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Shepherd v. Shepherd





APPEAL from the Circuit Court of Sangamon County; the Hon. DeWITT S. CROW, Judge, presiding.


Rehearing denied March 19, 1951.

A decree of the circuit court of Sangamon County construed the last will and testament of Charles M. Shepherd, deceased, and ordered partition of a farm of 188 acres between the widows of a son and grandson, respectively, of the testator. A grandson and a great grandson of the testator prosecute this appeal, a freehold being necessarily involved.

Charles M. Shepherd, a resident of Sangamon County, died testate on June 16, 1910. He left surviving his three sons as his only heirs-at-law. By the third section of his will, the testator devised a farm of 188 acres, located seven miles southeast of Springfield, in Sangamon County, to his son Charles Raymond Shepherd, "to have and to hold for and during the term of his natural life only, and the remainder over in fee simple I give and devise equally, share and share alike, to such of my said sons, Charles Raymond Shepherd, children, if any, that survive him and who live to attain the age of twenty-one years, and in case he have no children that survive him and who attain such age then I will and direct that said remainder in fee simple shall become the property of my two sons, Alva F. Shepherd and Louis P. Shepherd, equally, and in case either of my said sons, Alva F. or Louis P., be dead, to their lineal descendants, per stirpes."

When Charles M. Shepherd executed his will and, later, at the time of his death, his son Charles Raymond Shepherd was unmarried and lived in his father's household. Fourteen months after the testator's death, Charles Raymond Shepherd and Minnie S. Shepherd were married and, thereafter, lived on the farm in controversy. Two sons, Charles Franklin and Robert Eugene, hereafter referred to as Charles and Robert, were born of the marriage. In 1933, when seventeen years of age, Charles entered the military service of the United States. Robert was born May 2, 1925. Charles Raymond Shepherd died on May 21, 1942, leaving his wife, Minnie S. Shepherd, and their two sons, Charles, then twenty-six years of age, and Robert, seventeen years of age, his only heirs-at-law. By his will, Charles Raymond Shepherd devised all his real estate to his wife, Minnie, for life, with remainder to their two sons, share and share alike. He, however, left no real estate.

On June 8, 1942, seventeen days after the death of Charles Raymond Shepherd, his older son, Charles, the latter's wife, Helen Shepherd, and the younger son, Robert, executed and delivered a warranty deed, without consideration, to Minnie S. Shepherd, conveying the farm to her, to have and to hold during the term of her life only, with remainder after her death to her two sons, Charles and Robert. The deed was caused to be recorded in the recorder's office of Sangamon County. About July 1, 1943, after graduation from high school, Robert Shepherd entered the armed forces of the United States. He received his discharge on January 16, 1946. In the meantime, Robert had married and, upon his return to Springfield, he, his wife, and their infant son, Robert Eugene Shepherd, Jr., lived on the family farm which was in the exclusive possession of, and being operated by, his mother. She paid Robert one hundred dollars per month for working on the farm and furnished him, his wife, and their child, board and lodging. Robert was residing on the farm when he attained his majority on May 2, 1946, and continued to live on the farm while in his mother's employment until the latter part of June when he went to Chicago to pursue a course in an electrical trade school under the G.I. Bill of Rights.

On June 21, 1946, Charles executed his will, devising all his real estate to his wife, Helen, for life, with remainder in fee simple to his nephew, Robert Eugene Shepherd, Jr. Charles Shepherd died on August 30, 1946, leaving his wife, Helen, his mother, Minnie, and his brother, Robert, as his only heirs-at-law.

On December 3, 1946, Robert Shepherd presented a quitclaim deed to his mother and requested her to execute the deed reconveying to him the interest in the farm which he had conveyed to her on June 8, 1942. Later, the same day, at his attorney's office, Robert handed his mother a written document, notifying her that he had rescinded and declared void the deed of June 8, 1942, conveying to her a life estate, demanded cancellation of the deed, a reconveyance, and an accounting to him of all rents, issues, profits and income received by her from the property since the day named. The next day, December 4, 1946, Robert Shepherd and his son, Robert Eugene Shepherd, Jr., by his father and next friend, brought an action in the circuit court of Sangamon County against the defendants, Helen B. Shepherd and Minnie S. Shepherd.

