Scott v. Harris

• Decision Date: 30 March 1885
• Citation: 113 Ill. 447
• Parties: ROXANNA SCOTT et al.v.RACHEL A. HARRIS et al.
• Court: Illinois Supreme Court

113 Ill. 447

ROXANNA SCOTT et al.

v.RACHEL A. HARRIS et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 30, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.

Mr. GEORGE S. WILLITS, and Mr. ALEXANDER S. BRADLEY, for the appellants:

The Statute of Frauds was not pleaded or attempted to be set up in apt time. Carpenter v. Davis, 72 Ill. 17.

The conduct of the widow in keeping the children of her husband away during his last illness, and in alienating his affection for them, and her refusal to converse on the subject immediately after his death, creates a strong suspicion of fraud, which, coupled with proof of her refusal to carry out an agreed trust, throws the burden of proof on her to show the transaction was a fair one, and discredits her testimony.

As to refusal to allow amendments changing the grounds of defence, or setting up unconscionable defences, see Howe v. Russell, 36 Maine, 115; Beach v. Fulton Bank, 3 Wend. 583.

Upon principle, appellee can not detail conversations herself, and where we seek to contradict her, interpose successfully the Statute of Frauds, even if regularly pleaded. Fire Ins. Co. v. Reynolds, 36 Mich. 502; 1 Wharton on Evidence, 584.

The answer of appellee is a sufficient admission of a trust. Perry on Trusts, sec. 82; McLaurie v. Partlow, 53 Ill. 340.

If the deeds were intended as a security to Rachel, against the incumbrance on her homestead, the statute does not apply. Wright v. Gay, 101 Ill. 240; Ruckman v. Alwood, 71 Id. 155.

The privilege of an attorney is to protect the living, and can not be invoked when the question arises as to the intention of a deceased person in respect to the disposition of his estate. Russell v. Jackson, 9 Hare, 387; Blackburn v. Crawford, 3 Wall. 175; 1 Wharton on Evidence, sec. 591; 1 Taylor on Evidence, sec. 928.

Communications in presence of both parties are not privileged. 1 Hill, 33; 3 Barb. Ch. 528; 30 N. Y. 330; 29 Ala. 254; Wharton on Evidence, sec. 587.

An open communication from one party to another, through the first party's attorney, is not privileged. Ripon v. Davis, 2 Nev. & Man. 310.

By voluntarily going on the stand and relating her conversations with Asay, appellee waived the privilege. 1 Wharton on Evidence, sec. 584.

Mr. THEODORE SHELDON, and Mr. ROBERT HERVEY, for the appellees:

As to the degree, amount and character of evidence to establish an express trust, see Miller v. Stokely, 5 Ohio St. 194; 2 Reed on Statute of Frauds, sec. 836; Lantry v. Lantry, 51 Ill. 466.

The communications of Harris in his lifetime, and those of appellee after his death, to Asay, their attorney, were privileged. People v. Barker, 56 Ill. 299; Wood v. Thornly, 58 Id. 464; Thorp v. Goewey, 85 Id. 615; Greenleaf on Evidence, sec. 243.

Parol proof of an express trust was barred by the plea of the Statute of Frauds. Lantry v. Lantry, 51 Ill. 465; 2 Reed on Statute of Frauds, secs. 851, 871; Adams v. Adams, 79 Ill. 517; Wilson v. McDowell, 78 Id. 518.

Mr. HENRY A. FOSTER, for certain minor appellees.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This is a controversy between certain children and a grandchild of the first wife of Jacob Harris, deceased, on the one side, who are complainants, and his second wife, Rachel Ann Harris, one of the defendants, on the other. The complainants claim as devisees under a will made by Jacob Harris on the 28th day of September, 1876, and Rachel Ann Harris claims under deeds delivered to her on the 1st day of September, 1877. The will makes Rachel Ann Harris executrix, and empowers her to sell and convey the real estate, as well as the personal property, for the payment of debts, and gives, after the payment of debts, to her and to her and the testator's infant daughter, Laura M., jointly, share and share alike, one-half of the balance of the estate, and to the complainants, in shares, as therein specified, the other half of the balance of the estate. The deeds convey certain real estate therein described, to one Sidwell, and from him to Rachel Ann Harris, in fee, without any words of limitation or qualification. Jacob Harris died on the 11th day of September, 1877,--eleven days after the making of the deeds,--and the will was duly probated in apt time.

The bill, as originally filed, charges, in substance, that Rachel Ann acquired an undue influence over the mind of Jacob, and then alienated his affections from the children of his first wife; that during his last illness his mind became weakened by disease, and while it was thus weakened by disease, and she had such undue influence over it, she falsely represented to him that his estate was in a bad financial condition; that she was trustworthy, and competent to manage it; that it was necessary for her to have the title to the real estate in order to handle and dispose of it to the best advantage, and that if he would place it in her name she would conserve it, and administer it in accordance with the terms and directions of the will,--all which representations are specifically alleged to have been knowingly false. It is then charged that the deeds were made solely in consequence of these false representations, and that by reason thereof a trust exists in behalf of the complainants to have the real estate held and disposed of in accordance with the terms of the will. These allegations are all denied by the answer of Rachel Ann Harris, and she claims therein that the conveyances were made freely and voluntarily by Jacob Harris, for the purpose of investing her with the fee simple title, absolutely, in the lands therein described. Replication was filed to the answer, and evidence taken, and the cause was twice heard in the circuit court. On each hearing the court decreed that the bill be dismissed.

Some time after the bill was filed, and before the first hearing, the complainants filed an amendment thereto, wherein they alleged that the conveyances were made by Jacob Harris for the better management of the property, and to secure Rachel Ann against loss on account of her having permitted Jacob to include her homestead, which was her separate property, in a mortgage with this property, to secure a loan, which he obtained, of $50,000; and it is charged that “such was the intent of said Jacob, and the understanding and agreement of him with said Rachel, and that said deeds were obtained upon the promise of said Rachel to treat said conveyance as a trust, and by the undue influence and fraud of said Rachel.” After the first hearing, the court, on petition of the complainants, ordered the cause to be re-heard, and after that order was made, and before the second hearing, Rachel Ann Harris, by leave of the court, filed an amended answer, in these words:

“And this defendant, further answering the said amended bill of complaint, says that none of the several supposed declarations or creations of trust or confidences in the said amended bill of complaint mentioned as having been made, done or created by the defendant, Rachel Ann Harris, after the death of said Jacob Harris, are, nor were, nor was, nor is, in any memorandum, or note thereof, in writing, signed by this defendant, or by said Jacob Harris, or by any other person by law enabled to declare such trusts according to the form of the statute in such cases made and provided, and known as the Statute of Frauds and Perjuries,--and therefore this defendant, by leave of court first asked and obtained for that purpose, doth interpose the said Statute of Frauds and Perjuries to the said complainants' amended bill of complaint, and prays that the same be considered by this honorable court as though it had been fully and specially set forth by way of plea herein.”

There is not sufficient evidence to maintain the allegations of undue influence and of fraudulent misrepresentation. The evidence clearly shows that the affection of Jacob Harris for the children of his first wife was warm, and that it continued until the very last--with a single exception. His son Henry W. gave him some trouble by his conduct, which caused him to be dissatisfied with him. That he was justly thus dissatisfied, seems probable, but it does not appear to have produced permanent ill-will, and there is no evidence whatever showing a perverted judgment with regard to his children, and a willful purpose to do any of them injustice. There is not a particle of proof that Rachel Ann Harris ever influenced Jacob Harris in a single business transaction, and caused him to execute her will rather than his own. There is no evidence that she ever solicited him to make these deeds, nor that he was in anywise dominated by her will. There is some evidence that she and some of the children of the first wife were not at all times on the most friendly terms of intimacy, and one or two of the daughters testify to declarations of his tending to show that he preferred that she should not know of his friendly attentions to them-- at most but the manifestation of a very natural desire to avoid cause of domestic altercation, where such altercation could lead to no beneficial result. There is no evidence that Rachel Ann ever misrepresented any fact to Jacob Harris.

But, beyond the allegations of undue influence and fraudulent misrepresentation, we have seen that the bill, as amended, charges that the deeds were executed upon an express trust, and if this charge is sustained by sufficient legal proof, admissible under the pleadings, the decree below will have to be reversed.

The only witness whose evidence goes to the extent of proving that the deeds were executed upon an express trust, is E. G. Asay, an attorney at law. He testifies to certain declarations made by Jacob Harris in his lifetime, and also to certain admissions made by Rachel Ann Harris to him since the death of Jacob Harris. Different objections exist against the reception in evidence of these declarations and admissions, and...