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Boryca v. Parry





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding.


Alleging fraud, undue influence, breach of a fiduciary relation and want of consideration, the plaintiff, Wanda Boryca, suing as both an individual and as the executrix of her mother's will, started this action in the circuit court of Cook County against her sister, Genevieve H. Parry, and the registrar of titles, to set aside a trust deed and trust agreement pertaining to property once owned by their mother. After hearing extensive evidence, a master concluded there was no fraud or undue influence, but that the transfer of the property by the mother to defendant was a voluntary act occurring after she had received independent advice from an attorney, and recommended that plaintiff's complaint be dismissed for want of equity. This direct appeal, involving a freehold, is prosecuted by plaintiff from a decree conforming to the master's recommendation.

The principal parties to this appeal are the only children of John and Sophie Panto. The property in question, located at 5408 W. Schubert Avenue in Chicago, was purchased by the parents as joint tenants in 1928, at which time it was improved with a single-story, frame residence building and occupied by relatives as tenants. Panto died intestate in 1931, when plaintiff and defendant were 6 and 5 years of age, respectively, and Sophie Panto became the sole owner. She and the children moved into the building which was later remodeled so as to have a three-room apartment in the basement and a five-room apartment on the main floor. Its value at the time of the execution of the trust instruments involved was stipulated at $18,000.

Sophie Panto had no formal education and could not read or write English, although she spoke it brokenly; she spoke the Polish language but could not read or write it. For many years she worked as a janitress in office buildings in the city of Chicago. In 1952 she suffered a heart attack, but resumed work and was employed until February, 1957, when she suffered a second heart attack. After that date, and until her death on November 26, 1957, she did not work, but was not bedridden and was able to do housework, go to the doctor, do shopping and travel alone about the city. At her death she was 71 years of age.

Following the death of the father, plaintiff continued with her education through the first year of high school when, at age 16, she quit school and went to work in a factory to help out with household expenses. Defendant attended high school for four years and graduated in 1945. She had part-time employment during the last three school years, full-time employment in the summer and, after graduation, was regularly employed as a telephone operator. During this period both girls lived with their mother in the basement apartment and the upstairs apartment was rented.

In 1945, plaintiff married Frank Boryca, a next-door neighbor, and took up her residence with him in a property he was purchasing at 5410 W. Schubert Avenue. Five years later, in 1950, defendant married Robert W. Parry and lived with her husband in the first floor apartment of her mother's property paying a rental of $35 a month. The mother continued to live in the basement apartment. This was the status of the parties in June, 1952, when Sophie Panto executed a last will and testament wherein she nominated plaintiff as executrix and directed that her estate be distributed equally between her daughters. The will was prepared for her by an attorney who was the secretary of the Alliance Savings & Loan Association near her home. It was never revoked.

Defendant became estranged from her husband and they were separated in June, 1954. Thereafter, and until the date of her mother's death, defendant continued to reside in the first floor apartment, paying rent of $35 a month, and the mother resided in the basement. The next pertinent event after the execution of the will occurred when plaintiff filed suit for divorce in September, 1956. This proceeding culminated with a decree entered May 13, 1957, which awarded plaintiff custody of two minor children and provided that Frank Boryca was to convey to plaintiff his interest in the real estate at 5410 W. Schubert Avenue, the plaintiff to pay him one-half the value of such real estate, or $8000, and plaintiff "to apply immediately for a mortgage to effectuate settlement and if additional security is required, plaintiff, with her mother's consent, shall use adjoining property owned by her mother for such purpose." Whether the mother was ever approached with the proposition of mortgaging her property for plaintiff's benefit, either before or after the divorce decree, does not appear in the record.

On March 8, 1957, Joseph P. Sokal, an attorney who kept evening office hours, (after 4:00 P.M.,) at the savings and loan association where Sophie's will had been drawn, was told that a woman had been inquiring for him earlier. Whether this woman was Sophie Panto or the defendant does not clearly appear, but proof in the record does establish that defendant was at work from 8:00 A.M. to 4:30 P.M. on that day. In any event, Sophie and defendant came to Sokal's office sometime between 5:00 and 8:00 P.M. and the matter of Sophie's property was discussed. Sokal, an attorney of 24 years experience, testified that he spoke Polish "in a crippled way," but understood it better than he spoke it. According to Sokal, the mother said she was a widow, then explained defendant's marital difficulty and stated that inasmuch as defendant's religion would not permit her to remarry she, Sophie, wanted it arranged so defendant would have a home and so that defendant's husband would have no interest in the property at Sophie's death. The discussion next turned to the question of how plaintiff would be provided for and it was ultimately agreed that she should be paid $4000. Sokal said defendant was reluctant to obligate herself for that amount because she did not have the money or know when she would have the ability to pay it.

