Allen v. McGill

• Decision Date: 19 February 1924
• Docket Number: No. 15501.,15501.
• Citation: 311 Ill. 170,142 N.E. 470
• Parties: ALLEN v. McGILL et al.
• Court: Illinois Supreme Court

311 Ill. 170

142 N.E. 470

ALLEN

v.McGILL et al.

No. 15501.

Supreme Court of Illinois.

Feb. 19, 1924.

Partition by Julia A. Allen against Russel R. McGill and others. From a decree granting partition of part only of property claimed, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Hamilton County; Charles H. miller, judge.

Harry Anderson and J. H. Lane, both of McLeansboro, for appellant.

Hogan & Hogan and Conrad Schul, of Mt. Vernon, for appellees.

STONE, J.

Appellant, Julia A. Allen, together with other heirs at law of Francis Marion Johnson, deceased, filed a bill in the circuit court of Hamilton county for partition of the south half of the southeast quarter of section 17 and the northwest quarter of the northeast quarter of section 20, in town 6 south, range 6 east, in that county. By their bill they alleged that Johnson died seized in fee of this land; that during his lifetime he executed and delivered a pretended warranty deed purporting to convey the southwest quarter of the southeast quarter of section 17 to appellees, Russel R. McGill and Ancie B. McGill, as joint tenants, for the expressed consideration of one dollar, love and affection, and other good and valuable considerations. It was alleged that at the time of the making of the deed he was past 84 years of age, was in his dotage, and mentally incapable of understanding the nature of the transaction and of transacting ordinary business; that one of the grantees in the deed, Ancie B. McGill, is a daughter of the deceased, and was, with her husband, Russel R. McGill, living at the home of the grantor; that the latter was under the influence of the grantees in the deed, and that they exercised undue influence in procuring the making of the deed; that the deed was made by their fraudulent arts, persuasions, and deceits. The bill prayed that the deed be set aside and that partition he had of the entire premises mentioned in the bill. Appellees were made defendants thereto and answered, admitting the material averments of the bill except as to the capacity of the grantor to execute the deed in question and as to allegations of undue influence. Hearing was had in open court before the chancellor, who found the issues concerning the deed in question for the appellees; that at the time of the making of the deed in question Johnson was of sound mind, and that by that deed the 40 acres of land in question passed in fee simple to the appellees and was not subject to partition. A decree in accordance with this finding and granting partition of the balance of the property was entered, and Julia A. Allen, a daughter, prayed and perfected her appeal.

Error is assigned on the finding of the chancellor that Francis Marion Johnson was mentally capable of making the deed in question, and that it was not procured by undue influence on the part of the appellees. It is also contended that the court erred in permitting the appellees to testifiy in their own behalf, and in rejecting certain competent evidence offered on behalf of complainants. As no argument is addressed to the latter part of this objection, it will not be considered.

Francis Marion Johnson, the deceased, had lived on the tract of land in question for many years and at the time of the making of the deed was 84 years of age. He had been failing in health for some time prior to his death; had been treated by the family physician for kidney and bladder trouble, which developed into Bright's disease, from which he died on September 20, 1922. The family physician testified that by reason of this disease it was necessary to give him special attention in the matter of ordinary functions of the body for a period of about a month prior to his death; that at intervals, as he grew weaker, he at times seemed more or less irrational; that the disease affected his memory in the latter days of his life to such an extent that at times his mind would seem to be a blank, while at other times his mind and memory were very good; that during the last three months of his life he was confined most of the time to the house, though not to his bed; that he had arteriosclerosis, or hardening of the arteries; that such discase frequently accompanies old age and is progressive in its nature, affecting the mind and the body to a greater or less degree as the time of death approaches; that by reason of the lessening of nourishment carried to the brain the mind becomes more inactive as the disease progresses; that, however, a patient may have hardening of the arteries and Bright's disease, and still be capable of transacting ordinary business.

The uncontroverted evidence shows that about a year before the death of the grantor the appellees were induced, after some persuasion, to leave the farm of 60 acres on which they were living, about 3 miles from the Johnson home, and to move into the homestead with the deceased and his wife, the latter of whom died about a month after this change was made. The evidence shows that they were solicited by the deceased and his wife to move in with them, and that other members of the family were so situated that they could not well do so. The record contains some evidenceto the effect that there was a contract that appellees were to receive $5 a week for taking care of the two elderly people. The record does not show with whom such contract was made, or by whom the consideration was to be paid, nor does the record show whether it was paid. After the death of Mrs. Johnson the appellees remained at the homestead and cared for the grantor until the time of his death. The deed in question was executed on the 8th day of July, 1922, about two months prior to the death of the grantor. The scrivener of the deed was one Cantrell, a justice of the peace, who lived in the neighborhood. After the deed was made, it was signed by the deceased by his mark and witnessed by two residents of the neighborhood, named Hicks and Oglesby. In the preparation of the deed the word ‘widow’ was used, instead of ‘widower,’ and the letter ‘u’ was omitted from the word ‘south’ in the description of the land. A day or two after the delivery of the deed it was taken back to Johnson by the scrivener who originally prepared the deed, and these corrections were made at his direction; the grantor saying that he hoped that he got it right this time.

As is usual in these cases, much testimony was offered upon both sides pertaining to the mental condition of the grantor. Complainants offered the testimony of 12 witnesses, most of whom testified concerning that matter. The appellees offered the testimony of 32 witnesses, meet of whom likewise testified concerning the mental condition of the grantor. No good purpose will be accomplished by lengthening this opinion to an extent sufficient to review all this testimony. It appears, from a reading of it as abstracted, that Johnson was an old man, in feeble physical condition, at the time of the execution of the deed, who required care and attention because of that fact. It appears that at times the appellee Russel R. McGill transacted such business matters for the deceased as he desired or directed that he do. Three checks for small amounts were introducedin evidence, indicating that they had been drawn by McGill on behalf of the grantor. There was also testimony of some conversations between the appellant and other complainants in the bill and the appellees relative to having a conservator appointed for him, but no steps were taken in that direction. The evidence also shows that some time prior to making the deed the grantor told witnesses that he expected to make a deed to the appellees of some land; that during the spring or summer of 1921, prior to the time when the appellees moved in with the deceased and his wife, appellee Ancie B. McGill drove back and forth each day to wait upon their wants, although she had at her own...