Greathouse v. VosburghGreathouse v. Vosburgh
delivered the opinion of the court:
Plaintiffs appeal directly to this court from a decree of the circuit court of Sangamon County dismissing for want of equity a suit to set aside a marriage, a will, and several deeds, on the alleged grounds of lack of mental capacity, undue influence, influence of stupefying drugs, and other reasons. A freehold being directly in issue, this appeal is properly brought direct to this court.
Proceedings on count II of the complaint to set aside the marriage and the deeds were heard by the master in chancery, who made a report finding in' favor of the defendant Vosburgh, and recommending dismissal of the suit for want of equity. This phase of the case was heard by the chancellor on exceptions to the master’s report.
By stipulation of the parties, proceedings were had on count I of the complaint to set aside the will by submitting to the chancellor for decision those parts of the evidence taken by the master which would be competent in the face of objection.
Myrtle Vosburgh, hereinafter referred to as Myrtle, married the defendant Ira Vosburgh on September' 20, 1956. One of the deeds in question was executed by Myrtle to Ira Vosburgh in fee simple on August 23, 1956. The other deeds in question were executed on September '21, 1956, and October 5, -1956, placing certain property owned by Myrtle prior to her marriage, in the names of Myrtle and Ira Vosburgh, husband and wife, as joint tenants. On October 5, 1956, the will in question was executed by Myrtle leaving everything to her husband, Ira Vosburgh. Myrtle died on January 10, 1957, at the age of'72 years, with an estate valued in excess of $100,000, consisting of
Plaintiff’s principal contention on this appeal is that Myrtle did not have mental capacity to enter into a valid marriage contract and to execute a valid deed or will, that there was a breach of fiduciary relationship and undue influence of the part of the defendant Ira Vosburgh, and that the decree of the circuit court is against the manifest weight of the evidence.
To resolve the issues in this case, it is necessary to state the facts as reflected in the testimony and evidence. Many of the facts are undisputed and will be stated substantially in chronological order, after which the testimony of the various witnesses as to mental capacity will be considered.
Myrtle, during the lifetime of her previous husband, Fred Wienold, and subsequent to his death in 1947, had acquired a substantial amount of real estate in Springfield, Illinois, an undivided interest in a farm near Flora, Illinois, and certain personal property. One of the properties was a grocery store in Springfield, next door to a barber shop where Ira Vosburgh was employed. During the lifetime of Myrtle’s former husband, the defendant Vosburgh, a bachelor, became acquainted with Mr. and Mrs. Wienold. They became good friends and this friendship with Myrtle continued after the death of Wienold.
In May of 1948 Myrtle developed cancer of the rectum and a colostomy was performed at that time. In May of 1954 she developed some bladder trouble and ulceration in her scar but nothing further until June of 1955 when the
In July, 1956, Myrtle was desirous of going home from the hospital, and Dr. Graham, her attending physician, was willing for her to do so provided arrangements could be made for someone to give her the necessary injections. Defendant Vosburgh had had experience in giving his mother shots for diabetes during her lifetime. Arrangements were made whereby Myrtle would go home and Vosburgh would look after her and give her shots as required. Thereafter Vosburgh took care of administering her shots and, commencing late in August, he began taking care of her by taking care of the cooking and cleaning and assisting her to care for her property.
Some time during the year, 1954, Myrtle herself broached the subject of marriage to Vosburgh but nothing definite was decided at that time. They continued to go around together and from time to time visited both his relatives and friends and her relatives and friends.
Commencing about a year prior to her marriage to Vosburgh Myrtle began using Charles C. McBrian, an attorney and a justice of the peace, as her lawyer. During the year preceding the marriage she was in his office at least a half dozen times. He made out landlord’s notices, handled the sale of some farm land and drew at least three wills for her before any of the transactions which are the subject matter of this lawsuit occurred. He also drew and
Prior to August 23, 1956, Myrtle informed McBrian of her intention of making a gift of some property on Cook Street to Ira Vosburgh and requested him to draw the deed, giving him the necessary information as to description, etc. He prepared this deed, which was executed by her on August 23, 1956, before McBrian as notary, and he took care of the recording of the instrument. About the same time Myrtle requested McBrian to draft a general power of attorney authorizing Ira Vosburgh to handle business matters for her. This power of attorney was prepared by McBrian and was executed on August 27, 1.956, at Mrytle’s home and acknowledged before McBrian’s private secretary.
