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Manning v. Mock







Appeal from the Circuit Court of Coles County; the Hon. Carl A. Lund, Judge, presiding.


Defendants John Mock and Doris Blomquist bring separate appeals to this court from a judgment of the circuit court of Coles County entered on a jury verdict finding the last will and testament of Madge Willis invalid. On this court's motion, the cases have been consolidated for disposition. Issues raised in both appeals include whether the trial court erred in excluding evidence under the Dead Man's Act (Ill. Rev. Stat. 1981, ch. 110, par. 8-201), whether a gerontologist may rely on nursing home records in forming an opinion on mental competency, and whether the trial court erred in refusing to admit certain exhibits. In cause No. 483-0089, defendant Blomquist has made additional arguments including whether the trial court erred in overruling motions for a directed verdict and a new trial, and for post-trial discovery. We affirm.

Madge Willis died on January 16, 1980, at the age of 85 in the Cumberland Nursing Center near Toledo, Illinois. In February of 1980, decedent's alleged last will and testament was duly admitted to probate in the circuit court of Cumberland County and letters testamentary were issued to her executor, defendant, John Mock. The alleged last will and testament of decedent was executed on December 21, 1979, and purported to divide decedent's estate among 20 churches and community organizations and 37 individuals, some of whom were or had been employees of the nursing center where Mrs. Willis had spent the latter part of her life. Under the will defendant Mock received 30 shares of stock of the First National Bank of Toledo ($3,000) and defendant Blomquist received testatrix's home and its contents. The total value of the estate for tax purposes was $362,255.51.

On July 24, 1980, plaintiffs Aleen Manning and Harry Gipson, heirs of the testatrix, filed a two-count complaint in the circuit court of Cumberland County against 77 defendants, heirs of the testatrix and legatees under the last will and testament. Count I alleged a lack of testamentary capacity and count II charged that defendant John Mock, in abuse of an alleged fiduciary relationship, procured the execution of the will to secure for himself and others associated with him a substantial benefit. Plaintiffs later amended their complaint to add a final count (count III) which alleged that decedent did not sign the will which had been admitted to probate. Defendants Mock and Bloomquist answered plaintiffs' complaint and denied the material allegations therein.

The evidence shows that testatrix and her late husband, Ben Willis, made their home in Toledo, Illinois, for most of their lives. Her late husband had been president of the First National Bank of Toledo, and decedent had been on the board of directors of the bank until her death. Testatrix was predeceased by her husband and had no children. In 1971, testatrix broke her hip and went to the nursing home where she remained until her death in 1980. While in the nursing home, testatrix managed her personal business affairs until 1979 when two powers of attorney were executed. The first authorized her sister-in-law, Betty Kelly, to manage her business affairs, and the second authorized defendant Mock. The second power of attorney was executed following Betty Kelly's death in October of 1979. At testatrix's death, she owned the largest minority block of stock of the bank, approximately 11% of all outstanding shares.

At trial, the parties introduced considerable evidence concerning the physical and mental health of testatrix while she was at the nursing home. Three of the plaintiffs' witnesses were nursing home employees who cared for testatrix during the last months of her life. One such employe, Janet Reisner, stated that during the last few months of testatrix's life she gradually went downhill, spoke less, seemed disoriented, and did not recognize her. Reisner stated that testatrix could not feed, dress, bathe, or get out of bed herself, and she never saw testatrix play games, read, or write. Reisner testified that testatrix gradually spoke less and less. During the 1979 Christmas season, Reisner showed testatrix a Christmas card, but testatrix thought it was an Easter card. Reisner opined that Madge Willis was not capable of compiling a list of people or organizations, was not of sound mind, did not know who her relatives were, and did not know the nature and extent of her property. Reisner acknowledged on cross-examination that she was not listed as a beneficiary and admitted making a note on Willis' nursing home records on December 12, 1979, that testatrix was "usually alert, communicates well, very slow at times."

