Harrington v. Stees.

intention, all the while, that she should have every thing I have, real and personal, and that is my will now.'

6

"Mr. Hughey then said to Mr. Harrington (referring to what Mr. Harrington had just said): This is your last will and testament, made in our presence, as witnesses.'

6

"Mr. Harrington said: 'Yes.' Mr. Harrington then paused a minute, seeming to be in a study, and then said: My life insurance policy (five thousand dollars) I want to go direct to her, without going through a course of administration.'

"We declare that we were present and heard the above words spoken by the said Henry H. Harrington, during his last sickness, and that, at the time of pronouncing the same, we believed him to be of sound mind and memory, and that he did, at the same time, desire us to bear witness that such words were his will, and that the speaking of said words was not procured by fraud, compulsion or other improper conduct, and that the said Henry H. Harrington departed this life on the 13th of November, 1869.

GEORGE W. HUGHEY.
WILLIAM B. RIDGWAY."

66

The bill charges that the supposed will was not made in time of his last sickness," as contemplated by the statute; that the making of the same was procured by Hughey and Ridgway, in behalf of Mary Stees, by fraudulent acts, and they exercised undue influence over the mind of Harrington, so that the making thereof was not an act of his own free agency; that, at the time, Harrington was feeble in body and mind, laboring under a disease commonly called "quick consumption," so that he was incapable of making a will, and was not of sound mind and memory. These allegations are denied by defendants.

Deceased had been ill for some months before his death, and had been under the care of Dr. Lesher for two months before his death. He was able to be at his store about two weeks before he died, but for the last week or ten days was so ill that his physician visited him daily, and sometimes twice or three times a day, and during this time he was unable to rise from his bed without assistance. On Wednesday night, November 10, 1869, he seemed much prostrated from two copious evacuations from the bowels, caused by repeated doses of oil and salts prescribed by his physician. This prostration continued until Thursday forenoon. He then rallied

Harrington v. Stees.

somewhat, but grew gradually weaker until death, which occurred Saturday morning, November 13, 1869.

On Wednesday night, sometime before midnight, Mr. Stein (a merchant who had come to sit up with him that night) was sent by Mr. Harrington for Mr. Ridgway, Mr. Hughey and Mrs. Taylor, Harrington saying to Stein that he wished to see and speak with them. Shortly before this, Harrington, in Stein's presence, said to Mary Stees, when speaking of his temporal affairs, that they had done much for him, aud that he would pay them well for it. To which Mary Stees replied: "Harry, attend to your spiritual matters, and let your temporal matters go." Harrington then said that was right; he would like to have every thing in order, or something to that effect. Harrington told Mary Stees that he wanted Ridgway, Hughey and Mrs. Taylor sent for, saying he would like to have them sing and pray with him, and he wished to talk to them, anyway. After their arrival, a prayer meeting was held in the room of the invalid, Mr. Ridgway, Mr. Hughey, Mrs. Taylor, Mary Stees and her brother, R. K. Stees, being presAfter these religious exercises, Mrs. Taylor, Mary Stees and R. K. Stees retired into an adjoining room, and Mr. Hughey and Mr. Ridgway were left alone at Harrington's bedside, and soon after this the conversation occurred which is set up as a will.

ent.

66

It is contended, first, that this will was not made in the time of the last sickness" of deceased, in the sense in which the words are used in the statute. It is strenuously insisted that such a will, to be valid, must have been made in extremis, or when the testator is overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. This rule was laid down by Chancellor KENT in the case of Prince v. Hazelton, 20 Johns. 502. That case was decided by a mere majority of the court, and Mr. Justice WOODWORTH dissented, in a very elaborate opinion. This question received a very able and critical review in the case of Johnson v. Glasscock et al., 2 Ala. (N. S.) 242, where the case of Prince v. Hazelton and the authorities relied upon by Chancellor KENT are very fully considered. In the latter case, the court deduce the following rule: "If a person, in the sickness of which he subsequently dies, impressed with the probability of approaching death, deliberately makes his will in conformity to the statute, we do not feel authorized to say that it will be invalid because, in point of fact, he had time and opportunity to reduce it to writing."

Harrington v. Stees.

This rule seems to go as far as the statute permits the courts to go. At common law, it was not essential to the validity of a nuncupative will that the testator should have been ill at all. The statute is, in this regard, a limitation of the com non-law powers. The words "in the time of the last sickness," had no technical signification at the time of the passage of the statute. These words must be taken in their ordinary signification. The courts have no power to take from or add to the statute. It is their duty to cary out the will of the legislature as found in the words of the statute, and the necessary and reasonable implications arising from these words. The statute requires it to be proven that the will was made in the last sickness." It is a reasonable and necessary implication that it must also appear that the testator, at the time of making the will, supposed that his then sickness would prove his last sickness--in other words, that he should be impressed with the probability that he would never recover.