Three or four weeks before the marriage, Myrtle came to McBrian’s office and, in private, discussed the proposed marriage with him stating that she realized the discrepancy in their ages but that she was ill and was afraid that she would become helpless and that her relatives would put her in a home but that she knew that Ira Vosburgh would take care of her. She also discussed the marriage with him by telephone. When the date of the marriage was set, Myrtle called McBrian and made the arrangements and also arranged for Vosburgh to pick him up and bring him to her home for the ceremony which was performed about 3 :oo P.M. in the presence of Henry Offer and his wife. Following the marriage ceremony refreshments of cake and coffee 'were served in the kitchen.
Prior to September 21, 1956, Myrtle had McBrian prepare certain deeds to. other real estate owned by her, so as-to place' the title in herself and Ira Vosburgh as husband, and-wife and as joint tenants. The necessary information
Prior to October 5, 1956, Myrtle again requested McBrian to prepare additional deeds conveying the balance of her real estate, except her interest in the Flora farm, to herself and Ira as joint tenants, herself furnishing the necessary information to McBrian. He prepared these deeds in like manner as the prior deeds and they were executed on October 5, 1956, before McBrian as notary and he caused them to be recorded.
Prior to October 5, 1956, Myrtle also requested McBrian to prepare her will leaving everything to her husband, Ira Vosburgh. McBrian so prepared the will and he, accompanied by Roy Hill, another Springfield attorney who had an office with McBrian for over twenty years, took the will to Myrtle’s home where it was handed to Myrtle and she read it over. McBrian then asked her if it was the way she wanted it and she replied that it was and requested McBrian and Hill to act as witnesses. The will was then executed by Myrtle and witnessed by McBrian and Roy Hill. At the time of execution of the will Ira Vosburgh was in the house and in and out of the room but neither of the witnesses to the will was able to testify whether or not he was in the room at the time the will was executed. Vosburgh himself testified that at the time he was in the kitchen and not in the presence of Myrtle.
Prior to the events above related, McBrian had done legal work for Ira Vosburgh, and had once represented Ira’s sister. He is the attorney for Ira Vosburgh as executor of the estate of Myrtle Vosburgh, deceased, and since the death
Proof was made that between July 9, 1956, and October 1, 1956, 14 vials each containing 30 ccs. of demerol, a synthetic narcotic for the relief of pain, were dispensed to Myrtle, plus 36 tablets of cod-empiral containing a half grain each of codeine. At 2 ccs. per injection, this quantity would provide 210 shots of demerol. Vosburgh still retains vials which would administer approximately 26 shots, leaving 184 shots which were administered to Myrtle. During this period Myrtle was in the hospital a total of 29 days. Thus between July 9, 1956, and October 5, 1956, the date the last instrument in question was executed, there were sixty days in which injections were administered to Myrtle at home. One hundred eighty-four shots administered over sixty days would average slightly over three shots per day.
There is no direct evidence that Myrtle was under the influence of any drug at the exact time of any of the events which are the subject matter of this lawsuit. Ira Vosburgh positively testified that the last medication to Myrtle before her marriage on September 20, 1956, was the night of September 19; that the last medication given before the execution of the deeds on September 21, 1956, was before daylight on that day; that the last medication before the execution of the deed on August 23, 1956, was the night before and that the last medication before the execution of deeds and will on October 5 was the night before.
Plaintiffs called eight witnesses, one of whom, a pharmacist, merely testified as to the quantity of demerol sold to Myrtle. Of the remaining seven witnesses, four (J. W. Greathouse, Eartha Schultz, Susan Corrie, and Gerald Hill) were parties to the suit and incompetent to testify on the will contest issue.
Greathouse testified to the fact of Myrtle visiting him
Eartha Schultz, Myrtle’s sister, testified that a month or so before the wedding Myrtle visited her in Flora and told her that Ira wanted to marry her, that Ira asked her if she was ever going to marry him, saying he was the man for her, but that Myrtle had said that he got drunk and kept her friends from her and that he was no man for Myrtle. On cross-examination the witness admitted that at no time had Ira ever kept her from visiting privately with her sister, at no time had she ever seen Ira drunk, and that he took care of Myrtle as heretofore indicated. The witness was neither asked for nor gave any opinion as to mental capacity.
