(222 111. 26)

WATERS et al. v. WATERS et al. (Supreme Court of Illinois. June 14, 1906.) 1. WILLS-VALIDITY - UNEQUAL DISTRIBU

TION.

The fact that there is an inequality in the distribution of the property of testatrix cannot of itself affect the validity of her will.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, §§ 102, 203.]

2. SAME PROBATE-ACTION TO VACATEPRIMA FACIE PROOF.

Where, in a suit to contest a will, defendants introduced in evidence the certificate of the oaths of the subscribing witnesses to the will, such certificate was prima facie proof of the validity of the will and cast the burden on contestants to establish incapacity and undue influence alleged to invalidate the same.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, § 389.]

TATRIX.

In a suit to contest a will, declarations of testatrix that she wanted to deal equally with all of her family at one time, which were in conflict with the provisions of the will by which unequal distribution of her property was made, were inadmissible on the issue of undue influence.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, 88 415-420.]

5. SAME-UNDUE INFLUENCE-INFLUENCE OBTAINED BY KINDNESS.

Undue influence sufficient to invalidate a will means influence wrongfully exerted, and does not include influence secured through affection or gained over testatrix by kindness and friendly attention to her.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, §§ 375-387.]

6. SAME-KNowledge of CONTENTS OF WILL -EVIDENCE INSTRUCTIONS-APPLICABILITY TO EVIDENCE.

-

was

In a suit to contest a will, it proved that testatrix not only executed the will, but that she understood the act she was engaged in at the time by declaring to those present that the instrument before her was her last and only will, and also indicated that her mental condition was good by asking one of the subscribing witnesses concerning the health of one of his family and expressing regret that she was keeping the other from his work by requiring him to witness her will. Held, that the evidence was sufficient to justify a presump

78 N.E.-1

tion that testatrix had knowledge of the contents of the will, and hence, in the absence of evidence to the contrary, an instruction predicated on the fact that testatrix did not know the contents of the will, and had not been informed of its provisions, was objectionable as inapplicable to the evidence.

7. WILLS-GROUNDS-ISSUES AND PROOF.

Where, in a suit to contest a will, the only grounds alleged were testamentary incapacity and undue influence, complainant could not impeach the prima facie case made by the introduction of the certificate of the oaths of the subscribing witnesses to the will, by proof that testatrix did not know the contents of the will when she signed it.

Appeal from Circuit Court, Stephenson County; R. S. Farrand, Judge.

Bill by Oliver P. Waters and others against Emma L. Waters and others. From a decree in favor of complainants, defendants appeal. Reversed and remanded.

This is a bill in chancery, brought by the appellees to contest the will of their mother, Mary Waters, late of Stephenson county. The bill was filed in the circuit court of Stephenson county by the appellees, two of the children of Mary Waters, against the other three children and the executor of the estate, as defendants. The prayer of the bill is that the will of Mary Waters, and the probate thereof, be set aside upon the alleged grounds that, at the time of the making of the will, Mary Waters was not of sound mind and memory, and that the signing of the will was procured from her by undue influence, exercised over her by her two daughters, the appellants Emma L. Waters and Lydia J. Stockberger. One of the defendants below, Carrie E. Waters, entered her appearance, but filed no answer, and default was taken against her. Answers were filed by Emma L. Waters and Lydia J. Stockberger, denying the material allegations of the bill, and an arswer was also filed by the executor, Grant Byrnes. Replications were filed to the answers by the appellees, and the cause was tried before the court and a jury. The jury rendered a verdict, finding that the instrument in evidence, purporting to be the last will and testament of Mary Waters, deceased, was not her will. Motion for new trial was overruled, exception was taken,

and a decree was entered in accordance with the verdict. The present appeal is prosecuted from such decree.

Mary Waters died, leaving a farm in Stephenson county of about 280 acres of land, a house, and lot in the village of Ridott, and personal property worth about $4,000, the value of the whole estate being about $24,000 or $25,000. The deceased was the widow of Harvey Waters, who died in the spring of 1899, having resided in Ridott about 12 years, and within a mile thereof over 50 years. She left surviving her, as her children and only heirs at law, four daughters, and one son, to wit, the appellants, Emma L. Waters, Lydia J. Stockberger, and Carrie E. Waters, and the appellees, Oliver P. Waters, and Clara McCracken. Emma L. Waters and Carrie E. Waters, the two unmarried daughters, lived with their mother for years before and up to the time of her death. Lydia J. Stockberger and her husband lived at Pecatonica, about 10 miles from Ridott. Clara McCracken, the oldest child, was about 59 years of age, and had a son 28 years old, who was one of the witnesses in this cause. She lived in Ridott, but seems to have visited or been with her mother very little. Oliver P. Waters lived in California at the time of his mother's death, and had been a resident of that state for some 10 or 12 years prior to her death. The will of Mary Waters was admitted to probate in the county court of Stephenson county, and letters testamentary were granted by that court to Grant Byrnes, the executor named in the will, a nephew of the testatrix; his mother being her sister.

