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In Re Estate of Pomeroy

AUGUST 1, 1974.

IN RE ESTATE OF LAMBERT J. POMEROY, DECEASED — (ROSE KIRK, CLAIMANT-APPELLANT,

v.

ESTATE OF LAMBERT J. POMEROY, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.

MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Claimant, Rose Kirk, appeals from an order of the circuit court of Cook County dismissing her claim against the estate of Lambert J. Pomeroy. On January 13, 1972, claimant filed the claim seeking to recover payment for services performed for the decedent. The claimant was employed by the decedent as a housekeeper from October 1966 until his death in April 1971. In addition to room and board, the claimant was paid a weekly salary of $85.00. The salary was subsequently raised to $100 per week. A hearing without a jury was held on the claim. At the close of claimant's case, the respondent moved under section 64(5) of the Civil Practice Act to dismiss the claim, and the trial court granted respondent's motion.

The claim, after claimant abandoned one count, alleged two alternative theories of recovery. One count was that the claimant had an express contract with the decedent whereby, in consideration of services to be performed by her, he agreed to direct his son to purchase a $50,000 certificate of deposit for her. The other count charged that claimant performed services for decedent in consideration of his implied promises to pay her the reasonable value thereof.

Randolph Pomeroy, decedent's son, was called as an adverse witness under section 60 of the Civil Practice Act. He testified that 11 days before decedent died, the decedent said that he wanted to give the claimant $25,000 or $50,000 and instructed him to buy the claimant a $50,000 certificate of deposit after his death. The witness told decedent he would do so, but did not comply.

The claimant testified that on the date of decedent's death Randolph told her that he would do what his father said, and that she should not worry. The claimant told the son that when decedent's estate was settled, he should purchase the $50,000 certificate of deposit in her daughter's name. About 4 weeks later, the claimant repeated the request to the son, who then told her not to hold her breath as everything had been left in trust to his mother.

Louise Bates, a friend of the claimant, testified that claimant bathed the decedent, cooked for him, fed him, and did the shopping. According to the witness, the claimant worked around the clock, attentive to the decedent's requests. As a result, the claimant and the decedent developed a very close relationship. The decedent told Louise Bates that he was unable to employ another housekeeper for less than $38.00 a day. Because he was unwilling to pay that much, he said he was going to leave the claimant a certificate of deposit. He would not leave it in his will because its value would be reduced by taxes. He told another person in the presence of the witness that he would see that claimant was taken care of for life. Louise Bates also testified that decedent said his son would comply with his instructions in purchasing a certificate of deposit for claimant.

Over respondent's objection, Robert Wolf testified as an expert witness. He was employed as a field inspector for the State of Illinois, Department of Labor, Division of Private Employment Agencies, which regulates nurses' registries and domestic employment agencies. In his opinion a woman performing similar services as claimant would earn $300 to $350 per week at prevailing rates. On cross-examination, he testified that he had never worked for an employment agency, and that his testimony was not based upon any research conducted by him.

Ramona Schultz, a bank vice-president, testified that the decedent telephoned the bank in 1970 for information relative to the bank's interest rates. After a personal meeting, the decedent purchased a $100,000 certificate of deposit. Decedent thereafter requested the witness to type some checks for him, and she, for 5 dollars a visit, performed the task each Wednesday afternoon until decedent's death. Each week the witness typed a check to the claimant for $100.00. When she remarked that decedent should be deducting social security, the decedent stated that the claimant would not need social security because he intended to take care of her. (It appears undisputed that after decedent's death the respondent estate filed social security returns on claimant's behalf and paid both decedent's and claimant's shares, the latter figure amounting to $1032.33.)

Decedent once asked Ramona Schultz' opinion as to the advisability of placing a $50,000 certificate of deposit in the claimant's name. The witness advised him to indicate such an intent in his will, but the decedent responded that the government would take most of it. He then told the witness that he had instructed his son to purchase a C.D., and he was sure his son would do it.

Ramona Schultz further testified that on Christmas 1970 the decedent and claimant were her guests for dinner. Decedent, in the presence of claimant, told the witness that he would see to it that the claimant would never want. The witness urged decedent to reduce his intention to writing. Decedent then said to claimant that if she would stay with him, she would not have a thing to worry about. The claimant replied that decedent knew she would never leave him. In February 1971, Ramona Schultz again told decedent that if he wanted to leave claimant anything, he "should make it legal." Decedent replied that he wanted claimant to have a $50,000 C.D., but repeated his fear of the government getting too much from him.

Cleveland Boyd, decedent's yard man and chauffeur, testified that decedent stated that he wanted the claimant to have a $50,000 C.D. after his death. Decedent also told Boyd that he would leave word with his son to carry out his wishes.

Betty Schofield, a neighbor, testified that she observed the decedent and claimant about once a week. The claimant took good care of decedent especially in preparing and serving his meals. In 1967, the decedent told the witness that he was going to take care of the claimant so that she would not have to work again for anyone. In 1970 or 1971, decedent told Betty Schofield that the claimant would receive a $50,000 C.D. after his death. When the witness suggested a provision in his will, the decedent mentioned tax problems and said that he had instructed his son to take care of it.

• 1, 2 In cases tried without a jury, the trial judge, in deciding defendant's motion for judgment at the close of plaintiff's case, shall pass on the credibility of witnesses and consider the weight and quality of the evidence. (M.F.M. Corp. v. Cullerton (1973), 16 Ill. App.3d 681, 306 N.E.2d 505; Allfree v. Estate of Rosenthal (1969), 113 Ill. App.2d 90, 251 N.E.2d 792.) On appeal, in such cases, the sole issue becomes whether the trial court's decision is contrary to the manifest weight of evidence. (De Bello v. Checker Taxi Co. (1972), 8 Ill. App.3d 401, 290 N.E.2d 367.) When sitting without a jury in such cases, a trial court must not consider the evidence in a light most favorable to plaintiff, but must weigh the evidence including any evidence favorable to defendant. Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg (1973), 11 Ill. App.3d 739, 297 N.E.2d 649.

• 3 Claims against an estate shall not be permitted to prevail except upon clear and convincing proof, and the evidence pertaining thereto must be carefully scrutinized. (In re Estate of Heyder (1965), 62 Ill. App.2d 318, 210 N.E.2d 619.) An express contract may be proved by an actual agreement, by the express words used by the parties, and also by circumstantial evidence. (Rush v. Estate of Rush (1960), 27 Ill. App.2d 242, 169 N.E.2d 538.) A court should enforce an alleged contract and order a distribution of the decedent's estate different from that set forth in a validly executed will only after the contract's existence and terms have been proved by clear, explicit and convincing evidence which leaves no ...


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