Andrews v. Black

Citations

• 43 Ill. 256

Syllabus

<p>1. Appeal—lies from order of Probate Court, admitting, or refusing to' admit will to probate. An appeal lies from an order of the prohate court,' admitting, or refusing to admit, a will to probate. Such an order is within the express language of the 138th section of the statute of wills.</p> <p>3. Evidence—on appeal—as to testator’s sanity—confined to subscribing, witnesses—where probate has been allowed. On an appeal from the probatb court, in relation to the probate of a will, where probate has been allowed, no' other evidence can he heard on the trial, upon the question of the testator’s sanity, than that of the subscribing witnesses.</p> <p>3. Former decisions. Walker v. Walker, 3 Scam. 391; and Duncan v. Duncan, 33 Ill. 365, explained and affirmed.</p> <p>4. Statute oe wills—construction of . Section two of the statute of wills, directs what testimony to he made by subscribing witnesses, shall be sufficient to admit a will to record; provided, no proof be shown of fraud, compulsion, on improper conduct. The first proof is confined to subscribing witnesses, hut the testimony of other persons, not otherwise disqualified, is competent on the matters named in the proviso.</p> <p>5. Evidence—on appeal—as to sanity of testator—where probate has been refused—not confined to subscribing witnesses. Under the act of February 35th, 1845, on appeal, other evidence than that of the subscribing witnesses, can he heard on the question of the testator’s sanity, in cases where probate of the will has been refused.</p> <p>6. Same—when testimony, other than that of witnesses may be heard— where probate has been allowed. In cases where probate has been allowed, all persons interested, may, within five years after probate, under the 6th section of the statute of wills contest the validity of such will, and in this proceeding, the sanity of the testator, or any other proper question, may he raised and heard upon any legitimate evidence. But where prohate has been refused, no proc