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In Re Estate of Foster

JANUARY 30, 1969.

IN THE MATTER OF THE ESTATE OF URIAH ODLE FOSTER, DECEASED. OSCAR C. SMITH, ADMINISTRATOR OF THE ESTATE OF URIAH ODLE FOSTER, DECEASED, PETITIONER-APPELLANT,

v.

JOHN R. MANSELL, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Hamilton County; the Hon. HARRY L. ZIEGLER, Judge, presiding. Judgment affirmed.

EBERSPACHER, J.

The Administrator of the estate of Uriah Odle Foster brought a citation proceeding under section 183 of the Probate Act for an order requiring John R. Mansell to turn over to the administrator, as property of the estate, a sum of money which had been on deposit in a bank in the name of Foster and Mansell as joint tenants. After a hearing the Circuit Court of Hamilton County found that a joint tenancy account had been created and that the money was not the property of the decedent's estate.

Uriah Odle Foster was 86 years of age when he died intestate on May 6, 1957. He had been in the hospital for the last year and one-half prior to his death, and had been in and out of the hospital from the summer of 1954, when he had one leg amputated. After he had his leg amputated, he was continuously confined to his home or to a hospital.

John R. Mansell was the grandnephew of Foster. He was born and raised in Foster's home by Foster and Mansell's grandmother, Priscilla Davis, sister of Foster. Other nieces and nephews lived in the home at various times for short periods during Mansell's youth.

Shortly after Mansell's marriage in 1936, he moved into a smaller home on Foster's farm and lived there until 1954 when he and his family moved back into the home with Foster. Mansell at all times worked on the farm to earn his livelihood. He received any money he needed from the farm production or oil leases, but there never was any set profit-sharing plan between him and Foster.

Following the amputation, when Foster was not in the hospital, Mansell and his wife provided every physical need, transported him to the doctor, lifted him from bed to wheelchair to toilet, took him meals and sometimes helped him to eat. It was also after the amputation that Foster allowed Mansell to handle practically all of his business affairs, to operate his farm, to pay his bills and to draw checks on his account. Mansell continued, however, to ask his uncle for advice on business matters. Both parties to this appeal agree that a fiduciary relationship was thus created.

On February 28, 1956, while Foster was a patient in the hospital, a joint account card was signed by Foster and Mansell. The only evidence regarding the circumstances of the execution of this card by Foster was Mansell's testimony that Miss Garrison, cashier of The Peoples National Bank, gave him the card which he took to Foster in the hospital and said, "Here's what Miss Garrison sent down here for me and you to sign. This money in the bank the folks is fussing and giving us all this static about. Now, Miss Garrison sent this joint account or whatever they called it for me and you to sign. Are you going to sign it?" Foster said, "Yes, sir, I'm going so sign it." He testified that Foster then signed the card and Mansell returned it to Miss Garrison; Mansell also testified that he obtained the joint account card at the request of Foster.

The joint account signature card was introduced into evidence by the testimony of Miss Garrison, the cashier, who verified that it came from the files of the bank. The wording above the signatures of Foster and Mansell read:

"We agree and declare that all funds now hereafter, deposited in this account are, and shall be our joint property and owned by us as joint tenants with right of survivorship, and not as tenants in common, and upon the death of either of us any balance in said account shall become the absolute property of the survivor. It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives."

A typewritten letter from the files of the bank was also introduced by the testimony of Miss Garrison. It was on The Peoples National Bank stationery and dated February 27, 1956. It read:

"Peoples National Bank, McLeansboro, Illinois

"Gentlemen:

"Please change my account to read as follows: Uriah Foster or John R. Mansell, either or the survivor of either. It is my understand (`ing', in handwriting) that his heading will permit John R. Mansell to sign checks against this account and in ...


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