*1 predicate appears to be This “equivalent of a fee.” appointment is the doctrine. Restatement’s Scott’s and the for Professor of the exercise of Second, who take default apparent it is that those testator, power. We the donee of not from power take from the power estopped are take the exercise agree that those who his than that of take a better title one can the actions of the donee. No immaterial beneficiary are of one acquiescence the actions grantor, but binding on the others. Hartzell. and not dismissal, issue raised
Since we reverse the trial court’s order moot. amendment becomes plaintiffs concerning its refusal to allow reasons, the of the circuit court of Tazewell foregoing For the order County prejudice is reversed and dismissing plaintiff’s complaint with cause is in accordance with the views proceedings remanded for further expressed herein.
Reversed and remanded.
TRAPP, GREEN, J.,P. J., concur. SCHMIDT, Schmidt, Deceased, VIRGIL Faye Adm’r of the Estate of Plaintiff- Appellee, SCHWEAR, v. TOMMIE EARL as Ex’r Indiv. and of the Estate of Iva
Corbett, Deceased, al., Defendants-Appellants. et
Fifth District No. 79-525 27, 1981. Opinion filed *2 Carlson, City, appel- for Chapman, Chapman B. of Granite Morris lants. Lucco, Lucco, Edwardsville, appellee. Mudge, Riley William &
J. opinion Mr. PRESIDING KASSERMANdelivered JUSTICE the court: Plaintiffs and testament of Iva filed suit to set aside the last will Corbett, majority of her in which she left the July executed sister, Schwear, the defendants. estate to her Tommie Earl one of trial, 21,1977 was not the Following instrument jury found that the a'special response voluntary last will and of the decedent. testament William, husband, interrogatory, jury found that defendant and from the appeals exercised Defendant upon undue influence the testatrix. verdict, manifest (1) against contending that: the verdict evidence, weight denying defendant’s (2) the trial court erred notwithstanding the motions judgment for directed verdict and for verdict, (3) improperly instructed. jury was Corbett was
The evidence that Iva introduced trial indicated at the years will and age at the the execution of the contested time of Corbett, in 1966. died time of her death. Bill She had been married to children; a tract of couple years they lived on had no for almost death, real estate Iva continued devised the will. After her husband’s *3 was reside that Iva Corbett there alone. The further indicated Keith; brother, Arley by the oldest of five children. She was survived Schwear, sister, sister, Schmidt; who Faye Tommie Earl youngest and her in sister, Keith, Iva years predeceased was 12 junior. her Leeda Another 1977. early Schmidt, Faye brought by contesting initially action the will was death, the case Following Faye’s
who died after the suit instituted. was husband, estate. Marion was of her by Virgil, maintained as executor Tow, trial, principal the who was 38 was years old at the time was Corbett which beneficiary by Iva prior under a will executed by challenged revoked the will. (hereinafter Earl Schwear
Defendants in this are Tommie action Keith, the brother of sister and defendant) Arley referred to as and $5,000 under the terms of Keith, Arley testatrix. to receive who was will, in the case. challenged part take an active did not Corbett, were by Iva wills, executed Three were two of which that the first will was discloses placed The evidence evidence at trial. Durr, an by Wendell 1976, prepared executed was January on prepared such will was Edwardsville testified attorney. Mr. Durr directed that the will alone. pursuant to the Iva Corbett directions of personal Faye property equally of Iva Corbett be divided between real become Schmidt and Tommie Earl and that the estate Schwear attorney Durr at property A prepared Marion Tow. lease was also day. This request executed the same Iva Corbett and was Corbett, except instrument leased all of the of Iva property real residence, pay that he years, provided to Marion for of 30 period Tow Mr. Durr taxes on the property. prepared Neither the will nor the lease had will. been revoked of the contested time of the execution July
Iva Corbett Durr on returned to the office of Wendell accompanied and her husband. defendant Tommie Earl Schwear parties requested reciprocal pro- them. The prepared wills be for posed will of personal property Iva Corbett all Iva’s bequeathed Tommie Earl property Schwear and a life in the real devised estate Schwear, Tommie Earl with the to Marion Neither remainder Tow. prepared will was reciprocal Iva Corbett nor the will of the Schwears ever executed. 20, 1977, by
