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Swenson v. Wintercorn

FEBRUARY 9, 1968.

CLIFTON L. SWENSON, PLAINTIFF-APPELLEE,

v.

ILA D. WINTERCORN, INDIVIDUALLY, ILA D. WINTERCORN, AS EXECUTOR OF A CERTAIN INSTRUMENT PURPORTING TO BE THE LAST WILL AND TESTAMENT OF MABEL M. BANTA, DECEASED, AND ILA D. WINTERCORN, TRUSTEE OF A CERTAIN PURPORTED TRUST, DESIGNATED AS BANTA TRUST NO. 101, DATED SEPTEMBER 15, 1959, DEFENDANTS-APPELLANTS, AND KENNETH REVELL, ET AL., DEFENDANTS.



Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.

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

This action was brought to contest the validity of the last will and of a trust agreement, both executed by Mabel M. Banta (hereinafter referred to as Mrs. Banta) on September 15, 1959. In answer to special interrogatories, the jury found that on that date, Mrs. Banta possessed sufficient mental capacity to execute the instruments in question. However, it also found that the execution of these instruments was procured through undue influence. The defendant, Ila D. Wintercorn (hereinafter referred to as Ila Green), appealed from the judgment based upon the last mentioned special finding, which judgment declared the instruments null and void.

The evidence was conflicting, and it would unduly lengthen this opinion to set forth in detail the testimony elicited from the various witnesses. We will sufficiently summarize it for an understanding of the factual matters presented to the jury and court below.

The plaintiff, Clifton L. Swenson, and the defendant, Ila Green, are a nephew and niece of the decedent, Mrs. Banta, who died in July of 1964 at the age of 78. She originally lived in Rockford, then moved to Chicago, where she married and lived the major portion of her life with her husband, Frank Banta. No children were born of the marriage. Frank Banta died in 1956. There is some conflict in the evidence relative to the impact of Mr. Banta's death on Mrs. Banta's mental processes subsequent to his death.

Two of her closest friends, Mrs. Lamey and Mrs. Johnson, testified that in the several years subsequent to her husband's death there was no change in her mannerisms or mental capabilities. Mrs. Nims of Rockford, who had visited Mrs. Banta in Chicago at least once during this period of time, testified that Mrs. Banta appeared to suffer only the normal grief to be expected, but that there was some question as to whether she was then as well-groomed as she had been prior to her husband's death.

Jean Westberg, a sister-in-law of Mrs. Banta, who lived in Rockford, testified that she had visited Mrs. Banta in Chicago, on several occasions, between the date of Mr. Banta's death in 1956 and the fall of 1959, when Mrs. Banta moved to Rockford, and that Mrs. Banta's conduct was different in the following respects after her husband's death: that Mrs. Banta was forgetful, would keep repeating herself, and would ask the same questions over time and again; that she would make a trip to the bank and shortly thereafter forget the fact that such trip had been made; that prior to his death, she was neat and tidy, but thereafter she was unkempt, her apartment was dirty and in disorder.

In February of 1957 — the period of time in question — William Lamey (the son of one of Mrs. Banta's good friends, and a Chicago attorney) prepared a will for Mrs. Banta, which she duly executed. It was his testimony that she was completely competent at that time.

Mr. George Doelle testified on behalf of the plaintiff. He stated that he had known Mrs. Banta since about 1934; that he was her financial advisor; that he sold her annuities, and bought and sold securities for her; that he saw her perhaps twice each year, and noticed no change in her until the year 1959. Upon his return from Florida in April of 1959, he learned that Mrs. Banta had called him by telephone a number of times. When he talked with her, she stated that she could not find her annuity checks. Mrs. Banta was then receiving four or five such checks each month. Mr. Doelle was certain that the checks had come in and convinced her to wait for a week or so before trying to get duplicate checks. About a week later, Mrs. Banta called saying that she had found the checks. He testified that thereafter the same thing happened every month. She would call stating that she had not received her checks and that she thought the company must be going broke. Mr. Doelle would assure her that this was not true and Mrs. Banta would then state that the mailman must be stealing the checks.

On one occasion Mr. Doelle had the insurance company issue duplicate checks. Later the original checks turned up — endorsed by Mrs. Banta. When confronted with these, she said she couldn't believe it. He further testified that Mrs. Banta would call at 9:00 a.m., then would call again, perhaps an hour later, forgetting that she had made the prior call; that sometimes this would happen three or four times a day — Mrs. Banta forgetting each of the earlier telephone calls; and that all of this started in April of 1959, and got progressively worse.

He was then concerned about Mrs. Banta's condition and called several of her friends in Chicago. In August of 1959, he called the defendant, Ila Green, in Rockford, and told her about Mrs. Banta's condition and informed her that the company would have to send the checks to a bank or to someone who could keep track of them and see that they were properly endorsed. He and Ila Green also discussed the possibility of Mrs. Banta moving to Rockford. He also listed the annuity numbers with her and apparently arranged to have the checks sent to her address.

Late in August of 1959, Ila Green and her husband helped Mrs. Banta close her apartment in Chicago and move, temporarily, to the Green home in Rockford, and it was during the time she was living in the Green home that the transactions in question took place. On August 29, Mrs. Banta rented a safe-deposit box in the name of herself and Ila Green; on August 31, 1959, a checking account was opened in the name of Mrs. Banta and Ila Green, jointly, with an initial deposit of $1,500 which was taken from Mrs. Banta's personal account in Chicago; and on September 4, 1959, a similar joint savings account was opened with an initial deposit of $3,000.

The employee of the Rockford bank who opened these accounts had known Mrs. Banta for a number of years. Her testimony, relative to the conversations at the time the accounts were opened, indicated that she felt that Mrs. Banta was fully aware of the nature of her transactions and fully competent.

Ila Green and her husband were both clients of attorney Frank Welsh of Rockford. Mr. Welsh testified that shortly before September 9, he received a telephone call — which to the best of his memory was from Mr. Green — stating that Mrs. Banta was coming to Rockford and should have someone locally look after her affairs. As a result of this telephone call, or a subsequent telephone call from Mrs. Banta, Mr. Welsh and his secretary went to the home of the Greens on September 9. They were met at the door by Ila Green, who introduced them to Mrs. Banta. Ila Green then removed herself to some other part of the house, and Mr. Welsh, his secretary, Mr. Green and Mrs. Banta retired to the living room where they discussed Mrs. Banta's estate problems and proposed plans.

This discussion lasted about an hour or an hour and a half. Mr. Green, apparently, did not say much at this meeting. Mr. Welsh remembered that Mr. Green had talked to Mrs. Banta about her will or estate and urged her "she should get at it," but he could not recall whether such remark was made at this meeting or on some other occasion.

Mr. Welsh testified that at the meeting at the Green home, Mrs. Banta made known that it was her wish that $2,500 of her estate should go to a certain nephew (the plaintiff), $2,500 to a niece, and the balance to Ila Green — because the Greens had been good to her and had helped her over the years. She then presented to Mr. Welsh certain annuity policies and her 1957 will. Mr. Welsh recommended that Mrs. Banta execute a revocable trust ...


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