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In Re Estate of Trecker

MARCH 6, 1969.

IN RE ESTATE OF AUGUST F. TRECKER, DECEASED. AMALIA B. TRECKER, PETITIONER-APPELLANT,

v.

JOHN N. TRECKER, EXECUTOR, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. JOHN E. PAVLIK, Judge, presiding. Affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

August F. Trecker died in 1965. His will was admitted to probate but the widow, Amalia B. Trecker, renounced it and demanded her share in the estate as surviving spouse. She also claimed a right to a widow's award and requested the court to fix the proper amount. The executor of the will opposed her claims contending that they had been waived in a post-nuptial agreement between the decedent and his wife. The trial court resolved the issue in favor of the executor. It denied the claim for the widow's award, declared the renunciation of the will ineffective and decreed that the widow had no claim of any kind against her husband's estate.

Amalia and August Trecker were married in 1905. A daughter was born in 1907. Amalia and August lived together until the summer of 1923 when Amalia took the daughter with her and established her own household. The couple lived separate and apart from 1923 until August's death in 1965.

About the time of the separation, the Treckers executed a written agreement. The document bore no date other than July 30. However, a sale of the couple's residence which was contemplated by the agreement occurred August 1, 1923, so that the probable date of execution of the agreement was July 30, 1923.

The agreement provided: (1) the proceeds from the sale of all property owned as joint tenants would be divided equally by the parties; (2) all household furniture and personal property, with the exception of household tools and the husband's personal clothing, would upon sale of their residence be given to the wife; (3) each party would waive any right to dower or homestead or as spouse including any rights as heir, widow or widower; and (4) in the event of a proceeding for divorce or separate maintenance, the wife would not claim solicitor's fees, alimony or support money.

In this appeal Amalia contends that her rights as widow in her husband's estate were not barred by the agreement because it either lacked consideration or failed in consideration and because it violated the public policy of the State of Illinois.

The evidence disclosed that, in accordance with the agreement, Amalia received all of the furniture and furnishings of the couple's residence except a bed, a dresser and a trunk containing her husband's clothes. The executor asserted that she received other considerations which arose from her ownership of property located on Hood Avenue and from their joint ownership of property located on Lunt Avenue, both in Chicago. The executor claimed that she received a waiver of her husband's right of dower in the Hood Avenue property, which was acquired by her alone on February 28, 1923. August joined her in mortgaging the property and joined her on July 30, 1923, in conveying it to another. The executor also contended that she received one-half the proceeds from the sale of their Lunt Avenue residence. This property was deeded to "August F. Trecker and Amalia Trecker" on January 1, 1913. Ten years later, on August 1, 1923, "August F. Trecker and Amalia Trecker, as joint tenants" conveyed the home to new owners. A contract of sale dated July 14, 1923, signed by Amalia but not by August, recited that the net proceeds of the sale were "to be equally divided between August F. Trecker and Amalia Trecker, and payment to each to be made in cash to them individually." In 1967, 44 years after the sale, Amalia, then 83 years old and in ill health, said in a deposition that she must have received her one-half share. Upon further questioning, however, she said, "I don't know; I never saw it . . . I don't remember getting it." Counsel persisted in asking her whether she received it and she then replied, "No. Not that I know of."

In corroboration of his contention that Amalia received one-half of the proceeds of the sale, the executor presented an undated and unsigned document purporting to be a closing statement of the sale. It was received in evidence over the objection of the petitioner that it was hearsay. The document bore the name of the attorney who represented August at the time of the sale and was entitled, "Memorandum For Closing Real Estate Sale." It listed the credits to the seller and the purchaser among them the purchase price, mortgage, interest and taxes; and it indicated that the net balance was divided two ways. The purchase price in the document was identical with that in the contract for the sale of the property, dated July 14, 1923, signed by Amalia and the purchasers. The purchasers named in this contract were the same parties to whom the property was conveyed by the Treckers on August 1, 1923. The executor argues that it was not error to admit the document into evidence because it shed light on a transaction that was completed so many years prior to the hearing. In admitting the document the trial court stated: "It supports the contract [the contract of sale] or the contract supports it. It is part of the contract arrangement. If the contract is admissible, in my judgment this would be admissible."

Amalia claimed that there was no property held in joint tenancy upon which the agreement could operate; that even if there was, she did not receive one-half of the proceeds from the sale of the Lunt Avenue property or, in the alternative, that she received only what she was entitled to receive apart from the agreement; that the furniture and personal property obtained by her had only slight value and that she had contributed to its acquisition in the first place; and that the other rights waived were future property rights subject to an executory waiver.

[1-4] The evidence presented questions of fact as to whether there was consideration and whether the consideration was performed. The resolution of these questions was for the trier of fact and his findings will not be disturbed if there was substantial evidence to support them. Chicago Motor Club v. Travelers Indemnity Co., 57 Ill. App.2d 17, 206 N.E.2d 518 (1965). We have examined the testimony and the exhibits and are satisfied that the court's findings of consideration and performance thereof are sufficiently supported; and this is so without regard to the probative value of the document entitled: "Memorandum For Closing Real Estate Sale" which should not have been admitted in evidence. In addition to the proof of consideration — the release by August of his rights of homestead, dower and inheritance was consideration for the similar release executed by Amalia. Laleman v. Crombez, 6 Ill.2d 194, 127 N.E.2d 489 (1955).

Amalia next contends that the agreement was invalid because it was either an agreement to separate, or one that contemplated separation at a future time; that the separation was not necessary for the health or happiness of herself or husband, and that they continued to live together as husband and wife for two months after the agreement was executed.

[5-8] An agreement to separate at a future date while continuing to live as husband and wife is invalid but one made in contemplation of immediate separation is not. Lyons v. Schanbacher, 316 Ill. 569, 147 N.E. 440 (1925). Whether Amalia and August continued to live together after executing the agreement was a question of fact but the evidence was sufficient to support a finding that they did not. Likewise, a review of the record supports a finding that there was a valid reason for their separation. When a husband and wife can no longer live together congenially with mutual confidence and implicit faith in each other, or when the separation is necessary for the health and happiness of one or the other, an agreement to adjust their property rights and to separate may be lawfully made. Stoltze v. Stoltze, 393 Ill. 433, 66 N.E.2d 424 (1946). The agreement in this case implies a valid reason for the separation of the parties and nothing in it negates the implication (as in Lyons v. Schanbacher, supra).

Amalia also contends that the agreement was invalid because it released her husband from his obligation to support her. Paragraph three of the agreement waived present and future dower and homestead plus "any and all rights which [either party] may have as spouse . . ., including any rights . . . as an heir at law, widow or widower. . . ." Among the rights of a spouse is the right to support. Paragraph four also released the right to support. It waived a claim for support "in the event of the institution of a proceeding for divorce or separate maintenance. . . ."

[10-12] A husband and wife may make a valid separation agreement by which one or each of them releases all his rights in the other's property, including inchoate rights of inheritance and dower. Purcell v. Weasel, 12 Ill.2d 356, 146 N.E.2d 580 (1957); Kohler v. Kohler, 316 Ill. 33, 146 N.E. 476 (1925). An agreement can also be made to waive a widow's award. Yockey v. Marion, 269 Ill. 342, 110 N.E. 34 (1915); Pavlicek v. Roessler, 222 Ill. 83, 78 NE 11 (1906); In re Estate of Cullen, 66 Ill. App.2d 217, 213 N.E.2d 8 (1965). However, a husband cannot by contract relieve himself of the ...


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