Appeal by defendant from the Circuit Court of Cook county; the
Hon. DANIEL A. ROBERTS, Judge, presiding. Heard in the third
division of this court for the first district at the December
term, 1952. Decree affirmed. Opinion filed April 22, 1953.
Released for publication June 3, 1953.
MR. PRESIDING JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.
Defendant appeals from a decree nullifying a written lease. The material facts are undisputed.
February 13, 1950 Louis Kleinhaus executed a will devising his premises located at 6124 South Winchester Avenue in the City of Chicago, County of Cook, Illinois, to his son Henry Kleinhaus and his grandsons Donald Kleinhaus and Robert Kleinhaus in equal shares and bequeathing all his personal property to his sister-in-law, the defendant, Barbara Ohde who was also appointed executrix of the estate.
About February 15, 1949 Louis Kleinhaus signed a written lease prepared by his attorney Fred W. Netto for the basement apartment in the premises, naming the defendant as lessee. According to its provisions the lease is for a period of twenty years commencing February 15, 1949, at a monthly rental of one dollar and is operative from the date of the demised term.
May 4, 1950 Louis Kleinhaus died. Several weeks thereafter Donald Kleinhaus made an oral agreement with the defendant to rent the basement apartment for the monthly sum of thirty-five dollars, this sum being the amount of rental that the defendant paid for an apartment which she occupied with her sister elsewhere in the City of Chicago. Sometime after the lease was signed by Louis Kleinhaus and the defendant, Anne S. Wilson, also a sister-in-law of Louis Kleinhaus, outside the presence of the defendant, signed the lease as a witness. At that time the lease was in the possession of Louis Kleinhaus. When Louis Kleinhaus died he occupied the basement apartment here in question. His wife, who had lived in the apartment with him, died in 1948. The defendant never had actual possession of the apartment nor did she pay any rent to Louis Kleinhaus from the time the lease was signed until his death. March 19, 1951 the lease was recorded in the office of the Recorder of Deeds in Cook county. No evidence was offered by either party tending to prove when the defendant obtained possession of the lease in controversy.
The trial court rested its decision on the ground that there was no delivery of the lease by Louis Kleinhaus to the defendant.
The principal question presented is whether there was a delivery of the lease during the lifetime of Louis Kleinhaus.
The defendant says that the lease was a present demise of an apartment and that as a tenant of the premises she could enter into an agreement with the lessor Louis Kleinhaus permitting him to remain in possession.
[1-4] The fact that the grantor remains in possession of land after a deed is made is considered and commented on in all the decided cases as an important fact in determining whether a deed for land made to a party out of possession has been delivered (Klajbor v. Klajbor, 406 Ill. 513), and whether or not a deed has been delivered depends on the intention of the grantor and the determination of that intention is a question of fact depending on the circumstances in each case. (Stanford v. Stanford, 371 Ill. 211.) No particular form is necessary to constitute a valid delivery. It may be by acts without words or by words without acts, or by both. Anything which clearly manifests the intention of the grantor and the person to whom it is delivered that the deed shall presently become operative and effectual, that the grantor loses all control of it, and that by it the grantee is to become possessed of the estate, constitutes a sufficient delivery. (Nofftz v. Nofftz, 290 Ill. 36.) But the words or acts constituting delivery must be shown to have taken place within the lifetime of the lessor. In the instant case such proof is lacking.
The uncontroverted evidence shows that the defendant never intended to occupy the premises here involved because she had better transportation facilities from the apartment in which she was then residing to her place of employment.
The evidence also shows that several weeks after the death of Louis Kleinhaus the will was read in the presence of all the heirs and the defendant. Nothing was said by her at that time with reference to the lease. In fact the heirs first learned of the existence of the lease in question about March or April of 1951.
If the lease in question was not actually delivered and did not actually take effect during the lifetime of Louis Kleinhaus it amounts to a testamentary disposition. See Stanford v. Stanford, 371 Ill. 211.
The law is well established that when, as here, the claim of a gift is not asserted until after the death of the alleged donor it is regarded with suspicion by the courts and must be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift. (In re Estate of Huston, 319 Ill. App. 361.)
In Balch v. English, 247 Ill. App. 429, this court held, at page 433, that "a gift must be established by clear proof. (Wright v. Buchanan, 287 Ill. 468-478 and cases cited.) Certainly in a case where the alleged donor is dead and the rights of heirs and creditors are involved this rule should be enforced." To the same effect see Barnum v. Reed, 136 Ill. 388.
Under the facts and circumstances shown by this record we think the chancellor was warranted in finding that there was no delivery of the lease here in ...