Johnson v. Lane

• Decision Date: 15 June 1938
• Docket Number: No. 24501.,24501.
• Parties: JOHNSON et al. v. LANE.
• Court: Illinois Supreme Court

369 Ill. 135

15 N.E.2d 710

JOHNSON et al.

v.LANE.

No. 24501.

Supreme Court of Illinois.

June 15, 1938.

Suit by Mildred Johnson, administratrix, and others against John A. Lane, to set aside a deed and partition real estate. From a decree for complainants, defendant appeals.

Reversed in part and affirmed in part.Appeal from Circuit Court, Fulton County; Loren E. Murphy, judge.

Glenn Ratcliff, of Lewistown (M. Lachlan Crissey, of Avon, of counsel), for appellant.

Chiperfield & Chiperfield, of Canton, for appellees.

STONE, Justice.

This cause is here on direct appeal to review a decree of the circuit court of Fulton county setting aside a deed and for partition of the real estate therein described and other real estate.

The complaint alleges that Clinton C. Lane, now deceased, who was the father of defendant and complainants, was, prior to March 23, 1935, seized in fee simple of certaindescribed real estate in the city of Canton; that on that date he, by a deed executed without consideration, conveyed that property to the defendant, his son John. The complaint sets out that Clinton C. Lane died April 20, 1935, seized of certain other real estate described in the complaint, and leaving the defendant and complainants his sole heirs-at-law. The complaint also alleges that the defendant caused the deed to be prepared and, by the exercise of undue influence, procured the execution thereof at the time when the mental condition of his father, as he well knew, was such that he did not have sufficient mind and memory to comprehend the nature and effect of his act and to exercise his own will. The complaint also charges that defendant's father sought the return of the deed, and that defendant refused. It may be here stated that no evidence was offered of this latter charge and further consideration of it is unnecessary.

The complaint also charges that, for a period of six months prior to the date of the execution of the deed, Clinton C. Lane was a man addicted to the excessive use of intoxicating liquors and, as a result of this habit and the infirmities incident to his age of seventy-one years, he was, at the time of the execution of the deed, a man whose mind and memory was so impaired that he was incompetent to comprehend the nature of his act or to exercise his independent will, and that defendant, for more than six months prior to the making of the deed and for the purpose of inducing his father to convey the property to him, endeavored to induce his father to believe that complainants were about to have a conservator appointed for him; that they were unfriendly to him, and were conspiring to get hold of his property. No proof was offered that he made any such representations to his father.

It is also charged that defendant procured supplies of intoxicating liquors for his father's use to keep him in an intoxicated condition for the purpose of obtaining undue influence over him, and that defendant threatened him that, unless he conveyed the real estate to him, complainants would procure the appointment of a conservator. No evidence was offered tending to support these allegations.

The complaint alleged that, by reason of the facts therein stated, the deed was void, and prayed that it be set aside and that partition be had of that property, as well as of other lands owned by Clinton C. Lane in his lifetime.

The defendant answered the bill denying all charges concerning his conduct. Eighteen lay witnesses testified for the complainants, eleven witnesses testified for the defendant, including the family physician of the deceased. Sixteen of the complainants' witnesses expressed their opinion that Lane was not of sound mind. Of these, Lawrence Fisher is a son of complainant Stella Fisher; Mildred Johnson is one of the complainants, a daughter of the deceased; Jesse Fisher is the husband of Stella Fisher, complainant; Rodney Johnson is the husband of complainant Mildred Johnson, and Stella Fisher is one of the complainants. These witnesses all testified to frequent intoxication of the deceased. Some of them testified that the deceased had declared he had to have liquor. Some of them testified that he said he drank as much as one to two quarts per day. These witnesses also testified to various acts and omissions on his part indicating forgetfulness, and all gave as their opinion that, during February, March and April, 1935, he was not capable of transacting ordinary business. They all testified that following the death of decedent's wife in January, 1935, he was more given to the use of intoxicants and seemed less capable of attending to ordinary business of life.

