156 N.E. 270 | Ill. | 1927
This is an appeal from a judgment of the circuit court of Cook county denying admission to probate of the alleged last will of Mary A. McGrath, executed by her on September 23, 1925. Probate of the will was denied by the probate court, and Arthur E. Landry, the executor named therein, appealed to the circuit court.
Mary A. McGrath executed a will in May, 1925, which instrument has been admitted to probate as her last will and testament. She was a married woman, but so far as the record shows had no child or children. She lived in her own building. Appellant and his wife and two university students roomed in the building also. Testatrix was ill with diabetes most of the year 1925 and was under the care of a practical nurse from April to August of that year, when she went to a hospital. She returned home from the hospital about September 18, 1925, and remaine d there until her death, which occurred October 1, 1925. The will executed by her in May, 1925, was not introduced in evidence, but from the briefs of the parties it appears to have made a different disposition of the property from the will here under consideration, which is alleged to have been executed September 23, 1925. The testatrix left real estate of the value of $14,000 and about $300 worth of personal property. It does not appear from the record who were her heirs, if she left any. The will of September 23, 1925, revokes all former wills, and, after making bequests of personalty, provides the residue of her estate to be distributed one-third to John Hanifin and two-thirds to appellant, Arthur E. Landry. Appellant was appointed executor and given power to sell the real and personal estate at private sale and distribute the proceeds. So far as the record shows, neither the devisee, Hanifin, nor appellant, Landry, was related to the testatrix. Someone, — it does not appear who, — requested William J. Flaherty, a lawyer, September 22, 1925, to go to the home of the testatrix. He *203 went to her house on that day, talked over with her the making of her will, returned to his office and dictated it to a stenographer. Next day he gave it to Herbert J. Theisen, a young lawyer employed in his office, to take to the testatrix for her to execute.
It is appellant's contention that all the statutory requirements for the execution of a valid will were complied with and that the court erred in not admitting it to probate. It is appellee's position that the proof did not show the testatrix was of sound mind when the will was executed or that she was conscious of what she was doing at the time.
The alleged will was signed by Theisen and a nurse, Lena Frederick, as witnesses. Theisen testified he was a lawyer associated with Flaherty's firm, and that he signed the will as a witness at the home of the testatrix the day it bears date. He took it to her home at the suggestion of Flaherty. Appellant was there. The testatrix was in bed. Witness told appellant he wanted to read the will, and understood him to say, "She won't know you, and it won't do any good." Then appellant took the will to the bed, held it up so the testatrix could see, and said, "Mayme, I have the will, and is it all right? Do you want to sign it?" The testatrix said, "Yes; you will have to raise me to a sitting position, though." The will was placed before her, and she was so weak appellant asked if it would be all right for her to make a cross. Witness held her elbow and steadied it and appellant held his hand over her hand. The pen was placed in her hand and appellant guided it in making the signature. Witness signed the will at the request of appellant. He could not say whether the testatrix heard appellant ask him to sign it. The nurse had signed it before witness did. Witness believed the testatrix was of sound mind at the time she signed the will because she asked to be placed in a sitting position to sign the instrument. Witness could not say whether she knew what was going on or not. She could not hold the pen without help. just as *204 witness had written the letter "H" of his name there was some commotion and the nurse yelled, "Get out!" He ran to the rear of the apartment and while out there finished signing his name. He then went back to the room and handed the will to appellant, who gave it back to witness and witness took it to his office. He was in the rear of the apartment about five minutes, during which time he heard the testatrix moaning and groaning, but when he came back all was quiet. He saw her for just a second as he handed the will through the door. When he started to sign the will in the bed-room of the testatrix she said to bring the will and she would sign it, and appellant said, "Why, Mayme, you did sign it," and after that she was speechless. Witness testified as he made the letter "H" he had his doubts. He testified the testatrix was quite sick, and he did not know what happened in her room while he was in the rear of the apartment.
Lena Frederick, the nurse who signed as a witness, testified the testatrix signed the will with assistance. They raised her up in bed and appellant took her hand and traced her name. The testatrix was very ill. When Theisen brought the will to the house appellant went to her bedside with the will and said, "Mayme, this is the will; do you want to sign it the way it was written up the other night?" and she said, "Yes." She testified the testatrix had diabetes and was practically in a coma at the time. Witness thought she was unconscious, but when spoken to directly she would answer. She said she testified on the hearing in the probate court that the testatrix had only half-minute intervals of consciousness at a time, and then the testatrix was asked if she knew what she was doing, and she said, "Yes," and when asked, "Do you want this document signed as it is? " she replied, "Yes." The testatrix did not ask witness to sign the will, but she did sign at the request of appellant. The testatrix did not read the will. She was in no condition to do so and it was not *205 read over to her. Nothing was said as to what it contained. Witness admitted testifying in the probate court that during the half-minute period when the testatrix signed the will she knew what she was talking about. Upon cross-examination witness testified she was doubtful as to whether the testatrix was of sound mind when witness signed. The testatrix was very near to a state of unconsciousness which was not exactly coma. She would go from consciousness to unconsciousness, and if spoken to responded. She corroborated Theisen's testimony as to what appellant said to the testatrix about signing the will, their raising her up in bed and appellant holding her hand and tracing her name, and that he asked both the witness and Theisen to sign as witnesses. This was about three o'clock in the afternoon. Witness came to the testatrix's room about two o'clock. The testatrix had a heart attack and witness thought she was dying. About a half hour afterwards Theisen brought the will. After the testatrix was laid down in bed she seemed unconscious of what passed on about her. Appellant held the testatrix up while witness signed, but the testatrix gave no evidence of hearing. Witness had never seen James Posey, Mrs. Thomson or Mrs. Callahan talk with the testatrix after she signed the will. After the will was signed and before her death the testatrix would answer a direct question.
