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(146 N.E.) that question of fact on the evidence then in to Sander for the term ending November 30, the record.

1924. That Schwab by the lease reversed the There are many points raised by the ap- right to remove to the rear of the demised lot pellants in this record that we will not con- a frame building known as the Harter dwellsider because we have already passed upon ing, then located on adjoining property. Thạt all the questions that are properly in the rec- the lease contained the following provision: ord.

"It is understood and agreed that the party As the judgment in the Simpson Case, suo of the second part shall, in case of a bona fide pra, was reversed solely upon a question of sale of said premises, have a first option to fact and the cause remanded, the judgment purchase during the life of this lease at a on the record now before us will be reversed price of $13,500. However, if the Harter and the cause remanded for a further trial. dwelling is moved on the rear of said premReversed and remanded.

ises, as stipulated in this lease, said $13,500 sale price is to be increased by a fair cash ap

praisal value of the Harter dwelling." FARMER, J., dissenting.

That on or about April 15, 1922, and sub

equently, Schwab urged Sander to purchase (315 III, 623)

the property in accordance with the option. SANDER V. SCHWAB. (No. 16506.)

That prior to May 12, 1924, the Harter dwell(Supreme Court of Illinois. Feb. 17, 1925.) ing had been moved upon the leased ground,

and on that day Sander notified Schwab, in 1. Frauds, statute of Omw 106(2)-Oral portion writing, that he (Sander) would exercise the of contract for sale of land not enforceable. option to purchase and offered to pay $13,500

A contract for sale of land cannot be part and the appraised value of the frame buildly oral and partly in writing, and, where stat- ing,

stipulated in the lease, That ute is invoked as defense in bill for specific Schwab's attorney replied by letter on May performance of such contract, oral agreements 15 that his client had not contemplated the are pot enforceable.

sale of the property and declined to recog. 2. Landlord and tenant @w92(1)-Condition, nize any claim on Sander's part beyond his giving lessee right to purchase demised prop-rights as a tenant. That Schwab agreed, in erty dependent on actual sale.

case Sander availed himself of the option, to Where lease clause gave lessee, in case of furnish a certificate or abstract of title or sale, first option to purchase at a fixed price, title guaranty policy and to adjust the rent, right to purchase was conditioned on actual sale, and mere desire or intention on lessor's water rates, insurance premiums, and taxes, part to sell, or request by him on lessee to and that, although Sander was ready, willpurchase, is not equivalent to a sale.

ing, and able to perform on his part, Schwab

refused to sell or convey. 3. Specific performance 30—Option to les

Schwab interposed to the bill a general and see to purchase demised property held too special demurrer, which assigned as a cause indefinite for specific enforcement.

the statute of frauds. The demurrer was Lease clause giving lessee, in case of sale, sustained, Sander elected to abide by his first option to purchase at a fixed price, but not specifying terms or conditions, held too indefi- amended bill, and it was dismissed for want nite for specific enforcement.

of equity. He prosecutes this appeal.

[1] The only written portion of the conAppeal from Superior Court, Cook County; tract upon which appellant relies is the opCharles M. Foell, Judge.

tion contained in the lease. The request by

Schwab that Sander purchase the property, Suit for specific performance by Jacob

and Schwab's agreement to furnish evidence Sander against Jacob Schwab. From a de

of title in some form and to adjust the incree dismissing bill for want of equity, complainant appeals. Affirmed.

