text:
      In re ESTATE OF LOUISE HENKE, Deceased (Lonnie Henke et al., Petitioners-Appellants, v. Arlene Calvin, Indiv. and as Ex’x of the Will of Louise Henke, Respondent-Appellee).
    Fifth District
    No. 5 — 89—0476
    Opinion filed September 24, 1990.

      David M. Fahrenkamp, of Edwardsville, for appellant.
    Robert H. Gregory, of Cox & Gregory, of East Alton, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

This is a will contest.

Petitioners charge undue influence.

The circuit court of Madison County ruled in a bench trial, and at the close of petitioners’ case, that a prima facie case of undue influence had been established; however, after all the evidence had been received and considered, the court found that petitioners had failed to sustain their burden of proving undue influence and entered judgment for respondent.

We affirm.

Louise Henke, the testator, lived with her son, Larman Henke, who was the father of the petitioners.

Louise Henke had a will. It gave her daughter, Arlene, $30,000. Petitioners got the balance, approximately $100,000.

When Larman committed suicide, the testator moved in with her daughter, Arlene.

The morning after Larman’s death, Arlene drove her mother to a lawyer’s office. The lawyer was not the lawyer who had drafted the original will. There, Louise made a new will.

Under the new will, Arlene was to receive the entire estate.

Petitioners were cut out of the will — each to receive $1.

Two months after the new will was signed, the testator signed a codicil, reaffirming her wish that her grandsons, the petitioners, not share in her estate.

Louise died two years later.

I

PRESUMPTIONS AND A PRIMA FACIE CASE

The circuit court, at the close of the petitioners’ case, found that a prima facie case of undue influence had been established.

A presumption of undue influence arises when a will contestant shows:

“ ‘(1) a fiduciary relationship between testator and a person who receives a substantial benefit under the will (compared to other persons who have an equal claim to testator’s bounty);
(2) a testator in a dependent situation in which the substantial beneficiaries are in dominant roles;
(3) a testator who reposed trust and confidence in such beneficiaries; and
(4) a will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated.’ ” Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 960, 466 N.E.2d 977, 992, quoting Beyers v. Billingsley (1977), 54 Ill. App. 3d 427, 436-37, 369 N.E.2d 1320, 1327.

In the case at bar, the evidence established that the testator lived with Arlene, the beneficiary of the new will. The testator had limited access to outsiders, even having to “sneak visits.” The circuit court found that Arlene had considerable influence over the testator, that the testator was totally dependent, and that the testator reposed trust and confidence in Arlene, the beneficiary of the will. The evidence also established that Arlene, the day after Larman died, drove testator to a lawyer to have the will changed.

Although a presumption is still defined as an “inference” (Bullard v. Barnes (1984), 102 Henke v. Calvin. 2d 505, 468 N.E.2d 1228), it is a special kind of inference, or logical jump, that the law requires to be made from evidence of one fact to proof of another. Corkery, Presumptions in Civil and Criminal Cases (1985).

A presumption may supply part of the proof necessary to make a prima facie case, or it may, as was done here, supply all elements of the cause of action pled, therefore, itself making the prima facie case. Corkery, Presumptions in Civil and Criminal Cases (1985).

Thus, whether it forms only part of the proponent’s case, or forms all elements of the proponent’s cause of action, it shifts the burden of production of evidence by establishing facts which in turn give rise to the inference, or the “presumption,” that is required to be made by the law. Corkery, Presumptions in Civil and Criminal Cases (1985).

In the case at bar, the presumption of undue influence was established by the evidence and the reasonable inferences. The circuit court, therefore, was justified in finding that petitioners had made a prima facie case.

The burden of production of evidence was shifted to defendants.

II

PRESUMPTION REBUTTED

Illinois follows Thayer’s “bursting-bubble” theory of presumptions. A presumption may be regarded as a bubble. Each fact necessary to the establishment of a presumption expands the bubble as each fact is produced. Once all facts necessary to the establishment of a presumption have been “blown in,” the presumption is fully established. The burden of production of evidence then is shifted to the opponent. If the opponent produces no evidence, then the presumption will carry the day, and the beneficiary of the presumption will be entitled to a directed finding or a directed verdict or judgment, as the case may be. If, however, evidence is introduced that is strong enough to contradict any of the facts which “blow up” the bubble, i.e., the facts upon which the presumption rests, the bubble bursts. The presumption vanishes. Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.

This does not mean, however, that nothing of evidentiary value is left. Quite the contrary: Inferences still may be drawn from the facts which established the vanished presumption. The difference is this: Whereas an unrebutted presumption will carry the day, a rebutted presumption is reduced to an inference, and the trier of fact is free either to accept the inference, or to believe the evidence that destroyed the presumption and reduced it to a mere inference.

A

QUANTUM OF EVIDENCE NECESSARY TO REBUT PRESUMPTION

How much evidence is needed to rebut a presumption and reduce it to a mere inference? It all depends.

“The amount of evidence that is required from an adversary to meet the presumption is not determined by any fixed rule. A party may simply have to respond with some evidence or may have to respond with substantial evidence. If a strong presumption arises, the weight of the evidence brought in to rebut it must be great.” Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 463, 448 N.E.2d 872, 877, citing Annot., 5 A.L.R.3d 19, 39 n.14 (1966).

In determining the strength of the presumption and, therefore, the quantum of proof necessary to rebut it, the policy underlying the creation of the presumption must be examined. If there are strong policy reasons for the creation of the presumption, it is logical to expect strong evidence to be required to destroy it. Thus, in Franciscan Sisters, the supreme court said that the potential for abuse is great where an attorney drafts a will and also stands to benefit from that will. The court then held that as a “matter of public policy *** ‘clear and convincing’ evidence” was necessary to rebut the presumption of undue influence that was raised by an attorney who drafted a will also receiving under the same will. 95 Ill. 2d at 464-65, 448 N.E.2d at 878.

In the case at bar, we must first determine the quantum of proof necessary to rebut the presumption of undue influence of a daughter over a mother, rather than that of an attorney over a client.

We are unaware of any case on point, and so analogize this case to the case of Rizzo v. Rizzo (1954), 3 Ill. 2d 291, 120 N.E.2d 546, wherein the supreme court held that a presumption of undue influence arising out of a partnership could only be rebutted by clear and convincing evidence. We believe that if a presumption of undue influence in a partnership case is strong, then a presumption of undue influence of a daughter over a mother likewise should be strong. Whereas, in Rizzo, the influence arose out of a confidential business partnership relationship, in the case at bar, the influence arose not only out of a business-type relationship, but also a family relationship. The confidence reposed seems to be at least as great here as it was in Rizzo. Reposal of great confidence can lead to great mischief. The higher the quantum of proof to rebut the presumption, the greater the protection against commitment of mischief. Therefore, we hold that the presumption of undue influence of the daughter over the mother could be rebutted only by “clear and convincing evidence.”

B

WAS THE PRESUMPTION REBUTTED?

In this case, evidence was offered to rebut the presumption. Part of this evidence struck at the existence of a fiduciary relationship, and part at the connection between the will and the circumstances relating to its execution. If clear and convincing evidence rebuts any one of the four elements of a presumption of undue influence as set out above, then the entire presumption is burst, and only an inference remains.

1

FIDUCIARY RELATIONSHIP

A fiduciary relationship may be found in one of two ways: (a) from the relationship of the parties, such as an attorney-client relationship; or (b) from the facts of a particular situation, for example, where one reposes trust in another with resulting superiority and influence in the other. In re Estate of Rothenberg (1988), 176 Ill. App. 3d 176, 530 N.E.2d 1148.

As to the relationship between Arlene and her mother, the testator, a fiduciary relationship does not automatically exist as a matter of law because they were parent and child. (Pepe v. Caputo (1951), 408 Ill. 321, 97 N.E.2d 260.) The factors inherent in each case are examined.

Factors which may be considered in determining whether a fiduciary relationship exists are degree of kinship, disparity in age, health, mental condition, and education, and the extent to which a servient party entrusted the handling of her business and financial affairs to a dominant party and reposed faith and confidence in her. Two things must appear: that one party was in fact “servient” and that other party was “dominant.” In re Estate of Rothenberg (1988), 176 Ill. App. 3d 176, 180-81, 530 N.E.2d 1148, 1151.

We keep in mind that here we still are involved in analysis of whether the presumption of undue influence was rebutted, and that the evidence in rebuttal was aimed at two elements: (1) fiduciary relationship; and (2) the circumstances surrounding the making of the will. Recitation here of the factors considered in determining a fiduciary relationship or the circumstances surrounding the making of the will should be seen only as a test of the probative values of each piece of rebuttal evidence, and not, here, as a test for the establishment of the presumption of undue influence.

The evidence: Louise Henke managed her own business affairs and continued to do so up until the time of her death; she paid her own bills through the account she maintained at the Bank of Edwardsville; she transacted business with a tenant who farmed her land; she was neither mentally nor physically infirm; and she was characterized by witnesses as a strong-willed individual who knew exactly what she wanted and what she was doing.

2

SIGNING THE WILL

The mere fact that a beneficiary provides transportation to a law office for a testator raises no presumption whatever of undue influence. Sloger v. Sloger (1962), 26 Ill. 2d 366, 186 N.E.2d 288.

Although Arlene and her husband drove her mother to the attorney’s office, neither she nor her husband witnessed the signing of the will; they were outside the attorney’s private office, in the waiting room. Furthermore, the codicil was executed in the home of her mother’s friends and Arlene was not present at this time.

Undue influence must be directly connected with the execution of the will and directed toward procuring the will in favor of a particular party. Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563, 361 N.E.2d 134.

