Gladville v. McDole

• Decision Date: 08 December 1910
• Parties: GLADVILLE v. McDOLE et al. McDOLE v. SMITH et al.
• Court: Illinois Supreme Court

247 Ill. 34

93 N.E. 86

GLADVILLE

v.McDOLE et al.

McDOLE

v.SMITH et al.

Supreme Court of Illinois.

Oct. 28, 1910.

Rehearing Denied Dec. 8, 1910.

Appeal from Circuit Court, Moultrie County; W. G. Cochran, Judge.

Two suits, one by John McDole against Flora Smith and others, the other by Eva Gladvill against John McDole and others, were consolidated, and from the decree said Gladville appeals. Reversed and remanded, with directions.

E. J. Miller, for appellant.

John E. Jennings and W. K. Whitfield, for appellees.

CARTWRIGHT, J.

John McDole, brother of Phebe Jester, deceased, and one of her heirs at law, filed his bill in the circuit court of Moultrie county against her nephews, nieces, and grandchildren for the partition of a tract of land containing [247 Ill. 36]39 acres, of which she held the legal title at the time of her death. Eva Gladville, one of the nieces. filed her bill in the same court against the other parties for the specific performance of an alleged verbal agreement with John P. Jester, deceased, when he held the legal title to the land, to which agreement Phebe Jester was also a party, by which said Eva Gladville was to have the property after their deaths in consideration of personal services rendered to them. The causes were consolidated, and the evidence was taken before the master in chancery. The consolidated cause was heard by the court on such evidence and the depositions of witnesses, and the court dismissed the bill of Eva Gladville without prejudice to her right to proceed to recover compensation for her services rendered under the contract, found in favor of a mortgagee who held a mortgage for $300 on the land and who filed a cross-bill, and found in favor of the complainant, John McDole, on his bill for partition. By the decree partition was ordered, and Eva Gladville prosecuted her appeal to this court.

Eva Gladville, one of the defendants in the bill for partition and complainant in the bill for specific performance, and her husband, testified before the master, and objection was made to their testifying. On the hearing the court did not make any ruling as to their competency, and, so far as appears, considered their testimony; but they were disqualified by the fact that the other parties were prosecuting and defending as heirs at law of Phebe Jester. Eva Gladville and her husband were not competent witnesses, and their testimony will not be considered in this court. Heintz v. Dennis, 216 Ill. 487, 75 N. E. 192. There were some other minor objections to testimony which it will not be necessary to notice in detail.

The facts shown by competent evidence are as follows: When Eva Miller (now Eva Gladville) was 10 years old, her mother died and her father married again. She was a niece of Phebe Jester, wife of John P. Jester, and when she was 11 years old they took her to their home. They then then had a son about two years younger than Eva, and she lived with them, working about the house and place, going to school a very little-enough to learn to read and write-and when she was 18 years old the son died. John P. Jester and his wife were very religious people and were exceedingly strict with Eva. They took her to church and Sunday school, but objected to her having any social plasures or going in company with other young people. She was quite unhapply about the restrictions, especially when she was invited by neighbors, and on one occasion when she had assisted in getting up a social affair. That was in 1887, after the death of the son, and John P. Jester then proposed to her that, if she would stay with them and conform to their views about going out in company and to social gatherings until she should be married, she should have all their property after they died. She agreed to the proposition, and Phebe Jester was a party to it equally with her husband. The agreement was clearly proved by disinterested witnesses about whose testimony there can be no suspicion whatever, and for the next 10 years, until Eva was 28 years old and was married, she conformed in every respect to the agreement. Mrs. Jester was a frail woman, in ill health, and confined to her bed frequently, and Mr. Jester was not in good health. The land was hilly clay land, with about 10 acres of river bottom subject to overflow, and it was not valuable land, although it has advanced considerably in value, and the improvements were poor. Eva did the housework, with no assistance except occasional help in emergencies, milked the cows, made the garden, carried in the wood and kindling and frequently chopped the wood, worked in the field, planted corn, hoed corn, shocked wheat, drove the harrow, worked in the hayfield, and filled the place of a regular hand on the farm. The doing of the housework was worth from $3.50 to $4 a week, and she had an opportunity to work out at housework at $3.50 per week but did not do so because of her contract. Including the outside work and farm work, her services were worth from $5 a week to $1 a day for the 10 years, and it would have been practically impossible to secure for any price one who would do the same work and forego all social pleasures and the company of young people. John P. Jester did not like to have Eva have any company, and said he was afraid if she got to going with the boys she would get married and leave them, and they needed her help. She had some means of her own from her mother's estate, which was probably not very much; but she let Mr. Jester have it, and he paid her some interest, which she expended for clothes whenever she wanted anything extra in that line. She was married in 1897. Soon after her marriage she was sent for and stayed with the Jesters four weeks, and afterward assisted them in sickness at frequent intervals, staying there one or two weeks at a time. Neither Mr. Jester nor Mrs. Jester was in good health, and after the marriage the husband of Eva Gladville bought shingles, which he gave, and be with others put them on the house, donating the work. There was no objection to the marriage; but Mr. Gladville had a habit of drinking intoxicants, and whenever he got drunk Mr. Jester would worry and talk about fixing the land so that Eva and her children would have it and her husband could not ‘run through with it.’ Both Mr. and Mrs. Jester stated the contract to other people, and after children were born to Eva they sometimes said that she and her children were to have the land, or that they wanted her and her children to have it; but there is not a particle of doubt of the nature of the contract, or that she was to have the property if she performed it on her side. When the contract was made, she had no children and did not contemplate marriage, and nothing was said about children or the possibility of children. She continued after her marriage to do everything for the Jesters that she could, althoughnot specified in the contract, and when they were sick and she was wanted she went to their home and stayed there, doing the work at different times without any compensation, so long as they lived. John P. Jester undoubtedly entertained the belief that he could provide that the property should go to Eva and her children, and he made a number of wills and a codicil, which were either not executed or were revoked by cutting out his signature, the general effect of which was to devise the property to his wife for her life, with remainder to Eva Gladville and her children or in trust for her children. When the codicil was written, his direction was to have it so that the husband of Eva could not dispose of the land and so that it would go to her and her children, and he said that he had a contract with Eva before she was married to leave her the property and she had performed her part of the contract. On March 30, 1907, he executed a warranty deed to his wife, Phebe Jester, of the land, with provisions that he should have full control of it during his life, and if he survived his wife the land should revert to him. His wife did not join in the deed and it did not release his homestead. Ten days after making that deed he died, and a will made by him was admitted to probate by which he gave all the property to his wife for life and then to be disposed of by her in any way or manner she might see fit to dispose of it. The widow, Phebe Jester, occupied the premises something less than a year and died intestate on February 10, 1908. Phebe Jester frequently...