By the terms of the will, after providing for the payment of her debts, the testatrix left to her daughter Emma L. Waters her residence in Ridott, with lots, barns, sheds, and everything belonging thereto, and all her personal property, consisting of beds, clothing, horses, and cattle, and all that was in and around said residence; she left to her daughter Carrie E. Waters $1,000 in money. The will provided that the farm, and all the other real estate that she might own at her demise, should be divided equally between her daughters Lydia J. Stockberger, Carrie E. Waters, and Emma L. Waters to be for all claims for services against her estate; she left to her daughter Clara McCracken the sum of $5 for all claims and services against her estate; and to her son, Oliver P. Waters, the sum of $5 for all claims and services against her estate. The will also provided that any moneys that were left after her just debts were paid should be divided equally between her daughters Lydia J. Stockberger and Emma L. Waters, and she therein stated that it was her desire that the girls should not sell the farm for some time, but collect rent as their income until sold. The will was executed on August 7, 1901, at the residence of the testatrix in Ridott, and was

apparently drawn by a justice of the peace and notary, living in Ridott, by the name of William K. McGilligan, who has since deceased, and was properly signed by the attesting witnesses. The subscribing witnesses appeared before the county court when the wil was admitted to probate, and deposed that the instrument in question was the last will of the testatrix, and that they subscribed their names thereto at the request of the testatrix, in her presence, and in the presence of each other, on August 7, 1901, and that she then and there subscribed her name thereto in their presence and declared the same to be her last will and testament; and that at the time of executing the same said testatrix was of full age, of sound mind and memory, and under no constraint.

H. C. Hyde, W. N. Cronkrite, and R. K. Walsh, for appellants. R. R. Tiffany, for appellees.

PER CURIAM. First. The will in this case is attacked upon the two alleged grounds that the testatrix, at the time of making the will, was not of sound mind and memory, and was subject to undue influence exercised over her by her daughters Emma L. Waters and Lydia J. Stockberger. After a careful examination of this record and of all the testimony in it, we are obliged to conclude that a finding that testatrix, at the time of executing the instrument in question, did not possess the requisite mental capacity to make a valid will, is against the manifest preponderance of all the evidence in this cause, and that on the other branch of the case the evidence fails to show any wrongful act on the part of the appellants Emma L. Waters and Lydia J. Stockberger, which was calculated to unduly influence the testatrix to make the disposition of her property which she did make. In finding their verdict in this case the jury must have been influenced by the consideration that the testatrix left all her property to three of her children and cut off the other two, the appellees herein, with $5 apiece. Under the law, however, if she was of sound mind and memory and acted as a free agent, she had a right to dispose of her property as she saw fit.

In Freeman v. Easly, 117 Ill. 317, 322, 7 N. E. 656, 658, we said: "It accords with common observation that in contests concerning wills, where the testator has made, or has seemingly made, an unequal or inequi table disposition of his property among those occupying the same relation to him by consanguinity or otherwise, there is a disposition in most minds to seek for a cause for holding the will invalid. The inclination in this direction that is found to exist in the minds of most, if not all, jurors, cannot always be controlled by instructing them there is no law requiring a testator, nor is he bound, to devise his property equitably or in equal proportions among his heirs. Of

course, the law is he may make such disposition of his property as he sees fit, and he may bestow his bounty where he wishes, either upon his heirs or others. While this is undoubtedly the law, the common mind is disinclined to recognize it, and jurors will too frequently seize upon any pretext for finding a verdict in accordance with what they regard as natural justice." This language was quoted with approval in the recent case of Nieman v. Schnitker, 181 Ill. 400, 55 N. E. 151, and is precisely applicable to the condition of affairs in the case at bar. The fact that there is inequality in the distribution of the property of a testator or testatrix cannot of itself have the effect of invalidating the the will. Graham v. Deuterman, 206 Ill. 378, 69 N. E. 237. Moreover, where the testator or testatrix assigns a substantial and sufficient reason for such inequality, that reason must be accepted as true when there is no evidence in the record tending to disprove it. Graham v. Deuterman, supra. In the case at bar, declarations of the deceased, Mrs. Waters, were proven to the effect that she had already sufficiently helped her son, Oliver, and her daughter Clara; nor was there any evidence, tending to disprove this reason for giving them nothing more than $5 apiece by her will.