We, therefore, scrutinize the execution of the will and the codicil (Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872), looking at Arlene’s acts, asking if her conduct was directly connected to the making of the will and procuring it in her favor.

Arlene and her husband drove Louise to lawyer Smith’s office. Smith testified that they discussed what Louise wanted done, and then when it was clear Louise wanted to draft a will, he asked Arlene and her husband to go outside and wait in his waiting room. Although Smith’s secretary testified that Louise had tears in her eyes, Smith testified that Louise was remarkably calm and not visibly upset.

Smith, who was also Louise’s neighbor, testified that Louise expressly wanted to disinherit her two grandchildren, that she was upset with them because she felt they hadn’t helped their father enough working on the farm. He also testified that Louise did not especially like her daughter-in-law. After Lar man’s death, Louise had become involved in a dispute with her daughter-in-law and grandsons over the sale of farm machinery and grain. Although Smith said he had helped resolve the dispute, hard feelings nevertheless had remained.

Smith also testified that Louise was a self-determined woman, who understood her business and was mentally sound at all times, an individual with a good sense of humor. He testified that when Louise first came to see him, the day after her son’s suicide, he tried to convince her that the time to execute a will was not right, but she was adamant: The will would be made.

Smith said:

“And her thought was then, and this is how sharp I think she was. She said, ‘They didn’t come to see me when I was alive so I don’t want them seeing me laying in the coffin.’ Very precise lady, I think.”

Smith suggested that she think about it and at a later date have a codicil executed.

Louise did just that. She thought about it and two months later had a codicil drafted indicating that she still wished to give her entire estate to her daughter, Arlene. This codicil was signed and witnessed at the home of Gene and Ruth Meyer, friends of Louise. Smith’s secretary drove Louise to the home of her friends for the signing of the will. Neither Arlene nor her husband was present at this signing.

We believe the presumption was rebutted by the presentation of this contrary evidence. The evidence was sufficient to rebut both the fiduciary relationship as well as the circumstances under which the will was signed, both of which are but two of four elements of the presumption.

The bubble burst.

Ill

MANIFEST WEIGHT

A presumption shifts the burden of production, not the burden of persuasion.

Sufficient evidence, therefore, having been presented to rebut the presumption of undue influence as a matter of law, there remained the determination of the case by the trier of fact, by weighing the evidence and considering all reasonable inferences that could be drawn from these facts, including the possible inference of undue influence. Once the presumption had been rebutted, the trier of fact had to weigh, to assess the evidence, and decide the case. Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 466, 448 N.E.2d 872, 878.

The circuit court did precisely that, and in making that determination necessarily considered the credibility of the witnesses.

We can only review that decision, by the manifest weight of the evidence standard. Applying that standard, we hold that his decision is not against the manifest weight of the evidence.

IV

Lastly, petitioners argue that the circuit court erred in allowing lawyer Smith to testify, because he was directly interested in this action, and they rely on the Dead Man’s Act (Ill. Rev. Stat. 1985, ch. 110, par. 8-201).

The Dead Man’s Act provides, in pertinent part:

“In the trial of any action in which any party *** defends as the representative of a deceased person *** no *** person directly interested in the action shall be allowed to testify on his *** own behalf ***.” Ill. Rev. Stat. 1985, ch. 110, par. 8-201.

Petitioners maintain that Smith had a direct interest in this action because he owned property adjoining the testator and had discussed purchasing the testator’s land from Arlene after the testator’s death.

Respondents claim that Smith was not directly interested in the action and did not testify on his own behalf, but rather was called as a witness for the estate to testify to testamentary capacity.

The court voir dired Smith and concluded that Smith’s interest in possibly buying the land was not a current or direct interest and was minimal.

The issues raised by the express language of the Dead Man’s Act, therefore, are two. First, did lawyer Smith testify “on his own behalf”? Second, was lawyer Smith a “person directly interested in this action”?

As to the first issue, Smith did not testify in his own behalf. He was not a party. He was called to testify by Arlene.

As to the second issue, in a will contest, the test of “interest” is whether the witness will gain or lose as the direct result of the suit, and the rule is that such interest must be certain, direct, and immediate. (Latham v. Rishel (1943), 384 Ill. 478, 51 N.E.2d 531; Brownlie v. Brownlie (1932), 351 Ill. 72, 76, 183 N.E. 613, citing Wetzel v. Firebaugh (1911), 251 Ill. 190.) The disqualifying interest must be actual, in being, and not a mere belief, understanding or feeling in regard to such interest. Brownlie, 351 Ill. at 76, citing Pyle v. Pyle (1895), 158 Ill. 289, 41 N.E. 999.

Here there was no direct interest. Inquiry about buying property is seeking information, an act on a par with “mere belief, understanding or feeling.” No direct interest can be imputed; after all, lawyer Smith might have found it easier to have bought the land from petitioners rather than from Arlene. Indulgence in speculation is required in order to find an interest that would cause disqualification of Smith by the Dead Man’s Act.

The circuit court, therefore, properly admitted the testimony of Smith.

The circuit court is affirmed.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JERRY JANSEN, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0431
    Opinion filed September 24, 1990.

      Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Ronald E. Fuhr, of Parker, Siemer, Austin, Resch & Resch, of Effing-ham, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On March 10, 1989, the defendant, Jerry Jansen, was charged with the offense of eavesdropping. The charging information .stated:

“That on the 30th day of December, 1988, in said County, Jerry Jansen committed the offense of EAVESDROPPING, in that the Defendant knowingly used an eavesdropping device to record a conversation between Robert Campbell and Jerry Jansen without the consent of Robert Campbell, in violation of Section 14 — 2(a), Chapter 38, Illinois Revised Statutes.”

On May 1, 1989, the defendant filed a motion to dismiss the information, alleging that it failed to state an offense under People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(a)(8).) Following a hearing on May 16, 1989, the trial court granted defendant’s motion. On May 26, 1989, the State filed a motion to reconsider, which was heard and denied on June 21, 1989. The State now appeals the trial court’s dismissal of the information.

In the present case, the trial court held that defendant’s motion to dismiss should be granted because the charging instrument did not state an offense based on Beardsley. In Beardsley, the defendant was initially arrested for a speeding violation and, while seated in the back seat of a patrol car, proceeded to tape-record a conversation undertaken by two police officers in the front seat of the vehicle. Thereafter, Beardsley was also charged with eavesdropping. (Ill. Rev. Stat. 1987, ch. 38, par. 14 — 2(a).) At trial, the officers testified that although they were aware that Beardsley possessed a tape recorder, they were unaware that he was recording their conversation, and further, that they did not consent to his recording. The jury found Beardsley guilty of eavesdropping, and the appellate court affirmed the conviction. People v. Beardsley (1985), 139 Ill. App. 3d 819, 487 N.E.2d 731.

The Illinois Supreme Court reversed Beardsley’s eavesdropping conviction. The statute that Beardsley was convicted under, and the one that defendant in the instant case was charged with violating, states in pertinent part:

“A person commits eavesdropping when he:
(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such conversation ***.” Ill. Rev. Stat. 1989, ch. 38, par. 14 — 2(a).

In Smith v. Associated Bureaus, Inc. (1988), 177 Ill. App. 3d 286, 290, 532 N.E.2d 301, 304, the appellate court summarized the supreme court’s reasoning as follows:

“The Beardsley court held that the ‘eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present.’ (Emphasis in original.) (Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351.) The court based its holding on the fact that a party to the conversation cannot be accused of listening secretly to what is said in private or of surreptitious interception of a private conversation, because that party is competent to testify concerning the contents of the conversation, and could have taken notes or transcribed the conversation, rather than recording it. (Beardsley, 115 Ill. 2d at 58-59, 503 N.E.2d at 352.)”

Finding the Beardsley case dispositive, the Smith court held that, in a civil context, the eavesdropping statute did not prohibit a collection agency’s recording of a telephone conversation between a debtor’s attorney and the collection agency employee who was a party thereto, regardless of whether the attorney consented to of knew of the recording. (Smith, 177 Ill. App. 3d at 291, 532 N.E.2d at 304-05.) Similarly, this court, in People v. Cole (1989), 186 Ill. App. 3d 1002, 542 N.E.2d 1145, followed Beardsley in holding that a police chief's recording of a conversation between the defendant and the chief of police was not prohibited by the eavesdropping statute. See also People v. Regains (1989), 187 Ill. App. 3d 713, 543 N.E.2d 1090 (police officer’s recording of defendant’s conversation during telephone call to officer did not violate eavesdropping statute, citing Beardsley).

Here, the State argues that the trial court erred in dismissing defendant’s eavesdropping charge on the grounds that it failed to state an offense where the information charged the defendant in the language of the statute. However, the information alleged only that the defendant recorded a conversation between himself and Robert Campbell without Campbell’s consent, and the supreme court in Beardsley had previously ruled that the recording of a conversation by a party to that conversation is not a violation of the eavesdropping statute. Therefore, under Beardsley, the information did not state an offense.

It is well settled that where the supreme court has declared the law on any point, it alone can overrule and modify its previous opinion, and the circuit courts are bound by such decision and must follow the decision in similar cases. (People v. Brown (1988), 171 Ill. App. 3d 500, 503-04, 525 N.E.2d 1228, 1230; Agricultural Transportation Association v. Carpentier (1953), 2 Ill. 2d 19, 27, 116 N.E.2d 863, 867.) This is true irrespective of contentions that the decision is erroneously decided. (Brown, 171 Ill. App. 3d at 504, 525 N.E.2d at 1230.) Therefore, the trial court did not err in dismissing the charge where it followed the clear dictate of Beardsley.

