148 N.E. 274 | Ill. | 1925
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After the affirmance in the case of Wunderlich v. Buerget,
It is contended that the court erred in overruling the plea of former adjudication as to the issue of undue influence. It is argued that the charges of undue influence made in the bill were legally cognizable in the proceeding for the probate of the will, and that they were actually tried and determined adversely to the complainant in that proceeding; that they were material questions, necessarily determined, and the adjudication of them was final and conclusive of the question whenever it arose in a subsequent suit between the same parties.
The general truth of the proposition that where a fact necessarily involved in the litigation has been decided in a suit and again becomes a matter in issue between the same *406
parties in a subsequent suit the former judgment is conclusive as to such matter is well established. (Merrifield v. CanalComrs.
In Duncan v. Duncan, supra, it is said that "it is urged, and we think not without reason, that the plaintiffs in error should have been permitted to rebut the evidence of its execution by other proofs. The Statute of Wills, we think, does not prevent those having an interest in the estate to be affected by the will, from contesting its validity and due execution in the probate court." The opinion ends with the conclusion, "the plaintiffs in error, then, had the right to introduce evidence to invalidate the will in this case, and in doing so, we can perceive no reason why they might not examine the witnesses who had attested the will, as well as others." It does not appear what was the character of the evidence which it is held the plaintiffs in error had the right to introduce, but the court apparently assumed that the contestants might introduce evidence contradicting the attesting witnesses as to the execution of the will on the application for probate. Whether this is so or not, such 'conclusion seems contrary to the language of section 2, and the later decisions have restricted the admissibility of evidence of fraud, compulsion and improper conduct to cases *410 of the kind mentioned in Stuke v. Glaser, supra, and Oliver v.Oliver, supra.
In Craig v. Trotter,
From this history of the legislation on the subject of the probate of wills and a review of the decisions cited, the limited and inconclusive character of an order admitting a will to probate is apparent. The whole question of the execution, probate and contest of wills, as well as the devolution of property by will, is statutory. The legislature has provided a prompt and summary proceeding for the probate of wills, requiring the immediate production and early probate of the wills of deceased persons. No issue is required to be made between those who assert and those who deny the validity of the will, and the purpose of the proceeding, as has been stated in many cases, is merely to make a prima facie case of the execution of the will and the capacity of the testator, so that the estate may be cared for and the administration proceed, reserving to any person interested the right to contest the validity of the will at any time within a year of its probate, (O'Brien v. Bonfield, supra; Claussenius v. Claussenius, supra;Moody v. Found,
In the opinion in
The instruction to find the issue as to undue influence for the proponents was properly refused. As to Kaempfer there was no evidence which justified the submission of that question to the jury. The mere existence of a fiduciary relation does not raise a presumption of undue influence in the case of a will made by a testator in favor of the fiduciary. (Wunderlich v. Buerger, supra.) In such case the actual exercise of undue influence operating at the time of the execution of the will must be shown. There is no such evidence. Doubtless the feeling of the testatrix for Kaempfer was such that he might have influenced her in the making of her will, but there is no evidence that he made any effort to do so or any suggestion as to any provision of her will. If his influence, alone, were to be considered the instruction should have been given, but Wunderlich also was included in its terms, and with him another element enters into the case. He prepared the will and received a substantial benefit from it, and we held on the appeal from the probate that these facts, unexplained, because of the legal presumption, sustained the charge that the will was procured by his undue influence. True, we also held that the circuit court was justified in holding that the presumption of undue influence had been overcome, but that was upon a consideration of all the evidence in the case. The motion we are now reviewing is based only on the evidence favorable to the contestant. All the explanatory evidence in the proponents' favor must be excluded, and we are bound, when that is done, to adhere to our judgment in the previous case that there was evidence which, without the proponents' explanatory evidence, justified the submission of the cause to the jury. Since there was this evidence of undue influence *414 the instruction for the proponents on this issue was properly refused.
