Appeal from the Circuit Court of Kane County; the Hon. EARL R.
SHOPEN, Judge, presiding. Judgment reversed.
This is an appeal by the executors of the Estate of Mabel C. Shed, deceased, from an order entered in the Circuit Court of Kane County allowing the claim of Harriet Winters, plaintiff, for one-half of the net distributable estate of Mabel C. Shed, deceased, based upon an alleged oral agreement to make a will. The uncontroverted facts appear as follows:
The decedent was the second and childless wife of Charles E. Shed who died intestate June 21, 1938, leaving as his only heirs his widow, the decedent herein, and DeWitt Shed, a son, issue of his first marriage. DeWitt Shed died testate in 1951 leaving him surviving his widow, Viola, and a daughter, Harriet Shed, now known as Harriet Winters, the plaintiff in this action. Maude Short and Mildred Short were appointed executors under the Will of Mabel C. Shed, deceased. They are the sisters of Mabel C. Shed who had moved into the marital home of the senior Sheds shortly after the death of Charles E. Shed.
In August of 1935, Charles E. Shed, together with his wife, Mabel C. Shed, executed deeds to real estate dividing the same between Mabel C. Shed, the decedent herein, and his son, DeWitt Shed. These deeds were not recorded until July 11, 1938, after the death of Charles. On or before July 8, 1938, Mabel C. Shed gave the sum of $4050.95 to DeWitt Shed representing one-half of a joint tenancy account which stood in the names of herself and Charles E. Shed. On July 15, 1938, DeWitt Shed executed an assignment of one-sixth of the estate of his father to Mabel C. Shed reciting: "For value received" and she having, heretofore, in writing, waived a widow's award in said estate. Thereafter, DeWitt Shed and his family moved out of the area and he and Mabel C. Shed did not see each other again, nor did they communicate before his death in 1951. DeWitt Shed's will made no reference to any agreement with Mabel C. Shed to make a will. On or about April 1, 1940, DeWitt executed a receipt to his father's administrator, reading in part as follows:
". . . all in full of amount due me as only heir at law of said decedent, and also under the terms of my certain assignment, duly recorded in the Probate Court of LaSalle County, Illinois."
The controverted facts are these: Viola Shed, the widow of DeWitt, testified that within three or four days after the death of Charles E. Shed, she and her husband visited his stepmother, at which time the following conversation allegedly took place between DeWitt and his stepmother:
"A. DeWitt said: `I am going to give you half (1/2) of the estate, with provision that at the time of her death, that it comes back to me, or my daughter.' And if it happened his death or hers was first, it would come back to the Charles Shed estate, and if not, if Harriet were living, it would come back to both of them.
"Q. What did Mrs. Shed say at that time?
"A. She was agreeable, but that was a fair deal. (Objection by Mr. Otis.)
"Q. As near as you remember, Mrs. Shed, DeWitt Shed said he would give her half of his estate. What did she say, if you remember? What words did she use?
"A. She said that was a very fair arrangement."
Within the next week DeWitt reportedly said to Mabel, I am going to give you half of the estate, and she was to have replied, That is a fair and square arrangement.
Viola Shed admitted during cross-examination that when her deposition was being taken she responded in reply to a question regarding Mabel's alleged oral contract to make a will, as follows:
"That was understood why he left the amount that he did to her, because it was his father's wish it was to be divided that way. They were trying to do what his ...