4. WILLS ( 303*)-LOST WILL-ESTABLISH- | in error herein as her heirs at law and next MENT-NATURE OF PROCEEDING. of kin, A petition by a legatee to prove an alleged lost will in the probate court, and praying that the will may be admitted to probate, was not a proceeding in equity to establish the will, so as to relieve the proponent from the duty of producing the subscribing witnesses imposed by Statute of Wills (Hurd's Rev. St. 1911, c. 148) § 2. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 711-723; Dec. Dig. § 303.*] 5. WILLS (§ 289*)-LOST WILL-PROBATEBURDEN OF PROOF. Under a petition to prove an alleged lost will, the proponent is required to make the same proof as in the case of an existing will, and in addition produce evidence sufficient to overcome the legal presumption that the testatrix had revoked the will in her lifetime by showing that it was in existence at the time of her death, and had been lost or destroyed since [Ed. Note. For other cases, see Wills, Cent. Dig. 8 653-661; Dec. Dig. § 289.*] that time. 6. WILLS (§ 302*)-LOST WILL EVIDENCE. In a proceeding to establish an alleged lost will, evidence of a witness, who attended decedent when she died, that, in removing the clothing from her body, witness discovered some packages of papers, and that one of the papers was inclosed in a light green cover like that containing a carbon copy of a will decedent had once made, which was produced by her former attorney, was not sufficient to justify a finding that decedent died leaving a last will, and that the same was destroyed after her death, so as to authorize probate of the copy as a lost will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 575, 581, 700-710; Dec. Dig. S302.*] 7. WILLS (§ 290*) — REVOCATION-DESTRUCTION-PRESUMPTION. Where a last will, after its execution, is retained by the testatrix and kept in her possession, and later after her death it cannot be found, the presumption is that the testatrix destroyed it animo revocandi, and not that it was destroyed by any other person without testatrix's knowledge or authority. [Ed. Note. For other cases, see Wills, Cent. Dig. 663; Dec. Dig. § 290.*] She died seised of real estate in Cook county, valued at about $5,000, and left about $10,000 worth of personal property. Shortly after her death, upon the petition of plaintiff in error, Thomas H. Gault was appointed administrator of her estate. Thereafter, in October, 1906, the defendant in error St. Mary's Home for Children and Dispensareferred to as the St. Mary's Home), filed ry for the Poor of Chicago, Ill. (hereinafter its petition in the probate court of Cook county, alleging that Isabella L. Dodge died testate, and that petitioner believed her last will and testament had been lost or destroyed. A copy of her alleged last will and testament was attached to the petition; and the prayer of the petition was that the will be restored and admitted to probate. The copy of the purported will attached to the petition, after providing for the payment of her debts and funeral expenses, bequeathed to plaintiff in error the sum of $1, and, after making two other small bequests, devised all the remainder and residue of her property, real and personal, to the St. Mary's Home. The probate court refused to admit the alleged will to probate, and an appeal was prayed and allowed to the circuit court of Cook county. Upon the hearing in the circuit court, a jury was impaneled, and in answer to special interrogatories, and by its general verdict, found that Mrs. Dodge died leaving a last will and testament, and that the same had been in the possession of plaintiff in error after her death. The circuit court made an order finding that Mrs. Dodge had died leaving a valid last will and testament in the words and figures of the copy Home, and ordered that the same be admitattached to the petition of the St. Mary's ted to probate. This writ of error has been Error to Circuit Court, Cook County; sued out to review that order. Thomas G. Windes, Judge. Petition by St. Mary's Home for Children and Dispensary for the Poor of Chicago and others for probate of the alleged lost will of Isabella L. Dodge, deceased. The Probate Court having denied the petition, appeal was prayed to the Circuit Court, where the will was established and the judgment rendered ordering it admitted to probate, from which William McLardy Dodge brings error. Reversed. Tatge & Koepke and S. G. Abbott, both of Chicago, and E. A. Ray, of Oregon, Ill. (Oscar M. Wolff, of Chicago, of counsel), for plaintiff in error. Delos P. Phelps, of Chicago, for defendants