{ "id": 2583246, "name": "William J. Szarat, Admr., et al. Appellees, vs. Josephine Schuerr, Appellant", "name_abbreviation": "Szarat v. Schuerr", "decision_date": "1937-02-12", "docket_number": "No. 23833", "first_page": "323", "last_page": "327", "citations": [ { "type": "official", "cite": "365 Ill. 323" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "276 Ill. 438", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4853106 ], "opinion_index": 0, "case_paths": [ "/ill/276/0438-01" ] }, { "cite": "298 Ill. 502", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5031269 ], "opinion_index": 0, "case_paths": [ "/ill/298/0502-01" ] }, { "cite": "290 Ill. 476", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2419556 ], "opinion_index": 0, "case_paths": [ "/ill/290/0476-01" ] }, { "cite": "303 Ill. 549", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5006144 ], "opinion_index": 0, "case_paths": [ "/ill/303/0549-01" ] }, { "cite": "24 N. Y. 51", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2029461 ], "opinion_index": 0, "case_paths": [ "/ny/24/0051-01" ] }, { "cite": "286 Ill. 120", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4937096 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill/286/0120-01" ] } ], "analysis": { "cardinality": 479, "char_count": 8618, "ocr_confidence": 0.769, "pagerank": { "raw": 1.8635742615458538e-07, "percentile": 0.7251922795498889 }, "sha256": "a57ade29ca70c58ba2bf188515bdeaa019ee62b60f55e79a9759abc3b332a3a0", "simhash": "1:2e236ad5dc34e21b", "word_count": 1491 }, "last_updated": "2023-07-14T21:03:43.385864+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William J. Szarat, Admr., et al. Appellees, vs. Josephine Schuerr, Appellant." ], "opinions": [ { "text": "Mr. Justice Jones\ndelivered the opinion of the court:\nJohn J. Szarat died leaving a purported last will and testament which was offered for probate in the probate court of Cook county. That court refused to admit it and an appeal was taken to the circuit court where probate was again denied. The probate court held that the testator had sufficient testamentary capacity to make a will and was under no undue influence, but that the will was not attested by two witnesses in the presence of the testator. The circuit court held likewise. On appeal to this court, the issue of testamentary capacity has been virtually abandoned; and properly so, because the evidence is wholly insufficient to support a finding of mental incapacity. The only remaining question is whether or not the purported will was attested in the presence of the testator.\nThe attesting witnesses were Leland K. Baska and J. George Bolton. The latter testified that he and Baska signed the will in the testator\u2019s presence. However, Baska testified his signature was not affixed in the presence of the testator. Baska and the testator were police officers assigned to duty at the dog pound in Chicago. In the front of the building in which the pound is located there was a room through the center of which ran a counter dividing the room into two parts. There were two desks on one side of the counter and this portion of the room was used for office purposes. On the evening of April 4, 1935, Bolton and Gloria Royston, friends of the testator, came to the pound and shortly thereafter coffee and pie were served. The testator then produced the purported will, stated what it was and asked the men to sign as witnesses. Bolton signed it and then the testator picked it up and took it over to Baslca\u2019s desk and asked him to sign it. Baska was busy at the time making out a report and asked if the testator and Bolton had signed it. Upon receiving an affirmative reply, he took the paper and he testified the testator thereupon left the room and went into the part of the building where the dog cages were located. Baska claimed he read the attestation clause and affixed his signature in the absence of the testator. Gloria Royston testified she was present and that Baska\u2019s signatures were affixed in the testator\u2019s presence. Baska was a notary public and not only signed the will as a witness but signed it in his official capacity and affixed his seal to the document.\nThe attestation clause stated that the will was signed, sealed, published and declared by the testator as and for his last will and testament in the presence of the witnesses, who, at the testator\u2019s request, and in his presence and in the presence of each other, had subscribed their names as witnesses thereto.\nThe testator was a divorced man with grown children. Josephine Schuerr became his housekeeper and the relations between her and Szarat were adulterous. She is the chief beneficiary under the will and is one of those named as executrices.\nSeveral witnesses were produced who testified that after the death of Szarat, Baska admitted he signed the will in the presence of the testator. Baska, however, denied making such admissions. Under the circumstances of this case, we think it is unnecessary to comment further upon that testimony. Here we have a will, where it is admitted that all signatures are genuine. One of the witnesses testified that the will was attested by both witnesses in the presence of the testator. The other witness makes denial of the very facts set forth in the attestation clause which he admits he read before signing the instrument, and his denial is made in the face of the facts that he added to the instrument the words \u201cSubscribed and sworn to before me this 4th day of April, 1935 \u2014 Leland K. Baska, Notary Public\u201d and affixed his seal.