Appeal from the Circuit Court of Cook County, Probate
Division; the Hon. ANTHONY J. KOGUT, Judge, presiding. Reversed
and remanded with directions.
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Jeanne Poulos, claimant against the estate of Lou Fushanis, her deceased brother, appeals from an order which dismissed her fifth class claim for $11,870. The record indicates the estate is insolvent. No evidence was offered on behalf of the estate.
Lou Fushanis died in Chicago, Illinois, and left surviving him a widow and two children; also, his mother and his sister, the claimant. During his lifetime, he either owned or operated approximately 1,000 parcels of real estate through the use of various corporations and partnerships. He invested money for many persons, and his records primarily consisted of individual account cards and ledgers. The account cards contained the account number, the amount of money that was originally paid in, the monthly payments, and the balance due.
Shortly after David Zaransky's appointment as co-administrator of the estate of Lou Fushanis, he permitted the claimant to examine decedent's books and records. There were six cards bearing the name of Jeanne Poulos and a master card, all of which were lost or misplaced by the representatives of the estate before the hearing of the claim. The claim of Jeanne Poulos (hereinafter set forth) was prepared under the direction of Zaransky and from books in her possession.
"Claimant (Jeanne Poulos) did heretofore deliver to the deceased funds to be held specifically in trust for claimant's benefit in the following amounts:
Account Original Monthly Balance No. Amount Payments Due
155 2000.00 40.00 960.00 17 2000.00 40.00 1520.00 33 2000.00 40.00 1200.00 105 2000.00 40.00 1660.00 62 2000.00 40.00 1480.00 112 10000.00 125.00 5050.00
That for a period of time last past said Lou Fushanis, deceased, did from time to time make payments to reduce the trust indebtedness leaving balances due as indicated hereinabove. That the said funds were at all times treated by the decedent as trust funds and were accepted by Lou Fushanis, deceased, specifically as trust funds, and accordingly your claimant represents that said total of $11,870.00 as indicated above should in view of the facts and circumstances be allowed and preferred over all other general creditors, and that an order be entered directing the co-administrators to treat said claim as a trust fund, and that the said co-administrators be directed as moneys become available to pay said claim in such installments as shall be ordered by the Court and as said funds accrue."
At the hearing of the claim, Zaransky testified both as an adverse witness and as a witness for claimant. Although a subpoena had been served upon him to produce "Books, record cards, account records numbered 155, 17, 33, 105, 62 and 112 kept by the decedent during his lifetime," no estate records were produced. Zaransky related in detail the preparation of the claim, and that it set forth the amounts "exactly as they were in the booklets she had."
Under cross-examination by the attorney for the estate, Zaransky stated, "I verified the balances due against the account numbers, and I saw these cards which indicated the name of Jeanne Poulos, the account number, the amount of money paid in, the amount of loan, no interest, or interest included, I am not sure, the amount of monthly payments and the balance due." In reply to a question as to whether the amounts shown as received on the cards were actually received, the witness stated, "The account card indicated that the original amounts on the opening entry were the same as the claim, but the amount paid in was less. . . . It appeared from my examination that Mrs. Poulos sent to her brother moneys that he accepted and entered, and opened an account card for double the amount that she sent him, and indicated payment of so much per month, with no interest, or waiving of the interest, I am not sure again as to the exact term it set at that time. . . . It is very difficult for me at this time to testify that it is exactly true on each one (the six accounts)." He stated it was true on several of the accounts, but that he did not know "of his own personal knowledge this was actually done."
When the claim was being prepared, the cards were in the estate office, and he had access to the cards. After he examined the account cards, "they were supposedly put back in the files, and I haven't seen them since." As to the books of Mrs. Poulos from which he secured the data for the claim, he stated "they were either returned to Mrs. Poulos or they were misplaced."
A witness for claimant, Betty Smith, an employee of decedent since 1959 and his secretary at the time of death, testified in detail as to the bookkeeping practices of the decedent and the keeping of cards which contained "names, addresses, and they showed the transaction, what type of transaction it was." She saw cards which bore the name of Jeanne Poulos, on which "it said `Jeanne Poulos, trust loan accounts.' It gave the numbers and it gave the date that the payments were to go out and the amounts." She further stated that she didn't see the words "trust or trust account" on any of the other cards in the office. Decedent told her that "Jeanne sent him this money, so that he could keep it for her and because her husband had been sick. . . . [H]e would be sure that she had money, because he never did know when her husband would be able to work or wouldn't be able to work, and he wanted to be sure that she had money, because she had a lot of children. . . ."
On cross-examination, Miss Smith stated she did not know whether the amounts received were the amounts entered on the cards, that when decedent would receive a check from his sister he would tell her the total amount to be put on the card. If he received $1,800, it might be $2,300 on the card. If the claimant sent her brother a check for $1,000, "he would tell me so much money, maybe it was $2,000 maybe it was $1,800." The witness further testified that when the decedent received checks from his sister, they were not deposited in the decedent's regular account but in the Happy Builders Account, out of which account he paid bills and used it for his personal use and made mortgage payments out of it. When monthly payments were made to claimant, they were paid out of the Happy Builders Account.
Another witness for claimant, Vito Theodore, who was in the employ of decedent at the time of his death as office manager, testified that he was in charge of the books and knew the system used by the decedent in his financial transactions, which were kept on a series of cards. There were a couple of hundred in number and disclosed all of his transactions with other people. "We would take notes, keep a record of contractors that did work for us, we would loan them money." He stated, "I don't know exactly how many cards there were that bore Jeanne Poulos' name, but the cards said `Letter of trust loan accounts, Jeanne Poulos.' One card had all the transactions, then other cards had due dates and amounts. . . . there were separate cards which showed the individual amounts of money." He said, "I spoke with the decedent about these cards from time to time, and he told me that I guaranteed to give my sister all her money and take care of her kids and put them through college and that was the end of that. He mentioned the word trust in connection with Jeanne Poulos' accounts, and I thought he was protecting himself under a `trust'; he said that if at any time his sister wanted her money, she could send him a letter and he would give it to her all in cash; that he was using her money and was charging high interest on it. . . . to my knowledge he never asked his sister where to put the money; he put the money ...