Moyer v. Swygart

Citations

• 125 Ill. 262
• 17 N.E. 450

Syllabus

<p>1. Will—whether a will was completed. A person being desirous of making a will, made a writing purporting to be his will, by which he devised a farm and a horse and buggy to a son, making no mention therein of his other heirs, from whom he was in no way estranged, and leaving the personal estate undisposed of. The scrivener, on the day he was called to write the will, only proceeded so far as to write a devise of the farm to the son. The decedent, when asked what disposition he wished to make of his personal property, said “he had not made up his mind about that,” and that he “would like to think that over,” and asked if he “could do that to-morrow or any other day.” On the next day, the scrivener asked the decedent if he wanted to go on with the will, to which he replied that he wanted “to finish it up,” and when asked what he wanted to do, said he wanted to give his son the farm,—“you have got that; I want to give him the horse and buggy.” That being written he said nothing more until again asked what disposition he wanted to make of his personal property, when he replied, as before, that he had not determined on that yet, and again inquired if he could not fix that hereafter. He was advised that it could be done by a new will or codicil. At the suggestion of the scrivener an executor was named, and the paper signed and witnessed: Held, in a suit contesting the will, that these facts were sufficient to, warrant the jury in believing that the will was never, in fact, finished.</p> <p>2. Same—contesting a will—of the burden of proof. Where a bill in chancery is filed, under the statute, to contest a will, the law in the first instance casts the burden of proving the will upon the proponents alleging its validity.</p> <p>3. Same—an instruction construed as not relating to burden of proof as to undue influence. On the trial of an issue as to the validity of an alleged will, an instruction which declares that before the jury can find the paper read in evidence is th