The contested prepared July will of Iva was on Corbett Simpson, David attorney. Simpson did meet or Edwardsville Mr. speak with Mrs. given Corbett prepared but the will from the instructions him by Schwear, Tommie Earl his office. personally and Bill visited $5,000 brother, Keith, This bequeathed will and the Arley to Iva’s remainder of personal Iva’s real Earl Schwear. property to Tommie 21, 1977,
The will prepared by Simpson July Mr. executed on while Iva Corbett patient was a the intensive care unit of Oliver C. Hospital. Connors, R.N., Anderson Dr. Sandy Tom Hill and were witnesses to the will, Following execution will. execution 28,1977. later, remained the hospital, where she died one week on This will subsequently probate September 1977. was admitted to on trial, At testimony presented plaintiff that for on behalf of established many years a close Corbett and relationship had existed between Iva Tow, 29,1976 Marion January devisee of the real will. property under the Tow had moved in his teens. to Illinois from Oklahoma while he was During this period helped he Corbett Bill Corbett with chores property; years spending when Tow returned after three Army, again he helped Bill maintain property. Corbett
The relationship between Iva Marion Tow continued Corbett and after the years death of Bill during Corbett. Tow testified through property. he He also old cars the Corbett removed *4 barn, fences, built a He part property. rebuilt of the relandscaped and 29, pursuant January also stated the paid property that he taxes the 1976, lease. trial,
At the time had three Marion Tow was married and Corbett Testimony relationship that between Iva the children. indicated testified and like and son. Friends of Iva Marion was that of mother anything had affectionately she as kid” and never referred Marion “the the kept the property, but kind for him. The words Tows maintained mended, their weeds cut Iva from brought produce and fences and garden. the Testimony friends indicated that warm of 1977, before Iva’s through May continued at least two months end of death. as testify Earl Bill Schwear plaintiff called Tommie and (Ill. Stat. Act Rev.
adverse witnesses under section 60 of Civil Practice 1979, 110, Earl had par. testimony ch. Tommie 60). Their revealed that Iva, husband, Bill, sister, during period lived with Iva’s her older Bill Following marriage to Tommie’s 1940’s. her early childhood in the Schwear, her husband in and she and Tommie moved from Illinois During not this absence permanently did return to the until 1972. area all but lost Faye Schwears with Schmidt maintained communication fact, Bill contact not aware of they with Iva In did become Corbett. Corbett’s in death 1966 until his funeral. after
From in until death the return to Illinois Schwears sister, did Keith, Iva the Schwears April Corbett’s Iva and Leeda fact, they not have testified that relationship. a close two friends of Iva early ignore Tommie intentionally attempt observed Iva avoid and However, Keith of Leeda year of Iva’s death. after death often early Iva closer. The Schwears and Tommie became much provided Tommie transportation performed for Iva and other services. during great deal period, testified that this Iva three-month trust and confidence in her her both husband. Durr, 6,1977,
On July the office of Wendell the Schwears took Iva to having her drafted. attorney, purpose reciprocal for the wills their wills requested, presence, Schwears each that Mr. Durr draft Iva’s Both leaving all then Corbett. property of their first to the other and to Iva will dis- Tommie Earl and when Iva’s Bill Schwear testified that cussed, in the discussion they present participate were but did any way. Iva meeting testimony concerning Durr of Wendell testified that directly that of Mr. Durr conflicted with the Schwears. spoke will but only participated Schwears not in the discussion about Iva’s Durr family. Marion and his Mr. testified negatively to Iva about Tow leaving Bill specifically discourage Schwear tried to Iva Durr farm to Marion the Schwears Iva what Tow reminded “piddly disputes.” Durr that he believed characterized testified Schwears tried to influence Iva this Durr that when meeting. concluded upon devising subject Tow to a property insisted real to Marion Schwears, they life estate to the Schwears had failed. felt