in error. court erred in impaneling a jury and submit- [2] It is next urged that the entry of this order was erroneous for the reason that the St. Mary's Home failed to produce as witnesses both of the subscribing witnesses to COOKE, J. Isabella L. Dodge died at her the alleged will or to show a valid excuse home in Chicago on June 19, 1905, presum- for its failure to do so. Thomas H. Gault, ably intestate. She left no children or de- who was called as a witness on behalf of the scendant, but left surviving her plaintiff in St. Mary's Home, testified that he was a error, her husband, and various nephews and practicing attorney, and had known Mrs. nieces, who have all been made defendants Dodge for many years, and during all that time had acted as attorney for both her ол that the will said to have been executed by Mrs. Dodge in October, 1904, was still in existence after her death. Shortly before the death of Mrs. Dodge, which occurred on the morning of June 19, 1905, plaintiff in error went to the home of Mrs. Alice Boyle, a neighbor and a woman who had frequently been employed by Mrs. Dodge, and summoned her to attend his wife. Mrs. Boyle was and presumption that the testatrix had revoked her former husband; that on the 7th 8th the will in her lifetime, to show that it was of October, 1904, he was employed by Mrs. in existence at the time of her death, and Dodge to draft her will, and he produced that it had been lost or destroyed since that what he testified was a carbon copy of the time. Beatty v. Clegg, 214 Ill. 34, 73 N. E. same, being identical with the copy attached 383. to the petition of the St. Mary's Home. Ac- [6] In the light of a further consideration cording to his testimony, this will was exe- of the facts presented by this record, this cuted by Mrs. Dodge at her home in Chicago error becomes unimportant, as we are of the on the last-named date, and was witnessed opinion that the petitioner below failed to by A. G. Bald and a Mr. Rogerson, an under-establish the fact that Mrs. Dodge left a last taker, who resided in that vicinity. Gault will and testament. But one witness was testified that, after the instrument was exe-produced by whom it was attempted to show cuted and witnessed, he folded it up and left it with Mrs. Dodge, and never saw it afterwards. Bald was called as a witness and testified to the execution of the instrument. Rogerson was not called; and, although it appeared from the testimony that he was still engaged in business as an undertaker in the city of Chicago, no explanation was offered as to why he was not produced as a witness, except that Gault testified that Rog-present when Mrs. Dodge died, and remained erson was not in the city at the time of the trial. Whether he was within Cook county or the state of Illinois, or whether he was temporarily absent from the city or state, did not appear. Under section 2 of the stat-taker discovered some packages of papers ute of wills (Hurd's Rev. St. 1911, c. 148), a party seeking to procure a will to be admitted to probate must produce the subscribing witnesses as witnesses in the probate court, if they are still living and sane and are within the jurisdiction of the court; and, on appeal from an order of the probate court refusing to so admit the alleged will, the party seeking the probate is not relieved by the provisions of section 13 of the same act from the duty of submitting to the circuit court the testimony of the subscribing witnesses. Thompson v. Owen, 174 Ill. 229, 51 N. E. 1046, 45 L. R. A. 682; In re Will of Barry, 219 Ill. 391, 76 N. E. 577. [3] Defendants in error urge that plaintiff in error, by his conduct on the trial of the cause, waived the production of the testimony of the witness Rogerson. There is no foundation for this contention; but, in any event, plaintiff in error could not waive this requirement. [4] It is also contended that the production of the attesting witnesses was not necessary, as this was simply a proceeding in equity to establish the will, which, if successful, would be followed by the statutory proceeding to admit the will to probate. In this counsel is mistaken, as this was a petition to admit the will to probate, and differed from the ordinary application only in that here it was alleged that the will had been lost or destroyed after the death of the testatrix, and it was sought to have the will, when proven, admitted as in any other case. [5] The St. Mary's Home was required, under its petition, to make the same proof as in any other case under the statute, and in addition, in order to overcome the legal