{ "id": 3312039, "name": "THE CITIZENS NATIONAL BANK OF PARIS, Ex'r of the Will of Milton D. Pearson, Deceased, Plaintiff-Appellee, v. WESLEY S. PEARSON et al., Defendants-Appellants", "name_abbreviation": "Citizens National Bank v. Pearson", "decision_date": "1978-12-29", "docket_number": "No. 15086", "first_page": "457", "last_page": "463", "citations": [ { "type": "official", "cite": "67 Ill. App. 3d 457" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "313 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 226", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344097 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0226-01" ] }, { "cite": "159 N.E. 353", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "328 Ill. 282", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5197160 ], "opinion_index": 0, "case_paths": [ "/ill/328/0282-01" ] }, { "cite": "137 N.E. 500", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "305 Ill. 612", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2430455 ], "opinion_index": 0, "case_paths": [ "/ill/305/0612-01" ] }, { "cite": "96 N.E. 227", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "251 Ill. 335", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3434955 ], "opinion_index": 0, "case_paths": [ "/ill/251/0335-01" ] }, { "cite": "48 N.E.2d 355", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "382 Ill. 610", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2478739 ], "opinion_index": 0, "case_paths": [ "/ill/382/0610-01" ] }, { "cite": "186 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "290" } ], "opinion_index": 0 }, { "cite": "26 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5357303 ], "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0366-01" ] }, { "cite": "182 N.E. 769", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "349 Ill. 606", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2604227 ], "opinion_index": 0, "case_paths": [ "/ill/349/0606-01" ] }, { "cite": "46 N.E.2d 368", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "381 Ill. 574", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2558355 ], "opinion_index": 0, "case_paths": [ "/ill/381/0574-01" ] } ], "analysis": { "cardinality": 751, "char_count": 14995, "ocr_confidence": 0.881, "pagerank": { "raw": 9.933434711201191e-08, "percentile": 0.5364262549669884 }, "sha256": "26301ec624526999d978f94614080334e5bde7f2d55b8694d9f41ab26e655743", "simhash": "1:3732f97c3b0c6d91", "word_count": 2514 }, "last_updated": "2023-07-14T17:17:27.014484+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE CITIZENS NATIONAL BANK OF PARIS, Ex'r of the Will of Milton D. Pearson, Deceased, Plaintiff-Appellee, v. WESLEY S. PEARSON et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE GREEN\ndelivered the opinion of the court:\nBy order of June 6,1978, the circuit court of Edgar County set aside a June 24, 1976, deed of Milton D. Pearson (hereinafter \u201cgrantor\u201d) to defendants Wesley S. Pearson and Norma L. Pearson on the ground that grantor, on that date, was incompetent to execute the deed. The deed was given without consideration and purported to convey grantor\u2019s 120-acre farm to grantees, reserving a life estate therein. The suit was initiated during grantor\u2019s lifetime by his conservators and upon his death, plaintiff, The Citizens National Bank of Paris, was substituted in their behalf. On appeal, defendants contend: (a) an improper standard was applied to test grantor\u2019s mental capacity to execute the deed; (b) the finding of grantor\u2019s incompetency to execute the deed was contrary to the manifest weight of the evidence; and (c) an order adjudicating grantor an incompetent and appointing a conservator was improperly admitted into evidence. Defendants further assert that the trial court erred in awarding costs to plaintiff.\nThirteen witnesses testified on plaintiff\u2019s behalf, among these being: (a) seven employees of the Shady Rest Nursing Home in Paris, Illinois, where grantor resided from early 1975 until his death, each of whom had daily exposure to grantor on and around June 24, 1976; (b) a medical doctor who had conducted a number of examinations of grantor; (c) grantor\u2019s family attorney; and (d) two longtime neighbors of grantor. Repeated corroborating testimony was given that (1) grantor was unable to transact ordinary business and incapable of protecting his own interests in an adversary situation; (2) grantor could not carry a thought process through to conclusion; and (3) grantor could not have understood the nature and effect of a transaction occurring during June and July of 1976. Further testimony indicated that grantor could not have originated the thought of executing a document such as the deed. Seven witnesses stated that, in their opinion, grantor was not of sound mind and memory at the relevant time.