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ally and as executor, and Martha A. Clark, , pared it himself, secured the witnesses to have prosecuted this appeal.

come to his mother's room to attest it, and The errors assigned and argued in the in and by the will took advantage of the briefs are that the verdict is palpably con- iduciary relation existing between him and trary to the evidence; that the court erred his mother to procure his nomination as exin giving one instruction on behalf of the ecutor and trustee with large discretionary contestants and refusing one instruction ask- powers, and caused advancements to be ed on behalf of the proponents of the will. charged against appellee, resulting largely

Anna B. Reep was at the time of her death to his advantage. about 65 years of age. She owned 160 acres There were four witnesses to the will. of farming land in Menard county and mon- They were requested to come to the testaey to the amount of about $1,200. She had trix's room at the hotel to attest the will as inherited the land from her father, and to witnesses by Thomas P. Reep. They appear gether with her husband and family had re to have gone to Mrs. Reep's room at about sided on the farm many years. In January, the same time, but did not all go together. 1913, she left the farm and went to Peters- As some of them were going into the testaburg, Menard county, where she lived at the trix's room, Thomas was passing out and Smoot Hotel until after the will was execut- said he would return quickly. He did so ed. Her husband appears to have left the within a few minutes. She signed the will home and family prior to the time Mrs. Reep in the presence of the witnesses, and they went to live in Petersburg. Before going each signed in her presence. She told them there she had a sale and sold off her person- she had made her will and wanted them to al property. She lived at the Smoot Hotel, sign as witnesses. Three of the witnesses in Petersburg, until April 1, 1914, when she to the will testified the testatrix bad it in went to visit her daughter Martha A. Clark her possession when they went to her room. in Arkansas, where she remained until her They all testified that when Thomas came in death, February 9, 1915. Mrs. Reep had suf- the room, and before the will was signed, he fered from valvular heart disease and a asked his mother if it was her will and if tendency to dropsical conditions for several she wanted the parties present to sign as years before her death. At times she would witnesses, and she answered she did; that be very ill and suffer greatly. When suffer- he prepared it for her signature and told her ing from thesc acute attacks she was unable where to sign it. One of the witnesses to to be around. As we understand the record, the will testified that when Thomas came before she was incapacitated by age and dis- into the room he took the will out of his ease from doing so she largely managed pocket and asked testatrix if it was her will and controlled the business of conducting and if she wanted the parties present to sign her farm. The evidence upon the issue of it. At the time the will was executed, the her mental capacity was conflicting. A con- testatrix was lying on the bed in her nightsiderable number of witnesses testified that dress or a wrapper. The physician who she was, in their opinion, of unsound mind, treated her testified she was quite ill in Feband a considerable number testified that she ruary, 1914. She was raised up in bed, the was of sound mind. The jury found that will was placed on a book, and she was given she was of sound mind, and the correctness a pen, with which she signed it. It was of that finding is not questioned by the as- afterwards signed by the four witnesses in signment of cross-errors.

her presence.

In addition to the usual reThe decree adjudging the instrument offer- cital in the attestation clause that the wited as the will of Anna B. Reep was not her nesses believed the testatrix to be of sound last will and setting aside the probate there mind and memory, it contained the further of was based upon the finding of the jury recital that: that she was unduly influenced to make it "We saw no indication of and believe there by Thomas P. Reep. He was called as a

was no undue influence exercised over her in the witness by the contestant. He is an attorney

execution thereof." at law practicing in Petersburg. He testified [1] The evidence tended to show, and was he prepared the will at his mother's direc- not contradicted, that Thomas sustained a tion; that he made a draft of it with lead fiduciary relation toward testatrix. He pencil from notes made at his mother's room transacted business for her as her agent and in the Sinoot Hotel and submitted it to her attorney, and that she reposed confidence two days before it was executed; that he in him was evidenced by the fact that she afterwards had it typewritten, took it to his instructed the bank where she deposited mother, read it to her carefully, left it with her money to honor checks on her account her, and at her request årranged to come signed by him as her agent. back the next forenoon; that he does not re "Where a fiduciary relation exists between member whether any one was present in the the testator and a devisee who receives a sub

stantial benefit from the will, and where the room when he read the will to his mother.