until the undertaker's helper, an employé of said Rogerson, came to prepare the body for burial. In removing the clothing remaining upon the body, Mrs. Boyle and the under and two pocketbooks beneath her underclothing. At the request of plaintiff in error, Mrs. Boyle removed them and handed them to him. She said there were quite a few of these papers, and, according to her testimony, "there was a light kind of paper among them that I noticed particularly." It is this paper which it is now claimed was the instrument which Mrs. Dodge had executed in October, 1904, as her last will and testament. That is the only attempt at a description of this paper by the witness Mrs. Boyle, except in response to the leading questions of counsel for the St. Mary's Home. Mrs. Boyle did not testify on the hearing in the circuit court. She had testified as a witness in the probate court, and by stipulation her testimony was read on the hearing in the circuit court. Gault testified before the circuit court that, when the will had been executed and witnessed in 1904, he inclosed it in one of his regular office wrappers, which was of a light green color. The carbon copy was also inclosed in the same kind of wrapper, so that, when it was produced at the hearing in the probate court, it was, according to the testimony of Gault, in every respect an exact fac simile of the original except that it had no indorsement on the outside. This copy had been exhibited to Mrs. Boyle during her examination in the probate court; and after her description of the paper which she had found and particularly noticed, as above referred to, her examination proceeded as follows: "Q. Did you notice any paper of the shape of the one that I now show you? A. Yes. Q. And the color? A. Yes. Q. Will you please explain to the court whether there was any difference in the ap pearance of it, that you can describe to the found therein all her valuable papers and court, from the one that I exhibit to you securities and some jewelry, but found no now? (Your honor, I am handing her Ex-last will and testament. Mary Mills, a neighhibit 3.) As to size? A. Yes. Q. Shape? A. Yes. Q. Color? A. Yes. Q. Was there any difference between the one you saw and this, that you can point out to the court-any in color or shape? A. No. It was a lightish green paper. Q. Was it like this [handing paper to witness]? A. Yes." She then testified that she handed all the papers and the two pocketbooks found on the body to plaintiff in error; that he put this particular paper in his pocket, and laid some of the others on a table; and that she did not know what became of the paper of the light green color. This is the only testimony in the record which it is claimed directly tends to show that the alleged will was in existence after the death of Mrs. Dodge. To lend support to this testimony, the St. Mary's Home produced a number of neighbors and friends of Mrs. Dodge as witnesses, and proved by them statements which she had made prior to her death and subsequent to October 7, 1904, to the effect that she had made a will whereby she had disinherited her husband, and left him only the sum of $1, and various other statements of Mrs. Dodge to the effect that she and her husband did not live happily together; that he had abused her, had been untrue to her, had threatened to kill her; and that she never wanted him to receive any of her property. It was also shown that, immediately after the execution of the alleged will, she filed a bill for divorce against plaintiff in error, charging him with adultery. The statements in reference to the will were all made by Mrs. Dodge more than three weeks prior to the time of her death, with one exception. One witness, who lived in the same house, testified that, within a week of her death, Mrs. Dodge told her she had left her husband but $1 by her will. Plaintiff in error was at home during the two weeks prior to his wife's death, but he had been away from home before that; and it was during his absence that all the statements testified to were made, with the one exception mentioned. On the other hand, the plaintiff in error testified that he had never seen any will which had been executed by his deceased wife; that there was no last will and testament among the papers taken from the body of Mrs. Dodge after her death; but that those papers consisted wholly of letters which he had written to her and various receipts, and that the pocketbooks contained only a small amount of money. It was proven, also, that Mrs. Dodge, during her lifetime, rented a safety deposit box at the