The State further argues that it is entitled to an evidentiary hearing for the purpose of establishing that Robert Campbell had a reasonable expectation of privacy in his conversation with the defendant. However, in reviewing a motion to dismiss under section 114 — 1(a)(8), the court may only examine the information itself. (People v. Drake (1978), 63 Ill. App. 3d 633, 636, 380 N.E.2d 522, 524.) Thus, matters of an evidentiary nature are not properly before the court in determining the legal sufficiency of a charging instrument, and even if the court had improperly received evidence in deciding the defendant’s motion, that fact could not validate an information that failed to charge an offense. People v. Fink (1982), 91 Ill. 2d 237, 241, 437 N.E.2d 623, 625.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE L. HATCHETT, Defendant-Appellant.
    Fifth District
    No. 5-88-0775
    Opinion filed August 10, 1990.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

The defendant, Joe L. Hatchett, was convicted of unlawful delivery of a controlled substance, cocaine (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1401(c)), by the circuit court of Jackson County sitting without a jury. Defendant was sentenced to serve five years’ imprisonment, to pay a fine of $350 (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1) and a $200 fine, which is the street value of the drugs sold (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1.1), and to pay a public defender fee of $200. On appeal, defendant contends that the court erred in not permitting the defendant to withdraw his bond and return to custody, that he should be given credit for presentencing incarceration, and that he does not have the financial resources to pay the fines and fee.

On June 1, 1988, defendant was arrested on the unlawful delivery charge. Bond had been set at $10,000, and on June 3, 1988, he posted $1,000, the statutory 10%, and was released from custody. At the time of the offense, defendant was on mandatory supervised release for a previous conviction. During June 1988, he was arrested as a parole violator and returned to the Department of Corrections. On June 16, 1988, defendant was arrested on various theft offenses on which it does not appear that he posted bond.

On August 17, 1988, defendant filed a pro se “Motion to Recover Bond Money.”

On September 2, 1988, a hearing was held on the motion. The parties agreed that defendant was to be released by the Department of Corrections on September 12, 1988. The court then denied the motion and did not state any reasons for the denial.

Defendant initially contends that the trial court erred in not allowing him to withdraw his bond. Our supreme court has recognized that a defendant can withdraw his bond. In People v. Arnhold (1987), 115 Ill. 2d 379, 504 N.E.2d 100, it stated: “[A] defendant who is out on bond on one charge, and who is subsequently rearrested and returned to custody on another charge, is not returned to custody on the first charge until his bond is withdrawn or revoked.” (115 Ill. 2d at 383, 504 N.E.2d at 101.) In the case at bar, the court gave no reason for denying the motion and the record reveals no reason why the motion should be denied; therefore, we conclude that the court erred in denying the motion. We further conclude that the bond is deemed withdrawn as of the day defendant attempted to withdraw his bond by filing the motion.

Defendant next contends that he must be given, pursuant to section 110 — 14 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1987, ch. 38, par. 110 — 14), $5 credit for each day of presentencing incarceration, $375 for 75 days’ incarceration. The State does not contest the proposition of law but argues that defendant is entitled to only $15 credit for his June 1 through June 3 incarceration because the court did not err in denying the “Motion to Recover Bond Money.” Previously in this order, we have held the court did so err; therefore, defendant is entitled to credit for August 17, 1988, the date the motion was filed, through October 27, 1988, the date of sentencing, a total of 72 days. Defendant, therefore, is entitled to a total credit of $375 for 75 days of presentencing incarceration toward his fines. See People v. Hare (1988), 119 Ill. 2d 441, 519 N.E.2d 879; People v. Joseph (1988), 176 Ill. App. 3d 636, 641-42, 531 N.E.2d 432, 435-36.

Defendant lastly contends that the court erred in fining the defendant $350 and in assessing $200 for the public defender’s services, because the record does not demonstrate the court considered defendant’s financial ability to pay the fine. Defendant filed a motion to reduce sentence which alleged that the money posted as bond was borrowed and that the fines and fee were imposed without a finding of ability to pay. The court denied the motion.

The presentence report reveals that at the time of defendant’s arrest he had no valuable assets and was receiving public aid. Defendant, age 32, stated that he has worked on farms, drove a van for the county mental health agency, and worked as a disc jockey, a maintenance man, and part time at a record store. At the time of sentencing, he had an offer of employment as a construction worker. During a previous incarceration, he was trained and certified as an emergency medical technician. Defendant’s lack of funds is probably attributable to his drug addiction, which hopefully he will address in this incarceration. As defendant is to receive credit for all but $175 of his fines, the record shows that he has the financial resources and future ability to pay the fines and fee. See People v. Roby (1988), 169 Ill. App. 3d 187, 192, 523 N.E.2d 631, 634.

For the foregoing reasons, the judgment of the circuit court of Jackson County is affirmed and the cause is remanded with directions to that court to credit defendant $375 toward his fines and to issue an amended judgment order, which shall reflect that defendant is entitled to 75 days’ credit against his sentence of imprisonment, June 1 through June 3, 1988, and August 17, 1988, through October 27, 1988.

Affirmed and remanded with directions.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE CHAPMAN

text:
    MICAH A. BUSS, a Minor, by Connie E. Buss, his Mother and Next Friend, et al., Plaintiffs-Appellees, v. I. KEITH EDWARDS et al., Defendants (Stephen L. Perry, Deputy State Registrar of Vital Records, Illinois Department of Public Health, Division of Vital Records, et al., ContemnorsAppellants).
    Fifth District
    No. 5-89-0580
    Opinion filed September 26, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The medical malpractice action underlying this appeal seeks damages allegedly caused by the conduct of the defendants during the breech birth of the minor, Micah Buss. During the course of discovery the plaintiff served a subpoena upon Stephen Perry, Deputy State Registrar of Vital Records of the Illinois Department of Public Health (hereinafter Department) which called for the production of the original or true certified copies of the Apgar scores of Micah Buss. After the Department’s motion to quash the subpoena was denied, it respectfully refused the court’s order to produce the scores and was held in contempt and fined $10. This appeal followed.

The Department contends that the disclosure of the requested scores is barred by both the Code of Civil Procedure (Medical Studies Act) (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 2101 et seq.) and the Vital Records Act (Ill. Rev. Stat. 1987, ch. UlVz, par. 73 — 25(2)).

The Medical Studies Act provides:

“§8 — 2101. Information obtained. All information, interviews, reports, statements, memoranda or other data of the Illinois Department of Public Health *** (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research ***.
§8 — 2102. Admissibility as evidence. Such information, records, reports, statements, notes, memoranda, or other data, shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person. The disclosure of any such information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.
§8 — 2103. Furnishing information. The furnishing of such information in the course of a research project to the Illinois Department of Public Health *** shall not subject *** any such agency to any action for damages or other relief.
* * *
§8 — 2105. Improper disclosure. The disclosure of any information, records, reports, statements, notes, memoranda or other data obtained in any such medical study except that necessary for the purpose of the specific study is unlawful, and any person convicted of violating any of the provisions of Part 21 of Article VIII of this Act is guilty of a Class A misdemeanor.” Ill. Rev. Stat. 1987, ch. 110, pars. 8 — 2101, 8 — 2102, 8-2103, 8-2105.

In support of its position, the Department produced the affidavit of Dr. Stephen E. Saunders, Chief of the Division of Family Health:

“2) That Apgar Scores are number ratings representing an assessment of how well an infant at birth is adapting to ex-trauterino life. Assessment is done at one minute and again at five minutes using five-standardized observations (heart rate, respiratory effort, reflex irritability, muscle tone and color). With the one-minute Apgar score, one can identify specifically the resuscitative measures that should be taken. The purpose of the five-minute score is to reevaluate the newborn’s condition, particularly his response to resuscitative measures. The Apgar Score is used along with a comprehensive physical assessment and an assessment of behavioral characteristics to determine how well an infant is functioning.
Although the Apgar score is useful at birth in evaluating a newborn’s vital functions, with the exception of extremely low scores at both one and five minutes, research has not shown a significant relationship between the Apgar score and later growth and development of the child. The Department of Public Health includes Apgar scores on the portion of the birth certificate retained by the Department along with other information related to the mother’s pregnancy and prenatal care, labor and delivery, abnormal conditions of the newborn and congenital anomalies. This information is used in research and studies needed to plan for the health and welfare of mothers and infants in this state.
3) That statistics derived from the statistical portion of birth certificates enable the Illinois Department of Public Health to evaluate the quality, quantity, and need for various health-related services and to adjust placement and amounts of grant funds to achieve optimum services from very limited resources.”

The plaintiff concedes that Apgar scores may well be used for research and studies, but submits that the affidavit also establishes that they are medical records. The plaintiff then argues that as medical records they come within the parenthetical exception in section 8— 2101 “(but not the medical records pertaining to the patient)” and that the Department is therefore both allowed and required to produce the Apgar scores. Ill. Rev. Stat. 1987, ch. 110, par. 8 — 2101.

The Department relies primarily on two appellate court decisions in support of its position with regard to the Medical Studies Act, Flannery v. Lin (1988), 176 Ill. App. 3d 652, 531 N.E.2d 403, and Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 522 N.E.2d 273.

In Flannery the sole issue was whether a code blue violation report was privileged under the Medical Studies Act. Affidavits in that case established that the report was not a part of the patient’s medical records for purposes of diagnosis or treatment, and the court held that it was a part of the hospital’s internal quality control procedures and therefore privileged. (Flannery, 176 Ill. App. 3d at 657, 531 N.E.2d at 407.) In Sakosko the disputed items were two pathology tests performed to determine the plaintiffs’ sources of infection and a consultation report by an expert in infection control. The documents were initiated by the defendant hospital as a part of its internal quality control, and the court held them privileged.