66

Tested by this rule, it seems plain that this will was made “in the time of the last sickness," within the meaning of these words as used in the statute.

Dr. Lesher, in speaking of the mental characteristics of the deceased, as observed by him, mentioned his "feeling of resignation to his probable dissolution." The mere fact that he sent out in the night time for his friends and members of his church to pray with him strongly tends to show that he was impressed with the probability of approaching death. Persons, having no impression that they are probably approaching the end of life, do not usually send out in the night time for the clergy and others to hold religious services. His conversation with Mary Stees, in the presence of Mr. Stein, just before he sent out for his neighbors, necessarily implies the idea of the probable approach of death. He is telling her that they had done much for him, and that he would pay them well for it, when she interposes, saying: "Harry, attend to your spiritual matters, and let your temporal matters go." He replies: "That is right; I would like every thing in order." What does all this mean, if it does not necessarily imply the idea that it was probable that he would not recover?

Again, when the Rev. Mr. Hughey suggested that it was too late to adjust his temporal matters in the manner he had intended, and Mr. Ridgway suggested that his temporal matters might be adjusted by an oral will, instead of replying that he had

Phillips v. Meyers.

no idea that death was approaching, or saying that there was time enough left, he accepts the suggestion, and deliberately and distinctly declared what was then his will, and particularly expresses his wish that he wanted his life insurance to go direct to Mary Stees, without going through a course of administration. A "course of administration" comes only after death. Men do not usually talk and act thus unless they are impressed with the probability of approaching death. It is plain that he was then and there so impressed. It is not necessary that the testator should have been without hope of recovery. It is an adage, "So long as there is life, there is hope." There may well be hope while the mind is impressed with the probability of death.

There is nothing in the record tending, in any degree, to repel this idea, except the impression of Mr. Ridgway. He gives the grounds of his impression, and, on examination, it is apparent that his inferences had no foundation in fact.

(Omitting some minor facts.)

We find no just ground of complaint against the decree of the Circuit Court. The decree is affirmed.

BREESE, J., dissented.

Decree affirmed.

PHILLIPS V. MEYERS.

(82 111.67.)

Promissory note —Consideration — Agreement of wife to return to her husband.

A promissory note, executed by a husband for the benefit of his wife, in consideration of her discontinuance of an action for divorce on account of his drunkenness and abuse, and her return to live with him, is valid.

A

CTION on a promissory note. The opinion states the case.

P. E. Hosmer and L. M. Phillips, for appellant.

James A. Watts, George Vernor and W. S. Forman, for appellee.

WALKER, J. This was an action in the court below on this promissory note:

Phillips v. Meyers.

"NASHVILLE, ILL., Sept. 18, 1872.

"For value received, one day after I at any time become intoxicated, or drink, or mistreat or abuse Minnie Meyers, I promise to pay to L. M. Phillips the sum of $600, for the use of Minnie Meyers, with ten per cent interest from maturity until paid. "MAURICE MEYERS."

The declaration contained a number of counts, in each of which it was averred that defendant had done some one of the acts, upon the doing of which the note, by its terms, was to become payable.

Defendant filed a number of pleas. The fifth avers the contract sued on was executed and delivered without a good and valuable consideration, and given by defendant only for a promise of Minnie Meyers that she would live with him as she had done before, she being his wife. The other pleas were traversed, and plaintiff filed to the fifth plea this replication:

"That the consideration of the agreement sued on was not alone that Minnie Meyers, who was the wife of defendant, would live with her husband, the defendant, as she had formerly done, but the consideration of said agreement was this: The said defendant had been and was guilty of habitual drunkenness, and extreme and repeated cruelty toward his wife, Minnie Meyers, during the marriage relation, and a suit was pending for divorce in favor of said Minnie Meyers against said defendant, on account of his drunkenness and cruelty, in the Circuit Court of Washington county, Ill.; and in consideration that the said wife would and did dismiss her said suit for divorce, condone said causes of divorce and return and live with defendant, and that he (defendant) would not get intoxicated or mistreat her, said wife, any more, he, said defendant, executed said agreement in declaration mentioned; and this plaintiff is ready to verify, wherefore, etc."

To this replication defendant demurred; the court held it bad, and rendered judgment for costs in favor of defendant, and plaintiff brings the record to this court and asks a reversal.

Does the plea present a defense, or, taking the facts as averrea in the replication to be true, and their truth is admitted by the demurrer, was there a sufficient consideration to support the note? This is the question raised and discussed by the parties. As a general rule, husband and wife cannot contract with each other in such a manner that a court of law will enforce their agreements.