Brenneman v. Dillon

• Decision Date: 04 February 1921
• Docket Number: No. 13573.,13573.
• Citation: 129 N.E. 564,296 Ill. 140
• Parties: BRENNEMAN et al. v. DILLON.
• Court: Illinois Supreme Court

296 Ill. 140

129 N.E. 564

BRENNEMAN et al.

v.DILLON.

No. 13573.

Supreme Court of Illinois.

Dec. 21, 1920.

Rehearing Denied Feb. 4, 1921.

Suit by Mary D. Brenneman and others against Metta F. H. Dillon. From decree dismissing the bill, complainants appeal.

Decree affirmed.

Appeal from Circuit Court, Whiteside County; Frank D. Ramsay, judge.

Henry C. Ward and Carl E. Sheldon, both of Sterling, for appellants.

Clyde Smith, of Dixon, for appellee.

FARMER, J.

Moses Dillon died intestate January 11, 1916, in New York City, leaving a widow, Metta F. H. Dillon, and as his only heirs four children, Mary D. Brenneman, Margaret Grimes, Alice D. Overson, and Joseph G. Dillon, and also a grandson, Moses G. Dillon, only child of a deceased son. Dillon had resided and been engaged in business in Sterling, Ill., many years, and from 1869 had been the principal stockholder in and president of the Moses Dillon Company, a corporation, which dealt in coal, grain, lumber, and building materials, and did a large business.A few years before his death Dillon and his wife removed to New York, where they resided until his death. None of his children, who were all married, resided in New York. Metta F. H. Dillon was his third wife and was not the mother of any of his children. While residing in New York Dillon returned to Sterling about twice each year to look after the business of the corporation of which he was president. It is not disputed that he was an active, capable, and successful business man, of sound mentality, and that he enjoyed good health. On the day of his death, January 11, 1916, he executed a deed conveying real estate in Sterling owned by him to his wife. The deed was signed by him by his mark, was properly acknowledged, and immediately mailed to the recorder at Morrison, the county seat of Whiteside county, Ill. It was received and filed for record January 14, 1916. In May, 1917, the heirs of Dillon filed a bill for the partition of the real estate conveyed to Metta F. H. Dillon by her husband and asked that the deed be canceled; the bill averring that the grantor, at the time he made the deed, was of unsound mind and incapable of understanding the nature and purpose of the deed, that he was induced to make it by the undue influence of the grantee, and that the deed did not describe and convey real estate owned by the grantor. After answer and replication filed, the cause was referred to the master in chancery to take testimony and report his conclusions. The master reported that the deed was executed about one hour before the death of the grantor; that the description of the property in the deed is incorrect and from the deed it is impossible to determine what property was intended to be conveyed; that at the time of the execution of the instrument Dillon had not sufficient mental capacity to make a valid deed; and that the purported deed was void and of no effect. The master made no finding on the issue of undue influence. He recommended a decree granting the relief prayed in the bill. The chancellor sustained exceptions to the master's report and entered a decree dismissing the bill for want of equity. From that decree complainants have prosecuted this appeal.

No testimony was introduced by complainants on the trial as to the condition of Moses Dillon's mind at the time he executed the deed or that he was under the undue influence of Metta F. H. Dillon at the time. The deed itself is solely relied on by them to support the allegations of their bill. Defendant read in evidence the affidavit of the physician who attended Dillon in his last illness; the affidavit of the notary public who took the acknowledgment; the affidavit of Stanley R. Walker, employed by the Corn Exchange Safe Deposit Company as superintendent in charge of vaults of the Hudson River branch of the company; and the affidavit of Catherine Gallagher, the nurse who attended Dillon in his last illness. These affidavits are to the effect that making the deed was first suggested by the grantor; that it was voluntarily executed, without influence from the grantee or any one else; and that the grantor was of sound mind when he made the deed and fully understood and comprehended the nature and effect of his act. These affidavits were the only evidence on the subjects covered by them, offered by the defendant.

[1] Appellants say the affidavits were incompetent; and this is true, of course, if their competency had been objected to. The abstract shows that--

‘When the affidavits were offered, ‘complainants do not object to the above evidence on the ground that such evidence is in the form of affidavits instead of depositions, and complainants admit that if the affiants were sworn they would testify to the same things in the same way. It is the intention of this stipulation to admit the matter testified to so far as it would be admissible if the same had been taken by deposition or in open court, and to reserve to the complainants all objections that might have been taken to the same for matters of substance, materiality, and relevancy. It is further stipulated that said affidavits were taken at or about the date they were sworn to.’

If the affidavits were eliminated, we do not see that appellants would be in any better position, as they introduced no evidence on the question of the grantor's unsoundness of mind or that he was unduly influenced. All the proof in this record shows that Dillon's mind was rather exceptionally sound prior to the date of making the deed. Except the affidavits there is no testimony in the record of the condition of his mind at the time the deed was made.

[2] There is no presumption of law that Dillon was of unsound mind or unduly influenced, but the presumption is the other way. The law does not raise the presumption that the deed is invalid because it was to the grantor's wife. If it was understandingly made, it is good and valid. To avoid the deed on the grounds alleged in complainants' bill it was incumbent on them to prove their bill.

Appellants place great reliance on the deed itself as being evidence of unsoundness of mind, in that it does not correctly describe the property which Dillon had owned many years, had improved, and with which he was very familiar. The original bill described the property as block N. By an amendment it was described as part of the northeast fractional quarter of section 28, township 21 north, range 7 east of the Fourth principal meridian, beginning at a point on the southerly line of the depot grounds of the Chicago & Northwestern Railway Company 66 feet easterly from the northeast corner of block 68 of Dement & Mason's addition to the city of Sterling; running thence southerly on a line parallel with the east line of said block 72 feet; thence northeasterly 352 feet to a point on the southerly line of the depot grounds 339 feet easterly on said line from the place of beginning; thence westerly along the southerly line 339 feet to the place of beginning, in Whiteside county, Ill. This description is slightly different from the description in the deeds by which Dillon acquired title to the disputed property in 1875, but the difference seems not material. The property is a triangularly-shaped tract and appears not to have been platted into a block or lots when Dement & Mason's addition was laid out. It came to be known to the tax authorities and others as block...