White v. Ross

• Decision Date: 11 October 1895
• Citation: 43 N.E. 336,160 Ill. 56
• Parties: WHITE et al. v. ROSS.
• Court: Illinois Supreme Court

160 Ill. 56

43 N.E. 336

WHITE et al.

v.ROSS.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from circuit court, Cook county; Samuel P. McConnell, Judge.

Bill by Alexander Ross against James B. White and others. From a decree for complainant, defendants appeal. Affirmed.Ira W. Buell and Sidney Smith (Thomas Dent, of counsel), for appellants.

Wallace Heckman and James G. Elsdon, for appellee Eugene S. Pike.

William R. Plum, William P. Black, and John W. Showalter, for other appellees.

CARTER, J.

The original bill in this case was filed by Annie C. White, since deceased, against her mother, Ann White, also since deceased, and her brothers, Alexander and James B. White, and her sisters, Elsie and Mary S. White, and others, to set aside certain conveyances of real and personal property derived from her father's estate, and to ascertain and declare her interests therein, and for an accounting. The case has been twice tried in the circuit court of Cook county, but by different chancellors, and upon each trial a decree was rendered for the complainant, setting aside said conveyances, excepting, however, by the terms of the last decree, as to certain paintings of considerable value, which were held to have been a reasonable gift from the daughter to her mother. The first decree was reversed by this court for the refusal of the trial court to permit Alexander White, one of the defendants, to testify on behalf of his codefendants. The opinion of this court rendered on that appeal is reported in 147 Ill. 427, 35 N. E. 541. The substance of the pleadings and the principal facts are stated in that opinion, and need not now be repeated. On the second hearing Alexander White was permitted to testify, but substantially the same conclusion was reached by the trial court as on the first hearing.

Very soon after filing her bill, Annie C. White, who had for several years been domiciled in New York City, married Alexander Ross, who, on her death in that city, in January, 1891, by virtue of her last will, succeeded to all her property rights as her sole devisee and legatee, and as such devisee and legatee, and as executor of her will, he afterwards became the sole party complainant in this cause. Ann White, the mother, died in April, 1890, leaving by her last will all her property, embracing that conveyed to her by her children, which included the share of her daughter Annie now in controversy, to three of her children, James, Elsie, and Mary.

