{ "id": 5264858, "name": "Louis Both, et al., as Legatees Under the Last Will and Testament of Sophia Both, Deceased, Dated May 3, 1952, and John Both, as Executor Thereof, Appellees, v. Frank Emery Nelson, Appellant", "name_abbreviation": "Both v. Nelson", "decision_date": "1964-01-06", "docket_number": "Gen. No. 49,155", "first_page": "69", "last_page": "81", "citations": [ { "type": "official", "cite": "46 Ill. App. 2d 69" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "191 NE 268", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1934, "opinion_index": 0 }, { "cite": "357 Ill 117", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5281274 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ill/357/0117-01" ] }, { "cite": "126 NE2d 718", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "6 Ill2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708741 ], "year": 1955, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0064-01" ] }, { "cite": "19 NE2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "370 Ill 606", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2562699 ], "year": 1939, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/ill/370/0606-01" ] }, { "cite": "158 NE2d 591", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1959, "opinion_index": 0 }, { "cite": "16 Ill2d 546", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2760931 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "553, 554" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0546-01" ] }, { "cite": "154 NE2d 280", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "15 Ill2d 255", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2766247 ], "year": 1958, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0255-01" ] }, { "cite": "167 NE2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "26 Ill App2d 291", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5214018 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-app-2d/26/0291-01" ] } ], "analysis": { "cardinality": 930, "char_count": 19041, "ocr_confidence": 0.518, "pagerank": { "raw": 1.0023881922646409e-07, "percentile": 0.5392393533368162 }, "sha256": "fec79ce48913b390980ea19f2b75ff9188f9fd7b226e03025419aebfe323fa15", "simhash": "1:a99bd30468024be5", "word_count": 3231 }, "last_updated": "2023-07-14T20:04:28.965916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ENGLISH, P. J. and BURMAN, J., concur." ], "parties": [ "Louis Both, et al., as Legatees Under the Last Will and Testament of Sophia Both, Deceased, Dated May 3, 1952, and John Both, as Executor Thereof, Appellees, v. Frank Emery Nelson, Appellant." ], "opinions": [ { "text": "MB. JUSTICE MUBPHY\ndelivered the opinion of the court.\nThis is a will contest. Sophia Both, the decedent, 78 years old, executed the purported will on October 16, 1957. Plaintiffs sue as legatees under a prior will, dated May 3, 1952. The issues were lack of testamentary capacity and undue influence by defendant, the sole beneficiary. Defendant appeals from a verdict and decree which found that the instrument offered in evidence was not the last will and testament of the decedent.\nThe testatrix died July 21, 1959, leaving collaterals as her heirs at law. She had been married to William Both, and they executed separate wills on May 3,1952. The instant will was executed five years later, during the last illness of her husband, who died October 31, 1957. The sole beneficiary, defendant Frank Emery Nelson, was the husband of a deceased niece of Sophia.\nDefendant contends that plaintiffs fail completely to establish a prima facie case on either issue and, therefore, the trial court erroneously denied his motion for a directed verdict at the end of plaintiffs\u2019 case. It is further contended that the trial court erred in the admission and exclusion of testimony and in the giving of instructions to the jury.\nWe believe the principal determinative question is whether plaintiffs adduced any evidence fairly tending to prove either laek of testamentary capacity or undue influence. In order to affirm, absent prejudicial trial errors, we need only to find a prima facie case as to either of the two issues. A reviewing court will not consider questions or contentions which are not essential to the determination or final disposition of the cause before it, or questions of which decisions will serve no beneficial purpose to the litigants. ILP, Appeal and Error \u00a7 631.\nThe principles to be applied here were considered by this court in Malone v. Malone, 26 Ill App2d 291, 167 NE2d 703 (1960). A motion for directed verdict in a will contest is governed by the same rules which govern such motions in actions at law. The contestants are entitled to the benefit of all the evidence considered in its aspects most favorable to them, together with all reasonable inferences to be drawn therefrom, and the only question on review is whether there is any evidence tending to prove the allegations in the complaint. If no evidence is introduced tending to prove the allegations of the complaint, or if but a bare scintilla of evidence has been adduced, the court should grant a motion for a directed verdict. Peters v. Catt, 15 Ill2d 255, 260, 154 NE2d 280 (1958); Quellmalz v. First Nat. Bank of Belleville, 16 Ill2d 546, 158 NE2d 591 (1959).