come from and the current charges against

the property, were orally made. A contract for Martin W. Grosse, of Chicago, for appel- the sale of land cannot be partly oral and

partly in writing. Stein v. McKinney, 313 Wyman, Hopkins, McKeever & Colbert, of i1l. 84, 144 N. £. 795; Elwell v. Hicks, 238 Chicago (Vincent D. Wyman and Austin L. 111. 170, 87 N. E. 316. The statute of frauds Wyman, both of Chicago, of counsel), for ap- is invoked as a defense and the oral agree

ments are not enforceable. Stein v. McKin

ney, supra. DE YOUNG, J. On July 14, 1924, Jacob [2, 3] The lease gives appellant, in case of Sander filed his amended bill for specific per- a bona fide sale of the demised property, a formance against Jacob Schwab in the supe first option to purchase it during the term rior court of Cook county. In the bill it is at a price fixed or ascertainable. By the proalleged: That on November 26, 1921, Schwab vision appellant's right to purchase is not by a written lease demised certain premises absolute, but is conditioned upon an actual known as 7513 Madison street, Forest Park, / sale of the property. No duty or obligation

lant.

pellee.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to sell is imposed upon appellee. A mere de- , due influence arises, casting on him burden of sire or intention on his part to sell, or an oral showing that will was freely and voluntarily request by him upon the appellant to pur- executed by testator. chase, is not equivalent to a sale. There is

6. Wills mw 163(2)-Employment of attorney no allegation in the bill that appellee made

for estate of testatrix's deceased husband to a sale of the property. Hence the condition

draw will in favor of coexecutor held not which would give appellant the right to pur to raise presumption of undue influence by chase has not happened. Moreover, the op attorney. tion did not, apart from the price, specify Employment of attorney for estate of testathe terms and conditions of sale, and is too trix's deceased husband to draw her will held indefinite to be specifically enforced. Stein not to raise presumption of undue influence by v. McKinney, supra; Edwards v. Brown, 308 i him, as having been induced by chief beneIll. 350, 139 N. E. 618; Brach v. Matteson, ficiary, who was coexecutor of such estate. 298 Ill. 387, 131 N. E. 804; Moore v. Machin- 7. Wills Om 166(1)-Delay in settlement of esery Sales Co., 297 Ill. 564, 131 N. E. 141; tate held not to show purpose of influencing Gronowski v. Jozefowicz, 291 Ill. 266, 126 decedent's widow to make will. N. E. 108; Elwell v. Hicks, supra; Kopp v. That estate of testatrix's deceased husband Reiter, 146 Ill. 437, 34 N. E. 942, 22 L. R. A. was not finally settled, or final payment made 273, 37 Am. St. Rep. 156; McConnell v. Brill- to testatrix, until after execution of her will, hart, 17 Ill. 354, 65 Am. Dec. 661.

held not to show purpose of influencing her to The superior court properly sustained the will property to one of executors of husband's

estate. demurrer to the amended bill of complaint, and its decree will be affirmed.

8. Witnesses Om 140(2)-Interest disqualifying Decree affirmed.

witness must be such that pecuniary gain or loss will result from judgment or decree.

Interest rendering witness incompetent (315 Ill. 385)

must be such that pecuniary gain or loss will BIITT et al. v. DARNELL et al. (No. 15646.) come to him directly as immediate result of

judgment or decree. (Supreme Court of Illinois. Feb. 17, 1925.) 1. Wills Om 157–Testatrix's relations to bene. 9. Witnesses Ow140(2)-Attorney for executor ficiary held not to invalidate will for undue

held not disqualified to testify for him by in

terest in litigation. influence. That testatrix's relations to grandnephew,

That another administrator, who might emwhom she had reared as her foster son, were ploy another attorney, might be appointed, if such that he might have influenced her, and will were set aside, or that executor might lose that he benefited largely by her will, held in- some property and be less able to pay fees, or sufficient to establish undue influence; the will have less occasion to employ attorney, does not being unreasonable or unnatural,

not give his attorney such interest in litigation

as to make him incompetent to testify for es2. Wills Om 157-Will held not void for undue ecutor. influence of testatrix's companion and at

10. Wills Cm 400-Decree dismissing contest tendant.

on verdict in favor of mental competency of Will bequeathing $4,000 to female com

testatrix will be affirmed, in absence of subpanion and attendant accompanying testatrix to stantial error on trial. attorney's office, where will was executed, in

Where evidence amply sustains verdict that ordinary course of duties, held not void for undue influence, in absence of evidence that lega-clusions from opinions expressed are conflict.

testatrix was mentally competent though contee was present when will was discussed or ing, decree dismissing contest must be afirmed. executed.

unless record shows substantial error on trial. 3. Wills no 157Confidential relation no obstacle to making will in favor of confidant.

