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Frey v. Wubbena

OCTOBER 31, 1961.

LEONA FREY AND ROSANNA DIETMEIER, PLAINTIFFS-APPELLANTS,

v.

MARTHA WUBBENA AND HERMAN GREENFIELD, EXECUTOR OF THE ESTATE OF HERMAN E. WUBBENA, DECEASED, DEFENDANTS-APPELLEES. MARTHA WUBBENA, APPELLEE,

v.

LEONA FREY AND ROSANNA DIETMEIER, APPELLANTS.



Appeal from the Circuit Court of Carroll County; the Hon. LEON A. ZICK, Judge, presiding. Decree affirmed.

DOVE, J.

On August 31, 1957 Herman E. Wubbena, 60 years of age, died testate leaving him surviving his widow, Martha Wubbena, and his two daughters, by a previous marriage, Leona Frey and Rosanna Dietmeier, his sole and only heirs at law. At the time of his death he was the owner of 160 acres of land in Carroll County and a substantial amount of personal property. His will was duly admitted to probate but his widow, within six weeks after her husband's death, filed her renunciation and election to take under the statute.

On October 13, 1958 the daughters, Leona Frey and Rosanna Dietmeier, filed, in the circuit court of Carroll County, their complaint for partition making their step-mother and the executor of their father's will defendants. Martha Wubbena answered admitting the allegations of the complaint for partition and filed her counterclaim.

Attached to the counterclaim and made a part thereof, was a list of securities and investments which the counterclaim alleged Herman E. Wubbena acquired without the knowledge of his wife, or daughters, also a list of deposits which he made in various financial institutions, all in his name and the name of his daughters. It was alleged that the moneys used to make all the deposits and investments were the separate assets of Herman E. Wubbena; that at all times during his lifetime, decedent exercised full, complete and sole control over said investments, securities and deposits and also over the safety-deposit bank boxes in which they were held for safe-keeping. It was further alleged that upon the death of Herman E. Wubbena all these securities and deposits came into the possession and control of the executor of the will of said decedent. The counterclaim prayed, that the court decree all such deposits and securities to be a part of the Estate of Herman E. Wubbena and averred that they should be distributed by the executor according to the provisions of the last will of decedent and according to the intestate laws of this state. Replies to the counterclaim were filed and the issues made by the pleadings were submitted to the chancellor for determination. At the conclusion of the hearing a decree was rendered in favor of the counterclaimant, Martha Wubbena, the widow of Herman E. Wubbena, deceased, and the daughters of decedent appeal.

At the hearing it was stipulated that an amicable public sale of the land would be had on or before June 30, 1960 and only the issues made by the counterclaim and reply should be determined by the chancellor. The parties also stipulated that at the death of Herman E. Wubbena he was possessed of joint savings accounts in Livestock National Bank of Chicago, Federal Savings and Loan Association, First National Bank of Freeport, State Bank of Freeport, American Savings and Loan Association and State Bank of Shannon; that he was also possessed of a joint checking account in Forreston State Bank of Forreston and also held three promissory notes, one signed by Harvey Wubbena, one signed by Cornelius and Ethel Hayenga and the third by Harley and Ardis Motter.

It was further stipulated that at the time of the death of Herman E. Wubbena he had safety deposit boxes in the State Bank of Shannon, Illinois and in the State Bank of Freeport, Illinois under registration with his daughters, Leona Frey and Rosanna Dietmeier; that in the safety deposit box in the State Bank of Shannon was a certificate of deposit dated March 13, 1957 payable to Herman E. Wubbena for $1,000; another certificate of deposit dated January 2, 1957 payable to Herman E. Wubbena and/or Leona Frey and/or Rosanna Dietmeier for $10,000; a note dated July 20, 1955 payable to Leona Frey and Rosanna Dietmeier executed by Lillian G. and Helen M. Spratler upon which interest had been paid to July 20, 1957 and upon which there was a balance due of $1750; a note dated May 12, 1956 due May 12, 1957 with 4% interest, executed by Orin L. Barton and payable to Herman E. Wubbena; two certificates dated February 16, 1953 issued by the First State Bank of Shannon, one evidencing that Herman E. Wubbena and Leona Frey as joint tenants with right of survivorship and not as tenants in common were the owners of 40 shares of the capital stock of the First State Bank of Shannon and the other certificate evidencing that Herman E. Wubbena and Rosanna Dietmeier were the owners of 40 shares of the capital stock of said bank as joint tenants with right of survivorship and not as tenants in common; a savings account book issued by the First State Bank of Shannon to Herman E. Wubbena and/or Leona Frey and Rosanna Dietmeier showing a $300 balance and a checking account book issued by the said First State Bank of Shannon to Herman E. Wubbena and/or Leona Frey and Rosanna Dietmeier indicating a balance of $136.40. In this safety deposit box in the Bank of Shannon were also fourteen United States Bonds issued to Herman E. Wubbena, upon three of these bonds the name of Herman E. Wubbena appeared followed by the words and letters, "P.O.D. Leona Frey." Upon another, following the name, Herman E. Wubbena were the letters and name, "P.O.D. Rosanna Dietmeier." Two bonds were payable to Herman E. Wubbena or Leona Wubbena, two were payable to Herman E. Wubbena or Rosanna Wubbena and the remaining six were payable to Herman E. Wubbena. Of these remaining bonds two were "E" Bonds, two were "G" Bonds and the others were "E" Bonds.

