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Banks v. Gregory

OPINION FILED MARCH 20, 1959.

KENNETH BANKS, APPELLANT,

v.

GRACE R. GREGORY. — (CRESCENT P. O'CONNOR, EXR., APPELLEE.)



APPEAL from the Superior Court of Cook County; the Hon. GEORGE M. FISHER, Judge, presiding. MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

This is a proceeding seeking specific performance of a written agreement allegedly made between the parties wherein the plaintiff-appellant, herein called plaintiff, promised to move himself and his family from Canada to Chicago and to do certain things for the defendant, Grace R. Gregory, herein called defendant. By the terms of the agreement hereinafter fully set out, the defendant was to create a trust of her property, by the terms of which plaintiff would be the ultimate beneficiary. While this appeal was pending, the defendant died and upon the suggestion of that fact to the court Crescent P. O'Connor, as trustee, who was also executor of her estate, was made an additional party defendant. Grace R. Gregory, the deceased, defendant, a widow, was an aunt of the plaintiff and she originally came from Canada. In late 1953 or in early 1954 the defendant suggested to the plaintiff that he and his family move to Chicago. The urging of the plaintiff to move to Chicago appears to have been by letter, by personal invitation, and was strongly suggested in telephone conversations. The defendant was possessed of considerable real estate holdings consisting mostly of rental quarters rented to various tenants for use as residences. The operation, management and general supervision of the property, together with the collection of rents, apparently was very burdensome to the defendant and she sought the aid of the plaintiff in connection with the management of the property and was particularly desirous that he be present to take over her duties in her absence. At the time these negotiations for the plaintiff to move to Chicago were in progress the defendant was describing herself as in "very poor health" and said she "wanted to get into new pastures."

The defendant, in correspondence, expressed herself as being of the opinion that her one brother and three sisters were financially secure and she described one of the sisters as being of a "grasping attitude" and apparently resented any contact with her sisters or her brother. The plaintiff was her only nephew.

The urgings on the part of the defendant to the plaintiff to come to Chicago culminated in a so-called agreement dated March 25, 1954. The agreement was, according to the testimony, prepared by the defendant after the purchase of a form in a stationery store. It was stated in the testimony that she prepared the agreement herself for the reason that its preparation by an attorney would have cost $50. The agreement as thus prepared, omitting the notarization, was as follows:

"We, Grace R. Gregory and Kenneth Banks, after talking over our present circumstances, have come to the following agreement:

"In consideration that I Kenneth Banks and family promise to move to Chicago on or about August 1st, 1954.

"1. That I Kenneth Banks is to have at least a three room apartment including; heat, gas, electricity and water, free of rent.

"2. That I Kenneth Banks is to look after the property of Grace R. Gregory, located at 63rd Place and Homan Avenue, in her absence.

"3. That I Kenneth Banks is to seek outside employment.

"4. That Grace R. Gregory is to create a Trust of her property in which she is to be the beneficiary so long as she lives and that on her demise I Kenneth Banks is to become the beneficiary.

"This agreement is not to be recorded and if it is recorded it is to become null and void.

"In Testimony Whereof, said Grace R. Gregory and Kenneth Banks have hereunder affixed their signatures and seals the day and date first above written.

(s) GRACE R. GREGORY (Seal) (s) KENNETH BANKS (Seal)"

Thereafter the plaintiff and his family moved to Chicago and occupied an apartment in a building owned by the defendant. The complaint alleges and plaintiff testified that he always has been ready, willing and able to assist the deceased in looking after her property in her absence and that he sought and obtained outside employment and has otherwise fully performed the agreement.

After the plaintiff and his family moved to Chicago, difficulties arose between the parties and the defendant indicated she would not create the trust and ordered the plaintiff to vacate the apartment. When examined as an adverse witness, the defendant stated that the agreement was "bona fide" and that she prepared the same after consulting her attorney. Her testimony manifests the strong feelings held at the time of this litigation both toward the plaintiff and his family. Soon after she indicated that she was not going to execute a trust, the plaintiff filed his ...


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