\nGrantor was otherwise variously described by these witnesses as \u201cconfused,\u201d \u201cdisoriented,\u201d \u201cdisoriented as to time and place,\u201d unable to carry on a normal conversation, \u201cforgetful,\u201d unable to remember the day or season, and disoriented as to persons. The evidence was disputed as to whether he could recognize longtime friends and acquaintances.\nA registered nurse employed at the nursing home testified that although grantor knew his name, he would often give incorrect responses to questions as to where he was or what time it was. A nurse\u2019s aide at the home testified that grantor appeared to understand his mail when it was read to him and also appeared to know his visitors most of the time. A licensed practical nurse at the home stated that often grantor could not remember what day it was or carry on a coherent conversation. Longtime neighbors of grantor testified that he had to be reminded what season it was and that he was at the nursing home rather than at his farm.\nThe medical doctor testifying on plaintiff\u2019s behalf had examined grantor in January, April, and July of 1976. He stated that grantor had an advanced case of cerebral arteriosclerosis and that this condition undoubtedly had an effect upon grantor\u2019s mental ability. When asked whether grantor would have been of sound mind on June 24, 1976, he responded \u201cI would have to say sound mind, no.\u201d He admitted that grantor\u2019s ability to understand a thought process would vary from day to day but stated that his underlying condition would remain the same.\nRobert Reel, a longtime friend of grantor, and the attorney who prepared the deed in question, appeared on defendants\u2019 behalf, giving testimony relevant to grantor\u2019s mental state on the date of the execution of the deed. Reel testified that grantor had initiated the idea of the deed at Christmas time, 1975, and had requested him, Reel, to have an attorney prepare the deed. According to Reel, grantor stated that he did not want the farm to go to those persons so designated in his will but wished the farm to go to defendant grantees who were his only heirs at law. Reel further testified that in June of 1976, grantor told him that it was time to take \u201ccare of\u201d the deed and \u201cget my business in order.\u201d Reel maintained that grantor never failed to recognize him.\nThe parties do not dispute that at the time of the execution of the deed, present in addition to grantor were Reel, the attorney obtained to draft the deed, a registered nurse, the nursing home\u2019s secretary-bookkeeper, and the attorney\u2019s secretary. The testimony as to wrhat transpired then and the opinions of the witnesses present as to grantor\u2019s then capacity will be set forth later in our discussion of the weight of the evidence.\nGreater mental capacity is required to make a deed than is required to execute a will. (McGlaughlin v. Pickerel (1943), 381 Ill. 574, 46 N.E.2d 368.) However, no greater mental capacity is required to make a deed of voluntary settlement reserving a life estate than is required to make a will. (McGlaughlin; Harrington v. Travis (1932), 349 Ill. 606, 182 N.E. 769.) Defendants contend that, in testing grantor\u2019s mental capacity, the trial court erroneously applied the standard applicable to one executing a deed.\nIn its memorandum opinion, the trial court stated:\n\u201cDefendants argue that since Pearson retained a life estate the proper test regarding his capacity to make a valid conveyance is the same as the capacity needed for the making of a valid last will and testament. Plaintiff argues that * * \u00ae the test should be that declared by our Courts of review in cases where no life estate was reserved: that is, did the grantor have the capacity to transact ordinary business.\n<* # 6\n[RJegardless of the arguments of the parties as to which criterion the Court should follow in determining Pearson\u2019s mental capacity on June 24,1976, the Court finds the evidence to be overwhelming that the grantor, Milton D. Pearson, did not have adequate mental capacity to make the deed in question. The credible evidence presented to this Court indicates that the grantor had little if any mental capacity to comprehend the nature of his act.