Pendlay v. Eaton

Citations

• 130 Ill. 69
• 22 N.E. 853

Syllabus

<p>1. Contest of will—testamentary capacity — evidence—burden of proof. On the trial of an issue as to the testamentary capacity of a person deceased, on bill to contest his will, the burden of proof, in the first instance, devolves upon the proponents of th§ will to show such capacity; but alter they give in evidence the will, and the testimony of the subscribing witnesses given on the probate, the burden of proof no longer rests on them,—then it is the duty of the jury to determine whether the testator possessed the requisite testamentary capacity, from the weight of all the evidence introduced by the respective parties.</p> <p>2. On the contest of a will in a case where the proponents of the will had given in evidence the original will, with the testimony of the subscribing witnesses taken in the county court, the trial court, on behalf of the contestant, gave this instruction: “The court instructs the jury, that the burden of sustaining the will in this case is, by law, cast on defendant, who avers its validity; and unless the defendant has shown, by the burden of proof, that said A. P., at the time he executed said will, was of sound mind and memory, you should find said will not to be the last will and testament of said A. P.Held, that the instruction was clearly erroneous.</p>