341 preparation The plaintiff presented testimony concerning further 21, will, prepared of challenged on 1977. The will was July executed 20, 1977, July attorney, on exclu- by Simpson, David an Edwardsville Schwear, sively from Bill who visited the directions of Tommie Earl and Simpson his met Testimony Simpson office. was that never unrebutted $5,000 Corbett, nor talked provided with Iva The will for a the testatrix. bequest Arley balance of bequeathed Keith and then and devised the Iva’s property to will executed Tommie Earl Schwear. This was following day was in the hospital. while Iva deteriorating
Evidence introduced on detailed a behalf of defendants Tow, relationship between defendants Iva Corbett and Marion which was will. challenged assert the motivation behind execution of Schwear, dispute According testimony to the had a of Tommie Earl Iva with Marion regarding property Tow a had from the refund Iva received 29,1976, taxes which lease. paid January Tow had the terms of the under disagreement Added to this a dispute payment was over for chain which a provided Iva had dog for a The culminated dispute owned the Tows. 19, July on a complained when Iva was out of she locked chicken house she maintained on the Schwear testified property. Tommie that Iva became in chest so distressed at this that it resulted occurrence pains for hospitalized which she was she the heart attack which never recovered. disagreement
The fact that a and Marion arose between Iva Corbett was Tow Lois particulars by corroborated other some witnesses. Hampton, a July day friend of Iva Corbett who saw her on attack, chain, heart something dog testified that Iva a but she “said about just Hill, attending physician, slouched it Dr. off.” Thomas Iva’s [sic] testimony testified that she said she “had on the farm.” The trouble out the attending nurse was similar. bulk concerned remainder defendants’ evidence
preparation July and execution of will. It indicated challenged morning hospital, Melba after was into the Iva Corbett admitted Schmidt, Iva, telephoned sister-in-law of and a friend of Faye Schmidt Durr, the office of seeking Wendell Iva’s behalf. to have will drafted on She was told that day, Durr was Tommie out of town. Later on same Earl and Bill following Schwear Simpson. went to David the office of day, they obtained a will with it to the from his office and returned hospital.
The execution Dr. of the witnessed Thomas July will on 21 was Hill and Nurse Sandy present when the will Connors. Neither witness was was read to although Iva Corbett. Both testified Iva witnesses receiving condition, medication mentally for her she was clear and heart alert at the time the will was executed. evidence, sent to the the case was
After conclusion Interrogatory proposed along following Special with the deliberation Schwear, Defendants, exercise “Did the Tommie and William defendants: Testatrix, Corbett, will so as secure the upon undue influence yes, and jury’s dated and its answer was execution?” after appealed plaintiff. verdict was returned favor of Defendant judgment was on the verdict. entered a will is influence which
Undue influence sufficient invalidate his exercising disposition in the prevents the testator from his own will (Peters 280) or v. Catt which (1958), estate Ill. 2d deprives the will more that agency the testator of and renders free (Kelley State Bank 81 Ill. First another than his own. (Peters 402, 401 any time The influence be exerted *6 Catt) will the and directly but must with execution of be connected the Bank.) (Kelley v. First State operate at the time the will is made. a spouse as may person, a third such the be that of Swenson v. Wintercorn as beneficiary, well that of direct beneficiaries. 88, (1968), 92 Ill. 91. App. 2d 234 N.E.2d instances, that presumption In a certain law will raise rebuttable the fiduciary a will influence. Where the was executed as result of undue a a who receives and the devisee exists between the testator will, dependent the the testator is substantial benefit from and where the trust and reposes and the testator party the devisee the dominant and devisee, preparation its confidence and where the will is written or the devisee, the prima procured facts by proof that these establishes facie charge of undue influence that the the will was the result execution of Veronico (Peters v. In re Estate Catt; beneficiary. exercised that Further, and 379, age old (1979), 78 Ill. 396 N.E.2d App. 3d may be is circumstance which disability of the testator a material Scoyk Van Mitchell v. considered on the issue of undue influence. Cf. 160, 115 Sulzberger Sulzberger v. 226; (1939), 372 (1953), 1 Ill. 2d N.E.2d Ill. 46. outset,
