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Chabot v. Kelly

JUNE 22, 1966.

EMMA CHABOT, PLAINTIFF-APPELLEE,

v.

TIMOTHY D. KELLY, ADMINISTRATOR WITH THE WILL ANNEXED OF THE ESTATE OF GEORGE H. SHANNON, DECEASED, AS LEGATEE AND DEVISEE UNDER THE LAST WILL AND TESTAMENT OF GEORGE H. SHANNON, DECEASED, DEFENDANT-APPELLANT.



Appeal from the Superior Court of Cook County; the Hon. ABRAHAM MAROVITZ, Judge, presiding. Affirmed.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 18, 1966.

Plaintiff's complaint sought specific performance of an alleged oral agreement entered into by her and George H. Shannon during his lifetime. She claimed that he had agreed to furnish her with board, room and clothing, and to make a will naming her as sole beneficiary, provided she advance money to him so that he could acquire a rooming house at 27 West Superior Street, Chicago, and provided also that she operate and manage the rooming house for him. She alleged performance on her part and failure on his. Defendant, who is the administrator and principal beneficiary under the will of Shannon, filed an answer denying the agreement alleged in the complaint and further alleging that plaintiff had an adequate remedy at law. The cause was referred to a special master in chancery who found and reported that plaintiff had proved her case by clear and convincing evidence. The court's decree overruled defendant's exceptions to the master's report, ratified and confirmed the master's findings of fact and conclusions of law, and directed specific performance of the contract. It vested the entire estate of Shannon in the plaintiff, directed defendant to execute all instruments necessary to effectuate that result, and ordered defendant to make a full accounting to plaintiff of his operation of the real estate and other property of the decedent. Defendant has appealed.

[1-3] Such a decree as this can only be justified if it constitutes the exercise of sound judicial discretion, based upon clear and conclusive proof of the alleged oral contract. Hickey v. Hickey, 374 Ill. 614, 621, 622, 30 N.E.2d 423; Harper v. Kennedy, 15 Ill.2d 46, 52, 153 N.E.2d 801. The fact that the decedent had executed a will inconsistent with plaintiff's contention is a circumstance to be considered, but it would not deprive plaintiff of her right to enforce the alleged contract, assuming, of course, that she were otherwise able to meet the requirement of establishing its existence by clear, explicit and convincing evidence and by showing performance on her part. Chambers v. Appel, 392 Ill. 294, 305, 64 N.E.2d 511. We must therefore examine the evidence.

TESTIMONY OF PLAINTIFF'S WITNESSES

Fred N. Chabot:

He is the son of the plaintiff and first met Shannon in November 1942 at 27 West Superior Street. He stayed there a week and observed that his mother was cleaning the place and collecting money from tenants. After returning to his home in Minnesota, he came back to Chicago in April 1944. On this visit Shannon told him that he (Shannon) had a chance to buy the place at 27 West Superior Street. Shannon also told him at that time that he need not worry about his mother because she was well taken care of; that "it's going to be left to her if anything happens to me so she won't be stuck with anything"; and that a will had been made to take care of his mother. Mrs. Chabot was fifty-one years of age at that time. Chabot left for the service after a two-day visit on this occasion. On his next visit, in March 1948, he observed that his mother was being physically abused by Shannon and that Shannon was drinking quite heavily. Shannon again told him, however, not to worry about his mother, "the will is made out to her. She gets the whole place." His mother and Shannon were engaged to be married all the time from 1945 until December 1947. During the period of time he was in the service and thereafter, Chabot sent his mother very little money — just on her birthdays and Christmas.

Walter A. Werner:

He is an attorney who first met Shannon in Miami in 1924. He saw him in Chicago in the latter part of 1942, at which time he was asked to draw up a will for him. Shannon said that Mrs. Chabot had been taking care of the rooming house and had advanced him $3,000, and that he wanted to protect her in case of his death. He said he wanted the will to state that she was to be his sole legatee and particularly with reference to the rooming house. The date of this will was January 22, 1944. (It is undisputed that this will was properly executed, but was superseded by a will of July 1, 1948 in which decedent left all his property to defendant Kelly.)

Sally Werner:

She was the wife of Walter A. Werner. She met Shannon at his home on Superior Street in 1944 when she and her husband were looking for an apartment. Shannon told her how well he was doing and that he had gotten a woman who had $3,000 to invest and that this woman, Mrs. Chabot, was doing all the work. He said he wanted to see that she was taken care of. On numerous occasions when she and her husband visited Shannon at the rooming house, she would observe Mrs. Chabot always cleaning and puttering around.

Mildred Beiker:

She moved into 27 West Superior Street in August 1946 and lived there four months. During this period she observed Mrs. Chabot going about her duties as housekeeper and manager of the rooming house. Mrs. Chabot ...


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