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REHEARINGS T)ENIED.

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.]

Bonham v. Doyle (Ind. App.) 77 N. E. 858. | Good v. Burk (Ind. Sup.) 77_N.E., 1080.
Bonham v. Doyle (Ind App.) 77 N. E. 859. Heigert v. State (Ind. App.) 75 N. E. 850. -
City of Crawfordsville v. Van Cleave (Ind. | Indianapolis St. Ry. Co. v. Hackney (Ind. App.)

App.) 77 N. E. 1149. 77 N. E. 1048.
Dill v. Fraze (Ind. App.) 77 N. E. 1147. - Morin v. Holliday (Ind. App.) 77 N. E. 861.
Elwood Natural Gas & Oil Co. v. Etchison | State v. Richcreek (Ind. Sup.) 77 N. E. 1085.

(Ind. App.) 77 N. E. 957. State ex rel. Board of Com’rs of Hamilton

Elwood Natural Gas & Oil Co. v. Glaspy (Ind. | County v. Williams (Ind. App.) 77 N. E. App.) 77 N. E. 956. - 1137. -

Elwood Natural Gas & Oil Co. v. Hughes (Ind. | Tolleston Club of Chicago V. Lindgren (Ind. App.) 77 N. E. 957. App.) 77 N. E. 818.

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THE

NORTHEASTERN REPORTER, "VOLUME 78.

(222 Ill. 26) WATERS et al. V. WATERS et al. (Supreme Court of Illinois. June 14, 1906.)

1. WILLS - VALIDITY – UNEQUAL DISTRIBUTION. The fact that there is an inequality in the distribution of the property of testatrix cannot of itself affect the validity of her will. [Ed. Note.—For cases in point, see Vol. 49, Cent. Dig. Wills, §§ 102, 203.]

2. SAME – PROBATE-ACTION TO WACATEPRIMA FACIE PROOF. Where, in a suit to contest a will, defendants introduced in evidence the certificate of the oaths of the subscribing witnesses to the will, such certificate was prima facie proof of the validity of the will and cast the burden on contestants to establish incapacity and undue influence alleged to invalidate the same. [Ed. Note.—For cases in point, see vol. 49, Cent. Dig. Wills, § 389.]

3. SAME – INCAPACITY – UNDUE INFLUENCEEVIDENCE. In a suit to contest a will, evidence held insufficient to establish either testamentary incapacity or undue influence. 4. SAME—EVIDENCE—DECLARATIONS OF TESTATRIX. In a suit to contest a will, declarations of testatrix that she wanted to deal equally with all of her family at one time, which were in conflict with the provisions of the will by which unequal distribution of her property was made, were inadmissible on the issue of undue influence. [Ed. Note.—For cases in point, see vol. 49, Cent. Dig. Wills, §§ 415–420.]

5. SAME—UNDUE INFLUENCE—INFLUENCE OBTAINED BY RIN DNESS. Undue influence sufficient to invalidate a will means influence wrongfully exerted, and does not include influence secured through affection or gained over testatrix by kindness and friendly attention to her. [Ed. Note.—For cases in point, see vol. 49, Cent. Dig. Wills, §§ # #7' 6. SAME—RNOWLEDGE OF CONTENTS OF WILL —EVIDENCE – INSTRUCTIONS-APPLICABILITY TO EVIDENCE. In a suit to contest a Will, it was proved that testatrix not only executed the will, but that she understood the act she was engaged in at the time by declaring to those present that the instrument before her was her last and only will, and also indicated that her mental condition was good by asking one of the subscribing witnesses concerning the health of one of his family and expressing regret that she was keeping the other from his work by requiring him to witness her will. Held, that the evidence was sufficient to justify a presump

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tion that testatrix had knowledge of the contents of the will, and hence, in the absence of evidence to the contrary, an instruction predicated on the fact that testatrix did not know the contents of the will, and had not been informed of its provisions, was objectionable as inapplicable to the evidence.

7. WILLS–GROUNDS—ISSUES AND PROOF. Where, in a suit to contest a will, the only grounds alleged were testamentary incapacity and undue influence, complainant could not impeach the prima facie case made by the introduction of the certificate of the oaths of the subscribing witnesses to the will, by proof that testatrix did not know the contents of the will when she signed it.

Appeal from Circuit Court, Stephenson County; R. S. Farrand, Judge.

Bill by Oliver P. Waters and others against Emma L. Waters and otherS. From a decree in favor of complainants, defendants appeal. Reversed and remanded.

