Freymark v. Handke

• Court: Illinois Supreme Court
• Writing for the Court: MAXWELL
• Citation: Freymark v. Handke, 114 N.E.2d 349, 415 Ill. 360 (Ill. 1953)
• Decision Date: 20 May 1953
• Docket Number: No. 32578,32578
• Parties: FREYMARK et al. v. HANDKE et al.

Page 349

114 N.E.2d 349

415 Ill. 360

FREYMARK et al. v. HANDKE et al.

No. 32578.

Supreme Court of Illinois.

May 20, 1953.

Rehearing Denied Sept. 21, 1953.

Edward H. Enright and Herman Herson, Chicago, for appellants.

John P. Derning and Otto M. Hamer, Chicago (Charles D. Snewind, Chicago, of counsel), for appellees.

MAXWELL, Justice.

This is an an appeal from a decree of the superior court of Cook County wherein plaintiffs' complaint seeking certain equitable relief was dismissed. Plaintiffs and defendant Otto F. Handke are the surviving children of the decedent, Dr. Otto K. Handke. Dr. Handke died June 7, 1943, at the age of 78. All the sisters have joined as plaintiffs in a suit seeking to set aside a certain deed, three notes and two trust deeds; other relief requested was for discovery, accounting and partition of other real estate.

Three parcels of real estate are involved herein: Parcel No. 1, located in River Forest, is a brick residence built by the doctor in 1923; at the time of his death this parcel was encumbered by an $8,500 mortgage and also a junior mortgage for $3,500 made by the doctor April 1, 1943, and delivered to his son; a probate court sale in 1947 brought $24,000 for this parcel. Parcel No. 2, located in Forest Park, consisted of a two-story brick building and a one-story building; the doctor purchased this parcel for $5,000 in 1998; it had two stores, and an apartment which was occupied by him as his office and residence until 1924; he encumbered this parcel with a $25,000 mortgage in 1927, which was regularly reduced to $15,520 in April 1942; March 8, 1943, the doctor conveyed it to his son and wife. Parcel No. 3, located in River Forest also, was purchased by the doctor and his son in 1924; as tenants in common they improved it with a filling station and store buildings; on an original price of $30,000 the down payment was $12,500 in cash and it was mortgaged for the balance of $17,500. The parties stipulated that as to this last parcel one half was owned by plaintiffs and the other half was owned by their brother and his wife, the defendants. A $5,500 junior mortgage on parcel No. 3 was cancelled in 1946 when the son and his wife completed payment to a certain bondholder on parcel No. 2.

Plaintiffs alleged that their father was in ill-health, suffering from senility and infirmity due to advanced age, arteriosclerosis and uremic poisoning, and was unable to comprehend or transact business matters for a period of a year prior to his death, and that during this time his son took care of all his business. The son is charged with making misrepresentations to the father while a confidential relationship existed and while he was acting in a fiduciary capacity. It is charged that he thereby acquired title to parcel No. 2 without consideration, and also obtained without consideration a note made by the son to the father, having a balance due in the amount of $3,200.91, and it is further charged that the father also executed and delivered a note and mortgage on parcel No. 1 for $3,500 to his son. The amended answer denied the charges of the father's incompetency, the existence of a fiduciary relation, fraud and undue influence. Defendants, further answering, alleged good and sufficient consideration for all the transactions involved and charged plaintiffs with laches.

The decree, in confirming the master's report, found that neither fraud, breach of fiduciary relationship nor incompetency of the deceased was established; that the conveyance of parcel No. 2 was supported by good and valuable consideration that also benefited plaintiffs; that plaintiffs knowingly stood by for six years and permitted defendants to expend large sums of money in improvements on this parcel. As to the points in issue the complaint was dismissed for want of equity. Plaintiffs now urge in this court that the lower court's decree is based on erroneous conclusions as to the law involved and upon erroneous factual findings. Appellants, Evelyn Freymark, Edna Ketelhut, Alfreda Bolduan, and Irene Hansen are herein referred to as plaintiffs, and appellees, Otto F. Handke and Catherine S. Handke, as defendants.

Plaintiffs attempt to create a fiduciary relationship between the father and son based on the fact that at one time there existed an oral partnership arrangement between them respecting parcel No. 3. The evidence clearly revealed that this arrangement was terminated by a written dissolution of partnership. Nor is the blood relationship of any consequence as to this issue. A fiduciary relationship between parent and child does not exist as a matter of law, but must be established by evidence. O'Malley v. Deany, 384 Ill. 484, 51 N.E.2d 583. It is apparent that the aged father here was not under the domination of his son; in fact he lived with one of the plaintiffs for five years preceding his death. He also consulted with other persons concerning the transactions concerning parcel No. 2 shortly before his death. Plaintiffs insist that the collection of certain rents by the son created a principal-and-agent relationship and this in law made him a fiduciary. This conclusion is not based on the evidence in this case. It is also claimed that by original answer defendants admitted fiduciary relationship. The amended answer denied existence of unlimited confidence and denied that the legal concept, fiduciary relationship, existed. It is fundamental that the filing of an amended pleading operates as an abandonment of the original pleading it supersedes. Board of Education of Cicero-Stickney Township High School, High School Dist. 201 v. City of Chicago, 402 Ill. 291, 83 N.E.2d 714. It is also noteworthy that a reading of the original answer does not admit of the conclusion plaintiffs attach to it and therefore the original verified answer does not amount to an admission within the rule announced in Blakeslee v. Blakeslee, 265 Ill. 48, 106 N.E. 470. It became incumbent on plaintiffs to prove the existence of the alleged fiduciary relationship by clear and convincing evidence. McGlaughlin v. Pickerel, 381 Ill. 574, 46 N.E.2d 368. This plaintiffs have failed to do.

Certain charges of fraud are made concerning the...