Kane v. Hudson

• Decision Date: 09 June 1916
• Docket Number: No. 10586.,10586.
• Parties: KANE et al. v. HUDSON et al.
• Court: Illinois Supreme Court

273 Ill. 350

112 N.E. 683

KANE et al.

v.HUDSON et al.

No. 10586.

Supreme Court of Illinois.

April 20, 1916.

Rehearing Denied June 9, 1916.

Error to Circuit Court, Iroquois County; Frank L. Hooker, Judge.

Proceedings by John Kane and others against William Henry Hudson and others to set aside the probate of a will. Decree for the defendants and plaintiffs bring error. Reversed and remanded.Leo P. Day, of Chicago, and Wendell P. Kay and O. F. Morgan, both of Watseka, for plaintiffs in error.

J. W. Kern and Lowell D. Kern, both of Watseka (Joel C. Fitch, of Chicago, of counsel), for defendants in error.

C. G. Hirschi, of Watseka, guardian ad litem.

CARTWRIGHT, J.

On May 16, 1914, an instrument purporting to be the last will and testament of John Hudson, deceased, was admitted to probate by the county court of Iroquois county. By the terms of the will all personal estate of the testator was bequeathed to his son, William Henry Hudson, and all the real estate was devised to him for his natural life, with remainder to the surviving children of his body, and, in default of issue of his body living at his death, then to John Kane and Ella Murphy, grandchildren of the testator, who were the children of a deceased daughter. The son and two grandchildren were the only heirs at law of the testator. On June 5, 1914, the grandchildren, John Kane and Ella Murphy, filed their bill in the circuit court of Iroquois county to set aside the probate of the will, alleging that the testator, after the execution of the will, married Elizabeth Montgomery on May 24, 1887, whereby the will was revoked, and that it was never republished. William Henry Hudson, in his own right and as executor of the will, his sons, Porter Hudson and William Hudson, and his daughter, Jessie Purgett, and Philip Purgett, her husband, with their two children, Ray Purgett and Bonnie Purgett, were made defendants. William Hudson, Ray Purgett, and Bonnie Purgett were infants, and a guardian ad litem was appointed for them and filed a formal answer. The adult defendants answered, denying that the testator was lawfully married to Elizabeth Montgomery, and averring that the marriage was void in law. Afterward the adult defendants filed an amended answer, again denying the alleged marriage, and further alleging that John Hudson and William Henry Hudson made an oral contract about June 1, 1889, by which John Hudson, in consideration of support, maintenance, and care for the remainder of his life, agreed to give William Henry Hudson all his property, both real and personal, and that William Henry Hudson took possession of and improved the real estate and performed the contract on his part, and therefore was the equitable owner of the premises.

If such a contract were proved the complainants would have no standing to question the probate of the will, because, even if the will were set aside, the property would not go to them. Yott v. Yott, 265 Ill. 364, 106 N. E. 959. It therefore became necessary to amend the bill, for the reason that special replications in equity are not permitted, and a complainant must put in issue any fact in avoidance of a matter of defense set up by the defendant by proper charges in the bill of complaint. Tarleton v. Vietes, 1 Gilm. 470,41 Am. Dec. 193;White v. Morrison, 11 Ill. 361. Accordingly the complainants amended their bill by adding a denial that the alleged agreement was made and setting up the statute of frauds. The chancellor heard the evidence and entered a decree finding that after the execution of the will the testator married Elizabeth Montgomery, but complainants had no interest in the estate to be detrimentally affected by the will, because the contract alleged in the answer was made and had been performed by William Henry Hudson, and he was the equitable owner of the premises. The bill was dismissed for want of equity, and the court allowed a fee of $300 to the guardian ad litem, to be taxed one half against the complainants and the other half against the infant defendant William Hudson, and also allowed a fee of $2,000 to the solicitor for the executor, to be taxed against the executor as costs and paid in due course of administration by the estate. The writ of error in this case was sued out to review the decree.

If an oral contract to convey land has been made, and there has been such performance in reliance upon the contract as will take it out of the statute of frauds, it will be enforced by a court of equity. Such a contract must be clear and definite and unequivocal in its terms, and it must be clearly and satisfactorily proved. It is indispensable that the acts done in performance of the contract shall be referable to the contract alone, and to have been done in performance of it. It is not necessary that the contract shall be proved by the testimony of any witness who heard it made, and it may be proved by declarations of the parties not in the presence of each other, together with evidence of acts and conduct of the parties which shows that the agreement was made, but it cannot be proved by declarations or acts of only one party to the alleged contract not binding upon the other. Geer v. Goudy, 174 Ill. 514, 51 N. E. 623;Seitman v. Seitman, 204 ill. 504, 68 N. E. 461;Standard v. Standard, 223 Ill. 255, 79 N. E. 92;Watson v. Watson, 225 Ill. 412, 80 N. E. 332;Daly v. Kohn, 234 Ill. 259, 84 N. E. 901;Dalby v. Maxfield, 244 Ill. 214, 91 N. E. 420;Gladville v. McDole, 247 Ill. 34, 93 N. E. 86;Willis v. Zorger, 258 Ill. 574, 101 N. E. 963;Christensen v. Christensen, 265 Ill. 170, 106 N. E. 627;Lonergan v. Daily, 266 Ill. 189, 107 N. E. 460.

It was proved at the hearing, and not disputed, that the testator married Elizabeth Montgomery after the execution of the will, and they lived together as husband and wife from May 24, 1887, until her death, in May, 1895. The will was never republished, and by section 10 of the statute of descent (Hurd's Rev. St. 1913, c. 39) it was revoked by the marriage.

John Hudson was 99 years old when he died, and he had been married five times. William Henry Hudson was born of one marriage, and Mary Ann Hudson...