APPEAL from the Superior Court of Cook County; the Hon. JOSEPH
A. GRABER, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 15, 1952.
This is an appeal to reverse a decree of the superior court of Cook County declaring null and void a trust agreement dated November 8, 1946. A freehold being involved, the appeal comes here directly.
Herman C. Doering was the husband of Clara E. Doering, deceased, and is the father of Edna Doering Kolze. Edna Doering Kolze was the stepdaughter of Clara E. Doering. Clara L. Fordtran, Helen Fordtran, Arthur E. Fordtran, and Henry C. Fordtran were nieces and nephews of Clara E. Doering, being the children of her sister, Emma.
The original complaint was filed by Herman C. Doering, and Edna Doering Kolze, administratrix of the estate of Clara E. Doering, against these appellant Fordtrans. The complaint alleged the execution of the deeds and trust agreement in question, that Clara E. Doering was at that time on her deathbed, in a semiconscious condition and unable to comprehend the nature and legal effect of the documents she signed, and that Herman Doering had been feeble and in impaired health for a long time and was unable to comprehend or understand the legal effect of his signing of these documents. Count II alleged that the trust agreement was an attempt to create a testamentary trust by an instrument other than a properly executed will, and that the trust agreement was therefore invalid. The cause was referred to a master who took proof. The plaintiffs then asked leave to file an amendment to their complaint setting forth that a fiduciary relationship existed between Clara L. Fordtran and Arthur Fordtran on the one hand and Clara E. Doering and Herman C. Doering on the other hand. The court ordered the master to consider whether there was evidence in the record in support of the amendment. The master reported in favor of the appellants, finding that the plaintiffs failed to prove any fiduciary relationship, undue influence, or lack of mental capacity on the part of Clara E. Doering or Herman C. Doering to execute the trust agreement and related deeds, and that the trust was valid as to the Illinois and Mississippi property, but invalid as to the Florida property, since the Florida statute requires that deeds be attested by two subscribing witnesses. Appellees' objections to the master's report were overruled. Their objections were permitted to stand as exceptions to the report except that portion relating to the Florida property. The superior court sustained the exceptions to the master's report, and entered the decree which is the subject of attack in this court.
It is undisputed that in 1917 Clara E. Doering was married to Herman C. Doering, she then being forty-four years of age and a spinster. They lived together as husband and wife until her death on November 19, 1946. No children were born of this marriage. Edna Doering Kolze, Herman Doering's daughter by a prior marriage, was married prior to her father's marriage to Clara E. Doering, and never resided with them.
At the time of her marriage, Clara E. Doering owned property, known as the Blue Island property, improved with a two-story house, a garage, and a frame cottage. In 1917 she acquired by inheritance from her father, Herman Schmitt, certain property located at 10705 South Prospect Avenue, Chicago, Illinois, known as the Morgan Park property. This property was improved with a two-apartment building and two cottages. Herman and Clara resided in one of these apartments. Both the Blue Island and Morgan Park properties were placed in joint tenancy with Herman and Clara as joint owners some years after the marriage, and remained that way until the establishment of the trust in question.
In 1924, 1925, and 1926, Herman and Clara Doering acquired property in Florida in both their names, and in Mississippi in 1926. All correspondence in regard to the purchase of the Mississippi property was with Clara Doering and she signed notes for the purchase price in the sum of $1750.
For some time Helen and Clara Fordtran had collected the rents on the Blue Island property and brought them to Clara Doering once a month. They received one dollar a month for this service. This was merely a matter of convenience, since Helen and Clara Fordtran lived next door to the Blue Island property, whereas the Doerings resided in Morgan Park, a considerable distance from the property. The Doerings did not wish to make the trip at their age. All matters relating to repair and the leasing of the Blue Island property were handled by the Doerings. Helen and Arthur Fordtran had, in addition, assisted the Doerings in the preparation of their income-tax returns.
Clara Doering had been in failing health for some time and on August 28, 1946, went to St. George's Hospital for a blood transfusion. Helen Fordtran was the blood donor, and Clara Fordtran brought Clara Doering home from the hospital. Clara Doering became confined to her bed in October. Clara Fordtran, a nurse's aide during the war, assisted Herman Doering in caring for his wife during her last illness, being in attendance every day after November 1, 1946, until Clara Doering died. Only Herman Doering testified that his wife was given hypodermics, and that he saw one administered to her at noon of the day the trust documents were executed. Neither of the attending physicians testified in the proceeding, because they were both deceased. Three doctors did testify, however, and gave their opinions as to the mental state of Clara Doering at 5:30 P.M. on November 8, 1946, the date of the execution of the trust agreement, if she was given morphine at noon. One doctor stated that she would not be lucid at 5:30 while the other two gave their opinion that she would be lucid and capable of transacting business. It was never determined that a hypodermic was administered and the medical experts raised further doubt by stating it is very unusual to give a hypodermic at noon if only one is given per day. They also reasoned that the shot may have been a liver extract, considering the fact that Mrs. Doering suffered from anemia. All of which leaves the facts of a hypodermic injection very doubtful and of little probative value in this proceeding. Mrs. Doering died on November 19, 1946, of carcinoma of the colon and chronic nephritis.
On January 19, 1935, Herman and Clara Doering each executed a will giving all property to the other. These wills were kept by Herman Doering and Edna Kolze in their safety-deposit box. Clara Doering's will was admitted to probate May 12, 1949.
On November 8, 1946, Clara E. Doering, Herman C. Doering and Clara L. Fordtran executed the trust agreement and the supporting deeds covering the real estate owned by the Doerings. These three persons were to be trustees and were to manage the property, paying the entire net income to Clara E. Doering during her lifetime, and after her death to Herman C. Doering during his lifetime. Clara and Herman were to occupy the premises then occupied by them, rent free during their lifetime. The trustees could sell, borrow money, etc., in order to provide sufficient income for the proper support and comfort of the Doerings. Upon the death of both, the property was to be held for the benefit of Arthur, Clara, Helen, and Henry Fordtran, Virginia Gibbons, another niece of Clara Doering, and Edna Kolze, share and share alike. Clara and Herman Doering executed deeds conveying the property to one Catherine Dowd, as nominee, to effectuate the transfer to the trustees.
The trust documents were executed on November 8, 1946, at about 5:30 P.M. Clara Fordtran had been at the Doering home all day; Arthur Fordtran arrived late in the afternoon. He was soon followed by John Dowd, an attorney Arthur had engaged to draw up the documents. The documents were first executed by Clara Doering in her bedroom, and then by Herman Doering and Clara Fordtran at the dining-room table.
Herman Doering contends that prior to November 8, 1946, he had never discussed a trust with his wife or the Fordtrans; that after Arthur, Clara, and Dowd had been with his wife in the bedroom, they came to him in the dining room, and Arthur informed him his wife was not going to live and that he should sign the papers. He said this was the first he knew his wife would not ...