Karolkiewicz' Estate v. Kary
| Decision Date | 16 October 1968 |
| Docket Number | Gen. No. 52067 |
| Citation | 241 N.E.2d 471,100 Ill.App.2d 350 |
| Parties | ESTATE of Adolph KAROLKIEWICZ, Deceased, Chester Karolkiewicz and Stella Powell, Petitioners-Appellees, v. Chester KARY, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Paul F. Sandquist, Chicago, for respondent-appellant.
Ronald S. Davis, Thaddeus L. Kowalski, Chicago, Ronald S. Davis, Chicago, of counsel, for petitioners-appellees.
This is an appeal from a judgment of the Circuit Court ordering the respondent, Chester Kary, to pay to petitioners, Chester Karolkiewicz and Stella Powell, the sum of $16,787.56. This sum was two-thirds of the estate of Adolph Karolkiewicz. Chester Kary was the son and sole heir of decedent. A motion for summary judgment was allowed.
The petitioners alleged that they were the brother and niece of the decedent, that prior to decedent's death they took care of decedent in return for decedent's promise to leave his money to petitioners, that said moneys were deposited in three savings and loan accounts and in a Chicago Park District Benefit, and that decedent gave petitioners his bank books covering the said deposits.
The petition further alleged that following the death of Adolph Karolkiewicz, the respondent entered into a written agreement with petitioners that respondent would pay petitioners two-thirds of whatever moneys he would receive from the estate in consideration of petitioners' forbearance with regard to making a claim against the estate. The agreement, written on stationery of an attorney under date of February 25, 1966, being fifteen days after decedent's death, is as follows:
"We, CHESTER KARY, formerly known as CHESTER KAROLKIEWICZ, CHESTER
KAROLKIEWICZ and STELLA POWELL desire to make an agreement whereby the
property of ADOLPH KAROLKIEWICZ is to be divided in equal shares among the
three of us. The share division is to made after the following bills are
paid
1. Illinois Masonic Hospital $156.25
2. Ambulance charges 20.00
"The approximate assets of the late Adoph Karolkiewicz are
1. Silver Leaf Savings and Loan Account # 52634 ..... $5,881.00
2. Clyde Savings and Loan Account, # 88041 .......... 9,000.00
3. Clyde Savings and Loan Account # 85931 ........... 9,000.00
4. Chicago Park District Benefit .................... 420.66
"This agreement is to be made pursuant to and in recognition of the care and
affection given to Adolph Karolkiewicz by his brother, Chester Karolkiewicz
and his niece, Stella Powell
"We desire Joseph C. Michelotti to represent us as attorney in preparing the
agreement and to represent Chester Kary in the matters relating to the estate
of Adolph Karolkiewicz, deceased
S/ CHESTER KARY
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S/ CHESTER KAROLKIEWICZ
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S/ STELLA POWELL
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"I hereby acknowledge receipt of the above described account books and Park
District letter.
S/ THERESA L. LEWENDOWSKI
--------------------------------------------
Trustee "
The petition further alleged execution by Chester Kary, on the same date of the following assignment:
'KNOW ALL MEN BY THESE PRESENTS, that I, Chester Kary, formerly known as Chester Karolkiewicz, the undersigned, in consideration of the care and affection bestowed upon my late father, ADOLPH KAROLKIEWICZ, and One ($1.00) Dollar and other good and valuable consideration, hereby assign to THERESA L. LEWENDOWSKI, as Trustee, all my right, title and interest, of every kind and nature, whether as heir or otherwise, in and to the real and personal estate of my father, ADOLPH KAROLKIEWICZ, deceased, and hereby authorize THERESA L. LEWENDOWSKI, as Trustee, or her successor, as administrator of the Estate, to pay over or deliver to CHESTER KAROLKIEWICZ, my uncle, STELLA POWELL, my cousin and myself, each a one-third (1/3) share of all money or property of any kind and description that may be due me as the only heir at law of Adolph Karolkiewicz, deceased. Further it is my intention that the hospital bill and ambulance fees be paid from said sum before any division be made.
