Freese v. Freese
| Decision Date | 27 June 1977 |
| Docket Number | No. 13947,13947 |
| Citation | 7 Ill.Dec. 692,364 N.E.2d 983,49 Ill.App.3d 1041 |
| Parties | , 7 Ill.Dec. 692 Floyd Herschel FREESE, Plaintiff-Appellee, v. Charles McClure FREESE, Vella Marie Bryant, Charles McClure Freese, as Trustee under the Last Will and Testament of George W. Freese, Deceased, State Bank of Arthur, Arthur, Illinois, as Successor Trustee under the Last Will and Testament of George W. Freese, Deceased, Charles McClure Freese, as Executor of the Last Will and Testament of George W. Freese, Deceased, Howard Lee Freese, and James Stephen Freese, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
James M. McLaughlin, Sullivan, Harrison J. McCown, Tuscola, for defendants-appellants.
Owen, Roberts, Susler & Taylor, Decatur, Elder & Elder, Sullivan, for plaintiff-appellee.
This appeal grows out of litigation surrounding the disposition of the estate of George Freese, deceased. The plaintiff, Floyd Freese, is the brother of defendants Charles Freese and Vella Marie Bryant. Other named defendants are not involved in this appeal.
In 1957, George Freese and his wife Katie, made mutual wills which contained, except as to gender, the following identical clause:
"It is understood by me that a Will is being made on this same day and date by my beloved wife (husband), disposing of her (his) property and that it is understood by both of us that this Will and her (his) Will are to be considered as reciprocal and mutual as the plan we have mutually made for the disposition of all of the property owned by us and each of us and the division of same between our children."
It is apparent from a reading of both wills that George and Katie Freese desired an equal division of their property between their four children. The residual clauses provided for equal division. The home owned by Katie was devised to George, or, in the event of his prior demise, was to pass by the residual clause of her will. Forty acres owned by Katie was devised to her daughter Vonna in fee simple. George's will provided that the 120 acres of farmland owned by him was to be divided into shares of 40 acres each and one share each was devised to Floyd, Charles and Vella for their lives with the remainder over to the heirs of their bodies.
Katie died in 1966 and the provisions of her will were carried out. She was followed in death by her daughter Vonna in 1968. It is unknown by this record what disposition was made of the 40-acre tract Vonna had inherited, but she died a childless spinster.
In 1972, George made a new will, giving 40-acre tracts each to Charles and Vella in fee simple. Floyd's legal life estate was changed to an equitable life estate and his 40-acre tract was devised to Charles in trust for Floyd. Spendthrift provisions were included in this trust. The provisions of the residuary legacy were not altered from the 1957 will. Before his death in 1974, George made a gift of the proceeds from the sale of the house he inherited from Katie to Charles and Vella. Further, he made cash gifts of $20,000 to Charles and his spouse and $20,000 to Vella and her husband. George also opened a joint bank account with Charles and Vella as joint tenants. This account contained $16,771.84 at George's death.
Following the death of his father, Floyd Freese sued his brother Charles and sister Vella for specific performance of the 1957 mutual wills of his parents and for an accounting by the defendants of the gifts their father made to them before his death. The complaint also sought the imposition of a trust over such funds for the joint and equal benefit of the three living children of George and Katie Freese. Plaintiff's theory is that George could not change the dispositive provisions of his will following Katie's death in 1966 and that the gifts made to Charles and Vella were a fraud on his rights under the 1957 wills.
The trial court found that George and Katie had entered into a contract to dispose of all the property owned by them, that the contract was to treat each child equally, that the contract became irrevocable on Katie's death, that George made testamentary transfers before his death in breach of that contract and that George's 1972 will altered Floyd's interest in the real estate. The court ordered specific performance of the contract, an accounting, and imposed a constructive trust on the monies received by Charles and Vella. The defendants appeal and we affirm.
A contract can be established from the terms of a will or wills, the circumstances of the testator, treatment of the testator's assets as a common pool or testimony as to what the testator's intention was (Bonczkowski v....
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