\nThe testamentary capacity required of a testator is sufficient mental ability to know and remember who are the natural objects of his bounty, to comprehend the kind and character of his property, and to make disposition of that property according to some plan formed in his mind. Eccentricity does not constitute unsoundness of mind. Neither old age, peculiarities, feebleness, nor miserly habits, of themselves, show a lack of testamentary capacity. (Quellmalz v. First Nat. Bank of Belleville, 16 Ill2d 546, 553, 554, 158 NE2d 591.) It has been repeatedly held that one who is capable of transacting ordinary business affairs is capable of making a valid will. Quathamer v. Schoon, 370 Ill 606, 611, 19 NE2d 750 (1939); Sterling v. Dubin, 6 Ill2d 64, 74, 126 NE2d 718 (1955).\nOn the issue of lack of testamentary capacity, plaintiffs introduced three witnesses. The first witness was an interne at the hospital to which the testatrix was taken four days after the execution of the will. Without independent recollection, he testified from a hospital record made by him on October 21,1957, that she was 78 years of age, deaf, senile and dysarthric, which means disturbance of speech. She was suffering from a cerebral vascular accident \u2014 a small stroke, which sometimes causes pain. On cross-examination, the interne stated that it was probable that he received the case history from the patient herself \u2014 she was suffering primarily from a cerebral accident \u2014 cerebral accidents are very common, some come slowly, some come suddenly \u2014 it was his impression that it was a \u201cresidue [of a cerebral accident] of the past\u201d \u2014 her malnutrition was a quality malnutrition which had been with her a long time.\nThe second witness was a physician and surgeon in general practice from 1923 to 1961. The decedent and her husband had been his patients for about seven or eight years. \u201cUntil 1953 they came to the office. But later they couldn\u2019t. I made it a rule every four to six weeks, I just came in and looked them up.\u201d In the early part of 1957, he treated her for her heart. It gradually got worse after he returned from a vacation in April or May, 1957. In response to a question \u201cas to her mental condition and understanding things,\u201d he answered, \u201cThere was a time even before I went on a vacation her mental condition was a very poor one. It grew gradually worse. ... I remember whenever I came I had to tell it to John [a brother-in-law], because I was sure she wouldn\u2019t remember anything about my instructions. Everything I wanted to be done, I had to speak specially to John, because William was still worse than her mentally. John was the only one who could remember. ... I couldn\u2019t pinpoint when it started, but 1 think from the time I was on my vacation there was no question most likely she was not too good. I noticed she was forgetting, and at times she simply didn\u2019t remember anything.\u201d\nHe saw her at the hospital every day and treated her for the heart. His secondary diagnosis was generalized \u201carteriosclerosis, including everything, . . . the arteries of the brain are sclerotic, and if the brain doesn\u2019t lose that, it degenerates, and there was a gradual process that I had observed on her for years. Then of course the time comes when the damage is that much, with all the symptoms. She couldn\u2019t remember anything. . . . The brain gets soft and liquefies. If it is liquefied, it- dies. Then all the symptoms are degeneration, a general process.\u201d In his opinion, the \u201ccondition that you found in this lady on the dates that she was in the hospital\u201d was a permanent condition. In response to a question as to \u201cher mental condition at the time that she was in the hospital,\u201d he replied, \u201cshe was senile ... I couldn\u2019t give her any instructions.\u201d In his opinion, she did not have the mental capacity to make a will.\nCross-examination on arteriosclerosis and its effects showed that a large percentage of men and women of the age of the decedent were suffering from the condition, and that it varied from individual to individual. At the time she entered the hospital, she was suffering from congestive heart failure and not from a stroke. He denied saying \u201cshe is a very sick lady. Her physical condition is not good, but I think her mind is clear.\u201d \u201cI never would have said that, because I stand on my reeord.\u201d As to the \u201cvarying\u201d degree arteriosclerosis affeets the mind, he stated, \u201cBut in this particular case, whenever I visited her, there was no lucid interval. I never could get in real touch with her.\u201d When questioned as to testifying \u201cfrom your own memory,\u201d he stated he eould testify without the chart. He could not recall whether he saw decedent on October 16,1957. Her condition was improved as a result of her hospital stay, but he did not see or treat her after she left the hospital.\nPlaintiffs\u2019 third witness was an attorney, Edwin D. Lawlor, who had represented William and Sophia Both for some years. He represented them in the negotiations for the sale of their farm land in 1957. The sales price of the farm was $90,000 and it was placed in a joint account. In September 1957, he visited them at their home \u201cto consult with them about the revision of their estimate of their income tax.\u201d On October 14, 1957, he received a telephone call from defendant Nelson, who informed him that William Both was in the hospital and Sophia Both was at home \u201cabsolutely unable to take care of her affairs. . . . I am looking after their affairs. They requested me to do it.\u201d Defendant informed the witness that money was needed for hospital expenses, and \u201cshe can\u2019t do anything.\u201d The appointment of a conservator was discussed, and the witness said he would commence conservator proceedings for both William and Sophia.