APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. KOGUT, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 5, 1979.
This lawsuit involves a petition filed in the Circuit Court of Cook County by Susan Di Maso *fn1 to set aside the purported will of her sister, Carmella Veronico, and to declare it null and void. The plaintiff alleged that the testator lacked the mental or physical capacity necessary to execute a will and that the testator was under the influence, domination and control of Richard Di Maso, a nephew of the testator.
Prior to the commencement of the jury trial in this matter, the trial court determined that the plaintiff was not competent to testify at the trial and appointed Peter G. Porikos as guardian ad litem for Susan Di Maso. At the conclusion of the plaintiff's evidence, the trial court entered a directed verdict on the issue of undue influence. The jury determined that the document in question was the valid will of the testator, and on September 15, 1977, the trial court entered a judgment order declaring that the document was Carmella Veronico's last will. The plaintiff appeals from this order and the order of November 23, 1977, which denied her post-trial motion for judgment notwithstanding the verdict or, in the alternative, her motion for a new trial.
The plaintiff raises three issues on appeal: (1) whether the trial court erred in excluding the opinion testimony of one of the plaintiff's witnesses; (2) whether the trial court erred by refusing to admit into evidence certain bank records of the testator and (3) whether the trial court erred in sustaining the defendant's motion for a directed verdict on the issue of undue influence.
Carmella Veronico died on December 23, 1973, owning property valued at approximately $85,000. She signed her purported will with an "x" on August 8, 1973. In this will Carmella specifically bequeathed $500 to the Reverend Luke Dittman for masses for the repose of her soul, $1,000 to her sister, Susan Di Maso, $1,000 to her nephew, Philip J. Di Maso, and $10,000 to her nephew, Richard J. Di Maso. Carmella also devised her home located at 5758 North Mobile Avenue in Chicago to Richard, and she appointed him as executor of her will. She bequeathed the remainder of her estate to her sister, Caroline Smoczynski.
On April 23, 1973, Carmella suffered a stroke and was hospitalized until June 4, 1973. After her discharge from the hospital, Carmella lived with her nephew Richard and his family at 5758 North Mobile. Although Carmella owned the property on Mobile, Richard had lived in the home for more than 20 years.
In June of 1973 a family gathering occurred at the home on Mobile. The gathering was attended by various relatives of Carmella and also by the attorney who drafted Carmella's will. There was evidence that at this gathering Richard, his brother Philip and counsel engaged in a private discussion concerning the disposition of Carmella's property.
On August 8, 1973, Carmella executed her will in the presence of the attorney and two witnesses, Sidney Oko and Joseph Sansiree. On November 3, 1973, Carmella fell at her home and re-entered the hospital where she remained until her death on December 23, 1973.
Conflicting testimony was presented concerning Carmella's mental capacity subsequent to her stroke in April of 1973. Rochelle Di Maso, Philip's daughter, testified that she visited her great-aunt regularly in the hospital and after her release. Rochelle stated that in June and in September of 1973 Carmella did not recognize her, was unable to move by herself and was unable to speak. In her opinion Carmella was not competent to transact ordinary business, to know the nature and extent of her property or to know the natural effects of her bounty.
Philip Di Maso, Richard's brother, testified that he visited his aunt daily during her hospitalization in April of 1973 and weekly after her release. He stated that during her hospitalization Carmella did not recognize him and was unable to communicate whatsoever. In September of 1973 Carmella could neither walk nor talk. In his opinion Carmella did not have the capacity to know either the nature and extent of her property or the natural effects of her bounty.
Gerald Lambert, the speech pathologist who tested and evaluated Carmella during both hospitalizations, was questioned by the plaintiff's attorney in detail concerning his educational background, his work experience and certification. The defendant's attorney then presented a motion to exclude any testimony by Lambert because he was not qualified as an expert witness on the issue of competency. The trial court sustained the objection. The plaintiff's attorney insisted that Lambert would testify as a lay person concerning his opinion of Carmella's mental capacity. He added that the purpose of his questioning concerning Lambert's credentials was not to qualify Lambert as an expert but to lay a proper foundation concerning Lambert's opportunity to observe Carmella and form an opinion.
In explaining the reasons for excluding Lambert's testimony, the trial court stated, in pertinent part, as follows:
"Gentlemen, as I said before, the reason I sustained the motion to the objection of the testimony of Lambert is because you preliminarily brought him and laid the foundation for him to testify as an expert.
Now, what you are telling me is that you mean to bring him in as a lay person from personal observations. Can you now switch your position in view of the fact that you have impressed with the jury that this man has expertise, and now you are going now you say you want him as a lay person?
The question is now, can I retract what has gone before the jury regarding his qualifications?"
Dr. Frank DeTrana, Carmella's physician, testified that he visited Carmella daily during her hospitalizations and saw her at least once a month during the interval. He stated that although Carmella had difficulty speaking and expressing herself as a result of the stroke, he was convinced that her mentality was normal. Dr. DeTrana testified that he had observed Carmella walking with assistance, and that on July ...