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leged influencing parties knew of the will until tion of the proponents, instructed the jury to they were summoned to witness its execution. return a verdict finding that the writing pro[Ed. Note. For other cases, see Wills, Cent. duced is the last will and testament of Emma Dig. 769; Dec. Dig. 324(3).] C. Lloyd, deceased. After the proponents had 4. WILLS 285-PROBATE-PLEADINGS- moved the court to give the peremptory in

AMENDMENT.

In a suit to contest a will, it is not error to refuse to permit complainants to amend their bill after the evidence has been presented, where the allegations in the amendment did not conform to the proof made.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 646; Dec. Dig.

285.]

5. WILLS 327-PROBATE-TRIAL-DIRECTING VERDICT.

Where a motion is made to direct a verdict upon the issue of undue influence or testamentary capacity in a will contest case, the party resisting the motion is entitled to the benefit of all the evidence in its most favorable aspect to him. [Ed. Note. For other cases, see Wills, Cent. Dig. § 773; Dec. Dig. 327.]

Appeal from Circuit Court, Rock Island County; Wm. T. Church, Judge.

Suit by Milow Lloyd and another against Addison Rush and others. After answer by the named defendant and another, all the other persons made defendants to the bill were, upon motion of complainants, joined as complainants. From a decree for defendants, complainants appeal. Affirmed.

Robert R. Reynolds, W. C. Allen, and J. T. & S. R. Kenworthy, all of Rock Island, for appellants. Curtis & Simonson and Searle & Marshall, all of Rock Island, for appellees.

COOKE, J. Milow Lloyd and Luella L. Titterington, two of the heirs at law of Emma C. Lloyd, deceased, filed their bill in the circuit court of Rock Island county against Lovina Rush, Walter J. Lloyd, Eunice Laflin, Asenath Baker, Cornelius Baker, and Addison Rush, individually and as executor, to contest the validity of an instrument which had been admitted to probate by the county court of Rock Island county as and for the last will and testament of Emma C. Lloyd, deceased. The grounds of contest set up in the bill were mental incapacity, and undue influence exercised by Addison Rush and

Lovina Rush. Lovina Rush and Addison

Rush appeared and answered the bill, denying the allegations charging that Emma C. Lloyd was at the time of making her will of unsound mind and memory and the allegations charging that the will was obtained through undue influence exercised by them. Thereafter all the other persons made defendants to the bill were, upon motion of the complainants, joined as complainants. A replication having been filed to the answer, an issue at law whether the writing produced be the will of Emma C. Lloyd, deceased, was made up and submitted to a jury. The proponents offered all their evidence, including the testimony of numerous witnesses in chief. The contestants then offered their proof. At the conclusion of the taking of testimony on behalf of the contestants the court, upon mo

struction the contestants, by cross-motion, asked leave to amend their bill by adding thereto, immediately preceding the prayer for relief, allegations which, in substance, charged that James M. Beardsley, at the instigation of Lovina Rush and Addison Rush, induced Emma C. Lloyd to make a will; that Emma C. Lloyd directed Beardsley to have a will prepared making certain devises and bequests; that Beardsley prepared or had prepared a will in and by which the directions of Emma C. Lloyd were not carried out, and which was materially different from that directed by her to be made, and that Beardsley. With the aid and assistance of Lovina Rush and Addison Rush, at a time when Emma C. Lloyd was very ill and debilitated in mind and body, procured the execution of said will without advising her of the provisions therein which were at variance with her declared intention; that Emma C. Lloyd therefore did not know the provisions of the will which she executed and that the same was fraudulent

ly obtained from her. The court refused to permit the proposed amendment to the bill, but gave the peremptory instruction requested by the proponents. The jury returned a verdict in favor of the proponents, as directed by the court. After overruling a motion for a new trial the court entered a decre the last will and testament of Emma C. finding the instrument in controversy to be Lloyd, deceased, and dismissing the bill at the complainants have prosecuted this apthe complainants' costs. From that decree,

peal.

lants for reversal is that the court erred in [1] The only ground relied upon by appeldirecting the jury to return a verdict in favor of appellees.