This is a bill in chancery, brought by the appellees to contest the will of their mother, Mary Waters, late of Stephenson county. The bill was filed in the circuit court of Stephenson county by the appellees, two of the children of Mary Waters, against the other three children and the executor Of the eState, as defendants. The prayer of the bill is that the Will of Mary Waters, and the probate thereof, be set aside upon the alleged grounds that, at the time of the making of the will, Mary Waters was not of sound mind and memory, and that the signing of the will was procured from her by undue influence, exercised over her by her two daughters, the appellants Emma L. Waters and Lydia J. Stockberger. One of the defendants below, Carrie E. Waters, entered her appearance, but filed no answer, and default was taken against her. Answers were filed by Emma L. Waters and Lydia J. Stockberger, denying the material allegations of the bill, and an answer was also filed by the executor, Grant Byrnes. Replications were filed to the anSwers by the appellees, and the cause WaS tried before the court and a jury. The jury rendered a Verdict, finding that the instrument in evidence, purporting to be the last will and testament of Mary Waters, deceased, was not her will. Motion for new trial Was overruled, exception Was taken, and a decree Was entered in accordance With the verdict. The present appeal is prosecuted from Such decree. Mary Waters died, leaving a farm in Stephenson county of about 280 acres of land, a house, and lot in the Village of Ridott, and personal property Worth about $4,000, the Value of the Whole estate being about $24,000 or $25,000. The deceased was the Widow of Harvey Waters, who died in the Spring of 1899, having resided in Ridott about 12 years, and within a mile thereof over 50 years. She left surviving her, as her children and only heirs at law, four daughters, and One son, to Wit, the appellants, Emma L. Waters, Lydia J. Stockberger, and Carrie E. Waters, and the appellees, Oliver P. Waters, and Clara McCracken. Emma L. Waters and Carrie E. Waters, the two unmarried daughters, lived with their mother for years before and up to the time of her death. Lydia J. Stockberger and her husband lived at Pecatonica, about 10 miles from Ridott. Clara McCracken, the oldest child, was about 59 years of age, and had a son 28 years old, who was one of the witnesses in this cause. She lived in Ridott, but seems to have visited or been with her mother very little. Oliwer P. Waters lived in California at the time of his mother's death, and had been a resident of that state for some 10 or 12 years prior to her death. The will of Mary Waters was admitted to probate in the county court of Stephenson county, and letters testamentary were granted by that court to Grant Byrnes, the executor named in the Will, a nephew of the testatrix; his mother being her sister. By the terms of the will, after providing for the payment of her debts, the testatrix left to her daughter Emma L. Waters her residence in Ridott, with lots, barns, sheds, and everything belonging thereto, and all her personal property, consisting of beds, clothing, horses, and cattle, and all that Was in and around said residence; she left to her daughter Carrie E. Waters $1,000 in money. The will provided that the farm, and all the other real estate that she might own at her demise, should be divided equally between her daughters Lydia J. Stockberger, Carrie E. Waters, and Emma L. Waters to be for all claims for services against her estate; She left to her daughter Clara McCracken the sum of $5 for all claims and services against her estate; and to her son, Oliver P. Waters, the sum of $5 for all claims and Services against her estate. The will also provided that any moneys that were left after her just debts were paid should be divided equally between her daughters Lydia J. Stockberger and Emma L. Waters, and she therein stated that it was her desire that the girls should not sell the farm for some time, but Collect rent as their income until Sold. The Will was executed on August 7, 1901, at the residence of the testatrix in Ridott, and Was

apparently drawn by a justice of the peace and notary, living in Ridott, by the name of William K. McGilligan, who has since deceased, and was properly signed by the attesting witnesses. The subscribing witnesses appeared before the county court When the will was admitted to probate, and deposed that the instrument in question Was the last will of the testatrix, and that they subscribed their names thereto at the request of the testatrix, in her presence, and in the presence of each other, on August 7, 1901, and that she then and there subscribed her name thereto in their presence and declared the same to be her last will and testament; and that at the time of executing the same said testatrix was of full age, of sound mind and memory, and under no constraint.

H. C. Hyde, W. N. Cronkrite, and R. K. Walsh, for appellants. R. R. Tiffany, for appellees.

PER CURIAM. First. The Will in this case is attacked upon the two alleged grounds that the testatrix, at the time of making the Will, was not of Sound mind and memory, and was subject to undue influence exercised over her by her daughters Emma L. Waters and Lydia J. Stockberger. After a careful examination of this record and of all the testinhony in it, we are obliged to conclude that a finding that testatrix, at the time of executing the instrument in question, did not possess the requisite mental capacity to make a valid will, is against the manifest preponderance of all the evidence in this cause, and that on the other branch Of the Case' the evidence fails to show any Wrongful act On the part of the appellants Emma L. Waters and Lydia J. Stockberger, which was Calculated to unduly influence the testatrix to make the disposition of her property Which She did make. In finding their Verdict in this case the jury must have been influenced by the consideration that the testatrix left all her property to three of her children and cut off the other two, the appellees herein, with $5 apiece. Under the law, however, if she was of Sound mind and memory and acted as a free agent, she had a right to dispose of her property as she saw fit.

In Freeman V. Easly, 117 Ill. 317, 322, 7 N. E. 656, 658, We Said: “It accords With Common Observation that in Contests concerning wills, where the testator has made, or has Seemingly made, an unequal Or inequitable disposition of his property among those Occupying the same relatioli to him by conSanguinity or otherwise, there is a disposition in most minds to Seek for a Cause for holding the Will invalid. The inclination in this direction that is found to exist in the minds Of most, if not all, jurOrS, Cannot always be controlled by instructing them there is no law requiring a testator, nor is he bound, to devise his property equitably Or in equal proportions among his heirs. Of

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