*1 not behalf and by and on Cherry’s Cherry agent be- that the it is claimed Cherry payment, personally, was not a compliance cause by Cherry person, paid with the of section provisions 31. an act done by whenever to be general, required
an it can individual, and is not of such a character that be done per individual whom only required son, Qui alium, an do that act may agent. per facit Habeas se. maxim in this case. The per applies facit act that the writ be unless it shall issued Corpus provides shall from the documents from the itself, appear petition thereto discharged, neither be annexed, that can party relieved. It does appear to bail nor otherwise from cannot be discharged, petition petitioner admitted to bail or otherwise relieved. there has
Since been no failure to act for perform failure to which perform claims the petitioner right , , be discharged, petition . is denied. n ±.. denied. Jretition (No. 19122.
Ralph et al. vs. B. Appellants, Maher Charles Maher . et al. Appellees
Opinion February *2 & Dow A. MacChesney, Robinson, Evans John dall, for appellants. G. Kennedy, appellees.
Archie Mr. reported opinion: Commissioner Partlow Helen Maher, their bill Appellants, Ralph the circuit court of DeKalb to contest the will county of Maher, William H. on grounds men- uncle, undue tal of the testator and influence on incapacity Maher, and Charles B. who were part Margaret E. brothers, a sister Two of the testator. and brother
sister were made the testator and certain nieces and nephews ex- all defendants but later bill, defendant to parties com- were made B. Maher and Charles cept Margaret E. the allegations An answer was filed denying plainants. verdict sustain- and a- jury the bill. There was trial by interroga- three special the will. The answered ing being the answers submitted tories appellants, exe- will was mind at the testator was of sound testament, will and that the instrument was his last cuted, influence. To of undue guilty to this court. been prosecuted review the decree an has appeal to the evidence. contrary It is decree is urged county that the testator died DeKalb evidence shows On forty-eight years. on October 15, 1923, age which he executed the will question, by October sister, he left all of his to his brother was named Maher, brother, Charles B. appellees. *3 it the testator that in making executor. The recited it and sister but was had not his other brothers forgotten as therein his desire his be distributed pro- Thomas, brothers, John, vided. He had four originally sisters, and three Katherine Charles, Margaret, and James and many years nothing and Mary. disappeared ago John been heard from him since that time. Thomas James, has testator, married and left home, leaving ap- and Mary and Katherine at home on the farm with pellees Katherine father and mother. father died 1899, mother The testator died in and the died in farm and continued to live on the until testa- appellees 27, tor’s death. None of them ever married. On January a Thomas and consideration James, 1917, Mary, conveyed to testator and all their $3000, in the of their mother and Katherine. father, terests estates Thomas and died after this filed, leaving bill was Mary who were to the children, bill. parties fell before his death tire testator down years Many his from which injured head, injury stairway tending he There was evidence claimed never recovered. head; he had that he had to show that a tumor on the which is caused by pressure epilepsy, Jacksonian brain, he had times attacks of unconsciousness. At the time his death he had heart dis- trouble, Bright’s ease he blood 15, On high pressure. September 1923, had a cerebral His hemorrhage. left side and eye bed, affected. After the attack was able to leave his was around the house and went to town. About October 5 he had a second attack. after the second attack Even was able for several to leave but he days bed, his gradually worse until his grew ten death, days later.
