He further found that the trust deed placed upon the premises was a valid and prior lien. Appellants contend in this court that the failure of consideration was not the result of willful misconduct or fraudulent design on their part but resulted, first, from their inability to borrow sufficient money to pay both the costs of remodelling and the $2000 due appellee, and, second, from appellee's own conduct which prevented them from giving her care and support in their home. It is the rule in this State that where an aged parent conveys land and the consideration is an agreement by a child to support and care for the grantor during the remainder of the grantor's life, and the child refuses or neglects to comply with the contract, the parent may in equity have a decree rescinding the contract, setting aside the deed and reinvesting the parent with the title to the real estate. ( Mruk v. Mruk, 379 Ill. 394; Detienne v. Detienne, 291 Ill. 439.) Where there is a failure by the child to perform his part of such a contract, a court of equity may infer a fraudulent intent in the first instance or a determination to abandon the contract, and in either case will declare a rescission of the contract and a restoration of the property to the parent in order to prevent a manifest wrong. ( Berry v. Heiser, 271 Ill. 264; Ropacki v. Ropacki, 341 Ill. 301.) The failure to perform on the part of the child must be substantial, and in relation to material matters, such as would render the performance of the rest a thing different from what was contracted, ( Haslinger v. Gabel, 344 Ill. 354; Russell v. Robbins, 247 Ill. 510,) and the contract will not be rescinded on the mere whim or desire of the parent.
Under such circumstances, we are not justified in disturbing that finding, unless it is manifestly against the weight of the evidence. Zarembski v. Zarembski, 382 Ill. 622; Douglas Lumber Co. v. Chicago Home for Incurables, 380 Ill. 87; Mruk v. Mruk, 379 Ill. 394. As a second ground for reversal plaintiff insists that the evidence fully supports her allegation of fraud in the execution of the deed itself.
While his findings of fact do not carry the same weight as the verdict of a jury or findings of a chancellor where the witnesses have testified before him, yet the master's findings are entitled to due weight on a review of the cause. (Mruk v. Mruk, 379 Ill. 394; Keuper v. Heirs of Mette, 239 Ill. 586.) His conclusions as to the facts in this case have been approved by the chancellor. In that situation we are not justified in disturbing the findings unless they are manifestly against the weight of the evidence.
In In re Adoption of Biddle, 168 Ohio St. 209, 217, 152 N.E.2d 105, 111 (1958) the Ohio Supreme Court stated, "[t]he phrase, 'properly support and maintain', certainly implies more than mere financial support," and it further implied that the phrase "includes kindness, personal care and attention, as well as the furnishing of food and shelter." Id. (quoting Mruk v. Mruk, 379 Ill. 394, 400, 41 N.E.2d 490, 494 (1942)). In Gillis we said that "[w]e are not prepared to assume that in a proper case this court would not be constrained to give the phrase as it appears in our statute a similar interpretation."
"The law is uniformly established in this State that where one voluntarily conveys his property in consideration of support and maintenance during his life, and the grantee afterwards refuses or neglects to perform the contract a court of equity will grant relief by setting aside the deed and reinvesting the grantor with title. ( Fabrice v. Von der Brelie, 190 Ill. 460; Luttrell v. Wyatt, 305 Ill. 274.) The court will infer, from the grantee's refusal to perform, a fraudulent intent in the first instance in entering into the agreement and grant a rescission on the ground of such fraudulent intention. ( DeCosta v. Bischer, 287 Ill. 598; O'Ferrall v. O'Ferrall, 276 Ill. 132; Cumby v. Cumby, 240 Ill. 235; Mruk v. Mruk, 379 Ill. 394; Didiuk v. Karpuk, 348 Ill. 98, and many other cases.) Partial support by the grantee is not a sufficient performance of an agreement to support.
In determining the propriety of that decree we must consider the weight to be given the findings of the chancellor, and whether they were supported by the evidence. While it is generally agreed that where the chancellor has heard the evidence his findings will not be disturbed unless they are clearly and manifestly against the weight of the evidence ( Larson v. Glos, 235 Ill. 584, 588; Jones v. Koepke, 387 Ill. 97, 107) where, however, as in the instant case, the master alone heard the evidence and the chancellor adjudicated the cause on the "frozen record," there is no such unanimity of expression in the case law. Under these circumstances, some decisions have applied the manifest weight rule if the chancellor approves the findings of the master ( Schmalzer v. Jamnik, 407 Ill. 236; Mruk v. Mruk, 379 Ill. 394, 401; Klekamp v. Klekamp, 275 Ill. 98, 102; McGlaughlin v. Pickerel, 381 Ill. 574, 583; Pasedach v. Auw, 364 Ill. 491, 496); while others insist that all the facts are open for consideration on review, particularly if the chancellor rejects the master's findings. ( Stasch v. Stasch, 355 Ill. 581, 583; Jones v. Koepke, 387 Ill. 97, 107; Vesolowski v. Vesolowski, 403 Ill. 284; Zilvitis v. Szczudlo, 409 Ill. 252; Chechik v. Koletsky, 311 Ill. 433; Kosakowski v. Bagdon, 369 Ill. 252, 258; Kelly v. Fahrney, 242 Ill. 240; Fairbury Union Agricultural Bd. v. Holly, 169 Ill. 9; Thatcher v. Kramer, 347 Ill. 601). These decisions reiterate the rule that the master's report, while prima facie correct, is of an advisory nature, and that all the facts in a chancery case are open for consideration in the first instance by the trial court, and, in case of an appeal, by the reviewing court, where the ultimate question is, "Was the decree rendered by the court a proper one under the law and the evidence?
The phrase, "properly support and maintain," certainly implies more than mere financial support although here there is practically no evidence of even that. It implies also personal care and attention by the parent having custody. In Mruk v. Mruk (1942), 379 Ill. 394, 41 N.E.2d 490, a 65-year-old native of Poland resident in Cicero had deeded certain property to his adult son in consideration of the son's promise to support and maintain him for the remainder of his life. In the opinion, the court stated (page 400):
The breach by the child as to matters of kindness and personal care may be so substantial and material as to render the performance of his agreement a thing substantially different from that contemplated and rescission is then a proper remedy." Mruk v. Mruk, 379 Ill. 394, 400, 41 N.E.2d 490. Bradecich v. Rivard, et al., 411 Ill. 214, 103 N.E.2d 367; Tysor v. Adams, 116 Va. 239, 81 S.E. 76. In this covenant the mode of life that the grantor had previously enjoyed was expressly recognized and the blood relationship and station in life of the contracting parties must be taken into account.
It is well established in our law that where the master has seen and heard the witnesses and his findings have been confirmed by the court, such findings will not be disturbed unless manifestly against the weight of the evidence. Finley v. Felter, 403 Ill. 372; Chambers v. Appel, 392 Ill. 294; Mruk v. Mruk, 379 Ill. 394. We have examined this record carefully and find a great deal of indecision on the part of the appellant as to his desire to sell the property.
In a case such as this a grantor is not entitled to the cancellation of a deed unless he shows by material evidence that the grantee failed in some substantial respect to comply with the obligation of his contract. Furthermore, a grantee cannot be held responsible for failure to comply with the terms of the contract if a grantor, without sufficient cause, makes performance impossible. For cases presenting features similar to those in the instant case, see Moore v. Bugg's Ex'r, 274 Ky. 135, and Mruk v. Mruk, 379 Ill. 394. After consideration of all the evidence in the record before us we are unable to say that the trial justice was clearly wrong in dismissing the bill. The complainant's appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.