Appeal from the Circuit Court of Cook County, County
Department, Chancery-Divorce Division; the Hon. WALKER BUTLER,
Judge, presiding. Order affirmed in part and reversed in part,
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 14, 1965.
This is an appeal from a decree entered in the Circuit Court of Cook County which approved a report by a special commissioner which report recommended a decree in favor of defendants.
The original complaint alleged that a deed in trust had been executed by the appellant's husband, Thomas Stathos, sixteen days prior to their marriage, which deed conveyed real estate improved with a single family residence to the grantor for life with remainders to his two minor children. Within thirteen months following the date of the conveyance, the appellant's husband died intestate. The original complaint further alleged that the conveyance in question was fraudulent and void insofar as appellant's marital rights were affected thereby, and she asserted, in this property, her marital rights of dower, homestead and widow's award.
The amended answer filed by the appellees alleged that the children were the lawful issue of an earlier marriage between the decedent and the mother of the children, by virtue of which the children claimed to be the lawful heirs of their father.
The reply of the appellant, the children's stepmother, denied the legitimacy of the children and denied the marriage of their parents.
It is the theory of the appellant that the evidence clearly shows "that the decedent husband executed the subject deed in trust on the eve and in contemplation of his marriage to the Plaintiff, that the conveyance was voluntary, that it was made without actual consideration, but for the purpose and with the intent of defrauding his intended spouse of the marital rights in the subject property she would otherwise have acquired, to wit: dower, homestead and widow's award." The appellant further contends that the appellees have the burden of establishing the legitimacy of the children since the appellant showed that the relationship between their mother and the appellant's husband began meretriciously. Thus it was the appellees' duty to show that the mother and father had married so as to legitimize the children.
The record shows that on January 15, 1960, Thomas Stathos conveyed to the LaSalle National Bank, as trustee, his home at 10322 South Campbell Avenue, Chicago, pursuant to a trust agreement whereby the settlor would keep the beneficial interest for life and the remainder to go to his minor children. The record also shows that on January 15, 1960, the same date as the signing of the trust agreement, Thomas Stathos left Chicago for Greece. On January 31, 1960, sixteen days after signing the trust agreement, Thomas Stathos married the appellant Eleni Stathos in Tripolis, Greece. The special commissioner also found that Thomas Stathos had entered into discussion with the appellant's father concerning a marriage between him and the appellant as early as October, 1959, and that there was correspondence between Thomas and Eleni concerning this. It was also shown that Eleni Stathos met Thomas Stathos at the airport when he arrived in Greece. The report states as part of its findings of fact that, "Pursuant to said correspondence, Eleni Stathos and Thomas Stathos planned to be married in Greece following the arrival of Thomas Stathos." An exhibit was admitted which Thomas Stathos had filed with the Immigration Service before he left which was required to enable him to bring Eleni to America as his wife. This was a certification from the Metropolitan Life Insurance Company that he had $9,500 of life insurance in force with that company. The letter was dated December 29, 1959, seventeen days before the trust agreement was signed. This letter, along with other forms, was presented to the United States Immigration authorities in Greece, and there is a reasonable conclusion that the letter was obtained with the intention that it would be presented there for the purpose of having the appellant admitted to this country on a nonquota basis. It is more than reasonably inferable that Thomas Stathos had planned to marry the appellant before he signed the trust agreement. No other explanation has been offered as to the taking out of certain papers but that they were for the purpose of his bringing back the appellant from Greece as his wife.
The appellees rely on three findings of the special commissioner's report. They are:
"9. Sometime in September, 1959, Thomas Stathos consulted his attorney and instructed him to execute a Deed in Trust, and named the La Salle National Bank, a defendant herein, as trustee, conveying title to real estate owned by said Thomas Stathos, now deceased, commonly known as 10322 S. Campbell Avenue, Chicago, Illinois, legally described in the Amended Complaint herein.
"10. After repeated urging by his attorney, Thomas Stathos executed the deed in trust immediately prior to his departure for Greece on January 15, 1960.
"11. Thomas Stathos did not intend to defraud the Plaintiff by conveying his residence to a trustee for the benefit of his children. He sought to make such conveyance immediately following his divorce from a woman not the mother of the children and was determined to provide an estate for the children."
The appellees urge that since it was shown that the deceased entered into discussion concerning setting up a trust for the children before he determined to marry the appellant, they had shown that he did not execute the trust with an intent to defraud her of her marital rights.
"It is the settled law in this State that a voluntary conveyance by either party to a marriage contract of his or her real property, without the knowledge of the other and on the eve of the marriage, is a fraud upon the marital rights of the other party, and such conveyance may be set aside as fraudulent and void as against the party whose marital rights are precluded thereby. Bozarth v. Bozarth, 399 Ill. 259; Dunbar v. Dunbar, 254 ...