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Latimer v. Perry





APPEAL from the Circuit Court of Cook County; the Hon. E.J. SCHNACKENBERG, Judge, presiding.


Rehearing denied November 19, 1951.

This is an appeal by the plaintiffs from a decree of the circuit court of Cook County dismissing for want of equity their complaint in chancery which attempted to set aside certain conveyances of real estate located at 4760 Lake Park Avenue in the city of Chicago. A freehold being involved, the appeal has been perfected to this court.

The amended complaint alleged that the plaintiffs are double cousins and are the only heirs-at-law of Jessie Perry, deceased; that Jessie Perry died on March 8, 1948, at the age of 82 years, and that on September 18, 1947, she was the owner of a building at 4760 Lake Park Avenue in Chicago, consisting of a 2 1/2-story brick building containing 10 rooms and valued at $10,000, free and clear of all encumbrances. It is alleged that the defendant Russel A. Perry, occupied a fiduciary relationship with the said Jessie Perry, deceased, on September 18, 1947, on which date she executed a deed of conveyance to him and his wife of said premises. It is further alleged that she did not understand the nature and purport of her acts by reason of mental incompetence and that she did not have independent legal advice or counsel at the time she made the conveyance. It is also alleged that on September 30, 1947, the date she signed a contract with the defendants, and on December 2, 1947, when she signed a deed correcting the legal description in the deed of September 18, 1947, Russel A. Perry occupied a fiduciary relationship with Jessie Perry and that she was mentally incompetent and had no independent counsel in said transactions. Plaintiffs ask that the deeds be set aside and that defendants account for the reasonable rental covering the use and occupancy of the premises from the time of their occupancy to the date of giving up possession and the costs of suit.

The answer of the defendants was in the form of a general denial. After the matter was referred to a master in chancery and certain proofs were taken, an amended answer was filed by the defendants in which they denied that the plaintiffs were the only heirs-at-law, denied that the real estate was of a value of $10,000, and alleged that the same was not worth $5000 because it was in a state of disrepair. They admit the execution of the deeds and allege said deeds were executed pursuant to an agreement wherein, in consideration of their receiving a deed of conveyance to the property, they were to improve the same and were to provide for Jessie Perry during her lifetime. Certain other pleadings were filed by the parties which it is not necessary to recite in detail since the issues were formed by those recited above.

A master in chancery heard testimony and received certain exhibits in evidence and reported in favor of the defendants. In his original report he made no finding with reference to the question of a fiduciary relationship, and the chancellor referred the case back to the master in chancery, requesting that he make a finding as to whether a fiduciary relationship had been established by the plaintiffs and, if the fiduciary relationship had been established, whether the defendants acted fairly and honestly with the said Jessie Perry. The master filed his supplemental report in which he held that no fiduciary relationship existed between Jessie Perry and Russel A. Perry and that the consideration was fair between the parties. Exceptions were filed to this report and the chancellor entered an order overruling the exceptions and dismissing the amended bill of complaint for want of equity, and the costs were taxed against the plaintiffs.

The plaintiffs in their appeal contend that Russel A. Perry occupied a fiduciary relationship with Jessie Perry at the time he obtained from her the deeds of conveyance to himself and his wife. They also contend that, in view of the fiduciary relationship which existed, it is presumed that the deeds are not valid and that the presumption has not been overcome by the defendants. They likewise contend that the decree of the court is against the manifest weight of the evidence.

A review of the evidence indicates that Jessie Perry had been a widow for about 25 years and that she was the owner of the premises at 4760 Lake Park Avenue which consisted of a 2 1/2-story brick dwelling containing 10 rooms, free and clear of encumbrance, and that it had a rental value of about $75 per month. She had no children and since her husband's death had lived in this house and operated a nurses' registry. She had no close contact with the plaintiffs other than an exchange of Christmas cards and occasional correspondence with them. Many years ago she had become acquainted with a woman named Cora Jackson of Muskegon, Michigan, who was the grandmother of Phyllis M. Perry, one of the defendants herein.

Russel and Phyllis Perry are young people about 35 years of age, both of whom were employed and who lived in a small apartment at 4441 South Greenwood Avenue in Chicago. Sometime during the year 1945 they became acquainted with Jessie Perry, and the circumstances of their acquaintance are in dispute, but it is evident from the record that the acquaintance arose through Mrs. Perry's acquaintance with Phyllis Perry's grandmother. The similarity in the last names of the deceased and the defendants is purely coincidental, there being no relationship between them.

On or about August 1, 1945, Russel Perry was deputized to have access to the safety-deposit box of Jessie Perry. During 1945 and 1946 he did not enter the box although Mrs. Perry did on at least one occasion enter the box herself. In 1947 and 1948 he entered the box a total of 17 times. It appears that he and his wife transacted certain small items of business for Mrs. Perry during 1945 and 1946 and 1947, but these transactions could be more properly described as errands performed for her because of her physical difficulties in walking. For many years prior to 1946 and 1947, Jessie Perry had used the services of a colored man by the name of Percy Williams as a janitor and maintenance man for her house and he had a key to the house. He became addicted to the use of alcoholic beverages and while he was drunk he was in trouble and subsequently was fatally wounded in an altercation. Mrs. Perry expressed herself to various people as being fearful that he would kill her in one of these drunken sprees and kept various doors inside of her house locked. About this same time an adjoining house caught on fire and two women who lived next door died in this fire and Mrs. Perry was overcome by smoke which came into her own home. During this same period of time an acquaintance of Mrs. Perry, who lived alone, died, and her body was not discovered for many days thereafter, and Mrs. Perry discussed this matter with some of her neighbors and was fearful that this might occur to her. Furthermore, the evidence indicates that her house and the furnishings thereof were in disrepair and that her cooking facilities were such that she could not prepare or preserve her food, and it was necessary for her to receive food from neighbors.

The testimony indicates that she also attempted to find a home with other people and did live for a week or so with a neighbor but decided that she would be happier in her own house and returned to her own home. These occurrences all took place prior to the conveyance of the property complained of but within a few months prior thereto.

The deeds appear to have been prepared by an attorney who was a brother of Phyllis Perry and resided with her and her husband. Also a contract between Jessie Perry and the defendants and a will for Jessie Perry were prepared by him.

The notary public who notarized the deeds testified that Russel Perry asked her to come to the Jessie Perry home to notarize the signature but that she could not come and stated that she was acquainted with Jessie Perry for more than 10 years prior to that time and was well acquainted with her signature, and that Jessie Perry had told the notary previously that she should notarize anything which Russel Perry brought her which was signed by Jessie. The deeds were taken to the notary and she notarized them outside of the presence of Jessie Perry.

The contract with reference to support is as follows:

"IT IS AGREED by and between Russel A. Perry and Phyllis M. Perry, his wife, parties of the first part, and Jessie F. Perry, ...

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