At (1) the that: the trial court appeal defendants contend on for erred in and denying defendants’ motions for a directed verdict contrary to judgment verdict, (2) and the verdict was notwithstanding the of these the manifest We find that neither weight of the evidence. contentions has merit. this statutory
While motions for special proceeding, a defendants’ are judgment directed verdict and for the verdict a notwithstanding (Peters v. governed same apply the standards which in actions at law. Wintercorn.) Catt: Swenson v. granted only Either should be motion evidence, where all the in its most favorable to aspect when viewed contestants, contrary so no overwhelmingly that favors defendant (Pedrick & Eastern v. Peoria verdict on evidence stand. based could Basich 504; In re Estate R.R. Co. Ill. 2d 229 N.E.2d Wintercorn.) On v. 1182; Swenson (1979), 79 Ill. review, its on the evidence judgment this court not substitute possible are of the trier inferences of the facts. Where reasonable several those accept conflicting obligated court testimony, a of review State Bank. finding. Kelley First support which trial level We plaintiff conclude that bar has introduced evidence the case at influence, creating sufficient thus prima to establish a case of facie as a result of rebuttable was executed decedent’s will undue influence.
A below is Swenson Winter similar case relied parties There, testatrix, corn. suit was filed set the will of who was aside widow with plaintiff nephew no children. The her and defendant were niece, and respectively. February indicated that in will, testatrix executed a leaving property one-half of her defendant later, one-quarter and plaintiff years each to another niece. Two finances, after the testatrix began having handling her difficulty financial August advisor told the defendant of her condition. defendant and her home. helped husband move their testatrix into opened defendant then joint checking with the testatrix account a safety deposit shared arrangements box Subsequently, with her. were made for an attorney meeting, to come to defendant’s home. At the testatrix, the attorney, testa and defendant’s husband discussed the plans. trial, trix’s estate At attorney specifically testified he remembered talking defendant’s husband will decedent about her it”; estate and urging however, her that at he get “she should could remember whether such remark meeting was made this on some other occasion. The meeting resulted and execution of preparation *7 will, a trust and be providing upon that her death her would estate niece, $2500 distributed as $2500 plaintiff, follows: to a to and the balance to the defendant.
After testatrix, the of death the the brought contesting an action was will and agreement trust executed the testatrix. A verdict was returned in and, favor of the in jury contestant special interrogatories, answer to the found that the execution procured through of both instruments was influence. On appeal, (1) the in defendant contended that the court erred denying motions notwithstanding for judgment directed verdict and for verdict; (2) the against weight the verdict was the the manifest evidence; (3) improperly the are instructed. The same issues raised in the instant case. Swenson, court in in addressing question the whether a
fiduciary existed, relationship stated: special confidence where there is a relationship exists
“[S]uch confidence, one, in in must act by reason of such good regard the good conscience and faith and with due to may It exist as a person reposing interests of the such confidence. attorney-client, matter law trustee- guardian-ward, between like, more beneficiary, or it be the result of a informal the in social, origin. relationship moral, personal domestic or its even — as a matter of relationship Where not exist the does [Citations.] law, clear, proof strong, unequiv convincing, the must and so be ocal, and as to lead to but one conclusion. unmistakable [Cita (Swenson, 88, 100, App. 92 Ill. 2d tions.]” Swenson court the supported at trial found that evidence adduced finding fiduciary of a relationship. Swenson.