The appellants introduced in evidence, upon the trial below, the certificate of the oaths of the subscribing witnesses to the will. That certificate was prima facie proof of the validity of the will in this proceeding, attacking the probate thereof. Consequently, the burden of proof was upon the appellees, complainants below, as the contestants of the will, to substantiate both charges; that is to say, the charge that the testatrix was not of sound mind and memory when she executed the will, and that she was under the undue influence of her two daughters above named at that time. Swearingen v. Inman, 198 III. 255, 65 N. E. 80; Johnson v. Johnson, 187 Ill. 86, 58 N. E. 237; Webster v. Yorty, 194 Ill. 408, 62 N. E. 907; Michael v. Marshall, 201 Ill. 70, 66 N. E. 273. It was incumbent upon the contestants to overcome the prima facie case, thus made through the introduction of the certificate, by a preponderance of the evidence. This they failed to do.

In addition to the certificate in question, the proponents, appellants here, produced 14 witnesses, including two physicians, who treated the testatrix in the last years of her life, a banker who did business with her, a shopkeeper or clerk with whom she traded, people who boarded at her home, neighbors and others closely associated with her; all of whom testified that, at or about the time when her will was made, her mind and memory were sound. Some of them swore that she was an unusually bright and smart woman. It is true that, during the last year or two of her life, she was not only

old, but she was feeble and sick, suffering with some kind of neuralgia in her shoulders. In order to sustain the allegation of want of mental testamentary capacity something more must be shown than mere physical suffering, disease, and old age. Woodman v. Illinois Trust & Savings Bank (Ill.) 71 N. E. 1099; Wallace v. Whitman, 201 Ill. 59, 66 N. E. 311; Schmidt v. Schmidt, 201 Ill. 191, 66 N. E. 371; Freeman v. Easly, supra. Proof, that the testatrix here was suffering otherwise than from disease and old age is wanting.

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To offset the proof introduced by the proponents of the will to the effect that the testatrix was of sound mind and memory, the contestants introduced a large number of witnesses; but an examination of the evidence of these witnesses tends in no degree to sustain the charge of a want of sound mind and memory. None of such witnesses swear that the mind of the testatrix was unsound. Lizzie Kurtz, the first witness of the contestants, said: "I saw her in 1901. I don't know what her mental condition was at that time with regard to soundness of mind. * I think she was about as well as anybody would be of her age." Mary Kurtz, the second witness of the contestants, says: "I wasn't with her enough to form any opinion as to the soundness or unsoundness of her mind and memory." Nora Geiger, the third witness of the contestants, says: "In my opinion she was sound, but I think the woman was suffering from pain, so that at times she hardly realized where she was or what she was doing. * * * I do not think she would be capable of transacting business at any time. Transacting business is work in one way. It is occupying one's time. I said I thought she was incapable of transacting business, and I do not think she did transact any business of her own. I think she was physically unable to work; that is what I mean; that she was physically unable to work." One witness for the contestants says: "I don't think she was capable of doing business successfully." Another witness says: "From what I saw of Mrs. Waters I was able to form an opinion as to whether she was able to transact the ordinary business of life. I thought she was too weak in body. Her mind was as rational as we could expect in a person of her age, who had been sick. * * She would frequently commence saying something, and then change it a little, and turn off into something else, and sometimes refer to it again as if she had not been talking about it; but nothing that I could call insane or out of her mind, only a little absent-mindedness." Many of the witnesses of the contestants expressed no opinion at all upon the question of her soundness of mind. No one of the witnesses of the contestants, so far as we have been able to ascertain from the record, swears that the testatrix was incapable of understanding the business, in which she was engaged at the

