APPEAL from the Circuit Court of Cook County; the Hon. JOHN T.
DEMPSEY, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 22, 1959.
Lillian E. Kraft, plaintiff, appeals from a decree of the circuit court dismissing her second amended complaint wherein she sought to impress a trust upon certain Chicago real estate. A freehold is involved.
The complaint alleged that on August 14, 1948, Frances Krzyzewski conveyed the property to one Alice Smith, who reconveyed it to Mrs. Krzyzewski and two of her seven children, Frank Kraft and Mary Kretchman, in joint tenancy; that the deeds were given pursuant to an oral agreement whereby Frank and Mary were to hold the same in trust for their mother during her lifetime and that upon her death, they were to convey to each of the other children an undivided 1/7 interest; that at the time of the conveyance, Mrs. Krzyzewski was over 80 years of age and in poor health, and was dependent upon her children, including Frank and Mary, for assistance in her domestic life and in the management of her business affairs; and that by reason of this relationship between the children and their mother, all of the children, including Frank and Mary, were in a fiduciary relationship with their mother, and with each other. The complaint further alleged that Mrs. Krzyzewski died about two years later and that Frank died shortly thereafter, so that Mary was the surviving joint tenant and the holder of the legal title. Plaintiff is the widow of Frank Kraft, and claims that she is entitled to whatever equitable interest in the property Frank owned at the time of his death. It was asserted that by reason of the fiduciary relationship and the oral agreement, that Mary holds title in trust for the benefit of herself and the other children or their heirs, and that plaintiff is entitled to an undivided one-seventh interest in the real estate and in the rents and profits since Mrs. Krzyzewski's death.
The joint answer of Mary L. Kretchman and three of her five sisters, who are all parties defendant, admitted the execution of the deed, denied any oral agreement that the property was to be held for the benefit of all the children and denied the existence of a fiduciary relationship.
At the hearing before the master, plaintiff called Mary Kretchman and two of her sisters as adverse witnesses under section 60 of the Civil Practice Act, a procedure very similar to that used by the plaintiffs in Kapraun v. Kapraun, 12 Ill.2d 348. Mrs. Kretchman testified that her mother was in excellent health for her age at the time the deeds in question were executed; that she had never helped her mother in the conduct of the mother's business affairs; that her mother collected the rents from the property here involved until her death; and that to the best of her knowledge, none of the other children assisted their mother with her business affairs. In connection with the deeds, Mrs. Kretchman testified that she and her brother, Frank Kraft, together with her sisters, Pearl Maricle, Rose Proctor and Florence Dressler met in a real-estate office at her mother's request. The deeds were executed and Mrs. Krzyzewski's deed to Alice Smith was witnessed by Mrs. Proctor and Mrs. Maricle. She further testified that she could not recall any conversation with her mother at the time relating to the purpose of the deeds.
Mrs. Dressler testified that she was present at the meeting in the real-estate office but did not recall any of the conversation; that after the death of her mother and Frank, she collected the rents from the property and deposited them in a bank account in her own name; that all bills in connection with the property were paid from such account; that every year she made a distribution of the net proceeds to all of the sisters and that no distribution was ever made to plaintiff. She testified that she was paid $18 per month for her services and that she did all this at the direction of Mrs. Kretchman.
Rose Proctor testified under section 60 that she witnessed the deed. She also testified that her mother was in very good health at the time and all of the children thought it was very good that she could take care of herself so well. She denied having any recollection of any conversation at the time regarding the property. To impeach Mrs. Proctor's testimony, portions of her discovery deposition were read in evidence in which she stated that there was a discussion at the time of the meeting; that it was the "understanding" that Frank and Mary were to hold title for the rest of the children; that it was decided that someone else should be on the title with the mother; that this was thought advisable because the mother was 83 years old but felt herself that she needed some help; and that it was the mother's idea to put the title in joint tenancy.
The deposition of Mrs. Maricle, who lived in Wisconsin, was introduced in evidence. She testified that she signed the deed as a witness and that she did not really understand what the deeds meant but she thought that the purpose was to help the mother out in the management of the property.
The defendants offered no evidence and moved to dismiss the complaint for want of equity. The master found that plaintiff had failed to prove the existence of an express trust; had failed to prove a fiduciary relationship, and that there had been no proof of facts sufficient to raise a resulting trust or a constructive trust. The court overruled exceptions to the master's report and entered the decree appealed from, dismissing the complaint for want of equity.
On this appeal, plaintiff proceeds on three inconsistent theories. First, it is contended that there was an express trust; second, that a resulting trust arose as a matter of law; and third, that by reason of the alleged fiduciary relationship a constructive trust existed.
Plaintiff recognizes that, since the subject matter of the alleged trust is real estate, the Statute of Frauds requires an instrument in writing before an express trust can be enforced. She contends that a letter prepared and signed at the same time as the deeds satisfies this requirement. The letter addressed to Mrs. Frank Luder and Mrs. Ann Moore, two other sisters who were not present at the meeting, was signed by the four daughters and Frank, and reads as follows:
We are all gathered here together at the request of mother and she wishes to have her property located on Belden Avenue transferred so as to put it in ...