testator is the dependent and the devisee the The contestant contends that the proof dominant party and the testator therefore reestablished a relation of trust and confidence poses trust and confidence in the devisee as in between the testatrix and Thomas P. Reep; where the will is written, or its preparation

the ordinary relation of attorney and client, and that he procured her to make the will, pre-procured, by that beneficiary, proof of these

114 N.E.-18

facts establishes prima facie the charge that lation is denied. The contention rather 18 the execution of the will was the result of un, that notwithstanding such relation existed, due influence exercised by that beneficiary, and this proof, standing alone and undisputed by as we have before said, and for the reasons other proof, entitles contestants to a verdict.” there stated, the evidence in this particular Weston v. Teufel, 213 II. 291, 72 N. E. 908, case did not make a prima facie case of unand cases there cited.

due influence requiring contradiction on the See, also, Leonard v. Burtle, 226 Ill. 422, part of proponents; also, it is further con80 N. E. 992; Yess v. Yess, 255 Ill. 414, 99 tended by proponents that proof of state N. E. 687; England v. Fawbush, 204 Ill. 384, ments made by the testatrix before the will 68 N. E. 526.

was made, and statements after its execu[2] It is insisted by appellants that the tion, as to what disposition she would make evidence does not bring the case within the and had made of her property, and her rearule announced in the cases above cited, for sons therefor, rebut any presumption that the reason that Thomas P. Reep received no she was unduly influenced. special benefit from the will above what the

[4] Before testatrix left the farm, contestother children received; that the will dio ant and her husband were visiting for some vided the testatrix's property equally among time at the testatrix's house. While they her children and the grandchild, who was

were there, testatrix and contestant's husthe only child of a deceased son, except as band had a quarrel about the treatment by to the advancements charged against the testatrix's son-in-law of a young son of share of the contestant and two other chil- Thomas P. Reep, who also appears to have dren, to be paid out of the proceeds of the been a visitor at his grandmother's. It was sale of the real estate. In such case, it is testified on behalf of proponents that the contended, the evidence does not make a testatrix told her son-in-law he should not prima facie case requiring proof to rebut it. have any of the fruit she and her daughter The only inequality in amount between the

were putting up, to which he replied in a devise for the use and benefit of contestant vulgar and offensive manner, and after that and the devise to Thomas P. Reep is the the testatrix told some parties her son-inbenefit the latter will receive from the ad-law should never have any of her property; vancements charged against the share of the former. It is claimed by appellants no sub- also, that after the will was made she said

she had arranged her property so her sonstantial advantage results from that source. in-law would not get any of it. There is no While the share of Thomas P. Reep will not be greatly increased thereby, some benefit proof of any dispute or misunderstanding be

tween testatrix and contestant. On the conto him will accrue. He is also nominated ex.

trary, there is evidence tending to show ecutor and trustee with large powers, among contestant, who was her youngest daughter, them to hold in trust the share of contestant

was also the favorite of her mother. The in the proceeds of the sale of the real es- proof tends to show that Thomas P. Reep tate, loan it, and pay the net income, annu. ally, to her until the death of her husband became angry at his brother-in-law and made or their divorce and her remarriage. The threats of violence against him on account

of the difficulty between the brother-in-law land was not to be sold until one year after

and Thomas' son, The proof clearly shows the death of testatrix's husband, and until sold it was to be managed and controlled by that at and for some time before the will

was made testatrix was physically in a Thomas P. Reep and the net income divided

weakened condition from age and serious among the beneficiaries as directed in clause

illness. A number of witnesses testified 5, after deducting all expenses, “including her mind also was unsound, but we think the costs and fees for executing this trust." [3] In view of the special benefits to and the jury were warranted in finding she pos