Neither Flannery nor Sakosko dealt with the issue presented herein because neither dealt with materials used for protected purposes that were also medical records of the patient used in the treatment of the patient. The items ruled privileged in those cases were not medical records of the patient; they were developed solely for use in internal quality control efforts, and we therefore do not consider those rulings persuasive under the facts of this case.

The Department also argues that the Apgar scores are not “medical records” within the statutory exception relied upon by the plaintiff. The Department contends that the scores are “information” or “data” whose production is prohibited when they reach the hands of the Department.

We find this argument tenuous at best. It is apparently based on either some magical metamorphosis from “medical records” to “information or data” that occurs upon transfer between hospital and Department, or on the fact that the legislature used different words in different sections of the Medical Studies Act. Neither basis is sound.

The Department’s affidavit clearly establishes that the Apgar scores are recordations obtained to render treatment to plaintiff: “With the one-minute Apgar score, one can identify specifically the resuscitative measures that should be taken. The purpose of the five-minute score is to reevaluate the newborn’s condition, particularly his response to resuscitative measures. The Apgar score is used along with the comprehensive physical assessment and an assessment of behavioral characteristics to determine how well an infant is functioning.” Obviously they become a permanent part of the patient’s record. If these scores are not medical records, it is difficult to imagine anything that would be. The fact that the Department records them in a different place or uses them in a different way or for different purposes does not change them from medical records to something else; a steer may become steak but it remains beef.

The Department’s second basis, that the legislature’s use of different terms requires different meanings, is equally unavailing. While it is generally true that when the legislature uses certain words in one instance and different words in another, it intends different results (Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 1105-06, 398 N.E.2d 1150), this is not a universal rule, and, given the wording of the Medical Studies Act, it would strain our credulity beyond the breaking point to accept the Department’s construction.

There is a simple exception for the situation presented in this case, “but not the medical records pertaining to the patient.” (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 2101.) Earlier in section 8 — 2101 the legislature used the terms “information, interviews, reports, statements, memoranda, or other data.” In section 8 — 2102 it used the above list plus “records” and “notes” and, in another context, the phrase “such information or data.” In section 8 — 2103 the legislature used only “such information,” and in section 8 — 2105 it used the same list as in section 8 — 2102 but in a slightly different order.

A perusal of these lists establishes that the legislature used different terms for the same general category of information, but that it never included the term “medical records” in the privileged class. We cannot accept the strained construction of the statute offered by the Department-and therefore hold that the trial court properly ruled that the Apgar scores are medical records pertaining to the patient and come under the statutory exception of section 8 — 2101. See Jenkins v. Wu (1984), 102 Ill. 2d 468, 479, 468 N.E.2d 1162; Pritchard v. SwedishAmerican Hospital (1989), 191 Ill. App. 3d 388, 397-98, 547 N.E.2d 1279.

The second statute relied upon by the Department, the Vital Records Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 73 — 25), provides:

“(2) The certification of birth may contain only the name, sex, date of birth, and place of birth, of the person to whom it relates, the name, age and birthplace of the parents, and the file number; and none of the other data on the certificate of birth except as authorized under subsection (5) of this Section.
* * *
(5) Any certification or certified copy issued pursuant to this Section shall show the date of registration; and copies issued from records marked ‘delayed,’ ‘amended,’ or ‘court order’ shall be similarly marked and show the effective date.”

The Department cites no applicable authority for the proposition that this statute prohibits disclosure of the information sought, and this is not surprising in view of the language and purpose of the act.

The legislature apparently intended to preclude certain information from appearing on the birth certificate, certainly a rational decision. There is no need for an individual’s Apgar scores or other medical information to appear on a birth certificate that may have to be utilized to obtain a social security card or a passport. The fact that the statute implicitly provides that the scores are not to appear and that they therefore do not appear on the birth certificate, however, does not mean that they are privileged from disclosure when a patient requests his own records from the Department. We therefore hold that the Vital Records Act does not prohibit the Department from producing the scores.

At oral argument, counsel for the Department was asked what possible policy reason the Department could have for refusing to disclose a patient’s own medical records to him. The response, after an apology to the medical profession in general, was that it was essential that the Department receive accurate information for its records and that if the information were to be disclosed in medical malpractice cases the accurate information might not be forthcoming.

We have three comments to make regarding that position. First, the only materials sought in this case are the Apgar scores of the patient himself; the plaintiff has made no attempt to obtain any internal quality control or peer review materials which are the primary protected areas under the Medical Studies Act. Second, there is no indication anywhere in the record before us that the Apgar scores were altered in any way. Third, the parties that appear in the courts of this State and the court system itself are as dependent upon and deserving of accurate information as is the Department.

The final request of the Department, that the contempt finding and fine be vacated, is allowed. The circuit court understood that Mr. Perry declined to comply with its order to produce the requested scores not out of disrespect for the court, but to obtain appellate review of a ruling that he felt was not free from doubt. Under these circumstances, when the record on appeal reveals that a public official’s contempt is a purely formal one motivated by a desire to obtain appellate review, it is appropriate for this court to vacate the contempt citation. Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 848, 522 N.E.2d 273.

We therefore hold that the order of the trial court requiring production of the Apgar scores of Micah Buss is affirmed, but that the finding of contempt and the fine of $10 are vacated.

Affirmed in part; vacated in part.

RARICK and HOWERTON, JJ., concur.


text:
      In re ESTATE OF LEOLA C. LEMKE, Deceased (Claude Little et al., Petitioners-Appellants, v. Lola Mae Behnke, Indiv. and as Ex’r of the purported Last Will and Testament of Leola C. Lemke, Deceased, et al., RespondentsAppellees).
    Fifth District
    No. 5 — 89—0167
    Opinion filed September 26, 1990.

      Stephen M. Osborne, of Hohlt, House, DeMoss & Johnson, of Nashville, for appellants.

      David R. Smith, of Nehrt, Sachtleben, Fisher & Smith, of Chester, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Leola Lemke died October 24, 1987. Claude and Joan Little filed a petition seeking: (I) to set aside decedent’s purported last will and testament dated October 23, 1987; and (II) to set aside a quitclaim deed from the decedent to Lola Behnke, dated October 22, 1987. Petitioners alleged that Lola Behnke exerted undue influence upon Leola Lemke which resulted in the preparation and execution of the will and deed.

After the jury was impanelled, but prior to any witness testifying, the court granted Lola Behnke’s motion to sever the trial of count I from the trial of count II. The trial on count I was conducted, and the jury was discharged after failing to reach a verdict. The court then entered a judgment order granting respondents’ post-trial motion, entering judgment in favor of the respondents and against the petitioners with respect to count I of the petition. The court denied petitioners’ post-trial motion which sought to have the judgment set aside and a new trial ordered. The court also granted respondents’ motion to dismiss count II of petitioners’ complaint. Petitioners appeal.

The first matter for our consideration is petitioners’ claim that the trial court erred in granting respondents’ motion for severance.

The trial judge is given broad discretion to consolidate and sever claims. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1006.) The judge’s discretion is to be exercised in each case by an appraisal of administrative convenience and the possibility of prejudice to substantial rights of the litigants in the light of the particular problems which will arise in the course of the trial. (Mount v. Dusing (1953), 414 Ill. 361, 367, 111 N.E.2d 502, 505.) A court of review will not reverse the trial court’s determination unless such discretion has been manifestly abused. (Needy v. Sparks (1977), 51 Ill. App. 3d 350, 356, 366 N.E.2d 327, 335.) We find no abuse of discretion in this case.

Several factors were raised by the respondents before the trial court in support of their motion for severance. Respondents pointed out that a proceeding to set aside a conveyance based upon an alleged abuse of a fiduciary relationship is an equitable issue which does not afford petitioners the right to a jury trial. In such a proceeding, any jury verdict would be advisory to the court. (111. Rev. Stat. 1989, ch. 110, par. 2 — 1111.) However, a proceeding to invalidate a will is to be tried by a jury if a party so demands. (Ill. Rev. Stat. 1989, ch. 1101/2, par. 8 — 1.) Respondents contended that consolidation of both counts into one trial would place an undue burden on the jury and the court because: (1) petitioners lacked standing to set aside the deed; (2) the Dead Man’s Act (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 201) had no application to count II because the sole defendant in that case was Lola Behnke; and (3) the burden of proof in a proceeding to set aside a conveyance is greater than that required to invalidate a will.

Under the circumstances of this case, these factors could have raised legitimate concerns which the trial court may have considered in making its determination to sever the issues. We also believe that there was no prejudice to any substantial right of the petitioners because of the court’s decision. Evidence was admitted as to the preparation and execution of both the will and the deed. Evidence was also admitted regarding Lemke’s removal of the Littles’ names from her bank accounts and certificates of deposit, and placing Behnke’s name on the same. While petitioners contend that the repetition of evidence to be presented in the trial of both counts is burdensome, petitioners do not claim that any evidence applicable to count II was rejected by the court during the trial of count I. Furthermore, petitioners’ argument that severance of the issues results in a multiplicity of suits and administrative inefficiency is not convincing in light of the facts of this case. Assuming the trial court’s judgment in favor of the respondents is affirmed, and the dismissal of count II is affirmed, petitioners’ predicted “multiplicity of suits” is a nullity. By severance of the issues under this scenario, the trial court effectively avoided unnecessary litigation as to count II. In light of the foregoing, we find that the trial court did not abuse its discretion in severing for trial counts I and II of the complaint.

We now turn to the question of whether the trial court erred in directing a verdict on count I in favor of the respondents. Petitioners assert that the evidence presented is sufficient to give rise to a presumption that Lola Behnke exerted undue influence over the decedent; that Lola Behnke caused the preparation of the last will and testament; and that Lola Behnke received a substantial benefit under the terms of the last will and testament.