Howard Scholes, a nephew of deceased, testified that he attended his aunt's funeral and that his uncle, the deceased, told him he had lost a purse and thought that his son John, the defendant, had stolen it. This witness testified that the purse was later found in a bureau drawer. He testified, also, that his uncle had said that John abused him and he did not know what he would do without his daughters, the complainants. He testified, also, that he had seen his uncle once or twice since the funeral and that he was drunk both times; that on one of these occasions his uncle took the witness and his wife to lunch with him and paid his own bill, only; he also testified that about the middle of March his uncle told him that Stella and Mildred, the complainants, had turned against him. This witness was of the opinion that the deceased was not of sound mind and memory and was not capable of transacting ordinary business after his wife's death. He testified that his uncle had written him several letters, but that all of them had been destroyed but one, which he thought he could produce. The record shows that he later wrote the clerk that he was unable to find the letter. He had never transacted any business with his uncle.

Alice Scholes, a niece of the deceased, testified that she had noticed a change in the deceased after the death of his wife; that he would start talking and change the subject; that she did not talk with him on any business matters but that he stated he did not know what he would do without the girls.

McClelland Divers testified for complainants that he lived directly across the street from the deceased and about the middle of March he saw him drunk on two occasions. He expressed no opinion as to his mentality.

Irene Price testified for complainants that she lived for a time in the Lane residence, across the hall from the room occupied by deceased; that he was intoxicated every day; that his son John was there for two or three weeks before she moved away from the building; that sometimes deceased was unable to hold a connected conversation and that she talked with him very little. From her observation she did not think him a man of sound mind and memory. She testified, on cross-examination, she paid her rent to him and that part of the time he took care of the furnace.

Carroll Owens testified that on one occasion he saw the deceased fall when he was carrying ashes, but he went to him and found his condition was due to intoxication. This witness expressed no opinion as to his mentality.

Charles W. Wilson, Willard Sebree, Bertha Hunt and Guy Coleman, each testified, in effect, that they had noticed a change in the physical and mental condition of the deceased after his wife died; that he seemed to become weaker mentally and physically, and they did not think deceased was of sound mind and memory sufficient to transact ordinary business.

Irene H. Eklon, an employee of the National Bank of Canton, testified that she had charge of the safety box department of that bank; that about February 2, 1935, the deceased rented a safety deposit box; that on March 14 he came to her to open the box; that on that day he was under the influence of liquor; that they transferred his box from the basement to the first floor; that, between March 14 and April 13, he made five trips to the box; that she waited on him each time he was there and that on March 22 he told her he wanted to revoke the deputyship of Mrs. Johnson, whom he had made his deputy when he rented the box. She testified he was intoxicated each time he went to the box. Although she testified to having transacted business with him at that time, and relates no difficulty on his part to understand and carry on those transactions, she gave the opinion he was not wholly sound and capable of transacting ordinary business. She testified that she had no personal contact with him except in the bank, and that no one was with him when he came there.

Lyle James testified for complainants that he lived for a time in the house of the deceased until the middle of February, 1935; that he had seen deceased both sober and intoxicated and that he was apparently weaker after his wife's death. He thought a man of that sort was not capable of transacting ordinary business but that the only business he had with him was to pay rent to him.

Ida Sebree testified that at times the deceased did not talk connectedly; that she never heard him make any statement about his ability to transact business; that, in her opinion, he was not a man of sound mind and memory during the last several months of his life. She thought he knew his children; that he often called by telephone and said he was lonesome. She testified that he came to her house five or six times a week and was capable of understanding how to play cards.

Elmer Sebree testified that the deceased frequently came to his house; that he did not think complainants Stella and Mildred went to the home after John came. He testified also that the deceased sometimes got ‘mixed up’ while playing cards and expressed the opinion that, during the last two months of his life, he was not capable of transacting ordinary business.

Mildred Johnson testified that her father told her he drank two quarts of liquor a day and had to have it. She testified that she assisted in...