sessed testamentary capacity. It cannot be powers conferred

upon Thomas P. Reep by denied, however, that on account of her age the will, we are impressed it must be held and long and severe illness she was more the case made by the evidence brings it

susceptible to undue influence and imposiwithin the rule of the authorities above re

tion than if she had been physically sound ferred to. The prima facie case made by the proof for contestant did not shift the is written by one who is substantially bene

and strong, and in such case, when the will burden of proof to the proponents, but it did fited by it, stricter scrutiny and proof of require them to rebut the prima facie case volition will be required. Purdy v. Hall, with some proof. In the end the burden 134 Iul. 298, 25 N. E. 645. rested upon contestant to prove the charge in her bill by a preponderance of the evi- written, by a person largely benefited by it, such

"Where a will is written, or procured to be dence but that rule was complied with unless circumstance excites stricter scrutiny and rethe prima facie case was rebutted by proof. quires stricter proof of volition and capacity. There was no attempt to rebut the proof of The proof required in such cases must be such the facts relied upon by contestant to sup- testator was not imposed upon, but knew what

as to fully satisfy the court or jury that the port the claim that a fiduciary relation ex- he was doing, and what disposition he was makisted between the son Thomas and the tes- ing of his property when he made his will. The tatrix, nor do we understand the sufficiency curing it to be drawn, especially in the absence

active agency of the beneficiary of a will in proof the proof to show the existence of such re of those who have at least equal claims upon the

justice of the testator, and, where the testator | the defendant in error the Industrial Board is enfeebled by old age and disease, is a cir- for adjustment of his claim against plaintiff cumstance which indicates the probable exercise of undue influence. Where the mind is wearied in error, the Bereda Manufacturing Comand debilitated by long-continued and serious pany. The application averred that while and painful sickness, it is susceptible to undue Moeller was in the employ of plaintiff in erinfluence and is liable to be imposed upon by ror, August 26, 1913, his right eye was infraud and misrepresentation. The feebler the mind of the testator, no matter from what cause jured, practically destroying the sight there -whether from sickness or otherwise-the less of, and averred that at the time of the injury evidence will be required to invalidate the will the parties were subject to the provisions of such person. England v. Fawbush, supra, of the Workmen's Compensation Act of 1913, 204 Ill. 392, 68 N. E. 529.

in force July 1, 1913. A hearing was had A consideration of the evidence in the record leads us to the conclusion that we would May 4, 1914, before a committee of arbitra

tion, and $9 a week for 56 weeks, beginning not be justified in reversing the decree on the ground that it is palpably contrary to September 4, 1913, was awarded Moeller. A the weight of the testimony. The language of arbitration was had before the Industrial

review of the award made by the committee of the opinion in Keyes v. Kimmel, 186 Board. That board found the parties were III. 109, on page 121, 57 N. E. 851, is appli- under the terms and provisions of the Workcable to this case. Neither do we find any men's Compensation Act; that Fred Moeller error of law in the court's ruling in giving had been receiving $15 per week; that the acand refusing instructions, prejudicial to pro cident arose out of and in the course of the ponents.

employment and resulted in the total loss The decree is affirmed. Decree affirmed.

of the sight of one of Moeller's eyes. It was ordered and adjudged that the Bereda Manu

facturing Company, the plaintiff in error, pay (275 Ill. 514)

the administrator of the estate of Fred Moel. BEREDA MFG. CO. V. INDUSTRIAL ler $7.50 per week for a period of 100 weeks. BOARD OF ILLINOIS et al.

