Rickman v. Meier

Mr. Justice Scott delivered the opinion of the court: The gifts made by the deceased to John F. Brick are attacked principally on the ground that they were obtained through the undue influence of the donee. Appellant argues that a deed or gift obtained through undue influence is not void, but voidable at the election of the grantor or donor alone, and that as Christiana O'Connor did not exercise her option to declare the gifts void in her lifetime, they cannot be attacked by her representatives after her death, and reliance is placed upon the case of Burt v. Quisenberry, 132 Ill. 385. In that case it is held that though a deed be obtained by undue influence, the party executing it may elect to re-affirm it when the influence under which it was obtained has entirely ceased; and if he do so, then it becomes valid and binding precisely as though it had been the result of the uncontrolled volition of the grantor in the first instance; and in that case it was held that the attack made on the deeds could not avail, for the reason that the grantor had ratified them at a time when he was entirely free from the influence which it was charged had been unduly exercised to secure their execution. The law is that where a deed or other conveyance has been procured by undue influence, if it be not ratified by the party making it after the undue influence has ceased to operate, it may be set aside after his death at the suit of those who succeed to his rights. Bigelow on the Law of Fraud, p. 268; Walker v. Smith, 29 Beav. 394; LeGendre v. Goodridge, 46 N. J. Eq. 419; Prentice v. Achorn, 2 Paige, 30; Lins v. Lendhardt, 127 Mo. 271; Martin v. Bolton, 75 Ind. 275. Christiana O’Connor was confined to her room and bed from July 1, 1902, to September 12, 1902, when she died. During this time she grew weaker, both physically and mentally, except that she would rally at times for a day or two. John F. Brick was her only surviving child. He lived next door to her and was without any occupation except caring for her and assisting her in her business, and during the period last mentioned she seems to have relied almost entirely upon him, both to care for her in her illness and to attend to her affairs. She had made him trustee for her by a deed which conveyed to him in trust real estate of great value, comprising by far the greater portion of her property. He was to be one of the executors of her will without bond. She rented a box in a safety deposit vault and had given him the key and written authority by virtue of which he had access to that box and all her valuable papers, including her will, at all times. The relations between them, business, personal and domestic, were exceedingly close and intimate. He was her confidant and adviser. Age and disease had seriously weakened her physical and mental powers, and while not mentally disqualified to transact such business as conveying property, yet the weakness of her mind was such as led her to rely upon and be guided by the judgment of her son. We are satisfied that at all times after she was confined to her room a fiduciary relation existed between them in which he was the dominant and controlling factor and she the trusting and dependent one. The scrivener prepared the deed in question at his instance and under his direction, and he procured-its execution by his mother. A gift made by the parent to the child on account of the affection of the former for the latter, even where it is made at the solicitation of the child, is not the object of suspicion, ‘'and there is no presumption against its validity unless the relation between them is something more than the ordinary relation of parent and child. Burt v. Quisenberry, supra; Oliphant v. Liversidge, 142 Ill. 160; Francis v. Wilkinson, 147 id. 370. Where, however, the natural position of the parties has become reversed, where the parent defers to, 'trusts in and yields to the child, where there exists between them what in law is termed- a fiduciary relation, in which the parent is dominated by the child, and where the child prepares, or causes to be prepared and executed, an instrument conveying to him property of the parent, as a gift or upon a grossly inadequate consideration, the presumption arises that .the transfer was obtained through his undue influence, and the burden then rests upon him to show that the conveyance was the result of full and free deliberation on the part of the parent. This is not peculiar to transactions where the parties are parent and child, but is the law in any case where a fiduciary relation exists, where«the conveyance is from the dependent to the dominant party, and where the donee or grantee prepares or procures the preparation and execution of the deed or other instrument; and the rule is applied, under such circumstances, wherever that relation exists, no matter whether the parties are related by blood or not. 1 Woerner on American Law of Administration, (2d ed.) sec. 32; Bigelow on the Law of Fraud, p. 361; Thomas v. Whitney, 186 Ill. 225; Dowie v. Driscoll, 203 id. 