APPEAL from the Circuit Court of Clinton County; the Hon.
ARTHUR G. HENKEN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by parties defendant, Margaret E. Christenson et al., from a judgment entered by the circuit court of Clinton County in favor of the plaintiff, First Presbyterian Church, on plaintiff's complaint to set aside and cancel the deeds to certain properties conveyed by defendants Christenson, Margaret E. and Harold J. Christenson, to the following named co-defendants, Rosemary Springer, Helen May Clark, Nancy Joan Valles and August A. Grundei. The trial court found that defendants Christenson executed these deeds in violation of the contractual agreement contained in the joint and mutual will executed by defendant Margaret E. Christenson and her previous husband, Lewis H. Johnson, now deceased. Counsel for appellants has appropriately characterized this appeal in the following manner, "This unique and esoteric problem comes before this court upon the wings of a will fettered by a contract and complicated by joint ownership."
On September 17, 1963, Lewis H. Johnson, now deceased, and his wife, now the defendant Margaret E. Christenson, executed a joint and mutual will. At the time of execution all of the real property owned by the testators was owned in joint tenancy. The pertinent portions of that will are found in the second, third and final sections. The second section is a general devise and bequest leaving all of the deceased's property to the survivor. The third section provides for the distribution of property at the death of both testators. The final section provides that "this joint and mutual will is made in pursuance of a contract or agreement" between the testators.
The instant controversy centers around the third section of this will. Paragraph (b) of the third section of the will provides for the devise of two pieces of realty to the plaintiff upon the demise of both testators. In paragraph (d) of the third section appears the following language which is the focal point of the dispute between the parties:
"* * * that in the event Lewis H. Johnson shall become deceased first that Margaret E. Johnson shall at no time sell the real estate listed in Paragraph Third (b) above, but can sell any of the other real estate * * *." (Emphasis supplied.)
Lewis H. Johnson died on October 22, 1964. On December 7, 1964, Margaret E. Johnson, now defendant Margaret E. Christenson, was granted Letters Testamentary and said joint and mutual will was admitted to probate. Throughout the probate proceedings the plaintiff was listed as a devisee and as an "interested party." In Schedule E of her State inheritance tax return Margaret E. Johnson listed her interest in the property described in paragraph (b) as a "life estate." Plaintiff's interest was valued; however, the interest of plaintiff was not described. A final report was filed and approved, and the estate was closed.
Subsequently, Margaret E. Johnson married Harold J. Christenson. On April 25, 1967, defendants Christenson executed two warranty deeds to the property listed in paragraph (b) of the third section of the will conveying it to the aforementioned co-defendants, who were the nieces and nephew of defendant Margaret E. Christenson. The recited consideration in such deeds was "for and in consideration of $10.00 and other good and valuable consideration." These deeds were recorded on May 1, 1967. Defendants Christenson filed Federal gift tax returns as a result of this transfer.
In September, 1972, the plaintiff inquired of co-defendant August A. Grundei about this property after its minister had observed a "for sale" sign on the property bearing Grundei's name. In response to this inquiry defendant Grundei wrote the plaintiff and informed plaintiff that it owned no interest in the property. After the plaintiff's written demand to remove the "for sale" signs and to cease attempting to sell the property was ignored, the plaintiff filed its complaint requesting the trial court to set aside and cancel the deeds to the property conveyed by defendants Christenson to co-defendants Grundei, Springer, Clark, and Valles.
After the trial court disposed of various pretrial motions, the cause was called to trial on June 21, 1974. Throughout the trial the trial court steadfastly refused to permit parties defendant to proffer any evidence to show what, if any, consideration was exchanged between defendants Christenson and the co-defendants in return for the execution of the deeds. At the conclusion of the trial the trial court granted the relief requested by the plaintiff in its complaint, by declaring the deeds null and void and "set aside, annulled and cancelled" them; and declared that Margaret E. Christenson had a "life estate only" and that plaintiff "owned the fee simple title" to the two parcels of real estate subject to the "life of Margaret E. Christenson" and "subject to the restrictions as to use of said property under the provisions of said paragraph Third (b) of said Will." The decree further "enjoined permanently" Margaret E. Christenson "from conveying, attempting to convey, or encumbering" the property "in any manner or form."