Sokal then outlined and advised the course to follow, which was agreed to by Sophie, and at her request drew up the following instruments, the first two of which were then executed: (1) A trust deed conveying the property at 5408 W. Schubert to defendant as trustee; (2) a trust agreement between Sophie and defendant whereby Sophie was to retain a life estate and the title was to pass to defendant at Sophie's death; (3) a promissory note of defendant to plaintiff in the amount of $4,000, payable in five years with no interest; (4) a "Declaration" wherein plaintiff acknowledged receipt of the promissory note and which also stated: "It is expressly understood that this note was executed and delivered by the maker at the request of our mother * * * as part of the distribution to her children of her property which consists of the real estate known as 5408 W. Schubert Ave."

Late in the month of May, 1957, plaintiff and defendant met in the kitchen of defendant's apartment. Defendant testified that Sophie Panto was also present, but plaintiff disputes this. According to defendant, she spread out on a table all of the documents drawn up by Attorney Sokal, together with the new Torrens certificate of title, and explained to plaintiff the arrangements their mother had made. Plaintiff's version was that she was shown only the note and "declaration," was given inconclusive answers as to the purpose of the papers, was not informed or aware that title had been transferred from the mother and that she did not learn of the conveyance until after her mother's death. In any event, it was agreed that defendant signed the $4000 promissory note and delivered it to plaintiff, and that the latter also signed the "declaration." On this same occasion, according to defendant, she agreed to pay plaintiff $2000 on the note, while their mother promised to give her $1000, to help plaintiff in her divorce proceeding.

On May 25, 1957, plaintiff was given a check for $1000 payable to Frank Boryca, drawn upon a joint account the mother and defendant had in a savings and loan association. This account was closed the same day. Plaintiff denied that this was a gift, and said it was a loan from her mother. Thereafter, defendant withdrew $2000 in savings she had in an employees' fund at the telephone company and this amount was paid to plaintiff on June 14, 1957, at the office of an attorney employed by defendant. At that time, plaintiff endorsed the payment on the back of the $4000 note and signed a receipt dictated by the attorney which said in part: "This payment and promissory note arose out of a declaration signed by Genevieve H. Parry and Wanda Boryca dated March 7, 1957, and related to a distribution of real estate previously owned by Mrs. Sophie Panto, mother" of the parties to the declaration. With these amounts paid to her, plus $5000 raised by a mortgage on the Boryca property, plaintiff was able to effectuate the property settlement with Frank Boryca that had been outlined in her divorce decree. During the pendency of the present proceeding plaintiff purportedly repaid the $1000 she had received from her mother by depositing it in her account as executrix of the mother's will. As to the $2000, it was stipulated that defendant was unwilling to accept its tender from plaintiff, with or without interest.

On August 23, 1957, defendant and her mother opened a joint savings account at the Alliance Savings and Loan Association, which was maintained until November 26, 1957, the date of Sophie Panto's death. Defendant conceded that she was a joint tenant for convenience. Shortly after the mother's funeral, which had been arranged for by both sisters, insurance proceeds and the proceeds from the savings account at Alliance were used to pay various expenses, to reimburse defendant for certain advances and the balance was divided equally, although plaintiff now claims her share was short by $72.37. The sisters became estranged by a quarrel which started over a detail of their mother's funeral, and in June, 1959, the plaintiff initiated this proceeding.

It is conceded that a fiduciary relationship existed between defendant and her mother, with the former being the dominant party, thus bringing into operation familiar and well-settled principles. Where such a relationship exists, the law presumes as fraudulent any transaction between the parties wherein the dominant party has profited, and the latter must rebut the presumption of fraud by clear and convincing proof that he has exercised good faith and has not betrayed the trust and confidence reposed in him. If such burden of proof is not discharged by the dominant party, the transaction will be set aside in equity. (Hofert v. Latorri, 22 Ill.2d 126; McFail v. Braden, 19 Ill.2d 108.) On the other hand, "if a conveyance was not procured through improper means attended with circumstances of oppression or overreaching, but was entered into by the grantor with full knowledge of its nature and effect and because of his or her deliberate, voluntary and intelligent desire, the existence of a fiduciary relation does not invalidate the transaction." (Clark v. Clark, 398 Ill. 592, 602; see also: Matanic ...

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