Pond v. Sheean

• Decision Date: 29 March 1890
• Parties: POND v. SHEEAN et al.
• Court: Illinois Supreme Court

132 Ill. 312

23 N.E. 1018

POND

v.SHEEAN et al.¹

Supreme Court of Illinois.

March 29, 1890.

Appeal from circuit court, Jo Daviess county; JOHN D. CRABTREE, Judge.

Hopkins, Aldrich & Thatcher and E. L. Bedford, for appellant.

John J. Jones, for appellees.

CRAIG, J.

This was a bill in equity, brought by Hattie Pond, to set aside the last will of Bradner Smith, deceased, and to enforce the specific performance of a parol agreement alleged to have been made on or about the 1st day of December, 1857, between Marshall B. Pierce, father of complainant, and Bradner Smith, under which the complainant claims all the property, both real and personal, which the said Bradner Smith owned at the time of his death. The bill sets out the contract, substantially, as follows: ‘Bradner Smith, after consultation with his wife, Mary Smith, and with her full consent and approval, in order to induce oratrix's father to consent to the separation, and permit her to become a member of the family of said Bradner Smith, made a proposition to your oratrix's father that if he would permit them, the said Bradner and wife, to take your oratrix to their home, and would permit her to assume the name of ‘Smith,’ instead of ‘Pierce,’ and allow her to live with them as their child, the said Bradner Smith, in consideration thereof, would give your oratrix at his death [amended to read ‘at their,’ viz., Bradner and Mary Smith's, ‘death’] all his property-real, personal, and mixed-that he might have in his name, or under his control, at the time of decease; that, in consideration of these promises, her father consented and agreed to said proposition, and then and there entered into a contract with said B. Smith, with the knowledge and consent of his wife, Mary Smith, that oratrix should go and live with them, as their child, assume the name of ‘Smith’ instead of ‘Pierce,’ take the place of their child, live with them as such, and, in consideration thereof, at the death of said B. Smith [amended to read ‘at their death,’ namely, Mary and Bradner Smith, instead of ‘at his death’] all of his estate-real, personal, and mixed-was to become and be the property of your oratrix; that, in compliance with said contract, oratrix then and there, to-wit, December 1, 1856, did leave her father's home, and go to the home of B. Smith and wife, and became a member of their family, and assumed the name of ‘Smith’ instead of ‘Pierce,’ and was known as ‘Smith’ from thence until oratrix's marriage, and oratrix faithfully carried out her part of said contract, and was a true and faithful child of said Mary and B. Smith during their lives, and performed her part of above contract.' It is also alleged that complainant lived with the Smiths, under said agreement, until she was 29 years of age, when she was married to Dr. Frederick L. Pond. It is also alleged that Mary Smith died May 21, 1885, and that Bradner Smith died March 31, 1887. It is also alleged that ‘in violation of said contract,’ etc., ‘and in fraud of your oratrix's rights in the premises, B. Smith was induced, December 19, 1885, to execute a purported will, and on January 7, 1887, shortly before his death, executed a purported codicil thereto, as appears by copies attached to Exhibits A and B, by which will and codicil he deprived oratrix of any part of his property whatever; that Bradner Smith, at the time of executing said purported will and codicil, was weak in mind, and in his dotage, and by reason of said condition was induced, in fraud of oratrix's rights, to execute the same.’ The complainant sets out in the bill a list of property-real, personal, and mixed-owned by the deceased at the time of his death, valued at $20,000. The bill then prays that the will and codicil may be declared null and void; that complainant be declared to be the owner and entitled to the possession of the personal property and notes; and that deeds may be executed conveying the lands to her. The executor and devisees under the will put in answers to the bill in which they deny the making of the alleged contract, and plead the statute of frauds thereto. They also denied all the substantial allegations of the bill. A cross-bill was also filed by one of the legatees, Clara A. Smith; but, as that has no bearing on the decision of the case, it is not necessary to set out its contents here. Replication having been filed, the cause proceeded to a hearing on the pleadings and evidence, and the court entered a decree dismissing the bill for want of equity; and the complainant appealed.

The complainant's mother was a sister of Mary A. Smith, the wife of Bradner Smith. She died May 10, 1854, when complainant was about two years old. Bradner and Mary Smith had no children of their own, and soon after the death of complainant's mother they took complainant to their home; and she there remained until the second marriage of her father, July 28, 1856, when she returned home to her father. It seems that during the two years residence of complainant with the Smiths they became very much attached to her, and made an effort to arrange with complainant's father for her return to their home. Pierce, the father of complainant, resided at Savanna, and the Smiths at Galena. The contract under which complainant was taken into the Smiths' family was claimed to be proven by one witness,-who was present when the contract was made,-Mrs. Pierce, now the widow of complainant's father. She stated that she was married, July 28, 1856, to Marshall B. Pierce, who at the time of their marriage had six children; Hattie, the youngest, being four years old at the time. ‘She continued to reside in our family six or eight months after our marriage. At the end of that period of eight months, arrangements were made by my husband, Marshall B. Pierce, with Bradner Smith and Mary A. Smith, his wife, through Mary A. Smith, with respect to the future care, custody, nurture, and services of the complainant, Hattie Pond, then Pierce, by which they were to keep her, and raise her as their own child, giving her the advantage of a good education, and were to leave her their property, whatever it was, when they were done with it, in consideration of the future care, nurture, and services of the complaint. This agreement was entered into at our house in Savanna. I was present when the arrangement was made. I think it was in 1857. I don't know that any one was present except Mr. Pierce, myself, and family. Mrs. Smith made the contract on the part of Bradner Smith and herself. They resided at Galena at that time. Mrs. Smith at that time said, concerning when Hattie, the complainant, was to have the property of the Smiths, that she was to receive the property when they were done with it; she was to have all they had. She had always expected to take Hattie, but never had claimed her until Mr. Pierce was married, when she thought she ought to have her. Mary A. Smith meant by that expression, ‘when they were done with it,’ referring to their property at their death. Marshall Pierce, my husband, and I, supposed them to refer to the death of Mr. and Mrs. Smith. After the arrangment was entered into as above, Mrs. Smith took the complainant home with her to Galena.' The declarations of the Smiths, on different occasions during the time that Hattie resided with them, were proven by several witnesses, to the effect that what they had would be hers when they were through with it; that she would be an heir, etc.,-but no person now living heard the contract except Mrs. Pierce, whose evidence is given above. At the time the arrangement relied upon was made, Smith owned real and personal property; and, as heretofore shown, he owned real and personal property at the time of his death. Mary Smith, the wife of Bradner, died May 21, 1885; and the latter died March 31, 1887. There is no controversy in regard to the fact that complainant, from the time she was 4 years of age until she married, at the age of 29, on October 10, 1880, resided with the Smiths as a member of their family. She was boarded, clothed, and educated by them; and at the same time she performed such services as is usual in a family occupying the position in society that the Smiths occupied. So far as appears, she was treated as a child, and no doubt performed the same services, and received the same advantages, in education, clothing, and other respects, that she would have received if she had been a child of the Smiths. Whether Bradner Smith, in raising complainant from infancy to womanhood, in clothing and educating her, in aiding her to consummate an advantageous marriage, in giving her property, did all that, in morals, he should have done, is not a question which we are called upon to determine. The complainant seeks by her bill the specific performance of a parol contract. Under the...