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Mock v. Higgins

OPINION FILED SEPTEMBER 22, 1954.

CONSTANCE K. MOCK, PLAINTIFF-APPELLANT,

v.

GEORGE F. HIGGINS ET AL., DEFENDANTS-APPELLEES.



Appeal by plaintiff from the Circuit Court of Du Page county; the HON. MEL ABRAHAMSON, Judge, presiding. Heard in this court at the May term, 1954. Judgment affirmed. Opinion filed September 22, 1954. Rehearing denied October 5, 1954. Released for publication October 5, 1954.

MR. JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT. Rehearing denied October 5, 1954.

On November 16, 1930, Henrietta E. Garrett died in Philadelphia, Pennsylvania, leaving an estate of over seventeen million dollars. She left a will that disposed of only sixty thousand dollars of her estate and the balance became intestate property. The estate was administered in the orphans' court of Philadelphia county, Pennsylvania. So far as known, the decedent left no near relatives and over twenty-six thousand people filed claims, alleging that they were relatives of the decedent and entitled to a distributive share of the estate.

Howard S. Kretschmar filed a claim and asserted that he was a first cousin of the deceased. In 1932 Kretschmar employed Alan Dawson, a lawyer of Philadelphia, Pennsylvania, to represent him and prosecute his claim, as being an heir to this estate, and Dawson was to receive ten per cent of any money that was recovered by Kretschmar if he was proven to be an heir and entitled to a distributive share of the estate. On November 14, 1933, Kretschmar made an assignment of his interest in the Garrett estate to his daughter, his only child, Constance K. Mock, subject to the ten per cent interest that he had agreed to pay Dawson for his services, and from that time on Attorney Dawson represented Constance K. Mock.

On November 20, 1933, Kretschmar died leaving an instrument, purporting to be his last will and testament. This will was not offered for probate until May 22, 1953. By this will the daughter was made the residuary legatee and executrix of the same.

After Kretschmar died, Attorney Dawson filed a claim in the Garrett estate in the orphans' court asserting that Kretschmar was an heir of Henrietta E. Garrett's estate, as a first cousin and that Constance K. Mock had succeeded to Kretschmar's rights as assignee, legatee and heir at law. On November 21, 1951, the orphans' court of Philadelphia county, Pennsylvania, found that Kretschmar was one of three first cousins who had survived Henrietta E. Garrett and these cousins were her heirs and that Constance K. Mock was entitled to her father's share in the estate as assignee. The court awarded to Constance K. Mock a one-third interest in the Garrett estate subject to other claims that were being contested at the time. This order was confirmed by the Supreme Court of Pennsylvania.

John S. Leahy, an attorney in St. Louis, Missouri, through some lawyers in New York City, learned that Herman A. Kretschmar was living near St. Louis, Missouri, and probably was a first cousin and heir of Henrietta E. Garrett, deceased. He got into communication with Herman A. Kretschmar, but Herman did not seem to be interested in the matter. Attorney Leahy was acquainted with Chester H. Farthing, a lawyer admitted to practice in Illinois, and who at that time had offices in East St. Louis, Illinois. Farthing and Leahy were well acquainted and handled many legal matters together before. George F. Higgins was the public administrator of Du Page county, Illinois. On September 24, 1936, Chester Farthing went to Wheaton, Illinois, and met Mr. Higgins and Joseph Samuel Perry, an attorney of Du Page county, who had frequently represented the public administrator in probate matters. A petition was prepared and presented to the probate court of Du Page county, whereby George F. Higgins was appointed administrator of the estate of Howard S. Kretschmar, deceased. The only estate that Howard S. Kretschmar had was the claim that he had filed in the orphans' court in Pennsylvania, claiming to be an heir of Henrietta E. Garrett. Attorney Farthing was employed by Higgins to represent him in this estate. After Higgins had been appointed administrator of the Kretschmar estate, Mr. Bragdon, an attorney in Chicago, told Mr. Farthing that Kretschmar had made an assignment of his interest in the Garrett estate to his daughter, Constance K. Mock, and also had left a will leaving everything that he had to his daughter, Constance K. Mock. Bragdon sent him copies of the same with exceptions, some deleted parts in the assignment agreement, and the will which did not bear any witnesses' signature.

