Appeal from the Circuit Court of Cook County, County
Department, Probate Division; the Hon. JAMES M. CORCORAN, Judge,
presiding. Order affirmed in part, reversed in part and remanded
for further proceedings.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order of dismissal, entered at the close of petitioner's evidence, in a citation proceeding brought pursuant to the Probate Act.
Petitioner, Frank T. Platka, Jr., testified that he was the attorney for Bertha Bichl and her deceased husband, Thomas Bichl, since 1929; that in 1943, he had purchased, with Thomas Bichl, a twenty-one apartment building in Chicago; that Thomas Bichl died in 1946; that in 1950, the building needed repairs so Mrs. Bichl sold her share to him for $31,852; that the Bichls' original share had cost them $26,000; that at the time of this purchase from Mrs. Bichl, he executed a $20,000 first mortgage; that the remaining $11,850 was paid in cash; that in 1959 he contacted Mrs. Bichl to pay off the mortgage and subsequently, on July 27, 1959, went to the residence of Mrs. Bichl, then in her middle eighties; that Mrs. Bernice Carone, respondent, a niece of Mrs. Bichl, was present and when Mrs. Bichl could not find the mortgage at home, all three of them went to the Lincoln National Bank to seek the mortgage in Mrs. Bichl's safe deposit box; that the mortgage was not in the box, but there was in the box cash in excess of $19,000; that Mrs. Bichl indicated to him that she was sorry that the mortgage was being paid since she had used the $1,000 annual interest for her living expenses; that he asked Mrs. Bichl what she intended to do with the money and she asked for his suggestions; that he suggested to Mrs. Bichl that she take the money that was being paid and most of the cash in the box and purchase $30,000 in U.S. Government Bonds in her own name, place $5,000 in a savings account and leave the remaining funds in the box for emergencies; that Mrs. Bichl stated that this was what she would do but that it would be difficult for her to get to the box because she had trouble walking; that he asked if she could find someone; that Bernice Carone volunteered, stating that she saw Mrs. Bichl frequently and would take her to the safe deposit box; that Mrs. Bichl stated that she would arrange for Mrs. Carone to have access to the safe deposit box; that Mrs. Bichl was too feeble to sign her name on this occasion, but was able to inscribe an "x" to conclude the documentation necessary to give access to Mrs. Carone; that Mrs. Carone agreed to this arrangement; that they returned to the Bichl residence and Mrs. Bichl searched for and found the mortgage; that Mrs. Bichl received checks covering principal and interest from Platka and the mortgage papers and note were marked paid.
In her testimony, Bernice Carone stated that on the day she accompanied Platka and Mrs. Bichl to the bank, July 27, 1959, she was made a joint tenant of the safe deposit box before the box was opened and that there was no discussion about making her a joint tenant.
Platka further testified that about two or three weeks after the July 27, 1959 visit to the bank, he received a call from Bernice Carone stating that Mrs. Bichl wanted her will and asking him to send it to Mrs. Bichl or Mrs. Carone; that he refused to do this and told Mrs. Carone that Mrs. Bichl should contact him or give him a letter authorizing him to deliver the will; that he received two or three subsequent calls in which Mrs. Carone insisted Mrs. Bichl wanted her will; that Mrs. Carone told him that Mrs. Bichl was in the Carone home and on one occasion he asked to speak with her on the telephone; that Mrs. Bichl was called to the phone and was asked if she wanted him to mail the will to her; and that Mrs. Bichl replied that she did not want the will and that he should keep it.
Platka further testified that in the latter part of September 1959, Mrs. Carone indicated to him that Mrs. Bichl was becoming incompetent and unable to manage her own affairs and inquired as to whether or not he should have a conservator appointed; that in mid-October 1959, he left Chicago for Florida. He also testified that on October 25 or 29, 1959, he received a telephone call in Florida from Bernice Carone and that Mrs. Carone told him that Mrs. Bichl still wanted her will, that it was becoming difficult for her to do anything with Mrs. Bichl and that $20,000 in U.S. Government Bonds had been purchased jointly in her name and Mrs. Bichl's name. He further testified he was no longer actively practicing law in Cook County and called John Phelan of the firm of Lee, Gieren and Phelan, explained the situation and asked him to handle the entire matter.
According to Mrs. Carone's testimony, $20,000 in U.S. Government Savings Bonds were purchased at the bank on August 18, 1959, approximately three weeks after Mrs. Bichl, Frank Platka and herself had visited the bank; that the bonds were purchased with the $20,000 check which Mr. Platka gave to Mrs. Bichl to pay the mortgage; that she took Mrs. Bichl to the bank and was with her at all times when the bonds were purchased; that she also took Mrs. Bichl to the bank when the bonds were picked up; that the second purchase of bonds, in the amount of $10,000, was made again at the bank on March 26, 1960; that the $10,000 purchase money came from funds in the safe deposit box; that she again took Mrs. Bichl to the bank to purchase the bonds and remained with her at all times; that she subsequently obtained and paid two doctors to make examinations of Mrs. Bichl; that the first examination was on October 24, 1959, and the second was on October 25; that neither of the examinations were for the purpose of treating her; and that Mrs. Bichl did not request the examinations.
Mrs. Carone further testified that she called Frank Platka twice in September 1959, and requested that he send her the will; that she had discussed the will with Mrs. Bichl and was informed that it wasn't completed; and that Mrs. Bichl wanted it in her safe deposit box. Mrs. Carone then stated that she recalls Mr. Platka requesting to speak with Mrs. Bichl on the telephone while Mrs. Bichl was staying at the Carone residence with an infected foot; that Mrs. Bichl was awakened out of her sleep on that occasion and couldn't comprehend the conversation very well; that no conversation took place subsequently with either Platka or John Phelan regarding the need of a conservator for Mrs. Bichl; that after her visit with Platka and Mrs. Bichl at the bank on July 27, 1959, she had unlimited access to the safe deposit box, which contained $19,000 in cash; that the cash was reduced to $9,000 after the second purchase of bonds in 1960; and that at the time the conservatorship was established for Mrs. Bichl, the box contained $6,500.
Mrs. Carone refreshed her memory after being shown nineteen entry slips to the box and recognized her signature on them. The slips were admitted into evidence and revealed the following dates and signatures:
1. July 27, 1959, signed by Bernice Carone.
2. August 14, 1959, signed by Bernice Carone.
3. August 18, 1959, signed by Bernice Carone.
4. September 4, 1959, signed by Bernice Carone.
5. September 5, 1959, signed by ...