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In Re Estate of Jacobson

OPINION FILED JULY 13, 1979.

IN RE ESTATE OF CARRIE JACOBSON, DECEASED. — (VELMA MCNEIL, PROPONENT-APPELLANT,

v.

DOROTHY MEAD JACOBSEN ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Jefferson County; the Hon. ROBERT W. WHITMER, Judge, presiding.

MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 15, 1979.

The proponent of an instrument dated May 30, 1974, and purported to be the will of Carrie Jacobson appeals from an order entered by the Circuit Court of Jefferson County denying its admission to probate. Following the hearing on the petition to admit the will, the court found that all the elements necessary to admit the will had been proved except one — that the testator was of sound mind and memory when she signed the will.

In a proceeding to admit a will to probate, the court's determination is governed by section 6-7(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 6-7(a)), which provides:

"When each of 2 attesting witnesses to a will testifies that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will. If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will."

The record shows that Carrie Jacobson was over 90 years of age and suffering from arteriosclerosis when she died September 1, 1977. Her family had lived in Mt. Vernon for many years. Miss Jacobson had worked away from Mt. Vernon and moved back in the late 1960's. She owned apartments near her home which she rented to tenants. Her nieces, the respondents, were her nearest of kin, none of whom live in the State of Illinois. In November of 1973 a corporate trustee was appointed conservator of Carrie Jacobson's estate. It was at that time that the proponent, Velma McNeil, was engaged to live in Miss Jacobson's home and to provide care for her. Six months later the 1974 will was executed.

Petitions for the probate of two purported wills were filed and a hearing was held on both on September 23, 1977, before Judge William A. Alexander. A 1967 will was proved in accordance with the above statute and admitted to probate. The 1974 will was denied admission to probate. The respondents are beneficiaries under the 1967 will, and the proponent is the principal beneficiary under the 1974 will. After considering briefs, Judge Alexander entered an order on February 10, 1978, denying admission of the 1974 will to probate. A post-trial motion was heard by Judge Robert W. Whitmer after Judge Alexander's retirement, and he granted a rehearing on the petition to admit the 1974 will to probate. A second de novo hearing on the 1974 will was held August 24, 1978, after which Judge Whitmer again denied the will admission to probate. It is the order denying admission of the 1974 will with which we are concerned in this appeal. That will contained an attestation clause reciting the statutory requirements.

Testifying at the hearing to admit the will to probate were the three attesting witnesses to the 1974 will, Irma Cross, Glen Kent and Pauline Kent. Irma Cross characterized herself as a "lifetime friend" to Miss Jacobson. Glen and Pauline Kent had been neighbors and tenants in one of Miss Jacobson's apartments since around 1970. Also testifying was Mary Doty, secretary for the attorney who prepared the will, and who represents the proponent. Ms. Doty was present when the will was executed but was not an attesting witness. The other two witnesses, Bertie Ham and Florence Bullock, were acquaintances of Miss Jacobson. Neither were present at the execution of the will.

The Kents testified that Miss Jacobson relied upon Mr. Kent for help in collecting rent and with other business matters. On one occasion Mr. Kent had accompanied Miss Jacobson to her bank where he observed 27 health and accident insurance policies in her safety deposit box. He said Miss Jacobson purchased insurance policies which she did not understand and which she later asked him to explain and to help her cancel; that she frequently asked him about some insurance or other business matter and within a short time repeated the question, apparently having forgotten that it had just been answered.

Mr. Kent also related how Miss Jacobson seemed lost in Mt. Vernon just a few blocks from her home and how, once, when he had taken her to a new bank she commented it was the first time she had seen the bank building when in fact she had been there previously that month. Mr. Kent's testimony was that these instances occurred prior to the execution of the 1974 will.

The Kents testified that in 1973 Miss Jacobson became unable to care for herself and began receiving "meals on wheels," a charitable service for elderly persons, and in November of 1973 Miss Jacobson had been found by police wandering in the rain and had required hospitalization. Mrs. McNeil was then employed to attend Miss Jacobson, and Miss Jacobson has never been left unattended since. When Mrs. McNeil had a day off, a substitute attendant was hired.

Mrs. Kent described how at her last visit with Miss Jacobson before the will was executed Miss Jacobson inquired as to how everyone was in Wayne City. Mrs. Kent explained to Miss Jacobson that she was Mrs. Kent, her neighbor. The ladies then continued to talk, but later Miss Jacobson commented, "Didn't we have some good times in Wayne City." Mrs. Kent stated she believed that Miss Jacobson did not, in fact, know her.

Each of the three attesting witnesses gave testimony as to the mental condition and capacity of Miss Jacobson on May 30, 1974. Irma Cross stated several times that Miss Jacobson "knew she was making a will" and that, in her opinion, very few people Miss Jacobson's age were of sound mind and memory. When asked whether she believed that Carrie ...


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