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Franzen v. Hallmer

OPINION FILED JANUARY 18, 1950.

NETTIE FRANZEN ET AL., APPELLANTS,

v.

KATHRINA HALLMER ET AL., APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. WIN G. KNOCH, Judge, presiding.

MR. CHIEF JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT:

Nettie Franzen filed a complaint in the circuit court of Du Page County for specific performance of an alleged oral agreement to declare her the legally adopted child of Henry Hallmer and to entitle her to inherit his estate as such legally adopted child. The complaint was filed against Kathrina Hallmer, individually and as administratrix of the estate of Henry Hallmer, deceased, Henry Hallmer, Mary Schulz, William J. Leavy, also known as William J. Le Vay, Viola Seelau, Anna Olbrig, Sophie Kempert, Anna Wohler and Theresa Oliver. The defendant William J. Le Vay filed a counterclaim in which he prayed that he be declared the legally adopted child of said Henry Hallmer, and that he be entitled to inherit his estate as such legally adopted child. Answers were filed by each of the defendants to plaintiff's complaint and to the counterclaim filed by William J. Le Vay, denying all allegations concerning each of the alleged contracts or agreements for adoption and denying the right of plaintiff and counterclaimant to be declared heirs of the said Henry Hallmer, deceased, under and by virtue of any adoption contract, and, further, denying the right of said plaintiff or counterclaimant to the specific performance prayed for in said complaint and counterclaim. After disposition of motions an order was entered by the court to refer the case to a master in chancery for a full hearing. The master found that plaintiff, Nettie Franzen, failed to prove by competent evidence the contract alleged in her complaint, and that counterclaimant, William J. Le Vay, formerly William J. Leavy, failed to prove by competent evidence any or either of the contracts alleged by him in his counterclaim, and recommended that the complaint of plaintiff, Nettie Franzen, and the counterclaim of William J. Le Vay each be dismissed for want of equity. Exceptions to the master's report were overruled and the complaint and counterclaim were dismissed for want of equity.

Nettie Franzen, plaintiff, and William J. Le Vay, counterclaimant, appellants here, were born in Buffalo, New York, the children of John and Barbara Leavy. Barbara Leavy departed this life in the year 1904 and John Leavy died in 1905. After the death of the said Barbara Leavy, said John Leavy placed plaintiff, then of the age of about six years, and her brother, William, then of the age of about seven years, in the care of an orphanage in Buffalo, New York. Shortly after plaintiff's admission to said orphanage she was taken therefrom by her uncle, John Hallmer, of Buffalo, New York. It is alleged that while she resided with him she was taken to the home of another uncle, Henry Hallmer, and his wife, Mary Hallmer, who had no children and who resided in Chicago, Illinois; that plaintiff continued to live with them until the death of Mary Hallmer; that subsequent to the death of Mary Hallmer said Henry Hallmer married Kathrina Hallmer; that plaintiff resided in the home of said Henry Hallmer until her marriage at the age of twenty-one years.

William J. Le Vay, after the death of his parents as aforesaid, was admitted to the German Roman Catholic Orphanage, Buffalo, New York, at the age of seven years. On May 29, 1906, while he was still in said orphanage, Henry Hallmer, uncle of counterclaimant, and Mary Hallmer, his wife, being the same persons mentioned in plaintiff's complaint, entered into negotiations with said orphanage for the adoption of counterclaimant. It is alleged that after said negotiations counterclaimant was taken to the home of Henry and Mary Hallmer and continued to reside there until he became twenty-one years of age.

It is contended by the appellants that the trial court erred in overruling exceptions to the master's report, and erred in failing to enter a decree granting to the plaintiff and counterclaimant specific performance as prayed for by them. In all cases for determination upon contracts of adoption the question is always presented as to whether or not the evidence is sufficient to establish the existence of a contract, the parties thereto and the terms thereof, as to warrant specific performance.

The findings of fact as shown by the master's report are as follows:

"After considering all of the testimony and evidence adduced in said cause, the undersigned further finds and reports the following matters of fact to be true:

"That said Henry Hallmer and Mary Hallmer were husband and wife, and were united in marriage in Lake County, in the State of Indiana, on the 20th day of March, 1911.

"That said plaintiff, Nettie Franzen, said counterclaimant, William J. Le Vay, and the defendant, Viola Seelau, were children of John Leavy and Barbara Leavy, and were born in the City of Buffalo, in the State of New York; that upon the death of Barbara Leavy in 1904 they were placed in the German Roman Catholic Orphan Asylum in said City of Buffalo; that subsequent to being placed in such orphanage said Nettie Franzen (born Nettie Leavy) and said William J. Le Vay (born William J. Leavy) were taken from said orphanage by the said Henry Hallmer, or John Hallmer, his brother, or one of them, and placed in the home of said Henry Hallmer and Mary Hallmer located at 1320 South Spalding Avenue, Chicago, Illinois; that a portion of said residence was converted into a small grocery store which was conducted by said Henry and Mary Hallmer, and that in addition thereto Henry Hallmer owned and operated a coal and ice business.

"That plaintiff, Nettie Franzen, was born June 12, 1898, and was taken into the Hallmer home during the year 1905 where she resided until her marriage at the age of 21 years, and that during all of said period she was known and described as Nettie or Antoinette Hallmer; that said counterclaimant, William J. Le Vay, was born June 25, 1896, and was taken into the Hallmer home during the year 1906 where he resided until his marriage on or about September 30, 1920; that during each period he was known as William or Billy Hallmer, but that he was married under the name of William J. Leavy.

"That while plaintiff resided in the home of Henry and Mary Hallmer she assisted in waiting on customers in the store and aided in the housework in the home; that she attended a parochial school known as `Our Lady of Perpetual Help' under the name of Antoinette Hallmer substantially from the time she came into the Hallmer home until she arrived at the approximate age of 14 years.

"That while counterclaimant resided in the Hallmer home he performed certain duties, carrying in wood and coal for use in the home, cared for the horses used in the coal and ice business, assisted in hauling ice to customers during school vacation periods, and in the later years worked with said Henry Hallmer on the wagon delivering ice to the family trade; that he attended a parochial school known as `Our Lady of Perpetual Help' under the name of William Hallmer from 1909 until he arrived at the age of 14 years.

"That plaintiff was taken by said Henry Hallmer to receive her first sacrament of Holy Communion at the church of `Our Lady of Perpetual Help,' Chicago, Illinois, under the name of Antoinette Hallmer during the year 1910, and was confirmed in the same church under the name of Antoinette Hallmer on October 9, 1913; that counterclaimant received his first communion under the name of W. Hallmer on May 17, 1908, at `Our Lady of Perpetual Help' church in Chicago, Illinois.

"That the census record of the Department of Commerce of the United States of America for the year 1920, taken as of January 1, shows that the Hallmer family resided at 1320 Spalding Avenue, in Cook County, Illinois; that the head of the family was Henry Hallmer; that Mary Hallmer was the wife; that ...


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