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Schmidt v. Schwear





APPEAL from the Circuit Court of Madison County; the Hon. GEORGE MORAN, JR., Judge, presiding. MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs filed suit to set aside the last will and testament of Iva Corbett, executed July 21, 1977, in which she left the majority of her estate to her sister, Tommie Earl Schwear, one of the defendants. Following trial, a jury found that the July 21, 1977 instrument was not the voluntary last will and testament of the decedent. In response to a special interrogatory, the jury found that defendant and her husband, William, exercised undue influence upon the testatrix. Defendant appeals from the jury verdict, contending that: (1) the verdict was against the manifest weight of the evidence, (2) the trial court erred in denying defendant's motions for directed verdict and for judgment notwithstanding the verdict, and (3) the jury was improperly instructed.

The evidence introduced at trial indicated that Iva Corbett was 70 years of age at the time of the execution of the contested will and at the time of her death. She had been married to Bill Corbett, who died in 1966. The couple had no children; for almost 40 years they lived on a tract of real estate devised in the will. After her husband's death, Iva continued to reside there alone. The evidence further indicated that Iva Corbett was the oldest of five children. She was survived by a brother, Arley Keith; a sister, Faye Schmidt; and her youngest sister, Tommie Earl Schwear, who was 12 years her junior. Another sister, Leeda Keith, predeceased Iva in early 1977.

The action contesting the will was initially brought by Faye Schmidt, who died after the suit was instituted. Following Faye's death, the case was maintained by her husband, Virgil, as executor of her estate. Marion Tow, who was 38 years old at the time of trial, was the principal beneficiary under a prior will executed by Iva Corbett which was revoked by the challenged will.

Defendants in this action are Tommie Earl Schwear (hereinafter referred to as defendant) and Arley Keith, sister and brother of the testatrix. Arley Keith, who was to receive $5,000 under the terms of the challenged will, did not take an active part in the case.

Three wills, two of which were executed by Iva Corbett, were placed in evidence at trial. The evidence discloses that the first will was executed on January 29, 1976, and was prepared by Wendell Durr, an Edwardsville attorney. Mr. Durr testified that such will was prepared pursuant to the directions of Iva Corbett alone. The will directed that the personal property of Iva Corbett be divided equally between Faye Schmidt and Tommie Earl Schwear and that the real estate become the property of Marion Tow. A lease was also prepared by attorney Durr at the request of Iva Corbett and was executed the same day. This instrument leased all of the real property of Iva Corbett, except the residence, to Marion Tow for a period of 30 years, provided that he pay taxes on the property. Neither the will nor the lease prepared by Mr. Durr had been revoked at the time of the execution of the contested will.

Iva Corbett returned to the office of Wendell Durr on July 6, 1977, accompanied by defendant Tommie Earl Schwear and her husband. The parties requested that reciprocal wills be prepared for them. The proposed will of Iva Corbett bequeathed all of Iva's personal property to Tommie Earl Schwear and devised a life estate in the real property to Tommie Earl Schwear, with the remainder to Marion Tow. Neither the will prepared for Iva Corbett nor the reciprocal will of the Schwears was ever executed.

The contested will of Iva Corbett was prepared on July 20, 1977, by David Simpson, an Edwardsville attorney. Mr. Simpson did not meet or speak with Mrs. Corbett but prepared the will from the instructions given him by Tommie Earl and Bill Schwear, who personally visited his office. This will bequeathed $5,000 to Iva's brother, Arley Keith, and the remainder of Iva's real and personal property to Tommie Earl Schwear.

The will prepared by Mr. Simpson was executed on July 21, 1977, while Iva Corbett was a patient in the intensive care unit of Oliver C. Anderson Hospital. Dr. Tom Hill and Sandy Connors, R.N., were witnesses to the execution of the will. Following execution of the will, Iva remained in the hospital, where she died one week later, on July 28, 1977. This will subsequently was admitted to probate on September 12, 1977.

At trial, testimony presented on behalf of plaintiff established that for many years a close relationship had existed between Iva Corbett and Marion Tow, devisee of the real property under the January 29, 1976 will. Tow had moved to Illinois from Oklahoma while he was in his teens. During this period he helped Bill Corbett with chores on the Corbett property; and in 1964 when Tow returned after spending three years in the Army, he again helped Bill Corbett maintain the property.

The relationship between Iva Corbett and Marion Tow continued after the death of Bill Corbett. Tow testified that during the years 1975 through 1977, he removed old cars from the Corbett property. He also built a barn, rebuilt fences, and relandscaped part of the property. He also stated that he paid taxes on the property pursuant to the January 29, 1976, lease.

At the time of the trial, Marion Tow was married and had three children. Testimony indicated that the relationship between Iva Corbett and Marion was like that of mother and son. Friends of Iva testified that she affectionately referred to Marion as "the kid" and never had anything but kind words for him. The Tows maintained the property, kept the weeds cut and fences mended, and brought Iva produce from their garden. Testimony of friends indicated that the warm relationship continued at least through the end of May 1977, two months before Iva's death.