I wish to retain Joseph C. Michelotti as Attorney to take charge of any legal matters in connection with the Estate of Adolph Karolkiewicz, deceased.
Dated at Chicago, Illinois this 25th day of February A.D. 1966.
S/ CHESTER KARY. (Seal)'
The instrument was acknowledged before a notary public as the free and voluntary act of the signer.
The petition further alleged that pursuant to the agreement and the assignment, petitioners turned the bank books over to Chester Kary and his agents, but that respondent then expressed his intention not to pay said moneys to petitioners.
Petitioners prayed an order setting aside two-thirds of the funds of the estate pursuant to the agreement, and alternately prayed that two-thirds of the estate funds be set aside for petitioners' benefit because the transaction constituted a consummated gift.
Respondent's answer admitted the existence of the funds, denied that decedent prior to his death promised his money to petitioners in return for their caring for him, and denied that petitioners cared for decedent. It is also admitted that petitioners had possession of the bank books, but denied that decedent gave them possession.
Respondent admitted signing the two agreements of February 25, 1966, but alleged that they were of no legal effect in giving petitioners any interest in the deposits and benefit.
Basically, the petitioners contend that the pleadings leave no essential issue of fact to be determined, and respondent contends that issues of fact were presented which should have prevented the entry of a summary judgment.
Petitioners base their contention first upon the ground that the allegation in paragraph 4 of the petition that 'in consideration of petitioners' forbearance with regard to making a claim upon the estate', respondent promised to pay was not specifically denied by the answer. As previously noted, respondent admitted signing the agreements, but denied that they had the legal effect of giving petitioners an interest in the property. Respondent replies that the agreement purports to rely upon a different consideration, to-wit: 'care and affection' and not forbearance and the sole matter to be considered is the sufficiency of the recited consideration.
While the form of the pleadings is not the most apt, the narrow question whether there was an admission of sufficient forbearance to give rise to a legal claim is otherwise resolved unfavorably to the petitioners. In paragraph 2 of the answer, respondent denied that there was any promise by decedent to give money for services rendered, and also denied that services were rendered. Respondent thus denied the basis for any claim with reference to which forbearance could have any legal operation. This, taken together with respondent's allegation in paragraph 4 that the signing of the papers created no legal interest in petitioners, was sufficient to raise an issue and to prevent a summary judgment based solely upon the allegations of forbearance.
On this issue we are not persuaded by respondent's position that because forbearance is not specifically referred to in the written agreements it is excluded as a basis of liability. It is enough to say that not only do the recitations of consideration fail to state that such is the sole consideration, but the simultaneously executed assignment refers to 'other good and valuable consideration'.
We have no trial court memorandum which suggests the basis for the summary judgment, but we find contentions, that if concurred in, would support the judgment irrespective of the issue of consideration through forbearance.
Petitioners cite several authorities to the effect that the agreements recite sufficient consideration on their face when they recite (in the assignment): 'One Dollar and other good and valuable consideration.'. Hazle v. Bondy, 173 Ill. 302, 50 N.E. 671, holds that in the absence of testimony regarding the actual consideration, the court cannot assume that with the foregoing language that the consideration recited was merely nominal. Van Sickle v. Harmeyer, 172 Ill.App. 218, is to the same effect, and adds 'The true consideration may always be shown by parol, even though it is different from that expressed in the deed.', (Citing Union Mutual Life Ins. Co. v. Kirchoff, 133 Ill. 368, 27 N.E. 91; Worrell v. Forsyth, 141 Ill. 22, 30 N.E. 673, and Howell v. Moores, 127 Ill. 67, 19 N.E. 863). Petitioners also cite Klass v. Hallas, 16 Ill.2d 161, 157 N.E.2d 261, that natural love and affection of a father for a daughter is sufficient to support a conveyance, and McFarlane v. Williams, 107 Ill. 33, to the effect that where there is a recital of adequate consideration, the burden is upon the person attacking the validity of the consideration to show the inadequacy clearly.
The foregoing points and...
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