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Curtis v. Fisher

OPINION FILED JANUARY 18, 1950.

FANNIE K. CURTIS, APPELLANT,

v.

PEARLE IRENE FISHER ET AL., APPELLEES.



APPEAL from the Circuit Court of Champaign County; the Hon. MARTIN E. MORTHLAND, Judge, presiding.

MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:

Per CURIAM:

Rehearing denied May 15, 1950.

This suit involves the settlement of the estate of Thomas Elmer Curtis who became deceased while temporarily residing in Florida, on January 26, 1947. The appellant, who was the widow, filed a complaint in the circuit court of Champaign County, seeking to set aside certain deeds, leases and other instruments, which she alleges were procured from her by fraud arising out of a fiduciary relation existing between the parties.

The appellees are the son and daughter of Thomas Elmer Curtis, deceased, by a previous marriage. After a motion to strike was overruled, the defendants answered, denying all the material averments in the complaint. It is their contention that all of the conveyances and leases were freely and voluntarily given and that the appellant desired to make a gift of certain farm lands to the appellees.

The cause was referred to a master in chancery before whom voluminous testimony was taken, consisting of more than 1000 pages. He filed a report finding for the appellees and recommended that the widow be denied any relief and that the complaint as amended be dismissed for want of equity.

On a hearing in the circuit court, the chancellor overruled exceptions to the master's report and entered a decree dismissing the complaint for want of equity, including a finding that there was no fiduciary relationship, either formal or informal, between the plaintiff and the defendants.

The claim of the appellees that the appeal should be dismissed was presented to this court by a previous motion and will not be further considered.

The plaintiff, Fannie K. Curtis, was married to the decedent, Thomas Elmer Curtis, in January, 1918, and resided with him until his death in Florida on January 26, 1947, a period of twenty-nine years. Thomas Elmer Curtis, at the time of his death, left an estate of approximately $200,000, a large part of which was accumulated during the 29 years he lived with the plaintiff. Thomas Eugene Curtis, the son, was a prosperous farmer and businessman in his own right, and Pearle Irene Fisher, the daughter, was in comfortable circumstances.

During all the married life of the plaintiff, she had lived in entire harmony with both of the defendants. She treated them much the same as if they were her own children, and the defendants were on friendly terms with appellant. The evidence does not disclose any disagreement or trouble between the parties during the twenty-nine-year period. All the land acquired by Thomas Elmer Curtis during that period was taken in his own name with the exception of one forty-acre tract and the winter home in Braden-town, Florida.

Thomas Elmer Curtis left a will, which has since been admitted to probate in Champaign County. He devised 140 acres of farm land and a residence property, all near Champaign, Illinois, to his wife in fee. A farm consisting of 160 acres of land in Champaign County was devised to Thomas Eugene Curtis, the son, for the period of his natural life with remainder over to the children of said son in fee. He also devised to Pearle Irene Fisher 160 acres of Champaign County farm land in fee, but by a codicil this gift to the daughter was reduced to a life estate with remainder over to a son of Pearle Fisher. All the rest, residue and remainder of the property was given to his wife, Fannie K. Curtis, subject only to the payment of debts and funeral expenses, with the further provision that in the event that the residue of the estate was insufficient to pay debts, costs, expenses and taxes, the wife and the two children would each contribute in cash to the estate one third of such deficiency. The will appointed the defendant, Pearle Irene Fisher, as executrix, and in the event of her death, disability or refusal to act, appointed the defendant, Thomas Eugene Curtis, successor-executor.

The widow, plaintiff in this suit, was 72 years of age and under no legal disability at the time of her husband's death. Pearle Irene Fisher at that time was 54 years of age and Thomas Eugene Curtis 52 years old. The decedent left more than sufficient personal property to pay all his debts, but not sufficient to pay all death taxes.

Thomas Elmer Curtis was taken sick in December, 1946, and his illness lasted about four weeks. His death occurred in Florida on Sunday, January 26, 1947. His body was taken to Champaign, Illinois, on Tuesday, January 28. Funeral services were held on Wednesday, January 29. Mrs. Pearle Fisher had been notified by the widow that she was named as executrix in her father's will and that it could be found in decedent's box at the Trevett-Mattis Bank in Champaign. On Thursday morning, the day after the funeral, Mrs. Fisher accompanied by her brother called at the bank, procured the will from the box, concluded that they should have a lawyer to explain its provisions, and, upon the suggestion of Thomas Eugene Curtis, James Wheat, who had been retained by the brother theretofore in legal matters, was called. He came to the bank and read over the will. For the purpose of verifying the descriptions of land in the will, they left the bank and met at Wheat's office about 1:15 P.M. the same day. Mrs. Fisher, as executor of the will, retained Wheat to represent the estate. About 2:30 the same afternoon the widow, Mrs. Fannie K. Curtis, was brought to the law office and all of the deeds and instruments in question were executed, together with the reading of the will of Thomas Elmer Curtis, the signing of inheritance-tax consents and the discussion of other matters pertaining to his estate. At that time two deeds were drawn for and executed by Mrs. Curtis, conveying the 140 acres of land devised to her in fee by the will to one V.E. Webb, a stenographer in the law office, and a stranger to Mrs. Curtis. Later a Mrs. Mildred Roth, another employee in the law office, took the acknowledgments. At the same time V.E. Webb conveyed by quitclaim deed eighty acres of the same land to the appellant for life with the remainder in fee simple absolute to appellee Thomas Eugene Curtis. At the same time V.E. Webb further conveyed by quitclaim deed the remaining sixty acres to the widow for life and the remainder in fee simple absolute to appellee Pearle Irene Fisher.

Two farm leases were also executed by the appellant, Fannie K. Curtis, one leasing the eighty-acre tract to Pearle Irene Fisher for the period of the lifetime of the widow and the other by similar instrument leasing the remaining sixty acres of the land in controversy to appellee Thomas Eugene ...


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