\u201d\nand\n\u201cAn examination of all the evidence in the case clearly establishes that Milton D. Pearson was totally incompetent to execute the deed in question.\u201d\nIn view of this language, we conclude that the trial court found grantor\u2019s mental capacity insufficient under either standard.\nThe rules governing testamentary capacity have been stated to be as follows:\n\u201cTo [lack testamentary capacity] the testator, at the time he executes his will, must lack sufficient mental capacity to know the natural objects of his bounty, to comprehend the kind and character of his property, to understand the nature and effect of his act, and to make a disposition of his property according to some plan formed in his mind. [Citations.]\u201d (Sloger v. Sloger (1962), 26 Ill. 2d 366, 370, 186 N.E.2d 288, 290.)\nUnlike an ordinary grantor, a testator need not have capacity to transact ordinary business affairs. McGlaughlin.\nReel testified that at the time of execution of the deed, he explained to grantor that he had brought an attorney \u201cto take care of your farm business\u201d and asked, \u201cDo you want him to go ahead and take care of it?\u201d and grantor responded, \u201cI sure do.\u201d Reel stated that the deed was then presented by the lawyer and explained to grantor who then signed with an \u201cx.\u201d Grantor had apparently been signing documents in this manner for some time and had done so when he was admittedly competent. Reel believed that at the time of execution, grantor knew what he was doing and wanted to make the conveyance. The testimony of the drafting attorney corroborated that of Reel but the attorney acknowledged that he had never seen the grantor before. The registered nurse who was present testified that grantor was confused on that day but could not elaborate as to the degree of his confusion. The secretary-bookkeeper had no opinion as to the grantor\u2019s mental state. The attorney\u2019s secretary did not testify as to mental capacity.\nReel admitted on cross-examination that at times grantor was confused and that grantor did not initiate many ideas. He also admitted on cross-examination that he, and not grantor, initiated the idea of having an attorney draw up a deed, thus impeaching his direct testimony to the contrary on the point. He also stated that he did not have grantor execute the deed in early 1976 because grantor was then on heavy medication and he questioned grantor\u2019s competency to make the deed at that time. He was also impeached by four witnesses who testified that he had a poor reputation for truth and veracity although this testimony was rebutted by two witnesses who testified that his reputation in that respect was good. The weight of the testimony of the lawyer who drafted the deed as to grantor\u2019s capacity was limited by his lack of prior acquaintance with the grantor and because the questions he asked the grantor were answered by nods of the head, such being the only communication between the lawyer and the grantor.\nPlaintiff has maintained throughout that because a substantial gift tax liability was incurred by grantor in making the gift of the remainder interest, the transaction was not the simple one described in McGlaughlin and the standard of competency for making a deed rather than for making a will was applicable. Much of plaintiff\u2019s testimony was directed towards this standard. However, from the large amount of testimony describing the grantor\u2019s advanced stage of senility, the trial court could have concluded that the grantor did not \u201cunderstand the nature and effect of his act\u201d and did not understand that he was disposing of the remainder interest in his farm. The ruling of the trial court was not contrary to the manifest weight of the evidence regardless of which standard was applicable.\nDuring trial, the court admitted into evidence, over defendants\u2019 objection, an order dated July 20,1976, adjudging grantor an incompetent as defined by section 11 \u2014 2 of the Probate Act (Ill. Rev. Stat. 1977, ch. 110\u00bd, par. 11 \u2014 2) and appointing a conservator. Defendants contend that such was improper to prove the mental state at issue, and therefore was erroneously admitted, noting that (a) the standard for such an adjudication is different from that by which an individual\u2019s mental capacity to execute a deed as here is tested, and (b) the order was entered after, rather than prior to, execution of the deed.