Pooler v. Cristman , 1892 Ill. App. LEXIS 224 ( 1892 )

Mr. Justice Lacey.

This was a bill in equity, filed by the appellant against Philany Cristman and Louisa 0. Cristman, legatees of the purported last will and testament of Margaret Pooler deceased, their mother, and Alonzo Ell-wood, the administrator of the estate of Margaret Pooler, with the will annexed, appellees in this case.

The bill charged that on the 23d of December, 1887, Margaret Pooler, now deceased, executed a written instrument, purporting to be her last will and testament, and that afterward, on April 15, 1891, she departed this life, leaving surviving as heirs at law, besides appellant, Philany and Louisa C. Cristman, both widows: that Henry Pooler, husband of Margaret Pooler, had died prior to her death. The purported will is set forth and shows that it was witnessed by George S. Eobinson and Alonzo Ellwood, and that the testatrix bequeathed, after the payment of all her just debts and funeral expenses, all the rest, residue and remainder of her estate, real and personal, to her daughters, Philany and Louisa C. Cristman in equal shares, share and share alike, and in the case of the death of either of them prior to her decease, the child or children of such deceased daughter to take the share such deceased daughter would take if living; and the said Philany and Louisa 0. Cristman were nominated executrixes in said will, without being required to give bond; that the will was probated in the County Court of said county, on October 15, 1891, and the two executrixes nominated in the will refusing to qualify, Alonzo Ellwood was appointed administrator with the will annexed. The bill then charges that Margaret Pooler, at the time of making the instrument in question, had not sufficient capacity to execute the same on account of her dotage and mental weakness, she being eighty-six years of age, and in fact was not in a testamentary condition of mind; that said Philany and Louisa C. Cristman exercised undue influence over the mind of the said Margaret Pooler, and induced her by fraud and intimidation to execute the said instrument, and that she was under improper restraint and undue influence by said acts. The bill charges that the inventoried estate of Margaret Pooler, deceased, was $5,557.62, but that deceased had property not inventoried to the amount of $5,000 more, and avers her estate would amount to about $15,000 at the time of her decease. The appellees answered the said bill, denying that the purported will was procured by the undue influence of appellees, Philany or Louisa 0. Cristman, or by one or both of them, and averring the complete mental capacity of the deceased, Margaret Pooler, to execute the will, and that she did execute it with her own free will and accord, uninfluenced by any one. The court thereupon made up the required issue of fact in such case, to wit:

“ Is the writing produced the will of Margaret Pooler ? ” This issue of fact was tried before a jury in due form, and it found the issue in favor of the appellees, the proponents of the will. The court thereafter overruling a motion for a new trial, decreed that the probate of the said will in the County Court, and the proceedings thereunder, be and the same were ratified and confirmed, and that the bill be dismissed for the want of equity, and that complainant pay the costs. The appellant is the son of Margaret Pooler, and the brother of the daughters Cristman.

•There was a large amount of evidence offered and given to the jury on either side, some thirty witnesses on the part of the appellees and nineteen or twenty on the part of appellant, touching the testamentary capacity of the deceased, Margaret Pooler. The evidence, as is nearly always the case, was somewhat conflicting, but after a reading of it in full we are of the decided opinion that a clear preponderance of it is in favor of the soundness of mind of the testatrix and her capacity to make the will, and that the appellant failed to show any undue influence exerted on the mind of the deceased by her daughters Cristman. The subscribing witnesses both fully support the will and legal capacity of Mrs. Pooler, and their evidence is corroborated by numerous other witnesses. It would consume too much time and serve no useful purpose to examine the evidence in detail, so we will content ourselves by announcing our conclusions in general, on the weight of the evidence.