Susan Corrie, Myrtle’s niece, testified that in a conversation with Ira Vosburgh in July, 1956, he told her that Myrtle was losing her mind and going crazy (which conversation was denied by Vosburgh), that Myrtle suffered a great deal of pain and when she took a shot she would seem to be stupified, and on the basis of some other contacts testified that in her opinion Myrtle was not always mentally able to transact her business due to stupifying drugs. On cross-examination, the witness admitted that the onlv times in which her aunt was incompetent to transact ordinary business was just before a shot, at which time
Gerald Hill, Myrtle’s nephew, testified that he was at Myrtle’s home for one-half hour on Saturday night, September 22, 1956, two days after the wedding and one day after certain deeds were executed, with other people present in the room, that there was casual and desultory conversation, that Myrtle was not as talkative as she ordinarily had been, and that in his opinion on that occasion she was mentally incompetent to transact- ordinary business. On cross-examination the witness further stated that he would still say that she was mentally incompetent to transact ordinary business even if, after 'September 22, 1956, Myrtle was able to go to the grocery store, select her' groceries, sign her name to checks, collect rents,- arrange for repairs • to property and give gifts to a church.
Edward Hill, father of Gerald Hill, testified that on September 13, 1956, he went to Myrtle’s home and visited for about an hour, that Myrtle was in a house dress,- had lost a lot of weight, was not well and did not converse with him, limiting the conversation to saying “Hello” and how she felt. She did recognize him and knew who he was. He testified that in his opinion she lacked mental capacity to transact ordinary business on that date.
Mary Hill, the stepmother of Gerald Hill, testified much the same as her husband, Edward, on the basis of a visit with Myrtle on September 12 and on September 13, 1956.
Plaintiffs also called Dr. James J. Graham, Myrtle’s attending physician from the time of the colostomy in 1948 up until her death. He testified as to the nature of her
The defendant called a number of witnesses. McBrian, Myrtle’s attorney, testified in detail as to his various con•ferences and conversations with Myrtle and the circumstances surrounding the execution of the deeds and will and performance of the marriage ceremony as herein-before set forth. He gave, as his opinion, that at all times on which he saw Myrtle and specifically during each and all of the events which are the subject matter of this lawsuit, Myrtle was of sound mind and capable of transacting ordinary business, and that he never saw any evidence of her taking or being under the influence of any drugs.
Roy Hill, another practicing lawyer of Springfield associated in McBrian's office, who had known Myrtle for many years and who had seen her in McBrian’s office and had talked with her by telephone and who had witnessed a previous will and was a witness to the will in question, testified that in his opinion on each and all of the occasions she was
The secretary to McBrian and Roy Hill testified to the same opinion on the basis of her participation in the preparation of the power of attorney, the deeds and wills.
Mrs. Henry Offer, who, with her husband Henry, had been a witness to the marriage ceremony, testified that she was in Myrtle’s presence before, during and after the marriage ceremony and that Myrtle appeared perfectly rational and that she saw no evidence that Myrtle was taking any medicine. In her opinion Myrtle was of sound mind and capable of transacting ordinary business at the time of her marriage. Witness’s husband, Henry Offer, died pending the lawsuit and was not available to testify.
The deputy county clerk of Sangamon County who issued the marriage license to Myrtle and Vosburgh on the morning of September 20, 1956, and obtained certain information from Myrtle in respect thereto, testified that in his opinion she was, on that day, of sound mind and capable of transacting ordinary business and also testified that Myrtle, at that time, told him she was afraid that if she became helpless her relatives would try to put her in a home where she did not want to go and that she was marrying Ira so he would take care of her.
Dr. Lando, also consulted by Myrtle in January and February of 1956, confirmed the diagnosis of cancer. He also gave her premarital blood tests on August 28 and September 17, 1956, and treated her for a finger condition in November. He testified that, in his opinion, at all times he had seen her, Myrtle was of sound mind and capable of transacting ordinary business. He also testified that at the time of premarital examination Myrtle told him in private that she did not have to marry Ira but that she wanted him to have all of her property and that by marrying him she could be sure that he would get it.
The defendant Ira Vosburgh was called by the plaintiffs to testify under section 60 of the Civil Practice Act. He corroborated the testimony of the other defense witnesses and further stated that at no time up to a couple of days before her death was Myrtle ever of insufficient mental capacity to transact ordinary business.