death, on August 9, 1912, about 67 years of Emma C. Lloyd was at the time of her age. She had never been married. The appellants, Milow Lloyd, Luella L. Titterington, Asenath Baker, Walter J. Lloyd, and Eunice Laflin, and the appellee Lovina Rush, are her surviving brothers and sisters and her only heirs at law. Appellee Addison Rush is On June 7, the husband of Lovina Rush. 1912, Emma C. Lloyd executed the will in controversy. The first clause of her will provided for the payment of her debts and funeral expenses. The second clause was as follows:

"Second. I give, devise and bequeath unto my sister Lovina Rush the sum of ten thousand ($10,000) dollars in consideration of her loving care and kindness to me during the last seven years, and in addition to said bequest I also give, devise and bequeath to her all personal stocks, bonds, mortgages, notes or other interestproperty of every description, excepting moneys, bearing securities, to have and to hold unto said

Lovina Rush, her heirs and assigns forever. In case of the death of said Lovina Rush prior to my decease, then in that event it is my will that said sum of ten thousand ($10,000) dollars and said described personal property, excepting said moneys, stocks, bonds, mortgages, notes and other interest-bearing securities, shall vest in and become the property of Addison Rush, husband of said Lovina Rush."

By the third clause the testatrix devised to her sister Luella L. Titterington a lot in the city of Rock Island, and by the fourth clause all the rest, residue, and remainder of her estate was devised and bequeathed in equal parts to her brothers and sisters named, as follows: Milow J. Lloyd, Walter J. Lloyd, Lovina Rush, Asenath Baker, Eunice Laflin, and Luella L. Titterington. By the

fifth and last clause of the will the testatrix

nominated Addison Rush sole executor of the will without bond, and gave the executor power to sell, dispose of, and convey any and all real estate of which she should die seised or possessed, except the lot devised to Luella L. Titterington, at such price and upon such terms as to the executor should seem to be

for the best interest of the estate.

The testatrix had resided on a farm in Rock Island county all her life. This farm, consisting of 160 acres, had belonged to her father, Joseph W. Lloyd, in his lifetime, and after the death of her father and mother she claimed to own it. During the latter part of his life Lloyd was blind, and, in addition to his wife and daughter Emma, another daughter, Eunice Laflin, and her husband, resided with

the Lloyd family, the husband of Eunice Laflin doing the farm work. After the death of Joseph W. Lloyd, Eunice Laflin and her husband continued to reside with the Lloyd family under the same arrangements as existed before the death of Joseph W. Lloyd until 1906, when the appellees, Lovina Rush and Addison Rush, became members of the Lloyd family, and Eunice Laflin and her husband thereupon left the farm. A few years before her death Mrs. Lloyd became paralyzed, and thereafter until her death was unable to walk. About the time Lovina Rush and her husband took up their residence with Emma C. Lloyd and her mother Miss Lloyd became afflicted with rheumatism, which continued to become worse, until during the last year of her life she was practically helpless. During all this period Lovina Rush attended to the household duties and took care of her sister and her mother during their sickness, and Addison Rush, under the direction of Miss Lloyd, attended to the farm. Dr. Allen J. Miller had been the family physician for many years. Beginning on June 4th, and continuing for nine consecutive days there after, Dr. Miller administered to Miss Lloyd a treatment which he designated the Phylacogen treatment for rheumatism. This treatment, according to the testimony of Dr. Miller, consisted of the hypodermic injection of a certain vaccine. He testified that the vaccine contained nothing that would tend to

stupefy the brain or affect the mind in any way, and that the only complaint made by Miss Lloyd as a result of this treatment was of soreness for two or three days at the place where the needle had been inserted.

