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Adams v. Hoshauer

FEBRUARY 21, 1961.

WILLIAM L. ADAMS, JULIA M. ADAMS AND MILDRED MEADE, PLAINTIFFS-APPELLANTS,

v.

CHARLES A. HOSHAUER, AS ADMINISTRATOR OF THE ESTATE OF ODESSA VILLARS ADAMS, DECEASED, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Vermilion county; the Hon. HARRY I. HANNAH, Judge, presiding. Affirmed.

ROETH, JUSTICE.

Plaintiffs brought this suit against the administrator of the estate of Odessa Adams and her heirs to have $30,000.00 in cash held by the administrator impressed with a trust in favor of plaintiffs or to declare such sum to be the property of plaintiffs by reason of a gift from the deceased.

In 1957, Charles G. Adams died intestate, leaving as his only heirs, his wife, Odessa, two of the plaintiffs herein, and other persons not parties to this suit. The assets in his estate included a farm that passed 1/2 to Odessa and 1/2 to his other heirs, who were brothers and sisters and certain descendants of deceased brothers and sisters. By agreement of the heirs the farm was placed in the hands of an attorney for sale, with the understanding that the cash received was to be divided 1/2 to Odessa and the other 1/2 among the other heirs of Charles Adams. It was sold for $68,000.00, but before the funds, at least Odessa's share, could be transferred to her, she died. From the testimony it appears that Odessa had on several occasions advised plaintiffs of her wish that they receive the funds inherited by her from her husband's estate, after her death, at one time expressing the feeling that this property should pass to her husband's side of the family.

Approximately 5 days before her death she went to the hospital for an operation which was performed on the 21st of August 1958. Plaintiffs William Adams and Julia Adams, his wife, were with her on the 21st. A nurse who was present at the time testified she heard Odessa say she wished Bill and Julia Adams, two of the plaintiffs, to have $20,000.00 and Mildred Meade, the other plaintiff, to have $10,000.00. William Adams then prepared a paper, in longhand, that was signed in the presence of two witnesses. One witness signed in the presence of Odessa but the other did not sign it until after the operation, several hours later and out of the presence of Odessa and the other witnesses. The instrument so executed read as follows:

"Lakeview Hospital Danville, Ill. August 21, 1958.

To Whom it may Concern:

It is my desire that United States Savings Bonds, Series H, be purchased from my personal cash in the amount of Thirty Thousand Dollars ($30,000), and to show myself, Odessa V. Adams, as owner and first beneficiary of said Bonds, and to show as second owners and beneficiaries of said Bonds — divided in this manner:

Mildred Meade, R.F.D. #1, Alvin, Illinois, in the amount of Ten Thousand Dollars ($10,000); and William L. Adams and Julia M. Adams (husband and wife jointly) 1210 Sheridan, Danville, Ill., in the amount of Twenty Thousand Dollars ($20,000).

Signed Odessa Villars Adams 1314 N. Gilbert St., Danville, Illinois.

Witnessed by: Mrs. E.O. Kerby 516 Lafayette St., Lillian Reynolds 210 Brentwood Tilton, Ill."

The instrument was given to plaintiff William Adams, but obviously the "desire" of decedent to purchase bonds was not carried out. The other witness testified Odessa told her she was going to have "Bill make up a paper as to some of her wishes" and that she told Bill Adams, "You don't need this, and neither do the others but I want you to have it."

It appears from the evidence that in addition to the amount held by the attorney, Odessa had substantial other funds to purchase $30,000.00 of bonds. At the time the instrument was executed, the attorney holding the funds from the sale of real estate was out of the state and he did not return. He died on the same date Odessa passed away. It also appears that Odessa had remarked on several occasions her preference for the plaintiffs over her heirs and even the preference of her husband's heirs over her own as beneficiaries of so much of her estate as she obtained from her late husband.

The lower court found for the defendants, holding the instrument, as well as the other evidence, failed to establish either a trust or a gift to the plaintiffs.

Plaintiffs contend that the intention and desire of the deceased to benefit plaintiffs as expressed in the instrument executed and delivered by her, should be carried ...


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