Appeal from the Circuit Court of Will County; the Hon. STEWART
C. HUTCHISON, Judge, presiding. Reversed and remanded with
Rehearing denied September 8, 1969.
This cause originated as a citation proceeding under the terms of the Probate Act for the purpose of recovering property which was alleged belonged to the estate of Janet Skinner. The property involved consisted of corporate stock worth about $70,000 and of a bank account totaling approximately $10,000. The respondents who held the property contended that they received the stock as a gift. The trial court agreed with such contention and respondents' contention that the bank account was not the property of the Janet Skinner estate. The estate has appealed.
The decedent Janet Skinner was a spinster who died January 13, 1964 (at the age of 96). She was survived by her brother, David Skinner, who never married and who died in February of 1966. A sister, Lida Dondanville, died in October of 1966 leaving surviving three children, John Dondanville, Joseph Dondanville, and Janet Dondanville Schroeder. Another sister, Isabel Skinner Root, predeceased Janet Skinner and left surviving three children, petitioner Russell Root, David Root, and Gordon Root. Decedent Janet Skinner left no will.
Joseph Dondanville had assisted his Aunt Janet Skinner for many years with her business affairs. He collected all the moneys due her, handled her bank accounts, wrote checks for her, handled her corporate stock purchases and collected dividends for her. It was admitted by all parties that Joseph occupied a fiduciary relationship with his Aunt Janet in connection with her business affairs. Joseph moved to Florida in 1957 but continued to work in the fiduciary capacity for his aunt. He purchased the stock in question in this proceeding and had such stock registered in his name and Janet's name as joint tenants. He testified, however, that the stock was really Janet's stock and he held it as trustee for her. He also testified that he purchased the stock with Janet's money. The certificates were at all times in the possession of Joseph Dondanville prior to the transfer in question in this proceeding. Joseph Dondanville received the dividends, cashed the checks and paid Janet the money from the dividends. He told all parties, including David Root, that the stock held jointly was really Janet's stock.
In October 1958, Janet Skinner was 91 years old. She did her own housework, cooking and ironing. She read with a magnifying glass and there is testimony that she read with a magnifying glass for five years after that date or up until approximately two months before her death in 1963. In October of 1958, Joseph Dondanville came from Florida to Illinois and brought with him the stock certificates in question. There was no testimony as to why he brought the certificates. Joseph Dondanville testified that he and Janet Skinner and his mother, Lida Dondanville (who died prior to the hearing) and her brother, David Skinner (who died prior to the hearing), were present at such time. Joseph stated that he and his mother, at the request of Janet Skinner, signed Janet's name to the various stock certificates and that they tried to write Janet's signature as Janet would write it in her kind of signature. At the hearing, a handwriting expert testified that it was his conclusion that Janet Skinner had not signed any of the stock certificates and that the name "Janet Skinner" was written on all of the certificates by Joseph Dondanville. He stated that Lida Dondanville had not written on any of the certificates. Joseph Dondanville thereafter testified again, after the handwriting expert's testimony, and stated that, in view of the expert's testimony, he was willing to admit that he had written Janet's name on all the certificates. He was the only survivor of the group who was present when the stock certificates were signed in October of 1958.
After the signatures on the stock certificates were written, Joseph Dondanville took them to Illinois Securities Co. in Joliet and directed that there be transferred one-third of the stock to himself, one-third to his brother, John Dondanville, and one-third to his sister, Janet Schroeder. Joseph Dondanville also signed his own name to the stock certificates as a joint tenant at the Illinois Securities Co. A representative of Illinois Securities Co., a Mr. Ruva, who guaranteed the signatures, testified at the hearing. He stated that before Joseph Dondanville brought the stock certificates in, Janet Skinner called him on the phone and she told him she had signed the certificates and that Joseph was bringing them in. He stated he did not examine the signatures thoroughly but he knew that they contained Janet's signature because she had told him on the phone she had signed them. Janet Skinner had never been in Ruva's office since Joseph had handled all stock transactions for her. Ruva guaranteed the signatures and the records of Illinois Securities Co. showed that at least part of the certificates were mailed directly to Joseph Dondanville in Sarasota, Florida. Joseph testified, however, that he picked the securities up personally and took them to Wilmington, Illinois. When the witness Ruva was asked about the difference between the sample signature of Janet Skinner and the signatures on the stock certificates, he admitted that it would be perjury on his part to state that Janet Skinner did sign the certificates. He also stated that he had followed Joseph Dondanville's direction in connection with transfer of the stock. Ruva's testimony was also that he had called Janet Skinner after Joseph Dondanville brought the stock in and that she told him she had signed such certificates.
