Appeal from the Circuit Court of Lake County, Nineteenth
Judicial Circuit; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This is an action in equity wherein the plaintiff sought specific performance of an alleged agreement evidenced by a letter. The defendants, Ralph D. Huszagh and Marjorie W. Huszagh, filed a motion to dismiss the complaint, which was sustained by the court. The plaintiff has appealed from the order dismissing the complaint.
The plaintiff is the widow of L. LeRoy Huszagh, herein called the decedent. The defendants, Ralph D. Huszagh and Milton J. Holloway, are the record owners of the real estate in question, and the parties to the disputed agreement. The defendant, Ralph D. Huszagh, herein called Huszagh, is the brother of the decedent and the husband of the defendant, Marjorie W. Huszagh; and the defendant, Estelle Holloway, is the wife of Milton J. Holloway, herein called Holloway.
The complaint was filed December 30, 1966. It pertinently alleged: That the decedent died January 9, 1946, leaving a last will and testament whereby the plaintiff was made his sole legatee and devisee; that the will was admitted to probate and the estate was settled and closed; that the plaintiff, by the estate proceedings, was vested with all the rights, privileges and choses in action created by an agreement dated October 26, 1936; and that the agreement, which was attached to the complaint as an exhibit, provided:
"Mr. Ralph D. Huszagh 6 North Michigan Ave., Chicago, Illinois
"Enclosed please find my check for twenty-six hundred dollars ($2600.00) toward purchase of property for fifty three hundred and fifty dollars ($5350.00) in Barrington, Illinois, known as:
"Lot 2 in County Clerk's Division in the West half of the South West quarter of Section 36 township 43 North, Range 9, East of the 3rd P.M., in Lake County, Illinois, and find that on August 18, 1936.
"It is agreed that you are to put up the other half less the one hundred fifty dollars ($150.00) already advanced by you to purchase the second Mortgage and we are to own this property jointly.
"It is further agreed that when the above described real estate is sold we are to give your brother Roy one third of the net profit derived from same.
Yours very truly, Signed by M.J. Holloway "MJH:LH O.K. Ralph D. Huszagh R D Huszagh
"(Written notes) Or Roy has privilege to pay up one third less $267.00 Real Estate commission. Milton and Ralph ...