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In Re Estate of Fidler

OCTOBER 17, 1974.

IN RE ESTATE OF MARGARET G. FIDLER, DECEASED — (IRENE MIDDAUGH, EX'R, PETITIONER-APPELLANT, CROSS-APPELLEE,

v.

KEYSTONE CUSTODIAN FUNDS, INC., ET AL., RESPONDENTS-APPELLEES, CROSS-APPELLANTS).



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.

MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Irene Middaugh, as executrix of the estate of Margaret G. Fidler, deceased, petitioned the circuit court of Cook County for the issuance of a citation to recover stock and proceeds of redeemed stock allegedly held by decedent and Bernadine V. Strand in tenancy in common at the time of decedent's demise. The primary issue presented is whether the trial court was correct in determining that Mrs. Strand was a surviving joint tenant. Named as respondents in addition to Mrs. Strand were Link, Gorman, Peck and Company (hereinafter "Link"), decedent's investment dealer; National Securities and Research Corporation (hereinafter "NSRC"), American Mutual Fund, Inc. (hereinafter "American") and Keystone Custodian Funds, Inc., and Investment Companies Services Corporation (hereinafter "Keystone"), the corporations whose stock is involved in this action, and the Bank of New York, the successor trustee of a stock series in NSRC. Upon being served with a citation summons, Keystone, a New York Corporation, filed a special appearance and moved to quash on the ground that the court lacked jurisdiction over it. After the court denied the motion to quash summons, Keystone joined the other respondents in maintaining that Mrs. Strand was the surviving joint tenant in the stock. After a hearing, the court denied the petition and discharged the respondents. Petitioner appeals.

Petitioner contends that the trial judge erred in concluding that a joint tenancy had been created in the stock and in refusing to admit into evidence two of her exhibits. Respondents argue that the court's decisions were correct, and Keystone additionally contends that it is protected by statute in its redemption of some of the stock upon Strand's request after decedent's death. Keystone has also filed a cross-appeal from the trial court's order denying its motion to quash service of summons.

Since we have concluded that it is necessary only to consider the issues raised by petitioner to dispose of the appeal, the following statement of facts shall pertain to those issues only.

Until the fall of 1966, the decedent and her husband Harry Fidler owned in joint tenancy shares of stock in the mutual funds of American, Keystone, and NSRC. The Fidlers also participated in level payment withdrawal plants in Keystone and NSRC whereby they would receive monthly checks.

On August 17, 1966, the decedent wrote letters to Keystone and NSRC requesting a change in the title of the payment accounts. The letters, typed on stationery bearing Link's letterhead, expressed the Fidlers' desire to transfer ownership in the accounts to "Margaret G. Fidler and Bernadine V. Strand." The decedent, who signed the letters along with Mrs. Strand, did not expressly indicate the precise legal manner in which the accounts were to be held. Enclosed in the letter to NSRC was an application form, dated August 31, 1966, for that company's level payment withdrawal plan. The application had been prepared by Link and had been signed by the decedent and Mrs. Strand. Printed in the space reserved for the listing of the shareowners was "Margaret G. Fidler and Bernadine V. Strand (Jointly)." NSRC, as well as Keystone, subsequently transferred ownership in the accounts into the names of the two women as joint tenants with right of survivorship. Since decedent directed in her letter to Keystone that the monthly checks were to be issued in her name alone, Keystone sent to her at regular intervals statements of account in the plan reflecting the manner in which legal title was held.

Link sent letters, dated August 31, 1966, to the stock transfer departments of the corporate respondents directing that the stock ownership was to be transferred to decedent and Mrs. Strand in joint tenancy with the right of survivorship. The letters were enclosed with the Fidlers' old stock certificates, which bore their blank endorsements on the reverse side. Petitioner concedes that the stock certificates which were subsequently reissued bore the names of the two women as the owners followed variously with the initials "JT," "JTWRS," and "JT TEN WROS."

Decedent executed a will on October 3, 1969, and died on December 18, 1970. Her will, admitted to probate, contained several bequests of general legacies to her relatives. Her residuary estate was to be divided among several specific charities. The will made no mention of Mrs. Strand or the stock holdings. The executrix stated in her petition that an inventory of decedent's assets had disclosed that the stocks involved in the present action encompassed her entire estate.

Some oral testimony was also adduced at the hearing. The first two witnesses called by petitioner were Nancy Whitten, an attorney representing Keystone, and Edward Malone, an officer in charge of the transfer department of a subsidiary of Keystone. By their combined testimony petitioner hoped to lay a foundation for the introduction of two exhibits. The exhibits purported to be the general transfer certifications of Keystone, signed by the Fidlers, relating to the change in stock ownership. The documents recited that the stock was to be transferred to the decedent and Mrs. Strand, but failed to state the precise legal manner in which the stock was to be held. Keystone conceded that the documents were originals and that they had been obtained from Keystone's archives. The trial court denied their admission into evidence because of a lack of authentication.

Mrs. Strand testified that Harry Fidler had been her brother-in-law. She stated that decedent had lived with her up to a year before her death.

Petitioner testified that the decedent came to live with her after leaving Mrs. Strand. She testified that decedent had tried to get her to remove Mrs. Strand's name from the stocks because "the money was all hers and that she [Mrs. Strand] treated her so mean that she had to move away from her."

A neighbor of the petitioner testified that he had accompanied the decedent to Mrs. Strand's home on two occasions to recover personal belongings and implied that Mrs. Strand initially had obstructed them.

Petitioner's first and primary contention is that the trial court erred in implicitly concluding that the evidence showed that the decedent had created a joint tenancy and not a tenancy in common with Mrs. Strand in the stock.

• 1-5 The key provision in this regard is section 2(b) of "An Act to revise the law in relation to joint rights and obligations" (Ill. Rev. Stat. 1971, ch. 76, par. 2(b)). That ...


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