Toms v. Lohrentz
| Decision Date | 17 October 1962 |
| Docket Number | Gen. No. 11621 |
| Citation | 185 N.E.2d 708,37 Ill.App.2d 414 |
| Parties | Faith M. TOMS, Appellant, v. Elfrieda LOHRENTZ, Individually and as Administrator of the Estate of George M. Heyder, deceased; Frida A. Heyder, Anna Johnson and Elsie Kleinbeck, Appellees. |
| Court | United States Appellate Court of Illinois |
George Yellen, Chicago, for appellant.
Edward J. Vertovec, Elmhurst, for appellees.
A somewhat intensive courtship over almost four years serves as the launching pad for this litigation. Some six months after the death of her suitor and almost five months after the birth of her child, plaintiff, the distaff side of the relationship, filed her suit in two counts against the administrator of his estate and his heirs at law. Count I seeks specific performance of all alleged contract to make a will. The Chancellor heard the evidence and, at the close of the plaintiff's case, dismissed Count I for want of equity. Count II seeks to posthumously establish paternity, and enforce liability for necessary medical bills and support of the child against the estate and heirs of the putative father. On motion this count was dismissed and an appropriate judgment in bar was entered. This appeal followed.
Plaintiff seeks to mould her relief from undisputed facts as the defendants offered no evidence. Plaintiff and George M. Heyder initiated the courtship in 1956 and fanned the flame five or six nights a week until the untimely death of George on April 11, 1960. One of its fruits was a male child born to the plaintiff on May 26, 1960. This circumstance, or happenstance, as the case may be, together with photographs of the couple in evidence, dispel any thought that this was a simple, platonic friendship. At his request, plaintiff sought no other male companionship, gave him a free dandruff treatment at the beauty parlor, bought stamps, clothing, license plates and photographic materials for him, frequently shopped for him and performed secretarial work for him from time to time. As early as 1958 he said he would make out a will, take care of everything for Faith and she had nothing to worry about. He bought and gave to her an engagement ring on February 14, 1958. Finally, in November of 1959, at a family birthday party, George said, This is the material evidence as abstracted. This is the foundation of the suit. George was a mechanic earning about $110.00 per week and he left an estate of about $7,600.00. Five months passed after George drew the plans for his future and Faith's--plans which were never consummated because of his untimely death. It seems clear that the law must leave them as they were at that time--just plans.
It is but a truism to say that in a suit for specific performance of a contract to make a will, the contract must be explicit, clear and convincing. Greenwood v. Com. Nat'l Bank of Peoria, 7 Ill.2d 436, 130 N.E.2d 753. There isn't a syllable of evidence in this record that Faith promised to do anything and thus a mutuality of promises is wholly lacking. Only through blind credulity could we conclude that the services rendered by Faith were in reliance on George's promise to make a will rather than the ageless human chemistry of male-female affinity. Not only does the evidence fail to show any contract, but it fails to show any substantial change for the worse by the promisee in reliance on the alleged contract to make a will. Testimony in Greenwood, noted above, that the deceased said, 'I'm going to make a Will that...
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...child, no right of action survives the death of the putative father. See Carpenter v. Sylvester, supra; Toms v. Lohrentz, 37 Ill.App.2d 414, 417-18, 185 N.E.2d 708 (1962); K.K. v. Estate of M.F., 145 N.J.Super. 250, 253-56, 367 A.2d 466 (1976); In the Matter of Mary Ellen C. v. Joseph Willi......
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