Bernice Sharp, another employee of the nursing home, testified along the lines of Reisner that Madge Willis was unable to care for herself, spoke seldom, and did not read or watch television. Sharp took a leave of absence on November 1, 1979, but opined that as of then Willis was not of sound mind and memory, was incapable of knowing her relatives, and was unaware of the nature and extent of her property. Another employee, Ina Green, was called for both the plaintiffs and the defendants. Green acknowledged that she was a beneficiary under the will and was present when it was executed on December 21. She agreed that testatrix was physically unable to sign her name and that she did help testatrix sign her last name to the instrument. Green stated that testatrix "just seemed to be unable to finish," and "I put my hand over her hand and steadied it, and guided, I guess you would say." Green acknowledged that testatrix did not ask for her assistance but stated that she did not take the pen in her hand.

Glen Neal, the attorney who drafted the 1979 will, testified that he knew testatrix all his life and drafted the will from a set of instructions furnished by defendant Mock. Neal stated that he never talked to testatrix about the will.

Plaintiffs' medical expert was Dr. Richard Hamm, a gerontologist at the University of South Florida. Dr. Hamm testified that he reviewed the nursing home records of Cumberland Nursing Center and records from the Sarah Bush Lincoln Health Center, where testatrix was hospitalized, and stated that such records were of a type ordinarily used and relied upon by members of his profession. In response to a lengthy hypothetical by plaintiffs, Hamm responded that testatrix was not of sufficient judgment to sign the 1979 will, was a very dependent old lady, was absolutely reliant upon other people for all of her needs and was uncommunicative and incapable of explaining or understanding her basic needs.

In contrast to the testimony of plaintiffs' witnesses, defendants presented the testimony of numerous witnesses who opined that testatrix had the capacity to know her property and relatives and was of sound mind.

Pearl Connell, age 79, testified that she had known testatrix for 45 to 50 years and had visited her three to five times in 1979, including one visit shortly before Christmas. Connell stated that during her visit she asked testatrix if she knew who she (Connell) was and that testatrix replied that she did. On cross-examination, Connell admitted that she asked Madge Willis if she knew who she was because Connell did not know for sure.

Norma Bartelsmeyer, Lois Lashmet, and Thursa Lyons testified that they had known the testatrix for over 40 years and visited her in the nursing home in October of 1979. Based upon the October visit, Bartelsmeyer was of the opinion that testatrix was of sound mind and memory, knew her relatives and the nature and extent of her property. Lashmet stated that testatrix was active in the "science club" (beneficiary under the 1979 will), the Toledo American Legion (beneficiary), and the Kiwanis Club (beneficiary). She visited testatrix on October 18 and stated that testatrix was alert and her responses appropriate. Lashmet stated that while her husband was hospitalized in Florida in January of 1979, he received a get well card from Madge Willis. (The card was offered for admission by defendant Mock, but on motion of plaintiffs, the card was excluded for an improper foundation.) Lyons visited testatrix at the nursing home on October 18, 1979, along with Pearl Connell and Lashmet. She could not recall what was discussed or how long she was there, but opined that on that date testatrix was definitely of sound mind and memory, had the capacity to know her relatives, and the nature and extent of her property.

Mary Hunt, Una Janes, and Mary Kirkham testified that they were witnesses to the will's execution. They were in the nursing home beauty shop on December 21 and were asked by defendant Mock to witness the will. Hunt testified that when she entered the testatrix's room defendant Mock had the will in his hand and said, "[T]his is a will. Madge has read it — it has been read to her — she knows what's in it." She stated that testatrix "signed her first name and then she was so shakey, her hand was, that Mrs. Green steadied her hand so that she could sign her last name." The testimony of Hunt was corroborated by Janes and Kirkham.

