APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 20, 1973.
This is an appeal from a judgment of the Circuit Court of Will County, Illinois, which found that the plaintiffs had failed to sustain the burden of proof as to the matters alleged in each count of their complaint, and from an order which denied the plaintiffs' post-trial motion.
The plaintiffs' complaint was for cancellation of an assignment of a beneficial interest in a land trust; cancellation of an agreement for support and transfer of property which provided for the assignment; an injunction; an accounting; and a declaration that ownership of interests under the land trust was as the plaintiffs claimed.
The plaintiffs were Luella B. Clow, a widow, and Caroline C. Collins, her daughter. Luella B. Clow died before the case came to trial, and Caroline C. Collins as her executor was substituted as plaintiff. The defendants were Oliver Boyd Clow and William F. Clow, the sons of Luella B. Clow and brothers of Caroline C. Collins.
The property held in the land trust was a 203-acre farm which had formerly belonged to the mother, Luella B. Clow. In 1959 Mrs. Clow had conveyed it to Chicago Title and Trust Company as trustee under a land trust. The beneficial ownership under the land trust was allocated as follows: 2/3 to Luella B. Clow, with full power to assign, and in the event of her death during the existence of this trust, if not previously assigned, to her three children in equal shares, and 1/9 to each of the three children, Caroline C. Collins, Oliver Boyd Clow, and William F. Clow. The mother and the three children all agreed orally, however, that the mother, Luella B. Clow, was to have all the income from the farm during her lifetime.
Shortly after creating the land trust, Mrs. Clow decided to give additional 1/18 interests to each of her three children. This was accomplished by an assignment dated December 20, 1960. This left her with a 1/2 interest in the land trust and increased the shares of each of the three children to 1/6.
More than two years later, on March 22, 1963, Mrs. Clow executed an assignment of her remaining 1/2 interest in the land trust to her two sons, omitting her daughter. At the same time she and her sons entered into an agreement for support and transfer of property. This agreement provided that in exchange for the 1/2 interest in the trust and possession of the trust farm, the sons were to pay their mother $300 per month for the remainder of her life, plus any unusual medical or hospital expenses she might be unable to pay, and taxes on both the trust farm and another farm where the mother lived, which was called by the parties the home farm. This was a 280-acre farm which had formerly belonged to Mrs. Clow's husband, who had devised it to her for life and then to the children. Oliver Boyd Clow was the tenant of the trust farm, and William F. Clow was the tenant of the home farm.
Mrs. Clow and her sons did not tell her daughter, Mrs. Collins, about the 1963 assignment to the sons and the support agreement made with them. In August of 1965 Mrs. Collins learned from Chicago Title and Trust Company about the assignment, and she then called the family together and learned about the support agreement. It is these two instruments which Mrs. Collins, individually and as executor, now wants invalidated.
Many meetings of the family were held during the years from 1959 to 1967 to consider how the mother's estate could be equitably divided. Apparently the later meetings became quite acrimonious. Meanwhile Mrs. Clow's physical condition had begun to deteriorate. She was also becoming forgetful. In 1965 a couple was procured to stay with her. In February of 1966 Mrs. Collins filed a petition to have her mother declared incompetent, but no adjudication of incompetency followed. On December 7, 1966, Mrs. Clow signed an instrument which declared that the 1963 assignment to her sons was invalid and stated that she assigned her 1/2 interest in the land trust to her daughter, Caroline C. Collins. In the early summer of 1967 Mrs. Collins assumed responsibility for her mother's financial affairs. On March 22, 1968, the two of them filed their complaint to set aside the assignment dated March 22, 1963, and the support agreement. On December 16, 1968, at the age of 81, Mrs. Clow died.
The complaint filed by Mrs. Clow and Mrs. Collins alleged the existence of a fiduciary relationship between the sons and their mother; undue influence by the sons; lack of any consideration for the assignment in view of the inadequacy of the stated consideration compared to what the mother transferred to her sons; fraud shown by this inadequacy; lack of intent on the part of the mother to sell or give her 1/2 interest in the trust to the sons; failure of consideration by reason of the sons' not making all the payments which the support agreement required; refusal of Oliver Boyd Clow to account for rentals collected from the trust farm from 1969 to date; and ownership of the disputed 1/2 interest by either the mother, as stated in Count I, or the daughter, as stated in Count II.
The sons in their answer denied that there had been a fiduciary relationship, undue influence, unfairness, fraud, a misunderstanding, or a failure to account to their mother and make the payments due her, and alleged, further, that the support agreement was a valuable consideration for the assignment of the trust interest to them because it gave their mother security regardless of what income might be derived from the farm property, and that love and affection also provided a good consideration supporting the transfer to them.
Thereafter the complaint was amended to state that the court should declare the agreement for support and transfer to be a leasing agreement, and the assignment to be only a security instrument given to provide a lien for improvements which had been made by Oliver Boyd Clow on the trust farm and William Clow on the home farm. The defendants filed an answer in which they alleged that the instruments were what they purported to be and expressed the intent of the parties.
• 1, 2 We have considered carefully the testimony relative to the existence of a fiduciary relationship between Mrs. Clow and her sons in March of 1963 when the questioned assignment was made. Oliver Boyd Clow "possibly wrote checks for her," "took his mother a lot of places," and "was fairly close to his mother." William Clow "helped his mother in any way he could," "helped her make out deposit slips," and "did have a very close working relationship with his mother." She was elderly and under doctors' care, and the testimony of Mrs. Collins indicates that the following year "in 1964 her mother was unable to handle her affairs." A fiduciary relationship entails special confidence and trust on one side and dominance and influence on the other. (McCrillis v. Utterback, 397 Ill. 550, 554.) It does not obtain between a parent and child as a matter of law but must be established by competent evidence, and the proof must be clear and convincing and so strong, unequivocal, and unmistakable as to lead to but one conclusion. (Chicago Land Clearance Com. v. Yablong, 20 Ill.2d 204, 207; Stewart v. Sunagel, 394 Ill. 209, 214.) The trial court was not persuaded that the existence of a fiduciary relationship in 1963 between Mrs. Clow and her sons ...