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Wisniewski v. Shimashus

OPINION FILED JUNE 14, 1961.

HARRIETT WISNIEWSKI, APPELLEE,

v.

BRUNO SHIMASHUS ET AL., APPELLANTS.



APPEAL from the Superior Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 20, 1961.

Plaintiff, Harriett Wisniewski, brought this action to establish a constructive trust on a parcel of real estate held by the defendants, Bruno Shimashus and Beatrice Shimashus. Other matters, pertaining to a savings account, have been rendered moot. The theory of plaintiff's cause is that she was defrauded out of her interest in the realty by her husband, Joseph Wisniewski, deceased, who was the defendants' predecessor in interest. The matter was referred to a master who, upon hearing plaintiff's evidence and the defendants not having offered any, recommended that defendants convey an undivided one-half interest in the property to plaintiff, as the proofs and law showed she occupied the position of a tenant-in-common with the defendants. The master found that plaintiff never intended to part with her interest therein. Both parties filed exceptions to the master's report. The chancellor sustained the plaintiff's objections, overruled defendants' objections, and entered a decree finding against the master's recommendations and holding that defendants held the entire fee-simple title for the plaintiff as trustees under a constructive trust. A freehold being involved, the defendants have appealed directly to this court.

The following facts are essentially not in dispute. The plaintiff, Harriett Wisniewski, is the widow of Joseph Wisniewski, hereinafter referred to as the decedent. The plaintiff, apart from being able to write her name, does not read or write English. She speaks and reads Polish. The defendants, Bruno and Beatrice Shimashus, are the son-in-law and adult daughter of the decedent by a previous marriage. Plaintiff, too, has grown children by an earlier marriage. The plaintiff and the decedent were married on May 9, 1953, at which time both were well over 50 years of age. It was a second marriage for both of them. Following their marriage, plaintiff and decedent lived together with the plaintiff's two adult daughters in a residence owned by decedent. In June of 1954, after the plaintiff and decedent had been wed for approximately one year, decedent sold this property to third parties, with the plaintiff joining in the conveyance releasing her inchoate dower right. At this time decedent purportedly promised plaintiff, "Hattie, we belong together. I buy house and you and me belong to house."

In August of 1954, after decedent sold his property, plaintiff's daughters bought a home on contract with their own funds. The plaintiff and her two daughters lived together in this home at 5229 South Carpenter Street, Chicago, Illinois.

It appears that decedent did not at this time live with plaintiff or her daughters because marital difficulties had arisen. Plaintiff and decedent became separated for several months, during which time decedent provided no support. On September 21, 1954, plaintiff filed a suit against the decedent alleging that decedent had fraudulently induced her to release her right of dower; the action was subsequently amended by plaintiff to include separate maintenance. During the pendency of that action, the record suggests that plaintiff intended to amend her suit to one for divorce. On April 1, 1955, she and her husband stipulated or entered into the following agreement:

"STIPULATION

"1. It is hereby stipulated and agreed by and between the parties hereto and by and through their respective attorneys of record that the above entitled cause may be heard and come on for hearing as an uncontested matter on the amended complaint of the plaintiff for divorce, the answer thereto of the defendant, and upon this stipulation.

"2. That the Plaintiff and Defendant will and shall upon the hearing of this cause, permanently waive alimony, and any and all other claim that they now have, have had, or may or might be entitled to against each other arising out of the intermarriage of the parties hereto.

"3. That each, the plaintiff and the defendant agree to hold each other harmless for bills contracted by themselves.

"4. That the defendant agrees to pay the sum of $400.00 attorney's fees to Basinski, Basinski & Basinski as full payment of all his obligation as to attorney's fees and court costs in the above entitled cause; that said $400.00 must be paid on or before the time of entry of a possible decree in the above entitled cause.

"5. That the defendant agrees to pay the plaintiff the sum of $3,000.00 as her full distributive share in any and all property she may now have or might have had in the future arising from and during the intermarriage of the parties hereto; that said sum is payment in lieu of alimony which plaintiff has expressly waived. That defendant agrees to pay said $3,000.00 to plaintiff on or before the entry of a possible decree (sic.) divorce in the above entitled cause.

"6. That on payment of the aforesaid $3,000.00 plaintiff is permanently barred from seeking any amount or interest in the property both personal and real, of the defendant whether in the form of litigation or otherwise.

"7. That paragraph No. 2 to 6, inclusive, of the stipulation be incorporated in any decree that may be awarded Plaintiff upon the hearing of this ...


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