158 N.E. 154 | Ill. | 1927
Upon appeal from an order of the county court of Whiteside county refusing probate of the will of Jennie Jacob the circuit court ordered the will admitted to probate, and Nelson Jacob, her husband, and Archie S. Jacob, an adopted son of the testatrix, have appealed.
The will was duly executed and attested by two witnesses in the manner required by law, on July 25, 1925, *463 and the appellants do not question the sufficiency of the evidence to sustain the order appealed from in these particulars. Their appeal is based upon the proposition that on the application to admit a will to probate the question is whether the instrument offered was executed in accordance with the requirements of section 2 of the act concerning wills, and whether or not the testatrix was of sound mind and memory was of no importance; that no matter how insane she may have been at the time of executing the will, if the statute in regard to its execution has been complied with the instrument would be entitled to probate.
The attesting witnesses were two friends of the testatrix of long standing, who had lived near her, within from a mile to five or six miles, for many years and knew her well. On the hearing in the county court they testified that at the time of witnessing the instrument they did not believe the testatrix to be of sound mind, and on the hearing in the circuit court they were called by the proponents of the will and testified that it was their belief at the time of the execution of the will that testatrix was of unsound mind and it was still their belief. The proponents then called twelve other witnesses who testified in regard to the testatrix's mental condition. They included the lawyer who wrote the will, another lawyer who was called by the testatrix to her house for consultation in regard to her business, and others who had met her and conversed with her at various times, who stated their opinions, from their observation of her, that she was of sound mind. Three or four witnesses were also called and asked questions of minor importance. No evidence was offered by the contestants as to mental capacity, and none was admissible.
The appellants in their reply brief state their position to be that in order to entitle the will to probate it is necessary that the attesting witnesses swear that they believed the testatrix was of sound mind and memory, or that such facts, circumstances or admissions of the attesting witnesses shall *464
be proved as to justify the presumption that the attesting witnesses believed her to be of sound mind and memory. The proceeding for the probate of wills is entirely statutory, and the kind and quantity of evidence, the character and number of the witnesses and the facts to be proved are all specifically stated in section 2 of the act in regard to wills. Under that section it was held that the law required two witnesses to the will to prove that they were present and saw the testator sign the will or acknowledge it to be his act and deed, and that they believed him, at the time of such signing or acknowledgment, to be of sound mind and memory; that unless this was done no probate could be granted, and it was therefore manifest that no other witness could be introduced to establish what the law required should be proved by the subscribing witnesses alone. (Walker v. Walker, 2 Scam. 291; Claussenius v.Claussenius,
In 1909 the legislature removed the distinction between cases in which probate of a will had been allowed and those in which probate had been refused, by amending section 13 of the act in regard to wills so as to permit the proponents, in all cases of appeal from an order either admitting or denying probate, to introduce any evidence on the question of sanity of the testator competent to establish a will in chancery; but the section has no application to contestants, who are still limited on the subject of the testator's mental capacity to make a will to the subscribing witnesses and the cross-examination of other witnesses offered by the proponents on that subject. The rule is now clearly established in this State that on appeal from an order of the county court to the circuit court allowing or refusing probate of a will the proponents are neither limited to nor bound by the testimony of the subscribing witnesses, while the contestants are limited to the testimony of the subscribing witnesses and the cross-examination of other witnesses offered by the proponents on the question of the mental condition of the testator. In rewill of Barry,
The appellants have insisted that in view of the failure of the attesting witnesses to testify that they believed the testatrix was of sound mind at the time of the execution of the will, and of their testimony that they believed then, and believed at the time of the hearing of the application for probate of the will, that she was not of sound mind, all other questions are immaterial. They have, however, argued the evidence in regard to the testatrix's mental capacity *467 contending that it shows conclusively such lack of capacity and inference of undue influence as to require the refusal of probate of the will; but it is unnecessary to review in detail the evidence of the dozen or more witnesses, including the attesting witnesses, who testified on the question of mental capacity. The witnesses were all examined in open court. The weight to be given to their evidence depended upon their intelligence, their acquaintance with the testatrix, the frequency and intimacy of their meetings with the testatrix, their opportunities for observation, their fairness, interest and feeling, and we do not disagree with the judgment of the court. The evidence justified his order admitting the will to probate, and it is affirmed.
Order affirmed.