Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Judgment reversed.
MR. PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
This appeal is taken from an order of summary judgment entered January 13, 1965 in the Circuit Court of Cook County. The appellants urge as error that the affidavit of Jennie Scianna in support of her motion for summary judgment should have been stricken on the basis that she was barred from testifying in this matter by sec 2 of the Evidence Act. (Ill Rev Stats 1963, c 51, § 2.) It is also urged that the form of the motion for summary judgment filed by Jennie Scianna does not conform to Supreme Court rule 15 (Ill Rev Stats 1963, c 110, § 101.15). The third point raised on this appeal is that there were triable issues of fact raised by the pleadings and affidavits, and that summary judgment was, therefore, improper.
Thomas Scianna died on September 9, 1964. At that time he was lawfully wed to Florence Scianna, one of the appellants in this matter. Paula J. Luck and Betty Ann Scianna are the children of Thomas Scianna and Sally Scianna, the first wife of Thomas, from whom he was divorced October 25, 1960. The appellee, Jennie Scianna, is a sister of the deceased. At the time of his death, Thomas Scianna held in joint tenancy with his sister, Jennie, real estate in Palatine, Illinois and savings accounts in three banks, First National Bank of Des Plaines, The Pioneer Trust and Savings Bank and The Northwest Federal Savings and Loan Association, "and other sums in divers banks and savings and loan institutions known and secreted by (appellee), including a safe deposit box rented by decedent."
The real estate in Palatine, Illinois had been owned and used as a residence by Thomas and Sally Scianna until their divorce. The property was then given to Sally Scianna as a part of the property settlement. According to the Statement of Facts in the appellants' brief, Sally Scianna later defaulted in the provisions of the settlement order and on January 24, 1961, Thomas Scianna negotiated for the repurchase of the real estate from his former wife. This was accomplished on February 10, 1961 when Sally Scianna reconveyed the property to Thomas for $5,000 and the cancellation of an amount due to Thomas under the property settlement.
On August 31, 1961, about nine months prior to his marriage to Florence Scianna, Thomas Scianna conveyed the property in Palatine, Illinois to one Agnes Brownlie, and she then reconveyed this property to Thomas Scianna and Jennie Scianna as joint tenants with the right of survivorship. It is alleged that no consideration passed in either of these transfers. It is further alleged that Jennie Scianna has never resided upon the premises.
The amended complaint in chancery filed by Florence Scianna individually and as executrix of the estate of Thomas Scianna alleges that the money in the savings accounts was money saved and accumulated by Thomas Scianna from his wages, investments and the like, and that after his divorce from his first wife and before he remarried, Thomas Scianna put these funds in joint accounts with his sister Jennie. It is alleged that Jennie made no deposits of her own money to these accounts and that all the money contained therein was the money of the deceased.
The complaint of Florence Scianna asks that Thomas Scianna be declared to have had the sole interest in the real estate and in the bank accounts or in the alternative that a resulting trust be declared in this property with Jennie Scianna holding the land and money for the benefit of the estate of Thomas Scianna.
The answer to the complaint filed by Jennie Scianna states that she was a joint tenant in the real estate and states that the love and affection between her and her brother was the consideration for the transfer of this real property. She denies that Thomas Scianna left large sums of money in the savings accounts mentioned in the complaint and alleges that if any funds were in the banks mentioned, they were funds earned, accumulated and deposited by her. She denies secreting funds in any other banks, savings and loan institutions or safety deposit boxes. She denies the existence of any fraud in these transactions and states that the deceased was a person of sound mind and fully aware of his familial obligations.
Jennie Scianna also filed a counterclaim alleging that she was the owner of valuable personal belongings with a value of $1,565 which were in the home in Palatine, and which Florence refuses to deliver to her. This property has not been identified. She also claims that one Frank Licastro, attorney for Florence, persuaded her to execute a quitclaim deed of the real estate in question, and asks that the court direct that the deed be surrendered and cancelled so as to prevent its filing and a subsequent cloud on Jennie's title to the property.
After these pleadings were filed, Paula J. Luck and Betty Ann Scianna were given leave to intervene. Jennie Scianna then filed a motion for summary judgment with an affidavit setting forth her claim and alleging certain facts. This motion was accompanied with a memorandum of authorities.
A counteraffidavit was then filed by Frank Licastro, attorney for Florence Scianna. In this affidavit it is stated that he represented the deceased in his divorce action from Sally Scianna. He then alleges the background facts concerning the reconveyance of the real estate from Sally to Thomas. It is further alleged that "affiant advised and counseled Thomas Scianna with respect to safeguards and protections that might be devised to prevent Sally Scianna from transferring or attaching accounts then in the name of Thomas Scianna; or to prevent any future spouse from laying claim to the property until said Thomas Scianna could decide on the final disposition of his properties. . . ." It is alleged that Thomas Scianna then made Jennie a joint tenant in these bank accounts and that Thomas had confidence that Jennie would follow his wishes with respect to the money contained therein. A similar allegation is made with respect to the real estate.
It is also alleged in this affidavit that Thomas Scianna had expressed to the affiant his desire to have his new wife, Florence, made joint tenant in the bank accounts and in the real estate. Finally, it is alleged that Jennie Scianna stated to affiant on the date of the death of Thomas and on the day following, that she knew the wishes of Thomas and requested affiant to complete the work necessary to carry out his desires.
Betty Ann Scianna, a daughter of the deceased and one of the appellants herein, filed an affidavit stating that on or about September 27, 1964, 18 days following the death of Thomas, she attended a conference at which were present her sister, Paula J. Luck, and Jennie Scianna. It is alleged, "That during the discussion Jennie Scianna stated that she had not wished to have Thomas Scianna place any of his property in joint title with said Jennie Scianna; and told said Thomas Scianna that `if you insist on putting my name as a joint tenant of your property, and something happens to you, I will do everything in my power to see that the girls get their rightful share of all your property.'"
It was alleged that at this time Jennie Scianna also stated, "I never considered that I had an interest in the property that your father put in my name, but that I was taking care of the rights of my nieces; and I always felt no outsider, like ...