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Fleming v. Fleming





APPEAL from the Circuit Court of Montgomery County; the Hon. DANIEL H. DAILEY, Judge, presiding.


Rehearing denied July 11, 1980.

Plaintiff, Charlotte Peterson Fleming, appeals from the judgment of the Montgomery County Circuit Court in an action seeking equitable relief in which there was an advisory jury. The judgment of the trial court upheld the validity of an antenuptial agreement.

Plaintiff and W. Harold Fleming, who is deceased, were married on April 24, 1974. At the time of the marriage, plaintiff was 68 years old and Harold Fleming was 73 years old. Both were widowed and had children by their previous marriages. Prior to the marriage and while the parties were engaged to be married, plaintiff and Harold Fleming executed an antenuptial agreement in the law office of Frank Cooper. By its terms the agreement provided that in consideration of the contemplated marriage, each of the parties would not claim any right or title in the other's estate and that each would retain the right to dispose of their separate estates as if they both had remained single.

Harold Fleming died August 7, 1976. Under his will his widow received the household furnishings and a life estate in the marital home. The remainder of the estate, valued at approximately $336,000, was left to the decedent's children and grandchildren. On October 18, 1976, plaintiff filed a renunciation of the will, electing to take a surviving spouse's statutory share of decedent's estate. She then filed a complaint seeking equitable relief on December 3, 1976, to set aside the antenuptial agreement. She alleged that the decedent had not fully disclosed the nature and extent of his property prior to her signing of the agreement; that he did not explain the meaning or consequences of the agreement prior to the signing of the agreement; and that she did not have independent legal advice or counsel prior to the signing to advise her of her legal rights as a surviving spouse and the consequences of her signing the antenuptial agreement. After a four-day trial, the jury found the antenuptial agreement to be valid. The trial court accepted the jury's verdict and entered judgment in favor of defendants and against plaintiff.

On appeal, plaintiff first contends that the judgment of the trial court was contrary to the manifest weight of the evidence and that certain testimony was improperly admitted into evidence.

The evidence presented at trial indicated that both plaintiff and the deceased had been residents of Litchfield, Illinois, for many years. Plaintiff had lived in Litchfield for more than forty years and had worked as a clerk in various stores in downtown Litchfield. The deceased was president of the Litchfield National Bank from 1945 to 1974 and was also on the bank's board of directors. Plaintiff and the deceased had gone together about two years before the marriage. Plaintiff testified that at the time the antenuptial agreement was signed, she knew that Mr. Fleming had been a director of the Litchfield National Bank and owned stock in the bank; however, she stated that she did not know the amount of stock owned by decedent. She also testified that she knew he had an interest in certain farm property in Macoupin County and an interest in the Litchfield Creamery. She also stated that Mr. Fleming had told her about other of his investments, including stocks and mutual funds.

Plaintiff denied having examined the contents of the antenuptial agreement before signing it, stating that she signed it because her husband asked her to. Plaintiff further testified that she and the decedent had their own separate checking and savings accounts during the marriage; and the evidence disclosed that money plaintiff had received from the sale of her home had been deposited in her separate savings account.

The son of decedent, David W. Fleming, and David's wife Thelma testified concerning a conversation which took place at a family gathering on Easter Sunday, April 14, 1974. David and Thelma both testified that plaintiff, the decedent, and the two of them had discussed the extent of the property of the decedent and plaintiff's individual property. David and Thelma both recalled that plaintiff and decedent had expressed their mutual desire to execute an antenuptial agreement, each barring the other from making claims against the other's estate in order that plaintiff and decedent could distribute their own property to their own children. David testified that he remembered using the figure of a quarter of a million dollars during the conversation to illustrate the value of his father's estate.

Plaintiff objected to the introduction of any evidence pertaining to this conversation at trial on the basis of the Dead Man's Act (Ill. Rev. Stat. 1977, ch. 51, par. 2) and, additionally, that the conversation was hearsay.

In rebuttal, plaintiff denied that any conversation of this nature took place and testified that only social and religious matters were discussed that day. Plaintiff further stated on cross-examination that she had never discussed business matters with David and her deceased husband. Defendants then inquired as to whether she had ever discussed with David and Mr. Fleming a lawsuit pending in Lincoln, Illinois, pertaining to an estate. Plaintiff objected to the question and moved for a mistrial. The court sustained the objection but denied the motion for a mistrial.

David Fleming testified that in his capacity as his father's accountant he had drawn up a list of his father's assets and delivered it to him on April 17, 1974. Defendants argue that it is reasonable to infer from this that the decedent had the list of assets drawn up for the benefit of plaintiff to inform her of the nature and extent of his property. There was no evidence to show that plaintiff actually saw the list of assets.

Frank Cooper was called as a witness for plaintiff after the court refused to allow plaintiff to call him as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). Mr. Cooper is the attorney who drew up the antenuptial agreement and the attorney for the estate of the decedent. He testified that plaintiff and decedent came to his office on April 18, 1974, to execute the agreement. He further related that the rights of a surviving spouse were generally discussed and the contents of the agreement were thoroughly discussed. Plaintiff then moved for leave to cross-examine Cooper on the basis of surprise, arguing that his testimony at trial differed substantially from his deposition. It was shown that in his deposition, Mr. Cooper had stated that he asked plaintiff if she understood that she was giving up her rights as a surviving spouse by executing the agreement. Thereupon, the motion for leave to cross-examination on the basis of surprise was denied. Plaintiff then requested the court to call Cooper as its witness because of the element of plaintiff's surprise. The court also denied this request. Mr. Cooper further stated that the meeting took 30 to 40 minutes and both parties appeared competent and aware of what they were doing. After Mr. Cooper testified that no schedule of assets was attached to the antenuptial agreement, plaintiff made an offer of proof of the testimony of attorney Jerry Reed to demonstrate that the usual practice to ensure full disclosure of a party's assets is to attach a list of assets to the antenuptial agreement.

Defendants introduced the decedent's 1974 income tax returns, which were signed by both plaintiff and decedent, as establishing plaintiff's ...

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