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 in and by the will took advantage of the fiduciary relation existing between him and his mother to procure his nomination as executor and trustee with large discretionary charged against appellee, resulting largely to his advantage. The errors assigned and argued in the briefs are that the verdict is palpably contrary to the evidence; that the court erred in giving one instruction on behalf of the contestants and refusing one instruction ask-powers, and caused advancements to be ed on behalf of the proponents of the will. Anna B. Reep was at the time of her death about 65 years of age. She owned 160 acres of farming land in Menard county and money to the amount of about $1,200. She had inherited the land from her father. and together with her husband and family had resided on the farm many years. In January, 1913, she left the farm and went to Petersburg, Menard county, where she lived at the Smoot Hotel until after the will was executed. Her husband appears to have left the home and family prior to the time Mrs. Reep went to live in Petersburg. Before going there she had a sale and sold off her personal property. She lived at the Smoot Hotel, in Petersburg, until April 1, 1914, when she went to visit her daughter Martha A. Clark in Arkansas, where she remained until her death, February 9, 1915. Mrs. Reep had suffered from valvular heart disease and a tendency to dropsical conditions for several years before her death. At times she would be very ill and suffer greatly. When suffering from thesc acute attacks she was unable to be around. As we understand the record, before she was incapacitated by age and disease from doing so she largely managed and controlled the business of conducting her farm. The evidence upon the issue of her mental capacity was conflicting. A considerable number of witnesses testified that she was, in their opinion, of unsound mind, and a considerable number testified that she was of sound mind. The jury found that she was of sound mind, and the correctness of that finding is not questioned by the assignment of cross-errors. The decree adjudging the instrument offered as the will of Anna B. Reep was not her last will and setting aside the probate there of was based upon the finding of the jury that she was unduly influenced to make it by Thomas P. Reep. He was called as a witness by the contestant. He is an attorney at law practicing in Petersburg. He testified he prepared the will at his mother's direction; that he made a draft of it with lead pencil from notes made at his mother's room in the Smoot Hotel and submitted it to her two days before it was executed; that he afterwards had it typewritten, took it to his mother, read it to her carefully, left it with her, and at her request årranged to come back the next forenoon; that he does not remember whether any one was present in the room when he read the will to his mother. The contestant contends that the proof established a relation of trust and confidence between the testatrix and Thomas P. Reep; that he procured her to make the will, pre 114 N.E.-18 There were four witnesses to the will. They were requested to come to the testatrix's room at the hotel to attest the will as witnesses by Thomas P. Reep. They appear to have gone to Mrs. Reep's room at about the same time, but did not all go together. As some of them were going into the testatrix's room, Thomas was passing out and said he would return quickly. He did so within a few minutes. She signed the will in the presence of the witnesses, and they each signed in her presence. She told them she had made her will and wanted them to sign as witnesses. Three of the witnesses to the will testified the testatrix had it in her possession when they went to her room. They all testified that when Thomas came in the room, and before the will was signed, he asked his mother if it was her will and if she wanted the parties present to sign as witnesses, and she answered she did; that he prepared it for her signature and told her where to sign it. One of the witnesses to the will testified that when Thomas came into the room he took the will out of his pocket and asked testatrix if it was her will and if she wanted the parties present to sign it. At the time the will was executed, the testatrix was lying on the bed in her nightdress or a wrapper. The physician who treated her testified she was quite ill in February, 1914. She was raised up in bed, the will was placed on a book, and she was given a pen, with which she signed it. It was afterwards signed by the four witnesses in her presence. In addition to the usual recital in the attestation clause that the witnesses believed the testatrix to be of sound mind and memory, it contained the further recital that: "We saw no indication of and believe there was no undue influence exercised over her in the execution thereof." [1] The evidence tended to show, and was not contradicted, that Thomas sustained a fiduciary relation toward testatrix. He transacted business for her as her agent and attorney, and that she reposed confidence in him was evidenced by the fact that she instructed the bank where she deposited her money to honor checks on her account signed by him as her agent. "Where a fiduciary relation exists between the testator and a devisee who receives a substantial benefit from the will, and where the testator is the dependent and the devisee the dominant party and the testator therefore reposes trust and confidence in the devisee as in where the will is written, or its preparation the ordinary relation of attorney and client, and procured, by that beneficiary, proof of these facts establishes prima facie the charge that the execution of the will was the result of undue influence exercised by that beneficiary, and this proof, standing alone and undisputed by other proof, entitles contestants to a verdict." Weston v. Teufel, 213 Ill. 291, 72 N. E. 908, and cases there cited. See, also, Leonard v. Burtle, 226 Ill. 422, 80 N. E. 992; Yess v. Yess, 255 Ill. 414, 99 N. E. 687; England v. Fawbush, 204 Ill. 384, 68 N. E. 526. [2] It is insisted by appellants that