Heineman v. Hermann

• Decision Date: 17 January 1944
• Docket Number: No. 27457.,27457.
• Citation: 52 N.E.2d 263,385 Ill. 191
• Parties: HEINEMAN v. HERMANN et al.
• Court: Illinois Supreme Court

385 Ill. 191

52 N.E.2d 263

HEINEMAN

v.HERMANN et al.

No. 27457.

Supreme Court of Illinois.

Nov. 19, 1943.

As Modified on Denial of Rehearing Jan. 17, 1944.

Suit for partition by Mary Heineman against Anna Hermann and others, wherein V. Phelan filed a counterclaim praying that real estate involved be impressed with a resulting trust in favor of counterclaimant. From a decree for counterclaimant, the plaintiff appeals.

Reversed and remanded with directions.Appeal from Circuit Court, Madison County; D. H. Mudge, judge.

DuHadway & Suddes, of Jerseyville (G. R. Schwarz, of Jerseyville, of counsel), for appellant.

Jacoby, Patton Manns & Coppinger, of Alton (John F. McGinnis, of Springfield, of counsel), for appellee.

SMITH, Chief Justice.

This is an appeal from a decree of the circuit court of Madison county. Appellant, Mary Heineman, filed the complaint for partition of certain property located in Madison county.

It was alleged in the complaint that Julius Heineman was the owner of the property at the date of his death, which occurred on November 4, 1937; that he left surviving, as his only heirs, appellant, Mary Heineman, his widow, two brothers and a nephew. There is no controversy in the record as to the heirship. It was further alleged in the complaint, that upon the death of Julius Heineman, Mary Heineman, his wife, inherited a one-half interest in the property, in fee; that she had a dower interest in the other one-half, which descended to the brothers and nephew, subject to the dower rights of the widow. It was further alleged that on May 5, 1929, appellee, Anna Hermann, acquired title to the interests in said property which descended to the heirs of Julius Heineman other than his widow. It was then alleged that by virtue of the death of Julius Heineman and the execution of the deed to Anna Hermann, appellant, Mary Heineman owned a one-half interest in the property, in fee, and a dower interest in the remaining one-half; that Anna Hermann was the owner of said remaining one-half, in fee, subject to the dower interest in Mary Heineman. It was further alleged in the complaint, that appellee, V. Phelan, was in possession of the premises as a tenant.

To the complaint, Phelan filed an answer and counterclaim. By his counterclaim, he alleged that in September, 1929, he purchased the real estate described in the complaint from one Worcester, and paid cash therefor; that he directed that the property be deeded to Julius Heineman, which was done; that since that date he had advanced all money necessary for the payment of taxes and had made improvements thereon.

The prayer of the counterclaim was that the court decree that said real estate was impressed with a resulting trust in favor of counterclaimant; that the title thereto was held in trust by the heirs of Julius Heineman for him, and that Mary Heineman and Anna Hermann be ordered to execute a deed conveying said property to him. An answer was filed to this counterclaim by Mary Heineman, denying its material allegations.

The only issue made by the pleadings in the case was as to the ownership of the property under Phelan's counterclaim. Formal proofs were made sustaining the allegations of the complaint as to the conveyance of the property to Julius Heineman, his death, heirship and the deed to Anna Hermann. To sustain his counterclaim, Phelan offered in evidence before the master his own deposition. The master sustained an objection to Phelan's competency as a witness. The ruling of the master was sustained by the court.

At the hearing before the master, Winifred Phelan was called, by Phelan, as a witness in support of his counterclaim. The question of her competency as a witness was raised by appropriate and timely objections. Her competency is important in this case for the reason that there is no other competent evidence in the record concerning the transaction between her former husband and Julius Heineman. It developed from a voir dire examination that the witness was the former wife of Phelan; that she divorced Phelan on September 14, 1939. The divorce decree was offered in evidence, from which it appeared that the divorce was granted for the fault of the husband. It did not, therefore, bar her dower rights in any property owned by him. Ill.Rev.Stat.1939, chap. 41, par. 14.

The objections as to her competency as a witness were overruled by the master. This ruling was sustained by the court. The court overruled exceptions to the master's report and entered a decree sustaining the counterclaim and confirming title to the property in Phelan. Mary Heineman was ordered to deliver to Phelan the abstract of title to the property. From this decree, Mary Heineman perfected this appeal.

The first objection to the competency of the divorced wife, as a witness, is based on the claim that she was interested in the result of the suit, because she had an inchoate right of dower in any property owned by her former husband, which was not affected by the divorce decree. Whatever may have been the effect of the divorce decree on her right of dower in any property owned by her husband, an inchoate right of dower is not sufficient to give her an interest in the result of the suit. In the case of Pyle v. Pyle, 158 Ill. 289, 41 N.E. 999, 1000, this court considered the competency of a witness based upon the fact that he had an inchoate right of dower in the subject matter of the suit. It was there said: ‘If the only objection to his competency had been his interest in such result, then, since his interest by way of an inchoate right of dower was uncertain, remote, and contingent, and not a present, certain, and vested interest, it would seem that such objection would not have been well taken, either at common law or under the statute.’ Under this rule, the fact that Winifred Phelan might have had an inchoate right of dower in the property, if the title was found to be in her former husband, would not give her such an interest in the result of the suit as to render her incompetent.

The most serious objection to her competency arises out of the fact that she was testifying for her former husband, who was clearly an incompetent witness. He was a party to the suit, prosecuted by an heir-at-law of Julius Heineman. He was directly interested in the result of the suit. This court has held in many cases that where a husband is disqualified by reason of interest, his wife is also incompetent. Peters v. Peters, 376 Ill. 237, 33 N.E.2d 425;Gillam v. Wright, 246 Ill. 398, 92 N.E. 906,138 Am.St.Rep. 243;Heintz v. Dennis, 216 Ill. 487, 75 N.E. 192;Treleaven v. Dixon, 119 Ill. 548, 9 N.E. 189;Crane v. Crane, 81 Ill. 165. It is further held that such incompetency continues after the marriage relation is dissolved, either by death or divorce. Zimmer v. Zimmer, 298 Ill. 586, 132 N.E. 216;Monaghan v. Green, 265 Ill. 233, 106 N.E. 792;Wickes v. Walden, 228 Ill. 56, 81 N.E. 798;Geer v. Goudy, 174 Ill. 514, 51 N.E. 623. This was undoubtedly the rule at common law and under the Evidence Act prior to the amendment of 1935 to section 5. (Ill.Rev.Stat.1943, chap. 51, par. 5.) The purpose of the amendment was to enable husband and wife to testify for or against each other in certain cases designated in the amendment as ‘all civil actions.’ This amendment does not purport to change any other provision of the Evidence Act. It does not purport to change the law with reference to the disqualification of a party interested in the result of the suit where the other party sues or defends as heir.

We approve the language of the Appellate Court for the First District in Re Estate of Teehan, 287 Ill.App. 58, 4 N.E.2d 513, 516, construing section 5 of the Evidence Act, as amended in 1935. It was there said: ‘It will be noticed the amendment inserted this section as a part of the statute approved March 21, 1872, as amended. It is inserted as a part of that statute and must therefore be construed with reference to...