APPEAL from the Superior Court of Cook County; the Hon. JOHN
F. HAAS, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 19, 1954.
Flora May Wessel, appellee, brought this action in the superior court of Cook County, seeking specific performance of a contract and agreement wherein Edmund J. Stafford, deceased, promised to devise and bequeath to her a certain farm and all personal property thereon, in return for certain promises and services on her part. The suit was brought against Victoria S.E.ilenberger, in her own proper person and as administratrix of the estate of Edmund J. Stafford and conservator of the estate of Margaret Stafford, an incompetent; Margaret E. Stafford, an incompetent; Frederick A. Hibbert, Jr., and James S. Hibbert. Victoria S. Eilenberger and Margaret E. Stafford were the sisters of Edmund J. Stafford, and Frederick A. Hibbert, Jr., and James S. Hibbert are the children of a deceased sister of Edmund J. Stafford. The cause was referred to a master in chancery who found the issues for the appellee, plaintiff below. The master's report was approved by the superior court and a decree entered in accordance with the conclusions of the master. An appeal has been taken to this court from the decree of the trial court, a freehold being involved.
The complaint filed by the plaintiff alleges that on September 4, 1915, plaintiff was employed by deceased as secretary in his real-estate office at $7.50 per week. The salary was increased in 1925 to $30 per week and further increased in January, 1945, to $40 per week. She was regularly employed by him until his death. From 1930 to March 15, 1939, deceased visited plaintiff in a home she leased in Spring Grove, Illinois, substantially each and every weekend, Friday to Monday. During said period plaintiff claimed to have nursed him, looked after his welfare, and cooked his special dietary meals. About January 1, 1938, plaintiff purchased a house and lot at Battles Wharf, Alabama, prepared to quit her employment, give up her home, and make her permanent residence there.
The complaint further stated that on or about February 15, 1939, plaintiff and deceased entered into an agreement wherein deceased promised to buy a farm, equip it and make a will devising and bequeathing same to the plaintiff. In consideration thereof plaintiff was to give up her home at Spring Grove and her idea of moving to Battles Wharf, Alabama, remain deceased's secretary, move her household effects and chattels to the farm, where she would make her home and reside, manage and operate the house, look after the farm, household effects, chattels, tools, implements and machinery, continue to nurse deceased, look after his welfare, and supervise, prepare, and cook his meals to the requirements of his diet, and refrain from getting married during his lifetime.
The complaint also alleged that on or about the 25th day of March, 1939, deceased purchased in his own name a farm known as the Lisadian farm. It is this farm which is now in controversy. Deceased improved the farm and buildings and purchased household effects, chattels, tools, implements, and machines. Plaintiff asserted she performed each and all of her agreements until the death of Edmund J. Stafford on September 3, 1947. Wherefore she prayed specific performance of the contract and agreement, and that the court decree execution of sufficient deeds of conveyance to plaintiff of the farm and household effects, chattels, tools, implements and machines.
The answers of the defendants admitted plaintiff was employed as deceased's secretary from 1915 until he died, that her salary had been regularly paid, that from 1930 to 1939 deceased visited plaintiff at her Spring Grove home almost every weekend and that during that period plaintiff nursed him, looked after his welfare, and supervised, prepared and cooked his meals to conform with his ulcer diet, and that on March 25, 1939, deceased purchased the farm and bought many household effects, tools, implements and machines. They neither admitted nor denied that plaintiff leased and furnished a home at Spring Grove, that she purchased a home at Battles Wharf and prepared to quit her employment and reside there, that she gave up her Spring Grove home and gave up her idea of moving to Battles Wharf, that she moved her household effects to the farm, and that she refrained from getting married during deceased's lifetime. They denied all of the other material allegations of her complaint.
The answers pleaded the Statute of Frauds; that another action was pending wherein plaintiff filed a claim in the probate court of Cook County in the matter of the estate of Edmund J. Stafford alleging breach of a contract to make a will; that plaintiff was paid in full for her services; that the contract is illegal and void as being in restraint of marriage; that there was want of consideration for the alleged promises of decedent; that there was no mutuality of obligation; that Victoria S. Eilenberger, as administratrix of the estate of Edmund J. Stafford, and Estelle Campbell are necessary and indispensable and must be added as parties defendant; and that plaintiff has an adequate remedy at law.
