Fitzgerald v. Allen

• Decision Date: 23 April 1909
• Citation: 88 N.E. 240,240 Ill. 80
• Parties: FITZGERALD et al. v. ALLEN et al.
• Court: Illinois Supreme Court

240 Ill. 80

88 N.E. 240

FITZGERALD et al.

v.ALLEN et al.

Supreme Court of Illinois.

April 23, 1909.

Error to Circuit Court, Greene County; James A. Creighton, Judge.

Bill by Martha J. Fitzgerald and others against George W. Allen and others to cancel a deed. Defendants had a decree, and plaintiffs bring error. Affirmed.

Vaughn & Chapman, for plaintiffs in error.

Rainey & Jones and Thomas F. Ferns, for defendants in error.

CARTER, J.

This was a bill filed in the circuit court of Greene county by some of the heirs at law of Elisha W. Allen to set aside a deed made by said Allen to his son George W. Allen, one of the defendants in error. Two of the other children of Elisha W. Allen were made defendants along with George. The complainants also asked for partition of the premises among all the heirs. As the bill was finally amended and passed on by the chancellor, the deed is sought to be set aside on the ground of undue influence, lack of mental capacity, want of consideration, and want of proper delivery. The case was referred to a master in chancery, and a large amount of evidence taken, making a record of something over 2,000 pages. On a hearing the trial court entered a decree dismissing the bill for want of equity. The case was thereafter brought to this court by writ of error.

The circumstances connected with the making of the deed, as detailed by the attorney who drew it, were substantially as follows: July 20, 1903, Elisha W. Allen came, with his son George, to the law office of Henry T. Rainey, at Carrollton, and stated that he wished to convey to George his farm. At the attorney's request George Allen left the building and went down on the street, and was not present at any of the further business that day until he was called in during the afternoon to sign the acceptance hereafter referred to. Elisha W. Allen then explained to Mr. Rainey that he desired to convey the farm and other real estate and personal property to George, and wanted George to agree to make certain payments to the other heirs at Elisha's death. After taking down the data, Mr. Rainey instructed Mr. Allen to go to Dr. Burns and ask as to his (Allen's) mental condition, which he did. Mr. Rainey drew up the deed in question from the descriptions in tax receipts and other information furnished by Mr. Allen, and also dictated to his stenographer an instrument concerning the personal property and other matters, referred to later. When Elisha W. Allen returned, the documents were read to him and their contents explained, and he acknowledged them before A. Connole, notary public and justice of the peace. Thereupon Mr. Rainey, at Mr. Allen's request, burned a will that the latter had executed two or three years before that time. The two papers were afterwards sealed in an envelope by the witness and placed in a safe in a package of wills. During the afternoon of that day Mr. Rainey met George Allen on the street and asked him to come to the office and sign an acceptance of the terms of the instrument, which George did. Thereafter Mr. Rainey, who was Congressman from that district, explained to his law partner, Mr. Jones, that if Mr. Allen should die while Mr. Rainey was at Washington Mr. Jones should deliver the deed to George Allen. Elisha W. Allen did die while the Congressman was at Washington, and Mr. Jones, under the written directions from his partner, delivered the deed. Dr. Burns, to whom Mr. Allen went to inquire as to his mental condition before signing the deed, testified that he had treated him from about 1899 until shortly before his death for various troubles, that Mr. Allen came to his office on the day in question and stated that he was about to transact some important business, and asked if the doctor thought his mental condition was such that he could properly do it. The doctor then said he thought he was capable of attending to the business, and he testified at this trial that he was still of that opinion. Connole, who took the acknowledgment of the deed and witnessed the other instrument, testified that they were read and explained to Mr. Allen in his presence, that he had known Allen several years before this transaction and that he was at that time competent to transact his ordinary business-that he ‘seemed to be all right.’