The instant similar to For three months factually case prior death, following to Iva Corbett’s the of a close associa- resumption Schwear, tion with became Iva’s Tommie Earl Tommie and her husband main Wendell transportation. parties source of When the to Durr’s went 6,1977, wills, office July in their discussions with prepare order to agreed prepare in to attorney presence, they were held each other’s reciprocal of Iva’s will. wills. The also was made executor defendant Furthermore, reposed trust and defendant testified that Iva herself the existence of a ample confidence her. There is evidence establish relationship. fiduciary “* ** However, though a fidu Swenson the court in noted: even ciary may exist, also must been party the dominant have will, its procuring participated instrumental or the execution preparation undue influence and execution 88, 100, (Swenson, 91, 97.) In instant arise.” 92 Ill. case, meeting with defendants assert sought that Iva Corbett her from her will. Faye own Schmidt attorney order to exclude true, Regardless however, indicates the evidence of whether not this expressed a reciprocal the Schwears wills. When encouraged Tow, reminded her of realty desire Bill Schwear to leave the Marion will. influence the disagreements attempt in an indirect with Tow ; „Later, attorney, directed the Schwears themselves contacted different ,him will, with the will to preparing challenged and returned contact with -hospital. attorney personal It is unrebutted this no had acting as Iva’s they argue While the were Corbett. defendants ..Iya^ preparation procured amply they the evidence establishes ..agept, the will- ..of fiduciary aof establishing existence addition to the , procurement dependent roles and and dominant relationship, The will shown. the will are both preparation and execution of *8 substantial by discloses that the defendant was to receive far the most Further, benefit from the will’s defendant admits execution. decedent These factors are trust her and her husband. sufficient are prima facie to establish a case of undue influence and require sufficient verdict to the denial of defendant’s motions for directed v. Peoria & Pedrick judgment notwithstanding for verdict. Eastern Co. R.R. the pre tends to rebut presented by the defendants
sumption urge testimony regard of undue that the influence. Defendants ing the reconciliation and the defendant and the between the testatrix subsequent disagreements provide between the testatrix and Marion Tow plausible a alternative reason for most of the occurrences testified to. However, factor, the credibility of witnesses is a and essential elements of the Schwears’ testimony testimony of directly were contradicted Mrs. Corbett’s attorney, Wendell Durr. It is the function of weigh Furthermore, the credibility of those witnesses. the evidence which tended to establish disagreement a between Iva Corbett and Marion Tow is not necessarily inconsistent with the exercise of undue influence on behalf of the Schwears. disagreements incidents arose from minor which would not normally anticipated be catalyst to be the for the drastic action which Iva in changing Corbett took Perhaps will. her actions were as much a result of “piddly the Schwears’ reminders these disputes,” as Durr, testified to they Wendell as were a result of the disputes case, themselves. If such was the undue influence would also have been established.
Moreover, bar, the case at normally specific absent evidence of conduct constituting testimony presented. influence was Wendell 6,1977, Durr regarding if will conference of believed jury, proof any constituted upon of undue influence without reliance presumption. Mr. meeting Durr at such husband related that defendant’s attempted discourage leaving Iva Corbett her farm to Marion Tow. Undue persons be the result of third activities of well as a Therefore, result of actions of direct beneficiaries. insofar as Mr. Schwear may have been influencing instrumental in the decedent to favor wife, his his activity may to his wife. Swenson v. Wintercorn. imputed be
Furthermore, if present the case fiduciary relationship were bar, the evidence is influence. presumption sufficient of undue to create Where procures benefiting one himself largely the execution of a will the detriment a testator having bounty of others claim to the equal disease, he is infirm arises that age, due to or sickness exercised undue influence. Swenson Wintercorn. Pedrick,
Under the test have outlined in that it would we conclude been error for the trial court to have directed a verdict for defendant have rendered a judgment notwithstanding defendant the verdict. In addition, we conclude that the verdict palpably contrary was not to the weight of the evidence.
Finally, defendant instructing contends that the trial court erred jury. The two instructions complained applicable proof of are to the *9 of undue influence in will contest cases.
One instruction, of the challenged plaintiff’s instruction is a Instruction, Civil, modification of Illinois Jury (2d Pattern No. 200.04 ed. 1971) (hereinafter case, cited as IPI Civil). Applied the instant IPI Civil 200.04, modification, No. provide without substantially would as follows: plaintiff
“The ground establish undue influence as a invalidity in ways. two
First, may he proof specific alleged introduce conduct constitute undue influence.
