Appeal from the County Court of McHenry County; the Hon.
LAURIE W. LARSON, JR., Acting County Judge, presiding. Reversed
and remanded with directions.
Rehearing denied July 9, 1963.
Daniel Waszkiewicz died intestate on January 24, 1962. On February 1, 1962, John A. Siwek, filed his verified petition in the County Court of McHenry County in which he alleged that he was the son and sole heir of Daniel Waszkiewicz, deceased and prayed for the issuance, to him, of letters of administration. On the same day February 1, 1962, Katherine Waszkiewicz filed her petition in the same court, to be appointed administrator in this estate, her petition averring that she was widow of Daniel Waszkiewicz and that his only heirs were petitioner, Katherine Waszkiewicz, and Frances Kowell and Stella Barton, his nieces. February 15, 1962 Frances Kowell filed her petition in the same court for letters of administration in this estate, in which she alleged that the heirs of the decedent were herself, Stella Barton and Afansy Waszkiewicz, all allegedly first cousins of the deceased.
Following a hearing in the County Court an order was entered finding that John A. Siwek was not the son or heir of decedent, Daniel Waszkiewicz, and was not entitled, under the laws of Illinois, to inherit any part of decedent's estate. The order dismissed the petition of John A. Siwek at his costs and he appeals.
At the hearing, Caroline Siwek testified that she was born in Cicero, Illinois on March 8, 1908; that her maiden name was Grouszek and in 1924 she was living in Bellwood, Illinois, at the home of her mother and stepfather, Albert Sowa; that in addition to her mother and stepfather the family consisted of two brothers, one sister and herself; that at that time her stepfather, Albert Sowa, was employed by the Northwestern Railroad Company as was also decedent, Daniel Waszkiewicz; that decedent had boarded with the Sowa family and occupied a room in the attic of the Sowa home for more than four years, during which time, she, Caroline Siwek, cleaned his room every Friday and Saturday.
This witness, Caroline Siwek, further testified that she did not recall the month when she first had sexual intercourse with decedent, but it was in the home of her parents in June or July, 1924, and thereafter had intercourse with him "quite a few times," and, as a result thereof, became pregnant; that she told her parents of her condition and when she did so her stepfather "got after Daniel Waszkiewicz and he moved out." She further testified that her son, John A. Siwek, was born June 11, 1925 at the home of Joseph Wright, in Maywood, where she was employed as a housemaid; that she remained in the Wright home for a week after her baby was born and then Mr. Wright brought her to the home of her mother and stepfather; that decedent came to see her there and she said to him at that time: "Here I'm a mother. Look what you did to me"; that decedent replied: "You don't have to worry, I will marry you"; that on November 14, 1925, she was married to decedent in the Catholic Church in Hillside and on the following day appellant was baptized in that church by its pastor, Father Griffin; that upon this occasion, referring to appellant, decedent said to Father Griffin: "This is my son and I want him baptized"; that Father Griffin didn't reply but said a prayer and baptized the baby. "I don't remember just what he did or what he said," continued the witness, "as I don't understand Latin. He asked me the father's name and my name and what the baby is to be named. I gave that information to the priest ahead of time."
Mrs. Siwek further testified that after her marriage to decedent and after the baptism of appellant, she and decedent lived together at the home of her mother for a little over a year, during which time decedent supported her and appellant, supplied clothing and medical care for them, and together they visited relatives and friends, to whom, in referring to witness and appellant, decedent said, "This is my wife and this is my baby."
Mrs. Siwek further testified that she, decedent, and appellant left the home of her mother about one year after their marriage and moved to Milwaukee, where they lived together as a family. They remained in Milwaukee a short time and returned to Chicago and lived at various places in Chicago until they separated in December, 1932; that from 1929 until 1940 she operated a Beauty Shop in Chicago and was operating her Beauty Shop when she procured a divorce from decedent on April 26, 1933 and thereafter married her present husband, Thomas Siwek, on November 5, 1933.