Plaintiff in error sued out a writ of certiorari (No. 10564.)

from the circuit court of Cook county to re(Supreme Court of Illinois. Oct. 24, 1916. view and set aside the decision and award

Rehearing Denied Dec. 12, 1916.) of the Industrial Board upon the same MASTER AND SERVANT Om416_WORKMEN'S grounds alleged in the assignment of error

COMPENSATION ACT-AWARD OF INDUSTRIAL in this court. The circuit court, on a hearBOARD.

ing, quashed the writ of certiorari, dismissed The intent and purpose, that review by the the proceeding, and the presiding judge cerIndustrial Board of an award by a committee of arbitration shall be on notice to the parties, tified that in his opinion the case was one appearing from Workmen's Compensation Act proper to be reviewed by this court, and this of 1913 (Laws 1913, p. 348) 8 19e, providing writ of error was sued out accordingly. that such board shall review the decision of the committee and the facts as they appear from

[1] It does not appear that there was any the statement of facts or stenographic report, statement of facts agreed to at the hearing "and shall also, if desired, hear the parties, to- before the committee of arbitration or the Ingether with such additional evidence as they dustrial Board, but the testimony of witnessmay wish to submit,” it, in making its award on statements of persons procured by a special in- es called by the respective parties was heard vestigator appointed by it, and on his report, by the committee of arbitration. None of the of which one of the parties had no notice or testimony is abstracted. No question is raisknowledge, did not act within its powers, but ed as to the case being one within the juriscontrary to law.

[Ed. Note. For other cases, see Master and diction of the board, but the grounds urged Servant, Dec. Dig. 416.]

for reversal are that the Industrial Board, Error to Circuit Court, Cook County; Os contrary to law, took testimony of witnesses

without notice to plaintiff in error and withcar M. Torrison, Judge.

out it being afforded an opportunity for crossProceedings under the Workmen's Com

examination of the witnesses; that said pensation Act for compensation for injury board based its decision and award upon the to Fred Moeller, opposed by the Bereda Man

unsworn statements of said witnesses and ufacturing Company, employer. Certiorari

the unverified report of a special agent apto review the decision and award of the Industrial Board was quashed by the circuit pointed by the board to procure the state

ments of said witnesses. Defendants in ercourt, and the employer brings error. Re

ror contend that the record presents no quesversed and remanded, with directions.

tion for review; that the evidence, which is Thomas C. Angerstein, of Chicago (David not abstracted, sustained the finding and A. Orebaugh, of Chicago, of counsel), for award; that the only dispute between the plaintiff in error. Sabath, Stafford & Sabath, parties was one of fact, and no question of of Chicago (Charles B. Stafford, of Chicago, law is presented for our consideration. of counsel), for defendants in error.

In its finding and award the Industrial

Board recited that the case presented no FARMER, J. Fred Moeller, now deceased, question except the weight of the testimony; filed December 19, 1913, his application with that the claimant testified to the injury and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the manner in which it occurred; that "amit. After such hearirg upon review, the number of physicians testified pro and con board shall announce and file in its office its concerning the injury and how it occurred, decision” and immediately send each party a from symptoms appearing upon examination copy thereof. Paragraph “f” provided that made," and a number of witnesses acquainted the decision of the Industrial Board, “acting with the claimant testified that prior to the within its powers," shall, in the absence of date of the alleged accident they had not | fraud, be conclusive. The statute did not renoticed any defect in his eye, while "a con. strict the review of the decision of the comsiderable number of comparatively disinter- mittee of arbitration by the Industrial Board ested witnesses, neighbors, testified to ad- to a consideration of the agreed statement missions concerning the claimant's eye tend- of facts or stenographic report of the hearing to show that what injury or defect there ing before the committee, but required the was had existed prior to August 26, 1913," board to hear the parties, if desired, and to the date of the alleged accident. The Indus- hear such additional evidence as they might trial Board further recited in its decision wish to submit. How could the board hear and award :

the parties unless a time and place for the "Because of the serious discrepancies in the hearing were fixed and reasonable notice evidence and the great difficulty in determining given them? Unless notified of a time and where the preponderance lies upon the material questions in the case, this board, upon its own

