Berry v. Egan

• Decision Date: 18 February 1920
• Docket Number: No. 13061.,13061.
• Citation: 291 Ill. 377,126 N.E. 121
• Parties: BERRY v. EGAN.
• Court: Illinois Supreme Court

291 Ill. 377

126 N.E. 121

BERRY

v.EGAN.

No. 13061.

Supreme Court of Illinois.

Feb. 18, 1920.

Bill by Joseph W. Berry against Mary Egan to set aside a deed, wherein Henry F. Berry and others were substituted as complainants upon the original complainant's death. From a decree for defendant, complainants appeal.

Reversed and remanded.

Appeal from Circuit Court, Sangamon County; F. W. Burton, judge.

Clinton L. Conkling and Barber & Barber, all of Springfield, for appellants.

C. F. Mortimer, John W. Sheehan, John P. Flood, and Oscar J. Putting, all of Springfield, for appellee.

CARTER, J.

This is an appeal from a decree of the circuit court of Sangamon county denying the relief sought by a bill filed by appellants, as heirs at law of Joseph W. Berry, deceased, to set aside a deed made December 8, 1917, conveying about 175 acres of land in Sangamon county to Mary Egan, the appellee. The bill alleged that said land was worth about $45,000. The original bill was filed March 20, 1918, by the next friends of Joseph W. Berry. He died about a month thereafter, and an amended and supplemental bill was filed May 6, 1918, by appellants, as heirs at law. Both the original and supplemental bills alleged that on or about December 8, 1917, Joseph W. Berry, being then the owner of the land in question, and being a feeble-minded person, was by reason of unsoundness of mind incapable of managing and caring for his estate and unable to protect himself from the undue influence of Mary Egan to execute the purported deed of December 8th conveying the land to her. The bill also alleges that on February 9, 1918, she prevailed upon him to execute a purported five-year lease to her covering part of the same land, provided that she pay as rent for the cultivated land one-half of the grain and garden truck and as rent for 30 acres of pasture land one-half of the money from the sale of butter and eggs, the landlord to pasture his own animals free and furnish feed for all stock and poultry raised on the premises. The bill prays that both the deed and the lease be set aside and held to be void because of the undue influence of appellee and the lack of mental capacity of Berry to execute the same. After the issues were settled the case was referred to a master in chancery, who took and reported the proofs, and found that the deed and lease were made for a valuable consideration and were not executed as the result of undue influence; that Berry was of sufficient mental capacity and understanding to execute the sale; that the estate under the lease expired at Berry's death. The chancellor overruled exceptions to the master's report and entered a decree in accordance with the findings thereof. This appeal followed.

Counsel for the parties sharply disagree on many points as to what the testimony shows with reference to the issues involved. It is therefore necessary for a fair consideration of these questions to set out the evidence in the record at some length.

