APPEAL from the Circuit Court of Cook County; the Hon. JAMES
CORCORAN, Judge, presiding.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 15, 1970.
Margaret Rupinski made a will and deed in favor of the defendants, Walter and Lottie Franckowiak. Two separate suits were filed against defendants, seeking to set aside the will and deed, and the suits were consolidated for trial. At trial the jury returned a verdict for the defendants and the court entered judgment accordingly.
Mary Sadowski, plaintiff, is Margaret Rupinski's half-sister; the Franckowiaks, who lived a block from the deceased, are not related to her. Margaret's will, dated February 22, 1963, left her property to the defendants, and the deed which she executed on March 25, 1963, transferred title of her apartment building to them. The deceased left $1.00 to Mary Sadowski, her half-sister, who filed a lawsuit to set aside the will. Mary Sadowski alleged that the will had been procured through undue influence and, alternatively, that Margaret Rupinski had lacked the necessary mental capacity to execute valid documents.
Lottie Sterna, Margaret's niece and court-appointed conservator, also filed a lawsuit [before Margaret's death] by which she sought to set aside the deed executed in favor of the Franckowiaks. She alleged that the deed lacked consideration and that the grantor was incompetent at the time it was executed. The allegation was abandoned as no evidence was introduced to support it.
Lottie Sterna did not join in the notice of appeal to this court; therefore, the only plaintiff before us is Mary Sadowski.
Barney Klecka, a tenant of Margaret Rupinski's, testified that he lived on the second floor and that Margaret, a widow, lived alone on the first floor. He stated that as of August 1962, Margaret's health was "fairly good"; that she did her own housekeeping, and generally cared for herself. The witness testified that Margaret drank a lot; that she "would mix her whiskey with aspirins. It was common for her to use a bottle of one hundred aspirins per week." He stated that she complained of pain in her legs and occasionally fell, although he was not sure whether her unsteadiness was due to her drinking or to her arthritic condition. He said that she became argumentative and "more or less hysterical."
Klecka further testified that he made arrangements to take Margaret to Loretto Hospital, but Lottie Franckowiak said she would take her, and the next time he saw Margaret was in April of 1963 when she came to his house dressed in her nightgown and begged the Kleckas to let her stay with them. He said he was unable to accommodate her. She had been staying with the defendants, and the witness said he had tried to see her there several times, but had always been denied entrance. He added that in January of 1963 Lottie Franckowiak and her daughter had removed everything of Margaret's except the stove from her apartment. He said that on March 25, 1963, he was served with a landlord's five-day notice signed by Walter Franckowiak.
Margaret Rupinski died on April 4, 1964. In November of 1963 she had been declared incompetent and Lottie Sterna was appointed as her conservator. In testifying at the competency hearing Klecka stated that in his opinion Margaret Rupinski was not of sound mind in late December of 1962, nor in April 1963.
Defendant Lottie Franckowiak was called by plaintiff as an adverse witness under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1965, ch. 110, par. 60]. She testified that she took Margaret Rupinski to Loretto Hospital in December 1962, after the pastor had asked her to look in on Margaret; that when Margaret was discharged on January 9, 1963, the defendant took her home with her where she remained until January 16, 1963, when she was taken to Holy Cross Hospital. After being discharged from Holy Cross on February 10, 1963, she was again taken to the defendants' home where she remained until November 9, 1963, when she left with Lottie Sterna, her conservator. The defendant testified that while Margaret was in the hospital she did not cry or tremble, although she did complain of pain; that she knew people around her and was easily understood. She paid her own hospital bills with pension checks, and after her release from the hospital she asked the defendant to drive her to a savings and loan company to have checks made out for the doctor bills, and to go to her safe deposit box.
The defendant further testified that Barney Klecka never came to their home, except one time when she brought him there to pay his rent. According to the defendant, Margaret disliked her sister, Mary Sadowski, because she had tried to have Margaret sign over her house to her. Since her refusal, none of her relatives had come to see her during the 12 years before she went to live with the defendants. When Margaret decided to prepare her will she called her attorney to come to the defendants' home.
Defendant Walter Franckowiak was also called as an adverse witness, and stated that in May and June of 1963 he advertised for sale the property they had acquired from Margaret Rupinski, and that he signed a sales contract for about $15,000. He stated that in June of 1963, about four months after Margaret had come to live with them, Mary Sadowski came over with Lottie Sterna and Marion Sadowski. They introduced themselves as relatives of Margaret's, and the defendants left them alone with her to visit. He stated that "there was a commotion and Mrs. Sterna and Mrs. Sadowski were dragging Mrs. Rupinski out of the house * * *" When he asked Margaret if she wanted to leave she said she did not, but wanted to avoid trouble. He then ordered the relatives to leave, and Mrs. Sadowski "was standing in the middle of the sidewalk and hollering in Polish that we had robbed the old lady, that we had taken her property and her money and just kept ranting and raving."
Dr. Thaddeus Klabacha was called on behalf of plaintiff and his testimony was quite damaging to her case. He stated he had known Margaret Rupinski since 1948, had seen her many times at her home, and had treated her in Holy Cross Hospital in 1963. She had complained of abdominal pains and had high blood pressure. When asked if the patient had at any time seemed disoriented while at the hospital, the doctor said, "I don't believe she was disoriented." He said he had seen the patient every day at Holy Cross Hospital from January 16, 1963 to February 10, 1963, and he maintained that she was mentally capable of knowing what she was doing, and appeared to know who her relatives were at that time. He further stated that he had not sent her to a psychiatrist because she had not appeared to him to be mentally unsound.
Marion Sadowski testified that he and his sister came to the defendants' home on May 5, 1963, to visit his aunt, Margaret Rupinski. He said that when they first awakened her she did not recognize them, but "after we explained who we were, she started to cry and she started to hug us and she was quite happy to see us." He stated that he believed his aunt was confused at the time and not mentally sound. On cross-examination Marion Sadowski admitted that during the period of his aunt's hospitalization and for months thereafter he had made no effort to see her, and that he did not see her on February 22, 1963 or on March 25, 1963, the dates on which she had executed her will and deed, ...