APPEAL from the Circuit Court of Henry County; the Hon. JOHN
D. O'SHEA, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 5, 1977.
Defendants, who are legatees, trustee and executor, appeal from denial of their post-trial motion after a general verdict of the jury rendered in Henry County declaring invalid the last will and testament of Frank A. Beyers executed on September 14, 1972. He died February 17, 1975. That will (hereinafter referred to as the September 1972 will or third will) had been admitted to probate and letters testamentary issued thereon to one of the defendants, Robert V. Fuhr.
The plaintiff, daughter of the deceased, and her descendants were disinherited under the September 1972 will. She challenged the validity of the will on these distinct theories: (1) that the testator lacked testamentary capacity at the execution of the will; and (2) that three of the defendants (Gene, Bobby Joe and James Billingsley) exerted undue and wrongful influence upon testator and thereby procured a will which was not the free and voluntary act of the testator.
Defendants have raised several issues in their brief in regard to evidentiary, procedural and substantive rulings of the trial court. First to be considered in this appeal is the trial court's refusal to grant defendants' motion for new trial based on an alleged false statement of the plaintiff.
In rebuttal at the jury trial plaintiff testified her brother William (decedent's son) did not complete any schooling; and that contrary to attorney Rumley's testimony that her father had told him the son had been in an automobile accident, she testified that her brother had been born with an enlarged head and had been retarded since birth. This testimony went to the issue of the soundness of testator's memory as it related to testamentary capacity. In support of the motion for new trial defendants produced a certificate by the Regional Superintendent of Schools that both plaintiff and her brother were issued diplomas and attended the same school in 1936-37.
• 1 This court notes that in both the September 1972 and March 10, 1972, wills, the testator provided an $80,000 life estate in trust for this son. Defendants could have shown the falsity of the assertions in regard to the son at the jury trial, if indeed they were false or of such a nature to impugn the veracity of plaintiff. The cause and true condition of the son of decedent was factual information available to both parties; his receipt of a diploma does not change that condition nor necessarily make plaintiff's statement false. Had defendants challenged the truth of the cause of the retarded condition, defendants' motion for new trial based on false testimony would have had sufficient merit because it would be false testimony of such nature as would probably change the result in a retrial. We affirm the trial court's denial of the request for new trial based on asserted false testimony. Kaster v. Wildermuth (1969), 108 Ill. App.2d 288, 247 N.E.2d 431.
• 2 Plaintiff contends that this appeal must be dismissed as the appeal is based on the order disposing of the post-trial motion, which orders have been treated as non-final and therefore not subject to appeal. (See Supreme Court Rules 301 and 303, Ill. Rev. Stat. 1975, ch. 110A, pars. 301, 303.) Here, however, once the trial court refused to set aside the verdict on a timely post-trial motion and refused to grant a new trial, there was nothing left for the trial court to do but execute the judgment in regard to the September 1972 will. The order denying all relief requested in the motion assumed the necessary qualities of finality as it disposed of defendants' legacies under that will and terminated litigation as to that will. Furthermore, the order determined rights and status of the trustee and executor named in the September 1972 will, parties to this proceeding, which would bring this appeal within the purview of Supreme Court Rule 304(b) (Ill. Rev. Stat. 1975, ch. 110A, par. 304(b)).
• 3 Defendant contends that three of plaintiff's tendered jury instructions were erroneously accepted and given by the trial court. One is IPI Civil No. 1.03, circumstantial evidence instruction. Since both parties presented circumstantial evidence to the jury, we find no reason to exclude the instruction. Pertinent circumstantial evidence consisted of decedent's living arrangements, when and how those arrangements came into existence and terminated, decedent's manifest physical and mental conduct at various times, his customary manner of transacting business, who were the natural objects of his bounty, who were the actual objects of the September 1972 will.
• 4 The other two instructions are IPI Civil No. 200.01 and IPI Civil No. 200.03, which this court considered in Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App.3d 563, 361 N.E.2d 134. We reiterate that IPI Civil No. 200.01 was intended to state, without emphasis, the issues actually presented in the particular will contest and hold that IPI Civil No. 200.01, as tendered here, did so using the issue language as suggested in the explanatory notes in the Illinois Pattern Jury Instructions, Civil (2d ed. 1971).
• 5-7 We do not agree with defendants' contention that the general issue instruction must be omitted if evidence did not prove lack of testamentary mental capacity and show presence of undue influence. An issue instruction should be omitted only if no evidence going to that was ever presented by either party, except in cases where mandatory issues (e.g., freedom from contributory negligence) must be found. Defendants' contention overlooks the whole purpose of letting an issue go to the jury, for if the evidence or lack thereof on an issue is overwhelmingly in favor of a movant, the trial judge should entertain a motion for directed verdict on that issue. Evidence of decedent's mental capacity and influence factors was presented. Where reasonable men can differ as to the conclusion[s] to be drawn from the evidence on an issue, that issue should be submitted to the jury. (Peters v. Catt (1958), 15 Ill.2d 255, 154 N.E.2d 280.) We hold that reasonable men could disagree as to the conclusions to be drawn from the evidence on both issues going to the validity of the September 1972 will of Frank A. Beyers, and that instructing the jury as to both issues was proper. It was for the jury to decide whether the mental capacity was sufficient for testamentary purposes and whether there existed influence that was undue whereby the disputed will was procured.
The function of IPI Civil No. 200.03 is to instruct the jury on the manner in which undue influence may be proven. The instruction given was properly worded, precisely following IPI Civil No. 200.03.
We believe that some confusion was caused by the use of conjunctive words in the instruction on issues, which caused conflict with another instruction that plaintiff need only prove one issue. Twice the jury summoned the judge back to the courtroom. The confusion in these instructions was potentially damaging to plaintiff, and defendants have asserted that the trial judge acted improperly in giving a further instruction to the jury. Defendants cite section 67(1) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 67(1)), requiring written clarification unless the parties agree otherwise. The record does not show the presence or absence of counsel at the jury inquiries, but this court does have the record of the rebutted presumption clarification and finds it within the spirit of the statute.
• 8 The trial judge did not change the instructions, he encouraged the jurors to reread all instructions, and was as concretely accurate as he could be within the confines of the pattern instructions. This court is cognizant of the common practice to give one copy of the instructions, one per page, unnumbered, to be shared by a jury, after having them read aloud by the court. We hold that where the record shows the jury had legitimate questions and the judge's responses thereto were not unwarranted, were not contrary to law and were not such as to indicate the judge's conclusions of the evidence (here, undue influence), and where they did not unduly emphasize certain instructions to the exclusion of other instructions, then reversible error was not committed by the trial court.
• 9, 10 At the close of plaintiff's case in chief and at the close of defendants' case in chief, defendants moved for directed verdict in their favor. The trial court twice denied the motion and applied the standard of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. It has long been the law of this state that will contests are subject to the same standard for directed verdict and judgments n.o.v. as are other civil cases. Defendants' citation and reliance on other standards is misplaced, as Pedrick was intended to settle for all civil cases one standard for direction of verdicts and to forever bury the plethora of standards formerly in use.
"[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant [here, defendants] that no contrary verdict based on that evidence could ever stand." Pedrick v. ...