\nOn October 18, 1957, defendant Nelson called again to inquire what was being done, and the witness then prepared petitions to have both of them declared mentally incompetent, which were filed in the Probate Court on October 23.\nIn evidence is a letter from defendant Nelson, in Florida, to Lawlor, dated November 1, 1957, as follows: \u201cReceived a message that William Both is dead. Will be unable to attend the funeral. Greatly appreciate your cooperation in helping to manage the Both affairs. Would further appreciate advice from you as to what the situation is now. Has a conservator been officially appointed? And if so, who is it? HI can be of any assistance please write or phone. Thank yon.\u201d\nDuring cross-examination, letters were introduced on behalf of defendant from Lawlor to Nelson, dated October 23 and November 6, 1957, regarding the Probate Court conservator proceedings. The letter of November 6 refers to the existence of \u201cmutual wills,\u201d and further stated, \u201cYour kindness and aid to the Boths in their very serious condition was of great benefit to them and I appreciate your help.\u201d\nA summarization of the foregoing testimony, which covers a period of time immediately before and after the execution of the will of October 16, 1957, shows that during this period, Sophia Both was suffering from arteriosclerosis; she was senile; she could not remember anything; she had no lucid intervals; her attending physician could not \u201cget in real touch with her\u201d; and it was at defendant Nelson\u2019s instigation that conservatorship proceedings were commenced in order to secure money needed for the hospital expenses of William, because she was \u201cabsolutely unable to take care of her affairs.\u201d\nConsidering this evidence in its aspects most favorable to plaintiffs, together with all reasonable inferences to be drawn therefrom, we believe there is ample evidence tending to prove the lack of testamentary capacity of Sophia Both on October 16, 1957. We conclude plaintiffs established a prima facie case on the issue of lack of testamentary capacity. This determination makes it unnecessary for us to consider the question of prima facie proof of undue influence.\nWe now proceed to consider the contention of defendant that the verdict is contrary to the manifest weight of the evidence. To sustain the will either on the issue of lack of testamentary capacity or undue influence, defendant offered three witnesses. The first was the attesting witness, Sinkus. His testimony showed that he and the other attesting witness accompanied Nelson to the home of the testatrix, where Nelson greeted her with \u201cHi, Aunt Soph,\u201d and she replied, \u201cThese must be the men who have come to witness my will.\u201d She asked to see the will and appeared to be reading it for two or three minutes, and then said, \u201cThat is fine. That is what I want.\u201d She asked for a pen and signed the will, which she then handed to Nelson saying, \u201cYou better take it.\u201d It was at the request of the testatrix that the attesting witnesses signed the will.\nThe second witness was Alma Linnemann, who operated a home in Elgin, Illinois, where the testatrix spent the last years of her life. Her testimony shows that defendant Nelson and Julius Kasser, her daughter-in-law\u2019s brother, made advance arrangements. On October 26, 1957, decedent arrived by ambulance and came in on a stretcher. She was a bedpan patient. Defendant Nelson arranged for her to have medical care. She remained in the Linnemann home until July 1959, when she was put into a hospital. Decedent received a Chicago paper and read it with a magnifying glass. She repeated what she read in the paper and talked about her relatives. She did not like them, because they did not take her in, and she had to go to a strange place. Decedent spent considerable time with her brother-in-law, John Both, who was at the same home, but did not trust him and never discussed her finances nor any private matters in his presence. She spoke highly about defendant Nelson, and that she had provided for him because he was so good to her. Decedent wrote many letters to friends and received many in return. She spoke about the fact that her farm had been sold for $90,000, and that the proceeds were being held for her by the Pioneer Trust & Savings Bank. Defendant Nelson telephoned from Florida once or twice every week to see how decedent was getting along. He wrote her many letters and was very solicitous of her. He never saw Sophia again.\nDefendant\u2019s third witness was Viola Kampmeyer, a daughter of Mrs. Linnemann, who saw testatrix almost daily and assisted in caring for her. She testified that decedent was a pleasant, happy woman, who talked intelligently and knew what she was doing; she was alert and sensible, read a newspaper daily, and commented about its contents; she wrote and received letters from friends, knew and mentioned by name her relatives and those of her husband; she knew the source and extent of her estate, and that it was being managed by Pioneer Trust & Savings Bank. Decedent said she thought an awful lot of Nelson; he had been good to her and he would be well taken care of. In the opinion of the witness, the decedent was sane, knew the nature of her estate, and the natural objects of her bounty.