140 Ill. 649 | Ill. | 1892
delivered the opinion of the Court:
First, as to the execution of the instrument admitted to probate as the will of Joseph Robinson, deceased. There is a concurrence of the four requisites which have been held to be necessary in order to entitle a will to probate. (Canatsey v. Canatsey, 130 Ill. 397). 1. The instrument is in writing and was signed by Joseph Robinson. McClellan swears, that lie saw Robinson make his mark, and a signature is just as effective where the testator makes his mark, as where he signs his name. (Doran v. Mullen, 78 Ill. 342). 2. The instrument is attested by two credible witnesses, McClellan and Post. The subscribing, witnesses signed the instrument in the presence of Robinson and at his request, and their names are written opposite or under the word “attest.” It is not indispensable that the witnesses should subscribe any formal clause of attestation. (1 Redf. on Wills—4 ed.—page 232, sec. 6, and note 14). 3. McClellan, one of the subscribing witnesses, .swears, that he and Post, the subscribing witnesses, were present when Robinson signed the instrument, and that he, McClellan, saw Robinson sign it, and that it ivas so signed by Iiim in the presence of the two subscribing witnesses. The 4wo subscribing witnesses do not declare on oath in this ease ihat they were present and saw the testator sign the instrument in their presence, because one of them died before the will was admitted to probate in the County Court. But section 6 of the Act in regard to Wills provides, that “in all ■cases where any one * * * of the witnesses to any will '* * * shall die * * * so that his * * * testimony cannot be procured, it shall be lawful * * * to admit proof of the handwriting of any such deceased * * '* witness, * • * * and such other secondary evidence as is admissible in courts of justice to establish written contracts .generally, in similar cases.” Here, it was proven that the signature of J. S. Post, as subscribed to the instrument, was in the handwriting of said Post, and that the instrument itself was in his handwriting, and that he was present and superintended the execution of the instrument. We think that the proof required by section 6 was furnished, and that, under that •section, the will was as much entitled to probate, as though the deceased witness had been present. 4. It is proven by the testimony of McClellan that he believes Robinson to have ■been of sound mind and memory when he signed the instrument. We are of 'the opinion that the execution of the instrument was properly established by proof.
Second, it is claimed by the plaintiffs in error, that the court helow erred in admitting evidence of the declarations of the testator, made before, and subsequent to, his execution of the instrument in question. It is also claimed, that the court erred in instructing the jury that the presumption of the testator’s knowledge of the contents of the instrument arising from the fact, that he signed it, might be considered by them “in connection with all the other evidence in the case in determining the question as to whether he actually knew the contents of the paper at the time he executed it.”
The parol declarations of a testator made before or after thé execution of the will cannot be admitted for the purpose of invalidating the will. (Dickie v. Carter, 42 Ill. 376). It has been held, however, that declarations of a testator made subsequently to the execution of a will may sometimes be admitted merely for the purpose of showing his knowledge of its contents in cases where it has been charged that he was imposed upon by not being informed of such contents. (1 Redf. on Law of Wills—4 ed—page 567, chapi 10, secs. 14 and 15). In the present ease, we think that the evidence of such declarations might well havé been omitted, but we do not think that they could have done the complainants any harm. Where the execution of a will by the testator is proven, as was done in this case, in such manner as the statute prescribes, it will be presumed that the testator knew its contents. (1 Redf. on Law of Wills—4 ed—pge 567, chap. 10, sec. 14, note 61). Our statute of Wills does not require that the party executing a will shall make a declaration that it is his will. (Dickie v. Carter, supra). In this case, however, the proof does show, that the testator told McClellan he was making his will and wanted McClellan to witness it. The paper in controversy was produced to McClellan a few minutes after he was asked to go to Post’s office to witness a will. It is true, that the instrument was not read over to Robinson at the time of its execution, nor did he then formally declare in words that it was his will. But it is not necessary to prove that the testator knew the contents of the will. Such knowlege is presumed . ■from the fact of .his execution of it. (Doran v. Mullen, supra; Keithley v. Stafford, 126 Ill. 507).
In the case at bar, the complainants introduced no proof whatever to rebut the presumption of knowledge arising from. the execution of the instrument. If, therefore, the evidence of subsequent parol declarations tending to show knowledge of its contents had not been introduced, the jury would have been justified in finding that Robinson knew the contents of ■the paper from the fact that he signed it. The evidence of the declarations was merely cumulative and in aid of the presumption arising from the execution. There is no proof that any fraud or imposition was practiced upon Robinson, or that anything was done to conceal from him the nature or meaning of the instrument which he was signing. Where testimony only tends to establish what, in the absence of proof, is a legal presumption, it may be irrelevant, but it can certainly work no injury in the absence of any proof tending to rebut or overthrow such presumption. (Powell v. McCord, 121 Ill. 330; In re Will of Dorothea Bonse, 18 Brad. 433).
Third, as to the form of the instrument. “A last will and testament may be defined as the disposition of one’s property to take effect after death. ” (1 Redf. on Law of Wills,—4 ed— page 5, chap. 2, sec. 2, par. 1). The instrument in controversy is a disposition of property to take effect after death. It is testamentary in character and wholly executory. The daughter was not to have or become the owner of the estate until her father’s death. The vesting is deferred both in interest and possession until the death of the maker. The statement to McClellan, that he was making his will and the request to McClellan that he come and witness the will, made as such statement and request were only a few moments before signing the paper so as to be really a part of the res gestee, indicate that .it was Robinson’s intention to make this instrument his will. (Frew v. Clarke, 80 Penn. State Rep. 170; Johnson v. Yancey, 65 Am. Dec. 646; 20 Ga. 707; Badgley v. Votrain, 68 Ill. 25; Olney v. Howe, 89 id. 556; Roth v. Michalis, 125 id. 325; Comer v. Comer, 120 id. 420).
Fourth, the instructions given conform to the views herein expressed. The only one of the given instructions, which is complained of, has already been noticed. Counsel for plaintiffs in error urge it as error, that the court below refused to give instructions numbered 5 and 6 asked by the complainants. Upon a careful comparison of these refused instructions with those that were given, as they are set forth in the record, we find that all which is material in the former is expressed in the latter.
The decree of the Circuit Court is affirmed.
Decree affirmed.