• 1-6 Obviously the trial court in entering such decree ignored the fact that whatever interest of Lewis H. Johnson in these tracts (which were held in joint tenancy by Lewis and Margaret) that Margaret took at his death, was taken by operation of law and that Margaret took no interest in them by the will. In order to terminate the existing joint tenancy and sever such relationship one or more of the four unities, interest, title, time, or possession, must be destroyed. (Jackson v. O'Connell, 23 Ill.2d 52, 177 N.E.2d 194; Bradley v. Fox, 7 Ill.2d 106, 129 N.E.2d 699.) As stated by our Supreme Court in Tindall v. Yeats, 392 Ill. 502, 510, 64 N.E.2d 903, 906, "A severance means a separation of the interests of the joint tenants, a vesting of the interest of one, separated from the interest of the other, in some third person." Citing Tontz v. Heath, 20 Ill.2d 286, 170 N.E.2d 153, the plaintiff claims that,
"Lewis H. Johnson and Margaret E. Johnson, in a single instrument, gave up the right of absolute ownership of real estate held by them in joint tenancy and treated the property as a common pool, the disposition of which was made by both of them in the joint and mutual will."
"The joint tenancy of Lewis H. Johnson and Margaret E. Johnson did not pass to the survivor inasmuch as the land held in joint tenancy was subject to the contract embraced in the joint and mutual will."
While we agree with the proposition that the disposition of property held in joint tenancy can be the object of a joint and mutual will (Helms v. Darmstatter, 56 Ill. App.2d 176, 205 N.E.2d 478, aff'd, 34 Ill.2d 295, 215 N.E.2d 245; Jusko v. Grigas, 26 Ill.2d 92, 186 N.E.2d 34; Tontz v. Heath, 20 Ill.2d 286, 170 N.E.2d 153; Bonczkowski v. Kucharski, 13 Ill.2d 443, 150 N.E.2d 144) and with the proposition that a court of equity may, under appropriate circumstances, enforce a contractual agreement contained in a joint and mutual will and limit its disposition by the survivor (Jusko v. Grigas, 26 Ill.2d 92, 186 N.E.2d 34; Tontz v. Heath, 20 Ill.2d 286, 170 N.E.2d 153; Bonczkowski v. Kucharski), the mere fact that joint owners enter into a joint will which provides for the disposition of the property after the death of the survivor of them does not terminate the joint tenancy (Jerzyk v. Marciniak, 10 Ill.2d 529, 140 N.E.2d 692). For an agreement to terminate a joint tenancy the parties must enter into either an agreement which expressly severs the joint tenancy (Duncan v. Suhy, 378 Ill. 104, 37 N.E.2d 826, transferred, 315 Ill. App. 147, 42 N.E.2d 636; Thomas v. Johnson, 12 Ill. App.3d 302, 297 N.E.2d 712) or a valid contract containing provisions clearly inconsistent with continuation of the joint tenancy (see Siemianoski v. Union State Bank, 242 Ill. App. 390. See also Annot., 64 A.L.R.2d 918, 945-47, § 20 (1959)). It also must be remembered that for such agreements to terminate the joint tenancy they must be operative before the death of the cotenant and before the other, as a consequence thereof, becomes owner by right of survivorship. (Klajbor v. Klajbor, 406 Ill. 513, 94 N.E.2d 502.) Since the joint and mutual will executed in the instant case showed no design to immediately destroy any of the four unities incidental to the Johnsons' ownership of property in joint tenancy (see Jerzyk v. Marciniak, 10 Ill.2d 529, 140 N.E.2d 692), the joint tenancy continued and Margaret E. Johnson, as the survivor, took the property by operation of law (see Bonczkowski v. Kucharski, 13 Ill.2d 443, 150 N.E.2d 144). The plaintiff, on the other hand, received no interest in the property under the will. Instead, plaintiff became a third-party beneficiary ...