Appeal from the Circuit Court of Williamson County; the Hon.
JOHN H. CLAYTON, Judge, presiding. Reversed and remanded.
Rehearing denied March 9, 1970.
This is an appeal from the trial court's decision which held in favor of petitioner-cross-respondent, John Anderson, Administrator of the Estate of Albert H. Watson, deceased (herein called "petitioner"), and against the respondent-cross-petitioner, Martha Ransaw (herein called "respondent").
Petitioner filed a petition for citation to discover assets. The assets relevant to this appeal are three savings account passbooks. One was account number 2643 in the Herrin Security Bank of Herrin, Illinois, showing a balance of $3,195.57; the second was account number 26588 in the National Bank of Detroit showing a balance of $1,457.26; and the third was account number SS 171 in the National Bank of Detroit showing a balance of $8,488.83.
In respondent's reply to the petition, she admitted possession of the passbooks and cross-petitioned the court for a determination that all right, title and interest in said passbooks rested in her, alleging an inter vivos gift of the passbooks was made to her by decedent, prior to his death.
After a hearing before the court without a jury it was ordered that the passbooks be turned over to the petitioner.
Facts in this case show the decedent moved from Detroit, Michigan, to Colp, Illinois, in July, 1966, and resided there until his death some 5 or 6 weeks later. During this time respondent and her then 11-year-old son, Allen, resided with the decedent, as they had in Detroit at some time prior to their moving to Illinois.
The respondent was called as a witness by her attorney and testified over objection to events surrounding her acquisition of the passbooks. In essence, she testified that on August 5, 1966, she, the decedent, and her son Allen were in her bedroom in the home in Colp when decedent stated he was going to give her something. He handed her the key to a cedar chest located in the bedroom. She was unable to open it and her son Allen assisted. When the chest was opened the decedent took the passbooks from it and said they were hers. She took the passbooks, looked at them and replaced them in the chest. She then locked the chest and placed the key in her wallet. She retained the key in her possession from that point on, and upon the death of decedent took the passbooks to her attorney. Respondent's testimony was corroborated by that of Allen, who at the time of trial was 13.
In addition there was testimony of two neighbors of decedent, one of whom had known decedent for 50 years and had transacted business for him, as to conversations in which decedent had stated that it was his desire that his children receive nothing when he died.
The objection to respondent's testimony was taken under advisement by the court. The respondent subsequently moved the court to call respondent as its own witness under chapter 3, section 185, Ill Rev Stats, or in the alternative, to adopt respondent's testimony, previously given, as the testimony of a court witness. This motion was denied. Although it is not entirely clear from the record, the denial of respondent's motion indicates a failure to consider the testimony. Respondent cites this failure to consider as error under section 185 of the Probate Act (Ill Rev Stats 1961, c 3, § 185) and the case of In re Estate of Hill, 30 Ill. App.2d 243, 174 N.E.2d 233 (1961).
The pertinent provision of the Probate Act reads as follows:
"At the hearing the Court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title, and the right of property, and may enter such orders and judgment as the case requires."
This section has been considered by the Illinois Courts in a number of decisions. The Appellate Court stated in Storr v. Storr, 329 Ill. App. 537, 69 N.E.2d 916 (1946), at page 918:
"The legislature has provided therein a summary remedy for the recovery of property and the discovery of information. Its primary purpose is to discover assets of estates, and the court is authorized therein to make such orders as the case may require. Horner, Probate Practice, Chap 42, § 1075, Martin v. Martin, 174 Ill. 371, 51 N.E. 691, 66 Am Stat Rep 290; Keshner v. Keshner, 376 Ill. 354, 33 N.E.2d 877. The proceeding is purely statutory, and is neither at law nor in equity. It bears the equitable aspects of a bill of discovery, while at the same time providing for an optional jury as at law, on demand of the parties where questions arise concerning claims of adverse title or interest, as in the instant case. With reference to the nature of this proceeding, the Supreme Court of ...