James M. Beardsley, who resided in the city of Rock Island, was an uncle of Emma C. Lloyd; he being a brother of her mother. Miss Lloyd having sent word by Beardsley's wife that she wanted to see him, Beardsley on June 6, 1912, together with his wife, went to the Lloyd homestead. Miss Lloyd took Beardsley into her bedroom and told him that she wanted to make a will. Beardsley told her to get a lawyer, and mentioned the names of two lawyers practicing in the city of Rock Island. Neither of the attorneys suggested by Beardsley being satisfactory to her, she named Hugh E. Curtis as the attorney she desired to draw her will. Beardsley then told her it was not necessary to have Curtis come to the farm; that she could tell him (Beardsley) what disposition she desired to make of her property, and he would make a memorandum of the provisions and take it to Curtis, and Curtis could draw the will from the memorandum. At first she stated that she wanted her sister Mrs. Rush to have one-third of the farm and all of the personal property, the balance of the farm to be divided among her other brothers and sisters, and Beardsley made a memorandum in ache had made this memorandum she asked cordance with this expressed desire. After him if she could not leave Mrs. Rush $10,000 or $12,000 or $15,000 for her services in taking care of herself and her mother during the last seven years, and make it a charge upon the real estate and then divide the property among the brothers and sisters. Beardsley suggested that $10,000 was a large sum, but she said that Mrs. Rush deserved more than that, and told Beardsley to "put in $10,000." She further told him that she wanted to leave a lot which she owned in the city of Rock Island to her sister Luella L. Titterington, and the balance of her property should be divided equally among all of them, and that she wanted Addison Rush to be executor without bond. Thereupon Beardsley made another memorandum in accordance with the directions last given by her. Beardsley and Miss Lloyd were the only persons in the bedroom during this conversation concerning the making of the will. Beardsley returned to the city of Rock Island the same day, and the following morning called upon Hugh E. Curtis, gave him the memorandum last made by him, and told him that Miss Lloyd desired a will drawn as soon as possible. Curtis prepared the instrument in controversy from the memorandum left with him by Beardsley, and delivered it, together with a copy, to Beardsley about noon of June 7, 1912. Beardsley asked one of his former employés, John H. Ransom, to go with him to the Lloyd farm to witness a will. They arrived at the

room 10 or 15 minutes; that he later returned to her room before he left for home, and she then recognized him and told him she wanted him to come back again.

farm between 2 and 3 o'clock in the after- the room; that the witness remained in the noon and found Miss Lloyd in bed. Beardsley went into the bedroom alone and told her that he had "got it all fixed up," and at her request read the will to her. He then asked her if she wanted to read it herself. She replied that she did, and read both the instrument, which she thereafter executed, and the copy, after which she said it was all right. Beardsley asked her if she wanted Mr. and Mrs. Rush present. She replied that she did, and Beardsley then called Ransom and Mr. and Mrs. Rush, telling them that Miss Lloyd wanted them to see her sign her will. Ransom came into the room first, then Mrs. Rush and a little later Mr. Rush, and the will was there duly executed by Emma C. Lloyd in the presence of these parties; Beardsley and Ransom signing the will as attesting wit

nesses.

Eighteen witnesses called by the proponents testified that Emma C. Lloyd was during her lifetime of sound mind and memory and capable of transacting ordinary business. These witnesses included James M. Beardsley and John H. Ransom, the attesting witnesses to the will, who testified that she was of sound mind and memory when she executed the will; Mrs. Beardsley, who visited her at her home on the day preceding the execution of the will and on two occasions subsequent thereto; Dr. Miller, the physician who had attended upon her for many years preceding her death, and who saw her each day from May 1 to June 12, 1912; various mechanics who had worked upon the Lloyd buildings during the summer and fall of 1911; some of the neighbors who had called upon her about the time of the execution of the will; and a school-teacher who boarded with her

