APPEAL from the Circuit Court of Knox County; the Hon. WILLIAM
M. BARDENS, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
The executor of the will of Mary Maley, deceased, and certain beneficiaries thereunder brought suit in the circuit court of Knox County against Estelle Burns and others, seeking to set aside two deeds from decedent to Estelle Burns dated July 12, 1947, and November 24, 1948, or to establish a trust in the properties conveyed thereby. The court dismissed the complaint for want of equity as to the deed of July 12, 1947. It further decreed that Estelle Burns holds the real estate conveyed by the deed of November 24, 1948, in trust to sell the same and to make certain designated payments from the proceeds. A freehold being involved, defendant Estelle Burns appeals directly to this court from that part of the decree establishing a trust in the property conveyed by the 1948 deed, and plaintiffs and certain of the defendants have perfected a cross appeal as to other portions of the decree.
The complaint alleged that the conveyances were obtained by undue influence on the part of appellant. It also alleged that decedent did not intend to convey absolute title to the real estate, but conveyed the properties only for the purpose of having appellant manage and operate them for decedent's benefit. The answer filed by appellant merely denied the material allegations of the complaint. The Statute of Frauds has not been invoked as a defense. The cause was referred to a master in chancery to take the proof and report his conclusions. After hearing the evidence he made his report finding that no fiduciary relationship existed between decedent and appellant; that neither deed was made as a result of any undue influence upon decedent; and that on the dates of the conveyances they were intended as absolute conveyances and were not made for the purpose of management or operation of the properties for decedent's benefit. The master recommended that a decree be entered declaring appellant the absolute owner of each of the parcels of real estate. As to the real estate conveyed by the 1947 deed the chancellor entered a decree in accordance with the recommendations of the master. With respect to the property conveyed by the 1948 deed, however, the court set aside the master's findings and decreed that at the time of the conveyance appellant occupied a confidential or fiduciary capacity with decedent, that the conveyance was made without any undue influence by aplant or anyone acting in her behalf, but that the deed was executed and delivered, by reason of the confidential and fiduciary relationship, in trust to sell the real estate and pay the net proceeds as follows: (1) pay $4000 to Adele M. Maley, $1500 to Fred L. Maley, $500 to each Robert F. Maley, William F. Maley, Estelle Trost and Elizabeth Maley Teamster, and $500 for the saying of masses for decedent; (2) pay all just claims or indebtedness against the estate of Mary E. Maley, deceased (except the claimed indebtedness of said estate to Adele M. Maley and Fred L. Maley), and pay all costs of administration of said estate; and (3) pay to Estelle Marie Burns, the appellant, the balance remaining after the payment of the items designated in (1) and (2) above. It was further decreed that if the net proceeds of sale were insufficient to pay such items then appellant shall account for all rents, issues and profits received from the real estate and apply the same to the payment of said items.
The evidence discloses that Mary Maley, a spinster about 80 years of age, died on May 16, 1949, leaving a surviving sister, Adele Maley, two brothers, Fred Maley and William Maley, and a number of nieces and nephews. About nine years before her death she had met with an accident which crippled her. She was taken to a hospital in Galesburg, where she remained an invalid until the time of her death. The sister, Adele, managed certain rental real estate owned by Mary Maley, collecting the rents, paying taxes and insurance, and carrying out directions as to maintenance and repair. In October, 1948, Mary revoked Adele's authority to manage her business affairs, and published a notice in a newspaper that she had no agent authorized to transact any of her business.
The appellant, Estelle Burns, was a niece of Mary Maley. She resided in Peoria, about fifty miles from Galesburg, and visited her aunt about once a month. Mary Maley was appellant's godmother, and a close and friendly relationship existed between them. On July 12, 1947, Mary Maley executed a deed to appellant conveying certain real estate in Galesburg having a value of about $6000. The deed bore the signatures of two witnesses in addition to the usual acknowledgment, and was received by appellant through the mail in the fall of 1947. She was not present when the deed was executed, and had no prior knowledge of it. She testified that her aunt had told her to keep the deed, but had made no further statement to her about it. Appellant did not take possession of the property or perform any other acts of ownership until about a year after receipt of the deed.
On Memorial Day, 1948, appellant's brother, Charles Burns, was in Galesburg visiting his mother's grave. He then went to the hospital to see Mary Maley. In the course of their conversation she said to him: "I want to ask you if you would be offended if I would deed my property to your sister Estelle. I am her godmother." He replied that it was her property and she could do what she wanted with it. On November 24, 1948, appellant came to Galesburg at the request of Mary Maley, who then stated that she was conveying her property to appellant. A deed was drafted by Mary Maley's attorney covering her other real estate in Galesburg, which had a value of about $27,500, and she signed it in the presence of her attorney and the appellant. Prior to execution of this second deed Mary Maley insisted that she have witnesses to it, saying "I don't want anybody to say I was crazy after this is signed." Accordingly, the same two persons who had witnessed the deed of July 12, 1947, acted as witnesses to the signing of this deed, and the attorney took the acknowledgment as notary public. The attorney testified that before the deed was signed he asked Mary Maley if it was "the deed you want to sign and convey your property to Estelle Marie Burns," that Mary Maley replied "It absolutely is," and that no further conversation took place.
On October 20, 1948, Mary Maley had signed a written memorandum or purported "contract" in which she expressed the desire that her brother Fred should manage her properties, and in which she agreed to pay him for such services. The writing contained the following statement: "I will put all my deeds in trust of Estelle Burns to make sure of my obligations." Fred Maley testified that Mary thereafter frequently requested him to sell her properties for her; that he was at the hospital on November 24, 1948, the day the second deed was signed, and that Mary then told him she intended to give deeds to appellant in trust so the properties could be sold if she became incapacitated. The attorney who had prepared the deed of November 24, 1948, testified that a short time thereafter appellant requested him to prepare a quitclaim deed conveying all of the property back to Mary Maley; that such a deed was prepared, signed by appellant and given to her; and that the witness never saw it again. He further testified that the quitclaim deed was prepared for use "in case Mary should change her mind and make up her mind that she wanted to make a change with Estelle."
Appellant testified that in the latter part of December, 1948, or the first part of the following month, she had a conversation with Mary Maley in which the latter said appellant could, if she chose, sell some of the properties and pay certain sums to Adele, Fred, certain nieces and nephews, and have some masses said. After Mary's death appellant sent or caused to be sent the following letter to Fred Maley and others:
I intend to carry out the following last wishes of Aunt Mary:
Four Thousand dollars to Adele.
One thousand dollars (fifteen hundred) if possible, to Fred.
A sum of five hundred dollars to each of the following nieces and nephews: Bob M., Forrester M., Estelle Trost, and Elizabeth Eleanor ...