Holloway v. Galloway

Citations

• 51 Ill. 159

Syllabus

<p>1. Witnesses—competency of persons parties to the suit—construction of act of 1867. In a suit to set aside the prohate of a will, on the ground of mental incapacity of the testator at the time of making it, two persons were offered as witnesses who were defendants in the suit and devisees under the will. It was objected, on the part of the plaintiffs, that these persons could not be sworn as witnesses, being incompetent as such under the second section of the act of 1867, which objection was overruled, and the parties allowed to testify. Held, that in this, the court committed no error; that under this act, these parlies were competent witnesses as to facts occurring after the death of the testator; that it was proper to allow them to be sworn, and that plaintiff should then have objected to questions relating to matters not occurring since the testator’s death.</p> <p>2. Wills—try parties seeking to establish—what must be proved. A party seeking to establish a will, must prove the testator was of disposing mind and memory at the time he made it, and this cannot be shown merely by proof that he was so at some anterior period.</p> <p>3. Same—validity of once established by subscribing witnesses—burden of proof. And in such case, the defendants having put in evidence the testimony of the subscribing witnesses to the will, given when it was admitted to probate, it then devolved upon the plaintiff to show the incompetency of the testator, by proof sufficient to overcome the prima facie case made through the testimony of the subscribing witnesses.</p> <p>4. Same—not material that attesting witnesses should be present when the uM is signed by testator. It is no objection, that the attesting witnesses to a will were not present when it was signed by the testator; provided, he acknowledged it as his will and requested them to sign as witnesses.</p>