11. Wills Ow303(2)-Execution and competen

cy of testatrix are established prima facie by Existence of confidential relation is no ob

certificate of sworn declaration of witnesses. stacle to making a will in favor of one in whom confidence is reposed.

Introduction of will and certificate as to

sworn declaration of two credible witnesses, re4. Wills 163(2)-No presumption of undue quired by Wills Act, $ 2, prima facie establishes

influence arises because fiduciary is made testator's competency and execution of will, beneficiary.

though jury are required by section 7 to give No presumption arises from existence of certificate only such weight as they think it fiduciary relation that will in favor of fiduciary deserves. was executed as result of undue influence.

12. Wills 303(2)→Subscribing witnesses' 5. Wills Cum 163(4)-Presumption of undue in oath as to belief that testatrix was compe.

fluence by confidant preparing or participat. tent when oath was taken does not make ing in preparation and execution of will. prima facie case in favor of will.

Where one occupying confidential relation Certificate of subscribing witnesses' oath to testator prepares, or participates in prepara- as to their belief that testatrix was of sound tion and execution, of will, presumption of un- I mind and memory when oath was taken, in

OmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(146 N.E.) stead of when will was executed several months | 19. Trial 199— Instruction held erroneous before, does not establish prima facie case in as submitting legal question whether witnessfavor of will under Wills Act, $ 7.

.es stated facts justifying formation of opin

ion as to testatrix's mental capacity. 13. Wills um 294—Competency of attesting

Instruction that, if any witness testified witnesses is tested as of date of execution as to testatrix's mental capacity without statof will,

ing facts warranting conclusion, jury was not The competency of attesting witnesses re- bound to accept opinion and should not do so. quired by Wills Act, $ 2, is tested as of time if they believed witness was mistaken or withwill was executed, not the time of probate, and out knowledge of facts warranting opinion, held witnesses competent at time of execution are erroneous as capable of construction as subnot rendered incompetent because of subse- mitting legal question whether witnesses stated quent incompetency, nor will witnesses, in- facts justifying formation of opinion. competent at date of execution, be permitted to 20. Wills 400—Instruction submitting legal support probate because of subsequent removal

question whether witnesses stated facts jusof cause of incompetency.

tifying formation of opinion held not reversi

ble error. 14. Wills Cow 303(2)-Witnesses must swear to belief, at time of attesting will, that testa. Instruction, capable of construction as subtor was of sound mind and memory, though mitting to jury legal question whether witnessnot necessarily in words of statute.

es stated facts justifying formation of opinSubscribing witnesses need not make dec-ion as to testatrix's mental capacity, held not laration on oath in words of statute (Wills ground for reversal of decree dismissing conAct, $ 2), but must declare things required test, in view of whole record. thereby, including belief, at time of attesting 21. Wills Cm292—Source of testatrix's title will, that testator was of sound mind and held immaterial in will contest. memory.

Source of testatrix's title held immaterial

in will contest for mental incapacity and undue 15. Wills Ow52(1),Burden on contestants to

influence. prove testator's insanity.

