APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. KOGUT, Judge, presiding.
JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
These appeals, consolidated for decision by this court, arise from a will contest filed by plaintiff Joan Fischer Wrigley (Joan). The proceedings involve disposition of certain specific items alleged to be part of the estate of decedent Helen A. Wrigley (decedent). In her petition to contest the will, Joan sought (1) to have a codicil to decedent's will declared null and void due to decedent's alleged lack of testamentary capacity (count I); and (2) to have inter vivos gifts, purportedly made by decedent to defendants Dorothy W. Chauncey (Dorothy) and Helen Rich Holmes (Helen) from decedent's estate, set aside due to decedent's alleged lack of donative intent (count III). *fn1 The trial court granted defendants' motion to sever for trial counts I and III. Thereafter, the claims proceeded separately. Count I gave rise to appeal No. 81-165; count III gave rise to appeal No. 81-290. We will discuss each proceeding separately, after the following brief preliminary recitation of the underlying facts of the two actions.
On March 5, 1975, decedent executed a will. (There is no dispute concerning her testamentary capacity at that time.) In the will, she bequeathed three items of jewelry (a diamond brooch, a gold wristwatch, and a pair of earrings) to her then daughter-in-law, Joan. Some six months after executing this will, on September 18, 1975, decedent suffered a stroke. During her convalescence, in late February 1976, decedent was informed that her son, defendant William Wrigley (William), was having marital problems with his wife, Joan. On April 21, 1976, decedent purportedly executed a codicil to her will which specifically and solely deleted from the will the gifts of jewelry to Joan.
In December 1976, the jewelry was given to Dorothy (the brooch and wristwatch) and Helen (the earrings), purportedly as a gift from decedent. This transfer apparently occurred in Chicago. Both Dorothy and Helen took the jewelry back to their State of residence, Arizona.
On June 27, 1977, decedent died. Her will and the codicil were admitted to probate in Illinois. William, the executor of the estate, filed an inventory of decedent's Illinois property with the court. The inventory did not list the three pieces of jewelry. On January 13, 1978, Joan filed the initial pleading which eventually resulted in these appeals.
After the trial court granted the defendants' motion to sever counts I and III for trial, which order was not thereafter objected to by Joan, count I (the codicil contest) proceeded to a jury trial. At the close of Joan's case in chief, William made a motion for a directed verdict, which was denied. The jury eventually returned a verdict for Joan. William filed a motion for judgment notwithstanding the verdict (n.o.v.) and, alternatively, a motion for new trial based on several alleged errors in evidentiary rulings by the trial court. Both motions were denied.
In appealing the outcome of count I, William contends the trial court erred (1) in failing to grant his motion for judgment n.o.v., and (2) in failing to grant his motion for a new trial. In light of the nature of these contentions, a lengthy recitation of the evidence is necessary.
W. Stirling Maxwell was called by Joan as a section 60 witness (Ill. Rev. Stat. 1979, ch. 110, par. 60), over William's objection. Maxwell had served as the Wrigley family lawyer since 1950, and since 1975 had devoted nearly all his time to Wrigley matters.
He had drafted decedent's will of 1975. In February 1976, Maxwell learned that Joan had filed suit against William, seeking to set aside an antenuptial agreement. Maxwell called upon decedent in Lake Geneva, Wisconsin, where she was convalescing from the stroke she had suffered in September 1975. Maxwell mentioned Joan's suit to decedent and asked whether she desired to eliminate the bequest to Joan from her will. Since decedent was basically unable to speak as a result of the stroke, she had not initiated the conversation. In response to Maxwell's query, decedent only nodded her head and uttered "a rather low noise."
On April 21, 1976, Maxwell brought the codicil at issue here to decedent at Lake Geneva. On the signature line, Maxwell printed decedent's name prior to her making her "mark" on the document.
The following is the signature on the codicil:
"IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal this 21st day of April, 1976.
Joan appeared as a witness on her own behalf. After decedent's stroke, while Joan was still living with William as his wife, she had discussed decedent's condition with him on several occasions. William first told Joan about the stroke about one week after it occurred. He related there had been some damage physically, but no one really knew the extent at that time. William asked Joan to keep the matter secret because decedent would not have wanted anyone to know her health status. At a later conversation, William told Joan that it was heartbreaking to watch decedent. She was making a sound similar to his sister's name (Dee Dee) "in her frustration to communicate and try to make herself understood."
On another occasion, William related that he was exhausted. Decedent had been agitated and screaming. They had tried everything to quiet her. She finally stopped screaming when the television was turned off, although William was not sure if she had stopped for that reason or because she had tired. About one month later, William told Joan he was frustrated at not being able to help decedent. They would ask decedent a question, and the manner in which she nodded her head (yes or no) did not correlate to her later reaction to their compliance with that response. At the hearing, William objected to introduction of Joan's testimony. On cross-examination, Joan stated she did not see decedent again after Christmas Day 1975. (We note that all of the conversations to which Joan testified occurred several months prior to decedent's purported execution of the codicil.)
William was called as a section 60 witness. Decedent had been hospitalized as a result of her stroke. He saw no change in her ability to communicate from September 1975 until her death. Decedent never related to him in any manner that she had deleted Joan from her will.
Ann Jugenheimer, an occupational therapist, testified for Joan. She became employed at the Rehabilitation Institute of Chicago (RIC) in April 1976. Her duties were to evaluate patients and plan treatment programs. While at RIC, she began treating decedent on July 15, 1976. (We note this is nearly three months after the purported execution of the codicil.) Jugenheimer saw decedent on a daily (weekday) basis for about 45 minutes per session. Occasionally, when observing decedent eating, she would see decedent eat with her fingers, although she also used a spoon or fork. She once saw decedent stir coffee with a knife. Jugenheimer believed decedent once mistook a hairbrush for a toothbrush, since decedent was bringing it toward her mouth.
Jugenheimer performed tests on decedent with blocks. She would put them in a pattern and ask decedent to duplicate it. Decedent could do very simple designs but had difficulty with others. Decedent was also unable to consistently match identical pictures of people, although she could do some of them. Decedent never initiated any communication with Jugenheimer. At one point, therapy had to be done in decedent's room because decedent made too much noise in the clinic, disturbing others by continually repeating "dee dee."
On cross-examination, Jugenheimer stated she had no opinion as to decedent's physical or mental condition in April through June 1976. On redirect, Jugenheimer related that based upon her observations, decedent could not understand the nature and extent of her property in July and ...