Wallace v. Rappleye

• Decision Date: 30 June 1882
• Citation: 1882 WL 10311,103 Ill. 229
• Parties: JOHN SEELEY WALLACEv.CYTHERA M. RAPPLEYE et al.
• Court: Illinois Supreme Court

103 Ill. 229

1882 WL 10311 (Ill.)

JOHN SEELEY WALLACE

v.CYTHERA M. RAPPLEYE et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.Rehearing denied June Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding.

The appellant, John Seeley Wallace, a minor, by his guardian, Thomas Lord, on April 24, 1879, filed his bill for partition of real estate, against Frank R. Wallace, in her own right and as one of the administrators of their father's estate, and Albert P. Smith, the other administrator. The property in question descended to John Seeley and Frank R. Wallace from their father, John S. Wallace, who died intestate, December 25, 1878. Frank R. Wallace answered the bill, and alleged that Cythera M. Rappleye was a tenant in common of the real estate, and filed a cross-bill containing the same statement, and that she had executed a deed conveying to Mrs. Rappleye an undivided one-sixth of all the estate left by John S. Wallace, and making Cythera M. Rappleye, and her husband, Nicholas B. Rappleye, defendants. Mrs. Rappleye filed an answer and a cross-bill, alleging that John S. Wallace was, during his life, married to three different women,--to Harriet E. Bivens, June 25, 1834, who died in 1853; to Sarah M. Rich, August 15, 1853, who died in 1857; to Celia W. Whipple, February 28, 1865, who was divorced from him April 9, 1872; that Frank R. Wallace was daughter by Sarah M., the second wife, and John Seeley Wallace, complainant in original bill, was son of decedent and Celia W. Wallace, his third wife, and that complainant in the cross-bill was born March 7, 1845, when deceased and Harriet E. Bivens were husband and wife, residing and cohabiting together at Valparaiso, Indiana, and that her father was John S. Wallace, deceased, and her mother Jane Slover, an unmarried woman; that decedent executed and delivered to complainant the following instrument in writing:

“MRS. CYTHERA M. RAPPLEYE,

Wife of Nicholas B. Rappleye.

MY DEAR DAUGHTER: You were brought to me when an infant, and adopted as my daughter, with all the formality, as I believed, which was necessary to make you my lawful child, and entitled to be regarded as such. To show my unchanging affection for you, and my desire that no question may ever arise on this subject, I voluntarily, and with pleasure, declare you to be my daughter as much as if you were so born, and I expressly desire that no question may ever be made relative to your rights as such. To this declaration I set my hand and seal, at Chicago, Illinois, this 27th day of February, A. D. 1877.

+----------------------------+
                ¦J. SEELEY WALLACE. ¦[SEAL.]”¦
                +----------------------------+
                

The cross-bill further alleges that an agreement was entered into between Mr. Wallace and her mother, Jane Slover, in which Mrs. Wallace concurred, in which agreement Jane Slover, on her part, agreed, in consideration of the promises then made by Wallace to her on his part, to surrender the custody, control and education of the child about to be born, to the said Wallace and his wife, Harriet E., and thereafter make no claim to the custody or control of the child, and in consideration of said promises, and of the fact that he was the father of complainant, and liable for her maintenance under the statute of Indiana, and to an action for damages, Wallace, on his part, promised Jane Slover that he would receive the child into his family and adopt it as his own child, and thereafter would educate and treat it as his own child born in lawful wedlock; and further, that the said child should be an heir, and receive such share of the real and personal property as he might be seized or possessed of at the time of his death, as if she had been the lawful child of himself and wife. The bill prays that her right may be ascertained, and a decree entered enforcing said agreement.

The answer of John S. Wallace, Jr., by his guardian, admits the giving of the paper of February 27, 1877, but denies that it was intended to interfere with the rights of the lawful children, and denies the agreement alleged in the cross-bill. By way of further defence he sets up an agreement made on the 10th day of April, 1872, between Mrs. Wallace, the mother of the respondent, and John S. Wallace, as follows: “Whereas, on the 10th day of April, A. D. 1872, a decree was entered in the Superior Court of Cook county, on the chancery side thereof, in which Celia W. Wallace was complainant, and John S. Wallace was defendant, in and by which the marriage contract heretofore existing between said parties was decreed to be null and void, and in which said suit it was also decreed that said John S. Wallace shall secure to said Celia W. Wallace the sum of twenty thousand dollars ($20,000) upon certain real estate in the city of Chicago, payable in ten years, with interest semi-annually, at eight (8) per cent per annum. And whereas, said John S. Wallace is also to pay said Celia W. Wallace the sum of six thousand five hundred dollars ($6500) in cash, as alimony to said Celia W. Wallace, and in part consideration for the release of dower in the estate of said John S. Wallace, as well as for the maintenance of John S. Wallace, Jr., the son of the said John S. and Celia W. Wallace, the custody and care of said child being given to said Celia W. Wallace, and also for solicitor's fees and expenses incurred by said Celia W. Wallace in said suit:

Now, therefore, in consideration of the foregoing payment, the said Celia W. Wallace is to quitclaim and release all her dower rights and interests in and to all the property of said John S. Wallace, wherever the same may be situated, and in consideration of the foregoing release, and for the purpose of composing the differences heretofore existing between the aforesaid parties, and to meet the wishes of the said Celia W. Wallace, the said John S. Wallace does hereby covenant and agree that any property, real or personal, of which he may be possessed at the time of his death, shall be so divided that his said son, John S. Wallace, Jr., shall have the same amount or portion of any and all such property belonging to said John S. Wallace at the time of his decease, as the said John S. Wallace, Jr., would take under the law of Illinois were said John S. Wallace to die intestate, and that the said John S. Wallace, in any will now existing or hereafter executed by him, shall insert a devise or bequest in form proper to render the same effectual in favor of his said son, devising and bequeathing to him at his, said John S. Wallace's, death, the share and proportion of his estate, real and personal, hereinbefore specified, it being expressly understood that this agreement is not to be construed as the creation of a trust or use, present or future, in favor of said John S. Wallace, Jr., upon or in any estate which may now or hereafter belong to said John S. Wallace. It is also understood that the agreement shall in no way prevent the said John S. Wallace from making transfers, conveyances, sales, or other disposition of any property that he may now or become hereafter seized or possessed during his lifetime.

+----------------------------------+
                ¦(Signed)¦JOHN S. WALLACE.¦(L. S.)”¦
                +----------------------------------+
                

The answer alleges that Celia W. Wallace did, at the time of entering into said agreement, execute and deliver to said John S. Wallace deeds of release of all her dower right in all the property of said Wallace, the total value of his property being about $500,000, and his real estate $300,000. The Statute of Frauds and Perjuries was also set up.

Upon the hearing the Superior Court of Cook county made a decree establishing the claim of Mrs. Rappleye to one-third of the estate, as claimed in her cross-bill. John Seeley Wallace, by his guardian, appeals from the decree.

It appears in the case that in the year 1844 one Jane Slover, a girl of fifteen or sixteen years of age, was living in the house of John Seeley Wallace, in Valparaiso, Indiana, employed as a hired girl in the family. Wallace had a wife, but no children. There was a criminal intimacy between Wallace and the girl, and near the end of the year 1844 it was ascertained that a child would be the result. Wallace made an arrangement for Jane to go to Chicago to give birth to the child, and all the expenses were borne by him. About the first of January, 1845, Jane was taken by her father to Chicago, in pursuance of the arrangement made by Wallace. At this place, on the 7th of March, 1845, the child was born. It was left there, and Jane returned to her friends at Valparaiso. A short time after, Wallace and his wife went to Chicago, where they obtained the child, and took it home with them to Valparaiso. The child was thus received into the family and thereafter treated as a lawful child and daughter, and as such grew to womanhood in the family. The name of Cythera M. Wallace was given to her, and an entry was made by Wallace, in his own handwriting, in the family record, that Cythera M. Wallace was born March 7, 1845, and was the daughter of J. S. and H. E. Wallace. It seems to have been generally understood at Valparaiso that she was an illegitimate child. She was married November 9, 1864, to Nicholas B. Rappleye. Jane Slover married about a year after the birth of the child, and afterwards went to Kansas. Wallace, who had removed to Chicago, died intestate in December, 1878, leaving an estate of the value of between $300,000 and $400,000, and two legitimate children, Frank R. and John S., by his second and third wives. There was no question as to the execution of the two writings set out in the pleadings, and the release of dower.

Mr. H. B. HURD, for the appellant:

As to the great caution and distrust the parol evidence of parties' relatives is to be received in cases of this kind, counsel cited Stewart v. Robertson, 2 L. R. (2 Scotch and Divorce App.) 494; Roxburgh v. Watson, 7...