Fitzgerald v. Daly

• Decision Date: 20 June 1918
• Docket Number: No. 12094.,12094.
• Citation: 119 N.E. 911,284 Ill. 42
• Parties: FITZGERALD v. DALY et al.
• Court: Illinois Supreme Court

284 Ill. 42

119 N.E. 911

FITZGERALD

v.DALY et al.

No. 12094.

Supreme Court of Illinois.

June 20, 1918.

Appeal from Circuit Court, Cook County; Frederick A. Smith, Judge.

Suit by Florence M. Daly and others against Mary Daly Fitzgerald, whose husband, Richard Fitzgerald, was appointed her guardian ad litem. Decree for plaintiffs, and defendant appeals. Affirmed.Joseph P. Mahoney, of Chicago, for appellant.

Jay Clifford McCally, of Chicago, for appellees.

CARTWRIGHT, J.

This appeal is from a decree of the circuit court of Cook county ordering title in fee simple in the appellees, Florence M. Daly and Irene M. Daly, to lot 88, in block 1, of Sampson & Greene's addition to Chicago, to be registered. The appellant, Mary Daly Fitzgerald, was made a defendant, and, being insane, her husband, Richard Fitzgerald, was appointed her guardian ad litem and answered, committing her rights and interests to the protection of the court and claiming title in her by virtue of a deed from Joseph B. Daly. The examiner of titles found and reported that there was no competent evidence that the deed was delivered and recommended that it should be removed as a cloud upon the title of the appellees. The court confirmed the report and entered a decree accordingly.

On March 9, 1899, Joseph B. Daly, the owner of the lot, while at the home of his sister, the appellant, Mary Daly Fitzgerald, made and acknowledged a warranty deed of the same to her. The deed was in the possession of Henry D. Schumacher, the notary public who drafted it and took the acknowledgment, from the time when it was made until 18 months after the death of the grantor, when it was obtained from him by Richard Fitzgerald and recorded. On January 17, 1907, Mary Daly Fitzgerald was adjudged insane and has so remained since that time. About 8 years after making the deed Joseph B. Daly on February 27, 1907, executed his last will and testament, containing the following devise of the lot:

‘Second. I give, devise and bequeath to my beloved brother, Matthias B. Daly, the property known as No. 533 West Thirteenth street, Chicago, Illinois, or lot eighty-eight (88), in block one (1), in Sampson & Greene's addition to Chicago, to have and to hold in fee simple, provided the said Matthias B. Daly shall survive me ten years, but should the said Matthias B. Daly die before the lapse of ten years after my death, I give, devise and bequeath the said property to his son, Matthias B. Daly, Jr., to have and to hold the same in fee simple.’

Joseph B. Daly died on August 2, 1907, leaving as his heirs at law his three sisters, Catherine B. Daly (known as Sister Bernice), Mary Daly Fitzgerald (the appellant), and Eliza J. Hanlon, and his brother, Matthias B. Daly, to whom the said lot was devised in fee simple provided he should survive the testator ten years. Matthias B. Daly, Jr., died on August 27, 1907, intestate, leaving his father, Matthias B. Daly, and his sisters, Florence M. Daly and Irene M. Daly, his heirs at law. Matthias B. Daly did not survive the ten-year period but died on November 16, 1910, leaving as his heirs at law his daughters, the appellees, Florence M. Daly and Irene M. Daly, who claimed title as heirs at law of their brother, Matthias B. Daly, Jr., and their father, Matthias B. Daly.

The deed was prepared for execution by Henry Schumacher, a notary public, who took directions from Joseph B. Daly and went to the home of the appellant, where it was signed and acknowledged by the grantor in the presence of the appellant and her husband. The husband, Richard Fitzgerald, gave testimony tending to show that the deed was delivered by pushing it across the table to the appellant and then delivering it to Schumacher for safe-keeping, with an agreement that it should not go on record until after the grantor was dead. The appellees were suing as heirs at law, and the husband of the appellant was...