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Schlieper v. Rust

OPINION FILED MARCH 11, 1977.

DOROTHY C. SCHLIEPER, CONSERVATOR OF THE ESTATE OF RANDAL J. CLARK, INCOMPETENT, PETITIONER-APPELLEE,

v.

FLORENCE I. RUST, RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. PHILLIP J. RARICK, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Respondent Florence I. Rust appeals from an order of the probate division of the Circuit Court of Madison County that she surrender the passbook to a certain savings and loan account of which she was joint tenant with Randal J. Clark, an incompetent, to the conservator of Clark's estate, petitioner-appellee Dorothy C. Schlieper.

On January 13, 1976, Randal J. Clark was adjudicated incompetent, and Mrs. Schlieper, his daughter, was appointed conservator. That same day, she filed a sworn "petition for writ of citation to discover assets" which recited her appointment and that:

"* * * [I]t has come to her attention that there is a Twenty Thousand Dollar ($20,000) deposit in the Citizens Savings & Loan Association, East Alton, Illinois, evidenced by a passbook issued to Randal J. Clark, which account would in the event of his death be paid to Florence Rust.

That the said Florence Rust has possession of the passbook and has refused to surrender the same to the conservator.

That the conservator's expenses incurred on behalf of the incompetent will require marshalling of these and other funds of the incompetent in order to have funds available for his expenses."

The petition concluded:

"WHEREFORE the Petitioner prays the Court to issue a Writ of Citation to discover assets upon Florence Rust ordering her to appear within a short day to produce in Court the savings passbook."

The petition was allowed, and Mrs. Rust was directed to appear in court and produce the passbook on January 19, 1976, by citation filed on January 14, 1976.

On the appointed day, Mrs. Rust appeared with the passbook and a dividend check on the account. She was the sole witness at the hearing which ensued. She testified that she was Mr. Clark's sister, and that he had resided in her home from March 1974 (four months after his wife's death) until December 1975, when he entered the hospital. She testified that the account at Citizens Savings and Loan, opened October 7, 1975, was in her own and her brother's name; that the $20,000 deposited in the account had been her brother's; and that he had cashed all dividend checks on the account prior to the one which she produced in court, which was made payable to her or her brother in the amount of $109.20. According to her, the joint savings account was opened at her suggestion after her brother stated his intention to change his will and leave his entire estate to her. She said that he had become sick after living with her for some time. She called his grandson to take him to the doctor. He stayed with the grandson for several days but was not satisfied there. After a number of telephone calls, she brought him back to her home.

"* * * When we got home Randal was so mad at the grandson, so angry. He said, `Florence, I want to go to Edwardsville and make my will over and give you everything, and appoint you my executor.' I said `I don't want you to do that. I would like to go to bed at night and sleep. They would all blame me.' He had $25,000.00 in a bank account. I told him if you want to give me something give me $20,000.00 of that. Go to the building and loan and put it in our names. It is yours as long as you live and when you die it will come to me. I said I don't want the other. That is the way it was. * * *."

Immediately after respondent's testimony, the court said:

"It appears to me that the source of the funds represented by this certificate were individually owned by Randal J. Clark and it further appears that this account was probably set up as a convenience arrangement. It further appears to me that these funds belonged individually to Randal Clark. I think that is uncontradicted. That being the case they should be transferred to the conservator appointed by this Court."

The court then ordered the funds represented by the passbook and the dividend check transferred to the conservator to he held and administered by her as directed by the Probate ...


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