Appeal from the Superior Court of Cook county; the Hon. FRANK
M. PADDEN, Judge, presiding. Affirmed.
JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 14, 1958.
This action, originally brought by Bertha Gostomske, since deceased, is to set aside certain conveyances to defendant Herbert P. Sommerfield, her son-in-law, of two buildings. Upon the death of plaintiff, Elsa Raschke, executrix, was substituted as plaintiff. Issue having been joined by defendants, the cause was referred to a master to hear the evidence and report his conclusions. The master filed his report, finding the issues for plaintiff and recommending a decree in her favor. Defendants' exceptions to the master's report were overruled, and a decree in accordance with the master's report was entered. Defendants appeal from the decree.
It is undisputed that prior to the death of August Gostomske in 1929, he and his wife Bertha, the original plaintiff, had held title, as joint tenants, to the properties described as 828 Waveland Avenue and 1301 Cornelia Avenue in Chicago, containing 3 and 12 apartments respectively. Defendant Herbert P. Sommerfield and plaintiff's daughter Erna were married in 1924 and lived with Bertha at 828 Waveland Avenue for twenty years, without paying any rent. During that period and until 1943, Herbert and Erna took over the management, care and control of the buildings. In 1943, due to Erna's poor health, she no longer participated in the management of the buildings, and Herbert alone assumed control and management. Since 1924, Bertha reposed great trust and confidence in Herbert, and it is admitted by defendants that Herbert occupied a confidential and fiduciary relationship toward Bertha. In 1930 Bertha conveyed the properties in question to her nominee, Edward Molloy, who in turn reconveyed title to Bertha and her daughter Erna in joint tenancy.
On January 25, 1944, Herbert and Erna brought Bertha who was then 72 years of age, to the office of attorney Kelly, whom Bertha knew. This was by previous arrangement between Herbert and Erna with attorney Kelly. Kelly testified that he prepared six or seven alternative deeds under the specific directions of Herbert and Erna. Kelly also testified that Bertha was just a housewife, not acquainted with financial matters, and did not think she had any knowledge of conveyances. His purpose was "to explain to her and indicate to her that somebody had to hold title, she would have to have confidence in someone."
There is some dispute as to whether Bertha signed the deed in Kelly's office or at home. Bertha was a witness in her own behalf before the master and testified:
"I think I put the signature on at home. It got late in Mr. Kelly's office and I wouldn't give my buildings away. Mr. Sommerfield asked me to sign the deed. When he asked me to sign he said `Mother, you are still the owner.' He didn't read the deed or explain it to me. He didn't give me any money or anything of value. I trusted him at this time. He didn't have anything and I thought he would do the right thing to me. He always said, `I do the right thing.'"
One of the alternative deeds prepared by Kelly was a deed identified in the record as plaintiff's exhibit 4, from Kelly to Erna Sommerfield, Herbert P. Sommerfield and Bertha Gostomske, dated January 25, 1944, which was not recorded. There appears no satisfactory explanation in the record as to the reason for this latter deed nor the reason for not recording.
There is testimony in the record that this deed (exhibit 4 after it was executed, was placed in an envelope, identified in the record as plaintiff's exhibit 2, and Herbert said, "Here, Mother, you are still the owner." Herbert, in his testimony denied that he made such a statement, and claimed he could not remember whether he gave the envelope to Bertha, but admitted that the legend, "Deed Kelly to B.G., E.S. and H.P.S.," on the envelope was in his handwriting. The letters "B.G." on the envelope admittedly refer to Bertha Gostomske. This evidence tends strongly to support plaintiff's claim that Bertha never intended to part with her title when she executed the deed to Herbert.
This deed had been prepared in advance of her visit to the attorney's office. Bertha executed the deed conveying the property in question to Herbert. He and Erna then executed a deed to Kelly, as trustee, who in turn reconveyed to Herbert and Erna, as joint tenants. The essential consideration claimed by Herbert for the acquisition of the title to the properties was an alleged oral agreement made with Bertha, by which Herbert undertook to support her for the balance of her life. Herbert and Erna convinced her that by thus conveying the property to Herbert, she would be secure for the rest of her life in the way of support and a place to live.
It clearly appears that whatever little support money Herbert gave Bertha after the conveyance was out of the rents collected from the properties. The record does not establish that Herbert had any property or estate of his own, prior to the conveyance in question, out of which he could support Bertha. The established fact is that Herbert and Erna were the beneficiaries of Bertha's bounty, by living with Bertha for 20 years without paying rent.
Erna died April 12, 1944. Proceeds of two insurance policies on the life of Erna, payable to Bertha, totaling $5,306.01, were deposited by Herbert in an account he opened in his name and that of Bertha with the right of survivorship, although he had no interest in the policies, since they were payable to Bertha. Herbert continued to live with Bertha, without paying any rent, until 1949, when he married his present wife, Helene H. Sommerfield. Herbert died December 20, 1952, and his widow Helene was made a party defendant as administratrix of his estate. The heirs of Herbert were also made defendants. Bertha died on August 30, 1953. Thus Herbert and Bertha died during the pendency of the suit.
Defendants cannot rely upon the alleged agreement of Herbert to support Bertha for the rest of her life as a consideration for the deeds, because the record does not establish performance by Herbert of the alleged agreement. Herbert died before Bertha and, concededly, Herbert could not perform during that interval. There is no evidence that upon Herbert's death his heirs or personal representative tendered any support to Bertha.
Furthermore, the alleged agreement is too vague and indefinite as to the nature of the support or the place where Bertha was to live in the future. It was held in LeBlane v. Atkins, 387 Ill. 360, that an oral contract for support, similar to the one claimed by Herbert, is too vague and indefinite to ...