243 Ill. 365 | Ill. | 1909
delivered the opinion of the court:
While numerous errors are assigned on the record, but two are argued in briefs of counsel for plaintiffs in error: First, that the court erred in sustaining objections of defendants in error to the competency of Lucinda Woolley, widow of the testator, called as a witness to testify on behalf of contestants, plaintiffs in error here; and second, that the court erred in sustaining objections to the testimony offered for the purpose of proving the value of the estate left by the testator.
There is no evidence in the record tending to show that the testator was of unsound mind and memory. On the contrary, all the proof shows that he was of sound mind and memory and possessed of testamentary capacity. No proof to the contrary was offered by plaintiffs in error. Indeed, one of the things they sought to prove by the widow was that the testator was of sound mind and memory. Neither is there any evidence in the record tending to show undue influence on the part of Ernest A. Woolley, or that he resorted to any undue arts, fraudulent practices or misrepresentations in procuring the execution of the will.
Plaintiffs in error contend that as the interest of Lucinda Woolley was in favor of sustaining the will, she was a competent witness when called to testify by those attacking the will for the purpose of setting it aside. It is conceded she was not competent to testify as to any admissions or conversations of the testator, her husband, to her or to any third person in her presence. When objection was made to her testimony plaintiffs in error made an offer of what they expected to prove by her. Said offer covers three printed pages of the abstract and this opinion will not be encumbered by setting it out. We have examined and analyzed it, and are of the opinion that Lucinda Woolley was an incompetent witness as to practically all of it that was relevant and material. The important portions of the offer had reference to the relations between the testator and his son and their transactions with and conduct toward each other, and could not have been known by the witness except from conversations occurring between father and son in the presence and hearing of the witness.. The fact that she was called by the adverse party to testify against her own interest does not remove the disqualification existing at the common law and recognized by section 5 of the chapter of our statute on evidence and depositions against a wife testifying to admissions or conversations of the husband made by him to her or to third persons. (Donnan v. Donnan, 236 Ill. 341, and cases there cited; Reeves v. Herr, 59 id. 81.) The matters proposed to be proved by Lucinda Woolley as to which she may have been competent to testify and which were not proven by any other testimony were so immaterial as to render harmless the ruling of the court in refusing to permit her to testify. Where this is true a reversal would not be justified.
Plaintiffs in error introduced in evidence the inventory filed by the executor of the will of William Woolley. It showed the value of the real estate to be $24,200 and the personal property $808.25. They then offered to prove by oral testimo'ny the extent and value of the estate left by the testator. On objection being made the court inquired if it was sought to impeach the inventory in any way. Counsel replied that was not their purpose; that they offered the proof for the purpose of showing that some mistake may have been made in the inventory and for the purpose of showing the value of the estate upon the question of the inequality in the disposition of it by the will. It was not stated that it was proposed to show that the value was either less or greater than that shown by the inventory. If it was intended to prove by the witnesses that the value was less, then plaintiffs in error were ’not injured by the ruling. If it was expected that the witnesses would testify that it was of greater value than shown by the inventory and the proof was offered for that purpose, the court should have been so advised. Under such circumstances there was no error in sustaining the objection to the offered testimony. Ittner Brick Co. v. Ashby, 198 Ill. 562.
We find no error of any substantial character in the rulings of the court complained of. The plaintiffs had the benefit of whatever it may have been worth, of showing great inequality in the distribution of the estate of the testator. This, standing alone, we have repeatedly held is not a circumstance tending to show either unsoundness of mind or undue influence. The circumstances under which the will was executed, as testified to by the three witnesses to it, do not tend to show that any undue influence was operating upon the testator at the time, but, on the contrary, all that is shown by said testimony indicates that he was acting of his own free will and without any restraint. That he intended to dispose of his property in the manner he did, so far as the daughters were concerned, is shown by the fact that in 1896 he made a will exactly like the one now under consideration, except that at that time he had two sons living and they were made residuary devisees in equal shares. By that will the widow and the daughters were given the same interest in the estate that they were by the last will. One of the sons having died, the will in controversy was made and the surviving son was made the sole residuary devisee. Furthermore, two disinterested witnesses testified that in 1903 and 1904 the testator told them he had made his will and given his daughters $1000 each, and that after he and his wife died the bulk of his property would go to his son, Ernest.
We do not see how any other result could have been reached than a decree sustaining the will, and the decree of the circuit court is affirmed.
Dgcreg
