Appeal from the Circuit Court, County Department, Probate
Division, Cook County; the Hon. JOHN S. PETERSON, Judge,
presiding. Order affirmed.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
This is a citation proceeding for the recovery of the proceeds of two savings accounts alleged to have been the property of Elizabeth LaRue, hereinafter referred to as decedent. After hearing, the court entered an order directing the respondent, Earl LaRue, decedent's son, to pay over to the estate a sum of money equal to the amount on deposit in the accounts at the time they were opened, less credits for expenditures made by respondent from the accounts on behalf of the decedent.
In March or April of 1962, decedent moved into the home of respondent and lived with respondent's family until her death on October 10, 1962. Decedent underwent a cataract operation on her eye prior to March, 1962, and was also ailing with arthritis. Prior to the time she moved into respondent's home, decedent lived in an apartment below her daughter, Bernice Berman, the petitioner herein and executrix of decedent's estate. The building in which decedent previously lived was owned by her and petitioner in tenancy in common. Decedent also had another child, Raymond LaRue, who lives on the West Coast.
The two savings accounts were originally in the names of decedent and her son Raymond as joint tenants. The names on the account at the First Federal Savings & Loan Association, which had a balance of $8,098, were changed to decedent and respondent as joint tenants with right of survivorship on April 23, 1962. Respondent withdrew all of the funds from this account on May 8, 1962. The names on the account at the Continental Illinois National Bank & Trust Company of Chicago, which had a balance of $9,399.24, were changed to decedent and respondent as joint tenants with right of survivorship on May 3, 1962. At various times prior to the death of decedent, respondent withdrew all of the funds from this account, and it was closed on October 10, 1962, the day of decedent's death.
Respondent was allowed to testify at the citation hearing that the names on the accounts were changed to his and decedent's after she told him to use the money for her expenses and to spend it as he saw fit; respondent identified decedent's signatures on the account signature cards. With the money from the accounts, respondent built an additional room onto his house for decedent, furnished the new room, purchased a special television set for decedent equipped with a hearing device, purchased a hearing aid, and employed a nurse to take care of decedent. Respondent further stated that of the $17,000 in the accounts at the time they were opened in his and decedent's names, he had spent all but some $2,000 thereof by the time decedent died.
The court allowed respondent to make an offer of proof after refusing to allow him to testify to conversations with decedent to the effect that the funds in the accounts were a gift from decedent to respondent. The offer of proof was substantially that decedent told respondent that both of the accounts were to be used for her expenses during her lifetime and that the balance, if any, at her death was to be respondent's in consideration for taking care of her; that on another occasion, decedent told respondent that the Continental account was to be used for her expenses and that the balance at her death was to be his; and that decedent reminded respondent of prior litigation involving petitioner and decedent's deceased husband, saying, "You know your sister." The court refused to allow this as evidence on the grounds that Section 2 of the Evidence Act (Ill Rev Stats 1961, c 51, § 2) barred him from testifying to conversations with the decedent since he had an interest in the outcome of the controversy, and also since the testimony was self-serving and therefore not acceptable.
Bernice Berman testified that there had always been a friendly feeling between her and decedent; that she attempted to visit decedent while she lived with respondent but was unable to get into the house; that a short while before decedent moved into respondent's home, decedent stated that she wanted all of her property divided equally between the three children; and that decedent told her that she wanted to live with respondent because it was about time that respondent did something for her.
Mrs. Berman identified a statement in respondent's handwriting purporting to be a distribution of the proceeds of decedent's estate. Listed in the statement were the items of funeral expenses, money left, cash left, and insurance policy proceeds. The statement showed a balance of $1,030.75, after funeral expenses, as "money to share 3 ways," and which was divided into "$343.58 for each." At the bottom of the statement appears the notation: "I took my $343.58 as I needed it." Respondent later testified that the statement represented an accounting of the money left in the Continental account.
Emma Lynch testified for respondent, stating that she was a close friend of decedent for some forty years prior to decedent's death. She stated that decedent was happy living with respondent; that decedent said respondent was a "good boy"; that whenever decedent would talk about Mrs. Berman she, decedent, would get upset and cry; that about four years prior to the trial decedent told her that Mrs. Berman drew a line down the center of the basement and told decedent to stay on her own side; that decedent spoke to her of the children on a number of occasions; that decedent told her that Raymond had borrowed some money from her and had not repaid it; and that the last time she spoke to decedent was after decedent had moved into respondent's home and had acquired the new hearing aid. Mrs. Lynch was never asked whether decedent had spoken to her of the gifts allegedly given to respondent.
Decedent executed a Last Will and Testament in November of 1961, some five months prior to moving into respondent's home, in which she divided all of her property equally between the respondent, the petitioner, and Raymond.
The court found that the signatures on the account signature cards were different from that on the Will; that no evidence was offered as to decedent's intention at the time the account cards were signed nor were there any witnesses to the signatures other than respondent; that respondent's offered testimony was self-serving and therefore unacceptable; and that his testimony was barred by Section 2 of the Evidence Act. Respondent was ordered to turn over all the funds originally in the accounts, less credits for expenditures made by him on behalf of decedent. It is from this order that respondent appeals.
Respondent maintains in the alternative that, since all of the funds in both accounts had been withdrawn prior to the death of decedent, no question of survivorship arose, but at most only the question of a debt owing to the estate, the resolution of which question is unavailable in citation proceedings; or, that petitioner did not show that respondent acquired the proceeds of the accounts by such conduct which would lead a court to set aside an executed gift. Neither position is tenable.
As to the first alternative, the fact that no survivorship question is technically presented is immaterial. By his own testimony respondent established that a fiduciary relationship existed between him and decedent as to the funds in question: he was to use the funds for decedent's expenses during her lifetime. The question of a debt owing to the estate therefore does not arise, since the change of names on the accounts did not constitute a loan to respondent but was done simply to place the funds at respondent's disposal for decedent's convenience. No debtor-creditor relation came into existence. Any withdrawals during decedent's lifetime by respondent for his own purposes constituted a conversion of the funds and consequently gave the Probate Court jurisdiction over the matter. Ill Rev Stats 1961, c 3, § 183; In re Estate of Willich, 338 Ill. App. 289, 87 N.E.2d 327.
Respondent's second alternate position likewise must fail for the reason that, by his own offer of proof, no inter vivos gift was intended by decedent, if in fact any gift was intended at all. The offer of proof was to the effect that the funds were to be used by respondent for decedent's expenses during her lifetime and the balance, if any, was to be respondent's on her death. At most can it be said that, if this was what had transpired between respondent and decedent, it was decedent's intention that title to the funds pass only at ...