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10/02/89 In Re Estate of John H. Miller

October 2, 1989

IN RE ESTATE OF JOHN H. MILLER, DECEASED (JOHN L. MILLER,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Plaintiff-Appellant, v.

Charles J. Miller, Defendant-Appellee)

544 N.E.2d 1279, 189 Ill. App. 3d 171, 136 Ill. Dec. 504 1989.IL.1592

Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. WOODWARD and LINDBERG, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, John L. Miller, filed a petition to contest the will of his father, John H. Miller, that was admitted to probate. Decedent's other son, Charles Miller, defendant, is executor. Plaintiff alleged (1) decedent was not of sound mind and memory when he signed the will; and (2) defendant asserted undue influence over decedent. Plaintiff's motion for a directed verdict at the close of the evidence was denied. The jury found that the will was valid, and plaintiff's motion for judgment notwithstanding the verdict or a new trial was denied.

On appeal, plaintiff raises essentially three issues: (1) whether the defendant was required under a will-contest proceeding to prove that decedent was of sound mind and memory when he signed the will; (2) whether the trial court erred in ruling that a tape recording consisting of telephone answering machine messages left by decedent was inadmissible under the Dead Man's Act (Ill. Rev. Stat. 1987, ch. 110, par. 8-201); and (3) whether the jury's verdict should be reversed because it is against the manifest weight of the evidence. We affirm.

At trial, the parties stipulated that a copy of decedent's will dated June 6, 1985, was a true and accurate copy of the last will and testament of decedent. The will left decedent's entire estate to his son, Charles, and specifically excluded plaintiff from receiving any of the estate. The will was admitted into evidence along with an attached witnesses' affidavit.

The testimony of the witnesses is summarized as follows.

Plaintiff testified that in October 1984 his father called him and left two messages on his answering machine. Up until this time he spoke with his father a couple times a year. After the phone messages in October, he spoke with his father every weekend and holidays. On April 20, 1985, he left his home in Florida to visit his father in Illinois. His father, 87 at this time, appeared weak and tired. He was forgetful and could not carry on a conversation. He had a lesion on his nose from cancer. In May 1985, plaintiff visited his father again to take him to the hospital for an operation on his nose. His father, however, refused to go to the hospital. On May 5, 1985, his father told a police officer that plaintiff had tried to kidnap him. Plaintiff said he had not tried to kidnap his father. A week later, his father called and said that his son Charles was trying to poison him by sprinkling powder in his apartment and putting toothpicks in his heels; he told him he called the fire department.

Police officer Philip Wander testified he responded to a call for assistance at decedent's residence on August 12, 1985. Decedent complained to him that his son was placing caustic material in his apartment, causing his eyes to water and causing him difficulty breathing. Wander found nothing in the apartment to cause these symptoms. He made a referral to the health and human resources department because he believed decedent was having some mental problems.

Fire Captain Charles Staffeldt testified that on August 7, 1985, he went to decedent's residence to check on a report of a smell or smoke in the residence. Decedent complained that his eyes were burning from something in his apartment. ...


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