The deceased, Joseph W. Berry, was born and had lived all his life in Sangamon county, a few miles east of Springfield, near Dawson. In 1898, when 47 years of age, he married a widow, Kate R. Dawson, who lived on the farm left her by her husband, a short distance south of Dawson; Berry then owning and living on farm land a short distance north of Dawson. On April 26, 1915, Mrs. Berry died intestate, leaving no descendants, but leaving her husband and a niece and a nephew as her heirs. On May 13, 1915, Berry was appointed administrator of her estate after consultation with Circuit Judge Elbert S. Smith, then in active practice as an attorney in Springfield. Attorney Smith testified in this proceeding that in attempting to investigate the condition of the wife's estate he found it very difficult to ascertain any accurate details from Berry; that he seemed to have a poor memory and lacked comprehension of the affairs as to his wife's estate; that after considerable trouble Smith found that at the time of the wife's death one of the Springfield bankers held a note executed jointly by Mrs. Berry and her husband for over $20,000; and that there was another note of $2,000 signed by the same parties to Amaziah Ratcliff, each bearing 7 per cent. interest. Mrs. Berry owned at her death some 370 acres of land. After her death, while Berry was administrator, this land was divided in court by partition proceedings, and on November 10, 1917, 175 acres of the same was set off by decree to Berry. The evidence also shows that Berry, before and after his marriage and during his married life with Kate R. Dawson, was a quiet man of very little force of character, but perfectly honest; that his wife, before and after he married her, was of strong character, and during their married life transacted practically all of the business, both for herself and for her husband, relating both to her land south of Dawson and 270 acres of his land which he owned north of Dawson. The record also shows that after his wife's death he engaged two or three different housekeepers to look after his household affairs; that on May 1, 1916, he employed appellee, Mary Egan, who, according to the allegations of her answer, kept house for him, cared for him when indisposed or ill, and aided and assisted him in the management and supervision of his estate. The evidence tends to show that he had an income of about $7,000 a year from the land, and his average balance in the bank at Springfield was from $3,000 to $7,000; that after his wife's death nothing was paid on the joint indebtedness they owed except a year's interest on the $2,000 note; that after his marriage Berry did no farming himself, but occupied with his wife about 36 acres of her farm, which included the dwelling house, garden plot, and pasture; that he had some horses and cattle, but gave no attention to any business on the farm except feeding stock and doing chores about the residence; that while his wife was living all the rest of the land owned by them had been rented-principally for grain rent-to three tenants, Smith, Cravens, and McRoberts; that after her death no change was made in the leasing of the land, the tenants, with his consent, continuing on their respective tracts on the same terms as before. After the death of Berry's wife partition proceedings were instituted as to her land, and the court decreed that 175 acres thereof should be set apart as the property of Berry. This decree was entered November 10, 1917, Berry taking no active part with reference to the partition proceedings. During their pendency appellee told William Smith, one of the tenants on the land that originally belonged to Berry and his wife, ‘that Mr. Berry was incapable of attending to business and needed some one to look after it for him.’ She did not on this hearing deny this statement to Smith.

During part of the time after Mrs. Berry's death, and before the land was partitioned, Attorney John W. Sheehan, of Springfield, acted as attorney for Berry. It appears from the record that during this time he prepared two wills for Berry, and by these last wills he had attempted to have a part of Berry's estate left to Mary Egan. Charles Hederich, who was a client of Sheehan, testified that in November, 1917, Sheehan told him that he had a will ready for Berry drafted in favor of appellee, but that Berry would not sign it, and asked him (the witness) to influence Berry to come to Sheehan's office again for the purpose of signing the will, and that witness told Sheehan that he could not comply with his request because he did not think Berry was capable of executing any papers; that Sheehan answered this by saying that ‘he didn't think the will would stand, as Mr. Berry's noodle was not right’; that this conversation took place in Sheehan's office. While it is claimed by counsel for appellee that Sheehan denied this statement on the witness stand, we cannot find any such denial in the testimony of Sheehan in the record.

Probate Judge Jenkins testified that he had known Berry for eight or nine years, but became better acquainted with him after he was appointed administrator of his wife's estate; that he had a talk with him while he was administrator with reference to giving a deed to the coal rights under his wife's land; that this was before it was partitioned, and he advised him, in the presence or Attorney Sheehan, that he should give a quitclaim claim deed for his interest in the coal; that two or three days later he found that Berry had given a warranty deed for the coal rights; that some weeks thereafter he met Berry and talked with him about the giving of this deed, and Berry denied that he had given any deed, and stated that he had no lawyer to advise him, although Judge Jenkins well knew then that Attorney Smith had been advising him all the time with reference to his wife's estate. Berry denied that Smith was his attorney or was on his bond as administrator. Judge Jenkins also talked with Berry at this time about 30 acres of Berry's land which was rented to an uncle of Jenkins' wife, and Berry said he did not know whether he owned that land and did not know how much of a piece it was, because he thought the river had taken a piece off the west end of the farm, and, when reminded by Judge Jenkins that the river did not run anywhere near that farm, he answered that he guessed he was mistaken; that he was thinking of the land he owned near Dawson, and not near Curran. The evidence shows that none of the land, either at Curran or Dawson, was anywhere near a river.

John C. Young, manager of the grain elevator at Dawson, testified that while Berry was administrator of his wife's estate witness had bought grain raised on the land controlled by Berry from the tenants and from Berry for several years; that the tenants would bring Berry in and arrange for the sale of the grain in which Berry had a share as rent; that after the grain was delivered and settlement made as to Berry's...