Dr. Leland McNeil, testatrix's physician, stated that testatrix was sent to the nursing home in 1971 after she fractured her hip and in 1978 she had a stroke and was admitted to Sarah Bush hospital. McNeil testified that Madge Willis gradually recovered but did have speech difficulties. He stated that testatrix was somewhat obstinate and talked to people she wanted to, but often did not talk to a person if she did not like that particular person. From mid-1978 until testatrix's death, McNeil saw her every three months. Based upon his personal knowledge of her and the medical records kept by the nursing home, he was of the opinion that she was of sound mind and memory, knew the nature and extent of her property and knew her relatives. On cross-examination, McNeil acknowledged that testatrix needed assistance in feeding, was incontinent, and had arteriosclerosis. McNeal also acknowledged that nursing home records contained entries of October 31 that testatrix was "confused and disoriented," of October 23 "still very confused and disoriented," and on November 28 "is depressed, withdrawn, confused and disoriented." On redirect, he stated that he also relied upon nursing home records which showed that on September 22 "patient shows more awareness to surroundings," and on December 24 "Madge is alert."

Defendant Mock testified that he was a lifelong resident of Toledo and had been sheriff and county treasurer of Cumberland County. Presently, Mock is the president of the First National Bank of Toledo. Over objection, Mock testified that he first saw the testatrix's will on December 18, in attorney Glen Neal's office. When asked if he participated in the preparation of the will, plaintiffs objected on the basis of the Dead Man's Act. (Ill. Rev. Stat. 1981, ch. 110, par. 8-201.) The court sustained the objection, and an offer of proof was made. The substance of the offered testimony was that Mock and testatrix had several discussions concerning whom she wanted to leave her property to. According to Mock, he visited the testatrix in late November and she requested him to draft a will. Acting on this instruction, Mock went to attorney Neal's office who told him what information was needed to draft a will. Mock returned to testatrix's nursing home around December 10 or 12, discussed the disposition of her estate, and conveyed this information to Neal, who then prepared a rough draft. Mock stated that he took the rough draft back to testatrix, further discussions were had, and final changes were made and given to Neal. Neal then prepared a final copy which he gave to Mock, Mock returned to the nursing home, discussed the terms further with testatrix, and the will was then executed. The trial court sustained plaintiffs' objection, but did permit Mock to testify to the events surrounding the execution of the will from the time the witnesses were assembled in testatrix's room. Mock's testimony concerning the execution of the will was similar to that of Hunt, Kirkham, and Janes. On objection of plaintiff, Mock was also not allowed to give an opinion on the testatrix's mental capacity.

Closing arguments were made, and the jury was instructed on three distinct theories to find the will invalid: (1) lack of testamentary capacity, (2) undue influence, or (3) improper execution. A general verdict was returned for plaintiffs finding the alleged will to be invalid and the trial court entered judgment upon the jury's verdict.

At trial, the plaintiffs called Ina Green and attorney Glen Neal to testify concerning the preparation and execution of the will. Green stated that she witnessed the execution of the will and "steadied and guided" decedent's hand in writing her signature. Attorney Neal testified that he drafted the will from a set of instructions delivered by defendant Mock which Neal assumed was in Mock's handwriting. He testified that he never talked to the decedent but did deliver testatrix's will to defendant Mock. After delivery of the will to Mock, Neal never saw it again until Mock brought it to him to be admitted to probate.

It is the defendants' contention that the introduction of this testimony by the plaintiffs "opened the door" under the Dead Man's Act to allow Mock to testify fully in reference to his total participation in the will's preparation and execution. Defendants argue that the conversations with the decedent and Mock commencing in late November or early December and culminating in the execution of the will on December 21 were an integral part of the event testified to by Ina Green on behalf of the plaintiffs and should have been admissible under section 8-201(a) of the Dead Man's Act (Ill. Rev. Stat. 1981, ch. 110, par. 8-201(a)).

Section 8-201 of the Code of Civil Procedure provides in part:

"In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person ...

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