An examination of the record shows that Lola Behnke was the decedent’s first cousin. The Littles were neighbors and friends of Leola Lemke but were not related to her. Leola was hospitalized twice in 1987. Her first hospitalization was in September, and in October of 1987 she entered the hospital again and remained there until her death. Claude Little testified that he visited Leola during her first hospital stay and that his wife visited Leola during her second hospital stay. Lola Behnke testified that she visited the decedent everyday during her hospitalization.

Following her hospitalization of September 25, 1987, through September 30, 1987, Lola Behnke picked Leola up from the hospital. Behnke testified that before taking Leola Lemke home, Lemke requested that Behnke take her to the bank. At the bank Lemke had the Littles’ names removed from her checking account and had Lola Behnke’s name put on the account. Lemke also had a certificate of deposit transferred to a payable-on-death account, naming Behnke as beneficiary. The Littles’ names were also removed from a seven-day certificate of deposit, and Behnke’s name was put on the same. Lola Behnke testified that Leola Lemke had Behnke’s name put on Lemke’s safety deposit box in October of 1986.

Upon leaving the bank, Behnke took Lemke to Behnke’s home, where she stayed for four or five days. Soon after Lemke arrived at Behnke’s home, Lemke was feeling poorly and vomited. Behnke testified that Lemke had difficulty keeping food down after her release from the hospital, and this condition grew progressively worse. While Lemke was a guest at Behnke’s home, Behnke prepared Lemke’s meals for her and saw to it that Lemke took her medication. Five days after her discharge from the hospital, Lemke asked to be taken to her own home. Lola Behnke drove Leola Lemke home, but continued to visit her everyday and prepare meals for her. Behnke testified that Lemke was on a special diet when she came home from the hospital and was concerned that she was not going to be able to cook her proper meals without assistance. “She wanted me to see that she had the right food to eat.”

On October 15, 1987, Lola Behnke, at the request of Leola Lemke, removed Lemke’s will, which was sealed in an envelope, from Leola’s safety deposit box. Behnke then made an appointment with attorney William Norton because Lemke wanted to revise her old will. Behnke testified that she telephoned Norton’s office because he was the nearest attorney that she knew. Behnke’s children attended school with Norton, but she did not know him personally and had never had any business with Norton. Lola Behnke testified that on October 16, 1987, she drove Lemke to Norton’s office, and at Leola’s insistence she was present during the office consultation. The old will taken from the safety deposit box was still sealed in an envelope, and it was not removed until Norton took the envelope and broke the seal. Behnke testified that Leola had the Littles deleted from her will, and the devise of a 40-acre tract to the Littles in the old will was deleted because it had already been sold to the Littles. During this meeting with Norton, Lemke also directed Norton to prepare a quitclaim deed granting 72 acres to Behnke. Behnke testified that the purpose of the deed was to give Behnke the right to sell the realty if Lemke needed the money for nursing home care. Behnke denied that the preparation of the deed was Behnke’s idea.

Attorney William Norton confirmed that at the October 16 consultation he removed Leola’s old will from a sealed envelope. At the office meeting Lemke first instructed him to add the name of her cousin Wendell Aitken, who was omitted in the first will. Norton testified that Lemke was very specific that she did not want to make any provision for the Littles although they were included in her prior will. Norton testified that upon further inquiry, Lemke told him that she preferred to leave her estate to her family and that the Littles were not related to her. Behnke was named as the executrix in the new will, and a devise of 25 acres to Behnke which was included in the first will was not deleted from the second will. Norton further testified that Lemke advised him that she wanted her 72-acre tract of realty conveyed directly to Behnke. After advising Lemke of the ramifications of a direct conveyance, it was determined that a quitclaim deed reserving a life estate to Lemke would be prepared. Norton then brought up the topic of having a power of attorney prepared. After advising Lemke of the advantages and disadvantages of a power of attorney, and what powers such a document confers, Lemke instructed Norton to prepare the document, naming Behnke as attorney-in-fact.

Norton explained that during the office conference there were approximately five instances when he asked Leola Lemke a question and she turned to look at Lola Behnke. Norton recalled that Lemke never verbally asked Behnke any questions, but would look to her. Behnke would shrug her shoulders, and the only verbal conversation between the two was Behnke telling her, “[I]t’s your property. It’s your decision. You make it.” Norton did not recall Behnke otherwise interrupting or interjecting any comments during the meeting.

A few days later Norton received a message that Leola Lemke was in the hospital. He had the will, deed and power of attorney prepared and personally went to the hospital to have Lemke execute the documents. Norton went to the hospital without first calling Behnke or Lemke to advise them that he was coming. Upon his arrival, Lola Behnke was visiting Lemke and remained in the room while Norton had Lemke execute the deed and the power of attorney. Lemke did not execute the will at that time as she noted an error in the document that necessitated the will being retyped. Norton testified that the final draft of Lemke’s will was executed October 23, 1987, at her hospital room, in the presence of his secretaries, since he was unable to go there himself. It is not shown by the evidence whether Behnke was present when the will was executed.

Appellants contend that the evidence raises a presumption that Behnke exerted undue influence over Lemke in the procurement of her last will and testament. The undue influence which will void a will must be directly connected with the execution of the instrument and operate at the time it is made. It must be specifically directed toward procuring the will in favor of a particular party or parties, and it must be such as to destroy the freedom of the testator’s will and render the instrument more the offspring of the will of another than of his own. (Ennis v. Gale (1950), 407 Ill. 215, 218, 95 N.E.2d 322, 323-24; Lake v. Seiffert (1951), 410 Ill. 444, 448, 102 N.E.2d 294, 296.) Appellants maintain that Behnke had the opportunity to exercise undue influence over Lemke by virtue of Lemke’s old age and weakened condition. They argue that Lemke reposed trust and confidence in Behnke, and could easily have been influenced by Behnke, who in the last months of Behnke’s life prepared her meals, assisted her with her medication and everyday needs, and visited Lemke nearly everyday. Appellants cite as direct evidence of undue influence the fact that a fiduciary relationship was created between Lemke and Behnke. Specific reference is made to the power of attorney and the addition of Behnke’s name to Lemke’s bank accounts.

The fact that a fiduciary relation exists between the testator and the beneficiaries of her will is not sufficient, standing alone, to establish the charge of undue influence. (Ginsberg v. Ginsberg (1935), 361 Ill. 499, 509, 198 N.E. 432, 436.) Undue influence sufficient to void a will must be directly connected with the execution of the instrument itself and must be operating when the will is made. (Lake, 410 Ill. at 449, 102 N.E.2d at 296.) Mere opportunity is not enough to show the exercise of wrongful influence. (Logsdon v. Logsdon (1952), 412 Ill. 19, 26, 104 N.E.2d 622, 625.) There is no evidence that Behnke used the power of attorney to her own advantage or that the funds in the jointly held bank accounts were used to Behnke’s advantage. The only evidence of Behnke’s involvement in the making of the will was Behnke’s retrieving the old will from the safety deposit box, making the appointment to see attorney Norton, driving Lemke there, and being present when the will was discussed with the attorney. There is no evidence that Behnke suggested or persuaded Lemke to revise her will.

We find it significant that although the evidence shows that Lemke was in poor health and required some assistance in her everyday needs, there is no evidence attacking her testamentary capacity. (See Lake, 410 Ill. at 450, 102 N.E.2d at 297.) There is evidence that during the consultation with Norton, Lemke looked to Behnke on occasion; however, at no time did Behnke offer advice or comment. It was Lemke who stated her desires to Norton with regard to a revised will, a deed, and the power of attorney. The facts that Behnke’s name was added to Lemke's bank accounts, that Behnke was named as attorney-in-fact under the power of attorney, and that Behnke visited with Lemke almost daily and assisted Lemke in her personal affairs were not sufficient proof of undue influence to allow the issue to go to the jury under the circumstances of this case.

Likewise, we do not find that Behnke received a substantial benefit under the will evidencing undue influence over the testator. Insofar as Behnke is concerned the only differences between the earlier will of October 5, 1983, and the contested will are that Behnke was named executrix and she received a bequest of a china cabinet in the latter will. This alone is not enough to raise a legal presumption of undue influence. The person charged with exercising undue influence must receive a substantial benefit as a legatee or beneficiary. (Breault v. Feigenholtz (1973), 54 Ill. 2d 173, 182, 296 N.E.2d 3, 9; Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 369, 247 N.E.2d 894, 897.) It is clear that no substantial benefit was conferred upon Behnke as a result of this devise.

Notwithstanding these findings, the Littles claim that Behnke received a substantial benefit upon execution of the October 23, 1987, will because a previous devise of 112 acres to the petitioners was omitted from the will. The Littles fail to recognize that of the 112 acres referred to in the October 5, 1983, will, 40 acres were conveyed to them in the interim between the two wills, thereby leaving 72 acres in October 1987. The 72-acre tract was conveyed to Lola Behnke on October 22, 1987, via a quitclaim deed reserving a life estate to Leola Lemke. The devise of the 112 acres to the Littles in the October 5, 1983, will was already adeemed by the time Leola Lemke executed her October 23, 1987, will. Under these circumstances we cannot find that Lola Behnke substantially profited as a beneficiary or legatee under Leola Lemke’s last will and testament.

The test which the court should apply to the proof before it upon a motion for directed verdict is whether, when all of the evidence is considered with all reasonable inferences drawn from it in its aspects most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14; Ennis v. Gale, 407 Ill. at 216, 95 N.E.2d at 323.) There is nothing in the record to support the claim that the will was procured or executed as a result of undue influence, that Behnke caused the preparation of the will, or that Behnke received a substantial benefit under the terms of the will.

