Oswald v. Nehls

Mr. Justice Vickers delivered the opinion of the court: The rule is well established in this State that it is competent for a person owning property to make a contract to dispose of it by will in a particular way, and that such a contract, when based upon a sufficient consideration and clearly established, will be enforced in equity. (Weingaertner v. Pabst, 115 Ill. 412; Dicken v. McKinley, 163 id. 318; Whiton v. Whiton, 179 id. 32; Barrett v. Geisinger, 179 id. 240; Hudnall v. Ham, 183 id. 486.) The same rule appears to be recognized in most other jurisdictions. (See Krell v. Codman, 154 Mass. 454; 14 L. R. A. 860.) Without questioning this general rule, appellants contend that appellee is not entitled to relief under the facts properly in this record. First—Appellants contend that this action is, in effect, an attack upon the Nehls estate, and that therefore appellee was an incompetent witness in her own behalf under section 2 of chapter 51 of Hurd’s Revised Statutes of 1905. If appellants’ contention in this regard is sustained the decree below will have to be reversed, since- the proof of compliance with the contract by appellee depends almost entirely upon her own testimony. Under the statute appellee could not become a witness in her own behalf if the adverse parties were defending as the heirs or personal representatives of the deceased. But the record shows that the only persons who are defending here are the direct and remote grantees of the deceased. Reddick was made a party as administrator, but he interposed no defense. No decree was rendered against him and he has not joined in this appeal. The decree only provides for the payment to appellee of the money in the hands of the county treasurer, which represents the lot conveyed to appellants. Appellants base their claim to this fund upon the conveyance made by their father to them, and as to this property they are not defending as heirs, legatees or devisees of Ludwig J. Nehls, but only as immediate and remote grantees of the deceased. The case, therefore, does not fall within section 2 of chapter 51 of the Revised Statutes. Appellee is a competent witness in the case, and her evidence showing a compliance on her part with the contract was properly considered. (Goelz v. Goelz, 157 Ill. 33.) The facts that the administrator was a party to the record and the scope of the bill was broader than the decree, in that it sought to reach other property in the hands of appellants, as heirs of the deceased, would not render appellee an incompetent witness or make it necessary to reverse the decree because a portion of her testimony may have been incompetent. In an appeal to this court in chancery cases, the whole record, including all the evidence offered, is before us, and we are required to assume that all the incompetent evidence was rejected and all the competent evidence was admitted and considered by the trial court. If there is, upon the whole record, competent evidence sufficient to sustain the decree it must be affirmed; if not, it must be reversed; and this without regard to whether the court may have been right or wrong in his views as to the competency of the evidence at the hearing. (Tunison v. Chamblin, 88 Ill. 378; Stone v. Wood, 85 id. 603; Moore v. Tierney, 100 id. 207; Smith v. Long, 106 id. 485; Treleaven v. Dickson, 119 id. 548; Goelz v. Goelz, supra.) The scope of the decree rendered in this case shows that the chancellor applied the law with careful discrimination and denied appellee all relief except such as could be afforded without considering incompetent evidence. Second—It is next contended by appellants that the court should have received and considered evidence offered by appellants as to certain statements made by the deceased to third parties as to the payment of money by deceased to appellee. ■ Statements made by a party to a transaction to third persons in his own interest are self-serving and inadmissible. If such statements would be inadmissible if offered by the party making them in his own behalf, they would be equally so when offered by his voluntary grantees. This evidence was properly rejected. Oliphant v. Liversidge, 142 Ill. 160. It is also contended by appellants that the court should have received evidence of statements made by .Nehls tending to show his love and esteem for. his children. It appears to be the theory of appellants that by proving that their father had a paternal love and affection for his children this would furnish a consideration for the deed, which, in connection with a want of notice to the grantees of the contract between appellee and their father, would entitle appellants to claim the protection accorded by the law to innocent purchasers. This is a misapprehension of the law. The deed from Ludwig J. Nehls to his children being a voluntary conveyance, is voidable at the instance of anyone whose contractual rights against the grantor are prejudiced thereby. All conveyances not supported by what the law deems a valuable consideration are voluntary, and subject to be set aside by creditors or other persons who, by virtue of contracts resting upon a valuable consideration, have acquired legal or equitable rights in the property. If natural love and affection on the part of their father could avail appellants anything, the law would presume its existence from the relation of parent and children without proof. There was no error in rejecting this evidence. Third—It is next insisted by appellants that the contract in question is wanting in mutuality and for that reason a specific performance should be denied. This contention can not be sustained. The general rule is, that before specific performance of a contract will be decreed it must appear that there was mutuality, both in the obligation and remedy, under the contract, as long as the contract remains executory on both sides. (Waterman on Specific Perf. sec. 196; Page on Contracts, sec. 1621; Lancaster v. Roberts, 144 Ill. 213; Welty v. Jacobs, 171 id. 624; Bauer v. Lumaghi Coal Co. 209 id. 316.) But this rule has no application to contracts in which the provisions which could not be enforced specifically have been fully performed. Contracts for personal care and attention or personal services cannot usually be enforced specifically. However, when personal care and attention or personal services have been fully performed, and the circumstances are such that to deny specific performance would leave the party with an injury that could not be adequately compensated in damages, equity will grant a specific performance of the remaining provisions of the contract. Page on Contracts, sec. 1623, and cases therein cited. Fourth—It is finally contended by appellants that the evidence shows that the real consideration for this contract was illicit and immoral relations between appellee and Ludwig J. Nehls. This contention raises a question of fact. We have carefully considered all the evidence, together with appellants’ arguments based upon it, and have reached the conclusion that there is no substantial basis for this charge. The evidence from which this conclusion is sought to be drawn is either so unreasonable as to be unworthy of belief, or relates to circumstances of such little probative force that we do not feel called upon to reverse the finding of the chancellor upon this question. Another point pressed upon our attention as a reason for reversing this decree is that the contract is unenforcible because its performance required appellee to practice medicine without being legally licensed so to do. The duties assumed by appellee under the contract were “to personally care for and nurse the said Ludwig J. Nehls for and during the term of his natural life.” The agreement “to nurse” an adult person necessarily conveys the idea that the object of' the care is sick or is an invalid. It means more than mere watchfulness. It means such care of the person and attention to the surroundings as will conduce to the comfort and hasten the recovery of the patient. The practice of medicine, within the meaning of our statute regulating, the practice of medicine, and as generally understood, necessarily requires a knowledge of all those things a professional llurse is supposed to know. It embraces much more. It includes the application of knowledge of medicine, of disease and the loss of health. (People v. Blue Mountain Joe, 129 Ill. 370.) Neither the terms of the contract nor the acts done in performance thereof by appellee are illegal under our statute relating to the practice of medicine. There being no error in this record the judgment of the Appellate Court for the First District is affirmed. Decree affirmed.