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In Re Estate of Heilman

OPINION FILED APRIL 7, 1976.

IN RE ESTATE OF NELLIE HEILMAN, DECEASED. — (MARGUERITE EBELING, ADM'R OF THE ESTATE OF NELLIE HEILMAN, DECEASED, PETITIONER-APPELLANT,

v.

WILLIAM F. BURSON, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Tazewell County; the Hon. WILLIAM J. REARDON, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Marguerite Ebeling, administrator of the estate of her sister, Nellie Heilman, brought a citation proceeding against William F. Burson to recover the proceeds of three checks totaling $18,000, together with certain securities and certificates of deposit having a value of $34,900 which the deceased had placed in Burson's possession during her lifetime. Pursuant to the provisions of the Probate Act set out in the footnote, *fn1 the Circuit Court of Tazewell County ruled that Nellie Heilman had made valid inter vivos gifts to Burson, who was not related to her, and that the disputed assets were his property. Petitioner appeals from the judgment entered in favor of Burson, contending that the findings and judgment were manifestly against the weight of the evidence.

According to the evidence, when Nellie Heilman was about 80 years of age, in 1968, her third husband died, and she purchased a life estate in a house in Pekin from Arlene Gauger, her late husband's niece, for $2,500. Shortly after moving into the home, Nellie became acquainted with Burson, age 40, who lived alone a few doors from Nellie. Nellie's sister, Mrs. Ebeling, and her sister's daughter and family lived in East Moline, Illinois. During the last two or three years of her life, Nellie had very little contact with any of her relatives. No question was raised as to her mental capacity, and she continued to manage her own affairs until her death, which was apparently sudden and unexpected. She left no will.

During the last two years, Burson visited Nellie almost every day, sometimes preparing or purchasing hot meals for her, taking care of screens and storm windows, repairing her fence and porch railing, replacing her front steps, helping with her laundry, taking her for rides, buying her groceries and doing numerous other personal favors. He also made out her deposit slips and took her deposits to the bank, helped her fill out checks to pay her bills and gave her advice when salesmen came to her house. He kept his car in her garage without charge, and did not ask to be compensated for his labor, the materials he purchased when making repairs, or for the food he provided.

According to Burson, Nellie gave him a check for $2,000 dated January 21, 1972, telling him that she wanted him to have it for the things he did for her around the house. Burson used the $2,000 as a down payment on the purchase of a house. In 1973, following a general conversation in which Burson had mentioned he would like to get out of factory work and start a business of his own, Nellie gave him a check for $10,000 dated March 22, 1973, saying that she wanted him to have it so he could have his own business. Burson used the $10,000 to start a dry cleaning establishment in November, 1973. In June of 1973, Nellie gave Burson another check, this time for $6,000 saying that he should get a new car so he could take her for more rides. Shortly thereafter he purchased a 1971 Cadillac for $3,900.

Burson also testified that sometime during 1971 or 1972, Nellie came to his house with an envelope containing seven securities, including five investment certificates representing $34,900 deposited in various savings institutions. *fn2 Nellie had previously signed her name as transferor on the back of each of the five certificates. She told Burson she wanted him to have the certificates because he was the only friend and relative she had. She brought a pen with her and instructed him to place his name on the instruments as transferee, saying that she would not leave until he did. He then printed his name on each instrument, but the lines for designating the date and a witness were left blank. Burson placed the certificates in a lock box in his closet and did not at any time attempt to transfer ownership to his name on the books of the institutions involved. According to Burson, these securities were Nellie's only source of income other than a small social security pension and $59 she received monthly from the sale of a trailer, and he said, "I sure wasn't going to cash them in and keep her from getting those checks." Nellie did continue to receive all the interest from the securities until her death.

At the time Nellie died, Burson had in his possession five checks for interest on the securities, totaling $523.90, which he had not yet deposited in Nellie's bank account and which he voluntarily turned over to the administrator. During cross-examination of Burson, the following colloquy took place:

"Q. So actually, during the lifetime of Nellie Heilman you made no claim at all to these certificates?

A. Do you mean, did I want to collect any money on them? Is that what you mean, Bob? No. No way.

Q. You didn't claim any ownership on those certificates in her lifetime?

A. No.

Q. It is only after her death that you are claiming them, is that right?

A. Right.

Q. In other words, you think it was Nellie Heilman's intention that you have them after her ...


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