The complaint sets forth the facts narrated and alleges that, on June 8, 1942, Minnie Shepherd advised Robert and induced him and his brother, Charles, to execute and deliver to her their warranty deed conveying to her a life estate in the farm; that Robert was then under the restraint of a fiduciary relationship with his mother; that, on June 8, 1942, Robert owned an undivided one-half interest in the farm worth more than $15,000; that in December, 1946, the remainder in the other half not owned by Robert was worth more than $10,000; that Robert, at the time he signed the deed, did not know its full purport and meaning but signed in good faith and reliance upon the representation and advice of his mother; that he was then a minor of immature judgment and insufficiently informed or experienced in transactions of this character; that he had decided it was a mistake on his part to have made the conveyance; that he did not consider it binding nor himself bound by it, and that he had elected to cancel and rescind the deed. The relief sought was a decree adjudging the deed of June 8, 1942, to the extent the interest of plaintiffs may be concerned, void as against them and as a cloud upon their title; cancellation of the deed; an accounting by his mother of the rents, issues and profits derived from the farm since June 8, 1942, and partition of the farm, according to the respective interests of the parties.

By their answer, the defendants, Helen and Minnie Shepherd, averred that, upon the death of Charles Raymond Shepherd, his son Charles, being his only child who had both survived him and attained the age of twenty-one years, became the sole owner in fee simple of the farm devised by Charles M. Shepherd; that, on the other hand, the younger son, Robert, took no right, title or interest in or to the farm under his grandfather's will because he had not attained the age of twenty-one years when his father's life estate terminated, and that the remainder took effect and vested in the remainderman. Answering further, defendants denied that he was induced to sign the deed dated June 8, 1942, by any persuasion, restraint or undue or improper influence exercised by his mother, and averred that the deed was executed primarily at the instance of Charles Shepherd in order to provide for the support, care and maintenance of his mother and to divide the real estate with his brother, Robert, all in order to vest the title to the property in the parties to the deed in accordance with their several needs and in a manner to serve their best interests and, particularly, to better enable Minnie Shepherd to support and care for Robert, then seventeen years of age, who was residing with and being supported and maintained by her. Defendants averred that the deed greatly benefited Robert and his heirs by vesting in him title to an undivided one-half part of the real estate, even though he should die before attaining twenty-one years of age, and regardless of any possible adverse interpretation of the will that he must have attained his majority before the death of his father; by enabling his mother to furnish him with the necessary support, care and maintenance while he resided with her and was a member of her household during his minority, and that having received, in person and in behalf of his wife and child, the benefits and protection of the deed, Robert was barred and estopped from repudiating and disaffirming the deed. Defendants denied that plaintiffs were entitled to an accounting. Plaintiffs replied to the answer.

On September 2, 1947, Helen Shepherd filed in the probate court of Sangamon County her renunciation of the will of her deceased husband and elected to take the share allowed to her by law as his surviving widow.