Second, he may ground establish undue influence as a invalidity by proving following each propositions:
1. That Iva Corbett reposed trust and confidence in William Schwear and Tommie Earl such an Schwear to extent that William Schwear and Tommie Earl Schwear could have exerted undue influence, term, as I Corbett; have defined that on the mind of Iva
2. That William Schwear and Tommie Earl Schwear caused the preparation of purporting the document to be the last will and Corbett; testament of Iva
3. That Tommie Earl Schwear received a substantial benefit under the terms of the document.
If you plaintiff find that the proved has undue influence conduct, specific evidence of your then verdict should be for the plaintiff.
If you propositions proved, find each of the has three been the law raises a as a the document was executed result of undue influence and your verdict should be for unless, plaintiff evidence, your from consideration of all the together with this presumption, you believe that the document was executed as the free and voluntary act of Iva Corbett.
If you plaintiff find that the proved has not undue and, specific evidence of if any propositions conduct of the three has proved, not been if you or believe all the evidence in the that, case even though proved, the three have been propositions the document voluntary was nonetheless as the free and executed Corbett, act of Iva your then verdict should be for the defendant.” The committee comments to this that it should be instruction indicate given in any case is both alleged where undue influence is and there particular evidence of and also constituting conduct undue influence the testator tending fiduciary to show a between proof of applicable and the IPI 200.03 also is beneficiary. Civil No. influence; however, there it to situations where expressly limited Further, tending is evidence the commit- fiduciary relationship. to show a “fiduciary tee explain comments to IPI Civil 200.03 that the term No. relationship” meaningful “it not used because is more instructions state IPI concept its influence.” terms of with undue connection 200.03, Comment, Civil No. (2d 1971). at 510 ed.
In bar, plaintiff’s given the case at apparently instruction reliance on the In Swenson Wintercorn. rationale of it use was made of Swen- the term “fiduciary relationship.” apparent further reliance on son, reference was also time made to enfeeblement of testatrix execution age Accordingly, of the will disease. IPI Civil reason No. 200.04 was modified given by the court as follows:
“Second, [plaintiff] may he establish undue influence ground of invalidity by proving following propositions: each
1. That Iva Corbett trust and confidence [either] William Schwear and to such an extent Tommie Earl Schwear created, fiduciary relationship was that William Schwear [a influence, and Tommie Earl could have exerted undue Schwear] *10 term, as I Corbett; have defined that the mind of or [up] on That age Iva Corbett was at the enfeebled and disease [la. e ° will; time of the execution the of *.]” Plaintiff’s instruction defining No. a non-IPI instruction the term “fiduciary relationship,” given. was also It stated:
“As to the fiduciary relationship, relationship such a exists where one, a special there is in such reposed confidence reason of confidence must act in with good good conscience and faith and regard due to the of person reposing interests the such confidence. It exist may as a attorney-client, guardian- matter of law between ward, like, trustee-beneficiary, may and it the of a the or be result social, more informal relationship moral, per- domestic or even — its origin. sonal in relationship Where the not exist as a matter does law, of proof the convincing.” must clear be and This instruction was taken in Swenson language verbatim found Wintercorn.
Supreme 110A, 239) Court Rule 239 (Ill. par. Rev. Stat. ch. provides that when the court be determines the should instructed particular subject, a an if Jury Instruction shall be used Illinois Pattern applicable an (Herbolsheimer Herbolsheimer instruction is available. modification, Ill. Because of its the trial court Civil 200.04 was apparently concluded IPI No. insufficient inaccurately to cover the it situation the instant case was war- opinion stated the law. that neither conclusion We are of the ranted. noted, arise presumption may
As we have a of undue influence where, circumstances, among fiduciary of a relation- other the existence the beneficiary. not ship is testator Whether or established between in testator is factor to considered by age enfeebled or disease is a be However, in determining that as stated presumption the should be raised. comments, not use pattern specifically the committee instruction does meaningful to state relationship” the term “it is more “fiduciary because in concept its undue influence.” terms of connection with influence, term As used in undue the context of law of stating that “fiduciary merely is an method of relationship” abbreviated reposed such beneficiary the testator trust and in the confidence extent that the caused beneficiary could have exerted which to make that was his free and disposition testator of his not property 200.04, (See 200.03, trust voluntary 200.09.) act. IPI Nos. Where Civil extent, fiduciary and confidence in to that reposed beneficiary is ascertaining relationship purposes is the existence established for undue influence. trust and are not Where confidence extent, beneficiary relationship is not such an established. pattern the extent of confidence solely instructions deal with parties’ placed beneficiary; they do focus on source of result may relationship. relationship may exist as a matter law or So the testator. from an informal or the health of enfeebled he exerted long as the where have beneficiary placed position influence, is of no such over the power the source of testator Furthermore, consequence. proof opportunity addition to influence, exert undue be before a additional evidence must introduced from undue will be raised that fact resulted the will Thus, only relationship meaningful influence. concept fiduciary “in terms itsof connection with undue influence.” “fiduciary term pattern
Since the
exclude the
explicitly
instructions
an “enfeebled
relationship,” the
that term
the reference to
addition of
testator,”
200.04,
unnecessary and constituted
totally
in IPI Civil No.