480; Weston v. Teufel, ante, p. 291; Richmond’s Appeal, 59 Conn. 226; Coghill v. Kennedy, 119 Ala. 641. The deed conveying the Barry avenue property was written by Lewis A. Rheinhardt, a notary public and law clerk, who lived in the same building in which John F. Brick resided. On the day on which it was executed, Mr. Rheinhardt prepared a deed for signature in accordance with the directions of John F. Brick. It was taken by Rheinhardt to Mrs. O’Connor’s room, where she was in bed. John F. was present. She attempted to sign, but was unable to .do so and blotted the instrument so that it was deemed advisable to prepare another. When the second was prepared, the same thing occurred, and the scrivener thereupon prepared a third. In the meantime a stimulant had been administered to the sick woman, and when the third document was presented to her she was able to attach her signature. The notary did not read either of these instruments to her and says he presumed “she must have understood the purport of the execution of these deeds, as John informed me it was pre-arranged.” Her failure to sign the first two instruments presented resulted partly from physical weakness and partly from a confused mind which made her uncertain about forming the characters in writing her name or about the order in which they should be written. When the first deed was presented to her, John said: “Mother, Mr. Rheinhardt has got this deed now ready for you to sign.” After she had marred and failed to sign it, the son said that she had spoiled it, and, addressing Rheinhardt in her presence, continued: “Well, you may as well get through it while you are here. You can go up-stairs and make another deed.” When the notary returned, the son said to her: “Mr. Rheinhardt has that second deed made out now and you want to try and sign this one and don’t spoil it.” When she had failed to sign the second and had so blotted it that the preparation of the third was rendered necessary, her husband, who was present, said: “Let it go for to-day; she is in a weakened condition.” John F. said to her: “Don’t you think you can sign that to-day?” and the mother responded: “Well,-we might just as well get through with it.” The stimulant was taken by her at the instance of her son, who suggested that it would make her feel better and steady her nerves. The testimony does not satisfy us that this woman knew what she was signing. The notary says : “I did not read the deed to her; she had confidence enough in me, because I had known her for a long time, that when the deed was made out it was all right.” She did not read and there is no evidence that she was in any way made acquainted with the description of the property contained in the -deed. The proof offered by appellant fails to show that the execution of the deed was the result of full and free deliberation on the part of the grantor therein. On the occasion of the transfer of the money in bank, Rheinhardt went to Mrs. O’Connor’s room in response to a message which she sent to him by the wife of John F. Brick. When he reached there, he found that she was better and was unusually bright, and made some witty remark to him in the German language. She told him that she had sent for him, as she wanted to see him before he started down town; that she had money in the Hibernian Bank and in the Illinois Trust and Savings Bank; that she wanted John to have that money because he was a cripple and could not work, and wanted Rheinhardt to go down with John and do whatever was necessary to be done to put that money in John’s name. In accordance with this request, Rheinhardt and John went to the Illinois Trust and Savings Bank and later to the Hibernian Bank. In each instance they acquainted the bank officers with the fact that Mrs. O’Connor was sick and unable to come down and that she wanted to transfer the money on deposit to John. The money in each bank was in the savings department, not subject to an ordinary check, and, for the purpose of making the transfer, in each instance a clerk filled up a check payable to John for the amount on deposit and an instrument in the nature of a receipt running to the bank, which is termed a release, both to be signed by Mrs. O’Connor. They then returned. Mrs. O’Connor signed .them and said to John: “Now you can go down and get the money,” and he took the checks and releases and had the money transferred to his own account. So far as the money thus transferred to the son is concerned, we think the evidence overthrows any presumption arising from the fiduciary relation. It seems that the mother was here the active party in making the transfer and having the papers evidencing the transaction drawn instead of the son, as in the case of the deed; and while the gift of the money was no doubt induced by the affection which she had for her son, and perhaps was made in response to his request, yet we think the circumstances surrounding the transaction, as disclosed by the evidence, show that the gift resulted from her uncontrolled volition. The court below held that the real estate, which