Hutton v. Busaytis

• Decision Date: 06 October 1927
• Docket Number: No. 17770.,17770.
• Citation: 326 Ill. 453,158 N.E. 156
• Parties: HUTTON v. BUSAYTIS et al.
• Court: Illinois Supreme Court

326 Ill. 453

158 N.E. 156

HUTTON

v.BUSAYTIS et al.

No. 17770.

Supreme Court of Illinois.

June 22, 1927.

Rehearing Denied Oct. 6, 1927.

Bill by Charles J. Hutton against Sarah R. Busaytis, administratrix of the estate of Bridget Hutton, deceased, and others, in which James G. Fitzpatrick, administrator of plaintiff's estate, was substituted as plaintiff. From a decree for complainant, defendants appeal.

Reversed and remanded, with directions to dismiss bill.

Appeal from Circuit Court, Macoupin County; Frank W. Burton, judge.

Jesse Peebles, of Carlinville, and Edmund Burke, of Springfield, for appellants.

John P. Madden, of Gillespie, and Murphy & Hemphill, of Carlinville, for appellee.

THOMPSON, J.

December 3, 1921, Charles J. Hutton filed a bill in the circuit court of Macoupin county, alleging that in the year 1882 he was, at the age of 7 years, taken from a charitable institution in the city of Quincy and placed in the home of John and Bridget Hutton, of Gillespie; that the institution and the Huttons entered into a contract in writing which provided that the Huttons should adopt him and make him their heir; that at the time complainant was taken into their home the Huttons had no children and that none were ever born to them: that the Huttons were then persons of small means and were engaged in a general merchandise business in Gillespie; that complainant served them faithfully for 20 years and helped them accumulate a considerable estate; that he received no compensation, except support and maintenance, but his services were performed by him in reliance on his belief that he was their adopted son; that, notwithstanding the written agreement to adopt him and make him their heir, the necessary steps to perfect a legal adoption were never taken; that Hutton died testate, devising and bequeathing all his property to Bridget, and that she died intestate in September, 1921; that she left as her heirs Sarah Busaytis and Mary Grass, the former of whom was appointed administratrix of her estate. Busaytis and Grass were made defendants to the bill, which concludes with a prayer that complainant be declared to be the adopted son of John and Bridget Hutton and entitled to all the property left by Bridget.

On June 17, 1926, an amended bill was filed, which contains substantially the same allegations as the original bill, and states that the agreement to adopt was entered into with Rev. Storb, a Catholic priest, who was an officer of the orphans' home. The defendants answered, denying that the Huttons, or either of them, entered into a written contract, or into any contract, with any person or institution to adopt Charles and make him their heir. They admit that Charles made his home with John and Bridget Hutton for many years, but deny that he contributed to their prosperity, or that he performed any services in reliance on a belief that he was their adopted son. While the cause was pending in the trial court Charles died, and in his stead were substituted James C. Fitzpatrick, administrator of his estate, and Lulu, James, Erwin, Horace, Edith, Louise, and Betty Maude Hutton, his heirs. The cause was referred to a master in chancery, who filed his report, recommending a decree in accordance with the prayer of the bill. Exceptions to the report were overruled, the decree was entered, and this appeal followed.

The St. Aloysius Orphans' Home Society of Quincy was organized in 1852. Since that time it has conducted an orphans' home at Quincy and has placed orphan children in private homes. The records of the society were kept by the officers, but many of the early records are not now available. The secretary of the board of administration produced the only records that could be found which referred to Charles Lish, later known as Charles Hutton. These records were written in the German language. As translated by the secretary the first entry reads:

‘Charles Lish, Rockport, Ill., 1882, taken at the age of about 7 years, February 13, 1882. To-day the orphan child, Charles Lish, of Rockport, Ill., some time previously of East Hannibal, was admitted to the orphanage. Diocese to pay half the usual board. The father died in the beginning of the year in St. Mary's Hospital at Quincy, Ill.'

The second entry reads:

‘Quincy, Ill., March 29, 1882. To-day the orphan child, Charles Lish, of Rockport, Ill., was given to the family of Mr. Hutton at the request of Rev. Father Storb, from there, with the consent of Rev. Father Bruener and the board of administration, to raise at Hillsboro, Ill.'

There is no record of an adoption of the child by the Huttons, nor of an agreement to adopt. The secretary testified that the children of the home were placed in private families as soon as a satisfactory home could be found; that they were usually placed with the family on probation, and later adoption was urged; that there was usually a written agreement between the home and the family that took the child; that the home insisted that the family given the child a good home and look after its spiritual as well as its material welfare; that the child was to be given an allowance for work, and, if adopted, was to have a child's interest in the adopting parents' estate. The secretary had been connected with the society for 33 years, and had been a member of the board of administration for 8 years. His father had been a member of the society for 60 years, and had theretofore served as president and secretary of the society. The secretary found duplicate copies of contracts under which children had been placed by the home, but he found no copies of contracts dated prior to 1882. In the baptismal records of Sts. Simon and Jude's Church, Gillespie, Ill. appears the following:

‘On the 16th day of April, A. D. 1882, I baptized Charles James, whose parents are unknown, born, perhaps, in the year 1874. Sponsors were John Thomas Hutton and Bridget Teresia Hutton. [Signed] Herman Gesenhues.'

In the Hutton familyBible appears the following:

‘Charles Lish, took him from Quincy to raise, March 28, 1882, at the age of 7 years. Baptized in the Catholic church at Gillespie, Illinois, on the 16th day of April, 1882, and named Charles James Hutton.'

There was no legal adoption of the child, and no evidence of any attempt to adopt. The Huttons referred to Charles as their son, or their adopted son, and stated to some of the people of the community that they had adopted him, and to others that they intended to adopt him and make him their heir. According to some of the witnesses Charles addressed Mr. and Mrs. Hutton as ‘father’ and ‘mother,’ and according to others as ‘pa’ and ‘ma.’ From the time he came into their home until their death he was a dutiful and affectionate son. After his marriage, at the age of 27 years, he continued to bestow filial affection on his foster parents, calling at their home frequently, sometimes daily, to render such help as he could to make them comfortable and happy. The Huttons referred to his children as their grandchildren, and took the usual interest of grandparents in them. The name of Mrs. Hutton's father was James Erwin, and in accordance with her wish one of Charles' boys was named James and another Erwin. Sarah Busaytis and Mary Grass are nieces of Mrs. Hutton, and prior to their marriage they made their home with her.

The existence of a written contract to adopt Charles Lish, later known as Charles James Hutton, depends on the testimony of Joseph Lish, his brother. According to his testimony he (Joseph) was about 2 years old when his parents died, and he was placed in the orphans' home at Quincy. He remained there about 8 years, and then was placed with a family named Haoebing, with whom he remained about 8 years. He left them, and went to Moberly, Mo., where one of his sisters lived. In 1901 he came to Gillespie, and made his home with his brother Charles. He worked as a farmhand and as a clerk in Charles' store. Charles introduced him to John and Bridget Hutton. He visited them at least once a week at their invitation, and often had meals with them. On one occasion, after Hutton's death, he stayed in the home for 5 weeks. Mrs. Grass was there at that time, and later Mrs. Busaytis lived with Mrs. Hutton. Mrs. Hutton talked...