Merchants' Safety Deposit Vaults, and that the same was held by her at the time of her death; that plaintiff in error, in company with said Gault, had examined her safety deposit box immediately after her death, and bor of Mrs. Dodge, and a friend of 10 years' standing, testified that she saw her the day before she died, and talked with her about her business affairs. In this conversation this witness testified that Mrs. Dodge said she had no will, and did not have her business affairs settled; that plaintiff in error was present, and Mrs. Dodge treated him very kindly, spoke about having kept him up for two or three weeks waiting on her, and seemed to be solicitous for his welfare. Gault also testified that Mrs. Dodge wrote him on June 5, 1905, directing him to dismiss the bill for divorce, which he accordingly did on the following day. This evidence was not sufficient to warrant the court in holding that Mrs. Dodge died leaving a last will and testament, and that the same had been destroyed after her death. No contention is made here that Mrs. Dodge did not execute an instrument intended for her last will and testament in October, 1904. Gault testified that he placed a superscription upon the back of the instrument or envelope in which it was placed, to the effect that it was the last will and testament of Isabella L. Dodge. Mrs. Boyle did not testify that the paper she saw, and which it is now claimed was this same instrument, had any memorandum or indorsement upon it whatever. [7] Where a last will and testament, after its execution, is retained by the testator and kept in his possession, and later, after his death, it cannot be found, the presumption is that the testator destroyed it animo revocandi (In re Page, 118 Ill. 576, 8 N. E. 852, 59 Am. Rep. 395; Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837; Boyle v. Boyle, 158 Ill. 228, 42 N. E. 140; Stetson v. Stetson, 200 Ill. 601, 66 N. E. 262, 61 L. R. A. 258); and it will not be presumed that it has been destroyed by any other person without his knowledge or authority, for that would be presuming a crime. Stetson v. Stetson, supra. To overcome this presumption, the St. Mary's Home contends that it has produced evidence of the existence of the will after the death of Mrs. Dodge. The testimony of Mrs. Boyle, with all the other evidence in the record which tends in any way to support it, does not rise to the dignity of such proof. Mrs. Boyle testified in the probate court that a year and a half before that time she had seen for a moment a paper of the same shape, size, color, and general appearance of the one exhibited to her when on the witness stand, and which was claimed to have been a fac simile of the alleged will. If it was, in fact, the alleged will which Mrs. Boyle handed plaintiff in error at the time of the death of his wife, she could have observed nothing, according to the testimony of Gault, except the wrapper in which the in tions subsequent, so that on the grantees' failure to perform, the remedy of the surviving grantor was at law to recover, and not in equity to set aside the deed. strument was inclosed; and the will, if es- | grantees constituted covenants, and not conditablished, must be established by the mere color of this wrapper. The bare wrapper itself, or a similar wrapper inclosing a different instrument, would have had the same appearance. Lost or destroyed wills cannot be established, and the distribution of the estates of decedents determined, upon such unsatisfactory evidence. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 471; Dec. Dig. § 145.*] 3. COVENANTS (§ 114*)-ENFORCEMENT. [Ed. Note.-For other cases, see Covenants, Cent. Dig. §§ 189-202, 263; Dec. Dig. § 114.*] Counsel argue that it should be taken as a circumstance against plaintiff in error that he did not deny that he had mistreated his wife in the manner charged in her proven statements. Aside from the question of his competency to testify to any transaction occurring prior to the death of his wife, it must be borne in mind that these statements were all made out of his presence, and were not admitted for the purpose of proving any misconduct on his part, but for the sole purpose of showing his wife's attitude of mind towards him at the time the statements were made. No actual misconduct on the part of the plaintiff in error was proven, except that two of the persons who lived in the same house testified they had overheard him quar-wardsville (Terry & Gueltig, of Edwardsville, reling with his wife. The proof in support of the petition was not sufficient to overcome the presumption that Mrs. Dodge destroyed the instrument during her lifetime for the purpose of canceling and revoking it, and to establish the fact that it was in existence after her death, and was thereafter destroyed by plaintiff in error. The order of the circuit court admitting the alleged will to probate is reversed. Order reversed. (257 111. 