In view of the foregoing, the trial court properly directed a verdict against the Littles on their petition to set aside the October 23, 1987, will. After this ruling the Littles lacked standing to pursue their petition to set aside the quitclaim deed of the 72 acres since their only interest in said land was that which had been created by the October 5, 1983, will. (See Yott v. Yott (1914), 265 Ill. 364, 106 N.E. 959.) Therefore, the trial court properly dismissed count II, which had sought to set aside the quitclaim deed to Behnke. The judgment of the trial court is affirmed.

Affirmed.

RARICK and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE LEWIS

text:
    JANET O’VADKA, Plaintiff-Appellee, v. REND LAKE BANK, Defendant and Third-Party Plaintiff-Appellee (William E. Aulgur, Ex’r of the Estate of Lawrence E. Davis, Deceased, Third-Party Defendant-Appellant). — In re ESTATE OF LAWRENCE E. DAVIS, Deceased (Rend Lake Bank, Claimant-Appellee, v. William E. Aulgur, as Ex’r of the Estate of Lawrence Edward Davis, Deceased, Appellant).
    Fifth District
    Nos. 5 — 88—0528, 5 — 89—0268 cons.
    Opinion filed September 27, 1990.

      William E. Aulgur, of Eldorado, appellant pro se.

    J.C. Mitchell, of Mitchell & Armstrong, Ltd., of Marion, for appellee Rend Lake Bank.
    William A. Alexander, of Troutt, Alexander, Popit & Warner, of Benton, for appellee Janet O’Vadka.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The sole issue presented in this appeal is whether summary judgment was properly granted.

On November 17, 1987, the plaintiff, Janet O’Vadka, brought suit against the defendant, Rend Lake Bank (hereafter sometimes referred to as the bank), in case No. 87 — L—123, seeking the sum of $107,493, which is the amount alleged in the complaint to have been wrongfully paid by the defendant to William E. Aulgur, third-party defendant herein and executor of the estate of Lawrence Edward Davis. The complaint alleged that prior to his death Lawrence Davis had created a joint account with right of survivorship; according to the complaint, the defendant was the depository institution, and the decedent and plaintiff were the joint tenants. Following Lawrence Davis’ death on June 25, 1987, and William Aulgur’s appointment as executor of his estate on July 14, 1987, the defendant, upon the request of William Aulgur, paid to him as executor the entire balance of the account in question in the amount above stated. Following the refusal of the defendant to pay this sum to the plaintiff as surviving joint tenant, plaintiff instituted this suit. Attached to the complaint as exhibit “A” is the account, or signature, card pertaining to the account in dispute, account number 400 3124. The defendant filed a third-party complaint against William E. Aulgur, as executor, asking that, in the event it is found liable to Janet O’Vadka for judgment as prayed for in her complaint, it be awarded judgment against William Aulgur in an identical amount.

On July 1, 1988, the plaintiff moved for summary judgment, which motion was supported by discovery depositions of certain of defendant’s officers, the discovery deposition of William Aulgur, and an affidavit of the plaintiff. The record contains a photocopy of the account, or signature, card, which is identified as plaintiff’s deposition exhibit No. 3 and is attached to an affidavit of the plaintiff. On this card in a box beside the words “Personal Account” two “X” ’s have been typed and are readily visible. The box beside the words “Commercial Account” is blank. Beside the words “JOINT ACCOUNT WITH SURVIVORSHIP” a faint mark is barely visible. No mark appears beside the words “NO SURVIVORSHIP INTENDED.” The card bears the signatures of “L.E. Davis” and “S.J. O’Vadka.”

Patricia Gossett, an assistant cashier at the defendant bank, testified in a discovery deposition taken on behalf of the plaintiff, attached to the plaintiff’s motion for summary judgment, that when Lawrence Davis had opened the account on April 22, 1986, she had assisted him. She did not remember whether she had had a “personal conversation” with him. She testified that he had opened “[a] personal account with joint ownership.” It was, she said, to be a joint account with “Jan O’Vadka.” Asked, “And did he indicate to you what type of an account this was to be?” the witness answered, “Yes. Because I marked it so.” Asked, “But when he [Lawrence Davis] was in the bank he told you that he wanted it to be a joint account with Miss O’Vadka?” the witness responded, “Yes.” On cross-examination the following colloquy occurred between counsel for the executor and the witness:

“Q. Now, I’ve examined that [the marking beside the words ‘JOINT ACCOUNT WITH SURVIVORSHIP’], the original of that, and that looks to me like there might have been a correction made or some attempt to lift off with a correction typewriter on that box.
A. Could have been or it could have been just the typewriter mistyping, because when you look at the carbon copy you will see that it is very plain on there. It was put on there in both places.
Q. Okay. Yeah, but my question is this: When you type on that type of typewriter and you use a carbon it would be in both places, but then when you went to lift off you couldn’t lift off the carbon—
A. No, but you could white it out.”

Neither the original nor the carbon copy of the account card is included in the record for review. Upon redirect examination, when asked, “There is no question in your mind that this was a joint account of L.E. Davis, is there?” the witness responded, “No. No question at all.”

Don Griffin, an executive vice-president of the bank, testified in a discovery deposition taken on behalf of the plaintiff, attached to the plaintiff’s motion for summary judgment, concerning the account card. On cross-examination he stated that the two “X” ’s beside the words “Personal Account” were made by a typewriter and that the mark beside the words “JOINT ACCOUNT WITH SURVIVORSHIP” “looks like a light typewriter imprint.” He described the mark as “not as distinct” as the two “X” ’s in the box next to the words “Personal Account.” Asked, “Is it possible that there has been some correction made on that?” the witness answered, “I don’t believe that there has been a correction made on that.” He testified further, “To me it looks to me like it was meant to be a joint account.”

The defendant objected to the plaintiff’s motion for summary judgment and itself moved for summary judgment against third-party defendant William Aulgur, stating that, if there are no genuine issues as to any material fact and plaintiff is entitled to judgment as a matter of law against the defendant, “then correspondingly,” the defendant would necessarily be entitled to summary judgment against William Aulgur as executor. In its objection to the plaintiff’s motion for summary judgment the defendant contended that a material issue of fact exists, that is, the question of the intent of Lawrence Davis upon the establishment of the account in question, “be it joint with right of survivorship with Plaintiff, Janet O’Vadka, or for convenience sake only.” An affidavit of Patricia Gossett is attached as an exhibit to the bank’s objection to the plaintiff’s motion for summary judgment. In paragraph nine of the affidavit she states, “I would have no testimony as to what Mr. Davis’ true intent was when he deposited the $100,000 in the account in question or whether it was an account set up for joint tenancy purposes or for purposes of convenience.”

William Aulgur responded to both motions for summary judgment by adopting the arguments of the bank and the authority it cited in its objection to the plaintiff’s motion for summary judgment. The executor stated further that “the depositions taken and attached to Plaintiff’s original motion are hereby adopted as exhibits to this response in the interest of conserving the clerk’s space and for purposes of brevity.”

At the hearing on the motions for summary judgment the plaintiff relied upon Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 591, 202 N.E.2d 470, 472, holding

“that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.”

Following the hearing, the trial court granted both motions for summary judgment in an order entered on July 28, 1988. The court expressly found that there is no genuine issue as to any material fact and that

“L.E. Davis created a joint account with right of survivorship, being account number 400 3124, at the Rend Lake Bank on April 22, 1986. L.E. Davis and S.J. O’Vadka were the joint account holders.”

The trial court found further that the defendant had wrongfully paid to William Aulgur as executor the sum of $107,493.01, which was the entire balance of the account. Stating that “[n]o facts have been produced by anyone showing that L.E. Davis intended this account to be for any purpose other than a joint account with right of survivorship,” the court found the plaintiff entitled to the sum of $107,493.01 plus interest at a specified rate from the bank and the bank entitled to the same sum at the same specified rate of interest from the executor. The trial court entered judgment accordingly for the plaintiff against the bank and for the bank against the executor. The executor perfected this appeal from the summary judgment entered against it and in favor of the bank as third-party plaintiff, and the bank filed an appeal from the summary judgment entered against it and in favor of the plaintiff.

In In re Estate of Lawrence Edward Davis, Deceased, No. 87 — P— 57, Rend Lake Bank filed a claim against the decedent’s estate for the sum of $107,493.01, subsequently amended to $46,482.37 to reflect a set off of $61,010.64, which amount was in an account held by the executor of the decedent’s estate in the Rend Lake Bank. Following a hearing the trial court entered an order on February 15, 1989, denying a motion by the executor attacking the claim and allowing the claim in its amended form of $46,482.37. The trial court ordered the claim to be paid by the executor to the Rend Lake Bank, having expressly found that “the findings and judgment in Cause No. 87 — L—123 between the same parties and upon the same issues are res judicata to the parties and issues involved with the claim filed herein and the attempted amended claim by the Rend Lake Bank against the Estate of Lawrence Edward Davis, Deceased.” In a subsequent order the trial court denied the executor’s motion for rehearing, and an appeal by the executor followed. That appeal, No. 5 — 89—0268, has been consolidated with this one.

