Flinn v. Owen

Citations

• 58 Ill. 111

Syllabus

<p>1. Chanceuy—pleading in—proof must conform to the allegations in the bill. A complainant in chancery must recover, if at all, upon the case made by his bill. The allegata and probata must correspond.</p> <p>2. A bill in chancery filed by apart of the heirs at law of A. B., deceased, to set aside the probate of his will, and cancel the instrument admitted to probate, contained the following allegation: “ That the said paper so purporting to be the last will and testament of the said A. B., Avas not executed and attested as by the statute in such case made and provided is and was required, and is therefore inoperative and void; that the same was not signed by the said A. B., or in his presence by some one under his direction, in the presence of the two persons, together, whose names are attached to the said paper, or instrument, as pretended attesting witnesses; nor did he, the said A. B, acknowledge the said paper or instrument to be his last will and testament, in the presence of the two persons together, whose names are thereto attached as pretended attesting witnesses; that the said two persons whose names are so attached to the said paper did not sign and attest the same at the request of the said A. B., in his presence and in the presence of each other: ” Selcl, the only reasonable construction of such allegation is, that the so called will was illegally executed because the subscribing witnesses did not attest it together, or in the presence of each other, and that evidence offered under it, to show that the witnesses did not sign it in the presence of the testator, was improperly admitted. The defendants had a right to complain that they were taken by surprise by such testimony.</p> <p>3. Attestation of will—requirements of the statute. The statute does not require that the attesting witnesses to a will should be in the presence of each other when they sign it.</p>