place of hearing, the parties could not exermotion, designated Joseph J. Healy as special cise the right given them by the statute to agent to make an examination into all the vari- produce additional evidence. It is plain the ous phases of this case, from any and all sources of evidence obtainable. On August 3, 1913, parties could not exercise their right to be the special agent herein reported in writing to heard on the review and to introduce addithis board the substance of the statements and tional or further evidence unless they were testimony taken by him of six apparently cred given reasonable notice of the time and place ible and disinterested witnesses, who, in substance, state that the injury here complained of the hearing and afforded an opportunity of was the result of the accident that occurred to be present, and, if desired, to produce fur. during the time the claimant was in the em- ther evidence. It appears from this record ploy of the respondent. The board is of the the parties had notice of the hearing on reopinion, after carefully considering the report of the special agent, that the injury to the claim- view, appeared before the board, and each ant's eye was the result of the accident that oc- party offered additional evidence to that concurred at the time when he was driving, or attained in the stenographic report of the heartempting to drive, a chisel between the two by ing before the committee of arbitration; but fours, as claimed by him.”

it also appears from the recitals in the deciSo far as appears from the record, the con- sion and award that said decision was not troversy on the hearing before the committee made or based upon the stenographic report of arbitration and on review before the In- and the additional evidence heard by the dustrial Board was whether the claimant was board. It is stated in the decision, in subinjured while engaged in his employment, stance that no question was presented ex. August 26, 1913. It appears from the recit-cept the weight of the testimony, and that als in the finding and award of the Industrial the evidence was so conflicting and unsatisBoard that evidence was offered on his be factory that the board was unable to deterhalf at a hearing of both parties to establish mine its weight and preponderance. In oththat he was so injured in one of his eyes on

er words, it was, in the judgment of the said day, while evidence was offered on be board, evenly balanced and left the mind in half of plaintiff in error to show the injury the same condition it was in before hearing to claimant's eye existed before the date of any testimony whatever. Having no convicthe alleged accident, but that said board tions, from the proof presented at the hearwas unable, from the testimony offered by ing, how the disputed question of fact should the respective parties at said hearings, to de- be determined, the board found itself unable termine or decide the controverted question. to make any decision and appointed a special

The Workmen's Compensation Act of 1913 investigator “to make an examination into did not specifically state that notice should all the various phases of this case, from any be given the parties of the hearing on re- and all sources of evidence obtainable.” The view, but that such was the intent and pur-investigator took the statements of six witpose of the act is plain from the language nesses and reported the same to the Indusof the statute. By paragraph "e" of section trial Board, which board was “of the opin19 of the 1913 act, it was provided that if a ion, after carefully considering the report of petition for review of the award of a com- the special agent, that the injury to the mittee of arbitration and an agreed state-claimant's eye was the result of the acciment of facts or stenographic report were dent" at the time and in the manner alleged filed, as provided by the act, the Industrial and decided the claimant was entitled to Board should promptly review the decision compensation under the law, and made the of the committee of arbitration and the facts award accordingly. No notice was given to as they appear from said statement of facts plaintiff in error of the appointment of said or stenographic report, "and shall also, if de special agent and his instructions to take the sired, hear the parties, together with such statements of witnesses upon the disputed

ror.

be present at the taking of such statements | be the substance of certain testimony, in narrafor the purpose of cross-examining the par- tive form, and did not purport to be a correct ties whose statements were taken or to offer trial judge did not certify that it contained all

stenographic report of the evidence, and the additional evidence in its behalf. Said state the evidence heard. Held, this was insufficient ments are set out in the abstract, and it does for review of the trial court's decisions of fact. not appear that they were made under oath. [Ed. Note.- For other cases, see Courts, Dec. Plaintiff in error asserts they were not, and Dig. www190(6).] this is not denied by defendant in error. Error to Municipal Court of Chicago; Wm. There is no warrant in the statute for the N. Gemmill, Judge. adoption of any such method in the decision