528.) O'NEIL v. CAPLES et al. Feb. 20, 1913.) (Supreme Court of Illinois. 1. DEEDS (§ 99*)-CONSIDERATION-CONTEMPORANEOUS CONTRACT-CONSTRUCTION TO GETHER. Where a deed by a husband and wife to two of their daughters conveyed certain real property in controversy without reservation or condition, but a separate contract was executed by the grantees contemporaneously with the deed, by which they agreed to support the grantors for life and pay certain debts and expenses, the two instruments should be considered as one, though the contract was not executed by the grantors. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 261-265; Dec. Dig. § 99.*] SEPA 2. DEEDS (§ 145*) - CONSIDERATION Appeal from Circuit Court, Madison County; W. E. Hadley, Judge. Bill by Eliza O'Neil against Margaret Caples and others. Decree for complainant, and defendants appeal. Reversed and remanded, with directions. Warnock, Williamson & Burroughs, of Ed of counsel), for appellants. Springer & Buckley, of Edwardsville, for appellee. COOKE, J. On October 6, 1910, appellee, Eliza O'Neil, filed her bill of complaint in the circuit court of Madison county against Margaret Caples, Patrick Caples, and Mary O'Neil, seeking to set aside a deed to certain real estate in Madison county, or, in the alternative, that the defendants Margaret Caples and Mary O'Neil be required to specifically perform a certain agreement, which is hereinafter set forth. Mary O'Neil defaulted, and a decree pro confesso was entered against her. Margaret Caples and Patrick Caples answered the bill, and the comThe cause plainant replied to the answer. was referred to the master, who took the evidence and reported the same to the court, together with the following findings and conclusions: That James O'Neil, the husband of the complainant, Eliza O'Neil, and the stepfather of the defendants Margaret Caples and Mary O'Neil, was in his lifetime the owner in fee simple of the real estate described in the bill of complaint, being a farm of about 116 acres situated near the city of Edwardsville, in Madison county. That he was, at the time of the transactions hereinafter mentioned, living with his wife, Eliza O'Neil, and his stepdaughter Mary O'Neil, on the A husband and wife conveyed certain real land in controversy, and that Margaret Caproperty to two of their daughters, who ex- ples was living with her husband, Patrick ecuted a separate contemporaneous contract, Caples, on another farm in Madison county. by which they agreed to pay interest on mortgage indebtedness, taxes, insurance, and That about November 1, 1909, James O'Neil outstanding indebtedness of the grantors, and agreed to convey the real estate described all funeral expenses and debts and liabilities in the bill to Margaret Caples and Mary left by either of them, and also to support O'Neil, reserving to himself and to his wife, them during the remainder of their lives, either from the proceeds of the property or oth- Eliza O'Neil, a life estate therein, upon conerwise. Held, that such stipulations by the dition that his stepdaughters, Mary O'Neil a For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes a period of ten years after the death of both James and Eliza O'Neil, unless revoked or annulled by consent of both the said Mary and Margaret. Signed and sealed this 23d day of November, A. D. 1909." That James O'Neil and his wife knew of the provisions incorporated in said agreement, and that the performance of the same was a part of the and Margaret Caples. should conduct and year as to the receipts and expenses of the u the premises and support him and his preceding year up to that date, and all balwife, Eliza O'Neil, during their respective ances are to be adjusted at such settlement. lives, and that Mary O'Neil and Margaret It is further agreed by and between the said Caples should also pay the current debts Mary O'Neil and Margaret Caples that this which he owed, together with the interest agreement is to continue and be in force for then due upon a mortgage on said land, and the interest thereon which should thereafter accrue. That the said agreements by Mary O'Neil and Margaret Caples were to be performed in accordance with the following written agreement, which was thereafter prepared by