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Berry v. Berry

SEPTEMBER 30, 1975.

WILLIAM H. BERRY, PLAINTIFF-APPELLANT,

v.

O.L. BERRY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Saline County; the Hon. HARRY L. McCABE, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This case is an appeal from an order of the Circuit Court for the First Judicial Circuit of Illinois, Saline County, Illinois, granting the motion of the defendants-appellees, O.L. Berry, individually and as administrator of the estate of Kenneth Berry deceased, Delma Berry, Lee Arthur Berry and John K. Berry, to dismiss the complaint of the plaintiff-appellant, William H. Berry.

Kenneth Berry died October 16, 1971, intestate, a resident of Saline County. His estate was duly filed for administration and that proceeding was approaching the final accounting when the instant controversy began by the plaintiff-appellant's motion to stay any approval of a final accounting pending a determination of a complaint filed contemporaneously therewith. This motion was granted.

The complaint under consideration alleged in pertinent part: (1) that the plaintiff-appellant is an heir of Kenneth Berry, deceased; (2) that each of the defendants-appellees are heirs of the decedent; (3) that on June 22, 1964, the decedent and his widow, Delma Berry, made a warranty deed to Lee Arthur Berry and O.L. Berry of an undivided one-half interest in certain described real property; (4) that the following language appeared on the face of the purported warranty deed after the description:

"In consideration of the above conveyance, the grantees, Lee Arthur Berry and O.L. Berry, or their respective successors in title, are each to pay to the grantor, Kenneth Berry, the sum of Five Hundred Dollars ($500.00) each year for a period of eighteen (18) years, provided, however, if the said Kenneth Berry should die prior to the expiration of said eighteen (18) years, leaving the grantor, Delma Berry, surviving, then said yearly payments thereafter are to be made to the said Delma Berry; and provided further that upon the death of the survivor of said grantors, Kenneth Berry and Delma Berry, if the death of such survivor occurs prior to the expiration of said eighteen (18) years, then said grantees, Lee Arthur Berry and O.L. Berry, shall each of them, or their respective successors in title, pay each year during the remainder of said eighteen (18) year period, Two Hundred Fifty Dollars ($250.00) to William Harris Berry and Two Hundred Fifty Dollars ($250.00) to John Kenneth Berry";

(5) that these purported covenants included in the warranty deed are improper testamentary dispositions as they are not executed in conformity with the provisions of the Probate Act (Ill. Rev. Stat., ch. 3, par. 43).

The defendants-appellees filed a motion to dismiss the complaint for failure to state a cause of action. This motion to dismiss was granted, the stay of the final accounting was terminated, and the estate was closed. This court is concerned on this appeal with that order granting the motion to dismiss for failure to state a cause of action.

Appellees begin their brief with the argument that because the complaint does not allege that the defendant owned any interest in the realty no cause of action is stated, for if in fact the decedent had no interest his estate could not, prima facie, claim one. While Illinois is not a notice-pleading State, likewise it is not a fact-pleading State. (Cf. Ill. Rev. Stat., ch. 110, pars. 33(1), 40(1), 42.) To that end, in Illinois, "[p]leadings shall be liberally construed with a view to doing substantial justice between the parties." (Ill. Rev. Stat., ch. 110, par. 33(3).) And "[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet." (Ill. Rev. Stat., ch. 110, par. 42(2).) Finally, "[a]ll defects in pleadings, either in form or substance, not objected to in the trial court are waived." (Ill. Rev. Stat., ch. 110, par. 42(3).) Very little liberal construction is necessary to ascertain the basis of appellant's complaint and the defendants-appellees were reasonably informed as to the nature of appellant's claim. Appellees' motion to dismiss did not raise an objection to this alleged defect. Thus, irrespective of the complaint's sufficiency in this regard, appellees cannot raise such an alleged defect in the initial instance on the appellate level. We, therefore, reach the merits of this cause.

At the outset it is important to note that the appellant does not contend that the deed itself is an improper testamentary disposition. The parties are in agreement that this document properly passed the title of the described realty to the within named grantees. With this consensus we agree. The instrument names grantors and grantees, there is a valid consideration recited, apt words of conveyance are present, and the document appears to have been duly executed, acknowledged and delivered as required by law. (Young v. Payne, 283 Ill. 649, 654, 119 N.E. 612; Ill. Rev. Stat., ch. 30, par. 8.) Thus, it is an instrument properly denominated a deed and which successfully passed title to the named grantees.

Appellant's argument is more subtle. He begins with the proposition that any instrument which purports to be of a testamentary nature must comply with the requirements of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 1 et seq.) in order "to be valid and to effectively accomplish the purpose of the testator in conveying property." He then argues that, while this instrument is sufficient as a deed to transfer title to the real estate, the subsequent language therein is of a testamentary nature, i.e., a purported conveyance of a debt at death. Thus, he concludes, because the instrument is not executed with the formality of wills, the purported conveyance of a debt is invalid and the debt is an asset of the estate here subject to the rules of intestacy. Appellant then discusses a number of cases to illustrate his position.

While this precise question appears to be one of first impression in Illinois, we conclude that appellant's contention is not supported by law. Thus, as a matter of law the complaint fails to state a cause of action, and the order of the trial court granting the motion to dismiss the complaint is affirmed.

Irrespective of what, if any, semantic label is attributed to this payment provision, the cases in Illinois have consistently held that questions such as these are ones of control. If an individual fully, and in fact, parts with the control of an object, real or personal, then the conveyance is not in the nature of a testamentary disposition. If, on the other hand, an individual purports to part with the control of an object, real or personal, while actually retaining the power to revoke the transfer unilaterally until his death, then the conveyance is in the nature of a testamentary disposition and subject to the requirements of the Probate Act. A close reading of the cases discloses this determinative factor of control.

In Jennings v. Neville, 180 Ill. 270, 278, 54 N.E. 202, a father gave a deed to his son reciting a consideration of $6619.20. The son then executed two notes, one for $3310 due one year after date, and one for $3309.20 due two years after date. On the same day the father and the son executed a separate agreement providing that upon the father's death the son would pay two bequests in the father's will totaling $2200, upon which event the two notes would be cancelled and delivered to the son. The father contemporaneously therewith executed a proper will naming the two beneficiaries. Subsequently, however, the father destroyed the will and died intestate. The court held that the separate agreement executed by the father and son was an improper testamentary disposition of the notes, $2200 to two named persons and the remainder to the son. The court stated that:

"The disposition of the property [the notes] attempted to be made was not absolute, but was executory and testamentary in ...


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