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In Re Estate of Drisch

AUGUST 26, 1969.

IN THE MATTER OF THE ESTATE OF JOSEPHINE A. DRISCH, DECEASED. RICHARD E. LANDAU, PETITIONER-APPELLANT,

v.

ESTATE OF JOSEPHINE A. DRISCH, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hon. LaVERNE A. DIXON, Judge, presiding. Judgment affirmed.

MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.

Richard E. Landau brings this appeal from an order of the Circuit Court of Lake County that denied his petition to restate heirship and for other relief. In said petition he alleged that he was the natural son of Josephine A. Drisch, deceased, or, in the alternative, that Josephine Drisch had entered into a contract to adopt him and, that in either event, he was her sole heir.

Josephine Drisch died on November 16, 1966, and on November 22 a petition was filed in Lake County by Florence P. Witt wherein she alleged that she was a sister of the decedent and her sole heir. Letters of Administration were issued to a Lake County attorney pursuant to the petition since Florence P. Witt was a resident of New York and an inventory subsequently filed that disclosed assets of approximately $27,000.

On July 6, 1967, Richard Landau filed his petition in the estate wherein he alleged that he was the son and only child of the decedent. After the matter proceeded to trial, the petition was amended to include, in the alternative, that the decedent had entered into a contract to adopt Landau. The hearing proceeded, without a jury, and on January 8, 1968, the trial court dismissed, for insufficient evidence, that portion of the petition wherein Landau alleged he was the son of the decedent and took the alternate proposal under advisement. On July 19, 1968, the trial court filed a lengthy memorandum to the effect that the petitioner failed to prove a contract and on July 30, 1968, entered judgment in favor of the respondent. Post-trial motions were denied and this appeal followed. The petitioner here asserts that the finding of the trial court that he was not the son of the decedent was against the manifest weight of the evidence and that the facts proved an enforceable contract to adopt.

It is stipulated by the parties that the real name of Josephine Drisch was Josephine Polk and it further appears that she was married to a Claude Devinger on August 8, 1921, in Chicago. In 1934, Josephine obtained a divorce from Claude Devinger in Cook County and apparently never remarried. Devinger is also deceased.

Henry Devinger, a brother of Claude, testified for the petitioner that Claude and Josephine lived in Peoria in 1922 but moved into his parents' home in Chicago in the summer of that year with Landau, then a baby of two weeks of age. Shortly after they arrived, Henry was present during a conversation when Josephine informed his mother that the baby had been adopted in Peoria. About one month later, Henry heard Josephine state that the child was her own and that she had taken the boy to an orphanage in Peoria because her mother "would have a fit" if she had learned of the birth. He later heard his brother state that he wanted to adopt the child so that he could be named Claude Devinger, Jr.

Harriet Esposito testified that she had been a friend of the decedent for many years and had first met her in Peoria in 1922. She first saw the child in Chicago in 1923 when Josephine told her ". . . he is my son." Later, Josephine introduced Harriet to a boarder at her mother's rooming house named Mr. Richard Landau, a "nice, refined gentleman" many years older than Josephine and told her that he was the father of her child. Harriet also testified that Claude Devinger had stated in her presence that he wished to adopt the boy.

Idabell Devinger testified that she was married to Henry in 1929 and that sometime in 1930 she had a conversation with Josephine who informed her that Landau was her son and that the father had been a boarder in her mother's rooming house. Idabell also heard both Josephine and Claude state that they wished to adopt the boy so that he could be named Claude Devinger, Jr.

Florence Witt was called as an adverse witness under section 60 of the Civil Practice Act and testified that she first saw Landau in 1922 when she was informed he was taken from an orphanage. She further testified, as had the others, that Josephine always referred to Landau as "son" and that he called her "mother." Numerous letters of the decedent were also introduced where she referred to Landau as her son.

Although no birth certificate apparently exists in this matter, it appears that Landau was born on June 23, 1922, in Ottawa, Illinois, and left at the Guardian Angel Orphanage in Peoria where he was baptized on June 25, 1922, as Robert Edmund Landau. Although Henry Devinger testified that the boy was taken to Chicago when he was about two weeks old, the orphanage records, including a letter signed by Josephine, indicate that the child had been given to the Devingers in December of 1922.

Landau lived with Josephine until his induction into the Army in June, 1940, although he had been returned to Guardian Angel Orphanage for about six weeks in 1936 and to Our Lady of Mercy Mission in 1940 because of disciplinary problems. After his discharge from the service in 1946, Landau returned to Chicago and lived with Josephine until his marriage. A life insurance policy left by Josephine designated "Richard Landau — son" as beneficiary.

Mildred Schriver testified for the respondent that she had been a neighbor and friend of the Polks and knew Josephine well. In 1933, Josephine told her that she would divorce Devinger except that she was fearful the boy would be returned to the orphanage. Violet Wechelberger testified that she was a cousin and close friend of Josephine and saw her often in 1922 and that she had not been pregnant. Subsequently, Josephine told her cousin that she was unable to adopt the boy because of "legal barriers."

The orphanage records and files maintained by the Catholic Home Finding Association were admitted into evidence in full. A letter dated November 22, 1923, from the Department of Public Welfare of the State of Illinois to the Association appears therein that states that the child had been given to the Devingers "on trial" and that they had moved from Peoria "in the night leaving a lot of unpaid bills and no address and took the baby with them." In February, 1924, the Department wrote to the Association that the child should be left with the Devingers temporarily but "that no adoption should be entered." In 1941, Josephine wrote to the orphanage and stated that "I do not have any of the necessary information to fill out the birth certificate blank and I was wondering if it would be at all possible to secure a baptismal certificate for Richard. . . . Perhaps it would be possible to contact his sponsors and secure some information."

With this, and much other evidence before it, the trial court concluded that it was not proven that Richard was the natural son of the decedent. We cannot say that this conclusion was against the manifest weight of the evidence. Henry Devinger was 15 years old when he heard the conversation in regard to Landau's parentage. Harriet Esposito was the only witness to connect the child with the boarder, Richard Landau, whom she had seen only once in her life, approximately 45 years before her testimony. Although these witnesses testified that Josephine had acknowledged in their presence that Landau was her natural son it was the function of the trial court to weigh that evidence with the other facts before it. The extensive records maintained by the Catholic Home Finding Association, including the reports of numerous interviews with Josephine, do not contain even a suggestion that she was, or claimed to be, Landau's natural mother although that fact would have been of extreme importance and eliminated her anxiety to keep the boy. At Josephine's request, the orphanage made several attempts to discover a birth certificate for Landau but met with no success. One notation indicates that the boy had been left at the orphanage by two unidentified policemen shortly after his birth. From the language employed by Josephine in her requests for a certificate, it appears that she possessed no more ...


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