The master in chancery to whom the cause was referred made his revised report, finding that Robert Shepherd, upon attaining twenty-one years of age, was vested with an undivided one-half interest in the property, subject to the life estate of his mother; that, having conveyed a life estate during minority, Robert had the right to rescind his action; that "This was done;" that the deed to his mother, insofar as it affects the interest of Robert conveyed to her for life, had, by his rescission, been avoided, and that she should reconvey an undivided one-half of her life interest to him and account to him for one-half of the rents since his repudiation of the deed on December 3, 1946. Defendants' objections to the master's report were overruled and ordered to stand as exceptions. The chancellor sustained some of the objections, overruled others, and entered a decree finding that the execution of the deed by Robert Shepherd was free from fraud, bad faith, misrepresentation and undue influence; that it was for the "minor's" (Robert's) best interests; that it conveyed to him an immediate share of the real estate, whereas his grandfather's will gave him no interest whatever unless he attained the age of twenty-one years; that he, his wife and child were protected by it in case of his death before attaining such age; that, although the court was of the opinion he would have been entitled to share under his grandfather's will upon attaining twenty-one, the question was not free from doubt and the deed protected him from the possibility of an adverse decision; that, after attaining his majority, he failed to promptly repudiate his deed; that his son, Robert Eugene Shepherd, Jr., benefited under the will of his brother, Charles Shepherd; that these benefits cannot be returned; that Robert was, hence, estopped from rescinding the deed, and that, not being able to do equity, the relief sought should be denied. The decree adjudged that Minnie Shepherd, now Minnie S. Jackson, owns a life estate in the farm property; that subject thereto, Robert Shepherd owns an undivided one-half, and Robert Eugene Shepherd, Jr., and Helen Shepherd each an undivided one-fourth part, as tenants in common in fee simple, and that the life tenant, Minnie Jackson, need not render an accounting to any of the parties. Partition was ordered on the foregoing basis and commissioners appointed for the purpose. This appeal followed.

The evidence attending the execution of the deed on June 8, 1942, requires recounting. When the life tenant, Charles Raymond Shepherd, died on May 21, 1942, his younger son, Robert, then seventeen years of age, was living at home on the farm with his mother and attending high school in Springfield. The elder son, Charles, a United States Navy officer, was not in Sangamon County when his father died. His wife, Helen, who resided in Massachusetts, came to Springfield, and, about a week later, Charles arrived on leave, having learned of his father's death after his ship returned to port. As narrated, the life tenant owned no real estate at the time of his death on May 21, 1942, having had only a life interest in the farm. Helen Shepherd testified that her husband, Charles, after visiting attorney Charles F. Barber, reported that, so far as he knew, he was the sole heir under his grandfather's will and would like to make a deed to provide that his mother could live on the farm for the rest of her life; that Charles, proceeding upon the assumption that he had inherited all the farm for the reason he was the only child who had attained the age of twenty-one years at the time of his father's death, desired, in accord with the plan of his father's will, to share the farm property equally with his younger brother, after first providing for their mother's maintenance during the remainder of her life, and that, to accomplish this purpose, he caused a deed to be prepared. The matter was discussed on June 8, 1942, at a meeting of the two brothers, their mother, and Helen Shepherd in the office of attorney Barber, following the reading of the will of Charles Raymond Shepherd. Being satisfied, according to both Helen and Minnie Shepherd, the two brothers thereupon executed the deed.

Robert's version of the transaction is different. He testified that, on the morning before the family went to attorney Barber's office, his mother told him that she had had the attorney draw up a paper which would protect their interests and allow her to manage the farm as she had done with "Dad" in the past. Robert testified, further, that his mother played up the idea his older brother and his wife were going "to sell us out, so to speak, to settle the estate and leave us kind of holding the bag," and, more particularly, that his mother said Helen Shepherd had come to Springfield "to get what she could out of the farm," and that his mother said Helen wanted to see that everything was left in shape so it could be sold, or settled, so they (Charles and herself) could obtain their part. Minnie Shepherd denied the statements attributed to her, testifying, instead, that, prior to the signing of the deed, she had not had any conversation with either of her sons about deeding any property to her and first learned of the deed in attorney Barber's office after the will was read. Robert added that his mother did not describe the paper which she told him would allow her to continue managing the farm; that, at the conference in the attorney's office, Barber said that Minnie Shepherd had requested the "paper" to be prepared for her to continue to manage the farm as she had done in the past; that the attorney asked their opinion and that he, Robert, stated he thought it was alright; that his brother replied, "If you [the attorney] say it is alright, I can't see where I could object," and that "it kind of put him ...

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