Joseph Wright was called as a witness on behalf of appellees and he testified that he was Vice-President and General Counsel of the Illinois Central Railroad, and was admitted to the bar in Illinois in 1919; that on June 11, 1925 he lived on Oak Street in Maywood and occupied the position of Judge or Magistrate in Maywood at that time; that he could not say he knew Caroline Grouszek and no one of that name ever lived at his home, and no child was born in his home on June 11, 1925. This witness further testified that at this time, June 11, 1925, his mother lived on Fifth Avenue in Maywood, which was just around the corner from where he lived; that his mother had at that time, in her employ a girl by the name of Caroline whose primary duties were to take care of a paralyzed sister; that Caroline was a domestic, and while working for his mother gave birth to a child at his mother's home and that the birth of this child was the occasion of considerable discussion in the family circle as none of the family knew Caroline was pregnant.
Mrs. Bartosiewicz testified that she knew Caroline Grouszek and had known Daniel Waszkiewicz for five or six years before he and Caroline Grouszek were married; that she was invited to, and attended their marriage on Saturday, November 14, 1925 and acted as Godmother and sponsor to appellant when he was baptized at St. Simons Catholic Church in Bellwood on November 15, 1925; that she so acted as sponsor and Godmother because she was requested so to do by decedent; that at the baptism, the pastor of the church asked decedent whether he was the father of the child who was being baptized and decedent said he was and that Caroline, at that time, said she was the mother of the child; that following the baptismal ceremony, witness attended a reception at the home of Josephine Sowa, who was Caroline's mother; that decedent was present and introduced Caroline to the guests as his wife, and referred to appellant as his son. This witness further testified that thereafter decedent and Caroline lived together as man and wife; that appellant lived with them and when he went to school, he was registered in school as Johnny Waszkiewicz; that they continued to live together as a family until appellant was five or six years old, at which time they separated and that until the time of their separation this witness saw them at least once a month.
Nettie Smith testified that she was a cousin of the mother of appellant; that she knew decedent when he was a "boarder" in the Sowa Home, and that she was at the Sowa home when appellant was five days old; that at this time Caroline was 16 years of age and decedent about 30; that upon this occasion decedent entered the bedroom where Caroline was in bed with her baby; that decedent there kissed the mother, Caroline, and the baby, and stated that Caroline was going to be his wife; that the witness then suggested to decedent that he "was too old for her, (Caroline)," whereupon decedent said, "No, this is my son and I'm going to take care of him, and I'm going to marry her."
Helen Zelasko testified that in 1931 or 1932 she was about thirteen years of age and that she lived at the home of decedent and her cousin Caroline Waszkiewicz "on a twenty-four hour basis" during the entire summer of 1932; that witness ate her meals with decedent, his wife, Caroline, and appellant; that they went on picnics and to Mass. together; that decedent referred to appellant as "his son Johnny" and appellant called decedent "Daddy."
Charlotte Kukla testified that she was not related to decedent but that her daughter, Arlene, is the wife of appellant; that on June 23, 1951, her daughter, Arlene, and appellant were married and on the evening of that day she attended a wedding reception which took place at Ann's restaurant on Cermak Road; that there were more than one hundred guests present; that decedent was there and sat at the table with appellant and his bride and with the witness and her husband; that decedent was introduced to the witness and her husband by appellant, and during the conversation which followed he said that he was glad to meet us and that he thought "my daughter was a wonderful woman."
Appellant testified that decedent and his mother were married at St. Simons Catholic Church in Hillsdale, Illinois on November 14, 1925; that the earliest recollection he had of decedent was when the witness was about five or six years of age, at which time decedent and the mother of the witness and another lady lived at a home on Girard Street in Chicago; that while living there his mother left decedent and moved to a home on Twenty-first and Fairfield Streets; that he went with his mother but was too young to know what happened to decedent; that he enrolled in school in September 1932 under the name of John Waszkiewicz and his mother gave her name on the school application as Caroline Waszkiewicz; that while he lived with his mother and decedent on Girard Street, he saw Daniel Waszkiewicz every day but when he and his mother moved from there to the Fairfield address, he did not see him until the year 1940; that when he did see decedent in 1940, decedent was in the County Hospital for a hernia operation; that he next saw decedent ...