On October H. Judge McEwen, W. court of city DeKalb, called to the house by testator’s Charles Maher to draw the will. The testator was up time. dressed at that He explained to how Judge McEwen he wanted to of his dispose and the property, will was drawn in with accordance his directions. Two neighbors were called in witnesses. The will was read to the tes tator, who stated that it was the way wanted to dispose of his and it was property, so executed. of these wit One nesses died before trial, but Judge and the McEwen other witness testified that in their the testator on that occasion was mentally will. capable executing Dr. D. Carter, C. who had known the testator thirty thirty-five years, was called to attend him on September 15, day testator had his first stroke. He saw the testa tor at frequent intervals, almost until daily, of his day death. He testified he saw him on the day will was *4 executed and talked to him about the and that in his opinion was competent to transact business. The other witnesses testified saw the they testator after the will was and a executed or two to his day death, and that he prior was mentally competent that time to make a will. Two- had they conversations which testified to witnesses three in which illness, to his last testator some prior
with the to togo appellees. all of his property that wanted he stated testi- by called appellants. Five witnesses the time when them was limited to three of mony to express were not asked stairs. They testator fell down them all of although to his mental condition an opinion them was a him for and one of many known years, had for ap- him. The witnesses only who had treated doctor of the testator inability testified to the mental who pellants In an- never saw him. doctors, one of whom were two of them testified swer both hypothetical question make a in their was mentally incompetent facts when other them, cross-examination, will. on One the testator might into the stated were put question, briefs counsel competent. have been mentally do not claim that the testator was mentally appellants to his second on October but stroke, 5, competent prior date he claim that after that they mentally incompetent. Attention is called in the briefs and to vari arguments al statements which are ous conflicting contradictory made the witnesses for ap to have been some of leged would be served in considering No pellees. good purpose these detail. statements This court not disturb in a verdict of contested will case unless it is mani v. against weight evidence. (Voodry festly Illinois, 48; Hurley Caldwell, University v. Henline, Smith v. When the evi id. 184.) dence in case is considered as a the decree is whole, evidence but is manifestly against weight accord with it. is made that the court
Complaint improperly evidence the settlement made on January the testator and with reference to the estates of father, sister, testator’s mother and the court admitted certain conversations with the testa- improperly
107 to go that he wanted his property in which stated tor of contest where want a will his death. to appellees the men to charged, proper prove mental capacity of time length tal of the testator for a reasonable condition will to executed, both and after the time the was before of the execution gether with the circumstances attending the the the showing family relations, inequality facts of the and the facts and thereof. distribution, explanation to Under circumstances it is the competent prove some of source and extent of the the financial condition estate, the if relatives known to the advancements made testator, to of other facts which show the relation them, might Odum, distributees. Ill. (Barnes v. Petefish v. Becker, bill This was 448.) upon ground of the mental of the to testator transact incapacity It business. was not limited to the mental sub incapacity to the second of sequent stroke. The burden was proof upon to establish the mental of appellees the testa capacity tor of the were preponderance evidence, they to offer all evidence mental required in chief. capacity (Donovan Joseph’s Home, v. St. Appellees 125.) did mot know at the time offered their evidence that they the claim of to as to the mental was appellants capacity be to limited the time after it the second therefore stroke, was incumbent offer upon appellees to all this evidence chief. The settlement was agreement admissible because it showed mental of the at that capacity testator time to transact business. It was a of the part family history, had a right to know in whi.ch at their arriving verdict. It was admissible to the testator why show pre ferred in the appellees disposition his property. conversations of the testator with the various as witnesses to the disposition of his property admissible because showed that they at a time when there was no doubt to the testamentary capacity testator had made statements to these friends that he wanted to have ac- will his made testator The fact
his property. had a him before long formed ato plan cording that at show tends of paralysis stroke to understand capacity mental he had sufficient made his character kind bounty, of his objects a plan according his property and to dispose reasons For these mind. in his formed previously admitted. was properly" evidence *6 for appellees counsel that It claimed by appellants is upon commented the jury improperly in his argument the settlement If effect thereof. and the the settlement com- subject it was in evidence was properly argument The whole to the jury. the argument ment in it are sketches but brief in the record not does appear was any not think there do attention. We called to our the remarks made. in any error and ninth seventh, eighth made of the is Complaint instruc- of these on behalf of appellees. structions Each was their and it that law presumes, tions told the has arrived years that man who every to presume, duty mind and and capable is of sound memory of discretion is contrary will until the of his property by of disposing con- has been It insisted that such an instruction shown. Donovan Home, supra. demned in v. Joseph’s St. Donovan case that was, to the instruction in the objection after this it concluded by saying stating presumption a will the cast those who contest this presumption upon evidence burden of establishing greater weight to make the will was not at person seeking time of sufficient mind to make a valid which is not law. There is no such statement in instruction any inof therefore the Donovan case is complained case, There is no controlling. this case but question was executed in the will accordance with require- statutory ments. In the following where there was no such cases, an instruction controversy, similar to instructions in Acom, Har Grosh v. this case was approved. Walden, ris v. Etienne, 540; Wickes v. id. 56; Southard, Craig v. 162 id. 209.
findWe no reversible and the decree is affirmed. error, Per Curiam The : Mr. foregoing opinion reported Commissioner Partlow is as the adopted hereby court, judgment is entered accordance therewith.
Decree affirmed. (No. 19453.
Rudolph P. et al. vs. Marzano et al.— Perlman Vincent
(Albert P. Plaintiff in Mecklenberger, Receiver, Er Rudolph ror, vs. P. Defendant Perlman, Error.
Opinion February 21,