The allegations of the bill respecting the execution, acknowledgment, and delivery of the several deeds transferring the property to the mother, Ann White, and the reasons and consideration therefor, are sufficiently stated in the former opinion. The evidence is somewhat voluminous, and will not be here stated in detail. We have carefully examined and considered it, and are of the opinion that it fully justifies the conclusion reached by the learned chancellor of the circuit court as to the main facts, and which, for the purposes of this decision, so far as not already stated, may be briefly summarized as follows: Both before and after the death of Alexander White, Sr., his family, though having their home in or near Chicago, spent a considerable portion of their time in the city of New York, where the children were educated. Annie C. was the youngest daughter, and became 18 years of age June 12, 1873, and was, therefore, past 28 years of age when she executed the first deed to her mother, July 14, 1883, and upwards of 32 when she made the second deed, in January, 1888, alleged to have been made to take the place of the deed of 1883, which was lost or destroyed. The daughter Annie, although an invalid, and somewhat of a pet in the family, took up her abode in New York in the fall of 1884, and never thereafter returned to Chicago. A visit which she proposed to make in 1887 was advised against by her family. She had returned to Chicago, after a temporary absence, shortly before executing the deed to her mother of date July 14, 1883. The deed of January 18, 1888, was prepared in Chicago, and sent to her in New York to be executed. The management of her interest in her father's estate had been wholly committed to other members of the family, and she had very little knowledge of what was being done with it, or of its extent or value. For convenience in management, leasing, subdivision, and sale she had conveyed certain parcels of real estate to her brother James, and certain other parcels to her sister Elsie, who afterwards included the same property, or what remained undisposed of, in their conveyances to their mother. No account was rendered to her, but she received regular remittances from some member of the family in Chicago up to the time of her marriage, sufficient, at least, until a year or two before her marriage, to provide for her comfortable maintenance suited to her condition in life. Generally the letters to Annie were written by her sister Elsie, who wrote with apparent authority from her mother and the rest of the family. The family had broken up housekeeping before she took up her home in New York, and lived at one of the hotels in Chicago when not sojourning in Europe or elsewhere. After her establishment in New York a new and expensive residence was purchased and fitted up in Chicago, and was occupied by the family for several years without her knowledge, she being kept in ignorance of the new home established by her mother, brothers, and sisters, and in the belief that they were still living at the hotel. The explanation given for thus apparently excluding her from the family circle, and from all knowledge that they were living in the quiet of their own home instead of at a public hotel, was, in part, that it was found unpleasant to keep house with her because of her interference and inability to get along with the servants employed in the family. She had expressed a wish to one Reynolds, a friend of the family, to accompany him from New York to Chicago on a visit. He, not feeling at liberty to bring her without first having obtained the consent of her family, wrote and mentioned her request. Elsie White, in her testimony, speaking of the letter from Reynolds and her answer, says: ‘It was simply saying that my sister had expressed a desire to accompany him to Chicago the next time that he came here, and that he did not care to accept that responsibility without writing to us, asking whether it would be agreeable,-something of the kind. I replied to the letter, and remember the substance of the reply. I said I was obliged to him for the interest he took in the matter, but that we saw no reason to change the opinion expressed the last time we saw him here in Chicago at our home, and we thought at present it would be desirable for my sister to remain in New York; that my brother Alexander was there, and would see that she had every attention. That is all I remember saying. It was a short letter. At the conversation referred to in the letter with Mr. Reynolds my mother was present. We referred to our once having requested Mr. Reynolds not to say that we were keeping house again. Either mother or I-I don't know which-said it, and we would have to request him again to please not say anything about it, for these reasons: We simply said that my sister, owing to her delicate health, and being the youngest daughter, had been spoiled and petted to such an extent that as she grew older she became very exacting, so that we were obliged to give up housekeeping two or three times; and my mother was so unhappy that we felt it our duty at present to keep our sister away; that we would see that she would not need for anything, and we thought her health was better, and under those circumstances we felt it would be wise and right, and our duty to our mother, to not have her a member of the family at present. We remarked that our sister had a marked preference for New York, and did not care to live in Chicago. When my sister was young, while her father was alive, he and the family, and all of us, were living in New York a great deal of the time. We made our home there. I think we lived there about ten years, and my sister and we all were at school there.’ There was evidence, however, tending to show that the members of the family had lived happily together, and the letters, mostly from Elsie to Annie in New York, show great affection for her, and interest in her welfare. She was addressed by pet names, and in coaxing terms, as might well be expected from an older sister writing with affection and authority for her mother as well as herself, to the youngest, who was in poor health, away from her home, and wholly dependent upon her family. Many of these letters were in reply to letters written by Annie C. White, but no letters from her were produced. The evidence shows that after the deed of 1888 was made, in reply to the inquiries of Annie C. as to when the estate would be divided, she was informed by her sister Elsie, to whom, with James, the management of the estate had been committed after it had been taken out of the hands of Alexander, that the estate would be settled and divided, and she would get her share, as soon as the Cotzhausen case should be disposed of. The deed of 1888 was not recorded until after the bill was filed. The deed of 1883 was never recorded, but leases, sales, and conveyances were made by the heirs, from time to time, in the same manner as before its execution. No rights were ever asserted under it until the bill in this case was filed, and Annie C. White did not seem to know that she had ever executed such a deed, as no mention was made of it in her original bill, and it was only after it was set up in the answer that it was embraced by amendment in the bill of complaint. This deed of 1883 was not produced at the trial, but witnesses were produced, who testified to its execution and its contents. Appellee Ross disputes the fact that any such deed...