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In Re Estate of Baxter

JANUARY 17, 1973.

IN RE ESTATE OF AMOS P. BAXTER, DECEASED — (THE SECOND NATIONAL BANK OF DANVILLE, ADMR. WITH THE WILL ANNEXED OF THE ESTATE OF AMOS P. BAXTER, DECEASED, PETITIONER-APPELLEE,

v.

FRANK BREWER ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Vermilion County; the Hon. PAUL M. WRIGHT, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

The circuit court of Vermilion County, in a citation proceeding, held that a certain certificate of deposit issued by the Rankin State Bank was the property of the Estate of Amos Baxter, deceased, the depositor. Frank and Carrie Brewer, listed as joint tenants on the account, appeal. We affirm.

The subject certificate of deposit was issued in July of 1967 and recited that Baxter and the Brewers had deposited $13,500 in the bank. The certificate was payable after maturity to Baxter or Frank Brewer or Carrie Brewer, as joint tenants with right of survivorship. The trial court concluded that the certificate of deposit was a "deposit" and that in the absence of an agreement in writing, signed by the prospective joint tenants, no joint tenancy was created. The thorough memorandum of the trial court makes it clear that in the opinion of that court the transaction is controlled by paragraph 2(a) of ch. 76, Ill. Rev. Stat. 1967, as interpreted in Doubler v. Doubler, 412 Ill. 597, 107 N.E.2d 789, and Frey v. Wubbena, 26 Ill.2d 62, 185 N.E.2d 850. We agree with that determination.

Paragraph 2(b) of the cited statute relates to stocks, bonds, or other evidence of indebtedness issued or registered by any corporation, association or other entity, in the name of two or more persons as joint tenants. An agreement signed by all joint tenants is not a condition precedent to the creation of a joint tenancy in such instruments. By the language of sub-section (a), relating to deposits in any bank or trust company, such a signed agreement is required.

• 1 A certificate of deposit of a bank perhaps has some incidental relationship to the instruments referred to in sub-section (b), particularly "evidence of indebtedness". Essentially, however, it is a bank deposit and we agree with the determination of our colleagues in the Fifth District that certificates of deposit should be treated as any other bank deposit, checking account, savings account or any variable of the same. See In re Estate of White, 4 Ill. App.3d 505, 282 N.E.2d 235, Petition for Leave to Appeal allwd. Sept. 28, 1972, S.Ct. Gen. No. 45174.

Thus, we hold that a certificate of deposit is a "deposit" within the contemplation of sub-paragraph (a) of the cited statute and a signed agreement by all prospective joint tenants is necessary in order to create rights of survivorship in the deposit.

• 2, 3 The respondents assert that the citation proceeding was limited to discovery, or at least that it failed to allege sufficient facts to apprise them of the nature of the proceeding. The petition for citation alleged that the Brewers had in their possession certain assets of the estate of the decedent, specifically listing the certificate of deposit. The petition sought discovery and such further order of the court as may be requisite. This case proceeded to trial before the court upon the issue of the right to the property — not merely discovery. (Cf. In re Conservatorship of Baker, 79 Ill. App.2d 234, 223 N.E.2d 744.) Indeed, counsel for the respondents in his opening statement indicated that the discovery aspect of the case was past and that now the court was to determine whether the property was that of the decedent or that of the respondents. In this context there could hardly be surprise or prejudice to the respondents when the issue was, in fact, expanded beyond discovery to the question of title to the property. The issue of title may be determined in a citation proceeding. Ill. Rev. Stat. 1967, ch. 3, par. 185; In re Estate of Garrett, 81 Ill. App.2d 141, 224 N.E.2d 654.

• 4 Since no joint tenancy was created there is no presumption of donative intent. (Murgic v. Granite City Trust & Savings Bank, 31 Ill.2d 587, 202 N.E.2d 470.) This record cannot be said to establish by the requisite evidence that there was a completed gift. The judgment of the circuit court of Vermilion County was correct and that judgment is affirmed.

Judgment affirmed.

SIMKINS, J., concurs.

Mr. PRESIDING JUSTICE TRAPP dissenting:

I must dissent from the principal opinion for the reason that it does not take into account the particular characteristics of the instrument, but considers that it "should be treated as other bank deposits, checking accounts or savings accounts", upon the authority of In re Estate of White, 4 Ill. App.3d 505, 282 N.E.2d 235.

The instrument involved was in words and ...


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