Mrs. Harriet Taylor Crawford, called by appellants as a witness, testified that she lived near the Lloyd farm; that she visited Miss Lloyd at her home on one occasion during the period she was taking treatments from Dr. Miller for rheumatism; that she was sitting in a chair in the dining room; that she was suffering, and told the witness that she was taking the new treatment for rheumatism, that it was pretty severe, and that she did not know whether it would help her or not. This witness was then asked whether, in her opinion, Miss Lloyd was on this occasion of sound mind and memory, and she answered, "The way she was suffering I don't see how she could be." Upon motion by appellees this answer was stricken. Other questions subsequently propounded to this witness by the attorneys for appellants called for her opinion upon the mental condition of the deceased at the time referred to by her, but she insisted that she could answer the question in no other way than that in which she had answered it. On cross-examination she stated that she had known Miss Lloyd for many years, and had frequently called upon her at her home; that she was of unsound mind; that she was not, she did not mean that during these years but she had never seen her suffering before; that she meant that on the particular occasion referred to in her direct examination Miss Lloyd was suffering so that she thought she might not be able to transact business at that time.

the witness called upon her at her home on one occasion while she was taking treatments from Dr. Miller for rheumatism; that she was then in bed; that the witness went into her room and asked her how she felt, and she said she "wasn't very good." The witness was then asked whether, in her opinion, Miss Lloyd was on this occasion of sound mind, and replied:

"Well, I am not a physician; I am not in position to say that she was of sound mind."

Mary I. Weiss, called as a witness by apa considerable portion of the time from the pellants, testified that she lived on a farm fall of 1910 to June 1, 1912. adjoining the Lloyd farm; that she had Lowell Titterington, a son of Luella Tit-known Emma C. Lloyd for 15 years; that terington, was called as a witness by appellants. He testified that about the middle of June, 1912, he, together with his mother and his aunt Mrs. Laflin, went to the Lloyd farm, arriving there about 2 o'clock in the afternoon; that Mrs. Rush met them at the door and invited them to enter the house; that his mother asked Mrs. Rush how Miss Lloyd was, and Mrs. Rush replied that she was very sick, and asked them if they wanted to go into her room and see her; that all of them went into her bedroom; that she was in bed, and appeared to be "in a sort of a stupor"; that she made no move at all when they entered the room until Mrs. Rush said, "This is Eunice and Ella," and that she "kind of roused up a little," but said nothing; that the witness was on the other side of the bed, and Mrs. Rush said, "This is Lowell," and that she "kind of roused up again" as though it was all she could do to move; that his mother asked her how she felt, and she replied, "Not very good"; that Miss Lloyd did

She was then again asked whether in her opinion she was of sound mind when she saw her upon this occasion, and replied:

"Well, it has always been a mystery to me whether she was during this time. up to that time I would say that I never saw her when I thought she wasn't in her sound mind."

[2] This was all the testimony offered by appellants bearing upon the mental condition of Miss Lloyd. The testimony of each of these three witnesses was simply to the effect that Miss Lloyd was sick and suffer

they testified. There was nothing in the |ited Beardsley to procure the drafting of her testimony of any of them that tended to will. It is true that there is proof that in prove mental unsoundness. Only two of some particulars the will as drafted did not these witnesses expressed an opinion regarding the mental condition of the testatrix, and their opinion was entitled to no consideration whatever, as no facts or circumstances were testified to upon which an opinion bearing upon the mental condition of Miss Lloyd could be based. The opinion of a nonexpert witness that a testator is not of sound mind and memory is entitled to no weight when he states no facts or circumstances which could induce a reasonable belief of unsoundness of mind. Brainard v. Brainard, 259 Ill. 613, 103 N. E. 45. The court did not err in directing a verdict so far as this issue was concerned.

conform to the memorandum Beardsley made at the time he received the directions from Miss Lloyd. For instance, Miss Lloyd informed Beardsley that she desired to make the bequest to Mrs. Rush in consideration of the services she had performed, and in drafting the will a provision was inserted that in case of the death of Mrs. Rush prior to her decease the bequest of $10,000 and the personal property bequeathed should become the property of Addison Rush. In the directions given Beardsley Miss Lloyd indicated that she desired to bequeath to Mrs. Rush all her personal property. As the will was drafted she bequeathed to her all her personal property, except moneys, stocks, bonds, mortgages, notes, or other interest-bearing securities. This exception was inserted by the attorney who drew the will. Beardsley was directed to have the will provide that Addison Rush should be the executor thereof without bond. As drawn, the will so appointed Addison Rush executor, and contained an additional provision that he should have "Undue influence that will avoid a will must the power to sell, dispose of, and convey any be 'directly connected with the execution of the and all real estate of which the testatrix instrument and be operating when the will is should die seised or possessed, except the lot made. It must be influence specially directed toward procuring the will in favor of particular in Rock Island, at such price and upon such parties, and be such as to destroy the freedom term's as should seem to him to be for the of the testator's will and render the instrument best interests of the estate. Beardsley testiobviously more the offspring of the will of others than of his own.' Snell v. Weldon, 239 Ill. 279 [S7 N. E. 10221." Bowles v. Bryan, 254 Ill. 148, 98 N. E. 230.