Joseph Dondanville had testified directly that he, in fact, had signed Janet's name to the certificates trying to imitate Janet's signature. There was evidence also that two weeks prior to the hearing, witness Ruva had talked with the attorneys for the petitioners with respect to the certificates and, when told that they were not the signatures of Janet Skinner, he said nothing whatsoever to the petitioner or attorney and made no mention of having had any telephone calls from or making any telephone calls to Janet Skinner. John Dondanville, brother of Joseph, in whose name one-third of the stock was registered, stated that he knew nothing of the signing of the stock and did not even learn of the gift until the spring of 1959, when Joseph told him that he owed his share of the gift tax on the gift. He testified that the first time he saw the actual certificates was when he and his wife were alone with Janet Skinner. He stated that he learned he was to collect the dividends on the stock transferred to him and send these dividends to Janet but report them on his own income tax. He did not recall who told him to do this. He also stated that his Aunt told him that she did not want the Roots to have any more of her property. There was some contradictory testimony on this subject. The other transferee, Janet Schroeder, testified that she first learned of the transfer from her mother, Lida, around Christmas of 1958. She stated that she received the certificates from Janet Skinner in June 1959 when just she and Janet Skinner were present. She stated that her mother, Lida, explained to her that she was to pay the gift tax on the transfer and return all of the dividends to Janet Skinner. She stated she never discussed the gift tax or dividends with Janet Skinner. She stated she felt that the reason for the stock transfer was because Janet Skinner had not been invited to Russell Root's wedding in 1924.
After the stock transfer in October 1958, Janet Skinner had paid no gift tax and there was evidence that the gift tax return was filed by Joseph Dondanville after it was prepared by an accountant selected by him. This accountant had also died prior to the hearing. Joseph admitted that he might also have signed the gift tax return for Janet Skinner. The gift tax return showed an outright gift without reservation of income. After the stock transfers in 1958, Janet Skinner continued to receive dividends in cash as John paid his share to Joseph and Joseph put his share with this amount and took Janet Schroeder's share out of an account which she and Joseph had together. Thus, Janet Skinner received dividends from Joseph in cash after October 1958 in the same manner as she had received them from Joseph prior to October 1958. Joseph actually sold some of this stock but continued to send the dividends to Janet Skinner just as if she still owned the stock. There was evidence that a division of property had been made by David Skinner, a brother of Janet, equally between the Roots and the Dondanvilles. Joseph Dondanville and David Root were Co-Executors of the John Skinner estate, another brother of Janet, and his estate was also left equally to the Roots and the Dondanvilles.
David Root talked with Joseph Dondanville on several occasions about the stock which David knew was at one time in the joint names of Joseph and Janet. While Joseph was evasive in his answers when asked directly if he still had the stock, Joseph Dondanville stated, "Oh yes, if she passes away it will be taken care of." None of the Roots learned of the 1958 stock transfer until after the death of Janet Skinner in 1964. When no administration was instituted on the Janet Skinner estate for a period of two years, David Root filed for appointment as administrator, and this caused Lida to file, and eventually the Union National Bank was appointed as such administrator. Joseph Dondanville testified that the reason he did not tell the Roots about the 1958 transfer was to keep family harmony as long as Janet was alive, as Janet wished him to do this.
There was some evidence that the Dondanvilles were favored more by Janet than the Roots as the Dondanvilles visited her more often. There was also evidence that Janet Skinner had given the Dondanville children (that is the children of Joseph, John and Janet) $500 government bonds prior to 1958 when no such gifts were made to any of the Root family.
With respect to the bank deposit under consideration, eleven days before Janet Skinner died, John Dondanville deposited $12,000 in cash in a savings account and $2,310 in a checking account and both accounts were set up in the names of "John Dondanville and Joseph D. Dondanville, Agents." John Dondanville discussed these funds and the ownership of the funds with a Mr. Olson of the bank and, after such conversation, Mr. Olson suggested that the word "Agent" be used so as to distinguish such account from John's own account, and Olson also testified that John said when he opened the account, "This is money we have gotten for Aunt Jen. It's too much to be laying around and we will do this with it." Janet Dondanville Schroeder testified that David Skinner told her that he, David, had given John the money for Aunt Janet and it was to be used for Lida if there was any left after Aunt Janet was gone. In a conversation after Janet died and before she was buried, John Dondanville told Russell Root that he had money of Aunt Jen's to use to pay her funeral expenses and that it was around $17,000. John further said he would make an accounting of the funds to the whole family including the Roots. About two weeks after Janet died, John withdrew $2,000 in the account and paid this to David Skinner to reimburse him for medical bills of Janet which he had paid. Janet's funeral bill and other bills were paid out of this account. There was still $10,763.73 in checking and savings accounts when David Skinner died in February of 1966. Four months later, John Dondanville withdrew the balance in both accounts and put the money in the David Skinner Estate. The name of David Skinner had never appeared on any of the accounts. John Dondanville, however, testified that David Skinner had given him this cash to open the accounts and told him to use it to care for Aunt Jen and Lida, if necessary.
[1-4] The principal issue before us is whether a valid gift of the stock was established by the evidence presented in the trial court. In a citation proceeding of the type before us, the individuals holding the property contending they received the property as a gift, had the burden of proving such gift (Dudley v. Uptown Nat. Bank of Moline, 25 Ill. App.2d 514, 167 N.E.2d 257; In re Estate of Hackenbroch, 35 ...