Brown v. Riggin

Citations

• 94 Ill. 560

Syllabus

<p>1. Wilt.—menial capacity of testator. If a testator, at the time of making a will or codicil thereto, is capable of attending to ordinary business and of acting rationally in the ordinary affairs of life, the will or codicil will not be set aside for the want of sufficient mental capacity. And although the testator, about the time of making the will, may at times hare been unconscious from disease, yet if he made the same when conscious of what he was doing, and on his recovery makes one or more codicils thereto, the last several years after making the will, this will be a republication and adoption of the will subject to the changes made by the codicil.</p> <p>2. Where a party made a will and afterwards made two or three codicils thereto, all of which were duly attested, it was held error to instruct the jury, on a contest of the will and codicils, so as to require them to find the testator capable at the several times when the instruments were executed. If the jury was satisfied of his capability at any one of the times, they should have been instructed to find the act then done and the preceding acts valid.</p> <p>3. Same—test of mental capacity. On the contest of a will for mental incapacity, the question of capacity involves the simple inquiry whether the testator was or was not, at the time of making the will, able to understand and reasonably transact the ordinary business of life—whether he was able to buy and sell, collect accounts, and did he understand the business in which he was engaged. But inability to transact business from physical weakness does not of itself incapacitate one from making a will.</p> <p>4. An instruction to the jury, on the trial of a contest of a will for mental incapacity in the testator, is erroneous if it assigns more weight to the testimony of nurses and attendants than to the opinion of the subscribing witnesses. The jury and not the court must judge of the weight to be given to each part of the proofs in the case.</p> <p>6.