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In Re Estate of Roth v. Roth

JUNE 20, 1968.




Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. CHARLES G. SEIDEL, Judge, presiding. Reversed and remanded with directions.


This is a citation proceeding by the Administrator, John Roth, for the recovery of the proceeds of four savings accounts alleged to have been the property of Anna C. Roth, hereinafter referred to as the decedent. After hearing, the court entered an order directing the respondent, Henry R. Roth, decedent's son, to pay over to the estate the sum of $11,805.16, plus increments. It is from this order that respondent appeals.

The respondent contends that he is the owner of the monies in the joint accounts by reason of an absolute gift of the funds by the decedent prior to her death. However, the respondent contends that in the alternative, in the event there is no inter vivos gift, the evidence establishes a trust of the funds not subject to the claim of the petitioner.

The decedent, Anna C. Roth, died intestate on August 17, 1964, leaving as her survivors, six children, including the respondent and petitioner. Her husband predeceased her having died in 1956. The decedent, by reason of her husband's death, received certain joint tenancy property by which she created four accounts in three Savings & Loan Associations in Aurora. It is undisputed that all sums used to create these accounts were monies solely and only of the decedent.

The accounts were in the names of Anna C. Roth or Henry R. Roth, or John Roth as joint tenants with right of survivorship. The passbooks were issued and the Savings & Loan Agreements were signed by all the parties. While the agreements were not in identical language, each contained, in substance, the usual language including the right of withdrawal in each of the parties, and survivorship.

In the Home Building & Loan Association, Account No. J690 was opened on March 11, 1957, with a deposit of $15,000 and Account No. 0-3460 was opened on January 2, 1960 with a deposit of $7,500. On March 2, 1957, Account No. 0-6613 was opened in the Improvement Federal Savings Association with a deposit of $8,450. On March 21, 1960, Account No. 16909 was opened in the Aurora Savings & Loan Association with a deposit of $689.31.

On May 2, 1964, the respondent withdrew the balance of Account No. J690 in the amount of $2,016.19. On July 18, 1964, he withdrew from Account No. 0-3460, the balance of $7,668.75, and on the same date he withdrew from Account 0-6613, the balance of $611.65. On July 23, 1964, the respondent withdrew from Account No. 16909, the amount of $139.09, leaving a balance of $5. This account showed a balance of $1,508.57 as of November 22, 1966, representing additional deposits of $50 each made by Frank Roth, a child of the deceased, as payments on a note owed to the deceased.

In 1956, the decedent suffered a heart attack. At that time, the respondent, who is the only unmarried child of six children of the decedent, left St. Joseph's College, where he was then studying in the seminary, to take care of his mother. From the year 1956 to the date of her death, the only child of the six to take care of the decedent and to reside with her was the respondent. In 1958, the respondent took sole possession of the passbooks and when the subsequent accounts were opened, the respondent had possession of those passbooks.

In 1957, the decedent expressed the intent that the funds in the joint accounts were to be used for her if she needed it when she was sick or if she otherwise needed the funds for her support during her lifetime, and upon her death the proceeds were to be divided equally among her children by the surviving joint depositors to make sure there would be no necessity to probate the funds in her estate. She desired such an arrangement whereby the funds would be immediately accessible to the children in order to avoid lengthy probate proceedings. The estate of the decedent's husband had been in probate a number of years and the decedent wished to avoid such a complication.

The testimony as to decedent's intention in opening the accounts did not vary materially. John Roth testified that decedent stated that her purpose in setting up the account was:

"So when she died, we were supposed to see the money was equally divided among the heirs . . . among her children."

Henry Roth testified that when the accounts were first created, "it was just a matter of convenience." Both sons testified that when the accounts were created, the withdrawals from the accounts were to be used for their mother's expenses during her lifetime.

However, in 1962, there was testimony that the decedent expressed a different intention as to the joint accounts when she visited her son, Carl Roth, in Florida. In the late spring or early summer of 1964, the deceased consulted her attorney for the preparation of a will which, however, was never executed. In discussing her assets with the attorney, the deceased never mentioned the joint accounts but spoke only of her property as being interest in real estate. The deceased's attorney testified that the deceased stated she had "special affection" for the respondent because he stayed home on her behalf and cared for her. At this time, the balance of the joint accounts was approximately $10,000. At the time of her hospitalization which preceded her death, the decedent allegedly told the respondent, "You get that money out of the bank and hold on to it or he is going to grab everything and you won't have a roof over your ...

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