APPEAL from the Circuit Court of Adams County; the Hon. FRED
G. WOLFE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
The Illinois Public Aid Commission appeals directly to this court under the provisions of section 75 (1) of the Civil Practice Act (Ill. Rev. Stat. 1957, chap. 110, par. 75) from an order of the circuit court of Adams County affirming the county court of that county in its dismissal of a citation to discover assets.
The sole question presented by this appeal is whether a joint tenancy in personal property with right of survivorship has been created where the proceeds of a sale of real estate held in joint tenancy have immediately and directly been deposited in a safety-deposit box theretofore rented by all of the vendors of the realty under a "joint tenancy" rental agreement.
For many years Jewell Stille, herein referred to as respondent, and Christian Stille, her late husband, had established a practice of trading one property for another, taking title as joint tenants with right of survivorship in each instance. Each of these properties had been acquired through the efforts and earnings of both parties. The last of the properties thus held by them was an improved lot in the city of Quincy.
In July of 1951 this property was sold, and the sale proceeds immediately placed in a safety-deposit box previously leased by respondent and her husband. The contract for rental of the box provided in part "that all property of every kind at anytime heretofore or hereafter placed in the box is the joint property of both lessees and upon the death of either passes to the survivor." About six months thereafter, Christian Stille died. Mr. Stille had been a recipient of old age assistance, and the Illinois Public Aid Commission filed a claim against his estate for the amount of assistance furnished. The assets inventoried in the estate were insufficient to satisfy the claim.
The commission filed a petition for citation to discover assets. The theory of the petition was that the contents of the safety-deposit box were, to the extent of one half of the currency found therein, a part of Stille's estate.
Jewell Stille was successful in resisting the petition in the county court, and a similar result was reached on appeal to the circuit court. This appeal followed.
It is the theory of the commission that upon the death of Stille, the respondent did not acquire sole title to the money within the safety-deposit box for the reason that, the commission submits, there has been no compliance with the relevant statute. Ill. Rev. Stat. 1957, chap. 76, par. 2.
The statute provides in essence, and subject to exceptions not here material, for abolition of the right of survivorship as between joint tenants, unless the joint tenancy shall have been created by an instrument in writing expressing an intent to create a joint tenancy in personal property with the right of survivorship.
The phraseology of the lease involved in this case leaves no doubt that the language relied upon by respondent was intended merely to protect the lessor against possible actions based upon a claim arising out of an unauthorized withdrawal of the contents of the box by one of the lessees. This court has previously held that such a lease does not satisfy the statutory requirement for the creation of the right of survivorship. The lease does not of itself serve to establish rights as among the lessees of the safety-deposit box; its sole office is the definition of the rights of the lessees as a group, as against the lessor of the box. Accordingly, such a lease is not an "instrument in writing expressing an intention to create a joint tenancy" as required by the statute. In re Estate of Wilson, 404 Ill. 207, 212.
It is contended by the respondent that the doctrine of the Wilson case does not apply to these facts. There is an attempt to distinguish the Wilson case by pointing out that in Wilson, the fund was an accumulation of deposits of undefined amounts from time to time, and all such funds had been earned by the deceased cotenant. The distinction is not compelling. In the instant case, as in Wilson, the record discloses no transfer of funds by written instrument expressing an intention to create the right of survivorship; and such transfer is indispensable.
Respondent ably discusses the underlying principles of joint tenancy. However, as we pointed out in the Wilson case, these principles are not necessarily involved in a proceeding such as this one. The question presented for review is not whether a joint tenancy has been created between the appellee and her husband. Assuming, but not deciding, that a joint tenancy exists, the issue here presented is whether the incident of survivorship is one of the features of that joint tenancy. The statute above cited addresses itself solely to the incident of survivorship, and has no application in determining the nature of the estate created except in respect to survivorship.
At first blush, it may appear that to term an estate a joint tenancy, where the feature of survivorship is not present, is a play upon words. But the name applied to an estate is of less importance than the legal significance of the estate. Generically, the term "joint tenancy" has assumed two distinct meanings. The first of these is a joint-tenancy estate under orthodox property law, wherein the term is almost never used if the estate does not include the feature of survivorship. The second, and quite distinct use of the term "joint tenancy" is its application to bank deposits and the contents of safety-deposit boxes. 42 Iowa Law Review, 551, 562.
It is the practice in most jurisdictions to apply rules analogous to those of orthodox property law to the estates created in bank and safety-vault deposits. The usual course is to class the problem as one involving certain of the recognized legal transactions, and then to apply a solution based upon the application of the law relating to such transactions. Thus, in various jurisdictions, the estate is defined in terms of testamentary transfers, gifts, trusts, cotenancy, ...