Appeal from the Circuit Court of Cook County; the Hon.
CORNELIUS J. HARRINGTON, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 9, 1969.
Plaintiff brought an action in the Circuit Court of Cook County for the conveyance to her by defendants of their interest in certain real estate. The defendants filed a counterclaim alleging that they, along with their sister, are entitled to certain personal property in possession of plaintiff and praying for delivery thereof, as well as an accounting for any such property which may have been disposed of by plaintiff. By stipulation of the parties during the proceedings before the master, the question of an accounting was reserved pending a determination of the issue raised by plaintiff's defense to the counterclaim. The master made findings of fact favorable to plaintiff on her complaint as well as on the counterclaim and recommended that judgment be entered for her on both. The findings of the master were adopted by the chancellor, objections thereto having been overruled, and judgment was entered for plaintiff on both the original complaint and the counterclaim. Defendants appeal only from that portion of the judgment entered in favor of plaintiff on their counterclaim.
Bacia Gordon is the widow of Simon Gordon who died intestate. Defendants Leo and Alex Gordon are the brothers of the decedent. On April 28, 1962, one day prior to their marriage, Bacia Gordon and Simon Gordon entered into a prenuptial agreement which provided:
(1) Within 30 days after the marriage Simon was to convey certain real estate located in Chicago, Illinois, which was to be used as the marital domicile to himself and Bacia in joint tenancy.
(2) All other property of the parties was to remain their separate property, whether then owned or thereafter acquired, with each party retaining the right to dispose of any such property free from any claim of the other which might otherwise arise by reason of their marital relationship.
(3) In the event that either party should die during the existence of the marital relationship, the marital domicile and its furnishings was to become the sole property of the survivor.
(4) The parties waived all right and interest, statutory or otherwise and including distribution in intestacy and widow's allowance, which might arise by reason of the marriage relationship.
(5) Each party reserved the right to transfer property to the other by will or otherwise, and each retained the right to receive such a transfer if made.
They were married on April 29, 1962, and Simon Gordon died intestate on May 1, 1962, before he had the opportunity to transfer the marital domicile into joint tenancy with Bacia Gordon as provided in the prenuptial agreement. The plaintiff is the sole taker of the property of the decedent under the statutory rules on descent and distribution (Ill Rev Stats, c 3, § 11).
In their counterclaim defendants alleged that they, along with their sister and plaintiff, constituted the sole heirs at law of Simon Gordon; that plaintiff has certain personal property belonging to Simon Gordon at the time of his death, consisting of certain objects of art (sculpture) created by him, to which she has no right or interest by reason of her having executed an express waiver of right to participate in the distribution in intestacy as part and parcel of the prenuptial agreement. The counterclaim further alleged that defendants and their sister are the sole owners of said personal property and are entitled to possession thereof as well as an accounting for any such property which may have been disposed of by Bacia Gordon, plaintiff. The sister of defendants was not a party to this proceeding as she voluntarily deeded to plaintiff her interest in the realty which was the subject of plaintiff's complaint, that being the parcel described in the prenuptial agreement.
Plaintiff's answer to the counterclaim alleged that the personalty (sculpture) in question was given to her by Simon Gordon prior to his death. The master found that the gift had been made and recommended that judgment be entered for plaintiff on the counterclaim as well as on her complaint. The findings of the master were adopted by the chancellor and judgment was entered in accordance with the former's recommendations.
In this appeal defendants allege that plaintiff failed to meet her burden of proof with respect to her allegation that an inter vivos gift had been effected in that neither donative intent nor delivery have been shown. Citing Rinehart v. Rinehart, 14 Ill. App.2d 116, 143 N.E.2d 398 (1957); Dudley v. Uptown National Bank of Moline, 25 Ill. App.2d 514, 167 N.E.2d 257 (1960); In re Estate of Schneider, 6 Ill.2d 180, 127 N.E.2d 445 (1955); Keshner v. Keshner, 376 Ill. 354, 33 N.E.2d 877 (1941); Schramm v. Schramm, 13 Ill.2d 281, 148 N.E.2d 799 (1958).
Donative intent is an intention on the part of the donor that there be a present and irrevocable transfer of title to the subject matter of the gift. Delivery constitutes the means through which the intent of the donor is given effect. It consists of an irrevocable surrender of dominion ...