the deed in question purported to convey, passed to the complainants in the original bill, under the residuary clause of the will, which reads as follows: “All the rest, residue and remainder of my estate, including household furniture, clothing, etc., I give and bequeath to the four children of my deceased son, Frank Brick.” At the time the will was drawn, the testatrix did not own this Barry avenue property, and appellant’s view seems to be that this property should be held to pass under those provisions of the will which direct a disposition of the proceeds of the Rush street property, which had been sold after the execution of the will, on the theory that the Barry avenue property was purchased with the proceeds of the Rush street property, and that it does not pass under the residuary clause for the further reason that the words of gift therein do not include the word “devise.” According to the will, the Rush street property was to be sold after the death of the testatrix, and the proceeds were to be used to pay her debts and funeral expenses, to pay $1000 to each one of three legatees, and the balance of such proceeds was, by the sixth clause, to be divided, one-third to John F. Brick, one-third to Joseph Brick and one-third to the children of Frank Brick who should survive the testatrix. The three legacies of $iooo each she advanced to the legatees in her lifetime. After conveying the Rush street property, she executed a codicil, reciting the fact that that property had been conveyed, and the advancements made and revoking the three legacies of $iooo each, and then providing “leaving the rest of my said will as drawn.” When this codicil was executed she had not yet purchased the Barry avenue property. The proceeds of the Rush street property seem then to have been personalty and there is no competent evidence tracing such proceeds into the Barry avenue property. There is competent evidence establishing the fact that she disposed of the one property and some years later acquired the other, but this is not sufficient to show that the second was purchased with money arising from the first. Under these circumstances this property passes under the residuary clause although the word “devise” was not used. This court has heretofore held that while the word “devise” is usually employed to denote a gift by will óf real estate or an interest therein, the word “bequest” may mean any gift by will whether it consists of personal or real property. (Evans v. Price, 118 Ill. 593.) Following this reasoning, it would seem that the use of the word “bequeath” instead of “devise” would not necessarily lead to the conclusion that the property which the testatrix thereby intended to dispose of was personalty; but be that as it may, the word “bequeath” in this residuary clause is coupled with the word “give,” which is of the largest possible signification, and is applicable as well to real as personal estate. Hooper v. Hooper, 9 Cush. 129; Pierson v. Armstrong, 1 Iowa, 282. The decree of the court below finds that the appellant received her deed from John F. Brick pendente lite. It is assigned as error that there is no evidence to warrant that finding. The deed bears date prior to the beginning of this " proceeding. There is no evidence showing when it was delivered save the presumption that arises from its date, and it is urged that in the absence of other evidence showing when her deed was delivered to her, it was erroneous to find that she took title after the beginning of this suit. The answer of John F. Brick, filed January 30, 1903, admits that he claims to be the owner of the Barry avenue property by reason of the conveyance to him, and says nothing in reference to having transferred the title to his wife. After the death of John F. Brick, the appellant adopted his answer as her answer, and having adopted that answer with that averment therein showing that he claimed to be the owner of that property after the beginning of this suit by virtue of the conveyance from his mother, we think she cannot now be heard to say that the court was not warranted in finding that she took title pending this litigation. The decree of the superior court will be reversed and the cause will be remanded to that court with directions to enter a decree dismissing the bill filed by the residuary legatees or devisees for want of equity in so far as that bill seeks to set aside the gift of the money in bank by Christiana O’Connor to John F. Brick, and dissolving the injunction in so far as Caroline K. Rickman, formerly Caroline Brick, is restrained from transferring, receiving or checking out the portion of such money now in bank; and authorizing said Caroline K. Rickman to draw or check said portion' out of the bank of the Hibernian Banking Association wherein it is now deposited, and authorizing said association to pay the same to Caroline K. Rickman or upon her order. The decree to be so entered to be in all other respects identical with the decree from which this appeal is prosecuted. Reversed and remanded, with directions.