It was further stipulated that at the time of the death of the said Herman E. Wubbena there were, in the Safety Deposit Box at the State Bank of Freeport, the following documents, viz: a savings account passbook issued to Herman E. Wubbena, Leona Frey and Rosanna Dietmeier by the Ogle County National Bank indicating a credit of $309.86; a savings account passbook issued by the American Savings and Loan Association in the name of Herman E. Wubbena, Leona Frey and Rosanna Dietmeier with right of survivorship, indicating a balance of $6956.34; one note for $3475 signed by Harvey Wubbena, dated March 1, 1956, due one year after date bearing 3% interest and payable to Herman E. Wubbena, Leona Frey or Rosanna Dietmeier jointly or survivor; one note for $400 signed by Harley L. and Ardis M. Motter, dated July 31, 1953 bearing 3% interest and payable to Herman E. Wubbena and Leona Frey and Rosanna Dietmeier jointly or survivor; one note dated January 1, 1953 for $7000 signed by Cornelius F. and Ethel Hayenga payable to Herman E. Wubbena, Leona Frey and Rosanna Dietmeier jointly or survivor; two savings passbooks issued by the Home Federal Savings and Loan Association of Chicago, one issued in the name of Herman E. Wubbena, Leona Frey and Rosanna Dietmeier with right of survivorship indicating a credit of $3045.31, the other issued in the name of Herman E. Wubbena, Leona Frey and Rosanna Dietmeier jointly with right of survivorship indicating a balance of $3224.22; certificate #78, issued by the North West Company indicating that Herman E. Wubbena and Rosanna R. Wubbena with right of survivorship, are the owners of 5 shares of the common stock of that company; certificate #419, issued by the Ogle Service Company indicating that Herman E. Wubbena and Leona Frey with right of survivorship, are the owners of 40 shares of the stock in that company; certificate C-6784, issued by National Terminals Corporation indicating that Herman E. Wubbena and Leona Frey with right of survivorship, are the owners of 100 shares of stock in that company; certificate CO-44581, issued by Central Illinois Electric and Gas Company, indicating that Herman E. Wubbena and Rosanna Dietmeier with right of survivorship, are the owners of 50 shares of the capital stock of this company; certificate #P-0573, indicating that Herman E. Wubbena and Rosanna R. Dietmeier are the owners of 5 shares of the preferred stock of General Steel Castings Company; certificate NYO-54249 issued by the American Natural Gas Company, indicating that Herman E. Wubbena and Rosanna R. Dietmeier with right of survivorship, are the owners of 60 shares of the common stock of that company; a savings passbook issued by the Livestock National Bank of Chicago to Herman E. Wubbena, Leona Frey and Rosanna Dietmeier, jointly with right of survivorship, indicating a balance of $3249.73; a savings passbook issued by the First National Bank of Freeport, indicating a credit of $3965.69 to Herman E. Wubbena, Leona Frey and Rosanna Dietmeier, jointly with right of survivorship and also a savings passbook issued by the State Bank of Freeport to Herman E. Wubbena, Leona Frey and Rosanna Dietmeier, jointly with right of survivorship, in the amount of $3526.06.

