatories as to her belief concerning the Testator being of sound mind and memory when he signed the will, stated: "Fully aware of what he was signing and was asked if he was in fact aware of who was witnessing." "Q. At this time are you able to state specifically that Ralph Edgar Haines was of sound mind and memory on December 26, 1950?" "A. Yes. * * * At the time I was confident that he was of sound mind in that he was aware of what he was signing. No reason to believe by his action, mannerisms or way he conducted himself during the signing that he was not of sound mind and memory." "Q. Do you specifically recall that Ralph Edgar Haines signed the document in question on December 26, 1950?" "A. Yes."
At the hearing on the will, the attesting witness Ellen M. Staehling testified to the due execution of the will. Prior to her testimony, Petitioner moved to take her discovery deposition. The motion was denied and Petitioner again moved that section 92 of the Probate Act be held unconstitutional. This motion was also denied.
During the hearing, Petitioner objected to the witness being asked any questions incorporating the term "sound mind and disposing memory" without first laying a foundation that the witness understood the proper definition of said term. Petitioner further objected that, with or without a proper foundation, the asking of the question was the eliciting of a legal conclusion.
On cross-examination by counsel for two of the heirs, the witness testified: The will was executed in the Trust Department of the Oak Park Trust. Mr. Cantore came into the department with Mr. Haines and talked to one of the officers there and the witness and two other persons were procured as witnesses to the will. She was the first witness. The second was Elvira Dinkmeyer. Ellen M. Staehling based her answer that she believed Mr. Haines was of sound mind and ...