In his brief the executor maintains that “the most significant piece of evidence creates doubt as to the intent of the decedent simply by it’s [sic] examination.” He concludes that “[t]he signature card itself does not lend itself to one interpretation.” Further, he asserts, “inconsistency in Patricia Gossett’s affidavit and deposition createfs] doubt as to the intent of L.E. Davis at the creation of the account.” He is, he maintains, “entitled to a full hearing to resolve these obvious differences in the evidence submitted by Plaintiff Janet O’Vadka (the deposition) and the evidence submitted by Rend Lake Bank (the affidavit).” The executor contends additionally that Murgic was applied “erroneously and prematurely” inasmuch as Murgic “assumes that the instrument is clear on it’s [sic] face, that is, it clearly establishes a joint tenancy,” unlike the instant case, in which the instrument itself is “unclear as to whether the account was created jointly with right of survivorship or merely named a co-party for purposes of convenience.” The executor argues further that “Murgic, which deals with burden of proof, is inapplicable to the motion for summary judgment, for a party’s burden of proof involves weighing facts and the summary judgment motion properly considers only questions of law.” Finally, the executor maintains concerning Murgic that it is inapplicable here because that court was applying a standard of review for a full evidentiary hearing whereas the standard here, upon motion for summary judgment, is whether there was a material question of fact.

In her brief the plaintiff phrases the issue for review by this court as whether “the trial court’s application of Murgic to grant summary judgment for O’Vadka [was] correct” and concludes that it was because “Murgic puts the burden on the Bank, and that burden was not met.” “As between the Bank and O’Vadka,” she states, “the facts were not really disputed.” Plaintiff urges that the executor presented no affidavits in response to the bank’s motion for summary judgment and “failed to present any materials, e.g., depositions, to support his position.” (Emphasis in original.) She argues that, as a result, at the time the motions for summary judgment were heard the only facts before the trial court were those presented by the plaintiff and the bank.

In its brief the bank relies upon Murgic, arguing that the burden fell upon the executor “at the very least, to present some factual basis that would arguably entitle him to a judgment under the applicable law by clear and convincing evidence.” Concerning its appeal the bank states that as appellant it takes the position that it is entitled to summary judgment against the executor; however, if this court should reverse the summary judgment entered in its favor, the summary judgment entered in favor of the plaintiff against the bank should likewise be reversed and the cause remanded for further proceedings.

An amicus curiae brief has been filed by Mark Davis, Robin Davis, and Kandi Davis, described as heirs at law and beneficiaries under the will of Lawrence Davis. In July of 1988 they moved to consolidate another cause of action, No. 88 — L—14, with No. 87 — L—123 and petitioned to intervene in No. 87 — L—123. The trial court denied their motion to consolidate and denied leave to intervene. In their brief as amicus curiae, Mark, Robin and Kandi Davis stress that plaintiff’s initial listing of this account as one of decedent’s personal accounts and not as a joint account is evidence to be considered by the trier of fact in determining whether the account is a joint one. They argue that her motion

“shows upon its face that there is a material issue of fact in the case. It should be a matter for a jury to determine whether to give greater credence to a written admission against her interest or to her self serving [sic] declaration made at a later date after some reflection as to what would be in her best interest.”

They urge that the markings that appear on the account card “do not suggest that the existence of a joint account is the only possible inference from such undisputed facts.” At a minimum, they say, these circumstances render this instrument ambiguous and subject to interpretation by a trier of fact.

Title to personal property may be held in joint tenancy with right of survivorship where the appropriate language is employed at the creation of the tenancy. (Ill. Rev. Stat. 1989, ch. 76, par. 2; see In re Estate of Pokorney (1968), 99 Ill. App. 2d 230, 240 N.E.2d 740.) Joint tenancies in personal property are governed by section 2 of “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1985, ch. 76, par. 2). (See David v. Ridgely-Farmers Safe Deposit Co. (1950), 342 Ill. App. 96, 95 N.E.2d 725.) As stated in Pokorney, if the joint tenancy is created in accordance with the statutory provisions, the presumption of donative intent arises. Recently in In re Estate of Lewis (1990), 193 Ill. App. 3d 316, 319, 549 N.E.2d 960, 961-62, the court discussed both Murgic and the earlier case of Frey v. Wubbena (1962), 26 Ill. 2d 62,185 N.E.2d 850, observing:

“In Murgic and Wubbena, the supreme court clarified the law in regard to statutory provisions which create interest in intangible personalty containing rights of survivorship. The substance of these holdings was (1) the rights of survivorship are created by the execution of the various instruments provided in the statute in conformity with the provisions of the statute; (2) following common law procedures necessary to create rights of survivor-ship was no longer necessary; (3) compliance with the statutory requirements creates a presumption that those furnishing consideration for the creation of such interests intend to make a gift to those who furnish less than their share or no consideration; and (4) ‘courts may look behind the form of the transaction to determine the parties’ rights,’ but, in doing so, ‘the burden is upon one questioning the gift to overcome the presumption by clear and convincing proof.’ Murgic, 31 Ill. 2d at 589, 202 N.E.2d at 471-72.”

The following conditions must be met in order to establish a joint tenancy with right of survivorship as personal property, and, except as the statute makes specific provisions governing certain other cases, the requirements are the same whether the property in question is located in a safety deposit box or elsewhere: (1) such an interest can be created only by means of a written instrument; (2) the instrument must express an intention to create a joint tenancy in personal property and apparently must expressly provide that the property so held is to be subject to the right of survivorship between the owners thereof; and (3) the instrument should comply with the general requirements of a will as to definitions of description of subject matter, parties, and certainty of its object. (David, 342 Ill. App. 96, 95 N.E.2d 725.) In the instant case, the parties dispute whether the instrument expresses an intention to create a joint tenancy in personal property. Since the parties here dispute the terms of the agreement, we deem Murgic inapplicable. We do not consider the executor’s argument concerning the inapplicability of Murgic to a motion for summary judgment.

Section 2 — 1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)) provides that summary judgment shall be rendered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In making the determination whether there is a genuine issue as to any material fact, the court must construe the pleadings, depositions, and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Martin v. American Legion Post No. 784 (1978), 66 Ill. App. 3d 116, 383 N.E.2d 672.) Where the facts admit of more than one conclusion, including a conclusion unfavorable to the party moving for summary judgment, such facts cannot support a motion for summary judgment. (Martin, 66 Ill. App. 3d 116, 383 N.E.2d 672.) In determining if there is a genuine issue of material fact, inferences may be drawn from the facts that are not in dispute. (Riley v. Singer (1979), 75 Ill. App. 3d 1036, 394 N.E.2d 746.) Thus, if fair-minded persons could draw different inferences from the facts, a triable issue exists and a motion for summary judgment must be denied. (Riley, 75 Ill. App. 3d 1036, 394 N.E.2d 746.) It is only when.the undisputed facts are susceptible of but a single inference that the issue becomes one of law. (Riley, 75 Ill. App. 3d 1036, 394 N.E.2d 746.) Summary judgment should not be entered even if there is no dispute in the evidence, if reasonable persons could draw different conclusions from the undisputed evidence. (Martin v. Hertz Corp. (1982), 104 Ill. App. 3d 592, 432 N.E.2d 1262.) If the court is presented with any set of facts about which reasonable men might disagree, summary judgment should be denied. (Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 344 N.E.2d 29.) The right of a moving party to obtain a summary judgment must be clear and free from doubt. (Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045.) The summary judgment procedure may not be used to try any issue; it is not a modified trial procedure. (Manaban, 50 Ill. App. 3d 9, 365 N.E.2d 1045.) The summary judgment procedure is not intended to be used as a means of trying an issue of fact, but rather the function of such procedure is to determine whether there is an issue of fact to be tried. Lesser, 36 Ill. App. 3d 433, 344 N.E.2d 29.

Concerning the contentions of the plaintiff and the bank that the executor is not entitled to summary judgment for failure to submit counteraffidavits, for example, or “any materials” such as depositions in support of his position, we note that the executor did adopt as exhibits to his response the depositions taken and attached to the plaintiff’s motion for summary judgment. Further, in Amsted Industries, Inc. v. Poliak Industries, Inc. (1978), 65 Ill. App. 3d 545, 382 N.E.2d 393, in which summary judgment had been entered by the trial court against the defendants and in favor of the plaintiff, the defendants submitted no evidence of their own in opposition but contended that summary judgment was not properly granted on the evidence submitted by the plaintiff. Reversing the summary judgment upon review, the court determined that the record disclosed that reasonable men could arrive at different conclusions on the issue of the defendant Poliak’s personal liability therein.

In the instant case a trier of fact might infer, at least from the photocopy of the account card with which we have been provided, that a correction had been undertaken to delete the mark beside the words “JOINT ACCOUNT WITH SURVIVORSHIP.” In her deposition Patricia Gossett testified that it “[cjould have been” that a correction had been made or an attempt had been made to lift off that mark using a correction ribbon on a typewriter. This witness suggested as an alternative explanation for the faintness of this mark that “it could have been just the typewriter mistyping,” particularly since the distinct mark on the carbon copy could have been covered by “whit[ing] it out.” Don Griffin expressed the view that he did not “believe” that a correction had been made. Patricia Gossett testified further that Lawrence Davis had indicated to her the kind of account this was to be “[bjecause I marked it so.” The facts here admit of more than one conclusion, including one unfavorable to the plaintiff movant for summary ■ judgment. Thus, they cannot support the plaintiff’s motion for summary judgment. A triable issue exists, and the motion for summary judgment should have been denied. The trial court erred in entering summary judgment in favor of the plaintiff and against the bank, and we accordingly reverse that judgment. Similarly, the trial court erred in entering summary judgment in favor of the bank against the executor, and we hereby reverse that judgment. We remand the cause of action for further proceedings. The order allowing the bank’s amended claim of $46,482.37 against the estate in In re Estate of Lawrence Edward Davis, Deceased, No. 87 — P—57, the appeal of which, No. 5 — 89—0268, has been consolidated -with No. 5 — 88—0528, is therefore reversed.

No. 87 — L—123, Reversed and remanded.

No. 87 — P—57, Reversed.

