APPEAL from the Circuit Court of Macoupin County; the Hon.
L.E. WILHITE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 16, 1956.
Defendant Cecelia Hoppe has appealed directly to this court from a decree of the circuit court of Macoupin County ordering partition of certain premises owned by the decedent, Elizabeth Tomso, in accordance with a will devising all her property equally among her daughters, and denying defendant's counterclaim, which asserted ownership of the property under an oral contract by decedent in her lifetime to give the property to defendant either by will or deed.
The issue presented in this cause is whether the evidence establishes that decedent in her lifetime orally contracted to give the property to defendant by will or deed under circumstances which warrant specific performance.
From the record it appears that plaintiffs and defendant, Cecelia Hoppe, were daughters of Elizabeth Tomso; that defendant and her husband, shortly after their marriage, lived and engaged in business in Collinsville for some 16 months, and then returned in 1938 to Mt. Olive, and, at the request of Elizabeth Tomso, who was then 65 years old and suffering from arthritis, moved into her home. They remained there and cared for decedent for a period of approximately 15 years, until a few weeks before her death when the latter's mental and physical condition made it impossible for them to live in the house.
It is alleged in the pleadings that in 1940 Elizabeth Tomso agreed with defendant and her husband that if the latter would excavate the basement, put in a furnace, remodel the house, and make other repairs, without any expense to Elizabeth Tomso, she would make a will devising the real estate to defendant. Defendant alleged further in her counterclaim that she and her husband proceeded to make the repairs and improvements and fully performed their part of the contract, and that although decedent originally made a will pursuant thereto, it disappeared. Defendant contends, nevertheless, that the contract should be specifically enforced, and that the subsequently executed will should be disregarded insofar as it was inconsistent.
In support of these allegations, defendant offered undisputed testimony that at the time defendant and her husband moved into the house it was in need of repairs and had no furnace, basement or other modern conveniences. Moreover, the evidence as to repairs and improvements made and paid for by defendant and her husband was corroborated by the lumber dealer and the individual who installed the furnace and water heater; and was admitted by three of the plaintiffs and the executor of decedent's estate. These improvements included the excavation of a basement and installation of a concrete floor; the installation of a furnace, a hot-water heater, a sewer, a picture window, and an aluminum awning; the construction of three bedrooms, a hallway, a new kitchen area, including the laying of a new floor; the elimination of certain partitions; the repair of the roof, of the electric wiring and plumbing; the painting of the entire house several times; and the removal of trees which were replaced with dirt.
The evidence relating to the agreement of decedent to give the property to defendant is provided by the testimony of numerous neighbors and family acquaintances. Elmer Droste, an attorney from Mt. Olive, stated that he visited the Tomso residence twice in 1945 and shortly after the new year in 1946 for the purpose of having Cecelia Hoppe interpret for him the Slovak language. He stated that on one occasion Otto Hoppe, husband of defendant, was tearing out some wainscoating in the kitchen, and that when he remarked about the work in the presence of Mrs. Tomso, she said that Cecelia and her husband had been making many changes in the property, that she had given the property to Cecelia and she and her husband could do with it as they pleased. Droste asked Mrs. Tomso just what she had done, and she replied that she made a will. When he suggested, "What you should do if you are giving the property to Cecelia is to give it to her by deed, and keep a life interest for yourself," she replied that she didn't need to because she had made a will and all the children knew that "Cecelia was to have the house and understood it was to be that way." She asked Droste to read the will, and he did. He testified that it was a form type will, partly typewritten and partly printed, prepared in 1941 or 1942 by Henry Johnson, and gave Cecelia the house, the household furniture, and divided the rest of the property among all the children equally. It named one daughter executrix, and the two witnesses were Henry Johnson, and a son-in-law, John Yancik.
On another occasion when Droste visited the home and commented to Otto Hoppe about the new changes in the house, Mrs. Tomso again stated that the property was Cecelia's, and again rejected Droste's suggestion that she make a deed, by stating that she had a will which gave the property to Cecelia.
The witness Barbara Kuzia, a neighbor of some 50 years, testified that every time she visited the house she noticed new improvements, such as the basement, the furnace, the extra bedroom and the kitchen, and that whenever she admired all that was done in her conversation with Elizabeth Tomso, particularly the time she came to visit on some Rosary Society business, the latter would say, "Cecelia's doing it all herself. That's hers. I don't have the money to do it with. She's fixing it, and that's the way she's gonna have it, 'cause it's hers." The witness testified that during the last time she talked to Mrs. Tomso, which was about a week or two before her death, Mrs. Tomso remarked that the house belonged to Cecelia, and said, "However, she fixed it up, that was how she was gonna have it."
Tom Hoppe, the grandson, testified to a conversation at the time the picture window was being hung, in which he suggested that grandma decide, and Mrs. Tomso replied, "It belongs to them, let them do as they please." She said that she didn't care if they put the picture window in or not.
The witness Andrew Kosalko, whose mother's home was next door to the decedent's house, testified that while painting his mother's house he was called over to the Tomso house because one of the children had been cut, and that while Cecelia took the child to the doctor he had a conversation with Mrs. Tomso in which she told him that it was nice for him to come all the way from Springfield to do the painting for his mother. He replied that he thought it was nice for Mrs. Tomso to have Cecilia live with her, do the shopping, take her to church, and work on the house. She agreed, and added, "It's not for me. I gave them the house and what they fix is for them."
Another neighbor, John Banovic, who lived close by for over 54 years and was well acquainted with Mrs. Tomso, testified that he had conversations with her many times about the house. On one occasion she commented upon some improvements he made on his own property, and when he replied, "Your place looks a whole lot better, too," she said, "Otto and Cecelia are doing that, and the way they are fixing it, they are fixing it for themselves." Both John Banovic and his wife, who was a neighbor of decedent's for over 16 years, testified that whenever they talked about the house with Mrs. Tomso she would always say that it belonged to Cecelia and her husband, and that they were fixing it up for themselves.
Otto Hoppe testified that after the burial of the decedent, while the family was having lunch in the basement of the Holy Trinity Church in Mt. Olive, the executor, John Jatcko, and plaintiff Anna Yancik came over to him, and Jatcko stated that he knew that Otto and his wife had done a lot of work on the old home and should have consideration for it more than the others. Mrs. Yancik then ...