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In Re Estate of Kime

OPINION FILED OCTOBER 14, 1976.

IN RE ESTATE OF VANCE KIME, DECEASED. — (ALICE FLOYD, PETITIONER-APPELLEE,

v.

RAYMOND KIME ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Kankakee County; the Hon. WAYNE P. DYER, Judge, presiding.

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

This is an appeal from an order of the Circuit Court of Kankakee County which directed executors of the estate of Vance Kime, deceased, to inventory certain personal property as property owned by Vance Kime, deceased. The executors of the estate of Vance Kime had previously inventoried only a one-fourth interest in such personal property.

The petitioner-appellee, Alice Floyd, a daughter of decedent and a person interested in the decedent's estate, filed a petition for citation against respondents Raymond Kime, Carroll Eastman and Gary Kime, alleging that the decedent, Vance Kime, at his death, owned all interest in the aforesaid personal property and that respondents, at the time the petition was filed, were in possession of a three-fourths interest of the property. Raymond Kime was a co-executor until after the order appealed from was entered. Neither the remaining executor nor the guardian ad litem in the estate participated in this appeal.

The cause was tried by the court without a jury. The trial court found for petitioner-appellee and against respondents. As noted, the trial court ordered that the executors of the estate of Vance Kime inventory the personal property as property owned by Vance Kime, deceased. The respondents appeal, asserting that (1) the trial court's decision is against the manifest weight of the evidence, (2) the trial court erroneously failed to uphold the existence of a constructive trust, and (3) the trial court erroneously rejected an offer of proof as barred by the Dead Man's Act. Ill. Rev. Stat. 1973, ch. 51, par. 2(d).

The decedent Vance Kime died on November 17, 1971. He was survived by his wife, two sons, Raymond Kime and Gary Kime, and four daughters, Betty Stang, Norma Gates, Lois Brown and Alice Floyd. A foster child of decedent, Carroll Eastman, also survived. Roger Brown, a son-in-law of decedent, and respondent Raymond Kime were appointed executors of the estate of Vance Kime. Prior to this death, decedent was engaged in a farming operation. Decedent Vance Kime and all respondents contributed labor to the farming operation.

The executors filed an inventory which listed, as decedent's property, a one-fourth interest in certain grain, livestock, farm machinery and accounts receivable from grain elevators. The citation petition which was filed alleged that decedent owned a four-fourths interest, or the entire interest, in these properties. A purported answer to the citation petition was filed by Roger Brown and respondent Raymond Kime, as executors of the estate of Vance Kime. Although all respondents were ordered to file an answer, they did not do so. The trial court, acting in its discretion, required proof of the matters at issue, even though respondents had failed to answer. The major defense asserted to the allegations of petitioner was that the decedent and respondents had formed a partnership, and that decedent and respondents each had a one-fourth interest in the partnership. It was asserted that the property was owned by the partnership and, therefore, that the decedent owned a one-fourth interest in the property and that Raymond Kime, Carroll Eastman and Gary Kime each owned a one-fourth interest in the property. The proceedings substantially revolved around testimony as to whether there was an existence of a partnership between the decedent and the three respondents named.

In a memorandum, the trial court summarized and discussed the evidence on the issue of whether there was in fact a partnership. The court pointed out that all grain sales made by the farming operation were credited to decedent. All funds from the farming operation were kept in an account in the name of decedent and his wife. Respondent Raymond Kime received from the farming operation $6,600 in 1970 and $5,876 in 1971. Respondent Gary Kime received from the farming operation $5,000 in 1970 and $5,000 in 1971. Respondent Carroll Eastman received from the farming operation $2,800 in 1970 and $4,593 in 1971. Respondent Gary Kime listed, on his 1970 Federal income tax return, $2,800 as farm partnership income. Respondent Gary Kime's 1971 Federal income tax return and respondent Raymond Kime's 1970 and 1971 Federal income tax returns, as well as respondent Carroll Eastman's 1970 and 1971 Federal income tax returns listed no partnership income. There was evidence that decedent received nearly three-fourths of the farm income for the last full year of his life. Respondent Gary Kime testified that each of the alleged partners took what he needed to live on out of the account held in the name of decedent and his wife, and that the remaining farm income was used in the farm operation.

Roger Brown, son-in-law of decedent, and an executor of the decedent's estate, testified that decedent had told him that respondents Raymond Kime and Carroll Eastman were partners of decedent. Brown also testified to a conversation in which decedent, in the presence of Raymond Kime and Carroll Eastman, asking respondent Gary Kime if he "wanted to come in with us farming," to which respondent Gary Kime replied affirmatively. Brown further testified to two occasions in which the decedent said he had been out-voted by the respondents in decisions to purchase farm equipment. Betty Stang, Norma Gates, and Lois Brown, decedent's daughters, testified that decedent conferred with respondents with respect to farming decisions.

Richard McHie, a feed salesman, testified that decedent had told him that respondents were decedent's partners. Decedent told his accountant that decedent and respondents had formed a partnership. Although decedent's accountant had advised that a "formal partnership" be established, no written partnership agreement was ever executed. The executors did not file a partnership inventory in decedent's estate, as would be required by the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 188).

The parties to this appeal contend for different standards of review to be applied to the trial court's findings. The weight to be accorded to the trial court's findings of fact is determinative of this appeal.

As stated in Decker v. Decker (1927), 324 Ill. 457, the Illinois Supreme Court concluded:

"[W]here the case is tried before the chancellor, who saw and heard the witnesses, and the evidence is conflicting, a reviewing court will not disturb the chancellor's finding of facts unless the decree is clearly against the weight of the evidence. That rule has been announced in many cases, but it has also been held that when this court, from a consideration of the whole record, is convinced that the evidence does not justify the decree, our duty to reverse it is clear." 324 Ill. 457, 475.)

The rule has sometimes been expressed as it was in Olson v. Olson (1965), 66 Ill. App.2d 227, where the court recited that the trial court heard the evidence and saw the witnesses and that it was the duty of the trial court to make the necessary determination on the facts unless findings are presumed to be correct. The court there said:

"The evidence was ample to support the findings of the trial Court and it is not for us to substitute our findings for those of the Court below unless such findings are clearly and manifestly against ...


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