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In Re Estate of Petralia

APRIL 23, 1964.

IN THE MATTER OF THE ESTATE OF ANTONIO PETRALIA, DECEASED. LEO PETRALIA, ADMINISTRATOR OF THE ESTATE OF ANTONIO PETRALIA, DECEASED, RESPONDENT-APPELLANT,

v.

DOMINICA DI MAGGIO, PETITIONER-APPELLEE.



Appeal from the Probate Court of Cook County; the Hon. CHARLES G. SEIDEL, Judge, presiding. Order affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order of the Probate Court of Cook County in a citation proceeding brought by Leo Petralia, Administrator of the Estate of Antonio Petralia, deceased, against Dominica Di Maggio. The Probate Court decreed that the proceeds of the savings trust account No. 36807 in The First National Bank of Chicago are the property of Dominica Di Maggio, the named beneficiary of the account; that the administrator of the estate of the depositor has no interest therein, and that said administrator turn the account's passbook over to the said Dominica Di Maggio.

The evidence adduced at the trial in the citation proceeding showed that on November 8, 1948 Antonio Petralia opened a savings account in The First National Bank of Chicago in the name of "Tony Petralia, Trustee." On the face of the signature card appeared the name and number of the account, the signature "Tony Petralia" with the designation "trustee" written on the next line, the date November 8, 1948 and certain other information obtained for the purpose of identifying the depositor. On the reverse side the following deposit agreement appeared:

"All deposits in this account are made for the benefit of Domenica Di Maggio

"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.

/s/ Tony Petralia Trustee"

Immediately under the agreement, on a line designated "trustee" appeared the signature "Tony Petralia." Also shown on the back of the card was an address, 226 W. Scott St., and the name "Mrs. Domenica Di Maggio" written in longhand followed by a date July 29, 1909, and the designation "daughter."

Although the name of the petitioner in the instant case appears as Dominica Di Maggio, and the name of the beneficiary as shown on the deposit agreement is Domenica Di Maggio, no issue has been raised as to this inconsistency.

There were numerous deposits into the account and withdrawals from the account from the time of its inception until the depositor's death on January 5, 1962. All of the deposits and withdrawals were made by the decedent himself. On the date of decedent's death there was a balance in said account of $17,189.15. The passbook for said account was in the possession of the decedent at the time of his death, and thence came into the possession of Leo Petralia, the administrator of the estate.

The appellant produced a witness at the trial in an effort to show that the decedent in setting up the savings account did not intend to create a trust. The witness was the decedent's nephew, who testified that he had a conversation with the decedent in which he stated that he had put his oldest daughter on his bank account to withdraw and put in money for him for his convenience because she worked downtown. The evidence, however, showed that all of the deposits and withdrawals were made by the decedent. The witness also said that he had asked the decedent what he was going to do with his money and that the decedent had said he was not worried, his children would divide it when he passed away.

The trial judge concluded that the above testimony was insufficient to establish lack of intent on the part of decedent to create a trust. He gave no credence to the testimony of this witness. The trial judge had the opportunity to observe the witness's demeanor while testifying, his candor or lack of candor, his possible interest, if any, and the like, and under the circumstances we do not feel that this court has the right to interfere with the conclusion reached by the trial court. Certainly, the statement that the daughter's name was placed on the account as beneficiary for the convenience of the decedent in the making of deposits and withdrawals was overcome by the fact that the decedent himself made all deposits and withdrawals.

Respondent's contentions here, as they were in the court below, are that in so far as the decedent attempted to use this account to pass the balance remaining at his death to the named beneficiary, it amounted to a testamentary disposition which failed to meet the requirements of the Statute of Wills; that the control which the settlor had over the account during his life rebuts any possible inference of a present interest in the beneficiary, and, unless the trust creates such an interest, it is illusory and invalid; and that the deposit in the savings account by the decedent in his own name as trustee for the petitioner, standing alone, was insufficient to establish a valid trust.

It is conceded that the language of the deposit card would not satisfy the requirements of the Statute of Wills, therefore, it is necessary for us to determine whether a valid trust was created by this document.

In Farkas v. Williams, 5 Ill.2d 417, 125 N.E.2d 600 the court was construing a declaration of trust in which the settlor-trustee reserved to himself the following powers: (1) the right to receive during his lifetime all cash dividends; (2) the right at any time to change the beneficiary or revoke the trust; and (3) upon sale or redemption of any portion of the trust property, the right to retain the proceeds therefrom for his own use. On page 421 the court said:

"If no interest passed to Williams before the death of Farkas, the intended trusts are testamentary and hence invalid for failure to comply with the statute on wills. . . . But considering the terms of these instruments we believe Farkas did intend to presently give Williams an interest in the property referred to."

And on page 422 the court said:

"It is difficult to name this interest of Williams, nor is there any reason for so doing so long as it passed to him immediately upon the creation of the trust. As stated in 4 Powell, The Law of Real Property, at page 87: `Interests of beneficiaries of private express trusts run the gamut from valuable substantialities to evanescent hopes. Such a beneficiary may have any one of an almost infinite variety of the possible aggregates of rights, privileges, powers and immunities.'"

In the Farkas case the court discussed the question as to when an inter vivos trust fails as an attempted testamentary disposition and on ...


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