Appeal from the Circuit Court of Cook County, County
Department, Chancery Division; the Hon. JOHN J. LUPE, Judge,
presiding. Decree affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Grace Michna, widow of Edward N. Michna, filed a complaint against Mildred May and Martha Durrie, the deceased husband's sisters, to set aside a land trust alleged to be in fraud of her marital rights. The defendants filed a counterclaim for an accounting of the rents by plaintiff. The matter was referred to a Master in Chancery who found in favor of the plaintiff on all issues. Objections and exceptions were filed to the Master's Report and overruled, and a decree was entered setting aside the conveyance as being null and void, declaring the plaintiff to be the owner of the property and denying the counterclaim. A direct appeal was taken to the Supreme Court in which the defendants asserted that their constitutional rights to due process of law and to the equal protection of the law had been violated and the appeal was transferred to this court.
Our first consideration is the procedural course of the hearing conducted by the Master. The defendants' initial contention is that the Master was not impartial and his conduct of the proceedings was manifestly unfair.
The record shows that on June 8, 1962, the proceedings commenced before the Master. On June 11, 1962, a second hearing took place, proofs were closed and the Master prepared his Report in favor of the plaintiff. The Report was not filed as new counsel for the defendants requested leave to reopen proofs on February 4, 1963, which was granted by Judge Lupe. Hearings were resumed before the Master on January 29, 1964, on February 3rd and 4th, March 4th, 5th, 6th, 19th, 20th, and on April 8th.
At the April 20th, 1964, hearing the Master told the defendants that on May 1, 1964, he was moving into a new suite in the same building and that plaintiff's counsel, Mr. Karton, was also a tenant in the same suite. He informed the parties that his sublease was with a firm of attorneys who also subleased space to Karton and that other than being in the same suite of offices he and Karton did not share any services and did not have any mutual interests. When the hearings resumed on May 8th, defendants' counsel stated that in view of the fact that the Master shared space in the same suite with plaintiff's counsel his clients do not believe they would receive a fair trial and objected to the Master continuing to preside. The hearings were discontinued, the respective counsel and the Master appeared before Judge Lupe who heard and overruled the objections and ordered the Master to continue. Evidence was heard by the Master on June 9th and June 22nd, and proofs were closed. The Master found the issues in favor of plaintiff. Objections to the Master's Report stood as exceptions and were overruled by the Chancellor who approved the Master's Report and entered a decree accordingly.
The defendants contend that the Master was not impartial and that his conduct of the hearings was manifestly unfair during the entire proceedings and his findings were biased and prejudiced, and that when he moved into the same suite of offices occupied by plaintiff's counsel he was disqualified from proceeding further as a Master. The record shows that the Master rendered his first Report in favor of the plaintiff in late 1962. After the proofs were reopened at the defendants' request extensive hearings were again held for many months before the Master moved to the new office space.
The Chancellor heard the objections to the Master and ordered him to proceed with the hearings, commenting that "merely because a Master moves into a suite where one of the lawyers rents space will not change him." The Chancellor at the same time also heard exceptions to various rulings made by the Master which were certified to him and sustained the Master. Whether the Master should have been removed was a matter within the sound discretion of the Chancellor. We cannot say on the basis of the record that he abused his discretion. Nor does the record show any bias or prejudice by the Master in his conduct of the hearings.
The major contention of the defendants is that the deceased had an absolute right to convey his real estate on the eve of his marriage to a trustee for life, with remainder over to his sisters, as long as he did not deprive his intended wife of any of her marital rights or breach a valid and enforceable contract.
The uncontradicted evidence establishes that the plaintiff and Edward N. Michna were married on January 23, 1956, and resided together on the premises in question until he died. A land trust agreement, number 1413, was entered into on January 10, 1956, by Edward Michna with the Western National Bank, whereby the trustee held title to the involved real estate for the benefit of Edward Michna, for life, with the remainder over to his sisters, Mildred May and Martha Durrie, equally. Edward N. Michna died on May 6, 1961, leaving a will dated May 6, 1956, naming the plaintiff as his sole beneficiary and executor.
Grace Michna, the plaintiff, testified that she and Edward Michna went steady for about one year before their marriage. She also testified over objections that when he proposed marriage and gave her a ring on December 19, 1955, he told her that he had a business and owned property and he would make her the sole beneficiary of everything he owned under his will; that she relied on his promises, accepted his proposal and ring and then they went to the Empire Room to celebrate the occasion; and that on January 23, 1956, they were married. She also stated that the involved premises consisted of two offices in front, one of which was used by the deceased, the deceased's machine shop in the back and the apartment above in which they resided together until her husband passed away. She testified further that she first learned of the trust shortly after her husband's funeral from Frank Kryda, his attorney.
Mrs. Florence Mandarino, plaintiff's sister, testified that shortly after her sister's engagement in December, she and her sister visited Edward Michna in his apartment in the involved premises. She said he showed her the machine shop and told her what he did for a living. The witness was permitted over objection to testify that the deceased told her he was well fixed and would make a will giving all his property, including the real estate in question, to her sister.
Joseph Boucek and Frank J. Kryda also testified on behalf of the plaintiff. Mr. Boucek, the bank's trust officer, testified that neither the plaintiff nor the defendants were present when the trust agreement was executed. Mr. Kryda, the attorney for the deceased, testified that he prepared the will and the trust agreement. Over objection, he testified that the deceased did not discuss with him whether or not the plaintiff knew of the trust. When later called as a witness for the defendants he said, when he discussed the will with the deceased, he thought they discussed the trust, but didn't remember specifically what was said. He thought that when they discussed the trust the deceased told him he was contemplating marriage with the plaintiff.
The defendant, Mildred May, testified that when her family, her sister's family and plaintiff were present in her brother's apartment at Thanksgiving dinner and at Christmas in 1955, nothing was said about an engagement nor did plaintiff wear an engagement ring. She said she first knew they were getting married when her brother told her to come over and celebrate on the day of the event.
Martha Durrie, the other defendant, testified that she first met the plaintiff in November of 1954. In October, 1955, her brother told her he was planning to keep the real estate for himself and he wanted complete control of it. She also said that at Thanksgiving and Christmas of 1955 they were all together and nothing was said about an engagement. She testified further that on January 10th or 11th of 1956, she and the plaintiff were in her brother's apartment and he told them that he had entered into a trust agreement at the bank that day, putting the property in trust and named her and her sister as beneficiaries after his death; that "Grace said it didn't make any difference to her whatever he did was alright with her. There ...