It is argued that where both mental incompetency and undue influence are charged, a decree will not be reversed for an erroneous refusal to take from the jury one of the issues which there is no evidence to sustain if there is evidence to support the other charge. (Holland v. People's Bank,
2. "The court instructs the jury that while it is true that a person may be so diseased mentally as not to be of sound mind, yet he might possess what the law terms a 'disposing mind,' that is the mental capacity to know and understand what disposition he may wish to make of his property and upon whom he will bestow his bounty. It is a rule of law, that a person who is capable of transacting ordinary business is also capable of making a valid will. You are instructed that the mental illness or disturbance or mental decline which incapacitates a person from making a will must be of that character which renders him incapable of understanding the effect and consequences of his acts. A test you should recognize is, the party must be capable of acting rationally in the ordinary affairs of life so that he may comprehend what disposition he may wish to make of his property and be able to select the subjects of his bounty. Nothing more is required."
5. "The court instructs the jury that while capacity to transact the ordinary business of life also shows testamentary capacity, the real question submitted to you is not whether Mrs. Boerner had sufficient mental capacity to comprehend and transact ordinary business, but whether she did at the time of making the instrument purporting to be her will, have such mind and memory as enabled her to understand the particular business in which she was then engaged. If she did, and if she was able to remember who were the natural objects of her bounty, and to recall to mind her property, and make disposition of it understandingly, according to some purpose or plan formed in her mind, then she was possessed of testamentary capacity and with such capacity uninfluenced improperly by others, she may make valid testamentary disposition of her estate."
10. "The court instructs the jury that neither age, sickness, nor debility of body will affect capacity to make a will *416 if sufficient intelligence remains. It is enough if Mrs. Boerner possessed sufficient mental capacity to knowingly and understandingly dispose of her property by will, and if you find that she did distribute her estate to those to whom she desired it to go."
These instructions announced correct rules of law applicable to the case by which the jury should be governed if the issue of testamentary capacity was to be determined by them, yet they were refused and the jury were sent out with no guide but their own will or judgment to pass upon this issue. Moreover, on the issue of undue influence the following instruction was given at the request of appellee:
4. "You are instructed that direct evidence of undue influence in procuring the execution of a will is not required to prove the existence of such undue influence. Proof of undue influence may be made by evidence of facts from which the inference of the existence of such undue influence may naturally and reasonably be drawn and if you believe, from the evidence, that any fact or facts are proved from which the inference may fairly and reasonably be drawn that the alleged will of Henriette P.E. Boerner was procured by undue influence operating upon her at the time of the execution of the said alleged will, then and in that case it is your duty to find said alleged will is not the will of Henriette P.E. Boerner."
This instruction was given in Dowie v. Sutton,
The appellants offered in evidence the certificate of the oath of the subscribing witnesses from the files of the probate court and it was admitted in evidence, but during the reading objection was made to the following question and answer in the testimony of each of the witnesses: "Was there any fraud, duress or undue influence used to get her to sign the instrument?" "No, sir." The court sustained the objection and it is argued that this was error. It is held otherwise inAdams v. First M. E. Church,
A witness called by the proponents testified that the testatrix had told her that she wished to leave all of her property to Kaempfer and wished to turn some of it over to him in her lifetime and he would not accept it even if she willed it to him, but that later she expressed pleasure 'because Kaempfer had finally consented to take what she wished to will to him. On cross-examination the contestant asked the witness if she had not made certain answers to questions asked her on the previous trial in the circuit court, and she denied having made the answers. On re-direct examination *418 the proponents asked the witness whether on the same trial she had not made certain answers to other questions asked her, and the court sustained an objection. It was properly sustained. She had denied making the supposed contradictory answers, there was no proof that she had made them, and there was no basis for introducing the answers which the appellants' question sought to elicit.
The appellants introduced two exhibits, Nos. 205 and 207. Neither of these enclosures was in the handwriting of the testatrix and there was no proof in whose handwriting they were. There was no identification of the documents in connection with the communications with which they were offered, and the objection to them was properly sustained.
For the errors in the instructions which have been indicated the decree is reversed and the cause remanded.
Reversed and remanded.