Action by James C. Starks against the Naof a controversy about disputed questions of tional Monthly Company. Judgment for fact. The statute clearly contemplates and plaintiff, and defendant brings error. Afrequires that, when the merits of the case firmed. require a decision upon a question of dis

L. H. Craig, of Chicago, for plaintiff in erputed fact, both parties shall have an opportunity, not only to present such evidence as

Pringle & Terwilliger, of Chicago, for

defendant in error. they may desire, but also to be present at the taking and hearing of the evidence by the

FARMER, J. James C. Starks recovered opposite party, so that each may have opportunity for the cross-examination of the oth- a judgment in the municipal court of Chier's witnesses. In this case the decision and cago, in an action of the first class, against

the National Monthly Company, a corporaaward by the Industrial Board were not made upon the evidence introduced at a hear- tion, for $1,418.16, and the defendant, upon ing at which both parties had an opportunity involved, has sued out of this court a writ

the ground that a constitutional question is to be present and be heard and to introduce of error to review the judgment. Booz v. additional evidence. The board expressly states the award was made upon the state- Texas & Pacific Railway Co., 250 11. 376, 95

N. E. 460. ments of parties procured by the special investigator and upon his report, of which

Defendant, the National Monthly Complaintiff in error had no notice or knowledge pany, publishes a magazine, the National of any kind. In thus making the award the Monthly, at Buffalo, N. Y. Plaintiff filed a

statement of claim, in which he alleged he Industrial Board did not act within its pow

was employed as the agent of the National ers, but acted contrary to law. Our conclusion in this case is not arrived known as the western territory, advertising

Monthly Company to solicit, in territory at from a consideration of the evidence or facts disclosed by the testimony. The In

and make advertising contracts for said Nadustrial Board states in its inding and tional Monthly Company on a commission award that its decision is based upon state- basis equal to 20 per cent. on all business sements of witnesses taken ex parte and re

cured from the said western territory. The ported by the special investigator appointed statement of claim was sworn to, and alfor that purpose. No matter what the char- leges there is due plaintiff, for commissions acter of the evidence so taken was, the board upon advertising secured, $1,633.40. Sumdid not act within its powers in making it mons was returned served on the National the basis of the finding and award.

Monthly Company, "a corporation, by delivThe judgment of the circuit court is re- ering a copy thereof to W. T. Diehl, agent of versed, and the cause remanded to the circuit said corporation,” the officers, agents, and court, with directions to set aside the deci- employés mentioned in section 8 of the Pracsion and award of the Industrial Board, and tice Act (Hurd's Rev. St. 1915–16, c. 110) not for such further orders as to law and justice being found in the county. The defendant appertain.

entered a limited appearance, and moved the Reversed and remanded, with directions.

court to quash the service of summons, and filed an affidavit of the said Diehl, denying

that he was the agent or representative of (275 Ill. 526)

the National Monthly Company in any caSTARKS v. NATIONAL MONTHLY CO.

pacity, and alleging that he had no authority (No. 10669.)

to appear for the corporation in any proceed(Supreme Court of Illinois. Oct. 24, 1916. ing or for any purpose. On motion of plain

Rehearing Denied Dec. 12, 1916.) tiff the special appearance of defendant and COURTS 190(6) RECORD MUNICIPAL the affidavit in support of its motion were COURT.

stricken from the files December 14, 1915, On writ of error to review a judgment in a and three days' time was given defendant to municipal court of Chicago, in an action of the file "an amended special appearance and affifirst class, there was in the record only a socalled "statement of facts," which, although | davit.” December 17, 1915, this time was excertified by the trial judge as "a correct state- tended ten days. On December 20th defendment of the facts appearing upon the trial,” | ant filed the affidavit of Norman E. Mack, in was not a statement of facts within the contemplation of Municipal Court Act, 23 (Hurd’s which he alleged he was president of the NaRev. St. 1915-16, c. 37, § 286), but purported to Itional Monthly Company, a corporation or

inFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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