[3] The bill charged that the will was procured by the undue influence of Lovina and Addison Rush. There is a complete lack of proof to sustain this charge. It does not appear that either Lovina Rush or her husband knew that Miss Lloyd was contemplating making a will, or had made one, until they were summoned by Beardsley to witness the execution of the instrument.

It is insisted that a fiduciary relation existed between Addison Rush and Miss Lloyd, and therefore the burden was upon him and his wife to prove an absence of fraud and undue influence. We are of the opinion that the facts proven were not sufficient to establish the existence of a fiduciary relation; but, even if such relation had been established, in the absence of any showing that either of them was in some way instrumental in procuring the making of the will, the burden did not rest upon them to show an absence of fraud or undue influence. Bauchens v. Davis, 229 Ill. 557, 82 N. E. 365.

fied that in these particulars the will as drawn did not follow specifically the directions as given him by Miss Lloyd. The testimony discloses, however, that Beardsley read the will over to Miss Lloyd before she executed it, and that she read it twice herself and discussed some of its provisions with him, commenting particularly upon the exception in reference to the personal property. She executed the instrument and delivered it to Beardsley for safe-keeping and retained a carbon copy, stating that she would keep the copy and would let him know if she desired to make any changes. All the testimony is to the effect that Miss Lloyd thoroughly understood all the provisions of the instrument which she executed, and that the same was drawn according to a plan which she had formulated and had had in contemplation for many months.

[4] The court properly refused to permit the appellants to amend their bill after the evidence had all been presented; as the allegations contained in the amendment did not [5] Where a motion is made to direct a conform to the proof made. There was noth-verdict upon the issue of undue influence or ing shown tending to prove that Beardsley testamentary capacity in a will contest case acted at the instigation of Lovina and Addi- the rule is the same as applies to such a moson Rush, or that Beardsley, with the aid tion in a suit at law, and the party resistand assistance of Lovina and Addison Rush, ing the motion is entitled to the benefit of at a time when Miss Lloyd was ill and de- all the evidence in its most favorable aspect bilitated in mind and body, procured the ex- to him and of all presumptions that may be ecution of the will without advising her of reasonably drawn therefrom. Yess v. Yess, the provisions therein which were at variance 255 Ill. 414, 99 N. E. 687. The question prewith her declared intention, or that Miss sented by a motion to direct a verdict in Lloyd did not know the provisions of the such a case is whether there is any evidence will, and that the same was fraudulently ob- fairly tending to prove the cause of action tained from her. Miss Lloyd, without the or fact affirmed. Geiger v. Geiger, 247 Ill. knowledge of Lovina or Addison Rush, solic-629, 93 N. E. 314. As there is no evidence in

441-CONSTRUCTION-METHOD.

In construing a will, the language should be considered with reference to the facts of the par

this record fairly tending to show that the 19. WILLS
testatrix was of unsound mind or that the
will was procured by the exercise of undue
influence the decree of the circuit court is af-
firmed.

Decree affirmed.

(273 Ill. 458)

O'HARE et al. v. JOHNSTON et al. (No. 10422.)

(Supreme Court of Illinois. June 22, 1916.) 1. PERPETUITIES 4(4)-RULE AGAINST.

Under the rule against perpetuities, no interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within 21 years after some life in being at the creation of the interest.

[Ed. Note.-For other cases, see Perpetuities, Cent. Dig. § 8; Dec. Dig. 4(4).]