\nIn order for this court to determine that the verdict is against the manifest weight of the evidence, an opposite conclusion must be clearly evident or the verdict palpably erroneous or wholly unwarranted from the manifest weight of the evidence. A verdict will not be set aside merely because the jury could have found differently, or because judges feel that other conclusions would be more reasonable. We cannot say, as we must in order to reverse, that on the record before us an opposite conclusion is clearly apparent.\nDefendant further contends that by reason of erroneous rulings made by the trial judge, very important testimony was improperly kept from the jury. The first of these rulings concerns the repeated refusal by the trial judge to allow defendant\u2019s witness Sinkus to answer the following question: \u201cNow, in your opinion, was the testatrix of sound and disposing mind and memory at the time that she signed the instrument?\u201d The basic objection made by plaintiffs to this question was that it called for an opinion by the witness Sinkus without sufficient foundation. As to this, defendant cites Brownlie v. Brownlie, 357 Ill 117, 191 NE 268 (1934), where our Supreme Court said (pp 122-123):\n\u201cThe general rule that before a witness will be. permitted to express an opinion as to the mental condition of a testator it is necessary for the witness to relate the facts and circumstances upon which he bases his opinion, and that whether a sufficient foundation has been laid then becomes a question of law for the court to pass upon before permitting the witness to express his opinion in case of an objection thereto, does not apply to attesting witnesses. Our statute requires the instrument to be attested by two witnesses and then provides what is necessary to be proved to admit the will for record in the probate court. The attesting witnesses are witnesses that the statute requires. They are in a sense placed there by the statute for the purpose of observing the method of the execution of the will and of determining whether the testator at the time is possessed of testamentary capacity. An attesting witness may form a belief or opinion of the testator\u2019s mental capacity from his appearance at the time he executed the instrument in controversy. . . . An attesting witness may be permitted to express an opinion as to the mental condition of the testator at the time the subscribing witness signed, without laying any foundation therefor. . . . sueh witnesses may be permitted to testify as to whether, so far as they were able to discern at the time of the execution of the will, the testator appeared to be under any undue influence.\u201d\nIn view of the statement made in the Brownlie case (p 123), that an attesting witness may be permitted to express an opinion as to the mental condition of the testator at the time the subscribing witness signed, \u201cwithout laying any foundation therefor,\u201d we believe that the trial court should have permitted the witness to answer the question. However, we believe the non-admission of his opinion is not reversible error here. The witness was permitted to testify liberally as to what he observed and heard, while in the Both home, so that the jury were fully informed in this regard, and from which they could draw their own conclusions as to the testamentary capacity of the decedent.\nOther rulings complained of concerned the direct examination of plaintiffs\u2019 witness, Dr. Haupt, who testified as to decedent\u2019s mental condition while he was treating her, and the remark of the court in denying an objection, \u201cWell, that is an expert opinion.\u201d Defendant argues that \u201cno attempt was ever made to qualify this witness as an expert on mental diseases or on anything else.\u201d Although the witness was of an advanced age, he testified at length as to what he saw and observed professionally as to the decedent. We believe the initial qualification of the witness was sufficient to permit his observations and opinion as to the mental condition of the decedent to stand. While the remark of the court might have been misconstrued by the jury, we doubt it had any significant effect on their ultimate conclusion. We find no prejudicial error here.\nDefendant also contends that the trial court \u201cprejudicially refused eight of defendant\u2019s ten tendered instructions.\u201d We have examined the instructions, both given and refused. It appears that each of defendant\u2019s instructions has legal precedent and, if not repetitious, might have been properly given to the jury. However, we believe the instructions which were given to the jury were sufficient and adequate to inform the jury of the essential legal issues and the fact determinations to be made. We conclude that the instant trial was free from prejudicial trial errors, and that the instructions, taken as a series, adequately instructed the jury as to the issues involved.\nFor the reasons stated, the decree appealed from is affirmed.\nAffirmed.\nENGLISH, P. J. and BURMAN, J., concur.", "type": "majority", "author": "MB. JUSTICE MUBPHY" } ], "attorneys": [ "McFarland, Morgan & Stearns, and Leonard W. Stearns, all of Chicago, for appellant.", "William Parker Ward and Edwin Walsh, both of Chicago, for appellees." ], "corrections": "", "head_matter": "Louis Both, et al., as Legatees Under the Last Will and Testament of Sophia Both, Deceased, Dated May 3, 1952, and John Both, as Executor Thereof, Appellees, v. Frank Emery Nelson, Appellant.\nGen. No. 49,155.\nFirst District, First Division.\nJanuary 6, 1964.\nMcFarland, Morgan & Stearns, and Leonard W. Stearns, all of Chicago, for appellant.\nWilliam Parker Ward and Edwin Walsh, both of Chicago, for appellees." }, "file_name": "0069-01", "first_page_order": 81, "last_page_order": 93 }