Finucan v. Kendig

Citations

• 109 Ill. 198

Syllabus

<p>1. Voluntary settlement—grounds for avoiding it—mistalce in omitting pou'er of revocation—acquiescence and delay. A person for whom another held the legal title to lands, upon the advice of counsel procured the property to be conveyed in trust for the benefit of himself and his wife, and the survivor, and on the death of both, the same to be conveyed to their children or descendants per stirpes. After the lapse of twenty years, during which time the disposition so made had been acquiesced in, it was held such deed would not be set aside on the ground of a mistake in not inserting a power of revocation, without proof of that fact of the most satisfactory kind. The evidence in this case was held not sufficient.</p> <p>2. Same—omission of power of revocation—and the want of advice in respect thereto—as grounds for avoiding the settlement. The want of a power of revocation in a voluntary settlement, or the want of advice as to the insertion of such a power, affords no ground, in equity, for the donor to set aside such a settlement, but the same is only a circumstance to be taken into account in determining upon the validity of the settlement, and is of more or less weight, according to the facts of each particular ease. In the absence of fraud, undue influence, or of any unfairness, and where the facts and situation of the parties show that the settlement was not improvidently made, it will not be set aside on the ground, merely, that the deed creating it contains no power of revocation.</p> <p>3. Statute of Frauds—must he pleaded, or it will be waived. Where the only grounds set out in a bill to set aside a voluntary settlement by a donor for his wife and family, are mistake in drafting the deed, absence of a power of revocation and of any advice in respect thereto, and the improvidence of the arrangement, he can not rely upon the Statute of Frauds as a ground to avoid the same. If it is not pleaded in some way, the party, by implication, waives the objection that t