Fleming v. Dillon

• Decision Date: 08 February 1939
• Docket Number: No. 24880.,24880.
• Citation: 370 Ill. 325,18 N.E.2d 910
• Parties: FLEMING et al. v. DILLON et al.
• Court: Illinois Supreme Court

370 Ill. 325

18 N.E.2d 910

FLEMING et al.

v.DILLON et al.

No. 24880.

Supreme Court of Illinois.

Dec. 19, 1938.

Rehearing Denied Feb. 8, 1939.

Appeal from Circuit Court, McLean County; Chalmer C. Taylor, judge.

Suit by Carrie B. Fleming and another against Jessie Dillon and others, heirs of Marshall A. Brown, deceased, for specific performance of alleged contract by Brown to devise property to complainants. From a decree for complainants, defendants appeal.

Affirmed.J. F. Sturgeon, of El Paso, and Whitmore & Whitmore, of Bloomington, for appellants.

Martin, Hoose & De Pew, of Bloomington, for appellees.

WILSON, Justice.

Carrie B. Fleming and Leota Dee Gates filed in the circuit court of McLean county a complaint against Jessie Dillon and others, heirs of Marshall A. Brown, deceased, for the specific performance of an alleged oral contract between Brown and the complainants, whereby the former, in consideration of the care and services to be rendered by the complainant Carrie B. Fleming to Brown during the remainder of his life, would devise and bequeath his land and personal property to the complainants. The complaint alleges that the complainant Carrie B. Fleming performed her part of the agreement but upon the death of Brown the complainants were unable to find a will executed by him. The prayer of the complaint is that the heirs of Brown, the defendants in this case, be required to perform the contract, or upon their failure to do so the master in chancery of the court be directed to make and execute the proper conveyances and that such further relief as equity might require be granted.

Certain of the defendants answered the complaint, admitting some of the allegations, neither admitting nor denying others, but denying that the complainants are entitled to have the conveyances made as requested in the complaint. A separate defense averred in the answer is that the alleged agreement is contrary to the Statute of Frauds and Perjuries, Ill.Rev.Stat.1937, c. 59, § 1 et seq. Another defense presented is that the complainants had filed a claim against the estate of Brown and, by so doing, disaffirmed the alleged agreement and elected to pursue an inconsistent remedy in the probate court of McLean county. Oral testimony and depositions were heard and considered by the master in chancery. He made a report of the evidence and recommended a decree in accordance with the prayer of the complaint. The court approved and confirmed the master's report and entered a decree in favor of the complainants. The defendants have prosecuted this appeal.

Marshall A. Brown, a bachelor, was for many years a resident of the city of Normal, in McLean county, and owned considerable land and some personal property. In the later years of his life he was not actively engaged in business but supervised his farms. In 1892, he moved to the home of a brother, Maurice Duett Brown, in Normal, and about that time or some time afterward purchased the house occupied by his brother. Maurice Brown died in 1909, leaving Effie Brown, his widow, in the possessionof the home. Marshall A. Brown continued to live at the same place with Effie Brown and her two daughters, Carrie and Leota, who were afterward married and are the complainants in this suit. In 1915, Carrie Brown took a position as teacher, and was thereafter away from the family home during school-years. In 1917, Leota married and moved to Pennsylvania. Effie Brown died in 1919. About that time Carrie Brown discontinued teaching and remained in the home with Marshall A. Brown, as housekeeper. She married Birney Fleming in 1922, and she, her husband and Brown thereafter resided together in the house owned by Brown until he sold it in 1934, when they all moved to a house in Normal owned by Birney Fleming, and Carrie B. Fleming continued to perform the housework, with occasional help, until Brown's death on February 3, 1936, at the age of eighty-six years. The evidence discloses that Carrie B. Fleming assisted Brown in his business matters with tenants and others, and because of kidney and prostate trouble he required additional care, especially with respect to his clothing. After the marriage of Carrie B. Fleming bills for the home were charged to and paid by Birney Fleming, with the exception of a few bills which Brown paid. It also appears from the evidence that Brown had borrowed money from the complainants and their mother, a more detailed account of which is hereafter recited, and this was never repaid.

A number of witnesses on behalf of the complainants testified with respect to the care and attention given by Carrie B. Fleming to Marshall A. Brown, and about conversations in which Brown acknowledged that, because of such services, he had arranged to leave his property to Carrie and Leota, the complainants. At least thirty of these witnesses testified that Brown stated to them (though in different forms of phraseology) that he had either made a will for the benefit of the girls, meaning Carrie and Leota, or had provided for them, and specifically mentioned two farms which would be theirs upon his death. In one conversation Brown stated that he had other nieces than Mrs. Fleming and Mrs. Gates but that they never visited him unless they wanted something, and that Carrie and Leota were the only ones to whom he intended to leave his property. One witness testified that, at the request of Brown, the former witnessed an instrument at the First National Bank of Normal in 1919. Brown signed the instrument and said it was his will. Another person, whose name the witness did not remember, also witnessed the instrument. Brown had a safety deposit box at the bank. After his death a thorough search for the will was made but none was found.

The testimony is voluminous and it is unnecessary to set it forth in further detail. It is sufficient to say that upon the question of the care and services rendered by Carrie B. Fleming, and the statements of Marshall A. Brown that he had provided in his will for the complainants, the testimony of many persons, professional, business and social acquaintances of Brown and the complainants, preponderates greatly in the complainants' favor. There is nothing to cast doubt upon the credibility of these witnesses and their testimony is practically undisputed. Carrie B. Fleming was administratrix of the estate of Marshall A. Brown. It is admitted that the complainants filed claims in the probate court of McLean county against the estate, but Carrie B. Fleming testified that she filed her claims upon the advice of her attorney, as a legal precaution and protection to her, because a bill could not be filed to secure a determination of the issues here involved prior to the expiration of a year from the date of the issuance of letters of administration. One of the claims of Carrie B. Fleming was for ‘board, room, washing, personal care and attention of the deceased (Brown) during five years preceding his death, $7950.’ Carrie B. Fleming and Leota Dee Gates, each separately filed claims against the estate for $3060, based upon two promissory notes, each for $2700, dated June 28, 1934. The same claimants filed a joint claim against the estate based upon a promissory note for $1666.66, dated June 28, 1918, payable to the order of Effie H. Brown and signed by M. A. Brown. Certain proceedings in the probate court to the latter part of November, 1937, appear in the record, but there is no evidence of a final disposition of the claims in question. This suit was instituted on May 21, 1937.

It is contended that the complainants are precluded from maintaining their suit for specific performance by their prior election to pursue...