APPEAL from the Circuit Court of Perry County; the Hon.
ROBERT E. BASTIEN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Alene Marie Valentine Skurat brought this suit in the circuit court of Perry County against Clara Kellerman, individually and as the administrator of the estate of John A. Bathon, and against various other relatives of the deceased, for specific performance of an oral agreement to devise real estate. A decree was entered finding in favor of the plaintiff, from which decree the defendants have appealed.
In 1959, the plaintiff moved from Chicago to the farm home of her bachelor uncle, John A. Bathon, the decedent. The move occurred after John Bathon's brother, Joe Bathon, who had lived with John, died. At the time plaintiff moved to the farm, she was unemployed, but she had previously held employment in the Chicago area. She moved to the farm at the request of John Bathon, who was then in his seventies.
Plaintiff lived at the farm continuously from 1959 until John Bathon's death on January 28, 1970. Plaintiff did all the housework, cooking, washing, and ironing for herself, her uncle, and her three children. She helped with field work, and the cattle, hogs and chickens, and was not paid for her work. In 1967, she ordered and paid for a new water system, sink, and kitchen cabinets at a cost of approximately $700. She lived and worked at the farm for a period of 10 years. This testimony was uncontradicted and was corroborated in part by one witness for the defense.
During his lifetime, decedent made numerous statements to various old friends that plaintiff and her son (before her twins were born) "* * * will never have nothing to worry about because this is their place." After the twins were born, he made the same statements relative to plaintiff and all of her children. He had not put it in "black and white" because "the lawyer wanted too much money." One person, Nicholas Bochantin, stated that the decedent told him several times, words to the effect:
"I'm getting old. I need someone to take care of me because if I don't, there is no one else will help me and I don't want to go to a nursing home. And Alene stayed with me and washed my clothes and prepared the meals. She can live and have the place."
He stated that decedent said he would "will it to her." Mr. Bathon did not execute a will, and died intestate in 1970.
The issue here is whether plaintiff is entitled to specific performance of an alleged oral contract between herself and the decedent to devise the farm to her at his death in consideration for her services rendered, which enabled him to stay on the farm and out of a nursing home, or whether the same is banned by the Statute of Frauds (Ill. Rev. Stat., 1975, ch. 59, par. 2).
The basic principles which apply to this case are stated well in Wessel v. Eilenberger (1954), 2 Ill.2d 522, 527-28, 119 N.E.2d 207, 210-11, where the court said:
"The cases allowing specific performance to enforce an oral contract to will or devise property to another, in consideration of services to be rendered, are universally those in which a gross fraud would be suffered by the promisee if specific performance were denied. The courts> of equity will not permit the Statute of Frauds, the only purpose of which is to prevent fraud, to be used where the effect will be to accomplish a fraud, and if the facts are such that it would be a virtual fraud to permit the defendant to interpose the statute, a court of equity will not listen to that defense. Limitations placed upon this equitable rule are (1) that the contract must be proved by competent evidence, and be clear, definite, and unequivocal in terms, and (2) that it must appear that the promisee cannot be made whole by damages, or by other adequate remedy at law. The following principles are applicable to such a case: (1) Courts> of equity accept with caution evidence offered in support of a contract to make disposition of the property of a deceased person different from that provided by law; (2) the contract to support it must be clear, explicit and convincing; (3) the contract may be based upon services, support and care, and if the value of such services may be estimated in money, for which a recovery might be had, such performance will not take the contract out of the Statute of Frauds, except in case the Statute of Limitations bars recovery, or where services cannot be adequately compensated; (4) specific performance is not a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances; and (5) it is only on the principle that it is unjust and inequitable to permit a contract to remain unexecuted that a court of equity will grant relief, and where the promisee shows no substantial change for the worse in his position in consequence of the agreement, relief will be denied. Linder v. Potier, 409 Ill. 407."
The difficulty of proving a contract reasonably certain as to the terms and the subject matter by evidence which is clear, explicit and convincing has been discussed as well. The problem is intensified by exclusion of the testimony of the person seeking relief by reason of section 2 of the Evidence Act, the so-called Dead Man's Act (Ill. Rev. Stat. 1969, ch. 51, par. 2).
In Yager v. Lyon (1929), 337 Ill. 271, 169 N.E. 222, the court said at pages 273-74:
"It is not necessary that the contract be proved by a third party who heard it made but it may be proved by declarations and conduct of the parties not in the presence of each other. (Mayo v. Mayo, 302 Ill. 584; Fletcher v. Osborn, 282 id. 143; Kane v. Hudson, 273 id. 350.) Possession must be taken in pursuance of the contract and must be exclusively referrable to the contract. (Christensen v. Christensen, 265 Ill. 170.) If improvements are to be made they must be valuable in comparison with the value of the property and must be something more than a tenant would make for his own comfort who expected to occupy the property for a number of years. (Clark v. Clark, 122 Ill. 388.) The contract may be based upon services, support and care. The performance of personal services the value of which may be estimated in money or for which a recovery may be had at law will not take a contract out of the Statute of Frauds, because the law affords an adequate remedy. It is only where the Statute of Limitations bars a recovery at law, or where the improvements made or services performed cannot be adequately compensated at law, or where a failure to carry out the agreement will amount to a fraud on the promisee, that specific performance will be decreed. (Flannery v. Woolverton, 329 Ill. 424; Stephens v. Collison, 313 id. 365; Weir v. Weir, 287 id. 495; Dalby v. Maxfield, 244 id. 214.)"
In Yager v. Lyon (1929), 337 Ill. 271, 169 N.E. 222, the court denied relief. There was uncontroverted testimony there that the plaintiff had moved in only three weeks prior to the death of his sister, that he was paying rent for the premises, and had performed very little, if any, personal services for his sister. There was no ...