Bradshaw v. Lewis

• Decision Date: 21 May 1973
• Docket Number: No. 45214,45214
• Citation: Bradshaw v. Lewis, 54 Ill.2d 304, 296 N.E.2d 747 (Ill. 1973)
• Parties: Helen BRADSHAW et al., Appellees, v. Ralph Dayton LEWIS et al., Appellants.
• Court: Illinois Supreme Court

Page 747

296 N.E.2d 747

54 Ill.2d 304

Helen BRADSHAW et al., Appellees, v.Ralph Dayton LEWIS et al., Appellants.

No. 45214.

Supreme Court of Illinois.

May 21, 1973.

Aplington & Kaufman, La Salle, and Gunner & Keller, Dixon (Fremont M. Kaufman, La Salle, of counsel), for appellees.

Keegan & Gosdick, Rockford, and Edward M. Sullivan, Amboy (Thomas A. Keegan, Rockford, of counsel), for appellants.

UNDERWOOD, Chief Justice.

Ralph B. Lewis and his wife, Nellie R. Lewis, executed a joint will in which they left everything to the survivor of them, and, in the event of their simultaneous deaths, devised their farm real estae, livestock and machinery to their son, Dayton, and the residue to their five daughters.Nellie died in 1963, and upon her husband's death in 1968 the will was admitted to probate as his will.In a partition proceeding in which the decedent's son and five daughters as his sole heirs at law were parties either as plaintiffs or defendants, the circuit court of Lee County construed the joint will as making a gift by implication of he decedent's undivided one-half interest in a 440-acre farm to his son, Dayton.On appeal, the appellate court reversed and remanded for proceedings consistent with its holding that the will provided for a devise of the real estate to the son only in the event of the simultaneous death of Ralph B. Lewis and Nellie R. Lewis, and that since it was undisputed that their deaths were not simultaneous, the decedent's interest in the farm descended to his six children as intestate property.(Bradshaw v. Lewis(1972), 5 Ill.App.3d 261, 282 N.E.2d 152.)We granted leave to appeal.

The 440-acre farm in question was acquired by Ralph B. Lewis and Nellie R. Lewis as joint tenants with right of survivorship in 1944.The joint will, which was drafted by their attorney, was executed by the Lewises on February 14, 1956.The will, after reciting that it was intended to be 'each of our last will and testament' provided in the first paragraph that: 'it is our will that our debts, joint and several, together with our funeral expenses be fully paid directly after our deaths, respectively, by our son, Dayton R. Lewis.'In the second paragraph, each devised to the survivor of them all of the remainder of their estate 'to have and to hold unto the survivor of us forever.'The third paragraph provides as follows: 'Should our deaths occur simultaneously so that neither survives the other, then we give, devise and bequeath all of our real estate, livestock and machinery to our son, Dayton R. Lewis; all of the rest, residue and remainder of our estate, in the event of our simultaneous deaths, we give, devise and bequeath to our daughters, Ester, Helen, Marian, Pauline and Frances, share and share alike, provided they survive us; in the event any of our daughters to not survive us, their share shall be divided equally among the other daughters surviving.'In the fourth and final paragraph they nominated each other as executor and provided that 'should our deaths occur simulataneously, so that neither survives the other, then we request that Dayton R. Lewis be appointed executor of this our Last Will and Testament * * *.'

The joint tenancy ownership of the farm by Mr. and Mrs. Lewis was severed when Nellie R. Lewis conveyed and warranted to her son Dayton an undivided one-half interest in the farm by deed dated December 18, 1962, and recorded February 26, 1963.After Mrs. Lewis did on November 4, 1963, her husband made no other will.

Upon the death of Ralph B. Lewis on July 5, 1968, the joint will was admitted to probate and his son Dayton and his daughter Helen Bradshaw were appointed administrators with the will annexed.The litigation now before us was instituted by the filing of a two-count complaint by Helen Bradshaw, Mary Frances Blythe and Marian Chaon as plaintiffs against their brother and sisters, Dayton R. Lewis(referred to in the pleadings as Ralph Dayton Lewis), Ester Foley and Pauline Lafferty.In Count I plaintiffs alleged that the joint will made no devise of any interest in the farm and that it descended as intestate property to his six children in equal shares.In Count II, plaintiffs sought to set aside the 1962 deed from their mother to Dayton for want of consideration and to impose a constructive trust on the farm for the benefit of all six children.

At the trial, there was testimony that Ralph B. Lewis and his wife had been tenants on the farm for a number of years, and that their son Dayton worked there prior to entering the service in 1941.The Lewises purchased the farm in 1944 from the estate of their deceased landlord after ascertaining that Dayton intended to farm for a living after he left the armed services.When Dayton returned in December, 1945, he lived and worked on the farm, receiving spending money and a car as his only compensation until 1950 when he and his father became partners in the operation of the farm, sharing income and expenses on a 50--50 basis.Dayton married shortly thereafter and lived off the farm until 1959 when he returned to live on the farm after his parents moved into town.From 1959 to 1964 the farm was in the 'soil bank' and no crops were grown.During this period Dayton worked on a construction job, but he and his father continued to share income and expenses of the farm.After 1964, active farming operations were resumed.

The deed conveying Mrs. Lewis' undivided half interest in the farm to Dayton was prepared by an attorney and signed by her on December 18, 1962, in the presence of Dayton, his father and the attorney.After Mrs. Lewis' death on November 4, 1963, Dayton personally paid his mother's funeral expenses and in 1967, when some of the buildings on the farm were destroyed, he paid for replacement of a barn from his own funds rather than out of the farm account.Dayton testified, however, that although he was aware that his parents had made a will, they never discussed the terms of the will with him, and he was unaware of the provisions thereof until after his father's death in 1968.

At the conclusion of the testimony, the trial court filed a memorandum of decision stating in part that 'it appears that there is no doubt that it was the intention of the deceased husband and wife to give their son the farm, the livestock and the machinery.The mother made certain by conveying her one-half interest to her son before her death.The father was aware of this and he did not make any other will, but retained his one-half interest until his death.Considering the will and all of the testimony, it is the judgment of this court that the will is construed as making a gift by implication of the real estate to the son, Ralph Dayton Lewis.'Thereafter, a decree was entered finding as to Count I that there was a gift by...