Imágenes de páginas
PDF
EPUB

his signature was in the will when he witnessed it just as

it now appears.

The will was introduced in evidence, and that part of the will signed by the witnesses, and just above their signatures, reads as follows: "This is to certify that the foregoing instrument, consisting of two double sheets of legal cap paper, was at the date hereof signed, published and declared by said DeWitt C. Willey, the testator, as and for his last will and testament in the presence of us, who at his request and in his presence and in the presence of each other have subscribed our names as witnesses." An affidavit was signed and sworn to in the probate court April 17, 1915, by the two attesting witnesses aforesaid and was introduced in evidence in the circuit court. That affidavit, among other things, recites that said witnesses depose and say, each for himself, that the said instrument in writing is the last will and testament of said DeWitt C. Willey, deceased; that they subscribed their names thereto as the attesting witnesses at the request of said testator and in his presence and in the presence of each other, and that he then and there subscribed his name thereto in their presence and declared the same to be his last will and testament, and that the testator, at the time of executing the same as aforesaid, was of full age, of sound mind and memory and under no restraint.

We think the evidence in the record is sufficient to support the judgment of the court. The testimony of the subscribing witnesses that the signature to the will is the genuine signature of the testator, and the attestation clause with the genuine signatures of the subscribing witnesses containing all the particulars of a good execution, make a strong prima facie case of the due execution of the will, and must often prevail, on appeal to the circuit court, over the testimony of witnesses who give evidence tending to show that some of the requirements were omitted. (Thompson v.

Owen, 174 Ill. 229; Thompson v. Karme, 268 id. 168.) There was no objection to the competency of any of the evidence in this case and its admission is not questioned in this court. However, the affidavits of the subscribing witnesses made in the probate court were competent evidence to sustain the will in the circuit court under sections 7 and 13 of the Statute of Wills. Said section 13, as amended in June, 1909, and in force July 1, 1909, provides as follows: "When the probate of any will and 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, into the circuit court of the proper county, as provided by law, it shall be lawful for the party seeking probate of such will to support the same, on hearing in such circuit court, by any evidence competent to establish a will in chancery." The affidavits of the two subscribing witnesses made in the probate court, together with the will, clearly show that all the essential elements were proven to entitle the will to probate. (In re Estate of Kohley, 200 Ill. 189.) The cross-examination of the witness Charles Hall merely showed that he had forgotten some of the essential facts necessary to be proved to establish the legal execution of the testator's will, and that he really could not remember whether or not the testator acknowledged the instrument as his will or signed the same in the presence of the witnesses. The prima facie case is not necessarily overcome because one of the attesting witnesses has testified that he has forgotten whether or not the testator signed the will or that he did not sign the will, or does not believe he signed the will, but does not remember whether he did or not. There was nothing unusual about the fact that neither one of the witnesses could recall all that was said or done at the time of the execution of the will that was essential to prove the due execution of it. It had been executed about seven years when probated, and one of the witnesses was getting old

and feeble and apparently had failed much more in memory than he really could realize. The fact that the witnesses failed to remember the details of the execution of the will is certainly no indication that Shamel, or anyone desiring the will probated, used any undue influence upon such witnesses to have them testify favorably to proponent. It is rather an indication to the contrary, as argued by the proponent's attorney.

The provisions of the Practice act relating to propositions of law do not apply to a case wherein a will is being probated. Therefore it can make no difference whether or not the court properly ruled upon appellant's so-called propositions of law. Schofield v. Thomas, 236 Ill. 417.

It was not necessary, as argued by appellee's counsel, for the bill of exceptions in this case to show an exception to the judgment of the court in order that appellant might be heard in this court upon her contention that the evidence does not support the judgment. The cause was submitted to the court on the evidence heard before it. Under the holding in Miller v. Anderson, 269 Ill. 608, it is not necessary to allege an exception to any matter submitted to a court for its ruling or determination during the progress of the trial or before judgment is entered, in order to have that ruling passed upon in a reviewing court. An exception to the judgment of the court under the former practice was necessary in all trials before the court without a jury if the exceptor desired to challenge the judgment of the court upon the ground that the evidence did not support it.

The court did not err in admitting the will of the testator to probate, and the judgment is affirmed. Judgment affirmed.

THE PEOPLE ex rel. The Chicago Bar Association, Relator, VS. WILLIAM G. ANDERSON, Respondent.

Opinion filed April 20, 1916.

ATTORNEYS AT LAW-when an attorney will be suspended. An attorney who accepts money from a client to institute a suit and who falsely represents that the suit has been brought but does not bring the suit until after disbarment proceedings have been begun against him, more than two years after he accepted the money, is guilty of unprofessional conduct and will be disciplined, particularly where other similar charges against him are made and proved; but if the evidence does not show a corrupt motive he will be suspended from practice and not disbarred.

DUNN, CARTWRIGHT and COOKE, JJ., dissenting.

ORIGINAL information to disbar.

ROSWELL B. MASON, and JOHN L. FOGLE, for relator.

F. L. BARNETT, for respondent.

Mr. CHIEF JUSTICE FARMER delivered the opinion of the court:

This is a proceeding instituted for the disbarment of William G. Anderson, a member of the bar of this State, practicing his profession in the city of Chicago. The information was filed by the Chicago Bar Association, as relator, at the June, 1914, term of this court, and contained four counts. An additional count was later added. The respondent filed his answer at the February term, 1915, denying the charges made. The cause was referred to a commissioner and evidence was heard as to three of the original counts and the additional count. The commissioner found and reported that in his opinion the testimony sustained the charges, or some of them, and that respondent had been guilty of unprofessional and dishonorable conduct. Respondent has filed exceptions to the finding of the commissioner.

The first count of the information charged respondent with having received in 1911 $42.50 from David Graves, a porter in the employ of the Pullman Company, for costs and payment for services in instituting a suit for divorce, and that he failed to do or perform any services with reference thereto, except to file the bill for divorce. The proof with reference to this count showed that in October, 1911, Graves called on respondent at his office and told him he wanted a divorce from his wife, charging adultery and desertion, and $42.50 was then agreed upon as the amount to be paid both for expenses and attorney's fees, and Graves then paid respondent $20. In November following he paid respondent another $20, and on November 27 paid respondent $2.50, the balance of the sum agreed upon. Receipts were taken for these different payments. Graves testified that upon his first visit to respondent he detailed the facts upon which his charges for a divorce were based and was told by the respondent he would have a divorce ready by Christmas, 1911; that in January, 1912, respondent told witness the holidays had caused some delay but that he could look for his divorce in a few weeks; that in April, 1912, respondent told the witness the case was on file and would be all right soon and that he would call up the witness and let him know. In July and in the fall of 1912 respondent, when called upon by Graves, made various excuses for the delay, among which was the summer vacation, but promised witness he would surely have the divorce for him by the following Christmas. During the spring of 1913 witness on several occasions called on respondent but was always given excuses for the court's delay. In November or December, 1913, witness called on respondent and took him to interview some witnesses, and was then again told his divorce would be given to him as a Christmas present that year. In February, 1914, the respondent informed Graves the case was on file. April 9, 1914, charges were filed with the Chicago Bar Association with reference to

« AnteriorContinuar »