Elmstedt v. Nicholson , 186 Ill. 580 ( 1900 )

Mr. Justice Hand

delivered the opinion of the court:

The first contention made by plaintiff in error is, that the .evidence was not sufficient to justify the court in setting aside the deed from John Elmstedt to his wife on the ground of mental incapacity and undue influence. The evidence is voluminous and conflicting. The chancellor saw and heard the witnesses, knows their manner of testifying while on the stand, and is better qualified than we to judge of the weight to be given to their testimony. In chancery cases, where the evidence is conflicting and heard in open court, the error in finding as to fact should be clear and palpable to authorize a reversal. (Coari v. Olsen, 91 Ill. 273; Johnson v. Johnson, 125 id. 510; Rackley v. Rackley, 151 id. 332; Kusch v. Kusch, 143 id. 353; Brown v. Stewart, 159 id. 212.) We said in Biggerstaff v. Biggerstaff, 180 Ill. 407 (on p. 411): “In a case of this character, where witnesses differ as to the mental capacity of the grantor and of his ability to legally transact business and to dispose of his property, the weight to be given to the testimony of witnesses is much more readily to be determined by a just chancellor than by a court of review, which reads only the written evidence.” Here the evidence showed John Elmstedt was sixty-four jmars old at the time of his death; that he had been afflicted with paralysis for several years; that he was bed-ridden during the last weeks of his life; that he was very weak, physically and mentally, and that he died within three days of the time at which he executed to his wife this deed; that she was his third wife; that she urged him to convey to her his property; that she sent for the notary and had the deed signed and ready for acknowledgment when he arrived. We will not comment upon these facts further than to say that in our opinion they fully sustain the decree.

It is further contended that there was a want of jurisdiction in the superior court to set aside the deeds from plaintiff in error to Ton and from Ton and wife to plaintiff in error. After these deeds were made, plaintiff in error, as executrix, reported such conveyances to the probate court of Cook county, and charged herself with the sum of §600 in her account, as the proceeds received from the sale of these lots. Defendants in error filed objections thereto, which remain undisposed of, and for that reason it is assumed the probate court, and not the superior court, has jurisdiction of the subject matter. The transfer of these lots under the circumstances was a transfer by the executrix to herself, and not binding in equity upon defendants in error. The effect of such transfer was to cloud the title to these lots. A court of chancery has jurisdiction to remove such cloud. It was not error, therefore, for the superior court to set aside such conveyances as a cloud upon the title to the lots, and to authorize the then acting administrator to sell the same and distribute the proceeds thereof according to the terms of the will of John Elmstedt, deceased.

The decree of the superior court will be affirmed.

Decree affirmed.