Graybeal v. Gardner

Citations

• 146 Ill. 337
• 34 N.E. 528

Syllabus

<p>1. Contest of a will —prima facie proof of validity. Where a will is probated in the county court, a certificate of the evidence of the subscribing witnesses is prima facie proof of the validity of the will, when contested in chancery, raising a presumption of the competency of the testator, until disproved by other evidence.</p> <p>2. Same—order of probate court in evidence. On the contest of the validity of a will which was admitted to probate on appeal in the circuit court, it is error to allow the proponents of the will to introduce in evidence the order of the circuit court admitting the will to probate. But when the contestants of the will allege that such an order was made, its introduction in evidence is harmless.</p> <p>3. Same—issue of. mental capacity—what proof is essential. On a contest of a will by bill in chancery, where the only issue is the soundness of the mind and memory of the testator at the time he executed the will, it is not necessary for the proponents of the will, in order to make out a prima facie case, to prove that the will was in writing, and signed by the testator, attested by two or more credible witnesses, and that two witnesses testified they saw the testator sign the will in their presence.</p> <p>4. On such a contest the question for the jury is, whether the mind and memory of the testator were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will, judging his competency of mind by the nature of the act to be done, and a consideration of all the circumstances of the case. It is not necessary that he shall have retained all his vigor of mind and memory in order to make a valid will.</p> <p>5. Same—instruction as to burden of proof. On the trial of a bill to contest a will on the ground of want of mental capacity, the court instructed the jury, on behalf of the proponents, that the burden of proof was upon the proponents to prove by the attesting witnesses th