Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
On December 1, 1965, the Circuit Court of Cook County entered a decree imposing a trust in favor of William Suwalski on title to property in Chicago. Arthur Suwalski appealed in the Appellate Court, which court initially affirmed but subsequently reversed the trial court's decree upon a rehearing of the case. (88 Ill. App.2d 419, 232 N.E.2d 64.) The Supreme Court granted William Suwalski's petition for leave to appeal and reversed the Appellate Court's judgment on rehearing, affirming the trial court's decree insofar as it made a finding that a resulting trust had arisen in William Suwalski's favor. The decision in the Supreme Court is reported in 40 Ill.2d 492, 240 N.E.2d 677.
In the trial court Arthur Suwalski had counterclaimed in two counts. The first count was dismissed since it was waived under Supreme Court Rule 341(e)(7). The second count had not been considered in the Appellate Court because consideration of that count was not necessary under the Appellate Court's disposition of the case on rehearing. However, since the judgment was reversed on rehearing, and since Arthur Suwalski's position had not been briefed or argued in the Supreme Court, the Supreme Court remanded the case to the Appellate Court for consideration of the merits of Arthur Suwalski's second count of his counterclaim. The Appellate Court was instructed that if it found that Arthur Suwalski's contention did not prevail, the decree of the Circuit Court should be affirmed.
The Supreme Court stated in its opinion that there was no dispute in the facts and set them out as follows: William Suwalski and his now deceased wife agreed to buy a home for $15,500. They were going to pay $4,500 of their own funds and pay the balance of $11,000 by a mortgage in Community Savings and Loan Association. The association, however, informed William Suwalski that because of his advanced age it could give him a loan for only $9,500, and would require a co-signer on the note. Arthur Suwalski, son of William Suwalski and his wife, agreed to co-sign the note and furnish the additional $1,500 which his parents required to acquire the house.
William Suwalski, his wife, and Arthur Suwalski executed the appropriate real estate contract, mortgage and note, and on November 6, 1950, a trustee's deed was executed naming William, his wife, and Arthur Suwalski as joint tenants. Arthur Suwalski then gave his check for $1,500 directly to the loan association, and the attorney representing William Suwalski and his wife paid the association $301.53 which was required to complete the closing. William Suwalski repaid the attorney the following day.
William, his wife, and Arthur Suwalski moved into the house, and in 1953, after his marriage, Arthur Suwalski left the home. William Suwalski's wife died in 1961, and he continued to occupy the house until 1963, when, because of failing health, he tried to sell the property. After execution of a contract for the sale, William Suwalski discovered that his son's name was included in the deed as a joint tenant. When he tried to pay his son $1,500 and asked for a conveyance, his son refused, and when his name was added to the proposed contract as a grantor, the master found that Arthur Suwalski demanded $10,000 from the proceeds of the contemplated sale. At this point the negotiations for the sale were broken off. In the original trial William Suwalski had tendered $1,500 to Arthur Suwalski in open court. Arthur Suwalski refused the tender, and thereupon, by leave of the court, the said $1,500 was deposited with the clerk of the court.
In the ensuing litigation William Suwalski argued that it was never intended that Arthur should have a beneficial interest in the house when it was purchased, and that the $1,500 paid by Arthur was merely a loan to William and his wife. The resulting trust in favor of William was created by the transaction.
Arthur Suwalski, however, contended that he was a purchaser for value and an owner in joint tenancy. He also counterclaimed, in Count I of which he asserted that William Suwalski had severed the joint tenancy in 1963 by executing what he apparently claimed was a second mortgage, and that as a result Arthur and William each had a one-half interest as tenants in common. In Count II of the counterclaim Arthur Suwalski asserted that William and his wife had executed a joint and mutual will, and that the will was a contract, under the terms of which Arthur and his sister, Virginia Badgley, were equal beneficiaries of such contract, subject to a life estate in William Suwalski, and further subject to a legacy of $1,500 which was due Arthur.
In its opinion the Supreme Court found that a resulting trust existed in favor of William Suwalski. The Appellate Court is now to pass upon the contentions raised in Count II of Arthur Suwalski's counterclaim.
On August 15, 1957, William Suwalski and Anna K. Suwalski, his wife, made their joint will. Anna K. Suwalski died on April 25, 1961, and the will was admitted into probate. The will reads as follows:
We, WILLIAM J. SUWALSKI and ANNA K. SUWALSKI, His Wife, of the City of Chicago, County of Cook and State of Illinois, being of sound and disposing mind and memory, do hereby MAKE, PUBLISH, and DECLARE this to be our joint Last Will and Testament.
FIRST: We give, devise and bequeath to the survivor of us the entire estate, real, personal or mixed, owned by either of us at the time of the death of either of us, to the survivor of us, for his or her own use and benefit forever.
SECOND: We hereby direct that our Executrix, hereinafter named, pay all our just debts and funeral expenses as soon after our decease as conveniently may be.
THIRD: We are indebted to our son, ARTHUR J. SUWALSKI, in the sum of One Thousand Five Hundred Dollars ($1,500.00), therefore, we give, devise and bequeath to our said son, ARTHUR J. SUWALSKI, the sum of One Thousand Five ...