22. Wills 53(1)-Will of testatrix's deceasBurden is on contestants to prove testator's

ed husband and records in connection with his Insanity.

estate held inadmissible to show that testa

trix did not appreciate amount or value of 16. Wills 400—Instruction on burden of

her property.
proof held not harmful, though based on er.
roneous instruction as to sufficiency of afi-

In will contest for mental incapacity and davits to make prima facie case.

undue influence, will of testatrix's deceased Instruction that, if prima facie case was tion with his estate, and records of suit for

husband, inventory and other records in connecmade, burden was on contestants to show that partition of his lands, held inadmissible to testatrix was of unsound mind when will was show that testatrix did not appreciate amount executed, held not harmful to contestants, or value of her property when she executed though based on erroneous instruction that will,

will. . with subscribing witnesses' affidavit as to their belief, when oath was made, that testatrix 23. Wills Cm 164(4)-Exclusion of will of tes. was of sound mind, made prima facie case,

tatrix's deceased husband, and records of. where such case was made by testimony of

fered to show confidential, relation between witnesses themselves.

testatrix and beneficiary held not error where

such relation was otherwise established. 17. Evidence

em 474(4)-When nonexperts In will contest for undue influence exclumay testify as to mental capacity stated. sion of will of testatrix's deceased husband, in

Nonexpert witnesses may testify as to men- ventory and other records in connection with tal capacity only when shown to have had suf- his estate, and records of suit for partition ficient acquaintance with alleged incompetent of his lands, offered to show beneficiary's conand sufficient opportunity to judge of his men- fidential relation to testatrix, held not error, tal capacity, and their opinions should be ex- where such relation was established by other cluded until they have related facts and cir- evidence. cumstances affording reasonable ground for 24. Witnesses en 140(9)-Husband of testabelief.

trix's heir held incompetent to testify for

contestants.
18. Evidence 568(2)-Opinions as to men-
tal capacity weighed, with facts on which

Husband of testatrix's heir, wlio died bebased, according to witness intelligence, ac- fore trial of will contest to which she was quaintance with alleged incompetent, means party, leaving the husband and two children, of observation, etc.

who were all made parties, was interested in

estate, and hence incompetent to testify for Admissibility of witness' opinion as to men

contestants. tal capacity is question of law for court, and opinions admitted must be considered' and 25. Witnesses C236(1)-Question if witness weighed by jury, in connection with facts given

knew whether alleged incompetent testatrix by witnesses as basis of opinions, according to

had mortgage on home, which she threatened witness' intelligence, capacity to form opinion,

to take away from owner, held permissible. acquaintance with alleged incompetent, means

In will contest for mental incapacity, it was of observation, and veracity.

proper for contestants to ask witness if he For other cases see game topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

knew whether testatrix had mortgage on home real and personal. It does not appear from of one, from whom other witnesses had testified the evidence that she ever had any other that she said she would take it away if it were property except 80 acres of land given to her not for his wife.

by her father upon her marriage and from 26. Wills Ow400-Sustaining objection to ques. $1,500 to $2,000 which she received from her

tion, answer to which would have been cumu- father's estate. Clarence Darnell, who was lative only, not prejudicial error.

a grandnephew, and John C. Britt, who was Error in sustaining objection to question a nephew of Mrs. Burt, the latter being one asked witness by will contestants as to wheth--of the contestants in this suit, were execuer he knew if testatrix had mortgage on home, tors of the will of John H. Burt, and on which she told other witnesses she would take April 12, 1910, Mrs. Burt executed a written away from owner, if it were not for his wife, instrument whereby she empowered Darnell, held not prejudicial, where there was no serious as her attorney, “to sign all legal papers, of dispute as to fact that she had no such mort

any and all description," for her. She ingage.

trusted to him, after her husband's death, Appeal from Circuit Court, Tazewell Coun- the active control and management of her ty; C. V. Miles, Judge.

affairs and property. She had taken him Suit by R. M. Britt and others against from his mother, her niece, when he was a Clarence Darnell and another to contest the baby, into her own home, and she and her will of Mary H. Burt, deceased. From de

husband had reared him as their own child. cree of dismissal, complainants appeal. Af- Mrs. Burt in devising all her property to

him referred to him in her will as her foster firmed.

