attesting clause in Illinois

1919The authorities are reviewed in Thompson v. Owen, supra, followed in Flynn v. Flynn, supra, with citation of later Illinois cases, among them Elston v. Montgomery, supra, where, as in the present case, the attesting clause omitted all mention of testamentary capacity; and More v. More, 211 Ill. 268 , where there was no attesting clause written out, and proof of the genuineness of the attesting witnesses’ signatures was held to raise the presumption that the will was duly attested, and create an inference that the witnesses believed the testator possessed testamentary capacity at the time of th

1918(Thompson v. Owen, 174 Ill. 229 .) In this last case numerous authorities are cited and reviewed to the effect, substantially, that the law for wise and obvious reasons requires wills to be executed with such precautions as will usually guard against fraud; that when the attestation clause is complete and the signature genuine and the circumstances corroborative of due execution, and there is no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect th

1919The authorities are reviewed in Thompson v. Owen, supra, followed in Flynn v. Flynn, supra, with citation of later Illinois cases, among them Elston v. Montgomery, supra, where, as in the present case, the attesting clause omitted all mention of testamentary capacity; and More v. More, 211 Ill. 268 , where there was no attesting clause written out, and proof of the genuineness of the attesting witnesses’ signatures was held to raise the presumption that the will was duly attested, and create an inference that the witnesses believed the testator possessed testamentary capacity at the time of th

1909In More v. More, 211 Ill. 268 , both witnesses to the will were dead when it was sought to prove it for admission to probate.

1937Where a witness who has subscribed to a will stating in the attestation clause all the facts required for a proper attesting of the will testifies on the hearing to a contrary state of facts, he thereby assumes an attitude which is not only inconsistent with the position that he has voluntarily taken but one that may well be argued to be suggestive of fraud and double dealing.” In Beck v. Lash, 303 Ill. 549 , we said that an attesting witness cannot be too severely criticised for signing an attesting clause like the one in this case and then swearing to the contrary when he is produced as a wi

1927(Harris v. Etienne, 315 Ill. 540 .) The attesting clause signed by the witnesses, in addition to stating the testatrix signed, sealed, published and declared the instrument as her last will and testament, also states that at her request, and in her presence and in the presence of each other, they signed it.

1925It is true, the will contained a perfect attesting clause, which we have held is entitled to due weight in determining whether a will was legally executed, (In re Estate of Kohley, 200 Ill. 189 ; More v. More, 211 id. 268 ; Gould v. Theological Seminary, 189 id. 282 ;) but none of those cases hold the attesting clause conclusive.

1925It is true, the will contained a perfect attesting clause, which we have held is entitled to due weight in determining whether a will was legally executed, (In re Estate of Kohley, 200 Ill. 189 ; More v. More, 211 id. 268 ; Gould v. Theological Seminary, 189 id. 282 ;) but none of those cases hold the attesting clause conclusive.

1919Mead v. Trustees of Presbyterian Church, supra, is another ease where there was no attesting clause.

1919The authorities are reviewed in Thompson v. Owen, supra, followed in Flynn v. Flynn, supra, with citation of later Illinois cases, among them Elston v. Montgomery, supra, where, as in the present case, the attesting clause omitted all mention of testamentary capacity; and More v. More, 211 Ill. 268 , where there was no attesting clause written out, and proof of the genuineness of the attesting witnesses’ signatures was held to raise the presumption that the will was duly attested, and create an inference that the witnesses believed the testator possessed testamentary capacity at the time of th

1919The authorities are reviewed in Thompson v. Owen, supra, followed in Flynn v. Flynn, supra, with citation of later Illinois cases, among them Elston v. Montgomery, supra, where, as in the present case, the attesting clause omitted all mention of testamentary capacity; and More v. More, 211 Ill. 268 , where there was no attesting clause written out, and proof of the genuineness of the attesting witnesses’ signatures was held to raise the presumption that the will was duly attested, and create an inference that the witnesses believed the testator possessed testamentary capacity at the time of th

1918(Hutchison v. Kelly, 276 Ill. 438 .) We have also held that an attestation clause which the attesting witnesses to the will swear bears their signatures is competent evidence tending to establish the due execution of a will in chancery, when the only defect in the proof is that the subscribing witnesses are unable to recollect that all the formalities prescribed by the statute and recited in the attesting clause were actually complied with.

1898In Canatsey v. Canatsey, supra, the expression of the l court in Dickie v. Carter, supra, is quoted, but neither the conclusion reached nor any observation of the court in the course of the opinion is antagonistic to the position assumed in the case at bar.

1897Any act which indicates the same thing with unmistakable certainty will answer as well. * * * In matters of this sort we must look at the substance rather than the form.” In Nickerson v. Buck, supra, it was held, that the actual signature by the testator may be made known to the witnesses by other modes than an express declaration to the witnesses that the will is his, and that any act or declaration, carrying by implication an averment of such fact, is equally effective.