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In Re Estate of Hill





APPEAL from the Circuit Court of Massac County; the Hon. ROBERT H. CHASE, Judge, presiding.


Joseph Lowe and Jesse Samuel Lowe appeal from an order of the Circuit Court of Massac County disallowing their claims against the estate of their sister, Anna L. Hill. Claimants sought reimbursement for monetary support furnished to Anna during her lifetime.

On November 16, 1978, Joseph Lowe filed a claim in the amount of $4,600 against Anna's estate to recover money he allegedly advanced to Anna for her support and maintenance. On the same day Jesse Samuel Lowe filed a similar claim for $3,480.

At the hearing on the claims on February 13, 1979, Joseph Lowe testified that after his mother died Anna was left alone and that he "got to thinking" if "some of the other boys would help some, I could give Anna some and they could give her some and with her social security she could make out fine." He further related that although a brother Jim paid $20 three or four times, he contributed no more. Joseph stated he regularly sent Anna monthly checks in the amount of $50, that his brother, Jesse Samuel Lowe, was sending Anna $40 per month and that no members of the family other than he and Jesse Samuel made such payments except the few dollars sent by Jim. The practice of sending checks started in December 1970 and did not cease until Anna's death in March 1978. He explained that the checks were a necessary supplement to Anna's income, because Anna lived alone and was unable to work and could not subsist solely on her monthly social security check.

Over the objection of counsel for the administrator of Anna's estate, Joseph Lowe testified relative to Jesse Samuel's claim alone. He stated that he had discussions with Anna concerning the monthly checks and that on two occasions Anna assured him that he and his brother would be repaid. On cross-examination he stated that there was no written agreement acknowledging Anna's intent to repay the sums received by her. He added that Anna died intestate.

Jesse Samuel Lowe testified that from December 1970, to January 1978 he sent Anna $40 each month; however, he stated that he had no conversations with Anna relative to repayment of such sums. Canceled checks representing his payments and those of his brother were introduced into evidence.

In an order entered on July 9, 1979, the trial court ruled:

"* * * [T]he court doth find that both claimants have failed to overcome the presumption at law that support furnished to a member of the immediate family is gratuitous, the court further finding that the doctrine of quasi-contract is inapplicable to these claims filed against the estate. Therefore, an order is hereby entered disallowing both claims filed against the estate."

On appeal claimants contend: (1) that the presumption that monetary support furnished by adult brothers to an adult sister residing in a separate household is gratuitous does not apply under the facts of this case, and (2) that persons who have provided monetary support are prima facie entitled to restitution from the estate of the person receiving such support.

• 1 It has long been the law in Illinois that a person who furnishes services to a family member is presumed to do so gratuitously and that the parties do not contemplate payment of wages therefor; however, the presumption may be overcome by proof. (Heffron v. Brown (1895), 155 Ill. 322, 40 N.E. 583; In re Estate of Foster (1964), 46 Ill. App.2d 319, 197 N.E.2d 257.) Although these cases deal with the furnishing of services, we perceive no reason for support payments being given any different status; therefore, we conclude that the same presumption would result from the contribution of funds or support to a family member.

Although claimants were brothers of Anna, they contend that their relationship to her was not of the type nor sufficient to invoke the presumption that their monetary support was gratuitous. In support of their contention they emphasize the fact that neither of them lived in the same house with Anna. They rely on Brooks v. Ostrander (1910), 158 Ill. App. 78, for the proposition that adult brothers and an adult sister residing in separate households do not share a family relationship for purposes of the above mentioned presumption.

In Brooks, claimants, the brother and sister-in-law of decedent, filed two claims seeking payment for services rendered in caring for decedent, who was an elderly man suffering from a heart disease and requiring constant care. Decedent wrote his brother, who lived in New York, and requested that his brother come to Illinois and take care of him. The brother and wife moved into decedent's home and attended to his needs until his death. Two witnesses at the trial testified that the brother and his wife moved to Illinois solely in response to his brother's request. In upholding the jury's allowance of the claims, the court noted that under the facts of the case, the jury could not have found other than that there was a contract under which the services were rendered to decedent.

Although the appellate court in Brooks stated that the claimant was not a member of the family of the decedent, we do not consider the decision in Brooks to be as broad as they urged by the claimants in this cause. The decisive factor in Brooks was not that the claimants had lived in a separate household from decedent, but rather that there was a contract under which the claimants furnished services to decedent. We note that the Brooks court concluded that if services are rendered by one member of a family to another, the mere fact of the rendering of the service "will not raise an implied contract to pay for such services. There must be other evidence from which a contract may be inferred." (158 Ill. App. 78, 80-81.) Thus, in determining controversies based on evidence comparable to the case at bar, the court in Brooks applied a different standard (that no contract would be implied) than the courts> used in Heffron v. Brown and In re Estate of Foster (that the services would be presumed to be gratuitous).

However slight the results might be in applying the presumption of gratuity referred to in Heffron and in Foster and the rationale that the rendition of the services would not give rise to an implied contract, as stated in Brooks, any distinction was removed by the court's decision in In re Estate of Clausen (1977), 51 Ill. App.3d 18, 366 N.E.2d 162, which cited with approval In re Estate of Foster. It was there stated that where the claimant and the decedent were brother and sister and lived together as a family with mutual dependence, "* * * a presumption arises that the services rendered were intended to be gratuitous. [Citation.] To rebut that ...

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