\nIn Redmon v. Borah (1943), 382 Ill. 610, 48 N.E.2d 355, an appeal involving a request to set aside a March 26,1937, deed on the grounds of mental incapacity of the grantors, the court noted as an undisputed fact that on April 5, 1937, one of the grantors was adjudged an incompetent and a conservatrix was appointed for his estate. In Greene v. Maxwell (1911), 251 Ill. 335, 96 N.E. 227, an action to set aside a February 20,1909, deed for insufficient mental capacity of the grantor, the court stated, in detailing the facts before it, that grantor had been adjudicated of unsound mind and a conservator had been appointed for him on April 5, 1909.\nDefendants rely upon Lewandowski v. Zuzak (1922), 305 Ill. 612, 137 N.E. 500. There, an appeal from a ruling setting aside a will on grounds of unsoundness of mind was taken, citing as error the trial court\u2019s admission into evidence over objection of a March 23, 1916, order of the county court committing the testator to a hospital for the insane. The will at issue had been executed on March 16, 1916. In ruling it to have been error to admit the order, the supreme court noted (a) that the order included the report of two physicians finding testator to be a person fit to be sent to such hospital and further finding testator\u2019s disease to be of seven month\u2019s duration and to have been caused by alcoholic psychosis and (b) the certificate of the physicians was submitted to the jury without an opportunity for cross-examination. The supreme court stated that a different issue was involved in the commitment proceeding than in the case at hand and recognized that even though a person may be of a state of mind to dictate his commitment, he may nonetheless have a sufficient mental state to execute a will. Lewandowski did not turn on the order\u2019s entry having occurred subsequent to the execution of the will.\nWe do not find Lewandowski determinative of the issue here. No documents similar to the physicians\u2019 reports were included in the instant order. The record gives no indication that the trial court gave any substantial weight to the evidence of the adjudication. In Pendarvis v. Gibb (1927), 328 Ill. 282, 159 N.E. 353, the court ruled that although the standards for appointment of a conservator and the competency of a person to make a will are not the same, evidence of the appointment of a conservator prior to the execution of a will may be considered in determining a testator\u2019s competency. Here, the conservator was appointed less than one month after the execution of the deed. In view of the dictum of Redmon and Greene indicating that admission of evidence of appointments of conservators shortly after the execution of the instrument in question is not improper, we rule that no reversible error occurred here.\nAt the close of plaintiff\u2019s evidence, the trial court dismissed count III of the plaintiff\u2019s five-count complaint. Thereafter, in rendering its ruling, the court ordered defendants to pay the costs of the proceeding. Defendants assert this to have been an abuse of discretion in light of section 12 of \u201cAn Act \u201d e # in relation to costs\u201d (Ill. Rev. Stat. 1977, ch. 33, par. 12), and this court\u2019s decision in Rauwolf v. Travelers Indemnity Co. (1974), 20 Ill. App. 3d 226, 313 N.E.2d 504.\nThe pertinent statute on costs provides:\n\u201cWhere there are several counts in any complaint, and any one of them be adjudged insufficient, or a judgment on any issue joined thereon shall be rendered for the defendant, costs shall be awarded in the discretion of the court.\u201d (Ill. Rev. Stat. 1977, ch. 33, par. 12.)\nIn Rauwolf, this court upheld an equal apportionment of the costs of a suit between the parties where plaintiff had prevailed upon his claim for compensatory damages but defendant prevailed upon the claim for punitive damages.\nUnder the circumstances the award of costs was a matter of the trial court\u2019s discretion. We find no abuse.\nWe affirm.\nAffirmed.\nCRAVEN and TRAPP, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE GREEN" } ], "attorneys": [ "Charles R. Young and Charles C. Hall, both of Young and Hall, of Danville, for appellants.", "Alfred H. Kreckman, Jr., of Massey, Anderson & Gibson, of Paris, for appellee." ], "corrections": "", "head_matter": "THE CITIZENS NATIONAL BANK OF PARIS, Ex'r of the Will of Milton D. Pearson, Deceased, Plaintiff-Appellee, v. WESLEY S. PEARSON et al., Defendants-Appellants.\nFourth District\nNo. 15086\nOpinion filed December 29, 1978.\nRehearing denied January 30, 1979.\nCharles R. Young and Charles C. Hall, both of Young and Hall, of Danville, for appellants.\nAlfred H. Kreckman, Jr., of Massey, Anderson & Gibson, of Paris, for appellee." }, "file_name": "0457-01", "first_page_order": 479, "last_page_order": 485 }