Grindle v. Grindle

• Decision Date: 02 June 1909
• Citation: 88 N.E. 473,240 Ill. 143
• Parties: GRINDLE et al. v. GRINDLE et al.
• Court: Illinois Supreme Court

240 Ill. 143

88 N.E. 473

GRINDLE et al.

v.GRINDLE et al.

Supreme Court of Illinois.

April 23, 1909.

Rehearing Denied June 2, 1909.

Error to Circuit Court, Moultrie County; W. C. Johns, Judge.

Suit by Alexander Grindle and another against Robert E. Grindle and others. There was a decree granting insufficient relief, and plaintiffs bring error. Reversed and remanded.

John E. Jennings and F. J. Thompson, for plaintiffs in error.

E. E. Wright (Walter Eden, of counsel), for defendants in error.

CARTWRIGHT, C. J.

Felix Grindle died intestate on July 31, 1907, leaving Mary Grindle, his widow, and Alexander Grindle, Dell Betts, Robert E. Grindle, Willis E. Grindle, and Minnie Evans, his children and only heirs at law. On August 7, 1907, Alexander Grindle filed an original bill in the circuit court of Moultrie county for the assignment of homestead and dower and partition of 180 acres of farm lands in said county and a small tract in Shelby county and some lots in the village of Hammond, in Piatt county, which lots had been occupied as a homestead. After the bill was filed two deeds were placed on record on August 15, 1907, made by Felix Grindle and Mary Grindle; one purporting to convey 80 acres of the farm lands to Robert E. Grindle and the other purporting to convey another 80 acres to Willis E. Grindle. On the same day that the deeds were so placed on record Robert E. Grindle and Willis E. Grindle filed their answer, denying that Felix Grindle was at the time of his death the owner of the lands described in said deeds, and claiming title in themselves under the deeds. On October 3, 1907, the bill was amended, and Dell Betts, who had been one of the defendants, was joined as a complainant. The amended bill alleged that at the time of the making of the deeds Felix Grindle was incompetent, by reason of advanced years and mental infirmities, to make them, that the deeds were obtained by undue influence and duress, and that they were never delivered in the lifetime of Felix Grindle, but remained in his possession and under his direction and control. A prayer was added that the court declare the deeds void as a could upon the title to the premises. The amended bill was answered and replications were filed to the answers. There was no issue made except as to the validity of the two deeds and the title to the two tracts, of 80 acres each, claimed by Robert E. Grindle and Wills E. Grindle, respectively. The cause was referred to the master in chancery to take and report the evidence without any conclusions of law or fact. The evidence was so taken, and upon hearing it the court entered a decree finding that Felix Grindle at the time he signed and acknowledged the deeds had sufficient mental capacity to understand and perform such acts and did so without any undue influence of duress; that he delivered the deeds to the Merchants' & Farmers' State Bank at Sullivan in escrow, to be delivered to the grantees upon the death of said Felix Grindle and Mary Grindle, his wife; that as a part of the same transaction two other contracts were entered into between Felix Grindle and Mary Grindle of the first part and Robert E. Grindle and Willis E. Grindle, respectively, as parties of the second part; that after the death of Felix Grindle the deeds were delivered, with the assent of Mary Grindle, the widow; that the testimony of Mary Grindle and the children of Felix Grindle, and their wives and husbands, was not competent and was not considered, and that the delivery of the deeds to the bank passed the title to the lands to the grantees subject to the life estate of Felix Grindle and Mary Grindle, and that the lands were not subject to partition, as the property of Felix Grindle, at the time of his death. The court decreed the assignment of homestead and dower and partition of the remaining lands and lots, as prayed for in the amended bill. A writ of error was sued out from this court to review the decree.

The court recited in the decree that the evidence of Mary Grindle, the widow, and of the children of Felix Grindle, and their wives and husbands, was not competent and was not considered. The defendants Robert E. Grindle and Willis E. Grindle were not claiming as heirs of Felix Grindle, but as grantees, and neither the widow not the children were rendered incompetent to testify by the provisions of section 2 of the act in regard to evidence and depositions. Hurd's Rev. St. 1908, c. 51; Gage v. Eddy, 179 Ill. 492, 53 N. E. 1008;Hudson v. Hudson, 237 Ill. 9, 86 N. E. 661. The widow was not competent to testify as to any matter from which she was excluded by the proviso to section 5 of said act (Donnan v. Donnan, 236 Ill. 341, 86 N. E. 279), but otherwise she was entirely competent, and she did testify to other matters. The husbands of Dell Betts and Minnie Evans were competent witnesses for the reason that the litigation was concerning the separate property of the wife. The finding was not in accordance with the law.

The deeds and contracts were prepared by W. K. Whitfield, an attorney, and he filed the answers of Robert E. Grindle and Willis E. Grindle, and appeared in the case as their solicitor. He conducted the examination of the witnesses on their behalf before the master until the conclusion of all the testimony, and then withdrew from the case, and his brother-in-law, who had a desk in his office and had been recently admitted to practice, was substituted as solicitor for said parties. He then testified as a witness to the entire transaction so far as he had been connected with it and the instructions given him, tending to show both competency and freedom from undue influence. As soon as the amended bill was filed, it was apparent that his testimony would be important in behalf of his clients, and there is good reason to believe that the withdrawal was only nominal, and that he was as much the solicitor of the parties after the withdrawal as before. We have not been disposed to give very great weight to the testimony of one who assumes the double burden of acting as solicitor in a case and furnishing the evidence necessary to success. Wilkinson v. People, 226 Ill. 135, 80 N. E. 699;Bishop v. Hilliard, 227 Ill. 382, 81 N. E. 403. In considering this case we have given to the testimony of the witness such weight as we consider it entitled to in view of his relation to the suit; and from all the evidence we conclude that the material facts are as follows:

On October 1, 1906, at the solicitation of Robert E. Grindle and in pursuance of a previous arrangement made by him, Felix Grindle, and Mary Grindle, his wife, and their two sons, Robert E. Grindle and Willis E. Grindle, went to the office of Sentel & Whitfield, in Sullivan, Ill. Felix Grindle was about 80 years old, with the infirmities usual at such an age. He was feeble, walked with an uncertain and shuffling gait, was nervous and excitable, and entertained peculiar religious views, keeping both Saturday and...