It was further stipulated that Herman E. Wubbena had exclusive possession and control of the keys to the Safety Deposit Box in the State Bank of Shannon and that neither Leona Frey or Rosanna Dietmeier ever exercised any control over or had access to that safety deposit box. As to the safety deposit box in the State Bank of Freeport it was stipulated that Rosanna Dietmeier had in her possession the keys to that safety deposit box; that she did not, during the lifetime of her father, ever exercise any control of this bank box or any of the securities therein; that she never made any entrance into the safety deposit boxes during the lifetime of Herman E. Wubbena and that she knew nothing about the contents of the boxes and that Herman E. Wubbena retained the ability to obtain access to the safety deposit box in the State Bank of Freeport.

It was further stipulated that neither Leona Frey or Rosanna Dietmeier ever made any deposits or withdrawals from any bank accounts carried in the name of them or either of them with the said Herman E. Wubbena. It was further stipulated that neither daughter ever contributed anything toward the purchase price of any of the securities or knew of their existence until after the death of their father; that said bank accounts were initiated by Herman E. Wubbena and that all deposits in all accounts were the sole and separate moneys of Herman E. Wubbena; that all signature cards in connection therewith were signed by the daughters at the request of their father without any knowledge, by the daughters, as to the amount of such accounts. It was further stipulated that Herman E. Wubbena and his wife, for the calendar years 1952 through 1956, made joint income tax returns and that Herman E. Wubbena never filed any gift tax return or paid any gift taxes to the United States. It was further stipulated that Herman E. Wubbena carried life insurance for the benefit of his daughters in substantial amounts.

The record shows that the Harper Elevator Company was a partnership, that Herman Wubbena was secretary-treasurer thereof and he, as such officer on November 30, 1955 executed a certificate or receipt in the sum of $2,500 which recited, "for 25/100 interest in the Harper Elevator Company to Herman E. Wubbena, Leona Frey and Rosanna Dietmeier, jointly or either survivor"; that on December 15, 1944, he had issued a similar receipt or certificate and the only difference in the two instruments was that the 1944 certificate was issued to Herman E. Wubbena, Leona Wubbena and Rosanna Wubbena while the 1955 certificate was issued to Herman E. Wubbena, Leona Frey and Rosanna Dietmeier. Harry M. Fager testified upon the hearing that at the time these certificates were issued, he, Fager, was manager of the Elevator Company, and that Herman E. Wubbena told him he, Wubbena, "was fixing it so the girls would get it." The daughters never had possession of these receipts or certificates and never knew of their existence until after their father's death.

F.L. Wittenmeyer testified that he was Secretary-Treasurer of the American Savings and Loan Association; that in 1947 when decedent opened his account in that association he talked to decedent who wanted to know something about a joint tenancy account and stated that his wish was that his two daughters go on the account with him as joint tenants and that the proceeds would be paid to his survivors; that the passbook was delivered to decedent who always had it and nobody else ever used it; that he usually left the interest in the account to accumulate and if there were any withdrawals he made them.

Cornelius Hayenga testified that he had known decedent all his life and had had various business transactions with him; that on January 1, 1953 decedent prepared a note for $1000 due one year from date; that witness signed the note and paid the interest to decedent who told him, in a conversation at the time the note was executed in 1953, that if anything happened to decedent, he wanted the money to go to his daughters. The record further discloses that the several transactions in connection with all the promissory notes were conducted by decedent; that it was his money that was loaned and it was to him that interest was paid.

The decree found that the several savings and checking accounts, promissory notes and certificates of stock were the property of the estate of Herman E. Wubbena and not the property of Leona Frey or Rosanna Dietmeier. The decree directed the counterdefendants to assign and transfer to the executor of the will of Herman E. Wubbena the several described securities and assets listed in either or both of their names. The decree also found that certain described government bonds were the property of Rosanna Dietmeier and Leona Frey and directed the executor to deliver these bonds to these counterdefendants.

Counsel for appellants insist that title to the checking and savings accounts in the banks and loan associations, and title to the several promissory notes and to the other securities became vested in appellants as joint tenants with their father at the time the joint accounts were opened, at the time the several notes were executed and at the time the other securities were issued by the several corporations and partnership in the joint names of decedent and his daughters. Counsel state that lack of knowledge by appellants of the amounts of money deposited in the several joint tenancy accounts and lack of knowledge of the securities and contents of the bank deposit boxes is immaterial; that upon the death of Herman E. Wubbena, his daughters became entitled to ...


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