the evidence does not bring the case within the rule announced in the cases above cited, for the reason that Thomas P. Reep received no special benefit from the will above what the other children received; that the will divided the testatrix's property equally among her children and the grandchild, who was the only child of a deceased son, except as to the advancements charged against the share of the contestant and two other children, to be paid out of the proceeds of the sale of the real estate. In such case, it is contended, the evidence does not make a prima facie case requiring proof to rebut it The only inequality in amount between the devise for the use and benefit of contestant and the devise to Thomas P. Reep is the benefit the latter will receive from the advancements charged against the share of the former. It is claimed by appellants no substantial advantage results from that source. While the share of Thomas P. Reep will not be greatly increased thereby, some benefit to him will accrue. He is also nominated executor and trustee with large powers, among them to hold in trust the share of contestant in the proceeds of the sale of the real estate, loan it, and pay the net income, annually, to her until the death of her husband or their divorce and her remarriage. The land was not to be sold until one year after the death of testatrix's husband, and until sold it was to be managed and controlled by Thomas P. Reep and the net income divided among the beneficiaries as directed in clause 5, after deducting all expenses, "including the costs and fees for executing this trust." [3] In view of the special benefits to and powers conferred upon Thomas P. Reep by the will, we are impressed it must be held the case made by the evidence brings it within the rule of the authorities above referred to. The prima facie case made by the proof for contestant did not shift the burden of proof to the proponents, but it did require them to rebut the prima facie case with some proof. In the end the burden rested upon contestant to prove the charge in her bill by a preponderance of the evidence but that rule was complied with unless the prima facie case was rebutted by proof. There was no attempt to rebut the proof of the facts relied upon by contestant to support the claim that a fiduciary relation existed between the son Thomas and the testatrix, nor do we understand the sufficiency of the proof to show the existence of such re lation is denied. The contention rather is that notwithstanding such relation existed, as we have before said, and for the reasons there stated, the evidence in this particular case did not make a prima facie case of undue influence requiring contradiction on the part of proponents; also, it is further contended by proponents that proof of statements made by the testatrix before the will was made, and statements after its execution, as to what disposition she would make and had made of her property, and her reasons therefor, rebut any presumption that she was unduly influenced. [4] Before testatrix left the farm, contestant and her husband were visiting for some time at the testatrix's house. While they were there, testatrix and contestant's hustestatrix's son-in-law of a young son of band had a quarrel about the treatment by Thomas P. Reep, who also appears to have been a visitor at his grandmother's. testified on behalf of proponents that the testatrix told her son-in-law he should not It was have any of the fruit she and her daughter were putting up, to which he replied in a vulgar and offensive manner, and after that the testatrix told some parties her son-inlaw should never have any of her property; also, that after the will was made she said she had arranged her property so her sonin-law would not get any of it. There is no tween testatrix and contestant. On the conproof of any dispute or misunderstanding betrary, there is evidence tending to show contestant, who was her youngest daughter, was also the favorite of her mother. The proof tends to show that Thomas P. Reep became angry at his brother-in-law and made threats of violence against him on account of the difficulty between the brother-in-law and Thomas' son. The proof clearly shows that at and for some time before the will weakened condition from age and serious was made testatrix was physically in a illness. A number of witnesses testified her mind also was unsound, but we think sessed testamentary capacity. It cannot be the jury were warranted in finding she posdenied, however, that on account of her age and long and severe illness she was more susceptible to undue influence and imposition than if she had been physically sound and strong, and in such case, when the will is written by one who is substantially benefited by it, stricter scrutiny and proof of volition will be required. Purdy v. Hall, 134 Ill. 298, 25 N. E. 645. written, by a person largely benefited by it, such "Where a will is written, or procured to be circumstance excites stricter scrutiny and requires stricter proof of volition and capacity. The proof required in such cases must be such testator was not imposed upon, but knew what as to fully satisfy the court or jury that the he was doing, and what disposition he was making of his property when he made his will. The active agency of the beneficiary of a will in procuring it to be drawn, especially in the absence of those who have at least equal claims upon the A consideration of the evidence in the record leads us to the conclusion that we would not be justified in reversing the decree on the ground that it is palpably contrary to the weight of the testimony. The language of the opinion in Keyes v. Kimmel, 186 Ill. 109, on page 121, 57 N. E. 851, is applicable to this case. Neither do we find any error of law in the court's ruling in giving and refusing instructions, prejudicial to proponents. A hearing was had 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. May 4, 1914, before a committee of arbitration, and $9 a week for 56 weeks, beginning September 4, 1913, was awarded Moeller. A of arbitration was had before the Industrial review of the award made by the committee