\nIn Kuehne v. Malach, 286 Ill. 120, Schofield v. Thomas, 236 id. 417, and Gould v. Theological Seminary, 189 id. 282, we quoted, with approval, from Orser v. Orser, 24 N. Y. 51: \u201cA will duly attested upon its face, the signatures to which are all genuine, may be admitted to probate although none of the subscribing witnesses are able to swear, from recollection, that the formalities required by the statute were complied with, and even though some of them should swear positively that they were not, if the other evidence warrants the inference that they were.\u201d We said in the Kuehne case: \u201cWhere the testimony of a living witness amounts to a positive denial of a certificate of attestation, the relative weight to be given the conflicting testimony would depend very largely on the apparent integrity and intelligence of the witnesses and the circumstances of each particular case. Where a witness who has subscribed to a will stating in the attestation clause all the facts required for a proper attesting of the will testifies on the hearing to a contrary state of facts, he thereby assumes an attitude which is not only inconsistent with the position that he has voluntarily taken but one that may well be argued to be suggestive of fraud and double dealing.\u201d\nIn Beck v. Lash, 303 Ill. 549, we said that an attesting witness cannot be too severely criticised for signing an attesting clause like the one in this case and then swearing to the contrary when he is produced as a witness in court. It is his duty either to refuse to become an attesting witness^ or else to know the character of the statements he signs and stand by them when called upon to testify. To the same effect is Hart v. Hart, 290 Ill. 476.\nThe testimony of a subscribing witness who seeks to impeach the will should be received with caution when his evidence is conflicting in itself and positively contradicted by other witnesses who appear to be credible. (Jenkins v. White, 298 Ill. 502.) While a subscribing witness is competent to impeach the due execution of a will, such testimony is received with caution and is rightly viewed with suspicion. (Kuehne v. Malach, supra; 14 Encyc. of Evidence, 422.) In Hutchison v. Kelly, 276 Ill. 438, and Kuehne v. Malach, supra, one of the subscribing witnesses in each case repudiated the statement signed, and denied that the testator was present when the instrument was signed by the witness. We held in each case that the preponderance of the evidence was contrary to the testimony of the witness. In the Hutchison case the judgment refusing probate was reversed, and in the Kuehne case the judgment admitting the will to probate was affirmed. It did not affirmatively appear in either of those cases that the witness had read the attestation clause.\nBaska\u2019s testimony that Szarat handed him the instrument and said it was his will, and that the witness did not think that Szarat knew the instrument was his last will, and his later statement that Szarat told him \u201cI\u2019ve got a will here\u201d is contradictory within itself and tends to discredit him. According to his testimony he had ample time to deliberate on the contents of the attestation clause. If Szarat was not present, it was Baska\u2019s duty to refuse to sign the will. If his testimony is to be believed, he knew the attestation clause was untrue, but nevertheless signed and notarized the instrument. While notarizing can lend no efficacy to a will nor detract from its validity, Baska undoubtedly understood that the jurat of a notary public is for the purpose of authenticating or verifying the statements in the instrument to which it is attached.\nThe will was executed on April 4 and Szarat died May 15. The order of the probate court denying probate of the will was entered on October 2. Baska\u2019s testimony in that proceeding was to the same effect as his testimony in the circuit court. This is not a case where the long lapse of time might account for a failure to rightly remember whether or not the testator was present when the witness signed and no such claim or suggestion is made. On the contrary, less than six months had elapsed since the execution of the will and Baska\u2019s testimony is positive that he signed it in the absence of Szarat. The manifest weight of the testimony shows that Szarat was present when Baska and Bolton signed the will as witnesses.\nThe judgment is reversed and the cause is remanded to the circuit court with directions to admit the will to probate.\nReversed and remanded, with directions.", "type": "majority", "author": "Mr. Justice Jones" } ], "attorneys": [ "Wachowski & Wachowski, (Casimir R. Wachowski, of counsel,) for appellant.", "Eugene Bernstein and Julius L. Handelman, (Maxfield Weisbrod, of counsel,) for appellees." ], "corrections": "", "head_matter": "(No. 23833.\nWilliam J. Szarat, Admr., et al. Appellees, vs. Josephine Schuerr, Appellant.\nOpinion filed February 12, 1937.\nWachowski & Wachowski, (Casimir R. Wachowski, of counsel,) for appellant.\nEugene Bernstein and Julius L. Handelman, (Maxfield Weisbrod, of counsel,) for appellees." }, "file_name": "0323-01", "first_page_order": 323, "last_page_order": 327 }