APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
R. BARRETT, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
This action arose on complaint by the plaintiff, the administrator to collect for the estate of his mother, against the defendants, Denell Johnson and Exchange National Bank of Chicago, for funds defendant Johnson received from the decedent and deposited in her own name with the defendant bank. The court without a jury found that no trust was created upon receipt of the funds, but it determined that the estate was the owner of the funds. Defendant Johnson appeals from the decree awarding the funds to the estate.
The plaintiff's mother, Lois Mildred Wright, met defendant Johnson while Mrs. Wright was living at an apartment hotel where defendant Johnson was employed as a maid. As part of her duties defendant Johnson cleaned Mrs. Wright's rooms; after Mrs. Wright became ill, defendant Johnson voluntarily and regularly prepared meals for her. Mrs. Wright had two bank accounts, one at defendant bank and one at another bank. The latter, about $1000, is not in issue. On November 8, 1972, defendant Johnson brought to the defendant bank a letter purportedly in Mrs. Wright's handwriting and Mrs. Wright's passbook for an account containing $14,000. The letter said:
My son is traying [sic] to get my money from you from the Bank. I have saved it there for five years. This little lady is my best friend. Please put the money in her name, so I will know it is safe. I am sick at the Normandy Terrace My freinds [sic] name is Mrs. Denell Johnson Thank you for helping me
Mrs. Lois M. Wright 635 Barry Ave."
The bank closed the account in Mrs. Wright's name and opened a new one at defendant Johnson's request. The new account was in defendant Johnson's name as trustee; the beneficiary of the account was Mrs. Wright. Mrs. Wright died intestate on December 10, 1972.
The plaintiff filed his complaint against defendant Johnson and against the bank which holds the funds in the account, seeking an injunction to prevent withdrawal of the funds in the account and an accounting and payment of the funds to the estate. The complaint alleged that the funds received by defendant Johnson were the property of the estate and that no gift of the funds was made to defendant Johnson. A temporary restraining order was issued to prevent withdrawal of the funds before a hearing on the merits of the cause. In her answer defendant Johnson admitted that she withdrew the funds from Mrs. Wright's account and deposited them in a new account in her own name. She contended that the funds were hers and raised the affirmative defense that they were a gift from Mrs. Wright. The plaintiff filed his reply and denied that there had been a gift of the funds to defendant Johnson by Mrs. Wright.
At trial the plaintiff presented evidence which established that Mrs. Wright had an account at defendant bank and authorized defendant Johnson in writing to remove the funds in the account and that defendant Johnson removed the funds and put them in an account in her name. The plaintiff also introduced a document dated October 16, 1972, by which Mrs. Wright purportedly directed that the plaintiff be made a joint tenant on her account at defendant bank; a signature card for the joint account, signed by Mrs. Wright and the plaintiff, was also entered in evidence. The plaintiff then rested.
At the conclusion of the plaintiff's case defendant Johnson moved for a directed finding based on the plaintiff's failure to establish the existence of a trust as alleged in his complaint. The court denied the motion and required defendant Johnson to present her evidence. Defendant bank's representative was then recalled to describe the circumstances under which defendant Johnson came to transfer the funds in Mrs. Wright's account to her own. The representative conceded that the telephone numbers written on the letter from Mrs. Wright which defendant Johnson brought to the bank were in his handwriting. He agreed that he might have jotted them down at defendant Johnson's suggestion that he call Mrs. Wright to verify her authority to take the funds. He also testified that defendant Johnson chose the form of the new account and did not indicate that Mrs. Wright had given her any directions for disposing of the money.
At the conclusion of this testimony, defendant Johnson's attorney requested that the court call his client as the court's witness, under section 185 of the Probate Act. (Ill. Rev. Stat. 1973, ch. 3, par. 185.) The court agreed to do so, noting that this case, which began as an action for an injunction and accounting, had "* * * postured itself as one of determining title, rather than discovery of assets." Defendant Johnson's attorney did not object to this characterization of the case. The court then observed that by allowing defendant Johnson to testify as the court's witness, the door would be opened to admitting testimony of other witnesses if relevant to any conduct or conversations between Mrs. Wright and the parties in this case. Because this would allow the plaintiff to put on additional evidence after having rested, defendant Johnson's attorney announced that he would not present his client to testify. Noting his objection for the record, he accepted the court's invitation to conduct the examination of defendant Johnson.
Defendant Johnson testified that Mrs. Wright wished to give her the money in the account at defendant bank so that she could buy a house, that on November 8, 1972, she took to the bank the passbook given her by Mrs. Wright on November 4, 1972, and that the bank representative explained to her that if she put the money in her own name with Mrs. Wright the beneficiary, Mrs. Wright would get the money if defendant Johnson predeceased her.
Next, the plaintiff testified that he visited his mother regularly before she died and that she told him she wished him to own jointly with her the funds in defendant bank so he could pay her expenses. During one visit the plaintiff and his girl friend prepared a document for Mrs. Wright's signature, which document directed that the plaintiff be made a joint tenant of the account at defendant bank. A signature card with the plaintiff's and Mrs. Wright's signatures was executed later, after the prepared document was signed by Mrs. Wright. When the plaintiff tried to locate the passbook, however, he could not find it. He testified he inquired of defendant Johnson whether she knew where the book was; he said she denied knowing its location. At the time he allegedly spoke with her, the money had already been transferred to her name. The plaintiff's girl friend testified to substantially the same facts with respect to the visit to Mrs. Wright.
After the plaintiff's girl friend's testimony, defendant Johnson's attorney renewed his motion for a directed finding, based on the plaintiff's failure to support the allegations of his complaint, as well as on the evidence presented (presumably that tending to show a valid gift to defendant Johnson). The court took the motion with the case. Both parties filed memoranda of law. On May 24, 1973, the court entered an order finding that the issue of an accounting became moot when the defendants were restrained from withdrawing the funds in defendant Johnson's account and that the transfer of funds to defendant Johnson was a purported ...