Holsz v. Stephen

• Decision Date: 14 February 1936
• Docket Number: No. 23148.,23148.
• Citation: 362 Ill. 527,200 N.E. 601
• Parties: HOLSZ et al. v. STEPHEN.
• Court: Illinois Supreme Court

362 Ill. 527

200 N.E. 601

HOLSZ et al.

v.STEPHEN.

No. 23148.

Supreme Court of Illinois.

Feb. 14, 1936.

Bill by Anna Holsz and cross-bill by George Holsz against Hattie A. Stephen, individually and as executrix of the last will of Frank Kelly, deceased. The bill and cross-bill were dismissed, and complainant and cross-complainant appeal.

Affirmed.

Appeal from Circuit Court, Cook County; John Prystalski, judge.

Kahn & Kahn and Walter Monarch, all of Chicago (Harry A. Kahn, Irving K. Russ, and Emanuel A. Rissman, all of Chicago, of counsel), for appellants.

Arch F. Nuttall, of Chicago, for appellee.

JONES, Justice.

The circuit court of Cook county dismissed, for want of equity, a bill of complaint by Anna Holsz and a cross-bill by her son, George Holsz, against Hattie A. Stephen, individually and as executrix, and as sole legatee and devisee, under the last will of Frank Kelly, deceased. An appeal to this court was taken by the complainant and the cross-complainant.

Anna Holsz was a widow. Her son, George, was unmarried. The basis of the bill and cross-bill is an alleged contract whereby Kelly agreed to devise and bequeath to Anna Holsz all of his property except his dwelling, which he was to leave to her son, George, in return for their promise to remain single and take care of him for the remainder of his life. Kelly and his wife were invalids and Anna Holsz was employed by them from 1917 to 1923 to do light housework for five hours a day on week days at 15 cents an hour. From 1923 until Mrs. Kelly's death in 1926, she received 25 cents an hour for her work. After that she was paid $15 a week until the following August. Then Kelly's niece came and Mrs. Holsz was paid by the hour until January 18, 1927, when Kelly was taken to a hospital. From the hospital he went to the home of Mrs. Holsz, where he remained until January 11, 1932, a period of about five years. On the last-mentioned date, he and Mrs. Holsz moved to a dwelling which he owned. It had become vacant and he was afraid it would be wrecked by other people. She stayed there one month and then moved back to her own home. Appellee was procured to stay with him after that Mrs. Holsz visited him about twice a week until his death on September 5, 1932.

On December 13, 1930, Kelly executed a will, leaving his dwelling to cross-complainant, George Holsz, and the remainder of his estate to complainant, Anna Holsz. On August 5, 1932, he executed another instrument purporting to be his list will naming appellee, Hattie A. Stephen, as executrix and as sole legatee and devisee. After its probate, complainant filed a bill to set it aside, which proceeding was pending at the time this suit was instituted.

It is stipulated in this case that the value of the property claimed by complainant is $9,000 subject to the real estate taxes, and that the value of the property claimed by cross-complainant is $3,000. Complainant and cross-complainant each filed a claim against decedent's estate in the probate court. The claim of complainant is for $25,000. That of George Holsz is for $3,000.

Kelly was about 85 years old when he died, was over 6 feet in height, and weighed about 250 pounds. He had several physical ailments and required much assistance and attention. No question is raised as to the services rendered by Mrs. Holsz, and it is conceded that she took care of him. He paid her $25 a week from the time he left the hospital, and there is testimony tending to show her services were reasonably worth seventy-five to eighty dollars a week.

Henry Holsz, a brother of cross-complainant, testified he had a conversation with decedent at the hospital on January 22, 1927, and another at his mother's home on January 25, 1927, in which decedent said he would pay complainant $25 a week and in addition would give her his property (except the dwelling) consisting of a building and of money in the First State Bank of Steger, if she would take care of him as long as he lived; that he wanted complainant to marry him, but as long as she did not wish to get married, he wanted her to take care of him and not take anybody else in; that decedent said he was going to leave the dwelling to George because George was so good to him and his wife; that George was not to get married; that George performed various services for decedent, took him to the bathroom, brought him water to drink, read the newspapers to him, and informed him of the outside news; and that George was not present at either conversation, but complainant was present at the conversation on January 25.

Complainant testified she was present at the conversation between decedent and her son, Henry, at her home on January 25; that decedent said George was to have the dwelling because he was good to him and did for him what he could, and because he liked George; that George should not get married and should be decedent's companion and help him as long as he lived; that at another time, on June 29, 1929, at which her son, Henry, was present, the same conversation, in substance, took place; that after the will of December 13, 1930, was executed, decedent would occasionally say he felt better, in that he had done what he had promised to do; and that George was a companion to him and helped him.

Emma Snowey testified that on the day after St. Patrick's Day in 1927, decedent told her complainant was good to him and he would not forget her; that he wanted to leave her his property; and that George was good to him and he would not forget him.

Emma Boysen testified she visited decedent at the Holsz home on an average of once or twice a month and that he told her he wanted to make his home with Mrs. Holsz as long as he lived and that whatever he had should go to her because she deserved it and had done so much for him.

Maude Stone testified that in the spring of 1927 she went to the Holsz home to rent decedent's dwelling; that he would not rent it unless the witness would go there and take care of him, and he asked her if she would do so. Mrs. Holsz denied that Mrs. Stone visited decedent at her home. Mrs. Stone testified that in August, 1932, decedent told her he had changed his mind and willed everything to Mrs. Stephen and that the other woman wouldn't get it.

At the close of the testimony of complainant and cross-complainant, appellee was allowed, over objection, to file amended answers, setting up the Statute of Frauds (Smith-Hurd Ann.St. c. 59, § 1) as a defense. Neither the bill nor the cross-bill disclosed whether the alleged agreement was oral or written. The fact that it was oral was not shown until it appeared from the testimony of the witnesses of complainant and cross-complainant. The statute permits amendments at any time before final judgment ...