Board. That board found the parties were under the terms and provisions of the Workmen's Compensation Act; that Fred Moeller had been receiving $15 per week; that the accident arose out of and in the course of the employment and resulted in the total loss of the sight of one of Moeller's eyes. It was ordered and adjudged that the Bereda Manufacturing Company, the plaintiff in error, pay the administrator of the estate of Fred Moeller $7.50 per week for a period of 100 weeks. Plaintiff in error sued out a writ of certiorari from the circuit court of Cook county to review and set aside the decision and award of the Industrial Board upon the same grounds alleged in the assignment of error in this court. The circuit court, on a hearing, quashed the writ of certiorari, dismissed the proceeding, and the presiding judge certified that in his opinion the case was one proper to be reviewed by this court, and this writ of error was sued out accordingly. The decree is affirmed. (275 Ill. 514) BEREDA MFG. CO. v. INDUSTRIAL (Supreme Court of Illinois. Oct. 24, 1916. Rehearing Denied Dec. 12, 1916.) MASTER AND SERVANT 416-WORKMEN's COMPENSATION ACT-AWARD OF INDUSTRIAL BOARD. The intent and purpose, that review by the Industrial Board of an award by a committee of arbitration shall be on notice to the parties, appearing from Workmen's Compensation Act of 1913 (Laws 1913, p. 348) § 19e, providing that such board shall review the decision of the committee and the facts as they appear from the statement of facts or stenographic report, "and shall also, if desired, hear the parties, together with such additional evidence as they may wish to submit," it, in making its award on statements of persons procured by a special investigator appointed by it, and on his report, of which one of the parties had no notice or knowledge, did not act within its powers, but contrary to law. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 416.] Error to Circuit Court, Cook County; car M. Torrison, Judge. Os Proceedings under the Workmen's Compensation Act for compensation for injury to Fred Moeller, opposed by the Bereda Manufacturing Company, employer. Certiorari to review the decision and award of the Industrial Board was quashed by the circuit court, and the employer brings error. Reversed and remanded, with directions. Thomas C. Angerstein, of Chicago (David A. Orebaugh, of Chicago, of counsel), for plaintiff in error. Sabath, Stafford & Sabath, of Chicago (Charles B. Stafford, of Chicago, of counsel), for defendants in error. FARMER, J. Fred Moeller, now deceased, filed December 19, 1913, his application with [1] It does not appear that there was any statement of facts agreed to at the hearing before the committee of arbitration or the Industrial Board, but the testimony of witnesses called by the respective parties was heard by the committee of arbitration. None of the testimony is abstracted. No question is raised as to the case being one within the jurisdiction of the board, but the grounds urged for reversal are that the Industrial Board, contrary to law, took testimony of witnesses without notice to plaintiff in error and without it being afforded an opportunity for crossexamination of the witnesses; that said board based its decision and award upon the unsworn statements of said witnesses and the unverified report of a special agent appointed by the board to procure the state ments of said witnesses. Defendants in error contend that the record presents no question for review; that the evidence, which is not abstracted, sustained the finding and award; that the only dispute between the parties was one of fact, and no question of law is presented for our consideration. In its finding and award the Industrial Board recited that the case presented no question except the weight of the testimony; 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 "a, mit. After such hearing 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 sourc- parties could not exercise their right to be es of evidence obtainable. On August 3, 1913, 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 sub stance, 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 furduring 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 at-tained in the stenographic report of the heartempting to drive, a chisel between the two by fours, as claimed by him." So far as appears from the record, the controversy on the hearing before the committee of arbitration and on review before the Industrial Board was whether the claimant was injured while engaged in his employment, August 26, 1913. It appears from the recitals in the finding and award of the Industrial Board that evidence was offered on his be half at a hearing of both parties to establish that he was so injured in one of his eyes on said day, while evidence was offered on be half of plaintiff in error to show the injury to claimant's eye existed before the date of the alleged accident, but that said board was unable, from the testimony offered by the respective parties at said hearings, to determine or decide the controverted question. The Workmen's Compensation Act of 1913 did not specifically state that notice should be given the parties of the hearing on review, but that such was the intent and purpose of the act is plain from the language of the statute. By paragraph "e" of section 19 of the 1913 act, it was provided that if a petition for review of the award of a committee of arbitration and an agreed statement of facts or stenographic report were filed, as provided by the act, the Industrial Board should promptly review the decision of the committee of arbitration and the facts as they appear from said statement of facts or stenographic report, "and shall also, if desired, hear the parties, together with such ing before the committee of arbitration; but it also appears from the recitals in the decision and award that said decision was not made or based upon the stenographic report and the additional evidence heard by the board. It is stated in the decision, in substance that no question was presented except the weight of the testimony, and that the evidence was so conflicting and