Davis v. Stambaugh

• Citation: 45 N.E. 170,163 Ill. 557
• Parties: DAVIS et al. v. STAMBAUGH.
• Decision Date: 10 November 1896
• Court: Supreme Court of Illinois

163 Ill. 557

45 N.E. 170

DAVIS et al.

v.STAMBAUGH.

Supreme Court of Illinois.

Nov. 10, 1896.

Error to circuit court, McDonough county; Charles J. Scofield, Judge.

Bill by Artemisa Davis and others against Emma Stambaugh. There was a decree for defendant, and complainants bring error. Affirmed.

Wheat & Meloan and Sherman & Tunnicliffs, for plaintiffs in error.

Baily & Holly and Neece & Son, for defendant in error.

BAKER, J.

The bill alleges, in substance, that on and prior to September 20, 1892, Adam Stambaugh was the owner of certain described tracts of land, which were reasonably worth $20,000; that he was 74 years of age, and suffering from an incurable disease, and anticipated an early death; that he reposed great confidence in his wife, Emma Stambaugh, to whom he had been married since September, 1863; that he desired and undertook to divide his real estate equitably between his said wife and his three children and heirs at law, Artemisa Davis, Sabina Griffith, and Hattie Rodgers; that said Adam and his said wife, Emma, joined in making an absolute deed for said lands to one Thomas J. Welch, and that Welch immediately conveyed the same, by like absolute deed, to said Emma Stambaugh; that said Emma stated to said Adam that, if he would convey the real estate to her, she would accept and hold the real estate, and dispose of the same in the manner to be directed at the time of the conveyance to her; and that he then informed her that he wanted the lands disposed of and divided as follows: The northwest quarter of section 12, etc., after his death, to be sold, and the proceeds equally divided between his said three children; and the southeast quarter of section 14, etc., and the other real estate, to be used and enjoyed by said Emma Stambaugh during her lifetime, and at her death to be equally divided among said three children. The bill charges that Adam Stambaugh was induced to make the conveyances, transferring title to her, by her oral promises to comply with his said wishes and requests, and that such promises were the sole inducement and consideration for the conveyances, and that since the death of said Adam Stambaugh the said Emma Stambaugh has refused to carry out the directions of the deceased, or to perform the promises whereby she induced him to convey the lands to her, and claims that she owns the same in fee, and has the absolute right to control, sell, and use the same in any manner she may see fit. The prayer of the bill is for a decree establishing and executing the trust, and for other and further relief. The answer of Emma Stambaugh admits that on September 20, 1892, Adam Stambaugh was seised in fee of the premises, and was in feeble health; denies that he tried to or did dispose of his lands for the purpose of dividing the same among his children; denies that she induced him to make the deeds by any promises, or that the premises were conveyed to her in trust, or because of any inducements held out by her; and alleges that said Adam voluntarily conveyed to her, for the purpose of investing her with the absolute fee, to use and dispose of as she might see fit, unincumbered with any trust of any kind whatever. And said answer sets up the statute of frauds, and insists upon and claims the benefit of the same. The cause was heard in the circuit court of McDonough county upon bill, answer, replication, and proofs, and a decree rendered dismissing the bill for want of equity.

Section 9 of the statute of frauds provides that ‘all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of no effect.’ 1 Starr & C. Ann. St. p. 1200. It appears from the evidence that Adam Stambaugh on the 4th day of August, 1892, made a will; that afterwards, in the presence of the witnesses J. G. Rippetoe and S. D. Barrett, he tore said will into three pieces, announcing to them that he wanted said will destroyed, and expressly called upon them to witness that such was his wish. The first contention made by appellants is that this will, signed by Adam Stambaugh, is sufficient to take the case out of the statute. There are several reasons why this contention cannot prevail. In the first place, the will and its provisions were expressly revoked and destroyed by said Adam, as is shown by the evidence of said witnesses. In the second place, the deed to appellee, which was executed and acknowledged long after the making of such will, makes no reference to the will or its provisions, either directly or indirectly, and there is therefore no ground upon which it can be claimed that the conveyance to appellee was for the purpose of carrying into effect the provisions of the will. And, in the third place, the trusts claimed in the bill are very materially different from the disposition of the property that the will made provision for. According to the trusts alleged in the bill, the land in section 12, upon the death of Adam Stambaugh, was to be sold, and the proceeds of sale equally divided between the three children, whereas by the will there was ‘devised to Emma Stambaugh, out of said tract of land,’ the sum of $2,000, to be hers absolutely,said land not to be sold until one year after the probating of the will, and the rents for said land for that year directed to be paid to Emma Stambaugh; and, according to the trusts alleged in the bill, said Emma Stambaugh was given a life estate in the real estate other than that in sections 12 and 14, with remainder to the three children, whereas, by the provisions of said revoked will, all the real estate, other than that in sections 12 and 14, was devised to said Emma Stambaugh, ‘to be hers absolutely.’

It appears from the record that a notice was given to take the deposition of Emma Stambaugh; that she did not appear, but that her attorneys appeared, and stated that they would agree to take her deposition if complainants would waive her signature to the same. This offer was declined. Thereupon the court made an order appointing a commissioner to take her deposition, and ordering that she ‘appear and give her deposition in said cause,’ and that she ‘shall sign the same.’ The deposition was taken, and she signed it, prefacing such signature with this statement: ‘As I put my name to this paper, I protest against it. It is the first time I have disobeyed my husband in any of the business. To-day I would rather go to the penitentiary than to take the step I am taking. But my attorney says the court will punish me if I don't. But I want the court to know I protest against doing this. I do not do it willingly.’ The substantial part of the deposition was this: ‘He [meaning Adam Stambaugh] said after he made those deeds to me-the squire came down and brought them, and my husband was in the bedroom, and I was...