Ginsberg v. Ginsberg
| Decision Date | 24 October 1935 |
| Docket Number | No. 23064.,23064. |
| Citation | 198 N.E. 432,361 Ill. 499 |
| Parties | GINSBERG v. GINSBERG et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Nathan C. Ginsberg against Sidney J. Ginsberg and others. From a decree dismissing complaint for want of equity, the complainant appeals.
Affirmed.Appeal from Circuit Court, Kane County; F. W. Shepherd, judge.
Shearer, O'Malley & Sears, of Aurora, and Kayner & Kayner, of Chicago (Fred B. Shearer and Barnabas F. Sears, both of Aurora, of counsel), for appellant.
John K. Newhall and David B. Givler, both of Aurora (Olney C. Allen and David J. Peffers, both of Aurora, of counsel), for appellees.
This case comes before us by appeal from the circuit court of Kane county, in which Nathan C. Ginsberg, the appellant, filed his complaint to contest the will and four codicils thereto executed by Rachael L. Ginsberg. The complaint charged undue influence on the part of the defendants, ‘or one or more of them,’ and also a want of testamentary capacity. The defendants were Golda Stollmack, Ethel G. Brown, Jean H. Waxenberg, Gene Allen Waxenberg, Sidney J. Ginsberg, Mollie I. Ginsberg, and Ruth E. Ginsberg. The last three were also named defendants in their representative capacities as executors and trustees.
The testatrix died in Los Angeles, Cal., January 29, 1933. Excepting Gene Allen Waxenberg, she left the parties to the suit as her children and only heirs at law. Her husband had predeceased her. Her estate was made up of buildings valued, respectively, at $70,000 and $40,000, a homestead worth $5,000, stocks and securities totaling $41,968.25, and household goods, jewelry, and a stock of merchandise worth $12,367.83. She left a going business known as Ginsberg's Department Store. All the property was located in Aurora. She made her will on May 11, 1925, in Aurora. By it she gave to her daughter Mollie Ginsberg the family home, furniture, fixtures, silver, her jewelry, and $15,000. She made Mollie, Jean, and Ruth trustees of the residue of her estate, with power to manage, control, sell, or lease, as they saw fit. The trust was to terminate in twenty years. The only provision made for the appellant was that he should receive one-seventh of the sale price of the real estate located at 8-10 South Broadway. This property was worth approximately $70,000. His share was to be held in trust after such sale and was to be paid to him in ten annual installments, one of which was to be due on January 1 of each year. In the event of his death before payment to him was completed, the unpaidportion was to be divided equally among the remaining six children. The residue of the estate was to be divided equally among the children, with the exception of Nathan. The daughter Ethel's share was charged with the debts due the testatrix from Otto A. Brown, her husband. Any devisee or legatee who sued to contest the will forfeited his legacy or devise, and such legacy or devise was to be added to the residuary estate. By the sixth and last clause the testatrix declared that the inequalities found in the will were not only to be attributed to her own estimate of the needs, service, and desserts of her children, but were also attributable to the wishes of her late husband, Isaac A. Ginsberg.
The testatrix executed the first codicil in Aurora on December 26, 1925. It provided that the share of her daughter Ethel should be revoked if she continued to be the wife of Otto A. Brown. In such event her share was to go equally to the other children, except Nathan.
On September 24, 1926, at Aurora, the testatrix executed the second codicil, by which she altered the first codicil so as to give Ethel one-sixth of the income from the trust estate while she remained the wife of Otto A. Brown. At his death the restriction was removed; but if Otto survived Ethel the income and corpus of her one-sixth of the trust estate was to go to the other children, excepting Nathan.
On February 3, 1931, at Los Angeles, Cal., the testatrix executed the third codicil. By the first of its six clauses she removed her daughter Jean as executrix and trustee and appointed her son Sidney. This clause also gave him an option to purchase the Ginsberg Department Store at whatever price the two remaining executors and trustees should Fix, without the approval of a court. By the second clause Ethel G. Brown was appointed substitute executrix and trustee in the event any of the three named should decline or be unable to serve. The third clause provided that none of the executors and trustees should be required to give bond. The fourth clause provided that if either Jean or Golda brought a suit, action, or proceeding against the testatrix or any or all of her children during her lifetime, for any purpose, reason, or cause whatsoever, such action should constitute an immediate revocation of the entire interest of such daughter or of any one who aided or abetted such action or was responsible therefor. The fifth clause provided that if any person claimed other than by the will he should be cut off with $1.