The plaintiff called Tommie Earl and Bill Schwear to testify as adverse witnesses under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). Their testimony revealed that Tommie Earl had lived with her older sister, Iva, and Iva's husband, Bill, during a period of Tommie's childhood in the early 1940's. Following her marriage to Bill Schwear, Tommie moved from Illinois in 1959, and she and her husband did not return to the area permanently until 1972. During this absence the Schwears maintained communication with Faye Schmidt but lost all contact with Iva Corbett. In fact, they did not become aware of Bill Corbett's death in 1966 until after his funeral.

From the return of the Schwears to Illinois in 1972, until the death of Iva Corbett's sister, Leeda Keith, in April 1977, Iva and the Schwears did not have a close relationship. In fact, two friends of Iva testified that they observed Iva intentionally avoid and attempt to ignore Tommie early in 1977, the year of Iva's death. However, after the death of Leeda Keith early in 1977, Iva and Tommie became much closer. The Schwears often provided transportation for Iva and performed other services. Tommie testified that during this three-month period, Iva reposed a great deal of trust and confidence in both her and her husband.

On July 6, 1977, the Schwears took Iva to the office of Wendell Durr, her attorney, for the purpose of having reciprocal wills drafted. The Schwears each requested, in Iva's presence, that Mr. Durr draft their wills leaving all of their property first to the other and then to Iva Corbett. Both Tommie Earl and Bill Schwear testified that when Iva's will was discussed, they were present but did not participate in the discussion or influence Iva in any way.

The testimony of Wendell Durr concerning the July 6 meeting directly conflicted with that of the Schwears. Mr. Durr testified that the Schwears not only participated in the discussion about Iva's will but spoke negatively to Iva about Marion Tow and his family. Mr. Durr testified that Bill Schwear specifically tried to discourage Iva from leaving her farm to Marion Tow and that the Schwears reminded Iva of what Durr characterized as "piddly disputes." Durr testified that he believed the Schwears tried to influence Iva at this meeting. Durr concluded that when Iva insisted upon devising the real property to Marion Tow subject to a life estate to the Schwears, the Schwears felt that they had failed.

The plaintiff presented further testimony concerning the preparation of the challenged will, executed on July 21, 1977. The will was prepared on July 20, 1977, by David Simpson, an Edwardsville attorney, exclusively from the directions of Tommie Earl and Bill Schwear, who visited Simpson in his office. Testimony was unrebutted that Simpson never met nor talked with Iva Corbett, the testatrix. The will provided for a $5,000 bequest to Arley Keith and then bequeathed and devised the balance of Iva's property to Tommie Earl Schwear. This will was executed the following day while Iva was in the hospital.

Evidence introduced on behalf of defendants detailed a deteriorating relationship between Iva Corbett and Marion Tow, which defendants assert was the motivation behind execution of the challenged will. According to the testimony of Tommie Earl Schwear, Iva had a dispute with Marion Tow regarding a refund Iva had received from the property taxes which Tow had paid under the terms of the January 29, 1976, lease. Added to this disagreement was a dispute over payment for a chain which Iva had provided for a dog owned by the Tows. The dispute culminated on July 19, 1977, when Iva complained that she was locked out of a chicken house she maintained on the property. Tommie Schwear testified that Iva became so distressed at this occurrence that it resulted in chest pains for which she was hospitalized and the heart attack from which she never recovered.

The fact that a disagreement arose between Iva Corbett and Marion Tow was corroborated in some particulars by other witnesses. Lois Hampton, a friend of Iva Corbett who saw her on July 19, the day of her heart attack, testified that Iva "said something about a dog chain, but she just slouched [sic] it off." Dr. Thomas Hill, Iva's attending physician, testified that she said she "had trouble out on the farm." The testimony of the attending nurse was similar.

The bulk of the remainder of defendants' evidence concerned the preparation and execution of the challenged will. It indicated that on July 20, the morning after Iva Corbett was admitted into the hospital, Melba Schmidt, a sister-in-law of Faye Schmidt and a friend of Iva, telephoned the office of Wendell Durr, seeking to have a will drafted on Iva's behalf. She was told that Durr was out of town. Later on the same day, Tommie Earl and Bill Schwear went to the office of David Simpson. The following day, they obtained a will from his office and returned with it to the hospital.

The execution of the will on July 21 was witnessed by Dr. Thomas Hill and Nurse Sandy Connors. Neither witness was present when the will was read to Iva Corbett. Both witnesses testified that although Iva was receiving medication for her heart condition, she was mentally clear and alert at the time the will was executed.

After the conclusion of the evidence, the case was sent to the jury for deliberation along with the following Special Interrogatory proposed by defendants: "Did the Defendants, Tommie and William Schwear, exercise undue influence upon the Testatrix, Iva Corbett, so as to secure the will dated July 21, 1977 and its execution?" The jury's answer was yes, and a verdict was returned in favor of plaintiff. Defendant appealed after judgment was entered on the verdict.

Undue influence sufficient to invalidate a will is that influence which prevents the testator from exercising his own will in the disposition of his estate (Peters v. Catt (1958), 15 Ill.2d 255, 154 N.E.2d 280) or which deprives the testator of free agency and renders the will more that of another than his own. (Kelley v. First State Bank (1980), 81 Ill. App.3d 402, 401 N.E.2d 247.) The influence may be exerted at any time (Peters v. Catt) but must be directly connected with the execution of the will and operate at the time the will is made. (Kelley v. First State Bank.) The influence may be that of a ...

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