In cases contesting the validity of a will where both testamentary incapacity and undue influence are charged, the refusal of the court to withdraw from the jury one of the charges, not supported by the evidence, will not cause a reversal if such error could not have affected the result of the suit. ( DeMarco v. McGill, 402 Ill. 46; Challiner v. Smith, 396 Ill. 106; Buerger v. Buerger, 317 Ill. 401.) But, if the evidence in support of such issue, although not sufficient to warrant submitting the issue to the jury, is of a character to appeal to the prejudice, passion or sympathy of the jury, and the evidence to support the other issue, although such that the issue is properly submitted to the jury, is in itself of an inconclusive character, then it is error to submit the first-mentioned issue to the jury, and a decree in favor of the contestant entered upon the verdict of the jury must be reversed. ( DeMarco v. McGill, 402 Ill. 46; Challiner v. Smith, 396 Ill. 106.) This for the reason that when the evidence is of the character above mentioned, the action of the court in submitting both issues could mislead the jury and might reasonably affect the verdict.
Those circumstances are not present in the instant case. The undue influence which will void a will must be directly connected with the execution of the instrument and operate at the time it is made. It must be specifically directed toward procuring the will in favor of a particular party or parties and it must be such as to destroy the freedom of the testator's will and render the instrument obviously more the offspring of the will of another or others than his own. ( Quathamer v. Schoon, 370 Ill. 606; Challiner v. Smith, 396 Ill. 106.) Whenever the evidence falls short of the legal requirements of establishing undue influence, it is the duty of the trial court, upon motion, to exclude from the jury all evidence on the issue of undue influence. Challiner v. Smith, 396 Ill. 106.
"[A] person may be of unsound mind and memory to some extent, but still be capable of making a will." Challiner v. Smith, 396 Ill. 106, 124 (1947). "To have testamentary capacity a testator is not required to be absolutely of sound mind in every respect."
To establish their interest in the estate they allege they are beneficiaries under the will of deceased made at a time when he possessed mental capacity. If the facts be as caveators allege, they are interested in the estate of Lee D. Belvin. In re Thompson, 178 N.C. 540, 101 S.E. 107; Parsons v. Leak, 204 N.C. 86, 167 S.E. 563; In re Arbuckle's Estate (Cal.), 220 P.2d 950; Challiner v. Smith, (Ill.), 71 N.E.2d 324; In re Ash's Estate (Pa.) 41 A.2d 620; Werner v. Frederick (D.C.) 94 F.2d 627; Re Plaut, 164 P.2d 765, 162 A.L.R. 837; In re Parker's Estate (Mich.), 255 N.W. 318; Kennedy v. Walcott (Ohio) 161 N.E. 336; Ruth v. Krone (Cal.) 103 P. 960; Smith v. Chaney (Me.) 44 A. 897; Annotations 88 A.L.R. 1158 et seq.; 57 Am. Jur. 552; 95 C.J.S. 176. The court not only held caveators did not have such interest in the estate as permitted them to test the validity of the writing dated in 1962, but assigned as an additional reason for dismissing the proceeding the fact that the Superior Court did not have original jurisdiction to probate a will.
Neither old age and feebleness, nor miserly habits, of themselves, show a lack of testamentary capacity. Forberg v. Maurer, 336 Ill. 192; Challiner v. Smith, 396 Ill. 106; Mosher v. Thrush, 402 Ill. 353. It appears that plaintiffs' attempt to show that the deceased suffered from insane delusions (1) when she stated she had no money, at a time when she had real estate, investments, and much cash, and (2) when she believed the firemen were looking into her windows.
The record before us presents no evidence that he did not know Nancy Peters at the time of her visit and we are aware of no decision in this State which holds that such testimony presents an issue of fact for a jury. In Challiner v. Smith, 396 Ill. 106, a relative, who had known testatrix all her life, testified that testatrix would ask her who she was; that she tried to get testatrix to talk but she was too weak; and that she was of the opinion that the testatrix was of unsound mind because she would not talk to her. At page 124 we stated: "* * * and the opinion * * * based upon the fact that Mrs. Couchman would not talk to her, should, upon proper motion, have been excluded." Milne v. McFadden, 385 Ill. 11, and Mitchell v. Van Scoyk, 1 Ill.2d 160, are cited by plaintiffs as factually in point.
While there may be language in the opinions in the Sulzberger and Friberg cases which indicates that a presumption of undue influence may arise in the absence of a fiduciary relationship, such language was unnecessary to the result. This court referred to those opinions in Challiner v. Smith, 396 Ill. 106, at page 111: "In both Sulzberger v. Sulzberger, 372 Ill. 240 and Friberg v. Zeutschel, 379 Ill. 480, the beneficiary was present and was a principal beneficiary, and did occupy fiduciary or confidential relationships which invoked the presumption claimed to exist here." In Mitchell v. Van Scoyk, 1 Ill.2d 160, this court referred to the Sulzberger and Friberg cases and recognized that the language of those cases announced that the presumption arises irrespective of the existence of a fiduciary relationship between the parties, and at page 173 stated: "But we believe the plaintiff's case is further strengthened by the evidence of a fiduciary relationship between the parties.
A freehold is involved, hence the appeal comes directly to this court. Challiner v. Smith, 396 Ill. 106. It appears from the evidence that the decedent, Betty L. Gilliard, was approximately 80 years old at the time of her death.
Whenever the evidence falls short of the legal requirements of establishing undue influence it is the duty of the trial court, upon motion, to exclude from the jury all evidence on the issue of undue influence. Ennis v. Gale, 407 Ill. 215; Challiner v. Smith, 396 Ill. 106."
Whenever the evidence falls short of the legal requirements of establishing undue influence it is the duty of the trial court, upon motion, to exclude from the jury all evidence on the issue of undue influence. Ennis v. Gale, 407 Ill. 215; Challiner v. Smith, 396 Ill. 106. It is appellants' theory that because the testator was not alone with his attorney, and did not have an unrestrained opportunity to communicate with him before or after the will was drawn, appellee's presence constituted a restraint or coercion which destroyed the freedom of the testator's action and interfered with the true expression of his will.