Wurth v. Hosmann

• Decision Date: 27 November 1951
• Docket Number: No. 31911,31911
• Citation: 102 N.E.2d 800,410 Ill. 567
• Parties: WURTH v. HOSMANN.
• Court: Illinois Supreme Court

Page 800

102 N.E.2d 800

410 Ill. 567

WURTH v. HOSMANN.

No. 31911.

Supreme Court of Illinois.

Nov. 27, 1951.

Rehearing Denied Jan. 21, 1952.

James Percival Pio, and Myer H. Gladstone, both of Chicago, for appellant.

Daniel A. Gallagher, of Chicago, for appellee.

FULTON, Justice.

Fred Wurth, the appellee, brought this suit in the circuit court of Cook County, seeking specific performance of a contract to convey a farm of approximately 56 acres in Oak Lawn, Illinois, under an agreement with his uncle, Fred Hosmann. It is claimed that the uncle promised to leave the farm to his nephew, Fred Wurth, if the nephew would stay on the farm and help his uncle until the latter's death. The suit was brought against Lottie Irene Hosmann, wife of Fred Hosmann, to whom the property was conveyed on October 12, 1943. The cause was referred to a master in chancery, who found the issues for the plaintiff. His report was approved by the circuit court and a decree entered in accordance with the conclusions of the master, from which decree an appeal has been taken to this court, a freehold being involved.

The complaint filed by appellee alleges that his uncle, Fred Hosmann, entered into an agreement with the plaintiff that if plaintiff would stay and work on the farm with him, the said Fred Hosmann would devise and bequeath to the plaintiff, by his last will and testament, his farm property, together with the farmhouse, farm buildings, furniture, household goods and effects, consumable stores and provisions, crops, live stock, poultry, tools, implements, and other property belonging to the said farm upon the death of the said Fred Hosmann.

The complaint further stated that plaintiff accepted the same and completely performed his part of the contract; that on November 21, 1936, Fred Hosmann made and executed an instrument purporting to be his last will and testament devising and bequeathing all of said property to the plaintiff; that on October 9, 1943, Fred Hosmann married the defendant, Lottie Irene Hosmann, and on October 12, 1943, he conveyed the said real estate to one Nettie D. Phillips, who in turn on the same date, conveyed the real estate to Fred Hosmann and Lottie Irene Hosmann jointly; that on October 7, 1946, after the death of Fred Hosmann, there was filed for record with the clerk of the probate court a will purporting to be the last will of Fred Hosmann, in which he left all of his property to his wife, Lottie Irene Hosmann, but that no estate had ever been opened for the purpose of probating said will.

The complaint also alleges that the will of Fred Hosmann, dated November 21, 1936, making plaintiff the sole beneficiary has never been found and that Lottie Irene Hosmann has refused to carry out the terms of the said agreement entered into between the plaintiff and Fred Hosmann. Attached as an exhibit to the complaint was a copy of the will dated November 21, 1936.

The answer of the defendant denied the material allegations of the complaint and particularly denied that any such contract had been entered into or that plaintiff had worked on said farm without adequate remuneration. She further alleged that she and Fred Hosmann occupied the farm as their homestead from the date of their marriage until the date of Hosmann's death and that she is still in possession of said premises.

Briefly, the evidence of plaintiff, Fred Wurth, shows that in June, 1912, shortly after the death of his mother, he went to live on the Hosmann farm with his maternal grandmother and two bachelor uncles, Henry and Fred Hosmann; that he graduated from grammar school in 1917; that he continued to live and work on the farm but never received any pay for his work until 1920; that his father died previous to 1920 and up until that time his father had bought all his clothes and furnished him with spending money; that his uncles then began to pay him $12 a month for his services on the farm and he purchased his own necessities from that salary. After two years he told his uncles he needed more money and so they paid him $15 a month. At the time they began paying him $15 a month, the plaintiff was about 20 years of age and they continued paying him this salary until 1925; that during the year 1925 the Hosmann brothers sold twenty acres of the farm for $20,000 cash. After that they gave him $25 a month until 1928. Plaintiff then asked his uncles for more money and after two or three days' deliberation they told him they had decided to pay him $30 per month, but they couldn't give him any more at that time and that 'they were going to take care of me later on, as the farm would be mine.' Plaintiff was paid $30 a month until June, 1936. In the meantime, Henry Hosmann had died and plaintiff told his uncle, Fred Hosmann, that he had twice as much work to do since Henry was gone; that he was then 33 years of age and had prospects of better jobs that would pay him more money; that Fred Hosmann replied to this statement by saying that he knew he was not paying plaintiff enough money, but he said, 'If you will stay with me and we will run the farm the same as we did before, I agree right now to leave you the farm and all the implements, livestock and household goods after I die.' Plaintiff replied that he would like to see that in writing and Hosmann said he would make arrangements to have it put in writing. Later Hosmann showed plaintiff a will he had executed on November 21, 1936, and stated, 'Fred, I have made my Will and I want you to read it.' After reading it, Hosmann asked plaintiff if he was satisfied and plaintiff replied that he was.

By the terms of this will, Fred Hosmann devised and bequeathed to his nephew, Fred Wurth, by legal description, the farm of 55.742 acres and all of the personal property located on the premises. The will was prepared by Thomas W. Winton, Hosmann's lawyer, duly signed and sealed by Hosmann and properly attested by three witnesses. At that time plaintiff was 33 years of age and unmarried. After that date he continued to live on the farm and received for his services $30 per month until 1940. During the year 1940 he did not receive any money and from 1940 on, plaintiff furnished most of the money for running the farm, the food, repairs, etc. Five years later in May, 1945, Lottie Irene Hosmann told him she now owned the farm and ordere him off. Between 1943 and 1945 she did not live on the farm but resided at a tavern about two blocks from the farmhouse. From 1943 on Fred Hosmann purchased the food. In 1932 plaintiff received $700 as a result of the accidental death of his father, and approximately $4000 from the estate of his mother. When he left the farm, Fred Hosmann owed him $1500 for back wages and for expenses he had advanced for the running of the farm, and he took cattle and machinery in place of payment. After leaving the farm, plaintiff asked Hosmann many times about their agreement and Hosmann replied that he would have to see Lottie because 'she is running things now.'

The plaintiff was corroborated by sustantial witnesses. Thomas W. Winton, a lawyer of standing, William J. Narten, a reputable licensed real-estate broker, and Mildred Reinke, all of whom testified that frequently and repeatedly they asked the Hosmann brothers and Fred Hosmann why they did not pay Fred Wurth higher wages, and that each time they received the same reply, 'Well, he is going to get the farm anyhow. One of us will see that he gets the farm.' 'Oh, Fred is all right, he knows that everything we have is his if he stays with us and works the farm.' 'They had their agreement about if he worked the farm and stayed there, they would leave everything to him,' also, many and often repeated similar statements. It appears from the record that Fred Wurth was receiving $300 a year as wages, when other farmhands in the vicinity were receiving $1000 per year. Thomas W. Winton...