unsatisfactory that the board was unable to determine its weight and preponderance. In other words, it was, in the judgment of the board, evenly balanced and left the mind in the same condition it was in before hearing any testimony whatever. Having no convictions, from the proof presented at the hearing, how the disputed question of fact should be determined, the board found itself unable to make any decision and appointed a special investigator "to make an examination into all the various phases of this case, from any and all sources of evidence obtainable." The investigator took the statements of six witnesses and reported the same to the Industrial Board, which board was "of the opinion, after carefully considering the report of the special agent, that the injury to the claimant's eye was the result of the accident" at the time and in the manner alleged and decided the claimant was entitled to compensation under the law, and made the award accordingly. No notice was given to plaintiff in error of the appointment of said special agent and his instructions to take the statements of witnesses upon the disputed be present at the taking of such statements for the purpose of cross-examining the parties whose statements were taken or to offer additional evidence in its behalf. Said state ments are set out in the abstract, and it does not appear that they were made under oath. Plaintiff in error asserts they were not, and this is not denied by defendant in error. There is no warrant in the statute for the adoption of any such method in the decision of a controversy about disputed questions of fact. The statute clearly contemplates and requires that, when the merits of the case require a decision upon a question of disputed fact, both parties shall have an opportunity, not only to present such evidence as they may desire, but also to be present at the taking and hearing of the evidence by the opposite party, so that each may have opportunity for the cross-examination of the other's witnesses. In this case the decision and award by the Industrial Board were not made upon the evidence introduced at a hearing at which both parties had an opportunity to be present and be heard and to introduce additional evidence. The board expressly states the award was made upon the statements of parties procured by the special investigator and upon his report, of which plaintiff in error had no notice or knowledge of any kind. In thus making the award the Industrial Board did not act within its powers, but acted contrary to law. ments of witnesses taken ex parte and re the basis of the finding and award. The judgment of the circuit court is reversed, and the cause remanded to the circuit court, with directions to set aside the decision and award of the Industrial Board, and for such further orders as to law and justice appertain. be the substance of certain testimony, in narrative form, and did not purport to be a correct trial judge did not certify that it contained all stenographic report of the evidence, and the the evidence heard. Held, this was insufficient for review of the trial court's decisions of fact. [Ed. Note.-For other cases, see Courts, Dec. Dig. 190(6).] Error to Municipal Court of Chicago; Wm. N. Gemmill, Judge. Action by James C. Starks against the National Monthly Company. Judgment for plaintiff, and defendant brings error. Affirmed. L. H. Craig, of Chicago, for plaintiff in error. Pringle & Terwilliger, of Chicago, for defendant in error. FARMER, J. James C. Starks recovered a judgment in the municipal court of Chicago, in an action of the first class, against the National Monthly Company, a corporation, for $1,418.16, and the defendant, upon the ground that a constitutional question is involved, has sued out of this court a writ of error to review the judgment. Booz v. Texas & Pacific Railway Co., 250 Ill. 376, 95 N. E. 460. Defendant, the National Monthly Company, publishes a magazine, the National Monthly, at Buffalo, N. Y. Plaintiff filed a statement of claim, in which he alleged he was employed as the agent of the National 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 and make advertising contracts for said Nafacts disclosed by the testimony. The Industrial Board states in its finding and tional Monthly Company on a commission award that its decision is based upon state-basis equal to 20 per cent. on all business secured 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 Monthly Company, "a corporation, by delivering a copy thereof to W. T. Diehl, agent of said corporation," the officers, agents, and employés mentioned in section 8 of the Practice Act (Hurd's Rev. St. 1915-16, c. 110) not being found in the county. The defendant entered a limited appearance, and moved the court to quash the service of summons, and filed an affidavit of the said Diehl, denying that he was the agent or representative of the National Monthly Company in any capacity, and alleging that he had no authority to appear for the corporation in any proceeding or for any purpose. On motion of plaintiff the special appearance of defendant and the affidavit in support of its motion were stricken from the files December 14, 1915, and three days' time was given defendant to file "an amended special appearance and affidavit." December 17, 1915, this time was extended ten days. On December 20th defendant filed the affidavit of Norman E. Mack, in which he alleged he was president of the National Monthly Company, a corporation or Reversed and remanded, with directions. (275 Ill. 526) STARKS v. NATIONAL MONTHLY CO. (No. 10669.) (Supreme Court of Illinois. Oct. 24, 1916. Rehearing Denied Dec. 12, 1916.) COURTS 190(6) RECORD MUNICIPAL Court. On writ of error to review a judgment in a municipal court of Chicago, in an action of the first class, there was in the record only a socalled "statement of facts," which, although certified by the trial judge as "a correct statement of the facts appearing upon the trial," was not a statement of facts within the contemplation of Municipal Court Act, § 23 (Hurd's Rev. St. 1915-16, c. 37, § 286), but purported to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |