Stephenson v. Kulichek

• Decision Date: 21 September 1951
• Docket Number: No. 31826,31826
• Citation: Stephenson v. Kulichek, 101 N.E.2d 542, 410 Ill. 139 (Ill. 1951)
• Parties: STEPHENSON et al. v. KULCHEK.
• Court: Illinois Supreme Court

Page 542

101 N.E.2d 542

410 Ill. 139

STEPHENSON et al. v. KULCHEK.

No. 31826.

Supreme Court of Illinois.

Sept. 21, 1951.

Rehearing Denied Nov. 19, 1951.

Francis J. Higgins, of Chicago, for appellants.

Scott, Sakelson, Tyrrell & Collias, of Chicago (Joseph T. Tyrrell, Chicago, of counsel), for appellee.

MAXWELL, Justice.

This is a suit instituted by appellants Lottie Stephenson and Irene Kaminskas, sisters, against appellee Frank Kulichek, a brother, in which they sought to establish a constructive trust with respect to an undivided two-thirds interest in a parcel of Chicago real estate upon which was located a three-story six-family apartment building, and prayed for an accounting. This appeal is from a decree of the superior court of Cook County dismissing the amended complaint for want of equity and comes here directly since a freehold is involved.

On November 17, 1942, Josephine Kulichek, mother of all the parties hereto, conveyed the real estate by warranty deed to her son, Frank Kulichek. Plaintiffs contend that the defendant induced his mother to execute the deed to avoid probate costs at her death, upon his representation that he would hold title until her death and would then convey a one-third interest in the property to each of the plaintiffs or dispose of the property and divide the proceeds equally between the three of them. All of this the defendant denied, and alleged that it was his mother's desire and intention that the entire title be vested in him and that the plaintiffs should have no interest in the premises.

The pleadings and the evidence disclosed that the mother was, at the time of making such deed, of the age of 72 years; that she was foreign born and unable to read or write English; that she had been widowed since 1921; that she and the defendant, who was 36 years of age at the time of the making of the deed, had always lived together and then resided in one of the apartments in the building; that she was ill from time to time suffering from diabetes and was confined to her bed just prior to and at the time of the execution of the deed. Although she was ill enough to have a doctor and a priest about this time, she recovered within a month and enjoyed fair health until her death in July, 1948.

There is considerable conflict in the testimony surrounding the execution of the deed. The defendant testified that about a week before the signing of the deed, his mother did not feel well and asked him to call Samuel Fabry, a notary public who had previously drawn papers for her, as she wanted to turn the property over to Frank. He further testified that at her request he called Fabry to their home in the afternoon of November 17, 1942; that Fabry talked to his mother in Slovak, which was practically the same as Bohemian; that she told Fabry to draw a deed to the property, and to another property not in question, in favor of Frank; that Fabry asked for the abstracts and he gave them to him; that Fabry came back the same afternoon with the prepared deeds and that his mother sat on the edge of the bed and signed them. Defendant further stated that Fabry asked for a witness and that defendant called his niece, Irene McElroy, from an adjoining room, and she signed the deed in question as a witness, and he then called one Anna Sallenka, a tenant from upstairs, who also signed as a witness; that Anna sat on the bed and talked to Josephine but defendant did not relate their conversation. He denied categorically that he promised his mother to convey any interest in the property or to divide the proceeds of the sale with the plaintiffs and denied that his mother told the notary or the witnesses that she was conveying it to him under such a promise. He admitted that there was no monetary consideration for the property.

The niece, Irene McElroy, testified that she was a daughter of the plaintiff Lottie Stephenson and had lived the greater portion of her life with her grandmother, Josephine Kulichek; that she was in the room adjoining the bedroom of her grandmother about 45 minutes before she witnessed the deed; that she heard a conversation in Bohemian which she understood but could not speak; that she heard the defendant tell his mother that if anything happened to her to courts and lawyers would get everything and he wanted her to put title in him and that if anything happened to her he would divide it so that all three of them would get the same. She further testified that about 45 minutes after that conversation Fabry came and went into the bedroom; that Josephine talked to him in English and told him that she was conveying everything to Frank and he was going to take care of everything and divide it equally; she further testified that while Fabry was there she was going to the kitchen and saw Frank sitting on the bed holding Josephine's hand helping her sign something, and that her grandmother was then lying in bed and too weak to sign by herself. She stated she was called into the bedroom and witnessed the deed, and testified positively that it was about 8:45 in the evening. She further testified that Frank then went and got Anna Sallenka to witness the deed, and when Anna asked Josephine what the signing was all about she said that Frank had told her it would be best to convey everything to him and he would divide it with the girls so all three would get the same, and that during that conversation Frank said that was the way they wanted it.

Anna Sallenka testified that she had lived in the building for seven years prior to November 17, 1942; that she was not related to any of the parties but knew them well; that Josephine was very sick from October to about Christmas in 1942; that during that time she went down to Josephine's apartment three or four times a day; that she took soup to her and gave her milk and water and otherwise ministered to her needs. She further testified that she was called about 9:00 o'clock in the evening of November 17, 1942, by the defendant, to witness a deed to the house. She said she asked Josephine Kulichek the question, 'Did you sign Frankie the house over?' and that Josephine Kulichek replied that it was only so that if she should die it would not have to go to probate court and he could sell the house and divide it in three shares and give each one of the girls a share.

These three witnesses were the only ones to testify to the execution of the deed, as the record shows that Fabry, the notary public, died prior to the hearing. The original deed, which is part of the record, discloses the signature of Josephine Kulichek to be very large, scrawled, covering two lines with practically each letter of the name separated and barely legible. The consideration stated in the deed is ten dollars and other good and valuable consideration, and attached thereto are documentary stamps for $7.70, each of which were cancelled as follows: 'S.F. 11-18-42.' The deed was lodged for record on November 18, 1942, at 12:11 P.M. There was little evidence as to business transactions by the mother. The defendant testified that sometimes he ordered repairs for the property and sometimes his mother did so. He further testified that she did not have any business dealings, that the only things she had were some real-estate bonds, and that at her request he attended bond meetings and reported to her what was said at such meetings.

There was evidence that the mother owned other property which had been conveyed to her by an uncle of the parties hereto and that she signed a deed to the other property to the defendant the same day. Anna Sallenka denied witnessing more than one deed. Frank conceded that the other property was conveyed to him with the understanding that he was to carry out the uncle's wish to pay the uncle's funeral and other expenses and to divide the balance between himself and Irene Kaminskas, and stated such division had since been made and that he had receipts. The record is not clear but tends to show that there was litigation between Irene and Frank before her share of the proceeds of the sale of that property was paid to her. The parties did not see fit to introduce the other deed in evidence and it is not in itself material here, but the fact that it was conveyed without restriction upon Frank other than a verbal understanding is highly significant of the faith and confidence reposed in him by his mother.

While the pleadings are not...