Oswald v. Caldwell

Decision Date12 February 1907
Citation80 N.E. 131,225 Ill. 224
CourtIllinois Supreme Court
PartiesOSWALD v. CALDWELL et al.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Cook County; J. W. Mack, Judge.

Suit by William G. Galdwell against Otto A. Oswald and others. From the decree, defendant Oswald appeals. Affirmed.

Hallett, Sauter & Henkel, for appellant.

Custer, Griffin & Cameron, for appellee Caldwell.

Caswell & Healy and Vail & Pain, for appellee Anne Paton.

HAND, J.

This was a bill in chancery filed in the circuit court of Cook county by William G. Caldwell, one of the appellees, against the appellant, Otto A. Oswald, the heirs at law of Anne Caldwell, deceased, and certain other persons and societies claiming an interest in certain real estate which it is conceded belonged to Anne Caldwell, deceased, prior to the 28th day of January, 1898, and described as lot 1, in block 124, in school section addition to Chicago, to obtain an adjudication by a court of chancery as to the legal effect of a certain warranty deed and two certain instruments in writing executed by said Anne Caldwell purporting to convey said real estate to said William G. Caldwell, and authorizing him to make a sale thereof, and to distribute the proceeds arising from such sale among the persons and societies named in said two instruments in writing, after the death of Anne Caldwell.

It is contended by the appellant that a trust was created by said deed, one of said instruments in writing, and the admissions of William G. Caldwell made in his bill, and in his deposition taken in this case, for the benefit of the persons and societies named in said instrument in writing; while the claim of the appellee Anne Paton, who is the only appellee who has filed a brief in this court, is that the deed, the two instruments in writing, the admissions in the bill and the testimony of William G. Caldwell show that said deed and two instruments in writing were to take effect only after the death of Anne Caldwell, and were testamentary in their character, and therefore void. Answers and replications were filed, and a decree was entered holding that said deed and two instruments in writing were testamentary in their character, and had no binding legal force, and that the said real estate was intestate property, and descended to the heirs of Anne Caldwell, deceased, and decreeing, according to the alternative prayer of the bill, that said real estate be partitioned between the heirs at law of Anne Caldwell, deceased, from which decree Otto A. Oswald has prosecuted an appeal to this court. The deed bore date January 28, 1898, was in statutory form, recited a consideration of ‘one dollar in hand paid, and other good and valuable considerations,’ and was signed and acknowledged by Anne Caldwell, and purported to convey to said William G. Caldwell, in fee simple, said premises, which deed on the day of its execution was handed to William G. Caldwell by Anne Caldwell. The first instrument in writing was in the handwriting of Anne Caldwell, and was signed by her and was handed by her to William G. Caldwell on February 10, 1898, and is as follows:

William G. Caldwell, my youngest son: If God sees fit to take me to himself before my property in Chicago is sold, I authorize you, my son, to sell it when you see fit and divide it as I direct you. This is my wish while I am in health and the possession of my faculties, that you shall do as I desire, you, your mother, Anne Caldwell.

‘One thousand dollars, the interest of it to pay for the support of the gospel yearly of the Presbyterian church in Chicago Heights; $1,000, the interest of it to keep in repair the cemetery at the Presbyterian church in Chicago Heights; $1,000 to be given to the Woman's Temple in Chicago; $500 to the Moody Institute in Chicago; $500 to the Young Men's Christian Association in Chicago; $500 to the S. S. school library of the Presbyterian church in Chicago Heights; $500 to the Methodist church in Chicago Heights; the rest to be divided into equal parts. Four parts to be given to my daughter Susan Caldwell; two parts to be given to my daughter Mary I. Oswald; two parts to be given to my son Joseph R. Caldwell; two parts to be given to my son William G. Caldwell; one-half part each to my sister Nancy Millar, Ella C. Caldwell, Jennie Caldwell, John Paton, Otto Oswald, Anne Paton, Harry Lind Caldwell and Mildred Caldwell.

‘My son, William George Caldwell, do this in the fear of God, so He may give you wisdom to guide you in the right disposing of this trust. After paying all expenses, if I have any money in the bank at my death, I give it to my daughter Susan. I have already given the house and its contents, also the barn and its contents, to my daughter Susan Caldwell. Also whatever notes I may have at my death I give to Susan Caldwell.’