The deed from Elisha W. Allen to George W. Allen was dated July 20, 1903, and conveyed and warranted, for a consideration of $1 and other good and valuable consideration, about 390 acres of land and a house and lot in the village of Kane, all in Greene county. It was recorded November 21, 1905. It appears that the home farm consisted of about 160 acres of good land, valued at from $90 to $100 per acre, and a farm on the bottoms of Macoupin creek of some 230 acres, valued at about $40 per acre. The village property was that bought for his widowed daughter, Mrs. Gibbons, hereafter referred to. By the other instrument, executed in conjunction with the deed, Elisha W. Allen conveyed to his son George W. Allen all his personal property, with the understanding that a personal transfer was made ‘so as to render a formal bill of sale unnecessary.’ The instrument also recited the revocation, by burning, of the former will, and directed that said George W. Allen, at the maker's death, should pay to MattieFitzgerald, Fannie Race, Julia Gibbons, Anna Woolsey, daughters, and Goldie Allen, granddaughter, each $500 in cash, and that he also convey to Julia Gibbons the house and lot in Kane, and that he pay to Alvin Allen $1,000 and also give him a good wagon and team and a good set of double harness. In relation to the deposit of the deed in escrow this instrument states as follows: ‘And I have this day executed to my said son George W. Allen a warranty deed, conveying to him, in fee simple, all my real estate, and I have deposited said deed in escrow with Henry T. Rainey, of Carrollton, Illinois, to be by him delivered to my said son George W. Allen at my death, and I hereby certify that I have relinquished all control over said deed so deposited with said Henry T. Rainey, and I fully understand that I cannot revoke the same in any manner nor recall the same in any manner from the possession of the said Henry T. Rainey, even if I should at any time in the future desire so to do.’

The agreement signed by George Allen reads as follows: ‘In consideration of the fact that my father, Elisha W. Allen, has this day deeded to me all his real estate, consisting of about 390 acres of land, together with the house and lot in Kane, Illinois, belonging to him, said deed being deposited in escrow with Henry T. Rainey, of Carrollton, Illinois, to be by him delivered to me upon the death of my said father; and whereas, he has to-day transferred to me all of his personal property absolutely: Now therefore I, on my part, agree to provide my father with all the comforts, care and attention to which he has been accustomed for the remainder of his natural life, and I agree in all respects to fully provide for my said father, and I fully agree to carry out directions as to payments, etc., to heirs, this day contained in memorandum signed by my father.’

Elisha W. Allen was a farmer and had lived practically all his life in Greene county. He had seven children, who grew to adult age. One son, John F. Allen, called ‘Dud,’ died about 1900, leaving a wife and daughter, Goldie. Elisha W. Allen's wife died June 29, 1903, about three weeks before he executed the deed in question. He himself died November 15, 1905, aged about 74 years, leaving as his heirs his granddaughter, Goldie, and his four daughters and two sons mentioned in the agreement. Mrs. Gibbons' husband was dead, and the other three daughters were married and living in the vicinity of their father's place. George Allen was a bachelor, about 40 years old at the time of this hearing, and had always lived on the farm in question. The evidence, as has been stated, is voluminous, and it is impossible within proper limits to designate in detail all of the matters upon which plaintiffs in error base their claim of undue influence and lack of mental capacity as affecting the deed in question. In 1892 Mr. Allen was found by his sons down by or in a brook that flowed through the farm, and it was claimed that he intended to commit suicide. The same year he attempted to cut his throat during the night with a small potato knife, inflicting a wound about three inches long in the neck. A doctor was called, who sewed up the wound, and several neighbors came in to assist and watch Mr. Allen to see that he did himself no further harm. Shortly after this incident, by the advice of Dr. Proctor, who was attending Mr. Allen, and that of Dr. Carriel, an expert on insanity who was called into consultation, it was decided that Mr. Allen should be sent to an asylum. He was taken to the county seat for a hearing, but on account of the fact that the county judge lived in another town and could not get there that day the matter was postponed, and in the meantime, by reason of the objections of some member or members of the family, it was decided to keep their father at home. It was agreed, however, that strict watch should be kept on him by members of the family to see that he did not again attempt suicide. It was testified to that he purchased, on several occasions, short bits of rope, and that they were taken away from him, and that a check-rower rope was also hid to prevent his cutting pieces from that, apparently through fear that he would hang himself. It was also testified to that Mr. Allen in 1892 was continually stating that he was going to starve to death for want of means to buy food, and there is some evidence tending to show that he made such statements for a time thereafter. In the fall of 1903, and again in 1904, Mr. Allen was apparently lost on his own farm not far from the house, and on a searching party being sent out he was found and brought home. It was testified to,...