Appeal by defendants from the Circuit Court of Madison county;
the Hon. RALPH L. MAXWELL, Judge, presiding. Heard in this court
at the May term, 1950. Affirmed. Opinion filed September 20,
1950. Released for publication October 20, 1950.
MR. PRESIDING JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.
William F. Niehaus, of Collinsville, Illinois, died intestate December 28, 1947, leaving no widow and no descendants and leaving certain nephews and nieces, and descendants of such, as his only heirs-at-law. Appellants are the administrators of his estate, and appellee, Mary Lucas, is a claimant against the estate; she was a niece of the deceased wife of William F. Niehaus. Her parents had died in her early childhood, and she had made her home with William F. Niehaus for twenty-five years, from the time she was two years old, and he had stood in the relation of a parent to her, providing for her education, etc., and during grade school she went under the name of Niehaus.
Her claim is based upon the alleged promise of deceased to make a will in her favor, leaving her his entire estate, on condition she would continue to remain in his home, after the death of his wife in 1930, and care for him, etc. This she had done, but no will could be found. By virtue of the allowance of her claim in the probate court, and on appeal in the circuit court, she would receive the entire net estate, estimated to be nearly $35,000.
Appellants contend that the evidence is not of that clear and convincing character, required by law to establish a contract that would divert an estate from the statutory rules of descent; that, at best, claimant might claim compensation for services in the last years of deceased's life, they being of the type compensable in money for their reasonable worth; that claimant was not discommoded, but was furnished with a comfortable home, in which deceased bought the food and other necessaries, so that there was no basis for taking the case out of the statute of frauds, and that there was real estate involved, which barred the claim under said statute.
The evidence upon the real issues of the case, consisted of the testimony of ten witnesses for claimant, none for the defendants. Included in the ten, were the claimant's mother-in-law, sister-in-law and the latter's husband. The others were friends, neighbors, or acquaintances of the deceased.
There can be no doubt, under the evidence, that the deceased had great affection and high regard for the claimant, and fully intended to make a will in her favor, leaving her all of his property. Moreover, he had no apparent contact with his nieces and nephews, who, it is indicated, did not visit him during his lifetime, but did call at the funeral home, after claimant had made the funeral arrangements. This evidence presents circumstances which may tend to corroborate other proof of a contract to make a will, but we are in agreement with appellants that mere declarations of testamentary intent, based on affection, are not of themselves sufficient to establish a contract to make a will which would be enforced by the courts. Wrestler v. Tippy, 280 Ill. 124.
There is, however, testimony of actual promises by the deceased, as inducements to claimant. One witness was a woman who had been in the home frequently over a period of many years, and had often served as chaperon for claimant at parties and on trips, at the request of the deceased. Deceased had told her a number of times that he had promised to will everything he had to claimant. She could not fix the precise dates, except one, about the time of claimant's wedding in 1945. Deceased had also told her that claimant had promised to stay on with him the rest of his life.
A man who had been an intimate friend of deceased for many years was told by deceased, of claimant's approaching marriage, that he was happy about it, that claimant had promised to stay with him. In February and again in June of 1947, deceased told this witness he had promised to will all of his property to claimant.
Deceased informed another man, an intimate friend, that he had agreed with Mary, or promised Mary (claimant) that if she would take care of him, what he had was to be her property. He could not give precise dates, but thought this had been discussed between them on two or three occasions.
It appears that claimant had originally planned to marry several years prior to her actual wedding, but her prospective husband was going into the service when the war came on. A man who had some business dealings with deceased, and a claim against the estate, testified deceased had told him of the possibility he might lose Mary, that he tried to stave it off until after the war, and that he had promised Mary everything if she would postpone her marriage until after the war.
A young woman who lived in the house during the war years, and was eventually a bridesmaid for claimant, testified also to the fact that deceased had asked claimant to postpone marriage until after the war. She also had heard deceased's statements that if Mary took care of him, he would will her everything he had.
Another acquaintance of deceased, who had assisted in preparing the house for the claimant's wedding, about three weeks before its date, had a conversation with deceased, who told of his promise to leave everything to claimant if she would stay with him and continue to take care of him after the wedding.
In none of the reported declarations by deceased was there any statement by him as to the date of his first promise to, or agreement with the claimant. It does appear from the testimony of two witnesses that such promises had been iterated to claimant at a time about six years prior to his death. That was the time when she had postponed her marriage in compliance with the deceased's requests. From some of the testimony, it may be inferred that these promises were made over a longer period of time, and often repeated, but there is no positive testimony fixing the original date.
Appellants point out that the word "will" does not occur in all of these statements. In some, his statement was that he promised to leave all of his property to claimant, or that she would receive everything. Such statements appear to have the same general import. There is no evidence of any statement which could be regarded as contrary to the existence of the contract. The only fact suggested as casting doubt on it, is that no will was made, although deceased was intelligent, and understood wills. This seems to be an argument that breach of a contract should be evidence of its nonexistence. One witness, a long time intimate ...