The fourth codicil was executed in Los Angeles on May 27, 1931. It recited the fact that Jean had brought an action in Illinois to have the testatrix declared incompetent, but that, although deeply grieved thereby, she bore no ill will toward Jean. It set aside the forfeiture which would otherwise have resulted under the fourth clause of the third codicil, but Jean's share was charged with the attorney's fees, costs, and expenses borne by the testatrix in defending the suit.
Isaac A. Ginsberg had been a merchant in Aurora about thirty-five years before he died, on February 13, 1923. By his will he left his property to his widow. She had been suffering from high blood pressure and had not been in good health before Isaac's death. After his death the children, except Ethel and Nathan, lived with their mother. Mollie had charge of the household, did the buying for it, and paid the servant. The mother never went out alone, and was always accompanied by at least one daughter. Sidney, Golda, Jean, and Ruth helped about the store at different times. On one occasion, when Sidney went to California, Nathan had charge of the store. The children were attentive to their mother. On her part, Rachael showed great affection for them, including Nathan, and for his two sons and his wife, Florence. Nathan lived in Chicago and had an established jobbing business in ladies' ready-to-wear. On one occasion the mother cried and complained that the girls were spending too much money remodeling the house, but the daughters had their way despite their mother's protest. The mother talked to the daughters who lived with her about making her will. Ruth made the appointment and accompanied her to the office of the attorney who drew it. In response to Ruth's telephone call, Jean left the store and went to the lawyer's office. Parts, if not all, of the will were read to the mother before she signed it. On one occasion, in 1927, when Mrs. Ginsberg was riding in an automobile in Aurora she saw some old friends on the street. She tried to stand up and was pulled back by the daughters who were with her. The car did not stop. On two or more occasions, when friends were present, the daughters kept their mother from taking part in the conversation by saying, when she attempted to take a part, ‘Mother, never mind about that,’ and the like.
In September, 1930, after an extended absence, Sidney Ginsberg told his mother that he would not return to the department store unless he received $10,000. He gave as his reason for this demand the fact that he had discovered that he was not named as one of the executors by her will. His demands were met, and he took charge of the store.
After Isaac's death the testatrix spent her winters in California. She went there in 1930 and remained until her death. Mollie, Ethel, and Ruth lived with her. About January 1, 1931, Sidney went to California, and next day Golda followed by airplane. On this occasion Nathan took charge of the store at Golda's request. It does not appear whether Sidney was in California on February 3, 1931, when the third codicil was added to the will. Golda met Jean in San Francisco and telephoned her other sisters at Los Angeles, asking that they send a car for her. Instead, two of them came to San Francisco and talked with Jean and Golda. Later, in Los Angeles, Golda and Jean were denied admittance to the apartmentto see their mother. Golda saw her mother at a doctor's office when the mother went there for treatment. On leaving the doctor's office Golda fought her way into the automobile, and had further argument with Mollie, Ethel, and Ruth at the mother's apartment. No connection is shown between these untoward happenings and the will or any of the four codicils. Shortly thereafter Golda was married, and before going on a trip with her husband she went to the apartment building and saw Ruth and Ethel in the lobby but was not permitted to see her mother. After Jean and Golda returned to Aurora, Sidney left the Ginsberg home and would not speak to them.
The court refused to admit testimony as to statements made by various appellees showing ill feeling toward Nathan's wife, Florence. Conversations were excluded which showed that shortly before the will was made those daughters living at home were opposed to Nathan being remembered in the will or to Florence being indirectly benefited by it. It excluded conversations with reference to Jean and Golda's efforts to see their mother in California early in 1931 and what was said during the disturbance at the apartment building when Golda forced an entrance. Conversations were excluded which took place when Golda attempted to see her mother and introduce her husband and when she attempted to see her mother to tell her good-bye before leaving for China. Objection was sustained to Golda's testimony as to the contents of a telegram purporting to have been sent by Sidney to Sol...
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