The appellant complains of the action of the court in excluding certain evidence offered by him, and also of the giving instructions one and ten, for appellees. These are the only alleged errors complained of. The evidence offered by appellant, and rejected by the court, of which appellant complains, was the will of Henry Pooler, through which Margaret derived her estate, for the purpose, as we understand, of showing how much estate Margaret had. We think the will was not the best evidence of that fact, if it were a material matter. The settlement of it in the Probate Court would be the proper evidence of that fact. It was not very material to show the exact amount of Margaret’s property, as, if she had the mental capacity to make a will, the amount of her property was not very material, and it would not be material to show that she had spent a considerable portion of the estate coming from her husband, unless it could be shown in some way that she had squandered her means in an irrational manner, which was not attempted. The agreement of settlement between the appellant and the appellees of matters pertaining to the father’s estate, in which Margaret Pooler relinquished a portion of her claim against the estate of Henry Pooler, deceased, was foreign to the issue being tried. If this offered evidence was intended for the purpose of showing that Philany and Louisa 0. Cristrnan had exercised undue influence on Henry Pooler, as charged in the bill, in the execution of his will, and that they had been compelled to settle by the threatened suit of appellant, it were wholly incompetent, as that controversy had nothing to do with this. It could only have the effect to distract the minds of the jury from the real issue and be trying an issue not involved. We will now proceed to notice the instructions complained of by appellant as being erroneously given on the part of appellees. They are the first and tenth, and are alleged to be erroneous because, as is claimed, they take from the jury certain facts therein enumerated, from which mental incapacity might be inferred, and are misleading. The court tells the jury in the first instruction given for appellees, that the following are “ not grounds for inferring undue influence,” viz.: “ That the beneficiaries of a will are those by whom the testatrix was surrounded and with whom she stood in confidential relations at the time of the execution of the will, or the fact that the principal beneficiaries had for years control of her estate, or the fact that the provisions of the will were for the benefit of such persons, or may seem unreasonable.” If we read only thus far in the instruction the language would seem ambiguous, though not positively misdirecting, in the respect that it leaves it doubtful whether the court intended to exclude these facts from the jury as evidence to be considered, or whether it simply meant to say such facts would not be ground of themselves, standing alone and unaided by other evidence. But the latter part of the instruction' is in the nature of a proviso, and amounts to saying that such facts are not grounds. “ If you believe the testatrix had sufficient mind and memory at the time of the execution of the will, etc., and understood the business in which she was engaged, etc., and had a recollection of the property she meant to bequeath and of the persons to whom she meant to bequeath it, and if she executed the instrument voluntarily and of her own free will, then you should find the paper produced in evidence is the will of Margaret Pooler.” Evidently, if these last enumerated facts were found, then the first enumerated facts are not grounds from which to infer undue influence. We think this instruction is not in itself so misleading as to require reversal, especially in view of the full and complete instructions given on part of the appellant. The tenth instruction is as follows:

“You are further instructed that the mere fact that a person is of great age creates no presumption against the ability of such person to dispose of property by deed or will, and in this case, although you may believe from the evidence that the testatrix, Margaret Pooler, at the time of executing the paper in question, was of about the age of eighty-six years, and suffering, to some extent, from weakness or bodily infirmity, yet such circumstances would not render her incapable 'of disposing of her property by will as she saw fit.”

The latter part of the instruction is defective in not saying that “ such circumstances would not alone render her incapable of disposing of her property by will as she saw fit.” While the instruction is not drawn with the care it should be, we can not think the jury would understand that they were told not to consider the age of the testatrix in evidence as a circumstance bearing on the question of her capacity to make a will. Rutherford v. Morris, 77 Ill. 408. But the court, on the part of appellant, gave his eighth and ninth instructions, and submitted to the jury thereby to find incapacity to make a will from “ mental weakness arising from bodily infirmity or old age,” etc. This was the same in both those instructions, and thus the jury could see that under all the evidence it could find mental incapacity to execute the will from those causes, but from those alone it could and ought not to do so. It is only by construction and inference that the instructions can be said to exclude age and other facts therein named, from the jury, as circumstances to be considered in determining incapacity and undue influence, and in that condition they ought to be considered sufficiently explained by appellees’ instructions.

We can not see how there could be any serious misunderstanding on the part of the jury, arising from those instructions given for appellees, complained of.

We think substantial justice has been done in the case and therefore the decree is affirmed.

Decree affirmed.