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Eslick v. Montgomery

FEBRUARY 3, 1972.

FERN ESLICK ET AL., PLAINTIFFS-APPELLANTS,

v.

MAXINE MONTGOMERY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of McHenry County; the Hon. CHARLES S. PARKER, Judge, presiding. MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The plaintiffs, adult children of Dolly Montgomery, now deceased, sued to set aside their mother's conveyance, in her 81st year, of her farm to herself and defendant, her other surviving adult child in joint tenancy. (Lois Lichty is named a defendant solely as the intermediate nominee in the conveyance.) The trial court, in a bench trial, found that the plaintiffs had not sustained the burden of proving that Dolly Montgomery was either incompetent at the time she signed the conveyance to the nominee, or under the undue influence or duress of the defendant. The court entered judgment for the defendant, George Montgomery, *fn1 from which the plaintiffs appeal.

We have concluded that the judgment below is fully supported by the record. We have been aided by an unusually detailed memorandum opinion in which the trial judge cogently summarized the testimony and carefully stated his observations as to weight and credibility.

Dolly Montgomery, during the six month period preceding her death, appeared thin and frail. For many years, she had been suffering from poor eyesight and poor hearing. She suffered from diabetes and heardening of the arteries. She used a cane to walk on most occasions. Her mind would also wander on occasions.

Despite her infirmities, Dolly Montgomery was an active person who got around quite well. She and George lived alone on the farm for approximately four years before her death. George regularly drove her to town in the old family car. In town, Dolly would purchase sundry items including prescription drugs for her use and greeting cards for her children. She recognized and conversed regularly with family members and individuals with whom she did business. She appeared to comprehend her situation and position in life with no evidence of a real lack of orientation. The evidence shows that at all times, she seemed to know who she was, who her children were, and who she did business with as well as the nature of this business. The business was of a limited nature, consisting mostly of everyday tasks.

Dolly visited her physician, Dr. John Hill, at least monthly. The doctor allowed her to buy her own prescriptions and to administer them according to his directions. Dr. Hill, as plaintiff's witness, testified that he had referred to Dolly as a "fiesty old gal" with a lot of spirit.

Dolly enjoyed harmonious relations with all of her children, although she appeared to be closer to George. Her other children visited her with varying regularity, from weekly visits to semi-annual or annual visits. Most of the plaintiffs resided at a distance from Hartland Township. The children made very nominal contributions of food and money during the course of these visits.

Testimony of George's siblings was to the effect that George was born a female christened "Maxine", and was considered a female by them. Further testimony indicated Dolly referred to "George" as "Maxine" when he was not present, but otherwise called him "George" in his presence; referred to him as "son", and treated him as a man. George testified he was always known as "George".

The evidence, most of which was testimony by interested parties, shows that there was little, if any, detailed discussion by the decedent with anyone regarding the disposition of her property at death. There was testimony to the effect that Dolly intended to leave her property to George because he cared for her, and contradictory testimony to the effect that when Dolly died, her property would go equally to all of her children.

Around March 1, 1968, George visited the offices of the law firm of Hamer & Schuh in Woodstock, Illinois. George asked to see Mr. Hamer who was on vacation and was referred to Attorney Schuh. Dolly was acquainted with attorney Hamer, since he had previously performed some legal services for her. George talked with Schuh about Dolly's wishes. Schuh explained briefly the preparation of the deeds and a will for Dolly. At this initial meeting, there was no mention of Dolly's other children. Attorney Schuh then told George to talk with Dolly and see if the planned arrangements were satisfactory to her. George returned two or three days later to the office and told Schuh the arrangements were acceptable to his mother.

On March 6, 1968, George and Dolly went to Schuh's office. Schuh took Dolly into his private office to explain the purport of the deeds and will to her while George remained in the outer office. Schuh testified he explained to Dolly the nature of the deed to Lois Lichty and the deed from Lois Lichty to George and herself in joint tenancy before she signed. He did not have her read the deeds. Schuh testified further that George's name came up only once.

"I said, `Now, this is going to be in your name and George's name, so that, if something happens to you, it will automatically be his; no estate.' She said, `That's the way it should be; he has been working the farm and taking care of me.'"

Dolly then signed the deed at the place indicated by Schuh. Schuh then went on to discuss Dolly's will with her, which disposed of her personal property.

Schuh testified that the decedent appeared to understand what he said, was not confused, knew who she was and where she was. He also testified that in his opinion the decedent had the mental capacity to know who her children were and to choose between them, to conduct ordinary business affairs and to sign a deed and a will.

Appellants first argue that the infirmities of the decedent, particularly her deafness, blindness, forgetfulness, and rapidly failing health, rendered her incompetent to understand the nature ...


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