Mrs. Thomson, a witness in behalf of appellant, testified she is a practical nurse and knew the testatrix for five months and worked for her as a nurse. Witness prepared her food, took care of her business and paid her taxes at her request; also at her request arranged a loan on her note. Appellant and his wife lived with the testatrix and James Posey and a man by the name of Gregory were roomers in her house. Witness called on her September 23, 1925. Mrs. Callahan told the testatrix Mrs. Thomson was there. She was half sitting up in bed. She spoke to witness, calling her by name, and witness asked her how she *206 was feeling. She said, "Not very well." That was about one o'clock in the afternoon. She had just received communion. The regular nurse then came in and made a fuss, saying the testatrix was going to die. Mrs. Landry told her not to talk so loud. They got the testatrix quiet and witness told the nurse she would leave, and it was a few minutes before two o'clock. On that day the testatrix acted like she always did and was quite herself. She was of as sound mind on September 23, 1925, as she ever had been at any time witness had been with her. Next day witness returned to the testatrix as a practical nurse, and while she was there a lady from New York, who had not seen deceased for years, came in and the testatrix shook hands with and recognized her. Her mental condition was very keen that day. She heard her tell appellant's wife she had left everything the way she wanted it, and that she owed Mrs. Thomson eight dollars. Witness testified to a circumstance occurring three days later when the testatrix's mind was sound, and that from September 23 until she died she was very keen, realizing everything.
James Posey, a student in the Chicago University, who roomed at the testatrix's house, testified he saw her when she came from the hospital and every day thereafter until she died. She always recognized him and called him "Jimmie." He told. of a circumstance occurring four or five days after she came to her home from the hospital, about his board, in which she talked intelligently. The Saturday before her death she recognized him and a school chum, calling them by name, and they had a talk and joked her about going "cabereting." They talked and laughed together half an hour. The day after the will was signed she recognized witness and told him Mrs. Thomson was back, and seemed quite cheerful. He said September 22, 23 and 24 she was of sound mind and memory.
Lillie Callahan testified she was a tenant in the testatrix's building a year and a half prior to the time she died. *207 She saw her the evening she came from the hospital and every day thereafter. She saw her on September 23 and didn't observe any difference in her after she came back from the hospital. She was the same as she always had been, mentally.
Rebecca Christy testified for proponent that she lived just back of the testatrix's house and was her tenant for a year. She talked to the testatrix after she came back from the hospital, prepared her food and would cheer her up. About September 21 she told witness she had an offer to sell her property, but the purchaser wanted to pay only $1000 down and she didn't think she ought to sell with such a small payment. Witness advised her not to, and told her to consult Laube, a real estate man. She was of sound mind September 23, 1925. Witness never saw her having a sinking spell.
Edward C. Laube testified for proponent that he lived across the alley from the testatrix and knew her for over three years. He was a witness to the will she executed in May, 1925. He saw her four or five times after she came home from the hospital and she always recognized and talked with him. Two or three days after she returned home from the hospital she consulted him about the sale of her property and said she could sell it if she would take $1000 cash. He told her not to sell at that figure. She knew what she was talking about. He saw her nearly every day. She was quite sick, but was of sound mind and memory during all that period.
We have endeavored to set out the material substance of all the testimony. The determination whether the statutory requirements for the valid execution of a will have been complied with must depend upon the evidence. The most important question is whether the deceased possessed testamentary capacity and knew and understood what she was doing when she signed the will. The instrument contained the following attestation clause: "Signed, sealed, *208
published and declared by the said Mary A. McGrath on the 23d day of September, A.D. 1925, as and for her last will and testament in the presence of the undersigned, who at her request, and in her presence and in the presence of each other, have hereunto subscribed our names as witnesses thereto." The execution of a valid will is under legislative control. The statute has defined what is necessary to accomplish that purpose, and courts cannot dispense with or add to requirements prescribed by the statute. (Hill v. Kehr,
Mere weakness from disease at the time of its execution will not render a will invalid if the mind of the person executing it is sufficiently clear that he understands what he is doing. (McCoy v. Sheehy,
The proof of the testatrix's condition at the time she signed the instrument shows she was physically very low and unable to write her name. If she was conscious of anything at all she had to be aroused to that state, and soon lapsed back to a state where she apparently did not take notice of or recognize anything. Before we would be authorized to reverse the judgment we must be able to say it was palpably against the weight of the testimony. That we cannot say, and the judgment is affirmed.
Judgment affirmed. *211