234 Ill. 302 | Ill. | 1908
delivered the opinion of the court:
If it be conceded that the evidence in this record does not go to the extent of showing the absolute incapacity of Prentice to comprehend the nature and effect of executing the deed in question, it cannot be denied that it shows such debility of body and feebleness of mind as to render him an easy victim to fraud and imposition. The amended bill alleges that in order to induce Prentice to execute the deed it was wrongfully, falsely and fraudulently represented to him, on behalf of Crane, that Prentice’s sister (Mrs. Crane) had left a will devising all of her property to Crane and that such will had been inadvertently destroyed, and that such will so destroyed could be established by Crane in court but would cause him considerable trouble. The bill alleges that this representation was false and known to be false by Crane, and that the same was made with the fraudulent purpose of inducing Prentice to execute a deed conveying to Crane property valued at $14,000, the true state of the title to which was known to Crane and not known to Prentice. These allegations are all denied by appellee Crane’s answer.
As we understand appellee Crane’s position in regard to the charge of fraud and misrepresentation, it is that the burden of proof is upon appellants to establish, by a preponderance of the evidence, all of the essential elements of the charge, one of which is the falsity of the representation, and that appellants must fail in this action because it is asserted that there is no proof that the statements in Crane’s letter concerning the making and destruction of the will of Eliza A. P. Crane were untrue. A misrepresentation which will warrant a court of equity in rescinding a contract must contain the following elements: First, its form must be a statement of fact; second, it must be made for the purpose of inducing the other party to act; third, it must be untrue; fourth, the party making the statement must know or believe it to be untrue; fifth, the person to whom' it is made must believe in and rely upon the truth of the statement; sixth, the statement must be material. (Pomeroy’s Eq. sec. 876.)
Crane’s letter of December 7 purports to contain statements of fact which were material and well calculated to have a controlling influence on the mind of Prentice in deciding whether to comply with the request to make the deed. It is stated in the letter that “when I bought the lot on which my residence stands I had the deed made to Aunt Ide, she in turn making a will in which she willed everything to me.” This is, in form, a statement of facts. Crane necessarily knew whether the statements were true and Prentice did not. There is no evidence that either Prentice or his daughter had any previous knowledge concerning the deed or the will. The form of the narrative in the letter indicates that the writer assumed that the party addressed had no information on the subject of the letter. The above statements in the letter are preceded by this language: “I am sending a gentleman from my office,—Mr. Robert Stiles,—who will hand you this letter and whom I have instructed to transact the business about which I wished to see you, which is as follows.” Crane then proceeds to give a detailed account of the whole transaction regarding the deed, the will, the consultation of a lawyer, the advice of the lawyer to the effect that there was no occasion to file the will for probate “under these circumstances,” the forgetfulness of the writer about the deed being in his wife’s name, the destruction of the will, and finally the finding of the deed. The whole letter implies that the writer is opening up the subject.to one who knew nothing whatever about it. The statement that Mrs. Crane left a will naming her husband as sole beneficiary, made to this paralytic old man, who must have realized that he would soon follow her to the grave, would appeal to him with peculiar force to execute a deed which would carry out the wishes of his sister. Subsequent events show that the consequences to be expected followed. The deed was signed and the business which Crane had instructed Stiles to transact was finished. If the representations contained in this letter were false, then all the elements of a fraudulent representation are here and this deed cannot stand. Were these representations false? The law presumes in favor of their truth. Without any evidence the finding on this question must be in favor of Crane.
Where a party asks a court to believe a proposition and to base a finding thereon in his favor, the law casts the burden on him of furnishing the evidence upon which such finding can legally rest. This rule applies to cases involving a charge of fraud, against the existence of which the law raises a presumption in favor of honesty and fair dealing. Thus, the burden is upon the party who asserts that a contract or deed was obtained by fraudulent representations, or that a will was obtained by fraud or undue influence, or that property has been conveyed in fraud of creditors, to establish the charge by a preponderance of the evidence. (Jones on Evidence, sec. 190; Bowden v. Bowden, 75 111. 143.) This rule is not rendered inapplicable to the case in hand by reason of the fact that the form of the issue is negative or because the facts bearing upon the question lie peculiarly within the knowledge of Crane, although, as we shall presently see, these circumstances have an important bearing on the quantity of proof required. To prove the falsity of the representation that Mrs. Crane left a will devising her property to Crane involves the proof of a negative,^—that is, proof that Mrs. Crane left no such will.
In Anderson v. Irwin, 101 Ill. 411, this court, speaking by Mr. Justice Mullcey, announced one of the foundation principles of the law in the following words: “The law is intended to be practical in its application to the varied transactions and circumstances which go to make up the affairs of life and which are constantly giving rise to legal controversies that have to be settled in courts of justice. Indeed, most of the rules of evidence have been established with direct reference to this principle. Thus, it is a familiar rule that no evidence will be received of a. fact which, from its very nature, shows there is better evidence of such fact, without first satisfactorily accounting for the absence of the higher order of evidence,—or, more briefly, the law requires in proof of a fact the best attainable evidence. The counterpart of this rule is, the law is always satisfied where the fact sought to be established has been proven by the best 'evidence of which, in its nature, it is susceptible.”
To require appellants to prove the issue here involved, beyond a reasonable doubt or by evidence sufficient to convince the mind, would be imposing an impossible burden upon them. Under such circumstances the law is satisfied with a less quantity of proof than would be demanded under other circumstances. The rule of the common law as laid down by Greenleaf and approved by numerous decisions of this court is, that where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. This rule is applied to both civil and criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons except those who are duly licensed therefor, as for selling liquors, exercising a trade or.profession, or the like. ' Here the party, if licensed, can immediately show it without the least inconvenience, whereas if proof of the negative were required the inconvenience would be very great, (1 Greenleaf on Evidence, sec. 79; Harbaugh v. City of Monmouth, 74 Ill. 367; Weber v. Christen, 121 id. 91.) The case at bar does not fall within the above rule,, and it is only referred to to show the effect, in the cases to which it applies, the negative form of the issue may have where the facts to prove or disprove the same are peculiarly within the knowledge of the opposite party.