was
jurors’ attention
pattern
to focus the
error.
instruction
intended
*11
undue
relationship
and the issue of
on the connection between
and,
influence,
given,
encompassed
it
the sources
However,
trial
parties sought
which the
add
while
to
modification.
instruction
adding
court erred
IPI Civil
200.04 and
modifying
No.
harmless
was
“fiduciary
which defined
we believe
error
relationship,”
contesting jury
instructing
in the instant
An
case
case.
error
deny
as to
error
such
grounds
will is not
unless the
for reversal
Hocker
jury.
rights
substantial
the case before the
materially prejudice
321,
smith v. Cox
(1950),
407 Ill.
As we have was introduced both previously specific alleged conduct and of the elements to constitute undue influence Therefore, use of necessary presumption to raise the undue influence. IPI IPI Civil No. justified. Civil No. 200.04 was the modifications of While concise, they 200.04 did not were instruction less erroneous and made the materially necessary alter the elements raise the Additionally, influence. not have altered the modifications could portion constituting relating specific instruction acts of conduct Therefore, undue influence at IPI Civil No. all. the modifications of 200.04 prejudice jury, did not and the error materially the case before the was harmless.
Accordingly, judgment setting of the trial court aside the Corbett, influence, will hereby of Iva product as the of undue affirmed.
Affirmed.
JONES, J., concurs. HARRISON,
Mr. dissenting: JUSTICE I respectfully dissent. The majority plaintiff’s holds that instructions and 17 which were given by the trial court over For objection, defendant’s were erroneous. reasons, the following I compelled majority am from the to dissent holding that these errors of correct importance were “harmless.” “The Brown, instructions 349 Ill. Sharp was commented in the case saying: jury the court there ‘It that a must long has been the law be especially accurately instructed if the case be one where the facts are close and where a easily verdict could suit.’ This party favor either * * is very true where the (Parkin in dispute Rigdon evidence is 1 Ill. App. The evidence of the Schwears’ abuse of position their admitted of trust and confidence with the decedent was in dispute, hence examination of cursory more than the effect of the erroneous instructions is mandated. age reference instruction 17 to Iva Corbett as “enfeebled
and disease” unsupported Quite was adduced at trial. by any evidence the contrary, alert. evidence indicated that she was clear-headed By suggesting enfeebled, may decedent have been so instruction impermissibly suggested susceptible that the decedent influence. This predisposed have to find that undue *12 Appellant thereby jury influence existed. would prejudiced since evidence, have decided the facts basis material not in partially on the (Challiner but v. Smith only (1947), contained in the 396 Ill. instruction. 106, 123, this, 324.) giving Concomitant with of instruction 17 was also in error that the instruction indicated that undue influence may conduct, be by proof specific established and evidence of no specific conduct constituting concerning prof- the will influence by fered the Schwears was in introduced at trial. The will written Durr’s office was signed, never showing and there was no that the second will was factually purported prejudiced related to the last will. The instruction appellant, error, basis, by suggesting, hence was reversible without to jury ground a on If plaintiff’s any which a verdict could be returned. evidence, 200.03, instruction was by warranted IPI Civil No. and not 200.04, IPI Civil given should have been to conform with the evidence Instructions, actually Civil, jury. Compare before the Illinois Pattern No. 200.03 (2d (hereinafter 1971) Civil). No. 200.04 ed. as IPI cited defining fiduciary relationship prejudiced appel instruction also lant that the jury. instruction have misled the This non-IPI Civil instruction was apparent formulated the trial court reliance on Swenson v. Wintercorn (1968), App. 92 Ill. 2d 234 N.E.2d on which case the majority Swenson fiduciary relationship also relies. asserts that a one, “exists where is special reposed there a confidence reason confidence, of such good good must act conscience and faith and regard with due reposing such person the interests of the confidence.” (Swenson v. Wintercorn (1968), 100.) 