By her reply plaintiff avers that the contract and its performance on her part is without the Statute of Frauds; denies the claim filed by her in the probate court is a bar to this action, said claim being in part for a note executed by deceased; admits that Victoria S. Eilenberger, as administratrix of the estate of Edmund J. Stafford, is an indispensable party and states she is named as a party defendant; denies Estelle Campbell is an indispensable party, and denies each and every other material allegation of the answer.
The cause was referred to a master in chancery on November 14, 1950, who heard proof. After the proofs were closed Victoria S.E.ilenberger resigned as administratrix of the estate of Edmund J. Stafford and as conservator of the estate of Margaret E. Stafford. Shortly thereafter she died testate and her death was suggested to the court. Her heirs-at-law were made parties defendant and subsequently answered. Frederick A. Hibbert, Jr., was made administrator of the estate of Edmund J. Stafford and Jean Rawn was named conservator of the estate of Margaret E. Stafford.
The master's report recited the testimony heard relating to statements attributed to deceased from which, along with other evidence, he found that the court had jurisdiction of the parties and subject matter, that there was an agreement between plaintiff and Stafford as alleged, that plaintiff had fully and completely performed the terms of the agreement, that she could not be adequately compensated at law because of the Statute of Limitations, that there was no merit in the defenses raised by defendants, and he recommended that a decree be entered finding plaintiff entitled to receive the farm and personal property thereon and the fees and court costs advanced by her. Objections thereto were allowed to stand as exceptions. Decree was entered on June 11, 1953, decreeing specific performance of the contract. Hearing on the exceptions was had on June 23, 1953, and decree for specific performance was entered on July 2, 1953, substantially identical to that entered on June 11, 1953.
It is first urged by defendants that plaintiff failed to prove the existence of the terms of the alleged contract with sufficient certainty to take the case out of the Statute of Frauds. In support of this contention defendants aver that the evidence of the existence of an oral contract to devise the property to plaintiff is not so clear, explicit, and convincing, nor so certain, definite and unequivocal in its terms, and is not so sufficient as to prove the existence of the contract in the terms alleged so as to take the case out of the application of the statute.
The cases allowing specific performance to enforce an oral contract to will or devise property to another, in consideration of services to be rendered, are universally those in which a gross fraud would be suffered by the promisee if specific performance were denied. The courts of equity will not permit the Statute of Frauds, the only purpose of which is to prevent fraud, to be used where the effect will be to accomplish a fraud, and if the facts are such that it would be a virtual fraud to permit the defendant to interpose the statute, a court of equity will not listen to that defense. Limitations placed upon this equitable rule are (1) that the contract must be proved by competent evidence, and be clear, definite, and unequivocal in terms, and (2) that it must appear that the promisee cannot be made whole by damages, or by other adequate remedy at law. The following principles are applicable to such a case: (1) Courts of equity accept with caution evidence offered in support of a contract to make disposition of the property of a deceased person different from that provided by law; (2) the contract to support it must be clear, explicit and convincing; (3) the contract may be based upon services, support and care, and if the value of such services may be estimated in money, for which a recovery might be had, such performance will not take the contract out of the Statute of Frauds, except in case the Statute of Limitations bars recovery, or where services cannot be adequately compensated; (4) specific performance is not a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances; and (5) it is only on the principle that it is unjust and inequitable to permit a contract to remain unexecuted that a court of equity will grant relief, and where the promisee shows no substantial change for the worse in his position in consequence of the agreement, relief will be denied. Linder v. Potier, 409 Ill. 407.
George B. Hoffman, the real-estate broker who sold the Lisadian farm to Stafford, testified that he often visited the farm and observed the plaintiff working around the farm, cleaning up and planting shrubbery, working around the house getting meals, driving truck, cars and tractors. He stated that in March, 1947, he chanced to meet Stafford on the premises of an implement company at Woodstock, Illinois, and asked him if he would consider selling the farm. Deceased answered that he wouldn't sell it since he was going to give it to plaintiff. He informed the witnes that plaintiff had worked hard, they planned and worked together, hence ...