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time when she executed her will. Some of them gave it as their opinion that she was not competent to transact the ordinary business of life, but an examination of their testimony will show that they based such opinion wholly upon her physical condition as to age and sickness. Competency, however, to transact the ordinary business of life is not the test by which testamentary capacity is determined. Any one, having the mental ability to transact intelligently the ordinary business affairs of life, is capable of making a vaild will, but the converse of that proposition is not always true. This court has decided that testamentary capacity exists, if the testator, at the time of making his will, had such mind and memory as enabled him to understand the business in which he was then engaged, and the effect of the disposition made by him of his property. Waugh v. Moan, 200 Ill. 298, 65 N. E. 713; Campbell v. Campbell, 130 Ill. 466, 22 N. E. 620, 6 L. R. A. 167; England v. Fawbush, 204 Ill. 384, 63 N. E. 526, and cases cited. The evidence of the witnesses of the contestants is merely to the effect that Mrs. Waters was too feeble from sickness to devote her attention to her business affairs, and in no sense goes to the extent of establishing the proposition that she was not of sufficiently sound mind and memory to understand what she was doing when she made her will, and to understand the effect of the disposition, which she was thereby making of her property.

Second. Nor are we able to see that the evidence tends to support the other charge in the bill that she was under the undue influence of her daughters Emma and Lydia. Her unmarried daughters, Emma and Carrie, lived with her and took care of her. All the evidence tends to show that she regarded all her children with kindness and affection, and only cut off two of them because she thought they had received enough of her bounty already. Mrs. Stockberger, though not living with her mother, lived only a few miles away, and was attentive and kind in her treatment in her frequent visits to her mother. "The presumption also is in favor of the validity of the will, when the person, who is provided for therein, is one with whom the testator had maintained intimate and affectionate relations during his life." Harp v. Parr, 168 Ill. 459, 48 N. E. 113. Here, the relations with the three children, to whom the most of her property was given by the will, were most intimate and affectionate. It was natural, therefore, that she should provide for them in preference to the other children, whose relations had not been so intimate and affectionate, and one of whom had lived for years at a long distance from her. There is not a particle of evidence in this record, so far as we have been able to discover, to show that Emma Waters and Lydia Stockberger attempted to exercise, or did exercise, any undue influence over their mother. No declarations on the part of these two children

in the presence of their mother are proven, and the only acts sought to be proven are that, sometimes when Mrs. Waters was talking with one of her neighbors about her disposition of her property, and one of her daughters, Emma or Lydia, would come into the room, she would cease her conversation. This act alone, however, as it is unaccompanied by any other facts or circumstances looking in that direction, was insufficient to show that the mind of the mother was influenced by fear of her daughters, or that she was imposed upon in any way by them.

Third. We are of the opinion that the trial court erred in admitting evidence over the objections of the proponents of the will, and in the giving and refusal of instructions. Two women, who testified in favor of the contestants, said that, on one or two occasions, Mrs. Waters, while engaged in conversation with them, made remarks to the effect "that she wanted to deal equally with all of her family at one time," and substantially that she was in favor of making another disposition of her property than that which she actually made in her will. Counsel for the proponents of the will objected to the admission of this testimony, and moved that it be stricken out. Their objection was overruled, and their motion was denied. We are of the opinion that this was error. The general rule is that statements made by the testator, either before or after the execution of a contested will, which are in conflict with the provisions thereof, do not invalidate or modify such will in any manner, and that parties, making wills, cannot invalidate them by their own parol declarations, made previously or subsequently. Dickie v. Carter, 42 Ill. 376; Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837; Kaenders v. Montague, 180 Ill. 300, 54 N. E. 321; Harp v. Parr, supra; Hill v. Bahrns, 158 Ill. 314, 41 N. E. 912; England v. Fawbush, 204 Ill. 384, 68 N. E. 526. The declarations of the testatrix, Mrs. Waters, thus sought to be proved, were declarations in conflict with the provisions of her will, which made an unequal distribution of her. property, and therefore they were not competent testimony, and should have been excluded. It is true that, where a will is charged to have been executed through undue influence, the declarations of the testator, made before its execution, are admissible by way of rebuttal to show his intention as to the disposition of his property, upon the ground that a will, made in conformity with such declarations, is more likely to have been executed without undue influence than if its terms are contrary to such declarations. But the declarations thus admissible are those which are in harmony with the provisions of the will actually made, and not those which are opposed to such provisions. As was said in the per curiam opinion in Kaenders v. Montague, supra: "The general rule, recognized by this court, is that prior declarations of a testator are not admissible to prove