Freund v. Becker

Mr. Justice Farmer delivered the opinion of the court: It is the contention of plaintiffs in error that the terms and provisions of the will were dictated by defendant in error, and that on account of her inability to understand and speak the English language Mrs. Becker did not know what disposition was made of her property by the will. We have set out in the preceding statement the substance of the material portions of the testimony of the only three persons present who testified as witnesses on the trial. It will be seen that their memory of what occurred on the occasion of the execution of the will is not in all respects the same. McGaffigan, who wrote the will, testified Mrs. Becker spoke and understood sufficient English to give him to understand why she wanted the will made and how she desired to dispose of her property. Gray’s memory was that her directions were given in German and were translated by defendant in error. Murphy, who understood a little German, testified the will was explained to Mrs. Becker and that he believed she understood it. The proof offered by defendant in error that Mrs. Becker had previously made wills in which she made substantially the same disposition of her property as was made by her last will, tends to support the proposition that said last will disposed of her property in accordance with her desire. Lampen testified she told him she intended defendant in error to have the farm, and his recollection is that he prepared a will for her giving defendant in error the farm and requiring him to pay a sum of money to a legatee, the amount of which he could not remember. The will drawn by Lambe, which Mrs. Becker destroyed when the will in controversy was executed, disposed of her property to the same persons and in the manner as said last will, and the proof shows that her only reason for making the will written by McGaffigan was that Lambe, who was one of the witnesses to the will written by him, was gone and his whereabouts unknown. Plaintiffs in error contend that the will written by Lambe was prepared in the same manner as the will written by McGaffi-gan. The proof tends to show that Lambe could not speak or understand the German language, but Orrell, the other witness to that will, testified he could understand a little German and that that will was prepared according to the directions and desires of Mrs. Becker. Prior wills containing the same provisions and making the same disposition of property as a last will are competent evidence to be considered to rebut the charge of undue influence having been exercised to procure the execution of the last will. (Kaenders v. Montague, 180 Ill. 300.) The proof shows Mrs. Becker had lived with defendant in error thirty-nine years after the death of her husband; that defendant in error paid $2500 of the $7500 paid for the farm, title to which was taken in Mrs. Becker. Plenry Becker, son of defendant in error, called as a witness by him, testified, on cross-examination, . that Mrs. Becker, his grandmother, told his father’s children to work and pay the debts and the farm would be their father’s. Considering all this testimony, we cannot say the jury were not warranted in finding that Mrs. Becker knew and understood the terms' and provisions of the will. It further appears from the evidence that after making the will in controversy, and before her death, Mrs. Becker executed a deed purporting to convey all of her real estate to defendant in error, and a bill is pending in the circuit court of Clinton county to set aside that deed. It was also proven by plaintiffs in error that a short time before the death of Mrs. Becker, McGaffigan wrote letters to each of them, representing himself as Mrs. Becker’s attorney, proposing to give each of them $500 in settlement of any and all right they might have to receive anything out of the estate of their grandmother upon her death, and it is contended the proof shows he did not represent and was not employed by Mrs., Becker for this purpose but that he was acting for defendant in error. The testimony is not very clear upon this question, but it is not shown that Mrs. Becker had any knowledge of the writing of these letters and the offers made therein. They appear to have been written at the request of defendant in error, and whether he represented his mother is not shown. While there is some testimony of plaintiffs in error themselves to the effect that defendant in error objected to his mother making frequent or prolonged visits to her daughter, Caroline, toward the latter part of her daughter’s life and during her last' illness, it was not of a character to overcome the conclusions to be drawn from the other evidence, the weight of which we think tends to show that Mrs. Becker knew and understood what she was doing when she made her last will and that it represented her wishes and intentions as to the disposition of her property. In our opinion the verdict of the jury and the decree of the circuit court were warranted by the evidence. Objections are made to certain instructions given at the request of defendant in error. The principal objections are that they state abstract propositions of law and are not applicable to the facts of this case. It is true, some of the instructions merely state propositions of law; but the propositions of law were involved in this case, and when these instructions are read in connection with the other instructions given, it seems clear the jury could not have been misled by the instructions complained of. No single instruction could well embrace either the law or the facts involved in this case, but, taking the instructions for both parties together, we think no substantial error was committed by the court and that the issues were fairly submitted to the jury by the instructions given. ' The decree of the circuit court is therefore affirmed. Decree affirmed.