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In Re Estate of Manikowski

APRIL 14, 1967.

IN THE MATTER OF THE ESTATE OF STELLA MANIKOWSKI, DECEASED. JERRY PALUTA, ET AL., APPELLEES,

v.

EMMETT J. MCCARTHY, SPECIAL ADMINISTRATOR, ETC., APPELLANT.



Appeal from the Circuit Court of Cook County, Probate Division; the Hon. JOHN E. PAVLIK, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order directing that the residual estate of the decedent, Stella Manikowski, be distributed to the claimants-appellees, Jerry and Marlene Paluta. The order was based upon a finding by the trial judge that the decedent entered into an oral contract with the aforesaid claimants in which she agreed to devise and bequeath the residual estate to them in return for the performance of specified services.

Stella Manikowski died testate on October 10, 1964. Her will, which named Jerry Paluta (one of the claimants) as executor, contained certain bequests of money (none of which were in behalf of claimants) and a direction that all of her personal and real property be sold. In accordance therewith all of the property was sold and the bequests, funeral expenses and creditors' claims were satisfied out of the proceeds. Remaining in the residual estate was approximately $15,000 (most of which represents the proceeds from the sale of decedent's house). However, the decedent made no disposition of the residual estate in her will. The appellees claimed the residuary on the basis of an oral contract. A Special Administrator (appellant) was appointed to defend the estate against this claim. *fn1

In their claim Jerry and Marlene Paluta allege that the oral contract was consummated in the spring of 1961, immediately prior to decedent's visit to Poland to visit relatives. They further allege as the basis for the contract that:

[A]t the time of her leaving for Poland, she asked the claimants to take charge of her house . . . and explained to them that, by reason of her age she would be unable to take care of the home herself and orally requested claimants to undertake the maintenance of her home together with the lawn, garden, fences, sidewalk, etc., and that in consideration therefor, decedent orally promised to make a Will leaving specific bequests and leaving the residual estate to claimants.

After the death of her husband, John, in 1958, Stella Manikowski lived alone in a two-flat building at 8608 South Essex Avenue in Chicago, Illinois. She resided there until her death at age 75. In 1949 John and Stella Manikowski were instrumental in bringing Marlene Paluta, a claimant herein who was also John Manikowski's grandniece, to America from Poland and she resided in their house until her marriage to Jerry Paluta in 1954. According to the uncontradicted testimony the Palutas lived two or three blocks from the Manikowski home, visited there socially before the death of decedent's husband, and thereafter visited as often as twice weekly. Jerry Paluta cared for the landscaping and gardening, and Marlene shopped and drove the decedent to the doctor and to church.

Since claimants were barred from testifying by the provisions of section 2 of the Evidence Act (Ill Rev Stats 1965, c 51, § 2), and Stella Manikowski was dead, they adduced the testimony of various friends and neighbors of the decedent in order to establish the existence of the alleged oral contract. All of the testimony related to the two-flat building on Essex Avenue. Olga Kuk testified that decedent said to her:

Mr. and Mrs. Paluta, they help me, and when I go I leave the home for them.

Walter Jakacic testified as to his conversations with the decedent relative to purchasing the building:

I mentioned to her that the home was a burden. I mentioned to her that I would like to purchase the home. . . . She said as long as the Palutas were giving her a hand and taking her to the doctor, she would make provisions in a will [that] the home would be theirs. Again I approached her on the same subject. . . . She said the home would be provided to the Palutas for being so good to her.

She said, as far as having them [the Palutas] to depend on it, she made a will out and the home would go to the Palutas for all they did for her.

In both conversations, Mrs. Manikowski mentioned a will. She spoke of the provisions of the will. She said that the home was to go to Mr. and Mrs. Paluta.

Jane Trzcinski also testified as to her conversations with the decedent:

She said she had a will. She was real modern. She kept saying how modern she was. She had her house taken care of. She was going to leave it to the Palutas, not that they need the house, they could use the money. ...


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