125 Ill. 430 | Ill. | 1888
delivered the opinion of the Court:
First—The material part of the testimony of Amelia Griffin, widow of George Griffin, deceased, is, that she found the deed after the death of George Griffin, among the papers that had belonged to him. This being “a fact,” in the language of the statute, “occurring after the death of such deceased person,” it is competent to prove it by her. (Rev. Stat. 1874, p. 488, secs. 1, 2.) The statement that she saw it before his death, at the time it was acknowledged, in view of the entire evidence in the case, is not very important; but we have no doubt that it also is competent. While it is true that complainant’s title was originally derived under and by virtue of the will of her deceased husband, yet that title is not here disputed. It is conceded she had title, and it is immaterial how it was acquired ; but it is contended by appellees that she subsequently conveyed it to George Griffin, while she denies that she did so, and this presents the only issue. She therefore neither sues nor defends here as conservator, executrix, administratrix, heir, legatee or devisee. (See Pigg v. Carroll, 89 Ill. 205.) The minor defendants, however, defend as heirs of George Griffin, deceased, and as to them rights she is not, in the first instance and of her own motion, a competent witness; but as against her, and on behalf of the defendants, the widow of George Griffin is a competent witness. (See Statute, supra.) And the widow of George Griffin having testified, complainant was a competent witness to testify to the same facts. See Statute, supra, exception 3.
Second—As above stated, complainant was not a competent witness, generally. She was competent to testify in rebuttal as to the same facts testified to by the widow of George Griffin, but she was not offered for that purpose.
Third—John Griffin, the husband of the complainant, by his will, devised the property in controversy, and other property, as follows: “I give and bequeath to my wife, Mary Griffin, all my personal property, after my debts are paid, for her own use forever, and the use of all my real estate during her natural life, with the same right to sell the same for her support and maintenance that I would have if living.” This invested complainant with a life estate, and a power of sale of the fee for her maintenance and support. (Funk et al. v. Eggleston et al. 92 Ill. 515.) E complainant’s deed to George Griffin was valid, it executed the power, and left no estate undisposed of. (Christy v. Pulliam, 17 Ill. 59.) But necessarily, if the deed was invalid, the remainder in fee is still in the heirs-at-law of John Griffin, deceased. Henry Griffin was one of the children and heirs-at-law of John Griffin, deceased. He was therefore directly interested in defeating this deed, and so he was incompetent as a witness against the children and heirs-at-law of George Griffin, deceased, who here defend in that capacity. See statute in relation to evidence, supra, and Comer v. Comer et al. 119 Ill. 170.
Fourth—The relation of attorney and client did not exist between complainant and Pepper at the time of the conversation testified to by him. The facts, as he states, are: George Griffin, Mary Griffin, the complainant, and John B. Hoag, brought the deed to the witness, already signed and acknowledged, and asked his opinion what was necessary to convey title to George Griffin. John B. Hoag was the nephew of complainant, but had no interest in the matter. Pepper says he was never attorney for complainant about this land, and that he was called in by George Hoag. Very clearly he was a competent witness. We held in Lynn v. Lyerle, 113 Ill. 129, where two parties go together to an attorney, and make statements to him in the presence of each other, such statements are not confidential communications, intended to be withheld from the opposite party, and there is no error in permitting the attorney to testify thereto in a suit between the parties relating to the subject matter of such communications.
Fifth—Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. (Reed et al. v. Douthit et al. 62 Ill. 348; Tunison v. Chamblin et al. 88 id. 378.) There is no evidence in this record that this deed was not delivered, but,' on the contrary, there is, in addition to this legal presumption, affirmative evidence in effect acknowledging that it had been delivered.
Sixth—The evidence to impeach a certificate of acknowledgment of a competent officer to a deed of conveyance, must be so full and satisfactory as to convince the mind that the certificate is false or forged. A mere suspicion, or even preponderance of evidence less than sufficient to establish a moral certainty to that effect, is insufficient. Fitzgerald v. Fitzgerald, 100 Ill. 386; Lickmon v. Harding, 65 id. 505; McPherson v. Sanborn, 88 id. 150; Crane v. Crane, 81 id. 165; Russell v. Theological Union, 73 id. 337; Heacock v. Lubuke, 107 id. 402; Canal and Dock Co. v. Russell, 68 id. 430; Kerr v. Russell, 69 id. 666; Watson v. Watson, 118 id. 56.
The only evidence in this record tending to question the bona fides of this deed, does not tend to prove that it was not executed, or that it was executed by mistake, but rather, if anything, to establish a secret trust. It wants much of being sufficient to warrant a decree in conformity with the prayer of the bill.
The decree is affirmed.
Decree affirmed.