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In Re Estate of Joseph

MARCH 1, 1961.

IN THE MATTER OF THE ESTATE OF SAUL JOSEPH, DECEASED. DONALD EARL JOSEPH, RESPONDENT-APPELLANT,

v.

DOLLY JOSEPH, AS ADMINISTRATOR, PETITIONER-APPELLEE, EXCHANGE NATIONAL BANK OF CHICAGO, ET AL., RESPONDENTS-APPELLEES.



Appeal from the Probate Court of Cook county; the Hon. ROBERT J. DUNNE, Judge, presiding. Reversed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

Dolly Joseph, the administrator of the estate of her husband, Saul Joseph, brought a citation proceeding in the Probate Court against her stepson, Donald Joseph. One of the purposes of the citation was to determine the right to a $3,000.00 savings account at the Exchange National Bank of Chicago, which was in the name of Saul Joseph, trustee. The respondent answered that the money was being held for him in trust by his father, the decedent. An assistant to the Judge of the Probate Court ruled that the deposit form at the bank was a mere tentative trust and did not comply with the Statute on Wills. He held that the money was the sole property of the father and ordered it delivered to the administrator. The appeal was taken directly to this court under section 329 of the Probate Act. Ill. Rev. Stat., ch. 3, para. 483 (1959).

The account was opened at the Exchange bank on September 26, 1958. The deposit agreement stated:

"All deposits in this account are made for the benefit of Donald Joseph 2947 N. Fairfield Name of Beneficiary Residence

To whom or to whose legal representative said deposits or any part thereof, together with the interest thereon, may be paid in the event of the death of the undersigned Trustee.

Mail Yes [] No [] /s/ Saul Joseph Trustee /s/ Donald Joseph"

There must be hundreds of individual trust accounts in Chicago banks which have used this or similar forms. Countless depositors, who have the right to make withdrawals at will and to close out their accounts, have designated themselves as trustees in the belief that the beneficiary named by them will receive whatever balance remains in their accounts at their deaths. That so few cases involving these accounts have reached our reviewing courts is surprising and is evidence of their general acceptance. However, precedent and the facts of the instant case make it unnecessary for us to consider the many problems involved in these accounts — problems that are more difficult than their widespread usage would suggest and which have caused the courts of other states to arrive at varied results.

Donald Joseph, who was called by the petitioner, was one of three witnesses at the hearing. He testified he and his father had an account at the Aetna State Bank in Chicago from January 1950 to September 1958, in which both were depositors. He said the account was opened with $900.00, which belonged to him, and that over the years he had put in an additional $4,500.00 of his own money but had received none in return. The account was closed on September 26, 1958, at the suggestion of the father (who died on October 24, 1958) because of the higher interest available at the Exchange bank. The balance was then $4,616.56; of this $1,616.56 was redeposited at once at the Aetna bank and $3,000.00 was deposited in the new account at the Exchange bank. The petitioner, who married the decedent in 1954 and who was his fourth wife, testified that she didn't know much about her husband's business but knew of the Aetna account. Her husband informed her of the $3,000.00 withdrawal but did not tell her it was redeposited; he told her he bought bonds with it. She corroborated the respondent in this important respect: "I never went to the bank with him [the decedent]. He showed me the interest he got. — That was his boy's and his money." The respondent was also corroborated by Harold S. Novak, an assistant trust officer at the Exchange bank, who said that before opening the account, the decedent talked to him about the trust and inquired about the interest rate.

[1-3] The bank records also supported the respondent. They showed the Aetna account was closed and the funds redeposited as he said. The validity of a trust is to be determined as of the time of its creation. If the money in the Aetna bank was in a trust then that portion of it transferred to the Exchange bank would also be subject to trust, irrespective of the form of the deposit at the latter bank. The trust res, if capable of identification, may be followed by the beneficiary into any and all the forms it may assume. Winger v. Chicago City Bank & Trust Co., 394 Ill. 94, 67 N.E.2d 265; Coddington v. Bevan, 315 Ill. 92, 145 N.E. 801; Moore v. Taylor, 251 Ill. 468, 96 N.E. 229. Therefore, we must first look at the deposit arrangement at the Aetna bank, which was the source of the $3,000.00 fund. This was in the following form:

"Joseph, Donald By Single Trustee Acct. Joseph, Saul No. 126548 trustee

AETNA STATE BANK Declaration of Trust

Dated 1-16-50

Saul Joseph . . . . . . . . . . . . . . . ., herein called the `Trustee' hereby makes known and declares that . . . he holds all moneys now and hereafter deposited in Account No. . . . . . . . . . . .,

in AETNA STATE BANK, in trust for Donald Joseph herein called the `beneficiary,' whose address is 2947 No. Fairfield; in. . . . . .; Birth date 9/23/1926; Father's name is Saul; Mother's name is Grace; and is a son of Trustee. (Relationship to beneficiary) During the lifetime of the Trustee all moneys now and hereafter deposited in said account shall be paid to or upon the order of the Trustee and, upon the death of the Trustee, all moneys deposited in said account shall be payable to or upon the order of the beneficiary, or to his legal representative. The said Bank shall not be responsible for, or required to see to the proper ...


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