2. PERPETUITIES 4(1)-RULE AGAINST-IN

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If the provisions of a will are of such a character that under them a violation of the rule against perpetuities may possibly happen, the devise is void.

[Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 5, 6; Dec. Dig. 4(2).]

4. PERPETUITIES 4(15) TRUSTS - VIOLA

TION.

ticular case.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 958; Dec. Dig. 441.] 10. WILLS 682(2)-CONSTRUCTION-VESTED

ESTATES.

Where a testator bequeathed securities in trust, directing the trustee to hold them for 30 years and to pay the income to his son and daughter semiannually, with provisions over in case of the death of either, creates a vested estate in the income in favor of the son and daughter.

[Ed. Note.-For other cases, see Wills, Cent.

Dig. §§ 1607-1611; Dec. Dig. 682(2).]
11. WILLS 634(7)-CONSTRUCTION-RULES.

It is a general rule of construction that a gift contained only in the direction to pay the principal of a trust fund at the expiration of the trust raises a presumption that the legacy is contingent.

[Ed. Note. For other cases, see Wills, Cent. Dig. 1495; Dec. Dig. 634(7).]

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13. WILLS

ING ESTATE.

Testator's will creating a trust for 30 years, directing payment of income to his son and daughter for such period and delivery of the principal to them at its expiration, and providing that if either should die having a child or children before testator's death, or before expiration of the trust, the income and the principal at the expiration of the 30-year period given by the will to the parent of the grandchild or grandchildren should be paid to such grandchild or grandchildren, gave a vested interest to the daughter of [Ed. Note. For other cases, see Perpetuities, the testator's daughter to whom the entire inCent. Dig. §§ 31, 32, 35, 36; Dec. Dig. without other children and of the testator's son come was payable upon the death of her mother 4(15).] without children.

A violation of the rule against perpetuities will not be tolerated because the property is covered by a trust, nor will the rule permit limitations of future equitable interests to transcend those of legal interests.

5. PERPETUITIES 4(3) INTEREST SUBJECT

TO.

A vested interest is not subject to the rule against perpetuities.

[Ed. Note.-For other cases, see Perpetuities, Cent. Dig. § 7; Dec. Dig. 4(3).]

6. PERPETUITIES 4(3) - RULE AGAINST VESTING.

-

If the title vests within the period of the rule against perpetuities, it is immaterial whether the person in whose favor the provision was made had the right to possession and enjoyment of the property within that period.

[Ed. Note.-For other cases, see Perpetuities, Cent. Dig. § 7; Dec. Dig. 4(3).]

7. WILLS 439-CONSTRUCTION.

In construing a will, all of the rules of construction should be considered; but the primary rule is that the intent of the testator shall prevail provided it be not contrary to law.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. 439.] 8. WILLS 455-CONSTRUCTION-RULES.

While in construing a will precedents are of small value, yet they are to be considered in determining the meaning of the language.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 972, 973, 976; Dec. Dig. 455.]

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1496; Dec. Dig. 634(8).]

14. WILLS 674-"SPENDTHRIFT TRUST."

A "spendthrift trust," which is created with a view to providing a fund for the maintenance of another and at the same time securing it against his own improvidence by restraints against alienation, will be upheld regardless of whether the beneficiary be a spendthrift, if it was the testator's intention to create such a trust.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1585; Dec. Dig. 674.

For other definitions, see Words and Phrases,
First and Second Series, Spendthrift Trust.]
15. PERPETUITIES 4(3) - SPENDTHRIFT
TRUSTS-VESTING OF ESTATE.

A beneficiary of a spendthrift trust may take a vested estate. Therefore a trust will not be held invalid under the rule against perpetuities because it was a spendthrift trust where the estate was vested.

[Ed. Note.-For other cases, see Perpetuities,

Cent. Dig. § 7; Dec. Dig. 4(3).]

16. PERPETUITIES 4(3)—INTEREST VESTING.

Where directions for the continuance of a trust were for the benefit of a testator's estate, such directions will not be held to render pro

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