GOLDENHERSH and HOWERTON, JJ., concur.


text:
    JOHN E. BAILEY, Plaintiff-Appellant, v. LOLA F. CLARK et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0039
    Opinion filed September 27, 1990.

      Frank H. Walker, of Mt. Vernon, for appellant.
    No brief filed for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Everett J. Clark died March 28, 1987. A document purporting to be his last will and testament was admitted to probate March 30, 1987. Harold Clark, a nephew of the decedent, filed a petition to declare the will invalid and a motion to require formal proof of the will. After a hearing the court entered an order setting aside the original order admitting the will to probate, declaring “that there has been insufficient competent evidence by the proponent of the will to establish the will.” Petition for rehearing and a post-trial motion filed by John Bailey, proponent of the will, were denied. On December 29, 1987, John Bailey filed a petition contesting the denial of admission of the will to probate. (111. Rev. Stat. 1987, ch. llOVa, par. 8 — 2.) The petition named as parties-respondents Lola Clark, a sister and heir at law of Everett Clark, and Harold Clark, Everett Clark’s nephew and administrator of the estate. A jury trial was held on the petition. On September 22, 1988, the jury returned a verdict finding that the purported will “is not the valid last will and testament of Everett Clark.” This appeal ensued, following the denial of John Bailey’s post-trial motion.

We note that the appellee filed no brief; however, we will decide the merits of this appeal since the issues raised in this appeal are relatively simple and can be easily addressed. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) Because the verdict of the jury did not specify on which ground it found the purported will invalid, we will address the evidence adduced as to elements necessary to establish the execution of a valid will.

The testimony at trial revealed that Everett Clark was never married and lived with his sister Lola Clark. On March 18, 1987, Everett Clark met with attorney William Wham to discuss the preparation of his last will and testament. Everett was to return to Wham’s office the following day to execute the instrument, but developed complications from a perforated ulcer and was hospitalized. He underwent surgery on March 18. Subsequent to surgery and until the time of his death, he was in intensive care and provided with an endotracheal tube attached to a ventilator to help him breathe. The placement of this tube made it impossible for him to communicate orally.

It is undisputed that on March 23, Everett Clark’s cousin John Bailey, and Vera Horton, John Bailey’s sister-in-law, retrieved the will prepared by William Wham and took it to attorney Frank Walker to have him finalize the execution of the will. Walker testified that he took the instrument to the hospital on March 25 to have Everett Clark execute it. Walker testified that immediately prior to executing the will he asked Everett Clark a few questions to determine whether Clark understood what he was doing.

Dr. Martin, the emergency room physician who attended Clark when he was admitted to the hospital, testified that he followed Clark’s case and saw him every day while Clark was in the hospital. Dr. Martin testified that in his medical opinion, on March 25 Everett Clark was alert, competent, and capable of executing legal documents. It was revealed during cross-examination that Everett Clark passed into a coma on March 26. Dr. Martin testified, however, that it was possible that the decedent could have been perfectly competent before noon on March 25, and could have passed into a coma on March 26.

Dorothy Smith, an attesting witness to the will, testified that she had known Everett Clark for eight years and believed him to be of “sound mind and memory and under no undue influence” when she was asked to witness the signing of the will. Immediately prior to signing the will she spoke with Everett Clark. Smith testified that “he couldn’t talk verbally, but he could answer in a different way by nodding his head yes and no.” She asked Clark “if he knew me and if he knew we were all there and he shook his head yes.” Dorothy Smith testified that Mr. Walker then talked with Clark and said, “this is your will and testament, asked if John Bailey was his cousin. He asked if he wanted to leave everything to John Bailey; if he knew everything about this will.” When asked by counsel whether Everett Clark indicated to Walker that he knew all about the will, Smith testified that he “didn’t indicate that as such. He gave me the impression and I believed the man knew what was going on.”

The second attesting witness, Vera Mae Horton, also testified that she had known Clark for eight years and that at the time the will was executed she believed Everett Clark to be of sound mind and memory. She answered affirmatively when asked whether she believed Clark was capable of understanding ordinary business transactions and competent to make a will at the time he signed the document.

When a person executes a will he must possess sufficient mental capacity to know the natural objects of his bounty, to comprehend the character and extent of his property, to understand the particular business in which he is engaged, and to dispose of said property pursuant to a plan formed in his mind. (Butler v. O’Brien (1956), 8 Ill. 2d 203, 210, 133 N.E.2d 274, 278.) Lay persons may testify in a will contest concerning the issue of testamentary capacity as long as they testify to sufficient facts and circumstances indicating that their opinion is not a guess, speculation or suspicion. (Peters v. Catt (1958), 15 Ill. 2d 255, 260, 154 N.E.2d 280, 284; Butler, 8 Ill. 2d at 210, 133 N.E.2d at 278.) No witness testified that he or she believed Everett Clark was lacking in the elements of testamentary capacity on March 25, 1987. All of the witnesses who testified as to the decedent’s mental state declared their belief that Clark was of sound mind and memory at the time he signed the will. We find that there was sufficient evidence from which the jury could conclude that the decedent possessed the requisite testamentary capacity to make a will.

Section 4 — 3 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 1101/2, par. 4 — 3) provides that “Every will shall be in writing, signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by 2 or more credible witnesses.” There is no question that the will was in written form. Evidence was presented, however, which raised the question of whether the will was signed as contemplated by section 4 — 3.

The will consists of two pages. At the bottom of page one is a typed signature line with the name Everett J. Clark typed underneath. Above the signature line is a handwritten “X.” Although it is not designated on the instrument that the “X” represents the testator’s mark, this is not enough to invalidate the will. A will may be valid where it is signed by mark even though the mark is not accompanied by the testator’s name or by the words “his mark.” See In re Will ofWesterman (1948), 401 Ill. 489, 492-93, 82 N.E.2d 474, 476.

There was testimony that Everett Clark did not mark the “X” without assistance. It was Dr. Martin’s testimony that “from the first night post-operative, Mr. Clark pulled his [endotracheal] tube out, so his arms were restrained throughout the time.” Attorney Walker testified that when the will was executed he placed a pencil in Everett Clark’s hand because Clark’s hand was tied down. Walker testified that he helped Everett Clark “find the line and we guided his hand and he made an ‘X’ and I held the pen in his hand.” Dorothy Smith and Vera Mae Horton each confirmed Walker’s assisting Everett Clark mark the “X” on the will. Dorothy Smith could not recall whether Clark was asked to make the mark himself, but recalled that he was given a pencil and helped to mark.

If a guided or assisted signature is placed on a will at the request of the person making the will and such person thereafter in the presence of two witnesses acknowledges the instrument to be his will, voluntarily made, the requirements of the statute have been met. (In re Estate of Kehl (1947), 397 Ill. 251, 257, 73 N.E.2d 437, 440.) There was no testimony presented that Everett Clark requested assistance in marking the “X.” There was sufficient evidence presented, however, that Everett Clark’s condition necessitated that he be assisted in marking the “X.” The greatest dispute in the testimony is whether the testator, in the presence of the attesting witnesses, acknowledged the instrument as his will or was aware of the contents of the document.

William Wham, the attorney who prepared the will, testified that after he prepared the instrument he never had the opportunity to read or review the will with Everett Clark.

Vera Mae Horton testified that prior to March 25, 1987, the will was never read to Everett Clark in her presence. She further testified that she did not know whether the will was read to Everett Clark on March 25. When counsel asked her whether Clark ever told her by any means on March 25, 1987, that the document was his last will and testament, she testified, “no, not me.” Horton did testify, however, “When Mr. Walker asked him if this is what — if this was his will and if this is what he wanted and he shook his head, yes.”

Smith, the other attesting witness, testified that just prior to Everett Clark’s signing the will, she asked him if he knew that the attorney was there, and he responded by nodding affirmatively. She testified that Walker then spoke with Everett Clark and explained to him that “he was there at the last will and testament. *** He said, this is your will and testament, asked if John Bailey was his cousin *** if he wanted to leave everything to John Bailey; if he knew everything about the will.” When counsel asked Smith whether Clark indicated to the attorney that he knew all about the will, Smith testified, “he didn’t indicate that as such *** I believed the man knew what was going on.”

The only witness who testified that the will was read to Everett Clark and that Clark was asked if he wanted to sign the will was attorney Frank Walker. Walker, who represents the proponent in this case, testified that when he asked Clark, after reading the will to him, whether that is what Clark wanted, Clark shook his head yes.

The testimony of the witnesses who attested the execution of the will was not wholly conclusive on the issues of whether Everett Clark acknowledged the instrument as his will or knew the contents of the instrument executed as his will. Although Clark’s physical disability alone cannot be considered as evidence that he did not know the contents of the instrument which he executed (see In re Estate of Calo (1953), 1 Ill. 2d 376, 383, 115 N.E.2d 778, 782), based on the testimony presented in the instant case, it was entirely reasonable for the jury to find that Everett Clark did not acknowledge that the instrument was his will and did not know the contents of the instrument.

On the question of the valid execution of a will in a proceeding for its probate, the question of the credibility of the witnesses is for the court hearing the case, and where it has given credit to the testimony of subscribing witnesses, this court will not disturb its judgment. (In re Estate of Walsh (1948), 400 Ill. 454, 461, 81 N.E.2d 197, 200.) The credibility of witnesses and the weight to be accorded their testimony are matters for the jury to determine, and unless its determination is manifestly against the weight of the evidence, it will not be disturbed on appeal. (Moran v. Lala (1989), 179 Ill. App. 3d 771, 782, 534 N.E.2d 1319, 1326.) We conclude that the record does not support the proponent’s contention that the verdict was against the manifest weight of the evidence, and therefore the judgment must be affirmed.

Affirmed.

RARICK and WELCH, JJ., concur.