92 Ill. 2d This somewhat court; circular supreme definition our misstates the law announced requirement definitional is that concept fiduciary relationship superiority relationship and influence result of confidence and (Wiik 158, 163, 585, 587; trust. Hagen v. Kolze (1951), 410 Ill. 101 N.E.2d Fordtran (1952), 686.) resulting 412 Ill. 107 N.E.2d Absent influence, superiority and trust the mere fact of mutual and confidence (Redmond v. Steele enough relationship. fiduciary to constitute a 602, 610, otherwise, (1955), 619.) 5 Ill. 2d 126 N.E.2d Were this even the most fiduciary casual and relationship might mundane be elevated status based on The line commonplace degree of trust and confidence. court, above, issuing consistently of cases supreme from the cited holds that superiority fiduciary relationship, position create a failing By influence must and confidence. repose result from the of trust finding of superiority prerequisites to indicate that are to a and influence exist, Swenson fiduciary misstates duty, even where trust and confidence fatally It necessarily jury law. instruction was follows defective, fiduciary find that a jury since the could have been induced to lacking. necessary existed where the therefor were elements
(Belfield 293, 311, 8 Ill. Coop appropriate instruction, 200.03, approved correctly IPI pattern Civil No. states the by indicating law if only trust and confidence are “to such extent [beneficiary’s could have exerted undue name] * 0 *,” fiduciary relationship (The is a formed. Comment IPI Civil No. 200.03 term indicates that the “instruction does not use the ‘fiduciary relationship’ meaningful concept because it is more to state that 200.03, in terms of its (IPI connection with undue influence.” Civil No. Comment, 510) (2d 1971).) “Supreme requires ed. Court Rule 239 Illinois Jury Pattern given Instructions be when the is to be instructed a subject, if applicable long instruction available. It has been and *13 will continue to be our policy require Jury the use of the Illinois Pattern Instructions unless judge, considering prevail the trial facts when ing law. finds that inaccurately (Herbol the instruction states the law.” 563, 567, sheimer v. (1977), Herbolsheimer 46 Ill. 3d 134.) Because the given jury instruction which was provide did not with the case, correct apply law to pattern to the facts of the and the rule, instruction would have appellant preju embodied the correct was diced and the decision of the trial (Belfield court should be reversed. Coop (1956), 8 Ill. 311.) attempt fiduciary duty to define this case only serves point up utilizing approved the wisdom of pattern instructions, applicable, type where so as this to avoid prejudicial confusion. addition, if properly the trial court had applied governing the law
fiduciary relationships, a directed verdict for defendant would have been only appropriate case, disposition of the since no adduced at trial to support submission of the case to the on the issue of fiduciary up relation. Although attorney the decedent draw had reciprocal defendant, wills for her and never executed. these were This evidence of the influence the attempt Schwears’ unsuccessful only decedent indicates that Schwears and between the fiduciary relationship. plaintiff’s Corbett was not a other None of evidence went to the superiority existence of and influence over the decedent, so there was no evidence before the court which tended to establish one of the plaintiff’s elements of cause of action. Defendant’s motion for a directed granted. verdict should therefore have been (Knudson 492, 499-500, Knudson 382 Ill. 46 Consequently, I would enter reverse the decision of the trial court and judgment accordingly.