an attorney and signed by Mary O'Neil and Margaret Caples: "Whereas, James O'Neil and Eliza O'Neil have conveyed consideration for the conveyance of the real to Mary O'Neil and Margaret Caples cer- estate described in the bill by James O'Neil tain real estate situated in section 1, in town- and wife to Mary O'Neil and Margaret Caship 4 north, range 8 west of the third prin- ples. That the deed conveying the premises cipal meridian, reserving only a life estate in question, which was dated November 4, or interest therein; and whereas, said Mary 1909, was prepared by an attorney with an and Margaret are to have immediate pos- office in the Bank of Edwardsville, at the resession of said real estate under certain con- quest of the defendant Mary O'Neil, and ditions and limitations, and they have mu- purported, in consideration of one dollar and tually agreed upon the separate use and occu- love and affection, to convey the premises to pation of said premises between them: Now, Margaret Caples and Mary O'Neil, reserving therefore, it is hereby mutually agreed by a life estate to the grantors, but did not conand between the said Mary O'Neil and Mar- tain any of the undertakings and promises garet Caples that Mary O'Neil shall have which were the consideration of the deed, as the use and control of the orchard, house, aforesaid. That after the deed had been garden and outbuildings and part use of the prepared James O'Neil called at the bank barn, and the free and undisturbed use of and executed the same, and a day or two the pasture for whatever stock she may own later his wife, Eliza O'Neil, executed the or use, and the said Margaret Caples is to deed, leaving the same at the bank. That have the use and control of the remainder a few days thereafter the defendants called of said real estate. The expenses of the at the bank for the purpose of executing the place, which are to include the interest on written contract. That Patrick Caples obthe debt, taxes, insurance and necessary re- jected to certain provisions of the instrupairs, are to be paid by Margaret Caples for ment, as the same had been prepared by the the use of the land under her control, and same attorney who had drawn the deed. if more is realized than is necessary for That the contract was modified to meet these that purpose, such excess is to be expended objections, and was then signed by Mary either in the reduction of the debts or in O'Neil and Margaret Caples, and that James such other improvements as they both (Mary O'Neil and Eliza O'Neil were afterwards adand Margaret) may agree upon. Mary is vised of such modifications, and acquiesced to pay all grocery bills and other living ex- therein. That Margaret Caples and Mary penses for the house-that is, for herself O'Neil have disagreed as to what was reand James O'Neil and Eliza O'Neil-pro- quired by the written contract to be done vided she realizes enough from the income by each of them, and have neglected and from the property under her control, and refused to perform the promises and underif this income is not sufficient for such ex- takings therein set forth. That Margaret penses then Margaret is to pay what may be Caples has paid the taxes for the year 1909, necessary to make up such deficiency. If due and payable in the spring of 1910, but the coal underlying said real estate is sold, has not paid the taxes for the year 1910, the proceeds therefor are to be used in pay- due and payable in the year 1911. That she ing off the indebtedness upon said place and has also paid the interest on the mortgage any surplus is to be divided equally between due in 1910, amounting to $140, but has not them. If Margaret should desire to live paid the interest due in 1911. That she has upon the place, she may, at her own cost also paid a portion of the funeral expenses and expense, erect or build a dwelling house of James O'Neil, such payments aggregatupon a site east of the L. & M. railroad ing the sum of $46.75. That Mary O'Neil track, or such other place as may be mutual- has paid a doctor's bill which was incurred ly agreed upon between them. In the event during the lifetime of James O'Neil, amountof death of either James O'Neil or Eliza ing to $75. That the total amount of the O'Neil, or both, all funeral expenses or other outstanding indebtedness, exclusive of the debts and liabilities left by either of them shall be paid by Mary and Margaret, equally. The parties hereto shall have a settle taxes and interest on the mortgage, existing when the deed and agreement were executed, and including the funeral expenses of James |