Defendants also had introduced in evidence a lease of property made by Myrtle on October 1, 1956, a deed dated September 21, 1956, by which Myrtle transferred title to some cemetery lots to both of their names, an advance contract for funeral arrangements made by Myrtle, and 28 cancelled checks covering the entire period in question, 8 of which were completely made out and signed by Myrtle and the rest of which were made out by someone else but signed by Myrtle.
Although the briefs of counsel have variously described this marriage as “unnatural” or “uncommon,” we believe that the marriage is more properly generally described as a marriage between a wealthy 72-year-old widow dying of cancer and a 42-year-old man who had been a family friend, who had lived in her home prior to the marriage, who had administered narcotics to her upon a doctor’s prescription and recommendation, who had performed duties for her under a general power of attorney prepared by her attorney at her request, and who had consulted with her on various business matters.
Although various cases cited by counsel and examined by the court indicate the existence of a difference in tests for competency between one entering into a marriage, one
■It is likewise recognized by counsel for both sides that where a marriage is shown the law raises a presumption of its validity, and the burden is upon the objecting party to prove its invalidity, (Flynn v. Troesch,
Since the principal discussion contained in the briefs is whether the decree of the trial court was against the manifest weight of the evidence, we must also keep in mind the principle that this court may reverse a decree where, from a consideration of the whole record, it appears that the evidence does not justify such a decision, but, as a general rule in equity cases, great weight should be attached to the findings of the chancellor and they will not be reversed unless clearly against the weight of the evidence-. (Flynn v. Troesch,
The defendant produced sixteen witnesses, including the defendant himself, each of whom expressed an opinion that Myrtle was capable of transacting ordinary business at all relevant times. Included among these witnesses of the defendant was another of Myrtle’s attending physicians; her attorney with whom she had consulted concerning the marriage, who had performed the marriage as a justice of the peace, and who had prepared the various deeds and wills at her direction; the clerk who issued the marriage license ; the friend and matron of honor who was a witness at the wedding; another lawyer who acted as a witness to the will; -the lawyer’s secretary who prepared the deeds and
From the foregoing facts it appears to us that there are only two elements from which the validity of the marriage might be questioned and those are the discrepancy in the ages of the parties to the marriage and the fact that the deceased was suffering a terminal illness from an incurable cancer at the time of the marriage. Both of these elements were present and presented to the court in the case of Flynn v. Troesch,
Plaintiffs rely to a great extent on the decisions of this court in Mitchell v. Van Scoyk,
From such proposition plaintiffs argue that the defendant Ira Vosburgh, as a fiduciary, was the dominant party in whose behalf the will was drawn and was directly connected with the making of the will, and that thereby a presumption of invalidity is established as a matter of law, which presumption the defendant has failed to overcome.
In the Van Scoyk case, upon a second trial before a jury, the issues were found against the validity of the will both upon the question of mental competence and undue influence. The evidence in the case showed that the testator
Although we are of the opinion that the statement quoted from the Van Scoyk case is a proper statement and that we properly affirmed the trial court in that case on the ground that the verdict was not manifestly against the weight of the evidence, we do not believe that such statement, applied to the facts of this case, requires a reversal of the trial court’s decree as being contrary to the manifest weight of the evidence in this case. The evidence of the defendant in this case, considered by itself, is clearly sufficient to sustain the decree, just as the evidence of the successful party in the Van Scoyk case was clearly sufficient to sustain the verdict. A presumption of undue influence in the execution of a will arises not from the fact of' a fiduciary relationship,' or of the mental condition or habits of the testator, but from the participation by the
Although in this case Ira Vosburgh bore a fiduciary relationship to the decedent, there was ample affirmative evidence, not only by the defendant himself but by the attorney for the decedent, negating his participation in procuring, the execution of the will, and it appears to be the voluntary act of the testatrix.
To establish undue influence it was incumbent upon the plaintiffs to prove not only the fiduciary relationship but participation in procuring the execution of the will, which would give rise to the presumption of the exercise, of undue influence.
As to the case of Orchardson v. Cofield,
We have also considered the various other authorities cited by the plaintiff. None of them alter the fact that the evidence in this case clearly was sufficient to sustain the decision of the trial court. Accordingly, the trial court’s decree must be affirmed.
Decree affirmed.
Mr. Justice Hershey took no part in the consideration or decision of this case.