APPEAL from the Circuit Court of Henry County; the Hon. A.J.
SCHEINEMAN, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 17, 1950.
February 3, 1944, the plaintiff, Amanda Stone, brought an action in the circuit court of Henry County against the defendant, Elmer Stone, to set aside a deed upon the grounds of fraud in the procurement and undue influence. The cause was heard before the chancellor and, on December 14, 1948, a decree was entered dismissing the complaint for the want of equity. A freehold is necessarily involved, and plaintiff's petition for leave to appeal within one year, filed December 12, 1949, has been granted.
Two motions by defendant, one to dismiss the petition for leave to appeal, and the other, to strike the report of proceedings, both pending when leave to appeal was granted, have been taken with the case. As one of three grounds for dismissing the petition, defendant contends that the affidavits in support of the petition do not show that plaintiff's failure to complete an appeal commenced within ninety days from the entry of the decree was not due to culpable negligence. The same argument was advanced in defendant's answer to the petition. This issue was necessarily disposed of adversely to defendant by our order granting leave to appeal.
Defendant further contends that the merit of plaintiff's claim for an appeal does not appear in the form of an affidavit, as required by section 76 of the Civil Practice Act and Rule 29 of this court. (Ill. Rev. Stat. 1949, chap. 110, pars. 200 and 259.29.) Section 76 provides that, upon motion filed within one year of the entry of a judgment or decree, a reviewing court may grant leave to appeal "upon a showing by affidavit" that there is merit in the claim for an appeal and that the failure to institute or complete an appeal as of right within ninety days of the judgment or decree did not result from culpable negligence. Rule 29 states that an application for leave to appeal under section 76 shall be by petition and affidavit, which shall be printed. The printed application filed by plaintiff consists of a formal motion or petition for leave to appeal, a statement of the case, points and authorities, suggestions in the nature of a brief, and two affidavits executed, respectively, by plaintiff and one of her attorneys. Plaintiff's affidavit contains a brief summary of her claim of merit in the appeal. The remainder of her argument as to the merit of the appeal is found in her statement of the case, points and authorities, and suggestions. This is not improper.
The statutory requirement of an affidavit is designed primarily to furnish the reviewing court with a sworn statement as to the circumstances attending the petitioner's failure to initiate or complete an appeal as of right, since, ordinarily, these facts lie outside the record. The claim of merit, however, being based on the application of legal principles to the facts appearing of record, no useful purpose would be served by presenting all material of this character in the form of an affidavit. Consequently, a concise statement of the merits of an appeal in the affidavit is sufficient to constitute compliance with section 76 of the Civil Practice Act. Although plaintiff might well have included a more detailed statement of her claim of merit in her affidavit, the affidavit presented is not insufficient, and there is no statute or rule of court prohibiting the elaboration of a claim of merit by the inclusion of a statement of the case, points and authorities, and suggestions in the nature of a brief in the application for leave to appeal.
As a third reason for dismissing the petition, defendant asserts that the only matters presented to show a claim of merit in the appeal are founded upon the report of proceedings which was not filed in the trial court until after the expiration of the time allowed by Rule 36. The motion to strike the report of proceedings is based upon the same contention. Recourse to the record discloses that plaintiff filed a notice of appeal within ninety days, but did not complete the appeal; that no extension of time for filing the report of proceedings was sought or allowed, and that the report was not filed in the trial court until more than eight months after the filing of the notice of an appeal within ninety days. Rule 36 (Ill. Rev. Stat. 1949, chap. 110, par. 259.36,) relates to the record on appeal, generally, and provides that the appellant shall, within ten days after notice of appeal has been filed, prepare and file a praecipe for record and that the report of proceedings shall be submitted to the trial judge for certification and filed within fifty days after the notice of appeal has been filed, or within any extension or extensions of time granted. Rule 29 relates exclusively to applications for leave to appeal within one year. It provides that a praecipe for record may be filed without filing a notice of appeal and that the petition and affidavit for leave to appeal shall be accompanied by the record, an abstract of the record, and a notice of appeal. In the event the petition is granted, the order of allowance is endorsed on the notice of appeal and the notice, so endorsed, transmitted to the clerk of the trial court for filing. Although Rule 29 does not prescribe any time for filing the report of proceedings in the trial court, since the entire record must be filed in the reviewing court within one year from the date of the judgment or decree, the report of proceedings must, as a practical matter, be filed in the trial court within a period of less than one year.
Contrary to the contention of the defendant, Rule 36 does not apply to petitions for leave to appeal within one year. To so construe this rule would virtually destroy the right to petition for leave to appeal where, as here, the petitioner has previously filed a notice of appeal within ninety days and subsequently abandoned the first appeal. Where notice of appeal is filed within ninety days and the report of proceedings is filed within the time allotted by Rule 36, ordinarily there will be no occasion for a petition for leave to appeal within one year. On the other hand, if Rule 36 were applicable, and the report of proceedings were not filed within the time allowed, the petitioner would be faced with the prospect of filing an application for leave to appeal within one year based upon the common-law record, alone. To the extent that the construction of Rule 36 urged by defendant would tend to nullify the right to petition for leave to appeal where the petitioner has previously filed a notice of appeal within ninety days, it is contrary to the legislative intent manifested by the 1941 amendment to section 76 of the Civil Practice Act. Under section 76, as originally enacted, (Ill. Rev. Stat. 1933, chap. 110, par. 200,) the filing of a notice of appeal within ninety days was an absolute bar to a petition for leave to appeal within one year. (Spivey Building Corp. v. Illinois Iowa Power Co. 375 Ill. 128; People ex rel. Bender v. Davis, 365 Ill. 389.) In 1941, however, section 76 was amended to provide: "The fact that appellant may have filed a notice of appeal prior to the filing of his motion for leave to appeal shall not deprive the reviewing court of the power in its discretion to grant leave to appeal," (Ill. Rev. Stat. 1949, chap. 110, par. 200,) thus evidencing a legislative intent that the filing of a notice of appeal within ninety days shall have no bearing upon an application for leave to appeal within one year.
