Dempski v. Dempski

• Decision Date: 01 February 1963
• Docket Number: No. 37344,37344
• Citation: 187 N.E.2d 734,27 Ill.2d 69
• Parties: Marie A. DEMPSKI, Appellee, v. Frank DEMPSKI et al., Appellants.
• Court: Illinois Supreme Court

Page 734

187 N.E.2d 734

27 Ill.2d 69

Marie A. DEMPSKI, Appellee, v. Frank DEMPSKI et al., Appellants.

No. 37344.

Supreme Court of Illinois.

Feb. 1, 1963.

Earl J. Wasneski and Finn & Geiger, Waukegan (Fred H. Geiger, Waukegan, of counsel), for appellants.

Lidschin & Pucin, Waukegan (Ellis E. Fuqua, Waukegan, of counsel), for appellee.

DAILY, Justice.

This is a direct appeal by defendants, the administrator and certain heirs of the estate of Julia Dempski, deceased, from a decree of the circuit court of Lake County, entered on a jury verdict, ordering specific performance of decedent's oral contract to devise her estate to plaintiff, Marie A. Dempski. A freehold is involved.

The principal issues presented by the appeal include: whether the evidence established a contract to make a will; whether section 2 of the Evidence Act, (Ill.Rev.Stat.1959, chap. 51, par. 2,) barred plaintiff's testimony and that of a defendant called by plaintiff as an adverse witness; and whether the court abused its discretion in refusing to permit certain witnesses of defendants to testify. Rule 38 of this court, which does no more that to reflect the long established practice in this jurisdiction, provides that a party prosecuting an appeal shall present an abstract sufficient to present fully every error relied upon for reversal, (Ill.Rev.Stat.1961, chap. 110, par. 101.38,) and our decisions have made it clear that this duty extends to the inclusion of evidence essential to the disposition of the contentions urged. (Thillens, Inc. v. Department of Financial Institutions, 24 Ill.2d 110, 180 N.E.2d 494; People ex rel. Rose v. Craig, 404 Ill. 505, 189 N.E.2d 409.) Under this rule we would be fully justified in refusing to consider the issue relating to the sufficiency of the evidence, for defendants have presented an abstract which omits completely the testimony of twelve witnesses, (five for plaintiff and seven for defendants,) essential and relevant to such issue. However, because we are committed to a course of avoiding a harsh construction of the rule where possible, (People ex rel. Kunstman v. Nagano, 389 Ill. 231, 237, 59 N.E.2d 96,) and under the circumstance that plaintiff has filed a supplemental abstract substantially overcoming the deficiency, we reluctantly consider such issue.

Certain uncontroverted facts appear from the record. Steve Dempski, Sr., and his wife, Julia, had 10 children, consisting of plaintiff, Marie A. Dempski, and the defendants in this proceeding, four of whom filed no pleadings, whereupon they were defaulted and the complaint confessed as to them. Defendants all married and left home. Plaintiff remained single and lived with her parents until their death. She not only did the housework and ministered to her handicapped parents, but attended to the business needs of their property and helped support the family. She started working at age 14, first as a domestic and then as a factory worker, and had been employed by the American Steel and Wire Company since 1943. Her earnings there were about $3,955 a year and were used to maintain the family. She also gave her parents $1,500 received from an insurance company, which was used to start construction of a house on the rear of their lot, from which they realized some income. Plaintiff's father, Steve Dempski, Sr., had not worked since 1924, when he was injured in an industrial accident. At the time of his death in 1954 his legs were ulcerated from the knees to the ankles and he was blind in one eye. His wife, Julia, died in 1959. She had been handicapped since 1951, when she broke her hip and could walk only with crutches.

The evidence respecting the alleged contract to make a will was conflicting and we see no beneficial purpose to be served by setting it forth in detail. In substance, it was the testimony of the plaintiff, of her sister, Frances Gramacki, who was a party defendant, and of five disinterested witnesses who had known the parents throughout the years, that both Steve and Julia Dempski had promised and represented on numerous occasions that their property would be the plaintiff's if she remained with them, and because she had cared for them and supported them. As opposed to this, several of the defendants denied the existence of a contract between their parents and the plaintiff, while another sister and two disinterested witnesses testified to statements by Julia Dempski indicating a desire that all of the children should share equally in the property at her death. Undisputed evidence shows plaintiff did in fact remain with her parents and furnished nursing and household services and support to an extraordinary degree. Upon a consideration of all of the evidence, and with deference to the jury in its function of resolving the conflicts in evidence and the credibility of the witnesses, we are of the opinion that the existence of the contract and its terms were sufficiently established so as to entitle plaintiff to a decree of specific performance. Cf. Tess v. Radley, 412 Ill. 405, 107 N.E.2d 677.

In denying the existence of a contract to make a will and plaintiff's right to specific performance, defendants principally contend that plaintiff's services were rendered gratuitously and, to sustain their position, advance the rule that where members of a family reside together and some of them render services for others, there is a presumption from the familial relationship that such services were rendered gratuitously without contemplation of wages or other compensation. (Legate v. Legate, 249 Ill. 359, 94 N.E 498; Finch v. Green, 225 Ill. 304, 80 N.E. 318.) That rule, however, does not bar the plaintiff's claim. The presumption may be overcome and the reverse established by proof of an express or implied contract. (Tess v. Radley, 412 Ill. 405, 117 N.E.2d 677; Heffron v. Brown, 155 Ill. 322, 40 N.E. 583.) Here it is undisputed that plaintiff not only rendered care and services far beyond mere gratuities, but also there is credible evidence that her conduct had reference to the promises of her parents to give her their property if she would remain at home and care for them.

As previously noted Frances Gramacki, one of the defendants, was called by the plaintiff as an adverse witness and was permitted to testify, over defendants' objection, to statements of Julia Dempski supporting the plaintiff's position. Defendants now argue that the admission of such testimony was error in that it violated section 2 of the Evidence Act. (Ill.Rev.Stat.1959, chap. 51, par. 2.) That section provides in substance that no party to a civil action or person directly interested should be allowed to testify therein of his own motion, or in his own behalf, when the adverse party sues or defends as the executor, administrator, heir, legatee or devisee. To be within the prohibition the witness must be a party or interested person, must seek to testify of his own motion and in his own behalf, and the adverse party must be suing or defending in one of the enumerated capacities. (Cleary, Handbook of Illinois Evidence, sec. 3.2, p. 22.) In construing the section this court has distinguished between the requirement of 'interest,' and the additional requirement that the testimony must be on the witness's behalf to be within the statutory exclusion. (Keithley v. Stafford, 126 Ill. 507, 18 N.E. 740; Hoffner v. Custer, 237 Ill. 64, 86 N.E. 737; White v. Willard, 232 Ill. 464, 83 N.E. 954; Duffy v. Duffy, 243 Ill. 476, 90 N.E. 697. In the Duffy case, last cited, it was stated at p. 481, 90 N.E. at p. 699: 'It is only when called to testify in his...