son, and she was in the habit of calling him Livingston & Whitmore and William C. her son and treated him as such. Sarah A. Radliff, all of Bloomington, and Prettyman, Glodfelter, to whom the will required DarVelde & Prettyman, of Pekin, for appellants. nell to pay $4,000, was not related to the

Thomas A. Kennedy, of Bloomington, and testatrix, but for four years before the exeJesse Black, Jr., of Pekin, for appellees. cution of the will had been her companion,

living in her home, in constant attendance DUNN, J. Mary H. Burt, who lived in the upon her, caring for all her wants, driving village of Armington, in Tazewell county, her car when she rode, constantly with her executed her will on March 10, 1916, and died at home and abroad. Their relations were on June 24, 1921, at the age of 87 years. very close and continued to Mrs. Burt's She was the owner of more than 1,000 acres death. These are the two beneficiaries by of land in the neighborhood of Armington reason of whose improper restraint and unand of other real estate and personal prop- due influence the bill charges the testatrix erty, all of the value of $329,676.19, as shown executed her will, and it is insisted that the by the inventory of her estate, all of which, court erred in withdrawing the question of after the payment of her debts and funeral undue influence from the consideration of the expenses, she devised to Clarence Darnell. I jury. subject to the payment of 25 specific lega [1] After the death of John H. Burt, Judge cies, amounting to $23,700, 23 of which were W. R. Curran was the attorney for the exec. to relatives and friends, one to the Christian utors of his will, and in a few weeks after Church of Armington, and one to the trus- her husband's death Mrs. Burt executed a tees of the cemetery of that church. She will which was prepared by Judge Curran. had no children, and her heirs were her She afterwards executed other wills. In the brother, R. M. Britt, and 23 descendants of forenoon of the day the present will was erher deceased brothers and sisters. Her ecuted, Mrs. Burt came with Miss Glodfelter brother, a nephew, and four nieces filed a to the office of Curran & Dempsey, in Pekin, bill to contest the will in the circuit court where the will was prepared by Judge Curof Tazewell county on the ground of the ran. Miss Glodfelter remained in the outer mental incapacity of the testatrix and of office while Mrs. Burt went into the inner undue influence exercised by Darnell and office with Judge Curran. While she was Sarah A. Glodfelter. The issue whether the there Ralph Dempsey, Judge Curran's partthe writing produced was the last will and ner, went into Judge Curran's room and testament of the deceased was submitted to found Mrs. Burt there in consultation with a jury, on motion of the proponents the ques- Judge Curran. Dempsey was porn and grew tion of undue influence was withdrawn from up in Armington and had known Mrs. Burt the consideration of the jury, a verdict was well all his life and their relations were returned in favor of the will, and a decree friendly. He learned, during the forenoon, was entered dismissing the bill, from which of the object of the visit and in a general the complainants appealed.

way of the purport of her will. After her John H. Burt, the husband of the testatrix. conference with Judge Curran, Mrs. Burt died in 1909, leaving a will, which she re and Miss Glodfelter left the offices and nounced, and a large estate, from which she Judge Curran dictated the will. In the aftreceived a large amount of property, both lernoon they returned, and Dempsey and Rob

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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ever

