Boyle v. Boyle , 158 Ill. 228 ( 1895 )

Mr. Chief Justice Craig

delivered the opinion of the court:

It is conceded by the parties that on or about the fourth day of January, 1893, Joseph Boyle, in company with his brother, Lawrence Boyle, called -at the office of E. L. Clover, in Morris, and there executed a will, in which he devised to his nephew, Lawrence Andrew Boyle, second son of Lawrence Boyle, upon certain terms and conditions therein named, all of his real estate. The will was witnessed by E. L. Clover and H. C. Gifford, and left with Clover for safe keeping. It is also established, beyond controversy, that some time in the summer or fall of 1893, Joseph, in company with his sister Mary, went to Clover’s office and called for this will, and that Clover got it and handed it to Mary, and they carried it away The will was destroyed before the death of Joseph, and the only question in dispute is whether it was destroyed by the consent and direction of Joseph, or whether it was destroyed without his consent. Upon this question the evi- , dence is somewhat conflicting, but the county court and the circuit court have both found, from the evidence, that the will was destroyed by the direction of Joseph, and after a careful examination of the evidence we are inclined to think the judgment of the circuit court is sustained by a preponderance of the evidence.

It seems that Joseph did business with the Grundy e County National Bank, and kept his notes and securities there. Carr, the cashier, testified that in the summer of 1893 Joseph and his sister Mary were in town, and Joseph called at the bank and said he had made a will some time before, but he was going to destroy it and let the law take its course. From other evidence in the record it seems to be quite well established that this conversation occurred on the day Joseph took the will out of the possession of Clover. On or about the last of May, 1893, Joseph had a conversation with one Harvey, in regard to selling the land. He said he heard Lawrence was going to stop him, and asked Harvey if he thought Lawrence could do so. Joseph said: “I suppose because.I made a lease to his boy he thinks he can stop my selling the place; but the first time I go to Morris I will break that lease.” A short time afterwards Harvey met Joseph again, and the latter then said he had broken the lease,— that he had told the lawyer to throw it into the stove. Lawrence’s son never had any lease of the farm, and the lease alluded to was no doubt the will Joseph had made. Gilberry Specie testified that he called on Joseph in January before his death, and had a talk with him. The witness asked Joseph if he didn’t tell Mary to put the will in the stove, and he said yes. George Sargeant testified that he had a conversation with Joseph, about the middle of June, in which he said he had made a will—had willed his property to Lawrence's child—but he was not satisfied with it, and that he was going to break it. After-wards he told witness he had done so. James Sargeant testified that in July before Joseph died he had a conversation with him, in which he said the will was broken, and that Larry Boyle and his family would never get his money. Mrs. Matitson had a conversation with Joseph in August, 1893, in which he said, in substance, that Mary had the greater right to his property, and that he had burned or was going to burn something. Robert Houlehan testified that three weeks before Joseph’s death he told witness he had broken his will and was not going to make another. Mrs. Houlehan, who had conveyed all her interest in the property, testified that she had several conversations with Joseph in regard to the destruction of his will, and he told her that he gave the will to Mary and told her to burn it. The petitioner produced several witnesses who testified that Joseph said to them he had made a will and willed his property to Lawrence Boyle’s son, and several witnesses testified that Mary Boyle stated that she had destroyed the will without the consent of Joseph Boyle.

Under the rule laid down in McMillan v. McDill, 110 Ill. 47, and Campbell v. Campbell, 138 id. 612, the declarations of Mary Boyle could not be regarded as competent evidence. But waiving all objections to the evidence, we do not regard the evidence introduced by the petitioner sufficient to overcome that introduced on behalf of the defendants. After Joseph Boyle had made his will, as has been seen, he deposited it with Clover for safe keeping. It remained in his custody for five or six months, when the testator, as. appears, of his own free will called on Clover for the will and carried it away. His sister Mary was with him, it is true, but he was the personwho alone controlled the custody of the paper. The will was thus taken into his custody and carried off, and after his death it could not be found. From these facts but one presumption can arise, and that is, that. Joseph destroyed the will himself or directed it to be destroyed. When this presumption is fortified by the testimony of six or seven disinterested witnesses, who testify that they talked with Joseph before his death, and he deliberately said that he had destroyed the will, or language to that effect, the evidence so clearly preponderates in favor of the judgment, after giving due weight to the testimony introduced by petitioner, that we perceive no ground for disturbing the judgment.

It is also claimed that the court erred in failing to appoint a guardian ad litem for certain minor children of Lawrence Boyle. Whether the court erred in this regard it will not be necessary here to determine. They are not here complaining. The petitioner, Lawrence Boyle, is the only person before the court complaining, and he can only rely upon errors that affect his rights, and not the rights of others. The judgment of the circuit court will be affirmed.

Judgment affirmed.