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In Re Estate of Garrett

MARCH 21, 1967.

IN THE MATTER OF THE ESTATE OF GEORGE B. GARRETT, DECEASED. LUCILLE LOFTUS, PUBLIC ADMINISTRATOR, PETITIONER-APPELLEE,

v.

SHERMAN S. GARRETT, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the Fifteenth Judicial Circuit of Lee County; the Hon. JOHN DIXON, Judge, presiding. Affirmed in part and reversed in part, and remanded.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is a citation proceeding which appears to have been filed under sections 183-186 of Article XV of the Probate Act (Ill Rev Stats 1965, c 3, pars 183-186), by the administrator of the Estate of George B. Garrett. The petitioner prayed that Sherman S. Garrett, respondent, be cited to appear before the court to testify regarding certain personal property, books of record, papers, evidence of debt or title to lands in his hands or about which he may have information, which property, according to the petitioner's belief, belonged to the decedent or his estate; that the respondent be compelled to answer the questions propounded to him; and that "the proper order of this Court be entered upon such examination if it be found that such described property is the property of George B. Garrett," or his estate.

It appears that George B. Garrett, who had been in a nursing home for several years, died October 20, 1962, at the age of 87 years and left him surviving an adopted son, whose whereabouts is unknown. The decedent's next closest relatives were his nephew the respondent, and his niece Louise Bauer, the respondent's sister. The respondent and his sister appeared to have taken care of the business affairs of the decedent during the last years of his life.

In March of 1947, the decedent deeded an 80-acre tract of farmland to the respondent and respondent's sister, reserving unto himself a life estate therein. On October 6, 1961, the decedent withdrew the sums of $7,392.93 and $10,082.60, respectively, from savings accounts in two banks, and an undisclosed amount from a third bank. These sums were then deposited in accounts in the name of the respondent and respondent's sister.

On October 6, 1961, the decedent also deeded an additional 40-acre tract of land to respondent and respondent's sister, again reserving unto himself a life estate therein; and on November 1, 1961, the decedent assigned and delivered to the respondent and his sister certain stock certificates having a value of approximately $59,200. The respondent immediately commenced to liquidate these stocks. The monies, securities and real estate constituted substantially all of the assets owned by the decedent.

The respondent does not claim that these properties were turned over to him as his own property, but rather, that they were transferred under oral directions: first, that he care for the decedent by paying the expenses of his maintenance, last illness and burial; and then, that he distribute the remaining balance in a certain designated manner. The balance to be distributed totaled $77,000. The sum of $10,000 was to be distributed to non-family recipients; $10,000 to Louise Bauer; and $66,000 to twelve persons — all of whom were children and grandchildren of the respondent and his sister. The respondent testified that the amounts distributed to each of the twelve persons were designated by decedent. There was no written evidence pertaining to such directions.

It further appears that after the death of the decedent, the respondent did distribute all of the funds to his children and the children and grandchildren of Louise Bauer. The distributions were made by depositing the funds in savings accounts, all of which were in Indianapolis banks, with the exception of one account in a Chicago bank. The distributions were purportedly made in this manner because the recipients lived throughout the country, and the respondent wanted to put the money in a bank not convenient to them — to make it "a little difficult to run in and draw out a few dollars." Aside from the real estate, it appears that there now remains in the possession of the respondent only $500 in currency from the assets which he received from the decedent.

The trial court found that no trust was created between the decedent and the respondent and the respondent's sister, due to the lack of certainty relative to the various material terms essential to a valid trust; that no valid gift was made; and that the respondent was simply an agent for the decedent and held the funds not expended during decedent's lifetime in a constructive trust for the decedent's estate. It ordered that the respondent render an account to said court of the property owned by the decedent and transferred to the respondent during the decedent's lifetime; and that the respondent pay over and deliver to the administrator of the decedent's estate, all of the said monies, securities and property, or the proceeds of the sale thereof, and the income therefrom, including the real estate, not used for the care of the decedent or in payment of his obligations or funeral expenses.

The respondent contends that the trial court went too far in trying the title to the various items of property in question since there was an absence of necessary parties before the court — the persons to whom such property had been distributed. He further contends that the sole issue was whether he had in his possession any property belonging to the decedent; that the evidence indicated he had distributed such property in good faith; and that the statute was not intended to impose liability on one who has transferred such property in good faith and no longer is in possession thereof.

Section 183 of the Probate Act provides a means of relief for each of two disjunctive, and perhaps unrelated, situations. It provides that upon the filing of a verified petition, the court shall order a citation to issue for the appearance of any person whom the petitioner believes (1) to have concealed, converted, or embezzled or to have in his possession or control any personal property, books of account, etc., or evidences of debt or title to lands which belonged to a person whose estate is being administered therein, or to his estate or personal representative, or (2) to have information or knowledge withheld by the respondent from the personal representative and needed for the recovery of any personal property by suit or otherwise. Subdivision (1) of the section contemplates the actual recovery of personal property belonging to the estate, including the determination of questions of title and rights of possession, all as permitted under section 185 of the Probate Act. Subdivision (2) has as its purpose the discovery of information.

The statute thus contemplates two distinct types of proceedings, one merely in the nature of discovery and the other a truly adversary proceeding in which the right and title to personal property may be contested with optional jury trial on demand, and with power in the court to determine all questions of title, claims of adverse title and the right of property, and to enforce its judgments by execution or contempt proceedings. Keshner v. Keshner, 376 Ill. 354, 359, 360, 33 N.E.2d 877 (1941); In re Estate of Curley, 43 Ill. App.2d 389, 391, 392, 193 N.E.2d 607 (1963); Kahn, What Every Lawyer Should Know About . . . Discovery and Recovery Citations in the Probate Court, Vol 44, Ill BJ 202, 203, 204 (1955).

We agree with the respondent that if the petition sought only information, the court could not then try the question of title to the various properties and order them turned over to the estate. The citation procedure permitted by Article XV affords a simple, comprehensive and summary method of invoking the aid of the court. While courts are liberal in the procedures they permit to be followed under these sections, an order must still be based upon an issue established in the pleadings. Such requirement is imperative so that the respondent may know the issues which he will be called upon to defend before the court. Broberg v. Mann, 66 Ill. App.2d 134, 137, 138, 213 N.E.2d 89 (1965); Moser v. Feciura, 324 Ill. App. 552, 556, 58 N.E.2d 920 (1945); In re Estate of Shanks, 282 Ill. App. 1, 13 (1935).

The petition recited that petitioner believes that the respondent "has in his possession or control" certain personal properties, including deeds to real estate, belonging to said decedent or his estate which the respondent wrongfully withholds; and that the respondent has knowledge or information regarding certain properties which may be essential to the recovery of said property. The prayer of the petition was not only that the respondent be compelled to appear and give whatever information he had, but also that the court enter a proper order if it be found that the property is that of the estate. This petition was sufficient to apprise respondent that more than mere information was sought in the proceeding, and that as to any personal property within respondent's possession or control, petitioner also sought its recovery. We believe that the petition was ...


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