(146 N.E.)
ert A. Guy, who was a deputy county clerk, , a far-fetched conclusion. It gives the imag-
were called into the private office of Judge ination too much range to infer that an at-
Curran to witness the execution of the will. torney drawing a will for one client in fa-
Guy also had lived at Armington and had vor of another client has exercised an undue
known Mrs. Burt all his life and had once influence over the testator in favor of the
before witnessed the execution of a will by other client. Such a thing might be possible,
her. The will was then executed by Mrs. but it is so far outside the range of ordinary
Burt and witnessed by Dempsey and Guy in experience that no presumption of the kind
the manner required by the statute. There can arise. In connection with this argu-
was no evidence whatever of any restraint | ment it is to be noted that Judge Curran, as
or undue influence operating upon Mrs. Burt attorney for the executors of the will of
to induce her to execute this will. Her re- John H. Burt, represented J. C. Britt, one
lations to Darnell were such that no doubts of the executors, as well as Darnell, the oth-
he might have influenced her, but there is er. Another far-fetched inference is that
an entire lack of evidence of any effort to do from the facts that the estate of John H.
So. From their relation it would naturally Burt was not finally settled until after the
be expected that he would benefit largely by execution of the will, and that the final pay-
her will. Had he been her only son, he ment of more than $17,000 was made to Mrs.
would have received her whole estate with- | Burt on March 30, twenty days after the ex-
out any will, and her words and actions in- ecution of the will, therefore the payment
dicated that she regarded him as her son. was delayed until that time for the purpose
Under these circumstances, the will cannot of influencing her to make the will. Aside
be regarded as unreasonable or unnatural. from the inherent fallacy of such argument

[2] Miss Glodfelter was not present when are the facts that the final account showing
the will was being discussed or was in prep- this balance due Mrs. Burt was filed in the
aration or was executed. She accompanied county court a month before the will was
Mrs. Burt in the ordinary course of her duo executed, and that J. C. Britt, who was one
ties, as she was in the habit of doing when- of the executors, was one of Mrs. Burt's
ever Mrs. Burt went from home. · There is heirs and was disinherited by the will.
no evidence that she knew anything about There was no evidence of undue influence
the provision made for her in the will, that which justified the submission of that issue
she knew of Mrs. Burt's intention to make to the jury.
her will, or that the subject was

[8, 9] After the examination and crossmentioned between them. In consideration examination of Ralph Dempsey, counsel for of her faithful service and close relationship the appellants moved to strike out all his testhe provision made for her cannot be regard timony for the reason that his examination ed as excessive.

showed that he had such a direct interest in (3-5] The existence of a confidential rela- the outcome of the litigation as to make him tion is not a legal obstacle to a testator's an incompetent witness against the heirs who making a will in favor of the person in were contesting the will. His testimony whom confidence is reposed. No presump- showed that he was the attorney of Clarence tion arises from the existence of a fiduciary Darnell, as executor of Mrs. Burt's will, in relation that a will in favor of the fiduciary the probate proceedings in the Tazewell was executed as the result of the fiduciary's county court; that he was not his attorney undue influence. A testator may exercise in this suit but was his personal general athis own will in favor of a fiduciary as well torney, legal adviser, and counsel; that he as in fayor of other persons or objects. had taken considerable interest in this suit, Where a person who occupies a confidential had interviewed witnesses in company with relation to the testator prepares the will or the appellees' attorney, introducing witnessparticipates in the preparation and execution es to him and sometimes seeing certain witof it

, a presumption of undue influence aris- nesses Darnell wanted interviewed when es which casts upon him the burden of show- Darnell's attorney in the case was unable to ing that the execution of the will was the do so, and reported to the attorney. He had free and voluntary act of the testator and advised Darnell on matters connected with was not produced by the efforts of the per- the case and suggested counsel to be reson holding the confidential relation. Noth- tained. At the trial he had conferred with ing of the kind appears in the evidence here. counsel in regard to the dismissal of a proIt is not shown that Darnell had anything spective juror about whom he expressed his to do with the execution of the will.

judgment, and it is argued that he had a pe[6, 7] Judge Curran was the attorney for cuniary interest in the case which rendered the estate of John H. Burt, and it is argued him incompetent as a witness. The interthat his employment by Mrs. Burt, as her est which will render a witness incompetent attorney also, to draw her will was induced must be such an interest in the judgment or by Darnell, and such employment would decree that a pecuniary gain or loss will raise the presumption of undue influence op- come to him directly as the immediate result erating on Mrs. Burt at the time of the exe- of the judgment or decree. Stephens v. Hoffcution of her will. There is no basis for such man, 203 Ill. 197, 104 N. E. 1090; Bellman

146 N.E.-33

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