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In Re Estate of Key

SEPTEMBER 20, 1974.




APPEAL from the Circuit Court of Williamson County; the Hon. STEWART CLUSTER, Judge, presiding.


Petitioner appeals from a judgment of the trial court dismissing her suit to quiet title to the property on which her father resided prior to his death.

This case involves a petition by the administrator of the estate of Guy William Key to sell real estate and to quiet title thereto by voiding a deed executed by the decedent to his son, Kenneth Key, the respondent-appellee, on account of non-delivery of the deed by the decedent during his lifetime. After a hearing on the petition, the circuit court of Williamson County in a non-jury trial, found that the decedent in his lifetime had executed and delivered to his son, Kenneth Key, a deed to the real estate in question, and that at the time of the decedent's death the real estate was owned and now is owned by the respondent. The court then dismissed the case for want of equity.

The evidence discloses that on December 2, 1968, the decedent called Raymond Miller of Marion, Illinois, a lay person who regularly prepared deeds for persons in Marion, for the purpose of making a deed to the premises where he was living. Miller testified that he was asked to prepare a deed and that after 4 o'clock in the afternoon of the day the decedent called him, he went to the decedent's house with the prepared deed, that Guy Key signed it in his presence and that he then notarized it. He also testified that in his opinion the grantor was of sound mind and able to conduct business at the time.

There is no more evidence concerning the deed until December 1, 1969, when the decedent went to the Bank of Marion and rented a safe deposit box, making his son a deputy with access to the box. Wanda Melvin testified on behalf of the respondent that she was employed at the Bank of Marion and that she knew both Kenneth Key and Guy Key, the decedent; she recognized the deed and she further testified that Guy Key stated that he did not want to keep the deed at home; that he wanted to put it in a safe place and he decided to rent a safe deposit box. "He said he deeded the property to Kenneth and that he wanted Kenneth to have the property. He said that Kenneth was always a good boy and that he deserved it." She said she saw him place the deed in the box and lock it.

Henry Beneke, vice president of the Bank of Marion, testified that the bank records disclosed that Guy Key leased a bank box on December 1, 1969, listing Kenneth Key as a deputy. Kenneth Key as deputy would have access to the box during the lifetime of Guy Key, but not after. The witness stated he knew Guy in his lifetime and knows Kenneth. He talked to Guy about his property at numerous times and Guy told him that he wanted Kenneth to have his property but he did not give a description.

The respondent, Kenneth Key, was permitted to testify over objection that his father had handed the deed to him in Wanda Melvin's presence, saying, "I'm giving you this place," and then had taken the deed and placed it in the safe deposit box.

Guy Key remained in possession of the land until his death. He did not record the deed. At his death in April of 1970, the deed remained in his safe deposit box. During the few months that he leased the box, Guy Key entered it three times. Kenneth Key never entered it until after his father's death, when, by means of inheritance tax consents received from the Attorney General, he entered it on June 1, 1970, and removed the deed. He recorded it the next day in the recorder's office of Williamson County.

On the evidence recited here, the judge found that there had been a delivery of the deed, and that the land in question belonged to the defendant. Betty Richey, the administratrix, attacks the judgment on two grounds: (1) She argues that the respondent's testimony concerning the words and acts of his father at the Bank of Marion on December 1, 1969, was made inadmissible by section 2 of the Evidence Act (Ill. Rev. Stat., ch. 51, par. 2), and (2) that there was not enough competent evidence introduced to support the finding that there had been a delivery of the deed by Guy Key to Kenneth Key.

After both sides had presented their case, the cause was continued indefinitely so that bank records missing at the time of the hearing could be produced and to allow both sides to submit briefs on the competency of the defendant-appellee to testify on his own behalf. Without notice, the court announced its decision on October 16, 1972.

Appellant first contends that the testimony of Kenneth Key was inadmissible because of section 2 of the Evidence Act (Ill. Rev. Stat., ch. 51, par. 2) which was in effect at the time this case was filed.

• 1 In an action instituted by an administratrix on behalf of a decedent's estate, this statute operates to prevent a defending party or other party in interest from testifying for himself unless certain conditions, listed in the statute, are satisfied. For example, when the representative of the deceased person elicits testimony concerning a conversation or transaction between the deceased and a defending party, the defendant becomes competent to testify upon his own motion and in his own behalf. In this case, however, the administratrix introduced no evidence concerning the conversation between the deceased grantor and the grantee in the Bank of Marion. All evidence bearing on that encounter was introduced initially by the defendant through his own testimony. The administratrix's objection that such testimony was incompetent because of the Dead Man's Statute was therefore correct and the defendant's statements about what his father had said and done on that day should have been excluded, Appellee makes several additional arguments to justify the admission of his testimony, none of which have any merit.

• 2-7 Appellant next contends that, excluding the testimony of Kenneth Key, there was not sufficient evidence to prove delivery of the deed during the lifetime of Guy Key. The law pertaining to the issues involved in this case is clearly stated in Riegel v. Riegel, 243 Ill. 626, 630-631:

"A delivery is essential to render a deed operative and give it force as a conveyance. [Citations.] No particular form or ceremony is necessary to constitute such delivery. It may be by acts without words or words without acts, or both. Anything which clearly manifests the intention of the grantor that the deed shall presently become operative and effectual, that the grantor loses all control over it and that the grantee is to become possessed of the estate, constitutes a sufficient delivery. In the case of a deed which is a voluntary settlement the law presumes much more in favor of a delivery than it does in ordinary cases of deeds of bargain and sale, and this presumption is especially strong when the grantee is an infant. As to such a deed the presumption is in favor of delivery, and the burden of proof is on one claiming adversely to show that there was no delivery. [Citation.] The law has regard to the relationship of the parties and the motives that are presumed to induce the making of such a deed, and casts the burden upon the grantor, or those who claim under him, to show that there was no delivery. [Citation.] A deed made as a voluntary settlement may be effective to vest title in the grantee although it is retained by the grantor in his possession until his death, if other circumstances do not show an intention contrary to that expressed on the face of the deed. The Grantor may deliver the deed either to the grantee or to a stranger for his use, and an acceptance by the grantee will be presumed from the fact that the deed is for his benefit, especially if the grantee is an infant. The test in all cases is the intent with which the act or acts relied upon as equivalent or a substitute for actual delivery were ...

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