The motion to dismiss the petition for leave to appeal and the motion to strike the report of proceedings are both denied.
The undisputed facts relative to a determination of the present controversy upon its merits may be briefly stated: Plaintiff, Amanda Stone, widow of Frank Stone, is the stepmother of defendant, Elmer Stone, the only child of Frank Stone. In March, 1936, Frank and Amanda Stone acquired an improved eighty-acre farm near the city of Kewanee in joint tenancy and, in April, 1942, they purchased a lot in Kewanee, improved with a double house, and again took title as joint tenants. Upon the death of her husband on July 13, 1942, plaintiff, as surviving joint tenant, became the sole owner of the farm and the improved lot in the city. By his last will and testament, dated May 8, 1941, Frank Stone left all of his property, both real and personal, to plaintiff for life, with remainder to defendant, and nominated defendant as the executor of his will. The estate consisted of several vacant lots in Kewanee and a modest amount of personal property. Defendant qualified as executor on July 28, 1942. By a single deed, dated August 21, 1942, and recorded on the following day, plaintiff conveyed both the farm and the house in the city to defendant, reserving to herself a life estate in each of the two properties. This is the instrument which plaintiff seeks to have set aside. The deed bears plaintiff's genuine signature and the acknowledgment was taken before Gregg Young, the family lawyer, in his capacity as a notary public. At the time the deed was executed, plaintiff was fifty-nine years of age and lived with a married sister. Defendant was then about thirty-five years of age and resided with his wife. Beyond this, practically everything is in dispute.
According to plaintiff, she did not know that the properties in question had been held in joint tenancy or that she had executed a deed to defendant until December, 1943, when an unnamed schoolmate approached her in a five-and-ten cent store and asked her whether it was true that Elmer Stone owned the farm and the house in the city. Whereupon, she engaged Vera Binks, one of her present attorneys, to investigate the matter and learned the facts, as recounted. Plaintiff testified that, after defendant qualified as executor, she signed several papers in connection with the estate; that one day, about the middle of August, 1942, defendant appeared at her sister's house, placed a folded paper on the table, handed her a pen, and, without reading or explaining the paper to her, told her to sign it; that, after she signed, defendant took the paper and left almost immediately, and that she did not receive any consideration for her conveyance.
Plaintiff added that, after her husband died, defendant took charge of the properties and told her she had nothing to say about their management and that she did not assert control over them until the fall of 1943. Although the inventory filed by defendant in his father's estate on January 11, 1943, lists both the farm and the house in the city as assets of the estate, without any notation of the fact that they were held in joint tenancy, the significance of this fact is rendered somewhat obscure because plaintiff stated she never received a copy of the inventory. The final report and accounting was filed on June 11, 1943. In it, defendant stated he held the cash balance of the estate, amounting to $514, for plaintiff, as her agent. Plaintiff claimed that she never received either a copy of the report or the cash balance. Defendant showed that this fund was still in a bank account in the name of the estate and admitted he owed, but had not distributed, the money to plaintiff.
In all other respects, the evidence for defendant presents an entirely different view of the situation obtaining between the parties. For example, plaintiff testified that she was reared on a farm, attended school through sixth grade, worked for many years as a maid and in factories and, in general, gave the impression she was ignorant and inexperienced in business matters. The record discloses that plaintiff could both read and write; that, over a period of years, she had signed a number of legal papers with her husband at the office of Gregg Young, his lawyer; that she had executed a deed and other documents in connection with her father's estate, and that Young represented her in a partition action brought against her by her brothers and sisters. Defendant, although in the coal business, spent much of his time driving a truck. It further appears that Young was brought into the estate matter by plaintiff, not by defendant, and that plaintiff asked him to accompany her to a safe-deposit box, which she held jointly with her husband, for the purpose of removing his will. After the will was read, plaintiff told defendant he had been named executor and that he should see Young, which he did, and Young became attorney for defendant, as executor.
In opposition to plaintiff's asserted lack of knowledge that she owned the disputed properties in joint tenancy with her husband, bank records were introduced to show that plaintiff went to their safe-deposit box on many occasions before her husband died. Two realtors stated that they showed the house in Kewanee to Frank Stone and plaintiff, and that plaintiff was present when the deal was closed and title taken in joint tenancy. Young testified he and plaintiff spent about twenty minutes examining the contents of the safe-deposit box on the day Frank Stone's will was removed. Defendant related that, after obtaining the contents of the box on August 5, 1942, he and plaintiff examined all the papers at his house; that plaintiff, upon finding her will, gave it to him for safe-keeping, and that, at the same time, she told him she was the sole owner of the farm and the house in the city and asked him to have a deed prepared reserving a life estate to her and conveying the real estate to him, the same as she had provided in her ...