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Uksas v. Zelensky





APPEAL from the Superior Court of Cook County; the Hon. GROVER C. NIEMEYER, Judge, presiding.


Defendants, Marie Zelensky and John Zelensky, have appealed directly to this court from a decree of the chancellor of the superior court of Cook County overruling the master's report and requiring defendants to convey to plaintiff certain property allegedly acquired from plaintiff by false representations and undue influence.

The essential issue is whether the findings and conclusions of the chancellor, overruling those of the master, who saw and heard the witnesses, are supported by the evidence and in accordance with law.

In reviewing the record, it appears that there are certain uncontroverted facts. Plaintiff, age 67 at the date of the trial, came to the United States from Lithuania in 1909, and has been a citizen for the past fifteen years. On August 23, 1913, she married Joseph Uksas, a widower who had a nine-year-old child, the defendant Marie Zelensky. Plaintiff and Uksas had two other children who died in childhood. When Marie was fourteen years old she went to work and gave her earnings to her father. She lived with her father and plaintiff until she married John Zelensky on February 2, 1922. They continued the close family relationship which had obtained through the years, whereby plaintiff treated Marie as her daughter and Marie treated plaintiff as though she were her real mother, according to the testimony of all the parties, as well as that of Della Winkus, plaintiff's sister, who lived with the family since 1916. They all visited frequently, and John Zelensky helped with repairs and maintenance of the family home.

In July, 1924, plaintiff and her husband, Joseph Uksas, purchased as joint tenants a vacant lot located at 4512 S. Washtenaw Avenue in Chicago, on which they constructed a two-flat brick building and a two-car frame garage. Plaintiff, her husband, and her sister occupied the first floor, and the upper floor was rented. Plaintiff was employed during most of her married life, and was a janitress or maid in a hotel on Michigan Avenue for some 19 1/2 years. Joseph Uksas was also employed, and they put their savings in joint accounts. At the date of the death of Joseph Uksas on February 10, 1957, at the age of 81, these savings accounts included $2,700 in Columbus Building & Loan Association, $6,050 in Brighton Savings & Loan Association, and $2,440 in Standard Savings & Loan Association. The flat building had a valuation of approximately $18,000 and was free of encumbrances. Joseph Uksas left surviving as his heirs-at-law his widow, the plaintiff herein, and his daughter, Marie Zelensky, hereinafter referred to as the defendant.

It appears further that plaintiff gave defendant the savings account books the evening of the day Joseph Uksas died, and that two days later, February 12, 1957, they were driven by the granddaughter (defendant's daughter) to the offices of the savings and loan associations, where plaintiff closed the accounts and obtained checks payable to herself for all the monies on deposit. Plaintiff then asked defendant to hold the unendorsed checks at her home so that plaintiff's sister would not know about them. On February 18, 1957, plaintiff and defendant were driven by the granddaughter to the Public Savings & Loan Association and to Talman Federal Savings & Loan Association, where joint accounts were opened in the names of plaintiff and defendant. Plaintiff also went to the Western & Southern Life Insurance Company, where she changed the beneficiary on her $1,000 life insurance policy, dated August 11, 1925, from her husband to defendant.

The evidence is controverted respecting the motivation and circumstances surrounding the creation of these joint accounts and the joint tenancy in the property. Plaintiff claims she took the money out of the three "bank accounts" because Marie said the government would close them up. She testified that she spoke very little English, that she didn't know that Marie and she were on the accounts, that Marie told her they were to check on the real estate and she brought the house papers to the bank; that nobody at the banks talked to her; that she didn't know what a deed was or what joint tenancy means.

On cross-examination, however, plaintiff explained that she and her husband bought the property together in joint tenancy, and that she held the papers. If he died, she owned it, and if she died he owned it, and that they had everything that way, including their savings accounts. With respect to her knowledge of English, it appeared from her testimony as an adverse witness that she had voted in elections, travelled to work and shopped alone, and that her supervisors at work over the years spoke to her only in English. Moreover, the granddaughter, age 33, testified that plaintiff always spoke to her in English, and that she read American newspapers.

In sharp contrast to plaintiff's account of the events, defendant testified that when plaintiff first gave her the "bank books," plaintiff said that she wanted the money taken out and put in both names, and that when defendant returned "the papers," plaintiff said "Now is a good time to have the title put on me and you." Defendant explained that her stepmother said that she wanted Marie to have everything when she (plaintiff) died, and that the joint accounts were opened at plaintiff's request, and according to the plan which plaintiff and her father had discussed in her presence on several specific occasions. They had agreed that when Joseph Uksas died plaintiff would then hold the property with Marie, who would take care of plaintiff, and that on her death all of the property would go to Marie. Although plaintiff denied any such family discussions, she did admit that it was agreed that the property was to go to Marie after plaintiff died.

William Ropa, an executive officer at Public Savings & Loan Association, testified on defendant's behalf. He stated that plaintiff told him that she wanted a savings account in joint tenancy with her stepdaughter, and that he asked the office girl to bring the necessary forms. He had seen defendant in the institution previously, but did not know her personally and had no previous knowledge of the purpose for which plaintiff and defendant were there. While he could not recall the exact conversation, he did remember that plaintiff spoke to him in English and looked at the joint account cards before she signed them, and that she also wanted a joint tenancy on the property with her daughter. "Mrs. Uksas wanted Mrs. Zelensky to have all the real estate on her death — that sticks in my mind." He spent about an hour talking to them about the joint accounts and the joint tenancy.

Walter Rojek, the association attorney to whom plaintiff and defendant were referred in connection with the deeds, also testified on defendant's behalf. He said that he first answered plaintiff's inquiries about her rights to the contents of a safety deposit box which her husband had held with her sister, and then explained to plaintiff that if she placed the property in joint tenancy the survivor would get the property, and that she could never sell it unless her daughter and son-in-law joined in the conveyance. After the entire conversation, which extended for about 45 minutes, he asked her whether she wanted a joint tenancy. She indicated that she did, and said that they had all worked for the property. His notes of this discussion, made in the course of business in order to prepare the papers, were available at the trial. He testified further on cross-examination that all the conversation with plaintiff was in English, and that she "understands it very well."

Quitclaim deeds were prepared under his supervision, whereby the property was conveyed by plaintiff to a spinster, who, in turn, conveyed it to plaintiff and defendant in joint tenancy. A fee of $125 for preparing the documents was paid by defendant. She was subsequently paid this exact amount by plaintiff, who at first denied giving the money and then claimed that it was a gift.

The manager of special services who prepared the signature cards at Talman Federal Savings & Loan Association testified that she talked to both plaintiff and defendant in English, and that there was no need to request language assistance from the employees available for such purpose.

Following the creation of the joint accounts and joint tenancy, the parties continued their close relationship. According to plaintiff's admission, defendant and her husband drove plaintiff everywhere, and defendant's husband helped with the house repairs. In April, plaintiff gave $25 to each of defendant's children, and gave the $125 to defendant. Plans were made, according to the testimony of defendants and their daughter, for the rental of the upstairs apartment by the daughter and her husband. They had formerly lived there and paid rent before the husband was ...

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