In re Estate of Schwaebel

Full title: In re Estate of Iva Schwaebel (George T. Schwaebel, Appellant.)

Court: Appellate Court of Illinois, Fourth District

Date published: May 21, 1930

258 Ill. App. 19 (Ill. App. Ct. 1930)

Opinion

Opinion filed May 21, 1930.

WILLS — necessity in probate proceeding of proof by subscribing witnesses. A will should not be admitted to probate where neither of the two subscribing witnesses testify in the probate proceeding that they believed the testatrix was of sound mind and memory at the time of execution of the will.

Appeal from the Circuit Court of St. Clair county; the Hon. HENRY G. MILLER, Judge, presiding.

TURNER HOLDER, for appellant.

MR. PRESIDING JUSTICE BARRY delivered the opinion of the court.

This is an appeal from an order admitting to probate the alleged will of Iva Schwaebel. There were two subscribing witnesses, neither of whom testified that they believed the testatrix was of sound mind and memory at the time of the execution of the alleged will. Under the statute the attesting witnesses must declare on oath that they believed the testatrix was of sound mind and memory when the will was executed or acknowledged and in the absence of such proof the will should be denied probate; Thornton v. Herndon, 314 Ill. 360; Martin v. Martin, 334 Ill. 115-131. In the state of the proof the court erred in admitting the will to probate. The order is reversed and the cause remanded with directions to the circuit court to enter an order denying the probate of the alleged will.

Reversed and remanded with directions.