The effect of a negative form of issue in cases involving charges of fraud is’ not to relieve the party making such charge of the burden of introducing any proof, but the law will be satisfied with a less quantity of proof; and this is particularly so where there is the concurring circumstance of the facts being within the knowledge of the adversary party. Evidence which renders the existence of the negative probable may be sufficient in the absence of proof to the contrary. (Jones on Evidence, sec. 178.) In City of Beardstown v. City of Virginia, 76 Ill. 34, in discussing the quantity of proof required where the issue is negative, this court, on page 44, • said: “Full and conclusive proof, however, where a party has the burden of proving a negative, is not required, but even vague proof, or such as renders the existence of the negative probable, is in some cases sufficient to change the burden to the other party.—People v. Pease, 27 N. Y. 45; Commonwealth v. Bredford, 9 Metc. 268; 1 Greenleaf on Evidence, sec. 80.” This rule is again approved by this court in Vigus v. O’Bannon, 118 Ill. 334. In Behrensmeyer v. Kreitz, 135 Ill. 591, this court, speaking in reference to the presumption that an alien-born citizen has been naturalized from the fact that he has voted, on page 627 said: “But that since the presumption of the law involves the necessity of proving a negative, the difficulty of so doing requires that slight proof ought to be sufficient to shift the burden.” To the same effect are Dorsey v. Brigham, 177 Ill. 250, and Rexroth v. Schein, 206 id. 80.
By reference to the evidence in this record we find that •on December 9, 1905,-—several months after this suit was • instituted,—appellee Crane purchased from Leon H. Prentice his interest in the property in question, for which he paid him $13,999.60. The interest obtained under this deed •is the same in quantity as that which is claimed by appellants. The payment of this large sum of money for a quit- • claim deed is inconsistent with the truth of the statement in the letter that Crane’s wife had willed everything to him. It cannot be said that he paid Leon $14,000 merely to avoid a lawsuit with his wife’s relatives. As already suggested, this suit was then pending and the deed from Leon Prentice had no effect upon it. Leon Prentice was a party to this suit, and might have been made a party to a cross-bill which might have been filed by Crane for the purpose of establishing his title under a lost will. If Crane voluntarily destroyed the will, as he claims in his letter, this act would render the establishment of the will difficult, but not impossible under the law. In Redfield on Wills, (vol. 3,) in a note found on page 17, it is said: “Where a person who asks for the probate has himself destroyed the' instrument after the death of the testator, although a copy is produced, the court will require the most satisfactory evidence of all the facts necessary to be established,” citing Moore v. Whitehouse, 11 L. R. (N. S.) 458.
The jurisdiction of a probate court to establish and admit to probate lost, destroyed or suppressed wills is recognized by this court. (Beatty v. Clegg, 214 Ill. 34.) Crane’s failure to offer any proof to show the existence of a will affords a basis for the inference that no will ever existed. He claims in his letter that he destroyed the will. If this be true he must have seen the will, and examined it sufficiently at least to determine that it was a will. In addition to this, it is not unreasonable to suppose that if his wife made a will he was cognizant of the fact at the time. This inference is strengthened by the fact that he suggests the name of a lawyer, now dead, who is supposed to have written the alleged will. If a will was executed as claimed, it must have been witnessed, otherwise it would not be a will. Crane must have known who these witnesses were. He failed to call them, or suggest their names so that appellants might call them. There is not a scintilla of evidence in this entire record that has the slightest tendency to prove that any will ever, in fact, existed. Crane represents in his letter that he had voluntarily donated and distributed $40,000 to the relatives of his wife, but there is no proof in the record of such payments. Whether he made such payments or not is not of controlling importance, but it is strange that a mat-' ter of this character, which, if true, was evidently easy to show, should be left to rest on the bare assertion of Crane in this letter. He offered to testify that the statements in this letter were true. Upon objection being made the court held that he was incompetent, and this ruling is conceded to be correct by his counsel. This offer does not, in our opinion, relieve Crane from the inferences to be drawn from his failure to present other evidence in support of the truth of his representations after the evidence offered was sufficient to overcome the presumption of law that they were true and raise a reasonable probability that they were false.
Appellee Crane suggests that the case was tried on the issue of the mental capacity of Prentice, and that the issue of fraudulent representations was not made until the evidence was taken. This is true, but we fail to see how this circumstance can avail as an excuse for not offering evidence, if he could do so, to support the truth of his statements in regard to the will. Appellants certainly had the right, under the statute, to amend their bill and introduce allegations to meet the conditions of the proof after the evidence was heard. If Crane had other evidence which he desired to offer after the amendment he should have applied to the court for time in which to procure and present the same, but no application for this purpose was made. Had he made a sufficient showing the court would doubtless have given him reasonable time to offer any evidence he might be able to present, but he did not ask for time or even suggest that he could produce other evidence if time was allowed, but rested his case upon the evidence then in the record. Under these circumstances we think his situation is not any different from what it would have been had the charge of fraudulent representations been in the original bill.
We have not discussed the evidence in its direct bearing upon the issue as to the mental capacity of Prentice at the time the deed was executed and refrain from expressing any conclusion thereon. After a careful consideration of this case we have reached' the conclusion that under the evidence the charge in the bill that the execution of the quit-claim deed was procured through false and fraudulent representation is sustained.
The decree dismissing the bill is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.
Reversed and remanded.