The orphans' court of Philadelphia county appointed a master to hear the various claims of the people that claimed to be heirs in the estate. The hearings dragged along until April 1949, when Attorney Dawson went to St. Louis and conferred with Attorneys Farthing and Leahy for about a week. The contract, which is now in litigation, was prepared in the office of Mr. Leahy, the St. Louis attorney, and he testified that he never saw Mrs. Mock in connection with the contract, or of the signing of the same, "that the contract was prepared in my office and largely dictated by Mr. Dawson. Mr. Farthing and I were present and made suggestions. After Mr. Farthing and I had signed it, Mr. Dawson took nine copies of the instrument to Chicago. He subsequently wired us Mrs. Mock had signed the contract." This evidence is in no way disputed or contradicted. The contract is signed by George F. Higgins, John S. Leahy, Chester H. Farthing, Joseph Samuel Perry and Constance K. Mock, and describes in detail what the parties shall do. In substance Higgins, Leahy, Farthing and Perry were to use their best efforts to establish the fact that Howard S. Kretschmar was an heir and entitled to a distributive share in the estate of Henrietta E. Garrett, and for their services they were to receive ten per cent of the amount collected by Constance K. Mock, or the estate of Howard S. Kretschmar, deceased, or the sum of $250,000, whichever amount should be the greater. They were successful in their efforts and Constance K. Mock was adjudged to be entitled to one-third of the estate, which was somewhere near three and one-half million dollars.

The State of Pennsylvania claimed the whole of the estate alleging that there were no heirs and under the laws of Pennsylvania the estate was to escheat to the State. The State of Pennsylvania had other claims against the estate and these were all compromised for the sum of four million dollars in which Attorneys Farthing and Leahy took an active part.

After Constance K. Mock had received her money in the estate, she became dissatisfied with the contract and started a suit in the circuit court of Du Page county, against George F. Higgins, John S. Leahy, Chester H. Farthing, Joseph Samuel Perry and (Mary Ranney, who was the assignee of John S. Leahy of his share in the contract), alleging that there was a fiduciary relation existing between herself and the defendants; that there is no consideration for the contract; that the same was signed under duress; that the contract was uncertain and void; that John S. Leahy was not admitted to practice law in the State of Illinois and the contract was therefore void; that there was undue influence asserted upon the plaintiff, Mrs. Mock, to sign the same, and that the contract was void because it was contrary to the laws of the State of Illinois, regarding maintenance and champerty, and that the contract was obtained as a result of a conspiracy against the plaintiff.

The plaintiff called each of the defendants for cross-examination under section 60 of the Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060] and had them identify correspondence between themselves and Mr. Dawson, the attorney in Pennsylvania.

Mrs. Mock was also called as a witness and her evidence as abstracted is as follows: "My name is Constance Kretschmar Mock. I reside at 1504 West Cullom Avenue, Chicago. I am the plaintiff in this case. Mr. H. Alan Dawson was my Attorney from 1936, to the time this contract was signed." She also identified plaintiff's Exhibit No. 1, and said: "It was signed in the office of Mr. Bragdon. He was Mr. Dawson's Chicago representative in the case. He was one of my attorneys at that time." Her attorney offered to prove that Mrs. Mock had a conference with her attorney, Mr. Dawson, before the contract in question was signed, and that she first refused, then she was persuaded to sign it because it was necessary in order to avoid prolonged litigation. We will say at this time, that we think that the court properly refused this offer, as there is no intimation that the defendants, or any of them had anything to do with this matter.

The defendants offered no evidence, and at the conclusion of the evidence the court said: "The plaintiff here seeks relief in a court of equity. From the evidence which has been presented it appears to me that the problem has been more or less brought on by herself.

"As I recall the testimony of the plaintiff, Howard S. Kretschmar died on November 20, 1933. In 1953 his will is presented to the Probate Court of Du Page County for probate. There is also apparently an assignment of all his interest in the Garrett estate, executed some six or eight days before his death in 1933.

"I am unable to understand why the plaintiff failed to present that will, or why she failed to present that assignment. She apparently cooperated with Mr. Higgins, the Public Administrator all through the course of this time from 1936 or 1937 until the filing of this suit in September, 1953, except, apparently, ...


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