Rupp v. Jones

Mr. Justice Duncan delivered the opinion of the court: ' Dora Rupp, widow of William Rupp, deceased, filed her petition in the probate court of Marion county to probate the last will and testament of her husband and asked that letters testamentary be issued to her as executrix. Proof of death was filed and a dedirmis potestatem was sued out to take the deposition of E. J. Besant, one of the attesting witnesses, who was then' living in the State of California, Dora Rupp died intestate, leaving no child or children or descendants thereof but leaving her mother and brothers and sisters surviving as her only heirs. On January 3, 1919, the cause came on for hearing. The death of Dora Rupp was suggested and a supplemental petition was filed substituting her brother, J. M. Jones, as petitioner, and asking that he be appointed as administrator of the estate of William Rupp, deceased, with the will annexed. The court found that Albert Rupp and Fred Rupp, brothers, and Fred Sweeney, a nephew, and Dora Rupp, widow, were all the heirs and legatees of the deceased,- William Rupp, and that each of them had been notified of the pendency of the proceeding,' as required by law. Upon the evidence heard the county court admitted the instrument to probate as the last will and testament of William Rupp. From that order Albert Rupp and Fred Rupp appealed to the circuit court of Marion county, which also entered an order admitting the will to probate. Appellants then prosecuted this appeal. The will was dated July 12, 1905, and was drawn on a printed form, the written portions of which were in the handwriting of the testator. E. J. Besant, súbscribing witness, testified in his deposition that he was acquainted with the testator, William Rupp, in his lifetime, and that he was about forty years of age and on the date of his will was of sound mind; that Rupp asked him to sign said instrument' as a witness, and that he signed it as such in the presence of Rupp, and that the testator saw him sign his name as such witness. He did not remember' whether Charles Nall was present or not when he signed it, and does not remember whether he saw Rupp sign his name to the instrument. The testator came to his store to get him to witness the instrument, and he thinks George F. Besant, his brother, and Sam Carnes, a clerk, were also present. Charles Nall, the other attesting witness, was at that time a grocer in the samé block where Besant was conducting his store. He testified that the testator was a customer of his and that he had known him four or five years prior to 1905; that the occupation of the testator was that of freight conductor on the Illinois Central railroad; that he was also acquainted with Besant; that Rupp came to his store and asked him to witness a paper he had with him,— the will in question, — and added that in case something should happen it would be of some protection to his wife; that he signed the paper as a witness but does not recollect whether Rupp’s signature was on the paper when he signed it; that he is positive that the will is the instrument that he signed and thinks that it is in the same condition at the time of the trial as it was when he signed it; that he did not read any part of the will at the time he signed it and did not look to see what was written on it and thinks that the attestation clause was not read over to him; that Rupp did not say anything'to him about the instrument being his will or that he had signed it or that the instrument was one that he had made himself; that no one else was present except Rupp and himself when he signed it as witness. He also testified that he had forgotten at one time that he had ever signed the instrument but that after refreshing his recollection he remembered it. Both he and Besant testified that the testatof was of sound mind at the time he signed the will and was under no restraint whatever. Four other witnesses testified for the proponents of the will in the circuit court. One of them, a banker, testified that the entire written portions of the will were in the handwriting of the deceased and that the signature to the will was the genuine signature of the testator, he having seen him sign his name a number of times. The other three were railroad men, who testified that they were well acquainted with the signature of Rupp and that the signature to the will was the signature of Rupp. All four of them testified, also, that the signatures to two exhibits that were introduced and put in evidence contained the genuine signatures of Rupp. Appellants contend that the lower court erred in admitting the exhibits in evidence for comparison with the signature to the will because the statutory notice was not given that such exhibits would be used on the trial. No such objection was made in the trial court and it comes too late in this court to be considered. Besides, if it should be conceded that it was error to admit these two exhibits for the purpose of comparison of the signatures thereon with the-signature on the will, such ruling of the circuit court would not be reversible error. It was amply proved by the other evidence in the case that the signature to the will was the genuine signature of the testator, and there is no evidence in the record contradicting the same. Only two witnesses testified on behalf of appellants, — the brother of Besant, one of the attesting witnesses, and his clerk, both of whpm. merely testified that they were not present when Besant attested the will or near enough to know anything about it, and that no such attestation was ever made in their presence to which their attention was called. The evidence complained of is merely cumulative and upon a question that is not at all contested in the evidence. The other contention of appellants, that the instrument offered in evidence was not proved to be the last will and testament of William Rupp and properly attested according to the provisions of our statute on wills, cannot be sustained. It is positively proved that the instrument in question was the instrument witnessed by the attesting witnesses and that each one of them attested it in the presence of the deceased, at his request. It was not necessary that the two attesting witnesses should witness the will in the presence of each other. The statute makes no such requirement. (Flinn v. Owen, 58 Ill. 111.) The testimony of neither of the attesting witnesses is to the effect that the testator signed or acknowledged the will to be his in their presence, in express terms. Their testimony dearly showed that he requested them to witness the instrument, and remarked to one of them, in substance, that in case anything happened it would be of some protection to his wife, which clearly indicated that thejr were asked to witness his signature to an instrument in which his wife would be interested or benefited in case of such happening, and clearly indicated that they were asked by him to witness his signature to that will. The attesting clause is in this language: “This instrument was on the day of the date thereof signed, published and declared by the said testator, William Rupp-, to be his last will and testament, in the presence of us, who at his request have subscribed our names thereto as witnesses, in his presence and in the' presence of each other.” It was signed by the two attesting witnesses. The other evidence in the record positively shows that the signature to the will was the genuine signature of the testator. Section 13 of our statute on wills, as amended, now provides that when the probate of any will or testament shall have been allowed or refused by any county or probate court and an appeal shall have been taken from the order or decision of such court allowing or refusing to admit such will to probate, it shall be lawful for the party seeking probate of such will to support the same, on the hearing in the circuit court, by any evidence competent to establish a will6 in chancery. Where the attestation clause to a will recites all the particulars of a good execution it will always be prima facie evidence of the due execution of the will. Such proof will often prevail over testimony of the attesting witnesses which tends to show that some of the requisites were omitted. (Thompson v. Owen, 174 Ill. 229; Thompson v. Karme, 268 id. 168; Gould v. Chicago Theological Seminary, 189 id. 282; In re Will of Barry, 219 id. 391; Hutchison v. Kelly, 276 id. 438.) ■ The testator’s will had been executed about fourteen years when the attesting witnesses were called into court to testify concerning- its execution. It is not singular or unusual for attesting witnesses not to be able to remember all that occurred at the execution of the will or as to what they saw of the will or of the signature of the testator thereto. Where a will contains a full and formal attestation clause, the signature to the will is shown to be in the handwriting of the testator and the will is fully identified as the instrument attested by the witnesses, the fact that they do not remember seeing the testator sign the will or that he acknowledged it to be his act and deed does not preclude the probate of the will. (O’Brien v. Estate of Rhembe, 269 Ill. 592.) The proof was ample in this case to make a prima facie case of the due execution of the will, and as it is absolutely uncontradicted the will in question was properly probated. The judgment of the circuit court is affirmed. Judgment affirmed.