Mary I. Oswald, the daughter of Anne Caldwell mentioned in the foregoing instrument in writing, died testate subsequent to its execution, and shortly after her death Anne Caldwell executed a second instrument in writing relative to the distribution of her estate after her death, which instrument in writing was in her handwriting, and was also handed to William G. Caldwell shortly after it was written. That instrument reads as follows:

Willie G. Caldwell: Since I wrote the arrangement of the disposition of my property, your sister, Mary I. Oswald, has died. So do you give her share to educate the Cuban children, and in case of the death of any other of my family spoken of in this paper, let their share be divided equally between each of my living children living at the time the property is sold. Let the rent, after my death, be given in equal parts to Joseph, William and Susan. In case the women lose the Temple, let that share be given to educate the black children in the south.’

Anne Caldwell died intestate in June, 1900. Otto A. Oswald is the husband of and sole legatee and devisee of Mary I. Oswald, deceased. Anne Paton is a child of a deceased daughter of Anne Caldwell, and a minor. In the bill filed by William G. Caldwell he averred ‘that in the belief and opinion of your orator it was the intention of the said Anne Caldwell to create in and by the said papers [the deed and two instruments in writing] a trust or trusts for the several beneficiaries named therein. * * * And your orator is desirous that the said trusts shall be published and declared and established if the same are valid and if the same may be lawfully executed and carried out.’ And the only evidence which bears in any way upon the execution of said deed and instruments in writing by Anne Caldwell and their delivery to William G. Caldwell, and the reasons which led to their execution, is found in the testimony of William G. Caldwell, who testified fully, and without objection, as to his competency as a witness, to the execution of said deed and instruments in writing, and the conversations which took place prior and subsequent to their execution between himself and his mother, and the motives which prompted his mother to execute said deed and instruments in writing and place them in his hands.

The testimony of William G. Caldwell was taken in the form of a deposition, and is so important to a proper decision of this case that we feel justified in inserting in this opinion the following excerpts therefrom: ‘Q. The day this deed was made, was the notary public at your house before your mother? A. No, sir. Q. Who sent for him? A. I did. Q. How did you come to send for him? A. Because my mother came to the house, and I wrote out the deed, and I did not want her to go down town, and I told her the notary would come to the house. Q. How did you come to write out the deed? A. She asked me to. Q. What was said at the time she asked you to? A. Well, she had been sick considerable before that, and she did not think at that time she would live very long, and she wanted to dispose of her property, or fix it in some way so it would be taken care of in the event she died. We talked of making a will, and she didn't want to do that because it would have to go through court then. Q. The notary was there for the purpose of taking the acknowledgment? A. Yes, sir. Q. And then what became of the deed? A. I had it. Q. Your mother gave it to you? A. Yes, sir. Q. And what did you do with it? A. I put it in the vault in a box. Q. In your personal box? A. Yes, sir. Q. And from that time until it was finally recorded [which was after the death of his mother] it was in your possession all the time, was it? A. Yes, sir. Q. At the time the deed was delivered to you did your mother have any talk with you in reference to...

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22 cases
  • Klouda v. Pechousek
    • United States
    • Supreme Court of Illinois
    • January 22, 1953
    ...... Oswald v. Caldwell, 225 Ill. 224, 80 N.E. 131. With deeds that have been delivered it is different. A deed signed, sealed, and delivered becomes at once ......
  • Butts v. Richards
    • United States
    • United States State Supreme Court of Wisconsin
    • February 26, 1913
    ......400, 30 N. E. 1041, 33 Am. St. Rep. 326;Noble v. Fickes, 230 Ill. 594, 603, 82 N. E. 950, 13 L. R. A. (N. S.) 1203, 12 Ann. Cas. 282;Oswald v. Caldwell, 225 Ill. 224, 231, 80 N. E. 131.        If it should be held that a lesser degree of proof of delivery is required between ......
  • Fowle v. Lane *
    • United States
    • Supreme Court of Virginia
    • September 16, 1920
    ......To the same effect, see Kenney v. Parks, 137 Cal. 527, 70 Pac. 556; [104 S.E. 259]         Oswald v. Caldwell, 225 111. 224, 80 N. E. 131; Farmer, etc., Bank v. Haney, 87 Iowa, 101, 54 N. W. 61; Coiner v. Baldwin, 16 Minn. 172 (Gil. 151); ......
  • Noble v. Fickes
    • United States
    • Supreme Court of Illinois
    • December 5, 1907
    ...493, 38 N. E. 680;Hollenbeck v. Hollenbeck, 185 Ill. 101, 57 N. E. 36;Wilenou v. Handlon, 207 Ill. 104, 69 N. E. 892;Oswald v. Caldwell, 225 Ill. 224, 80 N. E. 131. In many of these cases, and perhaps others of the same class, the instrument under consideration has been freely spoken of by ......
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