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Tess v. Radley





APPEAL from the Circuit Court of Peoria County; the Hon. JOHN T. CULBERTSON, JR., Judge, presiding.


Rehearing denied September 15, 1952.

This is a direct appeal by trustees of the Presbyterian Church of Princeville, Illinois, and Board of Foreign Missions of the Presbyterian Church of U.S.A., a religious corporation, hereafter referred to as appellants, from a decree of the circuit court of Peoria County granting specific performance of an oral contract between William Rude and his adopted daughter, Kathleen Tess, hereafter referred to as appellee. A freehold is involved.

The complaint was filed January 17, 1949, by Kathleen Tess. The executor and all legatees and devisees under the will of William Rude, deceased, were made defendants.

The original complaint alleged that on or about August 2, 1934, when appellee was eighteen years of age, her father made an oral agreement with her to the effect that if she did not marry until she was 25 years of age and if she would stay with her parents, continue to help with the farm work and take care of her mother until her death, he would will her all of his property when he died and that he would furnish her with clothing and spending money in the sum of $2 per week. The complaint further alleged that appellee accepted the proposition and fulfilled her part of the contract and prayed specific performance of the contract, alleging that she had no adequate remedy at law.

Appellants' answer denied the making of the contract and alleged that if such an agreement had ever been made, it had been breached and abandoned by appellee. Appellants also pleaded the Statute of Frauds and alleged that the services performed by appellee for her father were not solely referable to the contract and that she did not change her position for the worse in making the contract or performing the services.

The cause was referred to a master who heard the evidence. After all the testimony was taken, appellee was permitted to file an amendment to her complaint by which she alleged that the oral contract was made with her father in the summer of 1932 when she was sixteen years of age. The amendment further alleged that appellee received no compensation for her services from either her father or her mother. Appellants answered the amendment, denying the same and praying that the complaint be dismissed. All pleadings were under oath.

The master recommended a decree of specific performance. Exceptions to the master's report were overruled and the court found that sometime in the summer of 1932, and prior to the beginning of the 1932 fall term of the Wyoming Community High School, and in consideration of services rendered in the past, and to be rendered in the future, and in further consideration of her quitting school, William Rude entered into a contract with appellee to the effect that if appellee would not get married until she was 25 years of age, and during said time would stay with her parents and live with them and continue to help him in his farm work, and take care of her mother, and in case she married before her mother's death, that she would continue to take care of her mother until her death, that he would will her all his property when he died. A decree was entered in accordance with the master's recommendations.

The evidence discloses that appellee was adopted by William Rude and Mary Rude, his wife, on August 21, 1916, when she was about three weeks old. At that time the Rude family consisted of William and Mary Rude and one son, John. William Rude was 39 years of age, Mary was 37 and John was seven. They resided on a part of the hundred-acre farm here in controversy, the balance of said farm being purchased by William Rude after the date of his alleged contract with his daughter. From the time she was old enough, appellee helped her mother in and around the Rude home, and as she grew older, helped her father around the farm. She attended the country school and went one year to the Wyoming Community High School, that year beginning in September, 1931. She was not permitted to continue her high school education because her father said he needed her at home and she was not learning anything. She passed all of her subjects. She performed considerable manual labor about the farm, doing chores, feeding hogs, milking cows night and morning, cleaning stables, picking and shoveling corn, running the tractor, shocking oats, and generally doing the work of a man. She was not permitted to have social contacts except to visit relatives and neighbors with her parents and to attend church. Mrs. Rude was frail and suffering from arthritis and as early as 1934 appellee was doing most of the housework. Later, Mrs. Rude contracted cancer from which she suffered for several years and died on January 4, 1944. Appellee nursed Mrs. Rude until the time of her death without assistance except for occasional help volunteered by the neighbors.

John Rude, the son, left the Rude household when he was fourteen years old because he could not get along with his father. In 1935, Mrs. Rude purchased a farm for John to live on and he resided there until the year 1939, when he was killed by an unknown assailant. He was never married and left no children him surviving. Two youths were accused of his murder and Mr. and Mrs. Rude employed counsel to assist in prosecuting them, but they were acquitted. The evidence shows that after the acquittal Mr. and Mrs. Rude were fearful that something might happen to them and in particular to appellee. Appellee became nervous and lost weight and in the fall of 1940 she went to Clarks Grove, Minnesota, where she obtained employment as a domestic for several months. While she was in Clarks Grove she was operated upon for appendicitis and in May, 1941, after her operation, she returned to live with her parents. They continued to live on the Rude farm until after Mrs. Rude's death in 1944. After John's death Mrs. Rude sold the farm she had purchased for him to live on and made a will leaving all of her estate to her husband, but in the event that he should predecease her, then everything was to go to appellee.

After Mrs. Rude's death in 1944 Mr. Rude bought a house in Princeville and he and appellee lived there a short time. In August, 1944, appellee married Henry Tess. She was then 28 years of age. This marriage did not meet with her father's approval, and he thereafter refused to have anything to do with his daughter and especially with her husband, whom he disliked.

On October 19, 1945, William Rude married Gertie Crowe whom he divorced about one year later. In December, 1946, Rude made a will devising his real estate to the Trustees of the Presbyterian Church of Princeville, and the balance of his estate to his nephew, John Tess. In the summer of 1947, Clyde and Barbara Swinehart and their daughter moved into Rude's home with him and entered into an agreement with him whereby Swinehart was to farm the Rude land and they were to take care of him and furnish him board until he died, in return for which Swineharts were to receive the Rude farm. At that time Rude made another will by which he devised his farm and household goods to Mrs. Swinehart, his residence to the church, $200 to his daughter, his automobile and securities to John Tess, and the residue to the church. The Swineharts lived with Rude for several months and then left, abandoning their agreement with him.

Thereafter, on January 8, 1948, Rude executed another will, which was probated in the probate court of Peoria County. By this will he disposed of all of his property except his farm to certain defendants who have not appealed from the decree of the lower court, and provided that his farm should be sold and $1000 paid to Kathleen Tess, $1500 to certain defendants who did not appeal, and of the balance 90 per cent to the Trustees of the Presbyterian Church of Princeville and 10 per cent to the Board of Foreign Missions of the Presbyterian Church of the U.S.A.

Points relied upon for reversal are that the evidence does not support the findings and is not so clear and convincing as to sufficiently establish the terms of the contract; that the contract was abandoned by appellee when she left her parents' home and went to Minnesota for a period of approximately eight months; that the services performed by appellee were not referable to the contract alone; that she did not change her position for the worse, and finally that she should be bound by the allegations of her original ...

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